<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 22, 1999
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
COMMISSION FILE NUMBER 1-10140
AMERICA WEST AIRLINES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 86-0418245
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER IDENTIFICATION NO.)
ORGANIZATION) (602) 693-0800
4000 E. SKY HARBOR BOULEVARD (REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA
PHOENIX, ARIZONA 85034-3899 CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
</TABLE>
------------------------
4512
(PRIMARY STANDARD INDUSTRIAL CLASSIFICATION CODE NUMBER)
------------------------
STEPHEN L. JOHNSON
SENIOR VICE PRESIDENT - CHIEF ADMINISTRATIVE OFFICER AND ASSISTANT CORPORATE
GROUP MANAGER
AMERICA WEST AIRLINES, INC.
4000 E. SKY HARBOR BOULEVARD
PHOENIX, ARIZONA 85034-3899
(602) 693-0800
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES OF CORRESPONDENCE TO:
SAMUEL M. LIVERMORE
COOLEY GODWARD, LLP
ONE MARITIME PLAZA
SAN FRANCISCO, CA 94111
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) CERTIFICATE(2) PRICE(2) REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Pass Through Certificates, Series
1999-1G.................................. $233,668,000 100% $233,668,000 $61,688
- -----------------------------------------------------------------------------------------------------------------------
Pass Through Certificates, Series
1999-1C.................................. $ 20,158,000 100% $ 20,158,000 $ 5,322
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Equals the aggregate principal amount of the securities being registered.
(2) Pursuant to Rule 457(f)(2), the registration fee has been calculated using
the book value of the securities being registered.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION
8(a), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT
SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER
OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION DATED DECEMBER 22, 1999
PROSPECTUS
AMERICA WEST AIRLINES, INC.
EXCHANGE OFFER
PASS THROUGH CERTIFICATES, SERIES 1999-1
<TABLE>
<S> <C>
THE EXCHANGE OFFER--
CONSIDER CAREFULLY THE RISK The New Certificates are being registered with the
FACTORS BEGINNING ON PAGE 19 Securities and Exchange Commission (the "SEC") and are being
IN THIS PROSPECTUS. offered in exchange for the Old Certificates that were
previously issued pursuant to an offering exempt from the
The Certificates will SEC's registration requirements. The terms and conditions of
represent interests in the Exchange Offer are summarized below and more fully
trusts only and will not described in this Prospectus.
represent interests in or
obligations of America West EXPIRATION DATE 5:00 p.m. (New York City time)
or any America West , 2000
affiliate.
WITHDRAWAL RIGHTS Expire before 5:00 p.m. (New York City
America West is relying on time) on Expiration Date
the position of the SEC
staff in certain INTEGRAL MULTIPLES Old Certificates may only be tendered
interpretive letters to in integral multiples of $1,000
third parties to remove the
transfer restrictions on the EXPENSES Paid for by America West
New Certificates.
NEW CERTIFICATES--
The New Certificates will represent the same fractional
undivided interest in the trusts as the Old Certificates
they are replacing. The New Certificates will have the same
material financial terms as the Old Certificates, which are
summarized below and described more fully in this
Prospectus. The New Certificates will not contain terms with
respect to transfer restrictions or interest rate increases
and will only be available in book-entry form.
</TABLE>
<TABLE>
<CAPTION>
CLASS G CERTIFICATES CLASS C CERTIFICATES
<S> <C> <C>
PRINCIPAL AMOUNT $233,668,000 $20,158,000
INTEREST RATE 7.93% 8.54%
FIRST DISTRIBUTION DATE January 2, 2000 January 2, 2000
REGULAR DISTRIBUTION DATES January 2 & July 2 January 2 & July 2
FINAL DISTRIBUTION DATE
- Expected January 2, 2019 January 2, 2006
- Legal July 2, 2020 July 2, 2007
</TABLE>
NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS APPROVED THESE
CERTIFICATES OR DETERMINED THAT THIS PROSPECTUS IS ACCURATE OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<PAGE> 3
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS PROSPECTUS
You should rely only on the information provided in this Prospectus
including the information incorporated by reference. We have not authorized
anyone to provide you with different information. We are not offering the
Certificates in any state where the offer is not permitted. We do not claim the
accuracy of the information in this Prospectus as of any date other than the
date stated on the cover.
We include cross-references in this Prospectus to captions within where you
can find further related discussions. The following Table of Contents provides
the pages on which these captions are located. You can find a listing of the
pages where capitalized terms used in this Prospectus are defined under the
caption "Index of Terms" in Appendix I of this Prospectus.
AVAILABLE INFORMATION
America West is filing with the SEC a Registration Statement on Form S-4
relating to the New Certificates. This Prospectus is a part of the Registration
Statement, but the Registration Statement includes additional information and
also attaches exhibits that are referenced in this Prospectus. You can review a
copy of the Registration Statement through the SEC's "EDGAR" System (Electronic
Data Gathering, Analysis and Retrieval) that is available on the SEC's web site
(http://www.sec.gov).
America West is required to file publicly certain information under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). All of America
West's public filings are also available on EDGAR, including reports, proxy
statements and other information. You may also read and copy all of the
Company's public filings at the SEC's public reference room in Washington, D.C.
or in their facilities in New York and Chicago. Please call the SEC at (800)
SEC-0330 for further information on the operation of the public reference rooms.
All such information is also available at the offices of the New York Stock
Exchange.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" information we file with
the SEC, which means that we can disclose information to you by referring you to
those documents. The information incorporated by reference is considered to be
part of this Prospectus, and information that we later file with the SEC will
automatically update the information in this Prospectus.
We incorporate by reference all annual, quarterly and current reports filed
by the Company during 1999. These include the Annual Report on Form 10-K for the
year ended December 31, 1998, the Quarterly Reports on Forms 10-Q filed for the
quarters ended March 31, 1999, June 30, 1999 and September 30, 1999 and the
Current Report on Form 8-K filed on July 21, 1999. We also incorporate by
reference the portions of the Proxy Statement for the annual stockholder meeting
held on May 21, 1999, that were incorporated by reference in the Form 10-K. Any
future annual, quarterly or current reports and proxy materials filed prior to
the end of the Exchange Offer are incorporated by reference.
As a recipient of this Prospectus, you may request a copy of any document
we incorporate by reference, except exhibits to the documents (unless the
exhibits are specifically incorporated by reference), at no cost, by writing or
call us at: Corporate Secretary, America West Airlines, Inc., 4000 E. Sky Harbor
Blvd., Phoenix, Arizona 85034; (480) 693-0800. In order to ensure timely
delivery of the documents, please make any such request no later than five
business days prior to the Expiration Date.
2.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
------
<S> <C>
PROSPECTUS SUMMARY.................. 5
EXCHANGE OFFER...................... 5
THE TRUSTS.......................... 7
THE CERTIFICATES.................... 7
THE EQUIPMENT NOTES................. 10
LIQUIDITY FACILITIES................ 11
INTERCREDITOR AGREEMENT............. 11
ERISA CONSIDERATIONS................ 13
USE OF PROCEEDS..................... 13
RATIO OF EARNINGS TO FIXED
CHARGES........................... 13
POLICY PROVIDER
AGREEMENT......................... 14
THE COMPANY......................... 14
QUESTIONS OR REQUESTS FOR
ASSISTANCE........................ 16
CASH FLOW STRUCTURE................. 17
Selected Financial Data............. 18
RISK FACTORS........................ 19
Risk Factors Relating to the
Certificates and the Exchange
Offer............................. 19
Consequences of Failure to Exchange
Old Certificates.................. 19
Possible Effects if Aircraft
Appraisals do not Correspond to
the Realizable Value of
Aircraft.......................... 19
Effect of Subordination on
Subordinated Certificateholders... 19
Control Over the Collateral and
Potential Sale of the
Collateral........................ 20
Possible Changes to Agreements
Described in this Prospectus Post-
Exchange Offer.................... 21
Possible Effects of Appointing Owner
Participants...................... 21
Possible Effects from Unused
Deposits.......................... 22
Effects of Withholding Tax on
Foreign Investors................. 22
Limited Ability to Resell
Certificates...................... 23
Risk Factors Relating to the Policy
Provider.......................... 23
The Impact of any Decline in the
Financial Condition of the Policy
Provider.......................... 23
The Limited Nature of the Policy.... 23
The Policy Provider as a Controlling
Party............................. 23
Risk Factors Relating to the Company
and the Airline Industry.......... 24
Competition and Industry
Conditions........................ 24
</TABLE>
<TABLE>
<CAPTION>
PAGE
------
<S> <C>
The Company's Ability to Borrow
Funds in the Future............... 25
Labor Relations..................... 25
Control by Certain Principal
Stockholders...................... 26
Fluctuations in Fuel Costs.......... 26
Aviation Ticket Taxes............... 26
Security and Safety Measures........ 26
Other Regulatory Matters............ 27
Substantial Restrictions Imposed and
Promises Made in connection with
Current Loan Agreements and Debt
Instruments....................... 27
Year 2000 Compliance Program
and Risks......................... 27
Volatility of Stock Price........... 29
THE EXCHANGE OFFER.................. 30
General............................. 30
The Exchange Offer.................. 30
Tendering Old Certificates in the
Exchange Offer.................... 31
Book-Entry Transfer................. 33
Guaranteed Delivery Procedures...... 33
Withdrawal of Tenders............... 34
Conditions.......................... 34
Exchange Agent...................... 35
Transferability of New
Certificates...................... 35
Alternative Use of Shelf
Registration Statement............ 36
Fees and Expenses................... 36
DESCRIPTION OF THE NEW
CERTIFICATES...................... 37
General............................. 37
Subordination....................... 38
Payments And Distributions.......... 40
Pool Factors........................ 42
Reports To Certificateholders....... 45
Indenture Defaults and Certain
Rights Upon An Indenture
Default........................... 45
Purchase Rights of
Certificateholders................ 48
PTC Event of Default................ 48
Merger, Consolidation And Transfer
Of Assets......................... 48
Modifications of the Pass Through
Trust Agreements and Certain Other
Agreements........................ 49
Obligation to Purchase Equipment
Notes............................. 52
</TABLE>
3.
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
------
<S> <C>
Possible Issuance of Class D
Certificates........................ 55
Liquidation of Original Trusts...... 55
Termination of the Trusts........... 55
The Trustees........................ 55
Book-Entry; Delivery and Form....... 56
DESCRIPTION OF THE DEPOSIT
AGREEMENTS........................ 58
General............................. 58
Unused Deposits..................... 58
Distribution Upon Occurrence Of
Triggering Event.................. 59
Depositary.......................... 59
Replacement of Depositary........... 60
DESCRIPTION OF THE ESCROW
AGREEMENTS........................ 60
DESCRIPTION OF THE LIQUIDITY
FACILITIES........................ 62
General............................. 62
Drawings............................ 62
Reimbursement of Drawings........... 65
Liquidity Events of Default......... 67
Liquidity Provider.................. 67
DESCRIPTION OF THE POLICY AND THE
POLICY PROVIDER AGREEMENT......... 68
The Policy.......................... 68
General............................. 70
Definitions......................... 71
The Policy Provider Agreement....... 71
DESCRIPTION OF THE INTERCREDITOR
AGREEMENT......................... 72
Intercreditor Rights................ 72
Priority of Distributions........... 74
Voting of Equipment Notes........... 78
Addition of Trustee for Class D
Certificates...................... 78
</TABLE>
<TABLE>
<CAPTION>
PAGE
------
<S> <C>
The Subordination Agent............. 79
DESCRIPTION OF THE AIRCRAFT AND THE
APPRAISALS........................ 80
The Aircraft........................ 80
The Appraisals...................... 80
Deliveries of Aircraft.............. 81
Substitute Aircraft................. 81
Bridge Financing.................... 82
Conversion Option................... 82
DESCRIPTION OF THE EQUIPMENT
NOTES............................. 82
General............................. 83
Subordination....................... 83
Principal And Interest Payments..... 84
Redemption.......................... 84
Security............................ 86
Loan To Value Ratios Of Equipment
Notes............................. 87
Limitation of Liability............. 88
Indenture Defaults, Notice And
Waiver............................ 89
Remedies............................ 90
Modification of Indentures and
Leases............................ 93
Indemnification..................... 93
The Leases and Certain Provisions of
the Owned Aircraft Indentures..... 94
CERTAIN U.S. FEDERAL INCOME TAX
CONSEQUENCES...................... 103
Exchange of Old Certificates for New
Certificates...................... 103
ERISA CONSIDERATIONS................ 103
PLAN OF DISTRIBUTION................ 106
LEGAL MATTERS....................... 107
EXPERTS............................. 107
APPENDIX I--INDEX OF TERMS.......... A-1-1
APPENDIX II--APPRAISAL
LETTERS........................... A-II-1
</TABLE>
4.
<PAGE> 6
PROSPECTUS SUMMARY
- - THIS SUMMARY HIGHLIGHTS SELECTED INFORMATION FROM THIS PROSPECTUS AND DOES
NOT CONTAIN ALL OF THE INFORMATION THAT YOU NEED TO CONSIDER IN MAKING YOUR
INVESTMENT DECISION. TO UNDERSTAND ALL OF THE TERMS OF THE NEW CERTIFICATES,
READ THE ENTIRE PROSPECTUS AND THE EXHIBITS TO THE REGISTRATION STATEMENT OF
WHICH THIS PROSPECTUS IS A PART.
- - THIS SUMMARY PROVIDES AN OVERVIEW OF CERTAIN FINANCIAL AND OTHER INFORMATION
AND IS QUALIFIED BY THE FULL DESCRIPTION OF THIS FINANCIAL AND OTHER
INFORMATION ELSEWHERE IN THIS PROSPECTUS.
EXCHANGE OFFER
HISTORY
In order to finance the purchase of aircraft, America West Airlines, Inc.
("America West" or the "Company") established two America West Airlines 1999-1
Pass Through Trusts (the "Trusts"). The two Trusts are referred to as the "Class
G Trust" and the "Class C Trust."
The "Certificates" (which refers to both the Old Certificates and the New
Certificates) represent a fractional undivided interest in one of such Trusts.
The Class G Trust issued "Class G Certificates" and the Class C Trust issued
"Class C Certificates."
The Old Certificates were sold in September 1999 pursuant to exemptions from the
SEC registration requirements. The "Initial Purchasers" of the Old Certificates
were Morgan Stanley & Co. Incorporated, Donaldson, Lufkin & Jenrette Securities
Corporation, Merrill Lynch, Pierce, Fenner & Smith Incorporated and Salomon
Smith Barney Inc. The Initial Purchasers then placed the Old Certificates with
institutional investors. The Old Certificates have not been registered with the
SEC and therefore are not freely tradable.
The "Exchange Offer" allows holders of the Old Certificates to exchange their
Old Certificates for New Certificates. The terms of the New Certificates are
identical in all material respects to the Old Certificates except that the New
Certificates do not have transfer restrictions or interest rate increases and
are available only in book-entry form. See "The Exchange Offer--Transferability
of New Certificates".
The New Certificates are being registered with the SEC pursuant to a
Registration Statement, of which this Prospectus is a part.
The New Certificates are being offered in exchange for Old Certificates with the
same principal value. As of the date of this Prospectus, the aggregate principal
amount of Old Certificates outstanding is $253,826,000.
PROCEDURES
Please refer to "The Exchange Offer--Tendering Old Certificates in the Exchange
Offer".
To participate in the Exchange Offer, holders of Certificates
("Certificateholders") must deliver their Old Certificates for exchange no later
than 5:00 p.m., New York time, on , 2000 (the "Expiration Date").
The Expiration Date may be extended under certain circumstances.
Certificateholders must also deliver a completed and signed letter of
transmittal with tender of the Old Certificates (the "Letter of Transmittal"). A
Letter of Transmittal has been sent to Certificateholders and a form can be
found as an exhibit to the Registration Statement.
Certificateholders should deliver the Old Certificates and the Letter of
Transmittal to Wilmington Trust Company (the "Exchange Agent") as follows:
<TABLE>
<S> <C>
Fax: (302) 651-1079
Mail or Wilmington Trust Company
Overnight 1100 North Market Street, 1st Fl.
Delivery: Wilmington, DE 19890-0001
Attn: Kristin Long
By Hand: Wilmington Trust Company
1105 North Market Street, 1st Fl.
Wilmington, DE 19890
Attn: Corporate Trust Operations
</TABLE>
See "The Exchange Offer--Tendering Old Certificates in the Exchange Offer" and
"--Exchange Agent".
Certificateholders may also tender their Old Certificates through a book-entry
transfer or by complying with certain guaranteed delivery procedures. In either
case, however, a completed Letter
5.
<PAGE> 7
of Transmittal must still be delivered to the Exchange Agent before the
Expiration Date. See "The Exchange Offer-- Tendering Old Certificates in the
Exchange Offer", "--Book-Entry Transfer" and "--Guaranteed Delivery Procedures".
DENOMINATIONS
Certificateholders may only tender Old Certificates in integral multiples of
$1,000. Similarly, the New Certificates will only be issued in integral
multiples of $1,000.
REPRESENTATIONS MADE BY TENDERING CERTIFICATEHOLDERS
To participate in the Exchange Offer, each Certificateholder will be required to
make the following representations in the Letter of Transmittal:
1. The Certificateholder is not an affiliate of the Company nor a broker-dealer
tendering Old Certificates acquired for its own account (an "affiliate" is
defined as a person who controls, is controlled by or is under common
control with the Company);
2. the Certificateholder is acquiring the New Certificates in the ordinary
course of its business; and
3. the Certificateholder is not acquiring the New Certificates with an intent
to distribute them.
RESALE OF NEW CERTIFICATES
In connection with the Exchange Offer, the Company is registering the New
Certificates with the SEC in order to remove the transfer restrictions
applicable to the Old Certificates.
Certificateholders who make the representations listed above will be able to
freely resell the New Certificates.
Certificateholders who are broker-dealers, and who acquire New Certificates
directly from the Trustee (defined below) with an intent to resell them, must
deliver a Prospectus in connection with any resale of New Certificates. The
Company will make this Prospectus available to broker-dealers to use in
connection with any resale of New Certificates for six months following the
Expiration Date.
For more information on the resale of New Certificates see "The Exchange
Offer--Transferability of New Certificates".
WITHDRAWAL RIGHTS
Certificateholders who have tendered Old Certificates may withdraw such
certificates at any time before 5:00 p.m., New York City time, on the Expiration
Date. To withdraw a tender of Old Certificates, Certificateholders must submit a
written notice requesting such withdrawal to the Exchange Agent. See "The
Exchange Offer--Withdrawal of Tenders".
REGISTRATION, CLEARANCE AND SETTLEMENT
The New Certificates will be represented by one or more permanent global
certificates, which will be registered in the name of Cede & Co. ("Cede"), as
the nominee of The Depository Trust Company ("DTC"). The global certificates
(the "Global Certificates") will be deposited with the Trustee as custodian for
DTC.
See "Description of the New Certificates--Book Entry; Delivery and Form".
DELIVERY OF NEW CERTIFICATES
The Exchange Agent will deliver New Certificates for all Old Certificates
promptly following the expiration of the Exchange Offer.
TAX CONSEQUENCES
The exchange of New Certificates for Old Certificates will not be considered a
sale, exchange or other type of taxable transaction for Federal income tax
purposes. See "Certain Federal Income Tax Considerations".
FEES AND EXPENSES
The Company will pay for all expenses that arise in connection with the Exchange
Offer.
FAILURE TO EXCHANGE OLD CERTIFICATES
With some exceptions, Certificateholders who do not exchange their Old
Certificates before the Expiration Date will no longer be entitled to
registration rights. In addition, these Certificateholders will not be able to
offer or sell the Old Certificates unless the Old Certificates are regis-
6.
<PAGE> 8
tered with the SEC or such a sale is exempt from applicable federal and state
securities laws.
THE TRUSTS
The two Trusts are as follows:
- - America West Airlines 1999-1G Pass Through Trust; and
- - America West Airlines 1999-1C Pass Through Trust.
The Trusts were formed pursuant to one of two separate pass through trust
agreements (the "Pass Through Trust Agreements") entered into between the
Company and Wilmington Trust Company, as "Trustee" of the Trusts.
In purchasing the Old Certificates, Certificateholders acquired a fractional
undivided interest in the Trust corresponding with the class of Certificates
purchased. The proceeds from the sale of the Certificates will be or have been
used by the Trustee to purchase equipment notes (the "Equipment Notes") issued
in connection with the financing of five Airbus A319-132 aircraft and five
Airbus A320-232 aircraft (collectively, the "Aircraft"). See "Description of the
Equipment Notes" and "--Obligation to Purchase Equipment Notes".
TRUST PROPERTY
The property of each Trust (the "Trust Property") consists of the following:
1. Equipment Notes issued in connection with the delivery of each Aircraft;
2. rights to acquire Equipment Notes pursuant to a "Note Purchase Agreement"
among America West and Wilmington Trust Company, as Trustee, subordination
agent (the "Subordination Agent"), escrow agent (the "Escrow Agent") and
paying agent (the "Paying Agent");
3. rights under an Escrow and Paying Agent Agreement (the "Escrow Agreement")
among the Initial Purchasers and the Escrow Agent, the Trustee and the
Paying Agent (entered into to protect funds in the Deposits (defined below)
for the benefit of the Certificateholders);
4. rights under an "Intercreditor Agreement" among the Trustee, the
Subordination Agent and the Liquidity Provider (defined below) (entered into
to govern the relationships among the different series of
Certificateholders, the Liquidity Provider and the Subordination Agent);
5. all money to be received under the Liquidity Facility (defined below) for
such Trust;
6. with respect to the Class G Trust, all monies receivable under the Policy
(defined below); and
7. funds that may be deposited with the Trustee in accounts relating to such
Trust.
ORIGINAL TRUSTS AND SUCCESSOR TRUSTS
The Trusts that were formed in connection with the sale of the Old Certificates
are referred to as the "Original Trusts". On the Transfer Date (defined below),
the Original Trusts will transfer and assign all of their assets and rights to
two substantially identical "Successor Trusts." The difference between these
Trusts is that the Successor Trusts will be governed by New York law (whereas
the Original Trusts are governed by Delaware law) and they will not have the
right to purchase new Equipment Notes.
Wilmington Trust Company is Trustee of both the Original Trusts (in such
capacity, the "Original Trustee") and of the Successor Trusts (in such capacity,
the "Successor Trustee").
The "Transfer Date" refers to the earlier of (i) the first Business Day after
May 30, 2000, or, if later, the fifth Business Day after the Delivery Period
Termination Date (defined below) and (ii) the fifth Business Day after the
occurrence of a Triggering Event (defined below).
THE CERTIFICATES
Certificates represent a fractional undivided interest in one of the two Trusts
established by the Company, and are referred to as the Class G Certificates and
Class C Certificates depending on which Trust issued them.
7.
<PAGE> 9
SUMMARY OF TERMS OF CERTIFICATES
The chart below contains information about each Class of Certificates.
<TABLE>
<CAPTION>
CLASS G CLASS C
CERTIFICATES CERTIFICATES
----------------- -----------------
<S> <C> <C>
Aggregate Fact
Amount.............. $233,668,000 $20,158,000
Ratings:
Moody's............. Aaa Baa3
Standard & Poor's... AAA BBB
Initial Loan to
Aircraft Value
(cumulative)(1)..... 56.8% 61.1%
Expected Principal
Distribution Window
(in years).......... 0.3 - 19.3 0.3 - 6.3
Initial Average Life
(in years).......... 11.5 2.9
Regular Distribution
Dates............... Jan. 2 and July 2 Jan. 2 and July 2
Final Expected Regular
Distribution Date... Jan. 2, 2019 July 2, 2006
Final Legal
Distribution Date... July 2, 2020 January 2, 2007
Minimum
Denomination........ $100,000 $100,000
Section 1110
Protection(2)....... Yes Yes
Liquidity Facility 3 semiannual 3 semiannual
Coverage(3)......... interest payments interest payments
Liquidity Facility
Amount at July 2,
2000(3)............. $27,153,979 $2,187,035
</TABLE>
(1) The initial loan to aircraft values for each Class of Certificates
were determined as of July 2, 2000 and were based on the following
assumptions:
- all Aircraft will be delivered prior to July 2, 2000;
- the Company will issue the maximum principal amount of Equipment
Notes with respect to all Aircraft; and
- the aggregate appraised value of all Aircraft will be $401,582,133
(this value is an estimate and reflects certain assumptions).
See "Description of the Aircraft and the Appraisals--The Appraisals".
The Company has agreed that all agreements to finance the lease or
purchase of any Aircraft will have a term requiring that, as of the
date that an Aircraft is delivered, the initial loan to aircraft value
for that Aircraft will be no more than the percentages set forth
below:
<TABLE>
<CAPTION>
AIRCRAFT FINANCED MAXIMUM INITIAL LOAN
WITH RESPECT TO: TO AIRCRAFT VALUE
----------------- --------------------
<S> <C>
Series G Equipment Notes 57.0%
Series C Equipment Notes 62.0%
</TABLE>
(2) After each Aircraft is delivered, the Loan Trustee (defined below)
with respect to such Aircraft will have the benefit of Section 1110 of
the U.S. Bankruptcy Code with respect to such Aircraft, which will
enable such Loan Trustee to take possession of such Aircraft within 60
days of the Company's being a debtor under Chapter 11 of the U.S.
Bankruptcy Code, unless the Company affirms the related Lease or
Mortgage financing and cures all non-bankruptcy defaults. See
"Description of Equipment Notes--Remedies".
(3) If the Company is unable to make regular payments of interest on the
Equipment Notes, then Morgan Stanley Capital Services, Inc. (the
"Liquidity Provider"), will provide for the interest portion of such
payments for up to three consecutive Scheduled Payments (defined
below). See "Description of the Certificates--Payments and
Distributions".
INTEREST
Each class of Certificates accrues interest at a different rate set forth below.
<TABLE>
<CAPTION>
INTEREST RATE
-------------
<S> <C>
Class G Certificates 7.93%
Class C Certificates 8.54%
</TABLE>
SCHEDULED PAYMENTS
Certificateholders will receive Scheduled Payments of interest on each January 2
and July 2, beginning on January 2, 2000. Certificateholders will also receive
Scheduled Payments of principal on each January 2 and July 2 in certain years,
beginning on or after January 2, 2000. These "Scheduled Payments" will be funded
by (1) interest payments due on the same dates for both the Equipment Notes and
the Deposits (defined below) and (2) principal payments due on the same dates
for the Equipment Notes.
8.
<PAGE> 10
If the Company does not make its regular payments of interest on the Equipment
Notes, Morgan Stanley Capital Services, Inc. (the "Liquidity Provider"), will
provide for the interest portion of such payments for up to three consecutive
Scheduled Payments. The "Final Legal Distribution Date" for each Class of
Certificates, which is the Final Expected Regular Distribution Date for such
Class of Certificates plus eighteen months (being the maximum period the
Liquidity Provider will service interest payments) is set forth below.
<TABLE>
<CAPTION>
FINAL LEGAL
DISTRIBUTION DATE
-----------------
<S> <C>
Class G Certificates July 2, 2020
Class C Certificates July 2, 2007
</TABLE>
See "Description of the Liquidity Facilities--Drawings".
SPECIAL PAYMENTS
Certificateholders may also receive Special Payments if the Company redeems, or
the Trustee purchases, the Equipment Notes from any of the Trusts. Special
Payments, if due, would be made within 20 days of the date that
Certificateholders receive notice that they are entitled to such a payment.
These "Special Payments" will be made up of the principal, interest and, in some
instances, a premium payable by the Company. See "Description of the
Certificates--Payments and Distributions".
METHOD OF DISTRIBUTION
Distributions with respect to New Certificates will be made to DTC, who will in
turn distribute the funds to participants in DTC who are credited with ownership
of the New Certificates ("DTC Participants") according to their respective share
of beneficial interests in the New Certificates. The DTC Participants will then
be responsible for distributing all payments to beneficial owners of New
Certificates. See "Description of the New Certificates--Book-Entry; Delivery and
Form".
DEPOSITS
The cash proceeds from the sale of the Old Certificates were deposited with ABN
AMRO Bank N.V., acting through its Chicago branch (the "Depositary") and placed
in one of two accounts corresponding to the Trusts that issued the Old
Certificates (such funds being referred to as the "Deposits"). This arrangement
was made pursuant to two separate deposit agreements entered into between the
Depositary and the Escrow Agent (the "Deposit Agreements").
When an Aircraft is delivered to the Company during the Delivery Period (defined
below), the Trustee will withdraw funds from the Deposits of the appropriate
Trust to purchase the Equipment Notes of the appropriate series issued with
respect to such Aircraft. The "Delivery Period" runs from August 1999 through
February 2000, with the final delivery for purposes of purchase by the Trusts no
later than May 30, 2000, subject to extension through August 31, 2000 under
certain circumstances.
Each Deposit accrues interest at an annual rate equal to the annual interest
rate of the Certificates issued by the Trust associated with such Deposit.
Interest accrued on the Deposits will be distributed to Certificateholders on
January 2 and July 2 of each year, beginning on January 2, 2000 and ending when
funds from a Deposit have been fully withdrawn.
If any funds remain as Deposits after the Aircraft are financed, such funds will
be distributed to the Certificateholders along with accrued and unpaid interest
and, if applicable, a premium payable by the Company. See "Description of the
Deposit Agreements".
PURCHASE RIGHTS OF CERTIFICATEHOLDERS
Upon the occurrence of a Triggering Event (defined below), the holders of Class
C Certificates will have a right, within 180 days, to purchase all, but not less
than all, of the Class G Certificates; and whether or not such right is
exercised, the Policy Provider will thereafter have the right to purchase all,
but not less than all, of the Class G Certificates. If Class D Certificates are
issued, the holders of Class D Certificates will have a right to purchase all,
but not less than all, of the Class G and the Class C Certificates at such times
as the Class C Certificates have the right to purchase Class G Certificates.
"Triggering Event" means (i) the occurrence of an Indenture Default under all
Indentures resulting in a PTC Event of Default (defined below) with respect to
the most senior Class of Certificates, (ii) the acceleration of all of the
outstanding Equipment Notes (provided that during the Delivery Period the
aggregate principal
9.
<PAGE> 11
amount exceeds $100 million) or (iii) certain bankruptcy or insolvency events
involving the Company. See "Description of the New Certificates--Purchase Rights
of Certificateholders".
THE EQUIPMENT NOTES
Equipment Notes will be issued with respect to each financed Aircraft in two
series corresponding to the Trusts that will purchase them. These are referred
to as the "Series G Equipment Notes" and the "Series C Equipment Notes". A Trust
will purchase the series of Equipment Notes that has an interest rate equal to
the interest rate of the Certificates issued by that Trust. See "Description of
the Equipment Notes".
ISSUANCE OF EQUIPMENT NOTES
America West can elect to either purchase or lease an Aircraft, and the
structure of each such financial arrangement is as follows:
- - If America West chooses to purchase an Aircraft (an "Owned Aircraft"), then
America West will issue the Equipment Notes for such Aircraft on a recourse
basis in connection with a separate secured loan transaction. The Equipment
Notes will be issued pursuant to an indenture (the "Owned Aircraft
Indenture") between America West and the indenture trustee thereunder (the
"Owned Aircraft Trustee").
- - If America West chooses to lease an Aircraft (a "Leased Aircraft"), then the
trustee of a separate owner trust established for the benefit of an equity
investor in a leveraged lease transaction (an "Owner Trustee") will issue the
Equipment Notes for such Aircraft on a non-recourse basis in connection with
a separate leveraged lease transaction. The Equipment Notes will be issued
pursuant to an indenture (the "Leased Aircraft Indenture") between the
applicable Owner Trustee and the indenture trustee thereunder (the "Leased
Aircraft Trustee"). If an Aircraft is to be financed using a leveraged lease,
the Company must select an owner participant ("Owner Participant") for such
Aircraft.
The Leased Aircraft Trustee and Owned Aircraft Trustee are collectively referred
to as the "Loan Trustees". The Leased Aircraft Indentures and the Owned Aircraft
Indentures are collectively referred to as the "Indentures."
INTEREST PAYMENTS
The Equipment Notes will accrue interest at a rate equal to the annual interest
rate of the Certificates issued by the Trust that purchases them. Interest on
Equipment Notes is payable on January 2 and July 2 of each year, beginning on
January 2, 2000.
PRINCIPAL PAYMENTS
The Company must also make scheduled principal payments on the Equipment Notes
on January 2 and July 2 of certain years, beginning on January 2, 2000. See
"Description of New Certificates--Payments and Distributions".
MATURITY DATE
Equipment Notes will mature on or before the expected final distribution date
for the Certificates issued by the Trusts that own them.
REDEMPTION AND PURCHASE
If normal use of an Aircraft is disrupted under certain circumstances (see
"Description of the Equipment Notes--The Leases and Certain Provision of the
Owned Aircraft Indentures" for the definition of an "Event of Loss"), America
West must either replace such Aircraft or redeem the Equipment Notes issued with
respect to such Aircraft. The redemption price in such a case would be equal to
the aggregate unpaid principal amount of such Equipment Notes, together with
accrued interest but without a premium. Under certain other circumstances,
America West has the right to redeem all of the Equipment Notes at a price equal
to the aggregate unpaid principal amount of such notes, together with accrued
interest and a premium (referred to as a "Make-Whole Premium"). Additionally,
the Owner Trustee or an affiliated entity may purchase all of the Equipment
Notes issued with respect to a Leased Aircraft under certain circumstances,
including a default by America West of its lease obligations. See "Description
of the Equipment Notes--Redemption".
10.
<PAGE> 12
SECURITY
Equipment Notes issued with respect to each Aircraft will be secured by a
security interest in such Aircraft. In the case of a Leased Aircraft, the
corresponding Equipment Notes will also be secured by an assignment of certain
rights under the lease relating to such Aircraft (a "Lease"), including the
right to receive rental payments. In the case of an Owned Aircraft, the
corresponding Equipment Notes will be secured by the mortgage of such Aircraft
and an assignment of certain of America West's rights under its purchase
agreement with the manufacturer of such Aircraft. Each Equipment Note will only
be secured by the Aircraft financed by that Equipment Note and, if the Aircraft
is leased, by the lease related to that Aircraft, but not by any other Aircraft
or the lease related to any other Aircraft. In addition, any default that occurs
with respect to any Indenture or Lease (with respect to a Leased Aircraft) will
only affect that Indenture or Lease and will not affect any other Indenture or
Lease. See "Description of the Equipment Notes--Security".
SUBORDINATION
The Series C Equipment Notes are subordinate to the Series G Equipment Notes. In
effect, this means that on each distribution date interest will be paid and
principal due on Series G Equipment Notes before similar payments are made on
Series C Equipment Notes.
If the Series D Equipment Notes are issued (the "Series D Equipment Notes"),
these Notes will be subordinate to the Series C Equipment Notes and the Series G
Equipment Notes and interest and principal on the Series D Equipment Notes will
not be paid until it has been paid on the other two series of notes.
POSSIBLE ISSUANCE OF SERIES D EQUIPMENT NOTES
The Company may elect to issue Series D Equipment Notes in order to finance the
lease or purchase of additional aircraft. If the Company does so, neither the
Class G or Class C Trusts would purchase Series D Equipment Notes. The Company
may choose to fund the Series D Equipment Notes through the sale of Pass Through
Certificates (the "Class D Certificates") issued by a Class D America West
Airlines 1999-1 Pass Through Trust (the "Class D Trust").
LIQUIDITY FACILITIES
The Liquidity Provider will enter into a separate revolving credit agreement (a
"Liquidity Facility") with the Subordination Agent with respect to each class of
Certificates. Under each Liquidity Facility the Liquidity Provider will advance
funds to the Subordination Agent ("Interest Drawings") to be used to pay
interest that is due with respect to Scheduled Payments (described above) on
Certificates if the Company does not meet its payment obligations on the
Equipment Notes.
The Liquidity Facilities are intended to enhance the likelihood that
Certificateholders will receive the interest payable on the Certificates in a
timely manner. Interest Drawings may only fund the interest portion of a maximum
of three consecutive Scheduled Payments and may not be used to fund interest
payments on the Deposits, nor principal or premium payments due with respect to
the Certificates.
When an Interest Drawing is made under any Liquidity Facility, the Subordination
Agent is obligated to reimburse the Liquidity Provider ahead of the
Certificateholders for the full amount of such drawing (and any other Liquidity
Obligations (as defined below)), to the extent funds are available.
"Liquidity Obligations" with respect to each Liquidity Facility include amounts
owed to the Liquidity Provider under that Liquidity Facility and any other
agreements to which the Liquidity Provider is a party, including reimbursements
for any Interest Drawings made under that Liquidity Facility.
For more information regarding the Liquidity Facilities, see "Description of the
Liquidity Facilities".
INTERCREDITOR AGREEMENT
PAYMENT RANKINGS
Pursuant to the Intercreditor Agreement between the Trustees, the Subordination
Agent and the Liquidity Provider, in general the Subordination Agent will
distribute regularly scheduled payments received with respect to the Equipment
Notes in the following order:
1. Liquidity Obligations to the Liquidity Provider;
11.
<PAGE> 13
2. distributions due to Class G Certificateholders;
3. distributions due to Class C Certificateholders;
4. distributions due to Class D Certificateholders (if any exist); and
5. certain fees and expenses to the Subordination Agent and the Trustees.
If a Triggering Event occurs, the Intercreditor Agreement provides that the
Subordination Agent will distribute payments received with respect to the
Equipment Notes in the following order (certain capitalized terms below are
defined elsewhere in this Prospectus):
1. to pay Administrative Expenses to the Subordination Agent, the Liquidity
Provider, the Policy Provider or any Trustee or to reimburse any
Certificateholder, the Liquidity Provider or the Policy Provider in respect
of payments made to the Subordination Agent or any Trustee in connection
with the protection or realization of the value of the Equipment Notes or
any Collateral or any Trust Indenture Estate;
2. to the Liquidity Provider to pay Liquidity Expenses and to the Policy
Provider to pay Policy Expenses;
3. to the Liquidity Provider to pay interest accrued on the Liquidity
Obligations and to the Policy Provider to pay interest accrued on certain
Policy Provider Obligations, pro rata;
4. to the Liquidity Provider to pay the outstanding amount of all remaining
Liquidity Obligations and/or, if applicable, with respect to any Liquidity
Facility, unless (a) less than 65% of the aggregate outstanding principal
amount of the Equipment Notes are Performing Equipment Notes and a
Liquidity Event of Default shall have occurred and be continuing or (b) a
Final Drawing shall have occurred under such Liquidity Facility, to
replenish the Cash Collateral Account with respect to such Liquidity
Facility up to the Registered Amount for the related Class of Certificates;
5. to pay certain fees, taxes, charges and other amounts payable to the
Subordination Agent, any Trustee or any Certificateholder;
6. to pay distributions due to holders of Class G Certificates;
7. to pay to the Policy Provider to pay the Policy Provider Obligations (other
than amounts payable pursuant to Clauses 1, 2 and 3 above and any Excess
Reimbursement Obligations);
8. to pay distributions due to holders of Class C Certificates;
9. to pay any Excess Reimbursement Obligations to the Policy Provider; and
10. to pay distributions due to holders of Class D Certificates (if any).
See "Description of the Intercreditor Agreement--Priority of Distributions".
Payments made with respect to the Deposits are not subject to the subordination
provisions of the Intercreditor Agreement.
INTERCREDITOR RIGHTS
In general, holders of a majority of the outstanding principal of Equipment
Notes issued pursuant to a particular Indenture will direct the applicable Loan
Trustee as to whether or not to take certain actions in connection with that
Indenture.
If an Indenture Default occurs, until such default is corrected and subject to
certain exceptions, the Controlling Party (defined below) of that Indenture may
accelerate and sell all (but not less than all) of the Equipment Notes issued by
that Indenture.
The "Controlling Party" of an Indenture shall mean:
(a) the Policy Provider until payment of final distributions to the holders of
Class G Certificates and no obligations owing to the Policy Provider remain
outstanding or, if a Policy Provider Default has occurred and is
continuing, the Class G Trustee;
(b) upon payment of the final distributions to the holders of the Class G
Certificates and if either no obligations owing to the Policy Provider
remain outstanding or a Policy Provider Default has occurred and is
continuing, the Class C Trustee; and
(c) under certain circumstances, and notwithstanding the foregoing, the
liquidity provider
12.
<PAGE> 14
with the largest amount owed to it (unless the Policy Provider amends its
Policy to cover all drawings and interest thereon owing to each liquidity
provider under its liquidity facility and certain other conditions are met
or the Policy provider pays to each liquidity provider all outstanding
drawings and interest thereon owing to such liquidity provider under its
liquidity facility, in which case, the Policy Provider (so long as no
Policy Provider Default has occurred and is continuing)).
If, however, there comes a time when either (1) the entire amount available
under any Liquidity Facility has been withdrawn and has not been reimbursed, (2)
the entire amount available under any Downgrade Drawing or Non-Extension Drawing
has been withdrawn and has not been reimbursed or (3) all of the Equipment Notes
with respect to any one Indenture have been accelerated, then 18 months after
the earlier of either of the above occurs, the Liquidity Provider with the
highest outstanding amount of Liquidity Obligations shall have the right to
become the Controlling Party with respect to such Indenture; provided that the
Policy Provider shall remain the Controlling Party under certain circumstances.
If such a situation arises, the Trustees and the Certificateholders are bound to
vote as directed by the Controlling Party.
Possible actions that the Controlling Party could take include accelerating the
Equipment Notes, foreclosing a lien on the Aircraft securing such Equipment
Notes or, in certain circumstances, selling the Equipment Notes.
Because the Equipment Notes are not cross-collateralized, proceeds from the sale
of an Aircraft in excess of the amounts due on Equipment Notes related to such
Aircraft will not be available to cover losses, if any, on any other Equipment
Notes.
See "Description of the Intercreditor Agreement--Intercreditor
Rights--Controlling Party".
ERISA CONSIDERATIONS
In general, subject to important considerations described under "ERISA
Considerations" in this Prospectus, employee benefit plans subject to Title I of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code") or
entities which may be deemed to hold the assets of any such plan (each, an
"ERISA Plan") will not be eligible to purchase the Certificates, unless certain
conditions apply and subject to the circumstances applicable to such ERISA
Plans.
USE OF PROCEEDS
There will be no cash proceeds payable to America West as a result of the
issuance of New Certificates pursuant to the Exchange Offer. Proceeds from the
sale of the Old Certificates were deposited with the Depositary for the benefit
of the Certificateholders of the Trusts. These proceeds will be used to purchase
Equipment Notes. See "Use of Proceeds".
RATIO OF EARNINGS TO FIXED CHARGES
The following information for the period from January 1, 1994 through August 25,
1994 relates to America West's predecessor. Information for the period August
26, 1994 through December 31, 1994, for the years ended December 31, 1995, 1996,
1997 and 1998 and for the nine months ended September 30, 1998 and 1999 relates
to America West. The information as to America West has not been prepared on a
consistent basis of accounting with the information as to the predecessor due to
America West's adoption in August 1994 of fresh start reporting in accordance
with the American Institute of Certified Public Accountants' Statement of
Position 90-7--"Financial Reporting by Entities in Reorganization Under the
Bankruptcy Code ("SOP 90-7").
For the period from January 1, 1994 through August 25, 1994, $201.2 million
would have been required to achieve a ratio of earnings to fixed charges of 1.0.
The ratio of earnings to fixed charges for the period August 26, 1994 to
December 31, 1994, and for the years ended December 31, 1995, 1996, 1997 and
1998, was 1.38, 1.73, 1.24, 1.98 and 2.20, respectively. The ratio of earnings
to fixed charges for the nine months ended September 30, 1998 and September 30,
1999 was 2.35 and 2.28, respectively.
For purposes of calculating this ratio, earnings consist of earnings before
taxes, minority interest and extraordinary items plus interest expense (net of
capitalized interest), the portion of rental expense deemed representative of
the interest
13.
<PAGE> 15
expense and amortization of previously capitalized interest. Fixed charges
consist of interest expense and the portion of rental expense representative of
interest expense.
POLICY PROVIDER AGREEMENT
The Ambac Assurance Corporation (the "Policy Provider") has issued its
certificate guarantee insurance policy (the "Policy") in favor of the
Subordination Agent for the benefit of the Class G Trustee and holders of the
Class G Certificates. The Intercreditor Agreement directs the Subordination
Agent to make a drawing under the Policy under certain circumstances in the
following five instances:
1. To enable the Subordination Agent to pay Accrued Class G Interest in the
event the Subordination Agent does not have sufficient funds for the payment
of such interest.
2. To enable the Subordination Agent to pay the reduction in the outstanding
Pool Balance of the Class G Certificates on any Special Distribution Date in
the event the Subordination Agent does not have sufficient funds for such
payment.
3. To enable the Subordination Agent to pay an amount equal to the then
outstanding principal amount plus accrued interest for the Class G
Certificates in the event that 24 months have lapsed since any payment was
made on any Series G Equipment Note as to which there has been a failure to
pay principal or that has been accelerated.
4. To enable the Subordination Agent to pay the Final Distributions on the
Class G Certificates in the event the Subordination Agent does not have
sufficient funds to pay such Final Distributions.
5. To enable the Subordination Agent to request a policy drawing with respect
to any Preference Amount upon actual knowledge of the issuance of any Order.
The Policy does not cover (i) shortfalls attributable to the liability of the
Class G Trust, the Class G Trustee or the Subordination Agent for withholding
taxes, (ii) any premium, prepayment penalty or other accelerated payment, which
at any time may become due on or with respect to any Class G Certificate, nor
(iii) any failure of the Subordination Agent or the Class G Trustee to make any
payment due to the holders of the Class G Certificates from the funds received.
See "Description of the Policy Provider and the Policy Provider Agreement".
THE COMPANY
We are the ninth largest commercial airline carrier in the United States,
operating through our principal hubs located in Phoenix, Arizona and Las Vegas,
Nevada, and a mini-hub located in Columbus, Ohio. We are the lowest cost major
airline in the United States. As of September 30, 1999, we served 60
destinations, including seven destinations in Mexico and one in Canada, with a
fleet of 121 aircraft. We offered service to an additional 40 destinations
through alliance arrangements with other airlines.
We seek to maximize our market share by operating primarily through a hub and
spoke network, the strategy employed by all but one of the major airlines in the
United States. We are the leading airline serving Phoenix based on available
seat miles and takeoffs and landings and the leading airline serving Las Vegas
based on available seat miles. We believe that the success of our operations in
Phoenix and Las Vegas is in part due to those cities' airports being among the
world's largest 25 in passenger numbers and those cities being among the fastest
growing in the nation. In addition, we believe that our hubs are well positioned
for continued growth due to their geographically favorable locations with
strategic access to key Southwest and West Coast markets, relatively low
operating costs, year-round fair weather and modern, uncongested facilities.
BUSINESS STRATEGY
Our strategy is to maximize shareholder value by capitalizing on our key
competitive strengths while maintaining financial flexibility. The principal
elements of our strategy are to grow our existing lines of business, to improve
America West's unit revenues, to maintain our strategic cost advantage and to
ensure financial flexibility.
Grow the Company's Existing Lines of Business
We intend to grow our airline operation by continuing to add service to new
destinations and
14.
<PAGE> 16
increasing the frequency of flights to existing destinations from Phoenix and
Las Vegas. The Phoenix and Las Vegas markets are among the fastest growing in
the United States, and we believe that our Phoenix hub is undersized relative to
its potential. In execution of this strategy, we have increased available seat
miles ("ASMs") 25% over the past three years with the majority of this growth
focused on strengthening our position at Phoenix. Compared with 1998, system
ASMs are expected to increase approximately 7% in 1999 and approximately 10%
annually through 2002.
We have also expanded our reach outside of our core markets through alliances
with other airlines. We have codesharing arrangements with Continental Airlines,
Mesa Airlines, EVA Airways of Taiwan, Air China International Corp., Northwest
Airlines and British Airways. These alliances have allowed us to expand our
passenger base without experiencing significant increases in capital or
operating expenses, and in some cases it has allowed us to achieve cost savings
by reducing redundant labor and facilities. We believe that these alliances are
an efficient means of developing new markets and increasing travel opportunities
for our customers and we plan to continue to pursue such relationships with both
domestic and international carriers.
Improve its Unit Revenues
Due to our leisure oriented hub markets in Phoenix and Las Vegas, the
competitive nature of many of the Western U.S. markets where we fly, and our
size relative to our competition, our passenger revenue per available seat mile
("RASM") is approximately 20% less than the industry average. One of our primary
opportunities to improve profitability is to close that gap through three main
efforts: (1) growing in key business markets; (2) investing in scheduling and
revenue management systems; and (3) improving the quality of our products.
Maintain its Strategic Cost Advantage
We are committed to maintaining our low cost structure, which offers us a
significant competitive advantage over other major airlines. We have achieved
this low cost structure primarily through employee productivity, favorable labor
costs per available seat mile and industry-leading aircraft utilization.
Ensure Financial Flexibility
The airline and travel industries are cyclical in nature. Because of this, an
important element of our strategy is to maintain financial flexibility as
protection against a downturn in the business cycle. A key component of this
strategy is our aircraft leasing plan. As of September 30, 1999, and through the
end of 2003, leases for 57 aircraft will expire. As a result, if economic
conditions worsen during that period, we will be able to delay our fleet and
aircraft-related financial obligations by electing not to renew these aircraft
leases or otherwise replace these aircraft. Another component of this strategy
is our compensation system, which gives us the flexibility to vary what we pay
employees depending on our overall performance. The Company further enhances its
financial flexibility by maintaining a $125 million senior secured revolving
credit facility with certain financial institutions.
America West is a Delaware corporation. Our executive offices are located at
4000 E. Sky Harbor Boulevard., Tempe, Arizona 85034, and our telephone number is
(480) 693-0800.
America West Holdings Corporation ("Holdings") is a Delaware corporation that
became the holding company for America West effective midnight December 31,
1996. The only material assets of Holdings are the capital stock of America West
and the capital stock of The Leisure Company ("LeisureCo."), a travel and
leisure subsidiary.
15.
<PAGE> 17
QUESTIONS OR REQUESTS FOR ASSISTANCE
If you have questions or would like to request assistance with the mechanics of
exchanging your Old Certificates in the Exchange Offer, please direct them to
Wilmington Trust Company as indicated below. In addition to the other positions
described in this Prospectus Summary, Wilmington Trust Company has been
appointed to act as the Exchange Agent of the Exchange Offer.
By Mail or Overnight Delivery:
Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Kristin Long
By Hand:
Wilmington Trust Company
1105 North Market Street, 1st Floor
Wilmington, Delaware 19890
Attention: Corporate Trust Operations
By Facsimile Transmission*:
(302) 651-1079
*Confirm successful delivery by telephone at (302) 651-1562
16.
<PAGE> 18
CASH FLOW STRUCTURE
Set forth below is a diagram illustrating the structure for the
Certificates and certain cash flows.
[FLOW CHART]
- -------------------------
(1) Each Leased Aircraft will be subject to a separate Lease and the related
Indenture; each owned Aircraft will be subject to a separate Indenture.
(2) Funds held as Deposits relating to each Trust will be withdrawn to purchase
Equipment Notes on behalf of such Trust during the Delivery Period. If any
funds remain as Deposits with respect to any Trust at the end of such
period, such funds will be withdrawn by the Escrow Agent and distributed to
the holders of the Certificates issued by such Trust, together with accrued
and unpaid interest thereon and a premium, if applicable. No interest will
accrue with respect to the Deposits after they have been fully withdrawn.
(3) The initial amount of the Liquidity Facility for each Trust, taken
together, will cover three consecutive semiannual interest payments with
respect to each Trust, except that the Liquidity Facility for any Trust
will not cover interest payable by the Depositary on the Deposits relating
to such Trust. The scheduled payments of interest on the Equipment Notes
and on the Deposits relating to a Trust, taken together, will be sufficient
to pay an amount equal to accrued interest on the outstanding Certificates
issued by such Trust at the rate per annum applicable thereto.
17.
<PAGE> 19
SELECTED FINANCIAL DATA
The selected data presented below under the captions "Statement of
Operations Data" and "Balance Sheet Data" as of and for (i) the years ended
December 31, 1998, 1997, 1996 and 1995, the period August 26, 1994 through
December 31, 1994, and the period January 1, 1994 to August 25, 1994, are
derived from the financial statements of America West, which financial
statements have been audited by KPMG LLP, independent certified public
accountants and (ii) the nine month periods ended September 30, 1999 and 1998
are derived from the unaudited condensed financial statements of America West
incorporated by reference in this Prospectus. In the opinion of management, the
unaudited condensed financial statements reflect all adjustments, which are of a
normal recurring nature, necessary for a fair presentation. The financial
statements as of December 31, 1998 and 1997 and for each of the years in the
three-year period ended December 31, 1998, and the report thereon, are
incorporated by reference in this Prospectus. The information presented below
under the caption "Operating Data" is unaudited. The financial statements of the
Reorganized Company reflect the impact of adjustments to reflect the fair value
of assets and liabilities under fresh start reporting. As a result, the
financial statements of the Reorganized Company are presented on a different
basis than those of the Predecessor Company and, therefore, are not comparable
in all respects.
<TABLE>
<CAPTION>
REORGANIZED COMPANY
------------------------------------------------------------------------------------------
NINE MONTHS PERIOD FROM
ENDED SEPTEMBER 30, YEAR ENDED DECEMBER 31, AUGUST 26 TO
----------------------- ------------------------------------------------- DECEMBER 31,
1999 1998 1998 1997 1996 1995 1994
---------- ---------- ---------- ---------- ---------- ---------- ------------
(UNAUDITED) (DOLLARS IN THOUSANDS EXCEPT OPERATING DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Operating revenues.................... $1,594,549 $1,475,866 $1,968,714 $1,874,956 $1,739,526 $1,550,642 $ 469,766
Operating income...................... 161,796 163,062 197,846 162,573 68,666(1) 154,732 38,871
Income before income taxes and
extraordinary items.................. 154,832 153,873 184,557 140,673 34,493 108,378 19,736
Income before extraordinary items..... 87,765 83,874 103,016 75,330 9,610 54,770 7,846
Extraordinary items(2)................ -- -- -- -- (1,105) (984) --
Net income............................ 87,765 83,874 103,016 75,330 8,505 53,786 7,846
BALANCE SHEET DATA (AT END OF PERIOD):
Working capital (deficiency).......... $ 22,611 $ (149,230) $ (104,356) $ (161,456) $ (170,907) $ 70,416 $ (47,927)
Total assets.......................... 1,776,091 1,622,212 1,594,644 1,547,331 1,597,677 1,588,709 1,545,092
Long-term debt, less current
maturities........................... 155,659 214,933 207,906 272,760 330,148 373,964 465,598
Total stockholder's equity............ 853,613 753,675 769,225 684,768 622,780 649,472 595,446
OPERATING DATA (UNAUDITED):
Available seat miles (in millions).... 19,329 18,070 24,307 23,568 21,625 19,421 6,424
Revenue passenger miles (in
millions)............................ 13,170 12,340 16,374 16,204 15,321 13,313 3,972
Passenger load factor (%)............. 68.1 68.3 67.4 68.8 70.9 68.5 61.8
Yield per revenue passenger mile
(cents).............................. 11.45 11.30 11.35 10.89 10.69 10.91 11.02
Passenger revenue per available seat
mile (cents)......................... 7.80 7.72 7.65 7.49 7.57 7.48 6.81
Operating cost per available seat mile
(cents).............................. 7.41 7.27 7.29 7.27 7.73(1) 7.19 6.71
Fulltime equivalent employees (at end
of period)........................... 11,422 10,458 10,067 9,615 9,652 8,712 10,715
<CAPTION>
PREDECESSOR
COMPANY
------------
PERIOD FROM
JANUARY 1 TO
AUGUST 25,
1994
------------
<S> <C>
STATEMENT OF OPERATIONS DATA:
Operating revenues.................... $ 939,028
Operating income...................... 107,506
Income before income taxes and
extraordinary items.................. (201,209)
Income before extraordinary items..... (203,268)
Extraordinary items(2)................ 257,660
Net income............................ 54,392
BALANCE SHEET DATA (AT END OF PERIOD):
Working capital (deficiency).......... $ --
Total assets.......................... --
Long-term debt, less current
maturities........................... --
Total stockholder's equity............ --
OPERATING DATA (UNAUDITED):
Available seat miles (in millions).... 11,636
Revenue passenger miles (in
millions)............................ 8,261
Passenger load factor (%)............. 71.0
Yield per revenue passenger mile
(cents).............................. 10.68
Passenger revenue per available seat
mile (cents)......................... 7.58
Operating cost per available seat mile
(cents).............................. 7.15
Fulltime equivalent employees (at end
of period)........................... 10,849
</TABLE>
- -------------------------
(1) Reflects a $65.1 million nonrecurring special charge relating to America
West's negotiation of its AVSA S.A.R.L. aircraft purchase agreement and
writedown of certain aircraft related inventory and equipment and
underutilized facilities as well as certain other adjustments. The special
charge increased cost per available seat mile by .30 cents for the year
ended December 31, 1996.
(2) Includes (i) an extraordinary loss of $1.1 million in 1996 relating to
prepayment of the 10 3/4% Notes, (ii) an extraordinary loss of $984,000 in
1995 resulting from the exchange of debt by America West and (iii) $257.7
million in 1994 resulting from the discharge of indebtedness pursuant to
the consummation of the plan of reorganization.
18.
<PAGE> 20
RISK FACTORS
RISK FACTORS RELATING TO THE CERTIFICATES AND THE EXCHANGE OFFER
CONSEQUENCES OF FAILURE TO
EXCHANGE
OLD CERTIFICATES If you do not exchange Old Certificates for New
Certificates in this Exchange Offer, you will
be restricted from transferring Old
Certificates in the future. In general, outside
of this Exchange Offer, you may not offer or
sell Old Certificates unless they have been
registered under the federal and state
securities laws or you offer or sell them in a
transaction that is exempt from such laws. The
Company is not planning to register the Old
Certificates under the federal securities laws.
POSSIBLE EFFECTS IF AIRCRAFT
APPRAISALS
DO NOT CORRESPOND TO THE
REALIZABLE
VALUE OF AIRCRAFT Aviation Solutions, Inc. ("AvSolutions"),
AVITAS, Inc. ("AVITAS") and Morton Beyer &
Agnew ("MBA") (collectively, the "Appraisers")
have appraised the Aircraft being acquired by
the Company. These appraisals were based on
various assumptions and methodologies, which
differed among the Appraisers.
In general, the appraised value of each
Aircraft was calculated using the average or
median value of an Aircraft, whichever was
lower, and then that value was projected for
the month in which the Aircraft is scheduled to
be delivered. Appraisals based on different
assumptions and methodologies than those used
by the Appraisers may produce very different
values for the Aircraft.
An appraisal is only an estimate of value and
is not necessarily an accurate indication of
how much the Company will pay to purchase an
Aircraft. In addition, the realizable value of
the Aircraft following the exercise of remedies
will depend on several factors including:
- supply of other aircraft
- quality of other aircraft available
- supply of buyers
- general economic conditions
- condition of the Aircraft
Accordingly, you should not rely on the
appraisal values as an indicator of the value
that may be realized if the Aircraft are sold.
Based on the above, we cannot assure you that
the proceeds from a sale or other means of
disposal of an Aircraft will be sufficient to
fully fund payments due to Certificateholders.
See "Description of the Aircraft and the
Appraisals--The Appraisals".
EFFECT OF SUBORDINATION ON
SUBORDINATED
CERTIFICATEHOLDERS Payments on the subordinated class and/or, if
issued, classes of Certificates will not be
made until the senior classes are paid those
amounts due to them. In addition, in certain
circumstances, if the Company has defaulted on
a series of Equipment Notes, the Subordination
Agent may be required to distribute payments
received with respect to a more junior series
of
19.
<PAGE> 21
Equipment Notes to those Certificateholders
that were due to receive payments with respect
to the Equipment Notes on which the default
occurred. In such a situation the remaining
junior series of Equipment Notes may not earn
enough interest to fully fund distributions due
to the holders of the corresponding
Certificates. Accordingly, if the Company
defaults on Equipment Notes, the holders of one
or more junior Classes of Certificates may not
receive the full amount of payments that they
are due to receive, even if the Company
eventually pays the Equipment Notes due in
full.
Payment with respect to the Deposits are not
subject to the subordination provisions of the
Intercreditor Agreement.
CONTROL OVER THE COLLATERAL
AND
POTENTIAL SALE OF THE
COLLATERAL The "Controlling Party" of an Indenture shall
mean:
(a) the Policy Provider until payment of
the final distributions to the
holders of the Class G Certificates
and no obligations to the Policy
Provider remain outstanding or, if a
Policy Provider Default has occurred
and is continuing, the Class G
Trustee;
(b) upon payment of the Final
Distributions to the holders of the
Class G Certificates, and if either
no obligations owing to the Policy
Provider remain outstanding or a
Policy Provider has occurred and is
continuing, the Class C Trustee; and
(c) under certain circumstances the
liquidity provider with the largest
amount owed to it.
Possible actions that the Controlling Party
could take include accelerating the Equipment
Notes, foreclosing a lien on the Aircraft
securing such Equipment Notes or, in certain
circumstances, selling the Equipment Notes.
Because the Equipment Notes are not
cross-collateralized, proceeds from the sale of
an Aircraft in excess of the amounts due on
Equipment Notes related to such Aircraft will
not be available to cover losses, if any, on
any other Equipment Notes.
From time to time, the market for Equipment
Notes may be very limited and there can be no
assurance that the proceeds from such an
acceleration or sale will be sufficient to
cover the distributions payable to
Certificateholders. If proceeds from a sale are
insufficient to cover distributions due to be
paid, Certificateholders will not have any
claim for the shortfall against the Company,
any Owner Trustee, Owner Participant or any
Trustee.
For a description of the restrictions on the
right of the Controlling Party to sell the
Equipment Notes see "Description of the New
Certificates--Indenture Defaults and Certain
Rights Upon and Indenture Default".
20.
<PAGE> 22
POSSIBLE CHANGES TO AGREEMENTS
DESCRIBED IN THIS PROSPECTUS
POST-EXCHANGE OFFER Listed below are certain situations that,
should they occur, could lead to revisions of
certain agreements described in this
Prospectus, such that those agreements would
differ from their descriptions in this
Prospectus.
Leveraged Lease Financing of an Aircraft
If an Aircraft is to be financed using a
leveraged lease, the Company must select an
Owner Participant for such Aircraft. Such Owner
Participant will have the right to request that
revisions be made to the following documents:
- Participation Agreement;
- Lease; and
- Leased Aircraft Indenture.
Issuance of Series D Equipment Notes
If the Company elects to issue Series D
Equipment Notes and funds the sale of such
notes by selling Class D Certificates, the
parties that purchase Class D Certificates will
have the right to request that revisions be
made to the following documents:
- Leased Aircraft Documents;
- Form of the Participation Agreement;
and
- Form of Owned Aircraft Indenture.
Regardless of the revisions requested, certain
terms of the documents are subject to the
following restrictions:
- Mandatory Documents Terms must be
included; and
- Mandatory Economic Terms may not be
revised.
In addition, if any revisions are requested,
the Company must do the following:
1. Certify to the Trustees that any
revisions made to documents do not
materially and adversely affect the
Certificateholders and do not expose
the Certificateholders, the Liquidity
Provider or the Policy Provider to any
material additional risks beyond those
to which such persons would have been
exposed absent such revisions; and
2. In case of any material revisions,
obtain written confirmation from each
of Moody's Investors Service, Inc.
("Moody's") and Standard & Poor's
Ratings Services ("S&P", and together
with Moody's, the "Rating Agencies")
that the revisions made to documents
will not cause the withdrawal,
suspension or downgrading of the
rating of any Class of Certificates.
See "Description of the
Certificates--Obligation to Purchase Equipment
Notes".
POSSIBLE EFFECTS OF APPOINTING
OWNER PARTICIPANTS As stated above, if an Aircraft is to be
financed utilizing a leveraged lease, the
Company must select an Owner Participant
21.
<PAGE> 23
with respect to such Aircraft. In addition to
having the right to request that revisions be
made to certain documents, prior to an
Indenture Default an Owner Participant will
have the right to approve the selection of
counsel that, pursuant to the documentation,
will furnish legal opinions, and any appraisers
or the accountants required by the
documentation. This right is to the exclusion
of the related Loan Trustee.
An Owner Participant will also have the right
to approve the sublease of an Aircraft and to
approve of the bill of sale used if an Aircraft
is ever substituted after an event of loss.
Finally, an Owner Participant will have the
right to sell, assign or otherwise transfer its
interest in any leverage lease, subject to the
relevant Participation Agreement and related
documents.
POSSIBLE EFFECTS FROM UNUSED
DEPOSITS There is no guarantee that the Trustees will
have an opportunity to use all of the funds in
the Deposits to purchase Equipment Notes. The
Trustees will not be obligated to purchase
Equipment Notes if certain conditions are not
satisfied when an Aircraft is delivered. See
"Description of the New
Certificates--Obligation to Purchase Equipment
Notes". In addition, less than all of the funds
held in escrow as Deposits may be used to
purchase Equipment Notes.
The Trustees will withdraw all funds that
remain as Deposits at the Delivery Period
Termination Date and distribute them with
accrued and unpaid interest. In certain
circumstances, but not all, the Company will
also be required to pay a premium designed to
"make-whole" the Certificateholders receiving
such Deposits. Since the maximum principal
amount of Equipment Notes may not be issued
with respect to an Aircraft and, in any such
case, the Series C Equipment Notes are more
likely not to be issued in the maximum
principal amount as compared to the other
Equipment Notes, it is more likely that a
distribution of unused Deposits will be made
with respect to the Class C Certificates as
compared to the other Certificates. See
"Description of the Deposit Agreements--Unused
Deposits".
EFFECTS OF WITHHOLDING TAX ON
FOREIGN INVESTORS Taxes will be withheld from distributions made
with respect to Original Trusts and Deposits
that are made to foreigners that have
beneficial ownership of Certificates. Such
taxes will be withheld because of the
possibility that the Original Trusts may be
treated as partnerships engaged in U.S. trades
or businesses for U.S. federal income tax
purposes.
By accepting an interest in a Certificate,
foreign investors must agree to indemnify the
Original Trustee, the Original Trust and the
Paying Agent against liability for improperly
failing to withhold tax.
Foreign investors may file a U.S. federal
income tax return to request refunds for any
amounts withheld, but there is no assurance
that they will receive such a refund or that
such refunds will be received in a timely
manner.
22.
<PAGE> 24
LIMITED ABILITY TO RESELL
CERTIFICATES Prior to the Exchange Offer, there was no
public market for the Certificates.
Accordingly, a secondary market for the
Certificates may not develop and even if one
does, it might not continue or it might not be
sufficiently liquid to allow you to resell any
of your Certificates.
RISK FACTORS RELATING TO THE POLICY PROVIDER
THE IMPACT OF ANY DECLINE IN
THE
FINANCIAL CONDITION OF THE
POLICY
PROVIDER The "AAA" rating by S&P and the "Aaa" rating by
Moody's of the Class G Certificates are based,
primarily, on the existence of the Policy
insuring the complete and timely payment of
interest accrued and payable on the Class G
Certificates on each Regular Distribution Date
and the payment of principal on or (under
certain circumstances) before the Final Legal
Distribution Date. Any decline in the financial
condition of the Policy Provider or the
insolvency of the Policy Provider may result in
the downgrade of the foregoing ratings of the
Class G Certificates and may impair the ability
of the Policy Provider to make payments to the
holders of the Class G Certificates pursuant to
the Policy. In addition, in the event of the
insolvency of the Policy Provider under
insurance insolvency proceedings, it is
possible that the Subordination Agent would be
unable to recover the full amount due under the
Class G Certificates on its unsecured claim
against the Policy Provider.
For information on the financial information
generally available with respect to the Policy
Provider, see "Description of the Policy and
the Policy Provider Agreement--The Policy".
THE LIMITED NATURE OF THE
POLICY The Policy's support on interest payments and
principal payments is limited to the Class G
Certificates and, as a result, the Policy will
only run to the benefit of the holders of the
Class C Certificates. Although drawings under
the Policy for interest payments may be made
when interest is due, drawings for principal
payments may not, except in certain
circumstances, be made until the Final Legal
Distribution Date for the Class G Certificates.
The Policy provides no coverage for the Class C
Certificates or, if issued, the Class D
Certificates.
THE POLICY PROVIDER AS A
CONTROLLING
PARTY Unless a Policy Provider Default has occurred,
the Policy Provider will operate as the
Controlling Party unless the Liquidity Provider
has the right to become the Controlling Party.
As the Controlling Party, the Policy Provider
will have the ability, subject to certain
limitations, to direct the Subordination Agent
in the exercise of all remedies, including the
ability to direct the Subordination Agent to
sell any or all of the Equipment Notes or to
instruct the Loan Trustee under the applicable
Indenture to accelerate the Equipment Notes
issued under such Indenture and to foreclose
upon the lien created thereunder. As the
Controlling Party, the Policy Provider will be
in a position to take actions that are
beneficial to the Policy Provider and the
holders of the Class G Certificates but
detrimental to the holders of the Class C
Certificates or, if issued, the Class D
Certificates.
23.
<PAGE> 25
RISK FACTORS RELATING TO THE COMPANY AND THE AIRLINE INDUSTRY
Below we have listed certain risks that we face as a business in general. If any
of these risks actually have a material adverse effect on our business,
financial condition or operating results, we may not be able to satisfy some or
all or our obligations under the Leases (in the case of Leased Aircraft) or the
Equipment Notes (in the case of Owned Aircraft). Depending on the extent to
which we are unable to satisfy these obligations, you may not realize the
expected return on your investment in the Certificates, and in the worst case,
you may not get back the full amount of your initial investment in the
Certificates.
COMPETITION AND INDUSTRY
CONDITIONS The airline industry is highly competitive and
industry earnings are typically volatile. From
1990 to 1992, the airline industry experienced
unprecedented losses due to high fuel costs,
general economic conditions, intense price
competition and other factors. Airlines compete
on the basis of pricing, scheduling (frequency
and flight times), on-time performance,
frequent flyer programs and other services.
The airline industry is susceptible to price
discounting, which occurs when a carrier offers
discounts or promotional fares to passengers.
Discounted fares offered by one carrier are
normally matched by competing carriers, which
may have the effect of lowering the profit per
passenger but not necessarily increase the
number of passengers who fly. In addition, in
recent years several new carriers have entered
the airline industry, and many of them have
low-cost structures. In some cases, these new
carriers have initiated or triggered price
discounting. The entry of additional new
carriers in many of our markets, as well as
increased competition from or the introduction
of new services by existing carriers, could
have a material adverse effect on our business,
financial condition and operating results.
Most of the markets we serve are highly
competitive and are served by larger carriers
with substantially greater financial resources
than we have available. At our Phoenix and Las
Vegas hubs, our principal competitor is
Southwest Airlines. A number of our larger
competitors have proprietary reservation
systems, which gives them certain competitive
advantages.
The air travel business historically fluctuates
in response to general economic conditions. The
airline industry is sensitive to changes in
economic conditions that affect business and
leisure travel and is highly susceptible to
unforeseen events that result in declines in
air travel, including:
- political instability
- regional hostilities
- recession
- fuel price escalation
- inflation
- adverse weather conditions
- labor instability
- regulatory oversight
24.
<PAGE> 26
If the rates of travel on the routes that we
serve decrease or if competition increases
between carriers, our business, financial
condition and operating results could be
materially adversely affected.
THE COMPANY'S ABILITY TO
BORROW
FUNDS IN THE FUTURE As of September 30, 1999, we owed approximately
$155.7 million of long-term debt (less current
maturities). Much of this debt is secured by a
large portion of our assets, leaving us with a
limited number of assets to use to obtain
additional financing which we may need if we
encounter adverse industry conditions or a
prolonged economic recession in the future.
In addition, as of September 30, 1999, we had
firm commitments to AVSA to purchase a total of
19 Airbus aircraft with four still to be
delivered in 1999. We also had an option to
purchase 46 more Airbus aircraft. The aggregate
net cost of these firm commitments is
approximately $800 million, based on a 3.5%
annual price escalation.
In October 1999, we entered into an agreement
with AVSA to purchase 15 Airbus A318-100 and 12
Airbus A320-200 aircraft. Deliveries for the
A320 aircraft will begin August 2000 and
continue through 2003. The A318s are scheduled
to be delivered in 2003 and 2004. We also
received 25 options and 25 purchase rights to
purchase aircraft in the "A320 family" of
aircraft (A318s, A319s, A320s and A321s) for
delivery in 2004 through 2008. As part of this
agreement, all options outstanding under the
previous agreement were cancelled. The
aggregate net cost of firm commitments under
this aircraft order is approximately $1.1
billion based on a 3.5% annual price
escalation.
We have arranged for financing from AVSA for
approximately 75% of the remaining aircraft to
be delivered under the purchase commitment
existing at September 30, 1999, but we will
have to look to outside sources to finance the
remaining commitments. We cannot guarantee that
we will be able to obtain enough capital to
finance the remainder of the aircraft, and if
we default on our commitments to purchase
aircraft, our business, financial condition and
operating results could be materially adversely
affected.
LABOR RELATIONS In the recent past, labor unions have made
several attempts to organize our employees, and
we expect that these efforts will continue.
Certain groups of our employees have chosen to
be represented by a union and we are currently
negotiating initial collective bargaining
agreements with some of these groups. We cannot
predict which, if any, other groups of
employees may seek union representation or the
outcome of collective bargaining agreements
that we may be forced to negotiate in the
future. If we are unable to negotiate
acceptable collective bargaining agreements, we
might have to wait through "cooling off"
periods, which are often followed by
union-initiated work actions, including
strikes. Depending on the type and duration of
work action we endure, our business, financial
condition and operating results could be
materially adversely affected.
25.
<PAGE> 27
CONTROL BY CERTAIN PRINCIPAL
STOCKHOLDERS Currently, three stockholders collectively
control approximately 50% of the total voting
power of America West Holdings Corporation, our
parent corporation ("Holdings"). These
stockholders, TPG Partners, L.P., TPG Parallel
I, L.P. and Air Partners II, L.P. are all
controlled by the same company, TPG Advisors,
Inc. We cannot guarantee that the controlling
stockholders identified above will not try to
influence Holding's business in a way that
would favor their own personal interests to the
detriment of our interests.
FLUCTUATIONS IN FUEL COSTS Fuel is the principal raw material used in our
business, accounting for approximately 11% of
our total operating expenses in 1999. For
example, with our current level of fuel
consumption, if jet fuel prices increase by one
cent per gallon, our annual operating results
will decrease by $4.6 million for 2000. Among
the unpredictable events whose occurrence could
effect the price and supply of jet fuel in the
future are:
- geopolitical developments
- regional production patterns
- environmental concerns
In 1996, we implemented a "fuel hedging"
program to manage the risk and possible effect
that fluctuating jet fuel prices could have on
our business. The program primarily addresses
our exposure to fuel requirements on the East
Coast. West Coast jet fuel prices, however,
tend to be more volatile than jet fuel prices
in other areas of the United States and because
we primarily serve the Western United States,
we purchase a substantially larger portion of
our jet fuel requirements on the West Coast
compared to our larger competitors.
Accordingly, if the price of jet fuel goes up
substantially or the supply of jet fuel is
inadequate in the future and we have not
implemented adequate protection measures, our
business, financial condition and operating
results could be materially adversely affected.
AVIATION TICKET TAXES On August 5, 1997 President Clinton signed a
new aviation ticket tax into law that is
scheduled to stay in effect though September
30, 2007. As a result of the competitive
environment in the passenger airline industry,
we have been limited in our ability to pass on
the additional costs of these taxes to
passengers through fare increases.
SECURITY AND SAFETY MEASURES Congress recently adopted increased safety
measures designed to increase airline passenger
security and protect against terrorist acts.
Implementing these measures has increased
operating costs for the airline industry as a
whole. A recent report from Congress' Aviation
Safety Commission recommends that airlines
implement additional measures to improve the
safety and security of air travel. We cannot
predict which additional measures Congress will
impose or the impact that implementing those
measures will have on our revenue, but it is
possible that the impact could be significant.
26.
<PAGE> 28
OTHER REGULATORY MATTERS The airline industry is heavily regulated. Both
federal and state governments from time to time
propose laws and regulations that would impose
additional requirements and restrictions on
airline operations. Depending on which and how
many of these laws and regulations are enacted,
the cost of operating an airline could increase
significantly. We cannot predict which laws and
regulations will be adopted or the changes and
increased expense that they could cause.
Accordingly, we cannot guarantee that future
legislative and regulatory acts will not have a
materially adverse effect on our business,
financial conditions or operating results.
SUBSTANTIAL RESTRICTIONS
IMPOSED AND
PROMISES MADE IN CONNECTION
WITH
CURRENT LOAN AGREEMENTS AND
DEBT
INSTRUMENTS We have borrowed money pursuant to certain loan
agreements and debt instruments with
significant operating and financial
restrictions. These agreements and instruments
contain terms that may significantly restrict
or prohibit our ability to take certain
actions, including our ability:
- to repay certain debts before they come
due
- to sell assets
- to participate in certain mergers and
acquisitions
- to conduct future financings
- to make needed capital expenditures
- to implement certain measures that
would better enable us to withstand
future downturns in the airline
industry or the economy in general
In addition, several of these borrowing
arrangements require us to satisfy certain
benchmarks in respect of our financial
position.
We are currently in compliance with the
restrictions and requirements referred to
above, but any default would allow our lenders
to require us to repay the full amount of money
that we have borrowed, plus accrued and unpaid
interest. If this were to occur, we cannot
guarantee that we would have or be able to
raise the funds needed to pay off these debts.
Finally, we may be obligated to offer to
purchase certain amounts of the debts referred
to above. Such obligations would arise if
certain changes occur with respect to who
controls us or Holdings, our parent company, or
if we dispose of certain assets.
YEAR 2000 COMPLIANCE PROGRAM
AND
RISKS The Year 2000 issue results from computer
programs being written using two digits rather
than four to define the applicable year. As a
consequence, time-sensitive computer equipment
and software may recognize a date using "00" as
the year 1900 rather than the year 2000. Many
of the Company's systems, including information
and computer systems and automated equipment,
will be affected by the Year 2000 issue. The
Company is also heavily reliant on the
management of the nation's air traffic control
system by the Federal Aviation Administration
("FAA"), local authorities' management of the
airports at which AWA operates, and vendors to
provide goods
27.
<PAGE> 29
(fuel, catering, etc.), services
(telecommunications, data networks, satellites,
etc.) and data (frequent flyer partnerships,
alliances, etc.).
The Company has underway a Year 2000 Project
(the "Project" or "Year 2000 Project") to
identify the programs and infrastructure that
could be affected by the Year 2000 issue and
has implemented a plan to resolve the problems
identified on a timely basis. The Project
requires the Company to devote a considerable
amount of internal resources and hire
substantial external resources to assist with
the implementation and monitoring of the
Project, and has required the replacement of
certain equipment and modification of certain
software.
The Company believes that its Year 2000 Project
will be completed prior to any currently
anticipated significant impact on the Company
arising from the Year 2000 issue. The Project
is divided into three main sections, including
information technology ("IT") systems, embedded
systems and third party compliance. Mission
critical IT and embedded systems are complete.
Monitoring and corrective actions, if required,
will continue through the first quarter of
2000. An initial assessment of third party
suppliers is complete. Ongoing assessment will
continue through the year based on the
suppliers' Year 2000 readiness and their
importance to the Company.
The Company currently estimates that the total
cost of its Year 2000 Project will be
approximately $48 million, which will be funded
from operating cash flows. These costs include
approximately $8 million of normal system
software and equipment upgrades and
replacements which the Company anticipated
incurring in the ordinary course regardless of
the Year 2000 issue. As of September 30, 1999,
the Company had incurred approximately $35
million of non-capital expenditures in
connection with the Year 2000 Project. The
Company expects that approximately $39 million
of the costs have been or will be expensed as
incurred and the Company has had or will have
approximately $9 million of capital
expenditures.
The costs and expected completion date of the
Company's Year 2000 Project are based on
management's best estimates, and reflect
assumptions regarding the availability and cost
of personnel trained in this area, the
compliance plans of third parties and similar
uncertainties. However, due to the complexity
and pervasiveness of the Year 2000 issue and in
particular the uncertainty regarding the
compliance programs of third parties, no
assurance can be given that these estimates
will be achieved, and actual results could
differ materially from those anticipated. If
the Company's plan to address the Year 2000
issue is not successfully or timely
implemented, the Company may need to devote
more resources to the process and additional
costs may be incurred, which could have a
material adverse effect on the Company's
financial condition and results of operations.
28.
<PAGE> 30
The failure to correct a material Year 2000
problem could result in an interruption in, or
failure of, certain normal business activities
or operations. While difficult to predict, the
Company speculates that the most reasonably
likely worst case Year 2000 scenario will
result from the failure of third parties,
including operators of airports and air traffic
control systems, to resolve their Year 2000
compliance issue. The Company has initiated
communications with such parties and its
significant suppliers and vendors with which
its systems interface and upon which the
Company's business depends in an effort to
reduce the adverse impact of the Year 2000
issue. There can be no assurance, however, that
the systems of such third parties will be
modified on a timely basis and such failure may
have a material adverse effect on the Company's
financial condition and results of operations.
As a component of its Year 2000 Project, the
Company has developed a comprehensive analysis
of the operational problems and costs
(including loss of revenues) that would be
reasonably likely to result from the failure by
the Company and certain third parties to
complete efforts necessary to achieve Year 2000
compliance on a timely basis. The Company has
developed contingency plans designed to enable
it to continue operations, consistent with the
highest standards of safety, in the event of
such third party failures.
VOLATILITY OF STOCK PRICE The stock market has experienced significant
price and volume fluctuations that have
affected the market prices of equity securities
of companies in the airline industry and that
often have been unrelated to the operating
performance of such companies. These broad
market fluctuations may adversely affect the
market price of the Class B Common Stock of
Holdings (the "Class B Common Stock"). In
addition, the market price of the Class B
Common Stock is volatile and subject to
fluctuations in response to quarterly
variations in operating results, announcements
of new services by the Company or its
competitors, changes in financial estimates by
securities analysts or other events or factors,
many of which are beyond the Company's control.
29.
<PAGE> 31
THE EXCHANGE OFFER
This section summarizes key provisions of the Exchange and Registration
Rights Agreement among America West, the Trustees and the Initial Purchasers
(the "Registration Rights Agreement"), which has been filed as an exhibit to the
Registration Statement and is available as set forth under the heading
"Available Information".
GENERAL
Pursuant to the Registration Rights Agreement, America West agreed, at no
cost to the holders of the Certificates, to register the Certificates with the
SEC to allow holders to trade the Certificates. Such a registration (a
"Registration Event") would take one of two forms set forth below:
Registration Event
(1) Exchange Offer Registration Statement. An Exchange Offer under the
Securities Act of 1933, as amended (the "Securities Act") would allow
holders to exchange the Old Certificates for New Certificates, which
will have terms identical in all material respects to the Old
Certificates (except that the New Certificates will not contain terms
with respect to transfer restrictions or interest rate increases as
described below and the New Certificates will be available only in
book-entry form).
(2) Shelf Registration Statement. Alternatively, in the event that any
changes in law or applicable interpretations of the staff of the SEC
would not permit America West to effect the Exchange Offer, or the
Exchange Offer is not consummated within 210 days after the initial
issuance date of the Certificates, which was September 21, 1999 (the
"Issuance Date"), or if requested to do so by holders who are not
eligible to participate in the Exchange Offer the Company shall
register the Old Certificates for resale under the Securities Act
through a Shelf Registration Statement (the "Shelf Registration
Statement").
If the Company fails to consummate the Exchange Offer or, alternatively, to
have a Shelf Registration Statement declared effective within 210 calendar days
of September 21, 1999, the interest rate per annum on the Equipment Notes and
Deposits will be increased by 0.50% from the 210th day until either the Exchange
Offer is consummated, a shelf registration statement is declared effective or
the date on which all of the outstanding Certificates are transferable by
holders (other than affiliates or former affiliates of America West) without
further registration under the Securities Act.
If during any 12-month period the shelf registration statement ceases to be
effective for more than 60 days, whether or not consecutive, the interest rate
per annum on the Equipment Notes and, if applicable, the Deposits will be
increased by 0.50% from the 61st day after the shelf registration statement
ceases to be effective until the shelf registration statement again becomes
effective.
THE EXCHANGE OFFER
In the Registration Rights Agreement the Company agreed to register New
Certificates with the SEC to allow holders of all outstanding Old Certificates
to exchange their Old Certificates for the New Certificates. The New
Certificates will have the same material financial terms as the Old
Certificates. The difference between the Certificates is that the New
Certificates will not contain terms with respect to transfer restrictions or
interest rate increases and the New Certificates will be available only in
book-entry form. This Prospectus, together with the Letter of Transmittal, is
being sent to all registered holders of Old Certificates as of
[ ], for the purpose of allowing holders to exchange their Old
Certificates.
30.
<PAGE> 32
Obligations of the Company to Effect an Exchange Offer
(1) File a registration statement to register the New Certificates by
January 19, 2000.
(2) Cause the registration statement to become effective by March 19,
2000.
(3) Keep the registration statement effective while the Exchange Offer is
open, which must be no fewer than 30 days.
(4) Complete the Exchange Offer by April 18, 2000.
The Exchange Offer will commence upon effectiveness of the registration and
terminate 30 calendar days after the Exchange Offer commences, unless extended.
The Company has the sole discretion to extend the Exchange Offer by notifying
the Exchange Agent and mailing an announcement of the extension to the holders
of Old Certificates. However, if the Exchange Offer is not consummated by April
18, 2000, the interest rate on the Equipment Notes and Deposits is subject to
increase. See "--General".
The Company has the right to delay acceptance of any Old Certificates in
the Exchange Offer, to extend the Exchange Offer or to terminate the Exchange
Offer and not permit acceptance of Old Certificates not previously accepted if
any of the conditions set forth herein under "--Conditions" occur. The Company
can also amend the terms of the Exchange Offer in any manner it deems
advantageous to the holders of the Old Certificates. The Company will notify the
Exchange Agent as promptly as practicable in the event of any delay in
acceptance, extension, termination or amendment. If the Exchange Offer is
amended in a manner determined by the Company to constitute a material change,
the Company will promptly disclose such amendment in a manner reasonably
calculated to inform the holders of the Old Certificates of such amendment. The
Company has no obligation to publish, advertise, or otherwise communicate any
such public announcement, other than by making a timely release to an
appropriate news agency.
With some exceptions, holders of Old Certificates who do not exchange their
Old Certificates for New Certificates in the Exchange Offer will no longer be
entitled to registration rights and will not be able to offer or sell their Old
Certificates, unless such Old Certificates are subsequently registered under the
Securities Act or pursuant to a transaction exempt from the Securities Act and
applicable state securities laws. After the Exchange Offer is consummated, with
some limited exceptions, the Company will not be required to subsequently
register the Old Certificates.
TENDERING OLD CERTIFICATES IN THE EXCHANGE OFFER
Only a holder of Old Certificates may tender such Old Certificates in the
Exchange Offer. The term "holder" with respect to the Exchange Offer means any
person in whose name Old Certificates are registered on the books of the Company
or any other person who has obtained a properly completed bond power from the
registered holder. Any beneficial owner of Old Certificates registered in the
name of a broker, dealer, commercial bank, trust company or other nominee who
wishes to tender should contact such registered holder promptly and instruct
such registered holder to tender on his behalf. If a beneficial owner wants to
tender on his own behalf, he must, prior to completing and executing the Letter
of Transmittal and delivering his Old Certificates, either make appropriate
arrangements to register ownership of the Old Certificates in his name or obtain
a properly completed bond power from the registered holder. The transfer of
registered ownership may take considerable time.
Subject to certain conditions (set forth under "--Conditions"), the Company
will accept for exchange all Old Certificates validly tendered and not withdrawn
prior to 5:00 p.m., New York City time, on the date the exchange offer expires.
Old Certificates may be tendered only in integral multiples of $1,000. There is
no minimum principal amount of Old Certificates that must be tendered in order
for the Exchange Offer to take place. The tender by a holder of Old Certificates
will constitute an agreement between the holder and the Company in accordance
with the Letter of Transmittal.
31.
<PAGE> 33
Upon satisfaction or waiver of all of the conditions to the Exchange Offer,
all Old Certificates properly tendered will be accepted and the New Certificates
will be issued promptly after acceptance of the Old Certificates. The Exchange
Agent will act as agent for the tendering holders of Old Certificates for the
purposes of receiving the New Certificates and delivering New Certificates to
such holders. Any such New Certificates issued will be of the same class and for
an equal face amount as the Old Certificates tendered. For purposes of the
Exchange Offer, Old Certificates will be deemed to have been accepted for
exchange when, as and if the Company has given oral or written notice thereof to
the Exchange Agent.
Requirements for Tendering Old Certificates in the Exchange Offer
(1) Complete, sign and date the Letter of Transmittal or a facsimile
thereof.
(a) Guaranteed Signatures May Be Required. Signatures on a Letter of
Transmittal or a notice of withdrawal, as the case may be, must be
guaranteed by any member firm of a registered national securities
exchange or of the National Association of Securities Dealers,
Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible guarantor"
institution within the meaning of Rule 17Ad-15 under the Exchange
Act unless the Old Certificates are tendered by a registered
holder who has not completed the box entitled "Special Issuance
Instructions" or "Special Delivery Instructions" on the Letter of
Transmittal or for the account of an Eligible Institution.
(b) Bond Powers May be Required. If the Letter of Transmittal is
signed by a person other than the registered holder of any Old
Certificates listed therein, such Old Certificates must be
endorsed or accompanied by bond powers and a proxy which
authorizes such person to tender the Old Certificates on behalf of
the registered holder, in each case as the name of the registered
holder or holders appears on the Old Certificates.
(c) Fiduciaries Should Identify Themselves. If the Letter of
Transmittal or any Old Certificates or bond powers are signed by
trustees, executors, administrators, guardians, attorneys-in-
fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when
signing, and unless waived by the Company, evidence satisfactory
to the Company of their authority to so act must be submitted with
the Letter of Transmittal.
(2) Mail or otherwise deliver the completed Letter of Transmittal, and any
other items noted below, to the Exchange Agent by 5:00 p.m., New York
City time, on or before the date the Exchange Offer expires. No items
should be sent to the Company. See '--Exchange Agent" below.
(3) Any of the three methods discussed below can be used to deliver the
certificates representing the Old Certificates to the Exchange Agent
on or before the date the Exchange Offer expires. The method of
delivery is up to the holder, who bears the risk of non-delivery.
(a) Send the actual certificates representing the Old Certificates to
the Exchange Agent with the Letter of Transmittal. If delivery is
by mail, insured registered mail is recommended.
(b) If available, make a book-entry delivery of the Old Certificates
into the Exchange Agent's account at DTC. See "--Book-Entry
Transfer" below. Certain brokers, dealers, commercial banks, trust
companies and other nominees who hold Old Certificates through DTC
must tender their certificates in this way. Beneficial owners of
Old Certificates registered in the name of a broker, dealer,
commercial bank, trust company or other nominee are urged to
contact such person promptly if they wish to tender Old
Certificates pursuant to the Exchange Offer.
(c) Holders who cannot deliver their Old Certificates or who cannot
complete the procedures for delivery by book-entry transfer of the
Old Certificates on or before the date the Exchange Offer expires,
must, in order to participate in the Exchange Offer, tender their
32.
<PAGE> 34
Old Certificates according to the guaranteed delivery procedures
set forth below under "--Guaranteed Delivery Procedures".
All questions as to the validity, form, eligibility (including time of
receipt) and withdrawal of the tendered Old Certificates will be determined by
the Company in its sole discretion, which determination will be final and
binding. The Company reserves the absolute right to reject any and all Old
Certificates if they are not properly tendered or are unlawful in the opinion of
counsel for the Company. Unless waived by the Company, any defects or
irregularities in connection with tenders of Old Certificates must be cured
within such time as the Company determines. The Company's interpretation of the
terms and conditions of the Exchange Offer (including the instructions in the
Letter of Transmittal) will be final and binding on all parties.
Neither the Company, the Exchange Agent nor any other person is under any
duty to notify holders of Old Certificates of defects or irregularities
regarding tenders of Old Certificates, nor shall any of them be liable for
failure to give such notification. Tenders of Old Certificates will not be
deemed to have been made until such irregularities have been cured or waived.
Any Old Certificates received by the Exchange Agent that are not properly
tendered or cured of defects or irregularities will be returned to the holder by
the Exchange Agent, without cost to the holder, as soon as practicable following
the Expiration Date.
In addition, subject to some limitations, the Company reserves the right to
purchase or make offers for any Old Certificates that remain outstanding after
the Exchange Offer expires, to terminate the Exchange Offer, and to purchase Old
Certificates in the open market to the extent permitted by applicable law. The
terms of any such purchases or offers could differ from the terms of the
Exchange Offer.
BOOK-ENTRY TRANSFER
For purposes of the Exchange Offer, the Exchange Agent will establish an
account with respect to the Old Certificates at DTC within two Business Days
after the date of this Prospectus. Any tendering financial institution that is a
participant in DTC's book-entry transfer facility system must make a book-entry
delivery of the Old Certificates by causing DTC to transfer such Old
Certificates into the Exchange Agent's account in accordance with DTC's
Automated Tender Offer Program ("ATOP") procedures for transfers. Such holder of
Old Certificates using ATOP should transmit its acceptance to DTC on or prior to
the Expiration Date (or comply with the guaranteed delivery procedures set forth
below). DTC will verify such acceptance, execute a book-entry transfer of the
tendered Old Certificates into the Exchange Agent's account at DTC and then send
to the Exchange Agent confirmation of such book-entry transfer, including an
agent's message confirming that DTC has received an express acknowledgment from
such holder that such holder has received and agrees to be bound by the Letter
of Transmittal and that the Trust and America West may enforce the Letter of
Transmittal against such holder.
GUARANTEED DELIVERY PROCEDURES
If a registered holder of the Old Certificates desires to tender such Old
Certificates, and the Old Certificates are not immediately available, or time
will not permit such holder's Old Certificates or other required documents to
reach the Exchange Agent before the Expiration Date, or the procedures for book
entry transfer cannot be completed on a timely basis, a tender may be effected
under the procedures set forth here. This procedure can only be handled by a
member firm of a registered national securities exchange or of the National
Association of Securities Dealers, Inc., a commercial bank or trust company
having an office or correspondent in the United States or an "eligible
guarantor" institution within the meaning of Rule 17Ad-15 under the Exchange Act
(each an "Eligible Institution"). Prior to the expiration of the Exchange Offer,
the Company must receive from an Eligible Institution a properly completed and
duly executed Letter of Transmittal (or a facsimile thereof) and a Notice of
Guaranteed Delivery, substantially in the form provided by the Company (by
facsimile transmission, mail or hand delivery). The Notice of Guaranteed
Delivery must set forth the name and address of the holder of Old Certificates,
the amount of Old Certificates tendered and a statement guaranteeing that within
three trading days of the execution of the notice the certificates for all
tendered Old Certificates (or a book-
33.
<PAGE> 35
entry confirmation) will be deposited by the Eligible Institution with the
Exchange Agent. Actual delivery of such Old Certificates (or a book-entry
confirmation) within such three day period is required.
WITHDRAWAL OF TENDERS
Tenders of Old Certificates may be withdrawn by a holder at any time prior
to 5:00 p.m., New York City time on the date the Exchange Offer expires by
notifying the Exchange Agent in writing. A notice of withdrawal must specify the
name of the person having tendered the Old Certificates to be withdrawn,
identify the Old Certificates to be withdrawn (including the principal amount of
such Old Certificates) and if the certificates for Old Certificates were
transmitted, specify the name in which such Old Certificates are registered, if
different from that of the withdrawing holder. If certificates for Old
Certificates were delivered to the Exchange Agent, then, prior to the release of
such certificates, the withdrawing holder must also submit the serial numbers of
the particular certificates to be withdrawn and a signed notice of withdrawal.
The signatures on the notice of withdrawal must be guaranteed by an Eligible
Institution unless such holder is an Eligible Institution. If Old Certificates
were tendered pursuant to the procedure for book-entry transfer, any notice of
withdrawal must specify the name and number of the account at the book-entry
transfer facility to be credited with the withdrawn Old Certificates and
otherwise comply with the procedures of such facility.
The Company will have final and binding authority to determine all
questions as to the validity, form and eligibility (including time of receipt)
of notices of withdrawal. Any Old Certificates so withdrawn will be deemed not
to have been validly tendered for exchange for purposes of the Exchange Offer.
Any Old Certificates which were tendered for exchange but which were not
exchanged for any reason will be returned to the holder thereof without cost to
such holder as soon as practicable after withdrawal. Old Certificates which were
tendered by book-entry transfer into the Exchange Agent's account at the book-
entry transfer facility will be credited to an account maintained with the
book-entry transfer facility for the Old Certificates as soon as practicable
after withdrawal. Properly withdrawn Old Certificates may be retendered
following the procedures described above at any time on or prior to the date the
Exchange Offer expires.
CONDITIONS
The Company will not be required to accept any Old Certificates for
exchange and the Company may terminate or amend the Exchange Offer before the
acceptance of Old Certificates, if the Company determines that it is not
permitted to effect the Exchange Offer because of any change in law or
applicable interpretations thereof by the SEC. In addition, the Company will
have no obligation to, and will not knowingly, accept tenders of Old
Certificates from affiliates of the Company (within the meaning of Rule 405
under the Securities Act) or from any other holder who is not eligible to
participate in the Exchange Offer under applicable law or interpretations
thereof by the SEC, or if the New Certificates to be received by such holder in
the Exchange Offer would not be tradable by such holder without restriction
under the Securities Act and the Exchange Act and without material restrictions
under the "blue sky" or securities laws of substantially all of the states of
the United States.
34.
<PAGE> 36
EXCHANGE AGENT
Wilmington Trust Company has been appointed as Exchange Agent for the
Exchange Offer. Questions and requests for assistance and requests for
additional copies of this Prospectus or of the Letter of Transmittal should be
directed to the Exchange Agent addressed as follows:
<TABLE>
<S> <C>
By Mail or Overnight Delivery: By Hand:
Wilmington Trust Company Wilmington Trust Company
1100 North Market Street 1105 North Market Street, 1st Floor
Wilmington, Delaware 19890-0001 Wilmington, Delaware 19890
Attention: Kristin Long Attention: Corporate Trust Operations
Facsimile Transmission:
(302) 651-1079
Confirm by Telephone:
(302) 651-1562
</TABLE>
TRANSFERABILITY OF NEW CERTIFICATES
Based on interpretations by the staff of the SEC (noted below), the Company
believes that most holders of New Certificates will be able to offer for resale,
re-sell or otherwise transfer the New Certificates issued without compliance
with the registration and prospectus delivery requirements of the Securities
Act, provided that the New Certificates are acquired in the ordinary course of
such holders' business and such holders are not engaged in, and do not intend to
engage in, a distribution of such New Certificates and have no arrangement with
any person to participate in a distribution of the New Certificates.
Broker-dealers who acquired Old Certificates directly from the Trustee for
resale under an exemption under the Securities Act, or any holder that is an
"affiliate" of the Company (as defined in Rule 405 of the Securities Act) must
comply with the registration and prospectus delivery requirements of the
Securities Act.
The SEC staff interpretations relied on are set forth in no-action letters
issued to third parties, including Exxon Capital Holdings Corporation, SEC
No-Action Letter (available April 13, 1989), Morgan Stanley & Co., Incorporated,
SEC No-Action Letter (available June 5, 1991) and Shearman & Sterling, SEC
No-Action Letter (available July 2, 1993).
Other than broker-dealers and affiliates, holders who wish to tender their
Old Certificates in the Exchange Offer will be required to make certain
representations to the Company in the Letter of Transmittal.
Representations Required by Holders to Tender Old Certificates in Exchange
Offer
(1) Such holder is not an affiliate of the Company (as defined under Rule
405 of the Securities Act) nor a broker-dealer tendering Old
Certificates acquired directly from the Company for its own account.
(2) The holder will acquire the New Certificates in the ordinary course of
its business.
(3) The holder is not engaged in, and does not intend to engage in, a
distribution of the New Certificates and has no arrangement or
understanding to participate in a distribution of the New
Certificates.
Each broker-dealer that receives New Certificates for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Certificates. By so
acknowledging and by delivering a prospectus, the broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act. This Prospectus, as it may be amended or supplemented from time to time,
may be used by a broker-dealer in connection with resales of New Certificates
where the broker-dealer acquired the exchanged Old Certificates as a result of
market-making
35.
<PAGE> 37
activities or other trading activities. The Company agrees to make copies of
this Prospectus available to such broker-dealers for 180 days after the Exchange
Offer expires. See "Plan of Distribution".
ALTERNATIVE USE OF SHELF REGISTRATION STATEMENT
If changes in the law or other circumstances do not allow America West to
effect the Exchange Offer, America West will, upon request of a holder not
eligible to participate in the Exchange Offer or under certain other
circumstances described in the Registration Rights Agreement, file a shelf
registration statement to allow resales of the Old Certificates.
Obligations of the Company if the Shelf Registration Statement Alternative
is Pursued
(1) File with the SEC as soon as practicable a shelf registration
statement covering resales of the Old Certificates.
(2) Use its best efforts to have the shelf registration statement declared
effective within 180 calendar days of September 21, 1999.
(3) Use its best efforts to keep the shelf registration statement
effective for two years after it is declared effective (or a such
shorter period if all of the Old Certificates covered by the shelf
registration statement have been sold or are freely transferable under
Rule 144 of the Securities Act).
FEES AND EXPENSES
The expenses of soliciting tenders pursuant to the Exchange Offer will be
borne by the Company. The principal solicitation for tenders is being made by
mail; however, additional solicitations may be made by telegraph, telephone,
telecopy, electronic mail or in person by officers and regular employees of the
Company. Other expenses incurred in connection with the Exchange Offer will be
paid by the Company, including fees and expenses of the Exchange Agent and
Trustee and accounting, legal, printing and related fees and expenses.
The Company will not make any payments to brokers, dealers or other persons
soliciting acceptances of the Exchange Offer. The Company, however, will pay the
Exchange Agent reasonable and customary fees for its services and will reimburse
the Exchange Agent for its reasonable out-of-pocket expenses in connection
therewith. The Company may also pay brokerage houses and other custodians,
nominees and fiduciaries the reasonable out-of-pocket expenses incurred by them
in forwarding copies of the Prospectus and related documents to the beneficial
owners of the Old Certificates, and in handling or forwarding tenders for
exchange.
The Company will pay all transfer taxes, if any, applicable to the exchange
of Old Certificates pursuant to the Exchange Offer. Certain other transfer taxes
may be imposed on the tendering holder unless satisfactory evidence of payment
of such taxes or exemption therefrom is not submitted with the Letter of
Transmittal.
36.
<PAGE> 38
DESCRIPTION OF THE NEW CERTIFICATES
The New Certificates will be issued pursuant to two separate Pass Through
Trust Agreements. The following summary describes certain terms of the
Certificates, the Deposits and the Pass Through Trust Agreements but does not
purport to be complete. Reference is made to all of the provisions of the Pass
Through Trust Agreements, the Deposit Agreements, the Escrow Agreements and the
Intercreditor Agreement.
Except as otherwise indicated, the following summary relates to each of the
Trusts and the Certificates issued by each Trust. The terms and conditions
governing each of the Trusts are substantially the same, except as described
under "--Subordination" below and except that the principal amount and scheduled
principal repayments of the Equipment Notes held by each Trust and the interest
rate and maturity date of the Equipment Notes held by each of the Class G Trust
and the Class C Trust will differ.
The references to Sections in parentheses in the following summary are to
the relevant Sections of the Pass Through Trust Agreements unless otherwise
indicated.
GENERAL
The New Certificates of each Trust will be issued in fully registered form
only and will be subject to the provisions described below under "--Book Entry;
Delivery and Form". (Section 3.01) Each New Certificate will represent a
fractional undivided interest in the Trust created by the Pass Through Trust
Agreement pursuant to which such New Certificate is issued. (Section 3.01) The
Trust Property of each Trust consists of the items listed below:
TRUST PROPERTY FOR EACH TRUST
- --------------------------------
(1) Equipment Notes acquired under the Note Purchase Agreement and issued,
at America West's election in connection with the financing of each
Aircraft during the Delivery Period, either (a) on a non-recourse
basis by an Owner Trustee in each separate leveraged lease transaction
with respect to each Leased Aircraft to finance the purchase of such
Leased Aircraft by the Owner Trustee, in which case the applicable
Leased Aircraft will be leased to America West, or (b) on a recourse
basis by America West in connection with each separate secured loan
transaction with respect to each Owned Aircraft to finance the
purchase of such Owned Aircraft by America West.
(2) The rights of such Trust to acquire Equipment Notes under the Note
Purchase Agreement.
(3) The rights of such Trust under the applicable Escrow Agreement
(including the right to request the Escrow Agent to withdraw from the
Depositary funds sufficient to enable such Trust to purchase Equipment
Notes on the delivery of each Aircraft during the Delivery Period).
(4) The rights of such Trust under the Intercreditor Agreement (including
all monies receivable in respect of such rights).
(5) All monies receivable under the Liquidity Facility for such Trust.
(6) With respect to the Class G Trust, all monies receivable under the
Policy.
(7) Funds from time to time deposited with the Trustee in accounts
relating to such Trust.
On the Transfer Date, each of the Original Trusts will transfer and assign
all of its assets and rights to a substantially identical Successor Trust, and
the New Trustee will assume the obligations of the related Original Trustee
under each transaction document to which such Original Trustee was a party. Upon
the effectiveness of such transfer, assignment and assumption, each of the
Original Trusts will be liquidated and each of the Certificates will represent
the same interest in the Successor Trust as it represented in the Original Trust
immediately prior to such transfer, assignment and assumption. Unless the
context otherwise requires, all references in this Prospectus to the Trusts, the
Trustees, the Pass Through Trust
37.
<PAGE> 39
Agreements and similar terms shall be applicable to the Original Trusts until
the effectiveness of such transfer, assignment and assumption and thereafter
shall be applicable with respect to the Successor Trusts. See "--Liquidation of
Original Trusts."
The Certificates represent interests in the respective Trusts, and all
payments and distributions thereon will be made only from the Trust Property of
the related Trust. (Section 3.11) The Certificates do not represent an interest
in or obligation of America West, the Trustees, any of the Loan Trustees or
Owner Trustees in their individual capacities, any Owner Participant, or any
affiliate of any thereof.
Pursuant to the Escrow Agreement applicable to each Trust, the
Certificateholders of such Trust as holders of the Escrow Receipts affixed to
each Certificate are entitled to certain rights with respect to the Deposits
relating to such Trust. Accordingly, any transfer of a Certificate will have the
effect of transferring the corresponding rights with respect to: the Deposits,
and rights with respect to the Deposits may not be separately transferred by
Certificateholders. Rights with respect to the Deposits and the Escrow Agreement
relating to a Trust, except for the right to request withdrawals for the
purchase of Equipment Notes, will not constitute Trust Property of such Trust.
SUBORDINATION
Pursuant to the Intercreditor Agreement to which the Trustees, the
Subordination Agent, the Policy Provider and the Liquidity Provider are parties,
on each Regular Distribution Date or Special Distribution Date (each, a
"Distribution Date"), so long as no Triggering Event shall have occurred
(whether or not continuing), all payments received by the Subordination Agent in
respect of Equipment Notes and certain other payments will be distributed in the
following order:
(1) to the Liquidity Provider in payment of all accrued and unpaid
Liquidity Expenses and to the Policy Provider in payment of all
accrued and unpaid Policy Expenses;
(2) to pay interest accrued on the Liquidity Obligations (as determined
after giving effect to certain payments by the Policy Provider to the
Liquidity Provider) to the Liquidity Provider and interest accrued on
certain Policy Provider Obligations (as provided in the definition
thereof) to the Policy Provider, pro rata;
(3) to pay or reimburse the Liquidity Provider for the Liquidity
Obligations (other than amounts payable pursuant to clauses (1) and
(2) above and as determined after giving effect to certain payments by
the Policy Provider to the Liquidity Provider) and/or, if applicable,
to replenish each Cash Collateral Account up to the applicable
Required Amount;
(4) payment of Expected Distributions on the Class G Certificates to the
holders of Class G Certificates;
(5) to the Policy Provider in payment of the Policy Provider Obligations
(other than amounts payable pursuant to clauses (1) and (2) above and
any Excess Reimbursement Obligations);
(6) payment of Expected Distributions on the Class C Certificates to the
holders of Class C Certificates;
(7) to pay any Excess Reimbursement Obligations to the Policy Provider;
(8) if Class D Certificates have been issued, payment of "Expected
Distributions" (to be defined in a manner equivalent to the definition
herein for the other Classes of Certificates) on the Class D
Certificates to the holders of Class D Certificates; and
(9) payment of certain fees and expenses of the Subordination Agent and
the Trustees.
38.
<PAGE> 40
In addition, upon the occurrence of a Triggering Event and at all times
thereafter, all payments received by the Subordination Agent in respect of the
Equipment Notes and certain other payments will be distributed under the
Intercreditor Agreement in the following order:
(1) to reimburse the Subordination Agent, the Trustees, the Policy
Provider and certain other parties for the payment of the
Administration Expenses;
(2) to the Liquidity Provider in payment of the Liquidity Expenses and to
the Policy Provider in payment of the Policy Expenses;
(3) to the Liquidity Provider, to pay interest accrued on the Liquidity
Obligations (as determined after giving effect to certain payments by
the Policy Provider to the Liquidity Provider) and to the Policy
Provider to pay interest accrued on certain Policy Provider
Obligations (as provided in the definition thereof), pro rata;
(4) to the Liquidity Provider, to pay the outstanding amount of all
remaining Liquidity Obligations (as determined after giving effect to
certain payments by the Policy Provider to the Liquidity Provider)
and/or, if applicable, with respect to any particular Liquidity
Facility, unless (a) less than 65% of the aggregate outstanding
principal amount of all Equipment Notes are Performing Equipment
Notes and a Liquidity Event of Default shall have occurred and be
continuing under such Liquidity Facility or (b) a Final Drawing shall
have occurred under such Liquidity Facility, to replenish the Cash
Collateral Account with respect to such Liquidity Facility up to the
Required Amount for the related Class of Certificates (less the
amount of any repayments of Interest Drawings under such Liquidity
Facility while subclause (a) is applicable);
(5) to pay certain fees, taxes, charges and other amounts payable to the
Subordination Agent, any Trustee or any Certificateholder;
(6) to the holders of Class G Certificates in payment of Adjusted
Expected Distributions on the Class G Certificates;
(7) to the Policy Provider in payment of the Policy Provider Obligations
(other than amounts payable pursuant to clauses (1), (2) and (3)
above and any Excess Reimbursement Obligations);
(8) to the holders of Class C Certificates in payment of Adjusted
Expected Distributions on the Class C Certificates;
(9) to pay any Excess Reimbursement Obligations to the Policy Provider,
and
(10) if Class D Certificates have been issued, to the holders of Class D
Certificates in payment of "Adjusted Expected Distributions" (to be
defined in a manner equivalent to the definition below for other
Classes of Certificates) on the Class D Certificates.
The priority of distributions after a Triggering Event will have the effect
in certain circumstances of requiring the distribution to the holders of Class G
Certificates of payments received in respect of the series of Equipment Notes
applicable to the Class C Certificates and/or, if issued, the Class D
Certificates. If this should occur, the interest accruing on the Equipment Notes
would in the aggregate be less than the interest accruing on the remaining
Certificates because such Certificates include a relatively greater proportion
of Class or Classes with relatively higher interest rates. As a result of such
possible interest shortfalls, the holders of Class C Certificates may not
receive the full amount due to them after a Triggering Event even if all
Equipment Notes are eventually paid in full.
Payments in respect of the Deposits relating to a Trust will not be subject
to the subordination provisions of the Intercreditor Agreement.
39.
<PAGE> 41
PAYMENTS AND DISTRIBUTIONS
Payments of interest on the Deposits with respect to each Trust and
payments of principal, premium (if any) and interest on the Equipment Notes or
with respect to other Trust Property held in each Trust will be distributed by
the Paying Agent (in the case of the Deposits) or by the Trustee (in the case of
Trust Property of such Trust) to Certificateholders of such Trust on the date
receipt of such payment is confirmed, except in the case of certain types of
Special Payments.
Scheduled payments of interest on the Deposits and of interest or principal
on the Equipment Notes are herein referred to as "Scheduled Payments," and
January 2 and July 2 of each year are herein referred to as "Regular
Distribution Dates." See "Description of the Equipment Notes--Principal and
Interest Payments".
Payments of Interest
The Deposits held with respect to each Trust and the Equipment Notes held
in each Trust will accrue interest at the applicable rate per annum for
Certificates to be issued by such Trust set forth on the cover page of this
Prospectus, payable on January 2 and July 2 of each year, commencing on January
2, 2000 (or, in the case of Equipment Notes issued after such date, commencing
on or after the first such date to occur after initial issuance thereof). Such
interest payments will be distributed to Certificateholders of such Trust on
each such date until the final Distribution Date for such Trust, subject in the
case of payments on the Equipment Notes to the Intercreditor Agreement. Interest
is calculated on the basis of a 360-day year consisting of twelve 30-day months.
The interest rates for the Deposits and the Equipment Notes are subject to
change under certain circumstances. See "Exchange Offer; Registration Rights".
Payments of interest applicable to the Certificates issued by each of the
Trusts is supported by a Liquidity Facility to be provided by the Liquidity
Provider for the benefit of the holders of such Certificates in an aggregate
amount sufficient to pay interest thereon at the Stated Interest Rate for such
Trust on up to three successive Regular Distribution Dates (without regard to
any future payments of principal on such Certificates), except that the
Liquidity Facility with respect to such Trust will not cover interest payable by
the Depositary on the Deposits relating to such Trust. The Liquidity Facility
for any Class of Certificates does not provide for drawings thereunder to pay
for principal of or premium on the Certificates of such Class, any interest on
the Certificates of such Class in excess of the Stated Interest Rates, or,
notwithstanding the subordination provisions of the Intercreditor Agreement,
principal of or interest or premium on the Certificates of any other Class.
Therefore, only the holders of the Certificates to be issued by a particular
Trust will be entitled to receive and retain the proceeds of drawings under the
Liquidity Facility for such Trust. See "Description of the Liquidity
Facilities".
After use of any available funds under its Liquidity Facility or the Cash
Collateral Account for the Class G Certificates, the payment of interest at the
Stated Interest Rate on the Class G Certificates will be supported by the Policy
provided by the Policy Provider. See "Description of the Policy and the Policy
Provider Agreement--The Policy".
Payments of Principal
Payments of principal of the Equipment Notes held in each Trust are
scheduled to be received by the Trustee on January 2 and July 2 in certain years
depending upon the terms of the Equipment Notes held in such Trust, commencing
on or after January 2, 2000. The "Final Legal Distribution Date" for the Class G
Certificates is July 2, 2020 and for the Class C Certificates is July 2, 2007.
Payment of principal of the Class G Certificates on the Final Legal
Distribution Date and, in certain limited circumstances earlier, will be
supported by the Policy provided by the Policy Provider. See "Description of the
Policy and the Policy Provider Agreement--The Policy".
40.
<PAGE> 42
Distribution of Scheduled Payments
The Paying Agent with respect to each Escrow Agreement will distribute on
each Regular Distribution Date to the Certificateholders of the Trust to which
such Escrow Agreement relates all Scheduled Payments received in respect of the
related Deposits, the receipt of which is confirmed by the Paying Agent on such
Regular Distribution Date. The Trustee of each Trust will distribute, subject to
the Intercreditor Agreement, on each Regular Distribution Date to the
Certificateholders of such Trust all Scheduled Payments received in respect of
Equipment Notes held on behalf of such Trust, the receipt of which is confirmed
by the Trustee on such Regular Distribution Date. Each Certificateholder of each
Trust will be entitled to receive a pro rata share of any distribution in
respect of Scheduled Payments of interest on the Deposits relating to such Trust
and, subject to the Intercreditor Agreement, of principal or interest on
Equipment Notes held on behalf of such Trust. Each such distribution of
Scheduled Payments will be made by the applicable Paying Agent or Trustee to the
Certificateholders of record of the relevant Trust on the Record Date applicable
to such Scheduled Payment subject to certain exceptions. (Sections 4.01 and
4.02, and Section 2.03 of the Escrow Agreement) If a Scheduled Payment is not
received by the applicable Paying Agent or Trustee on a Regular Distribution
Date but is received within five days thereafter, it will be distributed to such
holders of record on the date received. If it is received after such five-day
period, it will be treated as a Special Payment and distributed as described
below.
Distribution of Special Payments and Certain Policy Drawings
Any payment in respect of, or any proceeds of, any Equipment Note or the
Trust Indenture Estate under (and as defined in) each Indenture other than a
Scheduled Payment (each, a "Special Payment") will be distributed on, in the
case of an early redemption or a purchase of the Equipment Notes relating to one
or more Aircraft, the date of such early redemption or purchase (which shall be
a Business Day), and otherwise on the Business Day specified for distribution of
such Special Payment pursuant to a notice delivered by each Trustee as soon as
practicable after the Trustee has received funds for such Special Payment (each
a "Special Distribution Date"), subject to the Intercreditor Agreement. Any
unused Deposits to be distributed after the Delivery Period Termination Date or
the occurrence of a Triggering Event, together with accrued and unpaid interest
thereon and the premium payable by America West (each, also a "Special
Payment"), will be scheduled to be distributed on a date 35 days after the
Paying Agent has received notice of the event requiring such distribution (also
a "Special Distribution Date") unless such date is within ten days before or
after a Regular Distribution Date, in which case such Special Payment shall be
made on such Regular Distribution Date.
Each Paying Agent, in the case of the Deposits, and each Trustee, in the
case of Trust Property or the premium payable by America West in connection with
certain distributions of unused Deposits, will mail a notice to the
Certificateholders of the applicable Trust stating the scheduled Special
Distribution Date, the related Record Date, the amount of the Special Payment
and the reason for the Special Payment. In the case of a redemption or purchase
of the Equipment Notes held in the related Trust or any distribution of unused
Deposits after the Delivery Period Termination Date or the occurrence of a
Triggering Event, such notice will be mailed not less than 20 days prior to the
date such Special Payment is scheduled to be distributed, and in the case of any
other Special Payment, such notice will be mailed as soon as practicable after
the Trustee has confirmed that it has received funds for such Special Payment.
(Section 4.02(c); Section 1.02 of the Escrow Agreement) Each distribution of a
Special Payment, other than a final distribution, on a Special Distribution Date
for any Trust will be made by the Paying Agent or the Trustee, as applicable, to
the Certificateholders of record of such Trust on the Record Date applicable to
such Special Payment. (Section 4.02(b); Section 1.02 of the Escrow Agreement)
See "Indenture Defaults and Certain Rights Upon an Indenture Default" and
"Description of the Equipment Notes--Redemption".
In the case of the distribution of proceeds from any "No Proceeds Drawing"
or "Avoidance Drawing" as described in "Description of the Policy and the Policy
Provider Agreement--The Policy," the Class G Trustee will mail a notice to the
Certificateholders of the Class G Trust stating the scheduled Special
Distribution Date, the related Record Date, the amount of such distribution and
the reason for such
41.
<PAGE> 43
distribution. Such notice will be mailed not less than 20 days prior to the date
such proceeds are scheduled to be distributed. Each such distribution shall be
made by the Class G Trustee to the Certificateholders of record of the Class G
Trust on the Record Date applicable to such distribution. (Section 4.02(c))
Maintenance of Accounts
Each Pass Through Trust Agreement requires that the Trustee establish and
maintain, for the related Trust and for the benefit of the Certificateholders of
such Trust, one or more accounts (the "Certificate Account") for the deposit of
payments representing Scheduled Payments received by such Trustee, which shall
be one or more non-interest bearing accounts. Each Pass Through Trust Agreement
also requires that the Trustee establish and maintain, for the related Trust and
for the benefit of the Certificateholders of such Trust, one or more accounts
(the "Special Payments Account") for the deposit of payments representing
Special Payments received by such Trustee, which shall be non-interest bearing
except in certain circumstances where the Trustee may invest amounts in such
account in certain permitted investments. Pursuant to the terms of each Pass
Through Trust Agreement, the Trustee is required to deposit any Scheduled
Payments relating to the applicable Trust received by it in the Certificate
Account of such Trust and to deposit any Special Payments so received by it in
the Special Payments Account of such Trust. (Section 4.01) All amounts so
deposited will be distributed by the Trustee on a Regular Distribution Date or a
Special Distribution Date, as appropriate. (Section 4.02)
Each Escrow Agreement requires that the Paying Agent establish and
maintain, for the benefit of the Receiptholders, one or more accounts (the
"Paying Agent Account"), which shall be non-interest bearing. Pursuant to the
terms of the Escrow Agreement, the Paying Agent is required to deposit interest
on Deposits relating to such Trust and any unused Deposits withdrawn by the
Escrow Agent in the Paying Agent Account. All amounts so deposited will be
distributed by the Paying Agent on a Regular Distribution Date or Special
Distribution Date, as appropriate.
Final Distribution
The final distribution for each Trust will be made only upon presentation
and surrender of the Certificates for such Trust at the office or agency of the
Trustee specified in the notice given by the Trustee of such final distribution.
The Trustee will mail such notice of the final distribution to the
Certificateholders of such Trust, specifying the date set for such final
distribution and the amount of such distribution. (Section 11.01) See
"Termination of the Trusts" below. Distributions in respect of Certificates
issued in global form will be made as described in "Book Entry; Delivery and
Form" below.
Weekend or Holiday Distribution Date
If any Regular Distribution Date or Special Distribution Date is a
Saturday, Sunday or other day on which commercial banks are authorized or
required to close in New York, New York, Phoenix, Arizona, Wilmington, Delaware,
or Hartford, Connecticut (any other day being a "Business Day"), distributions
scheduled to be made on such Regular Distribution Date or Special Distribution
Date will be made on the next succeeding Business Day without additional
interest.
POOL FACTORS
Pool Balance
The "Pool Balance" for each Trust or for the Certificates issued by any
Trust indicates, as of any date, the original aggregate face amount of the
Certificates of such Trust less the aggregate amount of all payments made in
respect of the Certificates of such Trust or in respect of Deposits relating to
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 Trust or for the Certificates issued by any 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 Notes or
other Trust Property held in such Trust and the distribution thereof to be made
on such date, payments under the Policy (other than in respect of
42.
<PAGE> 44
interest on the Certificates) and any special distribution of unused Deposits of
such Trust to be made on such date. (Section 1.01)
Pool Factor
The "Pool Factor" for each Trust as of any Regular Distribution Date or
Special Distribution Date is the quotient (rounded to the seventh decimal place)
computed by dividing the Pool Balance by the original aggregate face amount of
the Certificates of such Trust. The Pool Factor for each Trust or for the
Certificates issued by any Trust as of any Regular Distribution Date or Special
Distribution Date shall be computed after giving effect to any special
distribution with respect to unused Deposits, payment of principal of the
Equipment Notes or payment with respect to other Trust Property held in such
Trust and the distribution thereof to be made on that date. (Section 1.01) The
Pool Factor for each Trust was 1.0000000 on the date of issuance, and will
decline as described herein to reflect reductions in the Pool Balance of such
Trust. The amount of a Certificateholder's pro rata share of the Pool Balance of
a Trust can be determined by multiplying the par value of the holder's
Certificate of such Trust by the Pool Factor for such Trust as of the applicable
Regular Distribution Date or Special Distribution Date. Notice of the Pool
Factor and the Pool Balance for each Trust will be mailed to Certificateholders
of such Trust on each Regular Distribution Date and Special Distribution Date.
(Section 4.03)
Aggregate Principal Amortization Schedule
The following table sets forth an illustrative aggregate principal
amortization schedule for the Equipment Notes held in each Trust (the "Assumed
Amortization Schedule") and resulting Pool Factors with respect to such Trust.
The actual aggregate principal amortization schedule applicable to a Trust and
the resulting Pool Factors with respect to such Trust may differ from those set
forth below, since the amortization schedule for the Equipment Notes issued with
respect to an Aircraft may vary from such illustrative amortization schedule so
long as it complies with the Mandatory Economic Terms. In addition, the table
set forth below assumes that each Aircraft is delivered in the month scheduled
for its delivery (see "Description of the Aircraft and the Appraisals--The
Appraisals" for the delivery schedule), that Equipment Notes in the maximum
principal amount in respect of all of the Aircraft are purchased by the Trusts
and that no early redemption or purchase, or default in the payment of
principal, in respect of any Equipment Notes occurs. Actual circumstances may
vary from these assumptions, which would result in differences in the aggregate
principal amortization schedule applicable to a Trust and in the resulting Pool
Factors.
<TABLE>
<CAPTION>
1999-1G TRUST 1999-1C TRUST
EQUIPMENT NOTES EQUIPMENT NOTES
SCHEDULED SCHEDULED 1999-1C TRUST
PAYMENTS OF 1999-1G TRUST PAYMENTS OF EXPECTED POOL
REGULAR DISTRIBUTION DATE PRINCIPAL EXPECTED POOL FACTOR PRINCIPAL FACTOR
- ------------------------- --------------- -------------------- --------------- -------------
<S> <C> <C> <C> <C>
January 2, 2000.............. $5,387,382.98 0.9769443 $3,085,129.91 0.8469526
July 2, 2000................. 0.00 0.9769443 0.00 0.8469526
January 2, 2001.............. 6,414,664.01 0.9494922 2,507,586.93 0.7225560
July 2, 2001................. 0.00 0.9494922 0.00 0.7225560
January 2, 2002.............. 7,060,279.46 0.9192772 3,770,663.17 0.5355005
July 2, 2002................. 0.00 0.9192772 0.00 0.5355005
January 2, 2003.............. 8,014,608.99 0.8849781 3,987,376.87 0.3376944
July 2, 2003................. 0.00 0.8849781 0.00 0.3376944
January 2, 2004.............. 9,365,617.80 0.8448972 3,958,605.13 0.1413155
July 2, 2004................. 0.00 0.8448972 0.00 0.1413155
January 2, 2005.............. 12,495,401.20 0.7914222 1,695,711.66 0.0576906
July 2, 2005................. 0.00 0.7914222 0.00 0.0576906
January 2, 2006.............. 13,0839696.06 0.7354295 19,162,926.33 0.0000000
July 2, 2006................. 0.00 0.7354295 0.00 0.0000000
</TABLE>
43.
<PAGE> 45
<TABLE>
<CAPTION>
1999-1G TRUST 1999-1C TRUST
EQUIPMENT NOTES EQUIPMENT NOTES
SCHEDULED SCHEDULED 1999-1C TRUST
PAYMENTS OF 1999-1G TRUST PAYMENTS OF EXPECTED POOL
REGULAR DISTRIBUTION DATE PRINCIPAL EXPECTED POOL FACTOR PRINCIPAL FACTOR
- ------------------------- --------------- -------------------- --------------- -------------
<S> <C> <C> <C> <C>
January 2, 2007.............. 11,209,721.45 0.6874567 0.00 0.0000000
July 2, 2007................. 3,095,483.98 0.6742093 0.00 0.0000000
January 2, 2008.............. 3,1069003.55 0.6609169 0.00 0.0000000
July 2, 2008................. 6,408,747.64 0.6334902 0.00 0.0000000
January 2, 2009.............. 3,385,324.07 0.6190025 0.00 0.0000000
July 2, 2009................. 54670,310.34 0.5947359 0.00 0.0000000
January 2, 2010.............. 3,069,836.70 0.5815983 0.00 0.0000000
July 2, 2010................. 4,2439182.39 0.5634393 0.00 0.0000000
January 2, 2011.............. 2,501,500.00 0.5527340 0.00 0.0000000
July 2, 2011................. 6,422,511.70 0.5252483 0.00 0.0000000
January 2, 2012.............. 2,266,831.17 0.5155472 0.00 0.0000000
July 2, 2012................. 8,733,335.37 0.4781723 0.00 0.0000000
January 2, 2013.............. 4,991,073.36 0.4568126 0.00 0.0000000
July 2, 2013................. 7,171,109.55 0.4261233 0.00 0.0000000
January 2, 2014.............. 8,144,628.68 0.3912677 0.00 0.0000000
July 2, 2014................. 12,065,086.82 0.3396343 0.00 0.0000000
January 2, 2015.............. 6,717,588.43 0.3108858 0.00 0.0000000
July 2, 2015................. 4,8269264.36 0.2902315 0.00 0.0000000
January 2, 2016.............. 12,146,939.44 0.2382477 0.00 0.0000000
July 2, 2016................. 2,561,617.20 0.2272851 0.00 0.0000000
January 2, 2017.............. 14,110,504.32 0.1668981 0.00 0.0000000
July 2, 2017................. 4,443,412.96 0.1478822 0.00 0.0000000
January 2, 2018.............. 21,448,979.41 0.0560896 0.00 0.0000000
July 2, 2018................. 633,454.03 0.0533787 0.00 0.0000000
January 2, 2019.............. 12,472,900.58 0.0000000 0.00 0.0000000
</TABLE>
The actual schedule of principal payments and the resulting schedule of
Pool Balances and Pool Factors may change from that set forth above if, among
other things, the aggregate principal amount of the Equipment Notes acquired by
the Trusts is less than the maximum permitted by the Mandatory Economic Terms,
Equipment Notes with respect to any Aircraft are purchased by the Trusts in
other than the month currently scheduled for delivery of such Aircraft or
Equipment Notes as to which the projected loan to Aircraft value ratios are
lower than other Equipment Notes are not acquired by the Trusts.
In addition, the Pool Factor and Pool Balance of each Trust will be
recomputed if there has been an early redemption or purchase, or a default in
the payment of principal or interest in respect of one or more issues of the
Equipment Notes held in a Trust, as described in "--Indenture Defaults and
Certain Rights Upon an Indenture Default" and "Description of the Equipment
Notes--Redemption", or a special distribution attributable to unused Deposits
after the Delivery Period Termination Date or the occurrence of a Triggering
Event, as described in "Description of the Deposit Agreements" or any drawing
under the Policy (other than in respect of interest on the Certificates). In the
event of (i) any such change in the scheduled repayments or (ii) any such
redemption, purchase, default or special distribution, the Pool Factors and the
Pool Balances of each Trust so affected will be recomputed after giving effect
thereto and notice thereof will be mailed to the Certificateholders of such
Trust promptly after the Delivery Period Termination Date in the case of clause
(i) and promptly after the occurrence of any event described in clause (ii).
44.
<PAGE> 46
REPORTS TO CERTIFICATEHOLDERS
On each Distribution Date, the applicable Paying Agent and Trustee will
include with each distribution of a Scheduled Payment or Special Payment to
Certificateholders of the related Trust a statement, giving effect to such
distribution to be made on such Distribution Date, setting forth the following
information (per $1,000 aggregate principal amount of Certificate for such
Trust, as to (2), (3), (4) and (5) below):
(1) the aggregate amount of such funds distributed on such Distribution
Date under the Pass Through Trust Agreement and the Escrow Agreement,
indicating the amount allocable to each source including any portion
thereof paid by the Liquidity Provider and/or the Policy Provider;
(2) the amount of such distribution under the Pass Through Trust Agreement
allocable to principal and the amount allocable to premium (including
any premium paid by America West with respect to unused Deposits), if
any;
(3) the amount of such distribution under the Pass Through Trust Agreement
allocable to interest;
(4) the amount of such distribution under the Escrow Agreement allocable
to interest;
(5) the amount of such distribution under the Escrow Agreement allocable
to unused Deposits (if any); and
(6) the Pool Balance and the Pool Factor for such Trust. (Section 4.03)
With respect to the Certificates registered in the name of DTC or its
nominee, on the Record Date prior to each Distribution Date, the applicable
Trustee will request from DTC a securities position listing setting forth the
names of all DTC Participants reflected on DTC's books as holding interests in
the Certificates on such record date. On each Distribution Date, the applicable
Paying Agent and Trustee will mail to each such DTC Participant the Statement
described above and will make available additional copies as requested by such
DTC Participant for forwarding to holders of Certificates. (Section 4.03(a);
Section 2.03 of the Escrow Agreement)
In addition, after the end of each calendar year, the applicable Trustee
and Paying Agent will furnish to each Certificateholder of each Trust at any
time during the preceding calendar year a report containing the sum of the
amounts determined pursuant to clauses (1), (2), (3), (4) and (5) above with
respect to the Trust for such calendar year or, in the event such person was a
Certificateholder during only a portion of such calendar year, for the
applicable portion of such calendar year, and such other items as are readily
available to such Trustee and which a Certificateholder shall reasonably request
as necessary for the purpose of such Certificateholder's preparation of its U.S.
federal income tax returns. (Section 4.03(b)) With respect to Certificates
registered in the name of DTC's nominee, such report and such other items shall
be prepared on the basis of information supplied to the applicable Trustee by
the DTC Participants and shall be delivered by such Trustee to such DTC
Participants to be available for forwarding by such DTC Participants to owners
of beneficial interests in the Certificates ("Certificate Owners") in the manner
described above. (Section 4.03(b))
With respect to the Certificates issued in definitive form, the applicable
Paying Agent and Trustee will prepare and deliver the information described
above to each Certificateholder of record of each Trust as the name of such
Certificateholder appears on the records of the registrar of the Certificates.
INDENTURE DEFAULTS AND CERTAIN RIGHTS UPON AN INDENTURE DEFAULT
A list of Indenture Defaults can be found under "Description of Equipment
Notes--Indenture Defaults; Notice and Waiver." An event of default under an
Indenture (an "Indenture Default") will, with respect to the Leased Aircraft
Indentures, include an event of default under the related Lease (a "Lease Event
of Default"). Since the Equipment Notes issued under an Indenture may be held in
more than one Trust, a continuing Indenture Default under such Indenture would
affect the Equipment Notes held by each such Trust. There are no cross-default
provisions in the Indentures or in the Leases (unless, in the
45.
<PAGE> 47
case of a Lease, otherwise agreed between an Owner Participant and America
West). Consequently, events resulting in an Indenture Default under any
particular Indenture may or may not result in an Indenture Default under any
other Indenture, and a Lease Event of Default under any particular Lease may or
may not constitute a Lease Event of Default under any other Lease. If an
Indenture Default occurs in fewer than all of the Indentures, notwithstanding
the treatment of Equipment Notes issued under any Indenture under which an
Indenture Default has occurred, payments of principal and interest on the
Equipment Notes issued pursuant to Indentures with respect to which an Indenture
Default has not occurred will continue to be distributed to the holders of the
Certificates as originally scheduled, subject to the Intercreditor Agreement.
See "Description of the Intercreditor Agreement--Priority of Distributions."
Right to Cure
With respect to each Leased Aircraft, the applicable Owner Trustee and
Owner Participant will, under the related Leased Aircraft Indenture, have the
right under certain circumstances to cure Indenture Defaults that result from
the occurrence of a Lease Event of Default under the related Lease. If the Owner
Trustee or the Owner Participant exercises any such cure right, the Indenture
Default will be deemed to have been cured.
Resignation of Trustee In the Event of a Conflict of Interest
In the event that the same institution acts as Trustee of multiple Trusts,
in the absence of instructions from the Certificateholders of any such Trust,
such Trustee could be faced with a potential conflict of interest upon an
Indenture Default. In such event, each Trustee has indicated that it would
resign as Trustee of one or all such Trusts, and a successor trustee would be
appointed in accordance with the terms of the applicable Pass Through Trust
Agreement. Wilmington Trust Company is the initial Trustee under each Trust.
Consequence of Continuing Indenture Default
Upon the occurrence and continuation of any Indenture Default under any
Indenture, the Controlling Party may direct the Loan Trustee thereunder to
accelerate the Equipment Notes issued thereunder and thereafter direct the Loan
Trustee under such Indenture in the exercise of remedies thereunder and may sell
all (but not less than all) of the Equipment Notes issued under such Indenture
to any person, subject to certain limitations. See "Description of Intercreditor
Agreement--Intercreditor Rights--Sale of Equipment Notes and Aircraft". The
proceeds of such sale will be distributed pursuant to the provisions of the
Intercreditor Agreement. Any such proceeds so distributed to any Trustee upon
any such sale shall be deposited in the applicable Special Payments Account and
shall be distributed to the holders of the applicable Trust on a Special
Distribution Date. (Sections 4.01 and 4.02) The market for Equipment Notes at
the time of the existence of any Indenture Default may be very limited and there
can be no assurance as to the price at which they could be sold. If any such
Equipment Notes are sold for less than their outstanding principal amount, the
Class C Certificateholders will receive a smaller amount of principal
distributions than anticipated and will not have any claim for the shortfall
against America West, any Liquidity Provider, the Policy Provider, any Owner
Trustee, any Owner Participant or any Trustee.
Any amount, other than Scheduled Payments received on a Regular
Distribution Date, distributed to the Trustee of any Trust by the Subordination
Agent on account of any Equipment Note or Trust Indenture Estate (as defined in
each Indenture) held in such Trust following an Indenture Default under any
Indenture will be deposited in the Special Payments Account for such Trust and
will be distributed to the Certificateholders of such Trust on a Special
Distribution Date. (Sections 4.01 and 4.02) In addition, if, following an
Indenture Default under any Leased Aircraft Indenture relating to a Leased
Aircraft, the applicable Owner Participant or Owner Trustee exercises its option
to redeem or purchase the outstanding Equipment Notes issued under such Leased
Aircraft Indenture, the price paid by such Owner Participant or Owner Trustee
for the Equipment Notes issued under such Leased Aircraft Indenture and
distributed to such Trust by the Subordination Agent will be deposited in the
Special Payments Account for such Trust
46.
<PAGE> 48
and will be distributed to the Certificateholders of such Trust on a Special
Distribution Date. (Sections 4.01 and 4.02)
Any funds representing payments received with respect to any defaulted
Equipment Notes, or the proceeds from the sale of any Equipment Notes, held by
the Trustee in the Special Payments Account for such Trust will, to the extent
practicable, be invested and reinvested by such Trustee in certain permitted
investments pending the. distribution of such funds on a Special Distribution
Date. (Section 4.04) Such permitted investments are defined as obligations of
the United States or agencies or instrumentalities thereof for the payment of
which the full faith and credit of the United States is pledged and which mature
in not more than 60 days or such lesser time as is required for the distribution
of any such funds on a Special Distribution Date. (Section 1.01)
Notice to Certificateholders of Default
Each Pass Through Trust Agreement provides that the Trustee of the related
Trust will, within 90 days after the occurrence of any default, give to the
Certificateholders of such Trust notice, transmitted by mail, of all uncured or
unwaived defaults with respect to such Trust known to it, provided that, except
in the case of default in a payment of principal, premium, if any, or interest
on any of the Equipment Notes held in such Trust, the applicable Trustee will be
protected in withholding such notice if it in good faith determines that the
withholding of such notice is in the interests of such Certificateholders.
(Section 7.02) The term "default" as used in this paragraph only with respect to
any Trust means the occurrence of an Indenture Default under any Indenture
pursuant to which Equipment Notes held by such Trust were issued, as described
above, except that in determining whether any such Indenture Default has
occurred, any grace period or notice in connection therewith will be
disregarded.
Trustee Entitled to Security or Indemnity
Each Pass Through Trust Agreement contains a provision entitling the
Trustee of the related Trust, subject to the duty of such Trustee during a
default to act with the required standard of care, to be offered reasonable
security or indemnity by the holders of the Certificates of such Trust before
proceeding to exercise any right or power under such Pass Through Trust
Agreement at the request of such Certificateholders. (Section 7.03(e))
Rights of Certificateholders
Subject to certain qualifications set forth in the Pass Through Trust
Agreements and in the Intercreditor Agreement, the Certificateholders of each
Trust holding Certificates evidencing fractional undivided interests aggregating
not less than a majority in interest in such Trust shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee with respect to such Trust or pursuant to the terms of
the Intercreditor Agreement, or exercising any trust or power conferred on such
Trustee under such Pass Through Trust Agreement or the Intercreditor Agreement,
including any right of such Trustee as Controlling Party under the Intercreditor
Agreement or as holder of the Equipment Notes. (Section 6.04)
In certain cases, the holders of the Certificates of a Trust evidencing
fractional undivided interests aggregating not less than a majority in interest
of such Trust may on behalf of the holders of all the Certificates of such Trust
waive any past "event of default" under such Trust (i.e., any Indenture Default
under any Indenture pursuant to which Equipment Notes held by such Trust were
issued) and its consequences or, if the Trustee of such Trust is the Controlling
Party, may direct the Trustee to instruct the applicable Loan Trustee to waive
any past Indenture Default and its consequences, except certain defaults.
Defaults That May Not Be Waived
(1) a default in the deposit of any Scheduled Payment or Special Payment
or in the distribution thereof;
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(2) a default in payment of the principal, premium, if any, or interest
with respect to any of the Equipment Notes; and
(3) a default in respect of any covenant or provision of the related Pass
Through Trust Agreement that cannot be modified or amended without the
consent of each Certificateholder of such Trust affected thereby.
(Section 6.05)
Each Indenture will provide that, with certain exceptions, the holders of
the majority in aggregate unpaid principal amount of the Equipment Notes issued
thereunder may on behalf of all such holders waive any past default or Indenture
Default thereunder. Notwithstanding such provisions of the Indentures, pursuant
to the Intercreditor Agreement only the Controlling Party will be entitled to
waive any such past default or Indenture Default.
PURCHASE RIGHTS OF CERTIFICATEHOLDERS
Upon the occurrence and during the continuation of a Triggering Event, with
ten days' written notice to the Trustee and each Certificateholder of the same
Class, Certificateholders of a junior class will have the right to purchase
Certificates ranking in senior priority. Consequently, the Class C
Certificateholders will have the right, within 180 days thereafter, to purchase
all, but not less than all, of the Class G Certificates and whether or not such
right is exercised, the Policy Provider shall thereafter have the right to
purchase all, but not less than all, of the Class G Certificates. Additionally,
if the Class D Certificates are issued, the Class D Certificateholders will have
the right to purchase all, but not less than all, of the Class G Certificates
and the Class C Certificates at such times as the Class C Certificateholders
have the right to purchase Class G Certificates. In each such case, the purchase
price of Certificates will equal the Pool Balance of the relevant Class or
Classes of Certificates plus accrued and unpaid interest thereon to the date of
purchase without premium but including any other amounts due to the
Certificateholders of such Class or Classes. In each case, if prior to the end
of the ten-day period, any other Certificateholder of the same Class notifies
the purchasing Certificateholder that the other Certificateholder wants to
participate in such purchase, then such other Certificateholder may join with
the purchasing Certificateholder to purchase the Certificates pro rata based on
the interest in the Trust held by each Certificateholder. (Section 6.01(b))
PTC EVENT OF DEFAULT
A "PTC Event of Default" is defined under each Pass Through Trust Agreement
as the failure to pay within ten Business Days of the due date thereof either
the outstanding Pool Balance of the applicable Class of Certificates on the
Final Legal Distribution Date for such Class or the interest due on such Class
of Certificates on any Distribution Date (unless, in the case of the Class G or
C Certificates, the Subordination Agent shall have made Interest Drawings, or a
withdrawal from the Cash Collateral Account for such Class of Certificates, or a
drawing under the Policy, with respect thereto in an aggregate amount sufficient
to pay such interest and shall have distributed such amount to the Trustee
entitled thereto). Any failure to make expected principal distributions on any
Class of Certificates on any Regular Distribution Date (other than the Final
Legal Distribution Date) will not constitute a PTC Event of Default with respect
to such Certificates. A PTC Event of Default with respect to the most senior
outstanding Class of Certificates resulting from an Indenture Default under all
Indentures will constitute a Triggering Event.
MERGER, CONSOLIDATION AND TRANSFER OF ASSETS
America West is prohibited from consolidating with or merging into any
other corporation or transferring substantially all of its assets as an entirety
to any other corporation unless it meets all the requirements noted below.
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Requirements for Consolidation, Merger or Transfer of Assets
(1) The surviving successor or transferee corporation shall be a "citizen
of the United States" as defined in Title 49 of the United States
Code, as amended, relating to aviation (the "Transportation Code").
(2) The surviving successor or transferee corporation shall be a United
States certificated air carrier.
(3) The surviving successor or transferee corporation shall expressly
assume all of the obligations of America West contained in the Pass
Through Trust Agreements, the Note Purchase Agreement, the Indentures,
the Participation Agreements and the Leases.
(4) America West shall have delivered a certificate indicating that such
transaction complies with such conditions (Section 5.02).
(5) Additionally, after giving effect to such transaction, no Lease Event
of Default, in the case of a Leased Aircraft, or Indenture Event of
Default, in the case of an Owned Aircraft, shall have occurred and be
continuing. (Leases, Section 13.2; Owned Aircraft Indenture, Section
4.07)
The Pass Through Trust Agreements, the Note Purchase Agreement, the
Indentures, the Participation Agreements and the Leases do not and will not
contain any covenants or provisions which may afford the applicable Trustee or
Certificateholders protection in the event of a highly leveraged transaction,
including transactions effected by management or affiliates, which may or may
not result in a change in control of America West.
MODIFICATIONS OF THE PASS THROUGH TRUST AGREEMENTS AND CERTAIN OTHER AGREEMENTS
Each Pass Through Trust Agreement contains provisions permitting, at the
request of the Company, the execution of amendments or supplements to such Pass
Through Trust Agreement or, if applicable, to the Deposit Agreements, the Escrow
Agreements, the Intercreditor Agreement, the Note Purchase Agreement, the
Registration Rights Agreement, any Liquidity Facility or, with respect to the
Pass Through Agreement for the Class G Trust, the Policy and the Policy Provider
Agreement, without the consent of the holders of any of the Certificates of such
Trust for certain reasons set forth below.
Basis for Amendments or Supplements to Pass Through Trust Agreements
(1) To evidence the succession of another corporation to America West and
the assumption by such corporation of America West's covenants
contained in such Pass Through Trust Agreement, and its obligations
under the Note Purchase Agreement, the Registration Rights Agreement,
any Liquidity Facility or the Policy Provider Agreement.
(2) To add to the covenants of America West for the benefit of holders of
such Certificates or to surrender any right or power conferred upon
America West in such Pass Through Trust Agreement, the Note Purchase
Agreement, the Registration Rights Agreement, any Liquidity Facility,
the Policy or the Policy Provider Agreement.
(3) To correct or supplement any provision of such Pass Through Trust
Agreement, the Deposit Agreements, the Escrow Agreements, the
Intercreditor Agreement, the Note Purchase Agreement, the Registration
Rights Agreement, any Liquidity Facility, the Policy or the Policy
Provider Agreement which may be defective or inconsistent with any
other provision in such Pass Through Trust Agreement, the Deposit
Agreements, the Escrow Agreements, the Intercreditor Agreement, the
Note Purchase Agreement, the Registration Rights Agreement, any
Liquidity Facility, the Policy or the Policy Provider Agreement as
applicable, or to cure any ambiguity, correct any mistake or to modify
any other provisions with respect to matters or questions arising
under such Pass Through Trust Agreement, the Deposit Agreements, the
Escrow Agreements, the Intercreditor Agreement, the Note Purchase
Agreement, the Registration Rights Agreement, any Liquidity Facility,
the Policy or the Policy Provider
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Agreement, provided such action shall not materially adversely affect
the interests of the holders of such Certificates.
(4) To comply with any requirement of the Commission, any applicable law,
rules or regulations of any exchange or quotation system on which the
Certificates are listed, any regulatory body or the Registration
Rights Agreement to effectuate the Exchange Offer.
(5) To modify, eliminate or add to the provision of such Pass Through
Trust Agreement to the extent necessary to continue qualification
thereof under the Trust Indenture Act and to add to such Pass Through
Trust Agreement such other provisions as may be expressly permitted by
the Trust Indenture Act.
(6) To provide for a successor Trustee or to add to or change any
provision of such Pass Through Trust Agreement as shall be necessary
to facilitate the administration of the Trust thereunder by more than
one Trustee.
(7) To provide certain information required under such Pass Through Trust
Agreement as to the Trustee.
(8) To modify or eliminate provisions relating to the transfer or exchange
of New Certificates or the Certificates upon consummation of the
Exchange Offer (as defined in the Registration Rights Agreement) or
effectiveness of the Shelf Registration Statement or the Exchange
Offer Registration Statement.
Any such amendment or supplement listed above may be made only if it does not
adversely affect the status of the Trust as a grantor trust under Subpart E,
Part I of Subchapter J of Chapter 1 of Subtitle A of the Code for U.S. federal
income tax purposes. (Section 9.01)
Each Pass Through Trust Agreement also contains provisions permitting the
execution, with the consent of the holders of the Certificates of the related
Trust evidencing fractional undivided interests aggregating not less than a
majority in interest of such Trust, and with the consent of the applicable Owner
Trustee (such consent not to be unreasonably withheld), of amendments or
supplements for the purposes of adding any provisions to or changing or
eliminating any of the provisions of such Pass Through Trust Agreement, the
Deposit Agreements, the Escrow Agreements, the Intercreditor Agreement, the Note
Purchase Agreement, the Registration Rights Agreement, any Liquidity Facility
or, with respect to the Pass Through Agreement for the Class G Trust, the Policy
and the Policy Provider Agreement, or of modifying the rights and obligations of
the Certificateholders, except that no such amendment or supplement may, without
the consent of the holder of each Certificate so affected thereby, have any of
the effects set forth below.
Amendments or Supplements That Require Consent of the Affected Holder
(1) Reduce in any manner the amount of, or delay the timing of, any
receipt by the Trustee (or, with respect to the Deposits, the
Certificateholders) of payments with respect to the Deposits, the
Equipment Notes or other Trust Property held in such Trust or
distributions in respect of any Certificate related to such Trust, or
change the date or place of any payment in respect of any Certificate,
or make distributions payable in coin or currency other than that
provided for in such Certificates, or impair the right of any
Certificateholder of such Trust to institute suit for the enforcement
of any such payment when due.
(2) Permit the disposition of any Equipment Note held in such Trust,
except as provided in such Pass Through Trust Agreement, or otherwise
deprive any Certificateholder of the benefit of the ownership of the
applicable Equipment Notes.
(3) Alter the priority of distributions specified in the Intercreditor
Agreement in a manner adverse to the Certificateholders.
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(4) Reduce the percentage of the aggregate fractional undivided interests
of the Trust provided for in such Pass Through Trust Agreement, the
consent of the holders of which is required for any such supplemental
trust agreement or for any waiver provided for in such Pass Through
Trust Agreement.
(5) Modify any of the provisions relating to the rights of the
Certificateholders in respect of the waiver of events of default or
receipt of payment.
(6) Adversely affect the status of the Trust as a grantor trust under
Subpart E, Part I of Subchapter J of Chapter 1 of Subtitle A of the
Code for U.S. federal income tax purposes. (Section 9.02)
Actions by Trustee Upon Receipt of Consent to Amend or Supplement any
Agreement
In the event that a Trustee, as holder (or beneficial owner through the
Subordination Agent) of any Equipment Note in trust for the benefit of the
Certificateholders of the relevant Trust or as Controlling Party under the
Intercreditor Agreement, receives (directly or indirectly through the
Subordination Agent) a request for a consent to any amendment, modification,
waiver or supplement under any Indenture, any Participation Agreement, any
Lease, any Equipment Note or any other related document, the Trustee shall
forthwith send a notice of such proposed amendment, modification, waiver or
supplement to each Certificateholder of the relevant Trust as of the date of
such notice. Such notice shall request direction from the Certificateholders
regarding certain matters, as set forth below.
Information Requested by Trustee from Certificateholders
(1) Whether or not to take or refrain from taking (or direct the
Subordination Agent to take or refrain from taking) any action which a
holder of such Equipment Note or the Controlling Party has the option
to take.
(2) Whether or not to give or execute (or direct the Subordination Agent
to give or execute) any waivers, consents, amendments, modifications
or supplements as a holder of such Equipment Note or as Controlling
Party.
(3) How to vote (or direct the Subordination Agent to vote) any Equipment
Note if a vote has been called for with respect thereto.
Provided such a request for Certificateholder direction shall have been
made, in directing any action or casting any vote or giving any consent as the
holder of any Equipment Note (or in directing the Subordination Agent in any of
the foregoing), the Trustee shall act as follows: (1) if the Trustee is acting
in a capacity other than as Controlling Party, the Trustee shall vote for or
give consent to any such action with respect to such Equipment Note in the same
proportion as that of (x) the aggregate face amounts of all Certificates
actually voted in favor of or for giving consent to such action by such
direction of Certificateholders to (y) the aggregate face amount of all
outstanding Certificates of the relevant Trust; and (2) if the Trustee is acting
in its capacity as the Controlling Party, the Trustee shall vote as directed in
such Certificateholder direction by the Certificateholders evidencing fractional
undivided interests aggregating not less than a majority in interest in the
relevant Trust. For purposes of the immediately preceding sentence, a
Certificate shall have been "actually voted" if the Holder of such Certificate
has delivered to the Trustee an instrument evidencing such Holder's consent to
such direction prior to two Business Days before the Trustee directs such action
or casts such vote or gives such consent. Notwithstanding the foregoing, but
subject to certain rights of the Certificateholders under the relevant Pass
Through Trust Agreement and subject to the Intercreditor Agreement, the Trustee
may, in its own discretion and at its own direction, consent and notify the
relevant Loan Trustee of such consent (or direct the Subordination Agent to
consent and notify the relevant Loan Trustee of such consent) to any amendment,
modification, waiver or supplement under the relevant Indenture, Participation
Agreement or Lease, any relevant Equipment Note or any other related document,
if an Indenture Default under any
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Indenture shall have occurred and be continuing, or if such amendment,
modification, waiver or supplement will not materially adversely affect the
interests of the Certificateholders. (Section 10.01)
OBLIGATION TO PURCHASE EQUIPMENT NOTES
The Trustees are obligated to purchase the Equipment Notes issued with
respect to the Aircraft during the Delivery Period, subject to the terms and
conditions of a note purchase agreement (the "Note Purchase Agreement"). Under
the Note Purchase Agreement, America West agrees to finance each Aircraft in the
manner provided therein and in connection therewith will have the option of
entering into a leveraged lease financing or a secured debt financing with
respect to each Aircraft. In addition, America West may, subject to certain
conditions, elect to convert a secured debt financing to a leveraged lease
financing by entering into a sale-leaseback transaction. Such conditions in the
Note Purchase Agreement include the receipt by the related Owned Aircraft
Trustee of a legal opinion to the effect that no holder of the Certificates will
recognize income, gain or loss for U.S. federal income tax purposes in
connection with the assumption by an Owner Trust of America West's obligations
under the Equipment Notes pursuant to such sale-leaseback (or, if such opinion
cannot be given, America West will provide indemnification in favor of the
holders of the Certificates in form and substance reasonably satisfactory to the
relevant Owned Aircraft Trustee). See "Certain U.S. Federal Income Tax
Consequences--Taxation of Certificateholders Generally." In addition, the Note
Purchase Agreement will provide for the relevant parties to enter into, with
respect to each leased aircraft (a "Leased Aircraft"), a participation
agreement, a Lease and an indenture (a "Leased Aircraft Indenture") relating to
the financing of such Leased Aircraft. The Note Purchase Agreement also will
provide for the relevant parties to enter into, with respect to each owned
aircraft (an "Owned Aircraft"), a participation agreement (any such
participation agreement, whether for a Leased Aircraft or an Owned Aircraft,
being herein referred to as a "Participation Agreement") and an indenture (an
"Owned Aircraft Indenture" and together with the other Owned Aircraft Indentures
and the Leased Aircraft Indentures, the "Indentures") relating to the financing
of such Owned Aircraft. The description of such agreements in this Prospectus is
based on the forms of such agreements contemplated by the Note Purchase
Agreement. The terms of the agreements actually entered into may differ from the
forms of such agreements and, consequently, may differ from the description of
such agreements contained in this Prospectus. See "Risk Factors--Risk Factors
Relating to the Certificates and the Offering--Owner Participant; Series D
Certificateholders; Revisions to Agreements".
Under the Note Purchase Agreement, the terms of such agreements are
required (a) except in the case of a Special Structure, to contain the Mandatory
Document Terms and (b) not to vary the Mandatory Economic Terms. In addition,
America West is obligated to certify to the Trustees that any such modifications
(a) do not materially and adversely affect the Certificateholders or the Policy
Provider and (b) in the case of any Special Structure, do not expose the
Certificateholders, the Liquidity Provider or the Policy Provider to any
material additional risks beyond those to which such persons would have been
exposed absent such Special Structure. The Policy Provider must approve such
Special Structure. America West also must obtain written confirmation from each
Rating Agency that the use of versions of such agreements modified in any
material respect will not result in a withdrawal, suspension or downgrading of
the rating of any Class of Certificates. Further, under the Note Purchase
Agreement, it is a condition precedent to the obligation of each Trustee to
purchase the Equipment Notes related to the financing of an Aircraft that no
Triggering Event shall have occurred. The Trustees will have no right or
obligation to purchase Equipment Notes after the Delivery Period Termination
Date. The "Mandatory Economic Terms," as defined in the Note Purchase Agreement,
require, among other things, compliance with the items noted below.
Requirements of the Mandatory Economic Terms
---------------------------------------------------------
(1) The maximum principal amount of all the Equipment Notes issued with
respect to an Aircraft not to exceed the maximum principal amount of
Equipment Notes indicated for each such Aircraft as set forth in
"Description of the Aircraft and the Appraisals--The Appraisals"
under the column "Maximum Principal Amount of Equipment Notes."
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(2) The average life of the Equipment Notes related to each Aircraft not
to be less than 10.5 years nor more than 13.0 years in the case of
the Series G Equipment Notes and not to be less than 2.0 years nor
more than 3.5 years in the case of the Series C Equipment Notes, in
each case from the Issuance Date.
(3) As of the first Regular Distribution Date following the delivery of
the last Aircraft to be delivered, the average life not to be more
than 11.5 years in the case of Class G Certificates and 3.0 years in
the case of Class C Certificates, in each case from the Issuance
Date.
(4) The loan to aircraft value ratio with respect to each Aircraft at the
time of issuance of the related Equipment Notes and on any Regular
Distribution Date thereafter not to exceed 57.0% in the case of the
Series G Equipment Notes and 62.0% in the case of the Series C
Equipment Notes, in each case computed on the basis of an assumed
value of such Aircraft no greater than the value for such Aircraft
set forth under "Description of the Aircraft and the Appraisals--The
Appraisals" under the column "Appraised Value" (the "Assumed
Appraised Value") and the Depreciation Assumption defined under
"Description of the Equipment Notes--Loan to Value Ratios of
Equipment Notes".
(5) The final maturity date of the Series G Equipment Notes not to extend
beyond January 2, 2019 and the Series C Equipment Notes not to extend
beyond January 2, 2006.
(6) At the Delivery Period Termination Date, the aggregate principal
amount of all Series G Equipment Notes to be equal to the aggregate
face amount of the Class G Certificates and the aggregate principal
amount of all Series C Equipment Notes not to exceed, but may be less
than the original aggregate face amount of the Class C Certificates
(it being understood that the Pool Balance of the Class C
Certificates at such date shall be reduced to the extent it exceeds
the aggregate principal amount of all Series C Equipment Notes).
(7) The interest rate applicable to each Series of Equipment Notes to be
equal to the rate applicable to the Certificates issued by the
corresponding Trust.
(8) The payment dates for the Equipment Notes and basic rent under the
Leases to be January 2 and July 2.
(9) Basic rent, stipulated loss values, early buy-out amount and
termination values under the Leases to be sufficient to pay amounts
due with respect to the related Equipment Notes.
(10) The amounts payable under the all-risk aircraft hull insurance
maintained with respect to each Aircraft to be sufficient to pay the
applicable stipulated loss value, subject to certain rights of
self-insurance.
(11) The following to be provided as set forth in the form of
Participation Agreements, Lease and Indentures (collectively, the
"Aircraft Operative Agreements"):
(a) The past due rate in the Indentures and the Leases.
(b) The Make-Whole Premium payable under the Indentures.
(c) The provisions relating to the redemption and purchase of Equipment
Notes in the Indentures.
(d) The minimum liability insurance amount on Aircraft in the Leases.
(e) The interest rate payable with respect to stipulated loss value in
the Leases.
(f) The indemnification of the Loan Trustees, Subordination Agent,
Liquidity Provider, the Policy Provider, Trustees and Escrow Agents
with respect to certain taxes and expenses.
The "Mandatory Document Terms" prohibit modifications in any material
adverse respect to certain specified provisions of the Aircraft Operative
Agreements contemplated by the Note Purchase Agreement.
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Prohibited Modifications Under the Mandatory Document Terms
--------------------------------------------------------------------------
(1) In the case of the Indentures, the following modifications are
prohibited:
(a) To the Granting Clause of the Indentures so as to deprive the
registered holders of the Equipment Notes (in such capacity, the
"Note Holders") of a security interest in the Aircraft, certain of
America West's rights under its purchase agreement with the
Aircraft manufacturer and, in the case of a Leased Aircraft, the
Lease or to eliminate any of the "Secured Obligations" as defined
therein.
(b) To certain provisions relating to the issuance, redemption,
purchase, payments, and ranking of the Equipment Notes (including
the obligation to pay the Make-Whole Premium in certain
circumstances).
(c) To certain provisions regarding Indenture Defaults, remedies
relating thereto and rights of the Owner Trustee and Owner
Participant in such circumstances.
(d) To certain provisions relating to any replaced airframe or engines
with respect to an Aircraft.
(e) To the provision that New York law will govern the Indentures.
(2) In the case of the Leases, modifications are prohibited to certain
obligations of America West, including:
(a) To pay basic rent, stipulated loss value, early buy-out amount and
termination value to the Leased Aircraft Trustee.
(b) To record the Leased Aircraft Indenture with the Federal Aviation
Administration and to maintain such Indenture as a first-priority
perfected mortgage on the related Aircraft.
(c) To furnish certain opinions with respect to a replacement airframe.
(d) To consent to the assignment of the Lease by the Owner Trustee as
collateral under the Leased Aircraft Indenture, as well as
modifications which would either alter the provision that New York
law will govern the Lease or would deprive the Loan Trustee of
rights expressly granted to it under the Leases.
(3) In the case of the Participation Agreements, the following
modifications are prohibited:
(a) To certain conditions to the obligations of the Trustees to
purchase the Equipment Notes issued with respect to an Aircraft
involving good title to such Aircraft, obtaining a certificate of
airworthiness with respect to such Aircraft, entitlement to the
benefits of Section 1110 with respect to such Aircraft and filings
of certain documents with the Federal Aviation Administration.
(b) To the provisions restricting the Note Holder's ability to transfer
such Equipment Notes.
(c) To certain provisions so as to deprive the Note Holders of a first
priority security interest in the Aircraft.
(d) To certain provisions requiring the delivery of legal opinions.
(e) To the provision that New York law will govern the Participation
Agreements.
In the case of all of the Aircraft Operative Agreements, modifications are
prohibited in any material adverse respect as regards the interest of the Note
Holders, the Subordination Agent, the Liquidity Provider, the Policy Provider or
the Loan Trustee in the definition of "Make-Whole Premium." 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 Note Holders, the
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Subordination Agent, the Liquidity Provider, the Policy Provider, the Loan
Trustee or the Certificateholders.
POSSIBLE ISSUANCE OF CLASS D CERTIFICATES
America West may elect to issue Series D Equipment Notes, which will be
funded from sources other than this offering (the "Offering"). America West may
elect to fund the sale of the Series D Equipment Notes through the sale of Class
D Certificates. America West will not issue any Series D Equipment Notes at any
time prior to the consummation of this Offering. The Note Purchase Agreement
provides that America West's ability to issue any Series D Equipment Notes is
contingent upon its obtaining written confirmation from each Rating Agency that
the issuance of such Series D Equipment Notes will not result in a withdrawal or
downgrading of the rating of any Class of Certificates (without regard to the
Policy). If the Class D Certificates are issued, the Trustee with respect to
such Certificates will become a party to the Intercreditor Agreement. See
"Description of the Intercreditor Agreement".
LIQUIDATION OF ORIGINAL TRUSTS
On the earlier of (i) the first Business Day after May 30, 2000 or, if
later, the fifth Business Day after the Delivery Period Termination Date and
(ii) the fifth Business Day after the occurrence of a Triggering Event (such
Business Day, the "Transfer Date"), each of the Trusts established at the time
of the original issuance of the Certificates (the "Original Trusts") will
transfer and assign all of its assets and rights to a newly-created successor
trust (each, a "Successor Trust"). The Successor Trusts will have substantially
identical terms as the Original Trusts except that the Successor Trusts will not
have the right to purchase new Equipment Notes and Delaware law will govern the
Original Trusts and New York law will govern the Successor Trusts. The Trustee
of each of the Original Trusts (each, an "Original Trustee") will also act as
Trustee of the corresponding Successor Trust (each, a "New Trustee"), and each
New Trustee will assume the obligations of the Original Trustee under each
transaction document to which such Original Trustee was a party. Upon
effectiveness of such transfer, assignment and assumption, each of the Original
Trusts will be liquidated and each of the Certificates will represent the same
interest in the Successor Trust as it represented in the Original Trust
immediately prior to such transfer and assignment. Unless the context otherwise
requires, all references in this Prospectus to the Trusts, the Trustees, the
Pass Through Trust Agreements and similar terms shall be applicable with respect
to the Original Trusts until the effectiveness of such transfer, assignment and
assumption and thereafter shall be applicable with respect to the Successor
Trusts. If for any reason such transfer, assignment and assumption cannot be
effected to any Successor Trust, the related Original Trust will continue in
existence until it is effected. The Original Trusts may be treated as
partnerships for United States federal income tax purposes. The Successor Trust
will, in the opinion of tax counsel, be treated as grantor trusts. See "Certain
U.S. Federal Income Tax Consequences".
TERMINATION OF THE TRUSTS
The obligations of America West and the applicable Trustee with respect to
a Trust will terminate upon the distribution to Certificateholders of such Trust
of all amounts required to be distributed to them pursuant to the applicable
Pass Through Trust Agreement and the disposition of all property held in such
Trust. The applicable Trustee will send to each Certificateholder of such Trust
notice of the termination of such Trust, the amount of the proposed final
payment and the proposed date for the distribution of such final payment for
such Trust. The final distribution to any Certificateholder of such Trust will
be made only upon surrender of such Certificateholder's Certificates at the
office or agency of the applicable Trustee specified in such notice of
termination. (Section 11.01)
THE TRUSTEES
The Trustee for each Trust is Wilmington Trust Company.
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With certain exceptions, the Trustees make no representations as to the
validity or sufficiency of the Pass Through Trust Agreements, the Certificates,
the Intercreditor Agreement, the Equipment Notes, the Deposit Agreements, the
Escrow Agreements, the Indentures, the Participation Agreements, the Leases or
other related documents. (Sections 7.04 and 7.15) The Trustee of any Trust shall
not be liable, with respect to the Certificates of such Trust, for any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of Certificates of such Trust evidencing fractional
undivided interests aggregating not less than a majority in interest of such
Trust. Subject to certain provisions, the Trustees shall be under no obligation
to exercise any of their rights or powers under any Pass Through Trust Agreement
at the request of any holders of Certificates issued thereunder unless there
shall have been offered to the Trustees reasonable security and indemnity.
(Section 7.03 (e)) Each Pass Through Trust Agreement provides that the Trustees
in their individual or any other capacity may acquire and hold Certificates
issued thereunder and, subject to certain conditions, may otherwise deal with
America West, with any Owner Trustee or with any Loan Trustee with the same
rights they would have if they were not the Trustees. (Section 7.05)
Any Trustee may resign with respect to any or all of the Trusts of which it
is the Trustee at any time, in which event America West will be obligated to
appoint a successor trustee. If any Trustee ceases to be eligible to continue as
Trustee with respect to a Trust or becomes incapable of acting as Trustee or
becomes insolvent, America West may remove such Trustee, or the Policy Provider
or any holder of the Certificates of such Trust for at least six months may, on
behalf of such holder and all others similarly situated, petition any court of
competent jurisdiction for the removal of such Trustee and the appointment of a
successor trustee. Any resignation or removal of the Trustee with respect to a
Trust and appointment of a successor trustee for such Trust does not become
effective until acceptance of the appointment by the successor trustee.
(Sections 7.09 and 7.10) Pursuant to such resignation and successor trustee
provisions, it is possible that a different trustee could be appointed to act as
the successor trustee with respect to each Trust. All references in this
Prospectus to the Trustee should be read to take into account the possibility
that the Trusts could have different successor trustees in the event of such a
resignation or removal.
Each Pass Through Trust Agreement provides that America West will pay or
cause to be paid the applicable Trustee's fees and expenses. (Section 7.07)
BOOK-ENTRY; DELIVERY AND FORM
The New Certificates of each Trust will be represented by one or more
permanent global Certificates, in definitive, fully registered form without
interest coupons (the "Global Certificates"), to be deposited with the Trustee
as custodian for The Depository Trust Company ("DTC") and registered in the name
DTC or its nominee.
The Depository Trust Company
DTC has advised America West as follows: DTC is a limited purpose trust
company organized under the laws of the State of New York, a "banking
organization" within the meaning of the New York Banking Law, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the
Uniform Commercial Code and a "Clearing Agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. DTC was created to hold
securities for its participants and facilitate the clearance and settlement of
securities transactions between participants through electronic book-entry
changes in accounts of its participants, thereby eliminating the need for
physical movement of certificates. Participants include securities brokers and
dealers, banks, trust companies and clearing corporations and certain other
organizations. Indirect access to the DTC system is available to others such as
banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a participant, either directly or indirectly
("Indirect Participants").
Neither America West nor the Trustee has any responsibility for the
performance by DTC or its participants or indirect participants of their
respective obligations under the rules and procedures governing their
operations.
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If DTC is at any time unwilling or unable to continue as a depositary for
the Global Certificates and a successor depositary is not appointed by within 90
days, the Trusts will issue certificates in definitive, fully registered form in
exchange for the Global Certificates.
Ownership of Global Certificates
Ownership of beneficial interests in Global Certificates is limited to
persons who have accounts with DTC ("DTC Participants") or persons who hold
interests through DTC Participants. Ownership of beneficial interests in the
Global Certificates is shown on, and the transfer of that ownership is effected
only through, records maintained by DTC or its nominee (with respect to
interests of DTC Participants) and the records of DTC Participants (with respect
to interests of persons other than participants). The laws of some states
require that certain purchasers of securities take physical delivery of such
securities. Such limits and such laws may limit the market for beneficial
interests in the Global Certificates.
So long as DTC or its nominee is the registered owner or holder of the
Global Certificates, DTC or such nominee, as the case may be, will be considered
the sole record owner or holder of the Certificates represented by such Global
Certificates for all purposes under the related Pass Through Trust Agreements.
No beneficial owners of an interest in the Global Certificates will be able to
transfer that interest except in accordance with DTC's applicable procedures, in
addition to those provided for under the Pass Through Trust Agreements and, if
applicable, the Euroclear System or Cedel Bank Societe Anonyme.
Payments of Principal and Interest on the Global Certificates
Payments of the principal of, premium, if any, and interest on the Global
Certificates will be made to DTC or its nominee, as the case may be, as the
registered owner thereof. Neither America West, the Trustee, nor any paying
agent will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests in the
Global Certificates or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
America West expects that DTC or its nominee, upon receipt of any payment
of principal, premium, if any, or interest in respect of the Global Certificates
will credit DTC Participants' accounts with payments in amounts proportionate to
their respective beneficial ownership interest in the principal amount of such
Global Certificates, as shown on the records of DTC or its nominee. America West
also expects that payments by participants to owners of beneficial interests in
such Global Certificates held through such participants will be governed by
standing instructions and customary practices, as is now the case with
securities held for the accounts of customers registered in the names of
nominees for such customers. Such payments will be the responsibility of such
participants.
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DESCRIPTION OF THE DEPOSIT AGREEMENTS
The following summary describes certain terms of the Deposit Agreements.
The summary does not purport to be complete and is qualified in its entirety by
reference to all of the provisions of the Deposit Agreements. The provisions of
the Deposit Agreements are substantially identical except as otherwise
indicated. Upon request, copies of such agreements will be furnished to any
prospective investor in the Certificates. Requests for such agreements should be
addressed to the Trustees.
GENERAL
Under the Escrow Agreements, the Escrow Agent with respect to each Trust
has entered into a separate Deposit Agreement with the Depositary pursuant to
which the Depositary has established separate accounts into which the proceeds
of the Offering attributable to Certificates of such Trust were deposited (each,
a "Deposit") on behalf of such Escrow Agent, from which the Escrow Agent, upon
request from the Trustee of such Trust, will make withdrawals and into which
such Trustee will make re-deposits during the Delivery Period. Pursuant to the
Deposit Agreement with respect to each Trust (each, a "Deposit Agreement"), on
each Regular Distribution Date the Depositary will pay to the Paying Agent on
behalf of the applicable Escrow Agent, for distribution to the
Certificateholders of such Trust, an amount equal to interest accrued on the
Deposits relating to such Trust during the relevant interest period at a rate
per annum equal to the interest rate applicable to the Certificates issued by
such Trust.
The interest rates payable on the Deposits are subject to change under
certain circumstances described in "Exchange Offer; Registration Rights". Upon
each delivery of an Aircraft during the Delivery Period, the Trustees for the
Class G Trust and the Class C Trust will request the Escrow Agent relating to
such Trust to withdraw from the Deposits relating to such Trust funds sufficient
to enable the Trustee of such Trust to purchase the Equipment Note of the series
applicable to such Trust issued with respect to such Aircraft. Accrued but
unpaid interest on all such Deposits withdrawn will be paid on the next Regular
Distribution Date. Any portion of any Deposit withdrawn which is not used to
purchase such Equipment Note will be re-deposited by each Trustee into an
account relating to the applicable Trust. The Deposits relating to each Trust
and interest paid thereon will not be subject to the subordination provisions of
the Intercreditor Agreement and will not be available to pay any other amount in
respect of the Certificates.
UNUSED DEPOSITS
The Trustees' obligations to purchase the Equipment Notes issued with
respect to each Aircraft are subject to satisfaction of certain conditions at
the time of delivery, as set forth in the Note Purchase Agreement. See
"Description of the New Certificates--Obligation to Purchase Equipment Notes".
Since the Aircraft are scheduled for delivery from time to time during the
Delivery Period, no assurance can be given that all such conditions will be
satisfied at the time of delivery for each Aircraft. Moreover, since the
Aircraft will be newly or recently manufactured, their delivery as scheduled is
subject to delays in the manufacturing process and to the manufacturer's right
to postpone deliveries under its agreement with America West. See "Description
of the Aircraft and Appraisals--Deliveries of Aircraft". Depending on the
circumstances of the financing of each Aircraft, the maximum aggregate principal
amount of Equipment Notes may not be issued.
In addition, if any funds remain as Deposits with respect to any Trust at
the end of the Delivery Period or, if earlier, upon the acquisition by the
Trusts of the Equipment Notes with respect to all of the Aircraft (the "Delivery
Period Termination Date"), they will be withdrawn by the Escrow Agent and
distributed, with accrued and unpaid interest thereon to the Certificateholders
of such Trust after at least 15 days' prior written notice. In addition, such
distribution will include a premium payable by America West equal to the Deposit
Make-Whole Premium with respect to the remaining Deposits applicable to each
Trust, except that with respect to the Class C Trust, the Deposit Make-Whole
Premium in respect of the remaining Deposits applicable to such Trust will be
payable only to the extent such remaining Deposits exceed $4 million (the "Par
Redemption Amount"). The Policy does not cover the Deposit Make-Whole
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Premium. Since the maximum principal amount of Equipment Notes may not be issued
with respect to an Aircraft and, in each such case, the Series C Equipment Notes
are more likely not to be issued in the maximum principal amount as compared to
the other Equipment Notes, it is more likely that a distribution of unused
Deposits will be made with respect to the Class C Certificates as compared to
the other Certificates. In addition, notwithstanding the Par Redemption Amount
limitation, if any Aircraft is not delivered by the manufacturer on or prior to
the Delivery Period Termination Date due to any reason not occasioned by America
West's fault or negligence and no Substitute Aircraft is provided in lieu of
such Aircraft, no Deposit Make-Whole Premium will be paid with respect to the
unused Deposits to be distributed as a result of such failure to deliver in an
amount (the "Non-Premium Amount") equal to the maximum principal amount of
Equipment Notes that could have been issued and acquired by such Trust with
respect to such Aircraft in accordance with the Mandatory Economic Terms and
such unused Deposits shall not be included in the calculation of the Par
Redemption Amount.
"Deposit Make-Whole Premium" means, with respect to the distribution of
unused Deposits to holders of any Class of Certificates, as of any date of
determination, an amount, if any, determined pursuant to the following formula
(any negative amount being deemed equal to zero):
Formula for Deposit Make-Whole Premium
(1) The present value of the excess of
(a) the scheduled payment of principal and interest to maturity of the
Equipment Notes, assuming the maximum principal amount thereof (the
"Maximum Amount") minus any Non-Premium Amount applicable to such
Class of Certificates and, in the case of Class C Certificates
only, the Par Redemption Amount, were issued, on each remaining
Regular Distribution Date for such Class under the Assumed
Amortization Schedule, over
(b) the scheduled payment of principal and interest to maturity of the
Equipment Notes actually acquired by the Trustee for such Class on
each such Regular Distribution Date, such present value computed by
discounting such excess on a semiannual basis on each Regular
Distribution Date (assuming a 360-day year of twelve 30-day months)
using a discount rate equal to the Treasury Yield plus 197 basis
points in the case of the Class G Certificates and 275 basis points
in the case of the Class C Certificates, over
(2) the amount of such unused Deposits to be distributed to the holders of
such Certificates, minus any Non-Premium Amount applicable to such
Class of Certificates and, in the case of Class C Certificates only,
of the Par Redemption Amount, plus accrued and unpaid interest on such
net amount to but excluding the date of determination from and
including the preceding Regular Distribution Date (or if such date of
determination precedes the first Regular Distribution Date, the date
of issuance of the Certificates).
DISTRIBUTION UPON OCCURRENCE OF TRIGGERING EVENT
If a Triggering Event shall occur prior to the Delivery Period Termination
Date, the Escrow Agent for each Trust will withdraw any funds then held as
Deposits with respect to such Trust and cause such funds, with accrued and
unpaid interest thereon but without any premium, to be distributed to the
Certificateholders of such Trust by the Paying Agent on behalf of the Escrow
Agent, after at least 20 days' prior written notice. Accordingly, if a
Triggering Event occurs prior to the Delivery Period Termination Date, the
Trusts will not acquire Equipment Notes issued with respect to Aircraft
delivered after the occurrence of such Triggering Event.
DEPOSITARY
ABN AMRO Bank N.V., acting through its Chicago branch, will act as
Depositary (the "Depositary").
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ABN AMRO Bank N.V. is a direct subsidiary of ABN AMRO Holding N.V., an
international multi-bank holding company. At December 31, 1998, ABN AMRO Holding
N.V. reported consolidated assets amounting to approximately $505 billion (based
on the exchange rate at December 31, 1998 of U.S. $1.00 to NLG 1.886). The
accounting principles applied in the preparation of the financial statements of
ABN AMRO Bank N.V. may not conform to U.S. generally accepted accounting
principles.
ABN AMRO Bank N.V. has long-term unsecured debt ratings of Aa2 from Moody's
Investors Service, Inc. ("Moody's") and AA from Standard & Poor's Ratings
Service ("S&P" or "Standard & Poor's" and together with Moody's, the "Rating
Agencies") and short-term unsecured debt ratings of P-1 from Moody's and A-1+
from S&P.
ABN AMRO Bank N.V.'s Chicago branch was initially licensed by the
Commissioner of Banks and Real Estate for the State of Illinois on October 1,
1973. The Chicago branch is an unincorporated branch of ABN AMRO Bank N.V. and
is not a separate subsidiary. The branch is located at 135 South LaSalle Street,
Chicago, Illinois 60674-9135.
The Depositary has not been involved in the preparation of, and does not
accept responsibility for, this Prospectus.
REPLACEMENT OF DEPOSITARY
If the Depositary's long-term unsecured debt rating falls below BBB+ from
Standard & Poor's or Baa1 from Moody's then the Company must, within 45 days of
such event occurring, replace the Depositary with a new depositary bank that has
short-term unsecured debt ratings of at least A-1 from Standard & Poor's and P-1
from Moody's and a long-term unsecured debt rating of at least A from Standard &
Poor's and A2 from Moody's.
DESCRIPTION OF THE ESCROW AGREEMENTS
The following summary describes certain terms of the escrow and paying
agent agreements (the "Escrow Agreements"). The summary does not purport to be
complete and is qualified in its entirety by reference to the provisions of the
Escrow Agreements. The provisions of the Escrow Agreements are substantially
identical except as otherwise indicated. Upon request, copies of such agreements
will be furnished to any prospective investor in the Certificates. Requests for
such agreements should be addressed to the Trustees.
Each Escrow Agent, each Paying Agent, each Trustee and the Initial
Purchasers have entered into a separate Escrow Agreement for the benefit of the
Certificateholders of each Trust as holders of the escrow receipts ("Escrow
Receipts") affixed thereto (in such capacity, a "Receiptholder"). The cash
proceeds of the initial sale of the Old Certificates of each Trust have been
deposited on behalf of the Escrow Agent (for the benefit of Receiptholders) with
the Depositary as Deposits relating to such Trust. The Escrow Agent of each
Trust has been given irrevocable instructions (i) to permit the Trustee of such
Trust to cause funds to be drawn from such Deposits on or prior to the Delivery
Period Termination Date for the purpose of enabling such Trustee to purchase
Equipment Notes on and subject to the terms and conditions of the Note Purchase
Agreement and (ii) to direct the Depositary to pay interest on the Deposits
accrued in accordance with the Deposit Agreement to the Paying Agent for
distribution to the Receiptholders.
Each Escrow Agreement requires that the Paying Agent establish and
maintain, for the benefit of the related Receiptholders, one or more Paying
Agent Account(s), which shall be non-interest-bearing. Pursuant to the terms of
the Escrow Agreement, the Paying Agent is required to deposit interest on
Deposits relating to each Trust and any unused Deposits withdrawn by the Escrow
Agent in the Paying Agent Account. All amounts so deposited will be distributed
by the Paying Agent on a Regular Distribution Date or Special Distribution Date,
as appropriate.
Upon receipt by the Depositary on behalf of the Escrow Agent of the cash
proceeds from the Old Certificates as described above, the Escrow Agent will
issue one or more Escrow Receipts which will be
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affixed by the relevant Trustee to each Old Certificate. Each Escrow Receipt
evidences a fractional undivided interest in amounts from time to time deposited
into the Paying Agent Account and is limited in recourse to amounts deposited
into such account. An Escrow Receipt may not be assigned or transferred except
in connection with the assignment or transfer of the Certificate to which it is
affixed. Each Escrow Receipt will be registered by the Escrow Agent in the same
name and manner as the Certificate to which it is affixed.
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DESCRIPTION OF THE LIQUIDITY FACILITIES
The following summary describes certain terms of the Liquidity Facilities
and certain provisions of the Intercreditor Agreement relating to the Liquidity
Facilities. The summary does not purport to be complete and is qualified in its
entirety by reference to the provisions of the Liquidity Facilities and such
provisions of the Intercreditor Agreement. The provisions of the Liquidity
Facilities are substantially identical except as otherwise indicated. Upon
request, copies of such agreements will be furnished to any prospective investor
in the Certificates. Requests for such agreements should be addressed to the
Trustees.
GENERAL
The Liquidity Provider has entered into a separate revolving credit
agreement (each, a "Liquidity Facility") with the Subordination Agent with
respect to the Certificates of each of the Trusts. Under the Liquidity Facility
with respect to any Trust, the Liquidity Provider will, if necessary, make one
or more advances ("Interest Drawings") in an amount (the "Required Amount")
sufficient to pay interest on the Certificates of such Trust on up to three
successive semi-annual Regular Distribution Dates (without regard to any future
payments of principal on such Certificates) at the respective interest rates
shown on the cover page of this Prospectus (plus an additional margin specified
by the Registration Rights Agreement, if applicable) for such Certificates (the
"Stated Interest Rates"), except that the Liquidity Facility with respect to
each Trust will not cover interest payable by the Depository on the Deposits
relating to such Trust.
The Liquidity Facility for each Trust is intended to enhance the likelihood
of timely receipt by the Certificateholders of such Trust of the interest
payable on the Certificates of such Trust at the Stated Interest Rate therefor
on up to three consecutive semiannual Regular Distribution Dates. If interest
payment defaults occur which exceed the amount covered by or available under the
Liquidity Facility for any Trust, the Certificateholders of such Trust will bear
their allocable share of the deficiencies to the extent that there are no other
sources of funds (including, in the case of the Class G Trust, funds from the
Policy). Although Morgan Stanley Capital Services, Inc. ("MSCS") is the initial
Liquidity Provider for each of the Trusts, MSCS may be replaced by one or more
other entities with respect to the Trusts under certain circumstances.
Therefore, the Liquidity Provider for each Trust may differ. The obligations of
MSCS to make advances under the initial Liquidity Facilities are fully and
unconditionally guaranteed by Morgan Stanley Dean Witter & Co. ("MSDW").
DRAWINGS
The initial amount available under the Liquidity Facilities for the Class G
Trust and the Class C Trust at July 2, 2000, the first Regular Distribution Date
after the scheduled Delivery Period Termination Date, assuming that Equipment
Notes in the maximum principal amount with respect to all Aircraft are acquired
by the Trusts and that all interest and principal due on or prior to July 2,
2000 is paid, will be $27,153,979 and $2,187,035, respectively.
Except as otherwise provided below, the, Liquidity Facility for each Trust
will enable the Subordination Agent to make Interest Drawings thereunder on any
Regular Distribution Date in an amount sufficient to pay interest then due and
payable on the Certificates of such Trust at the respective interest rates shown
on the cover page of this Prospectus plus an additional margin specified by the
Registration Rights Agreement for such Certificates (the "Stated Interest
Rates") for such Trust to the extent that the amount, if any, available to the
Subordination Agent on such Regular Distribution Date is not sufficient to pay
such interest; provided, however, that the maximum amount available to be drawn
under the Liquidity Facility with respect to any Trust on any Regular
Distribution Date to fund any shortfall of interest on Certificates of such
Trust will not exceed an amount equal to the then Required Amount of such
Liquidity Facility less the aggregate amount of each Interest Drawing
outstanding under such Liquidity Facility at such time (the "Maximum Available
Commitment").
The Liquidity Facility for any Trust does not provide for drawings
thereunder to pay for principal of or premium on the Certificates of such Trust
or any interest on the Certificates of such Trust in excess of
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the Stated Interest Rate for such Trust or more than three semiannual
installments of interest thereon or principal of or interest or premium on the
Certificates of any other Trust. (Liquidity Facilities, Section 2.02;
Intercreditor Agreement, Section 3.6)
"Required Amount" means, for any day and with respect to either Trust, the
sum of the aggregate amount of interest, calculated at the Stated Interest Rate
applicable to the Certificates issued by such Trust, that would be payable on
such 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 Regular Distribution
Dates, in each case calculated based on the Pool Balance for the Certificates of
such Trust on such day and without regard to expected future payments of
principal on such Certificates. (Liquidity Facilities, Section 1.1) The Pool
Balance for purposes of the definition of Required Amount with respect to the
Class G Liquidity Facility shall, in the event of any Policy Provider Election,
be deemed to be reduced by the amount (if positive) by which (a) the then
outstanding principal balance of each Series G Equipment Note in respect of
which such Policy Provider Election has been made shall exceed (b) the amount of
any policy drawings previously paid by the Policy Provider in respect of
principal on such Series G Equipment Note. In addition, the Liquidity Facility
with respect to each Trust will not cover interest payable by the Depositary on
the Deposits relating to such Trust.
"Performing Equipment Note" means an Equipment Note issued pursuant to an
Indenture with respect to which no payment default has occurred and is
continuing (without giving effect to any acceleration); provided that in the
event of a bankruptcy proceeding involving America West under Title 11 of the
United States Code (the "Bankruptcy Code"), the following items will not be
taken into consideration:
(i) any payment default existing during the 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"), unless during the Section 1110 Period the trustee in
such proceeding or America West refuses to assume or agree to perform
its obligations under the Lease related to such Equipment Note (in
the case of a Leased Aircraft) or under the Indenture related to such
Equipment Note (in the case of an Owned Aircraft); and
(ii) any payment default occurring after the date of the order of relief
in such proceeding, 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. (Intercreditor Agreement, Section 1.1)
Each payment by the, Liquidity Provider under each Liquidity Facility
reduces pro tanto the Maximum Available Commitment under such Liquidity
Facility, subject to reinstatement as hereinafter described.
With respect to any Interest Drawings under the Liquidity Facility for any
Trust, upon reimbursement of the Liquidity Provider in full for the amount of
such Interest Drawings plus interest thereon, the Maximum Available Commitment
under such Liquidity Facility in respect of interest on the Certificates of such
Trust will be reinstated to an amount not to exceed the then Required Amount of
such Liquidity Facility; provided, however, that such Liquidity Facility will
not be so reinstated at any time after (i) a Liquidity Event of Default shall
have occurred and be continuing and (ii) less than 65% of the then aggregate
outstanding principal amount of all Equipment Notes are Performing Equipment
Notes. With respect to any other drawings under such Liquidity Facility, amounts
available to be drawn thereunder are not subject to reinstatement. The Required
Amount of the Liquidity Facility for any Trust will be automatically reduced
from time to time to an amount equal to the next three successive interest
payments due on the Certificates of such Trust (without regard to expected
future payment of principal of such Certificates) at the Stated Interest Rate
for such Trust. (Liquidity Facilities, Section 2.04(a); Intercreditor Agreement
Section 3.6(j))
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Possible Replacement of the Liquidity Facility
If at any time (i) the short-term unsecured debt rating of any Liquidity
Provider for any Trust or, if applicable, of any guarantor of the obligations of
such Liquidity Provider, then issued by either Rating Agency is lower than the
Threshold Rating or (ii) any guarantee of a Liquidity Provider's obligations
under the relevant Liquidity Facilities ceases to be in full force and effect or
becomes invalid or unenforceable or such guarantor denies its liability
thereunder, the Liquidity Facility provided by such Liquidity Provider for the
related Class of Certificates may be replaced by a Replacement Facility. In the
event that such Liquidity Facility is not replaced within ten days after notice
of the downgrading or any event relating to such guarantee or guarantor
described in clause (ii) above occurs and as otherwise provided in the
Intercreditor Agreement, the Subordination Agent will request the Downgrade
Drawing in an amount equal to the then Maximum Available Commitment thereunder
(the "Downgrade Drawing") and will hold the proceeds thereof in a cash
collateral account (the "Cash Collateral Account") for such Trust as cash
collateral to be used for the same purposes and under the same circumstances as
cash payments of Interest Drawings under such Liquidity Facility would be used.
(Liquidity Facilities, Section 2.02(c); Intercreditor Agreement, Section 3.6(c))
Definitions of Replacement Facility and Threshold Rating
A "Replacement Facility" for any Liquidity Facility will mean an
irrevocable revolving credit agreement (or agreements) in substantially the form
of the replaced Liquidity Facility, 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 Certificates (before the downgrading of such ratings, if any, as result
of (i) the downgrading of the Liquidity Provider or, if applicable, any
guarantor of its obligations or (ii) any guarantee of such Liquidity Provider's
obligations ceasing to be in full force and effect or becoming invalid or
unenforceable or such guarantor denying its liability thereunder, but, in each
case, without regard to the Policy) and in the case of the Class G Liquidity
Facility only, be consented to by the Policy Provider, which consent shall not
be unreasonably withheld or delayed, in a face amount (or in an aggregate face
amount) equal to the amount of interest payable on the Certificates of such
Trust (at the Stated Interest Rate for such Trust, and without regard to
expected future principal payments) on the three Regular Distribution Dates
following the date of replacement of such Liquidity Facility and issued by a
Person having unsecured short-term debt ratings issued by both Rating Agencies
which are equal to or higher than the Threshold Rating. (Intercreditor
Agreement, Section 1.1)
"Threshold Rating" means the short-term unsecured debt rating of P-1 by
Moody's and A-1 by Standard & Poor's for either Liquidity Facility.
Expiration of Liquidity Provider's Obligations
The Liquidity Facility for each Trust provides that the relevant Liquidity
Provider's obligations thereunder will expire on the earliest of the following:
(1) 364 days after the initial issuance date of the Certificates (the
"Issuance Date").
(2) The date on which the Subordination Agent delivers to such Liquidity
Provider a certification that all of the Certificates of such Trust
have been paid in full.
(3) The date on which the Subordination Agent delivers to such Liquidity
Provider a certification that a Replacement Facility has been
substituted for such Liquidity Facility.
(4) The fifth Business Day following receipt by the Subordination Agent of
a Termination Notice from such Liquidity Provider (see "--Liquidity
Events of Default").
(5) The date on which no amount is or may (by reason of reinstatement)
become available for drawing under such Liquidity Facility.
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Each Liquidity Facility provides that the scheduled expiration date thereof
may be extended for additional 364-day periods.
Replacement of any Liquidity Facility
The Intercreditor Agreement will provide for the replacement of any
Liquidity Facility for any Trust (other than a Liquidity Facility which expires
no earlier than 15 days later than the Final Legal Distribution Date for the
related Class) in the event that such Liquidity Facility is not extended at
least 25 days prior to its then scheduled expiration date. In the event such
Liquidity Facility is not so extended or replaced by the 25th day prior to its
then scheduled expiration date, the Subordination Agent shall request the
Non-Extension Drawing in an amount equal to the then Maximum Available
Commitment thereunder (the "Non-Extension Drawing") and hold the proceeds
thereof in the Cash Collateral Account for such Trust as cash collateral to be
used for the same purposes and under the same circumstances, and subject to the
same conditions, as cash payments of Interest Drawings under such Liquidity
Facility would be used. (Liquidity Facilities, Section 2.02(b))
America West may, at its option (with or without cause), arrange for a
Replacement Facility at any time to replace the Liquidity Facility for any Trust
(including without limitation any Replacement Facility described in the
following sentence); provided that America West may not replace the initial
Liquidity Provider prior to the fifth anniversary of the Issuance Date except in
certain limited circumstances. In addition, if any Liquidity Provider shall
determine not to extend its Liquidity Facility, then such Liquidity Provider
may, at its option, arrange for a Replacement Facility to replace such Liquidity
Facility during the period no earlier than 40 days and no later than 25 days
prior to the then scheduled expiration date of such Liquidity Facility. If any
Replacement Facility is provided at any time after a Downgrade Drawing or a
Non-Extension Drawing under any Liquidity Facility, the funds with respect to
such Liquidity Facility on deposit in the Cash Collateral Account for such Trust
will be returned to the Liquidity Provider being replaced. (Intercreditor
Agreement, Section 3.6(e))
Final Drawing Upon Termination of any Liquidity Facility
The Intercreditor Agreement provides that, upon receipt by the
Subordination Agent of a Termination Notice with respect to any Liquidity
Facility from the Liquidity Provider (given as described in "--Liquidity Events
of Default"), the Subordination Agent will request a final drawing (the "Final
Drawing") under such Liquidity Facility in an amount equal to the then Maximum
Available Commitment thereunder and will hold the proceeds thereof in the Cash
Collateral Account for the related Trust as cash collateral to be used for the
same purposes and under the same circumstances, and subject to the same
conditions, as cash payments of Interest Drawings under such Liquidity Facility
would be used. (Liquidity Facilities, Section 2.02(d); Intercreditor Agreement,
Section 3.6(i))
Mechanics of Drawings
Drawings under any Liquidity Facility will be made by delivery by the
Subordination Agent of a certificate in the form required by such Liquidity
Facility. Upon receipt of such a certificate, the Liquidity Provider is
obligated to make payment of the drawing requested thereby in immediately
available funds. Upon payment by any Liquidity Provider of the amount specified
in any drawing under any Liquidity Facility, such Liquidity Provider will be
fully discharged of its obligations under such Liquidity Facility with respect
to such drawing and will not thereafter be obligated to make any further
payments under such Liquidity Facility in respect of such drawing to the
Subordination Agent or any other person. (Liquidity Facility, Section 2.2(f))
REIMBURSEMENT OF DRAWINGS
Amounts drawn under any Liquidity Facility by reason of an Interest Drawing
or the Final Drawing will be immediately due and payable, together with interest
on the amount of such drawing, with respect to the period from the date of its
borrowing to (but excluding) the third business day following the
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applicable Liquidity Provider's receipt of the notice of such Interest Drawing,
at the Base Rate plus 2.0% per annum, and thereafter, at LIBOR for the
applicable Interest Period plus 2.0% per annum, provided that the Subordination
Agent will be obligated to reimburse such amounts only to the extent that the
Subordination Agent has funds available therefor.
Definitions of LIBOR and Base Rate
"LIBOR" means, with respect to any interest period, the rate per annum
appearing on Page 3750 (British Bankers Association-LIBOR) of the Dow Jones
Markets Service (or any successor or substitute page of such service, or any
successor to or substitute for such service, providing rate quotations
comparable to those currently provided on such page applicable to deposits in
dollars in the London interbank market) at approximately 11:00 a.m. (London
time) two Business Days before the first day of such interest period, at the
rate for dollar deposits with a maturity comparable to such interest period. In
the event that such rate is not available at such time for any reason, then
LIBOR with respect to any interest period shall be the average rate per annum
(rounded upwards if necessary to the next 1/16 of 1%) at which deposits in
dollars are offered for the relevant interest period by three banks of
recognized standing selected by the Liquidity Provider 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 an amount approximately equal to 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.
"Base Rate" means a fluctuating interest rate per annum in effect from time
to time, which rate per annum shall at all times be determined by the
calculation set forth below:
Calculation of Base Rate
(1) The weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is
not a business day, the next preceding business day) by the Federal
Reserve Bank of New York, or if such rate is not so published for any
day that is a business day, the average of the quotations for such day
for such transactions received by the Liquidity Provider from three
Federal funds brokers of recognized standing selected by it, plus
(2) One-quarter of one percent ( 1/4 of 1%).
Downgrade Drawing of Non-Extension Drawing
The amount drawn under the Liquidity Facility for any Trust by reason of a
Downgrade Drawing or a Non-Extension Drawing will be treated as set forth below
Treatment of Amount Drawn Under a Liquidity Facility
(1) Such amount will be released on any Distribution Date to the relevant
Liquidity Provider to the extent that such amount exceeds the Required
Amount.
(2) Any portion of such amount withdrawn from the Cash Collateral Account
for such Certificates to pay interest on such Certificates will be
treated in the same way as Interest Drawings.
(3) The balance of such amount will be invested in Eligible Investments.
The Downgrade Drawing or Non-Extension Drawing under any Liquidity Facility
(other than any portion thereof applied to the payment of interest on the
Certificates) will bear interest with respect to the period from the date of
borrowing to (but excluding) the third Business Day following the Liquidity
Provider's receipt of the notice of such Downgrade Drawing or Non-Extension
Drawing, at the Base Rate plus 0.35% per annum, and thereafter at LIBOR for the
applicable Interest Period plus 0.35% per annum; provided that the Subordination
Agent will be obligated to pay such amount only to the extent that the
Subordination Agent has funds available therefor. (Liquidity Facilities, Section
2.06)
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LIQUIDITY EVENTS OF DEFAULT
Events of Default under each Liquidity Facility (each, a "Liquidity Event
of Default") will consist of: (i) the acceleration of all the Equipment Notes
(provided, that during the Delivery Period the aggregate principal amount
thereof exceeds $100 million) and (ii) certain bankruptcy or similar events
involving America West. (Liquidity Facilities, Section 1.01)
If (i) any Liquidity Event of Default under any Liquidity Facility has
occurred and is continuing and (ii) less than 65% of the aggregate outstanding
principal amount of all Equipment Notes are Performing Equipment Notes, the
applicable Liquidity Provider may, in its discretion, give a notice of
termination of the related Liquidity Facility (a "Termination Notice") the
effect of which will be as follows:
Effect of Notice of Termination Due to Liquidity Event of Default
(1) Such Liquidity Facility will expire on the fifth Business Day after
the date on which such Termination Notice is received by the
Subordination Agent.
(2) The Subordination Agent will promptly request, and the Liquidity
Provider to make, a Final Drawing thereunder in an amount equal to the
then Maximum Available Commitment thereunder.
(3) Any Drawing remaining unreimbursed as of the date of termination will
be automatically converted into a Final Drawing under such Liquidity
Facility.
(4) All amounts owing to such Liquidity Provider will automatically become
accelerated.
Notwithstanding the foregoing, the Subordination Agent will be obligated to pay
amounts owing to the Liquidity Provider only to the extent of funds available
therefor after giving effect to the payments in accordance with the provisions
set forth under "Description of the Intercreditor Agreement--Priority of
Distributions." (Liquidity Facilities, Section 6.01) Upon the circumstances
described below under "Description of the Intercreditor Agreement--Intercreditor
Rights--Controlling Party," a Liquidity Provider may become the Controlling
Party with respect to the exercise of remedies under the Indentures.
(Intercreditor Agreement, Section 2.6(c))
LIQUIDITY PROVIDER
The initial liquidity provider for the Class G Trust and the Class C Trust
is MSCS (including any replacement therefor, the "Liquidity Provider"). MSCS, a
subsidiary of MSDW, commenced operations in August 1985 and was established to
conduct, primarily as principal, an interest rate, currency and equity
derivatives products business. MSCS also engages in a variety of other related
transactions.
MSDW, the guarantor of MSCS's obligations under its Liquidity Facilities,
is a global financial services firm. MSDW has long-term unsecured debt ratings
of Aa3 from Moody's and A+ from Standard & Poor's and short-term unsecured debt
ratings of P-1 from Moody's and A-1 from Standard & Poor's. MSDW files reports,
proxy statements and other information with the Commission pursuant to the
information requirements of the Exchange Act. Such information can be inspected
and copied at the public reference facilities of the Commission, or
electronically accessed through the Internet, as described in this Prospectus
under "Available Information and Reports to Certificateholders."
The description of MSCS and MSDW above has been provided by MSCS and MSDW.
Neither MSCS or MSDW, however, has been involved in the preparation of or
accepts responsibility for this Prospectus. Morgan Stanley & Co. Incorporated, a
subsidiary of MSDW and an affiliate of MSCS, was an Initial Purchaser of the
Certificates.
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DESCRIPTION OF THE POLICY AND
THE POLICY PROVIDER AGREEMENT
The following summary of the terms of the Policy does not purport to be
complete and is qualified in its entirety by reference to the Policy. Upon
request, copies of the Policy will be furnished to any prospective investor in
the Class G Certificates. Requests for such document should be addressed to the
Class G Trustee.
THE POLICY
The Policy Provider has issued its certificate guarantee insurance policy
(the "Policy") in favor of the Subordination Agent for the benefit of the Class
G Trustee and holders of the Class G Certificates. The Intercreditor Agreement
directs the Subordination Agent to make a drawing under the Policy under the
following five circumstances:
Interest Drawings
If on any Regular Distribution Date (other than the Final Legal
Distribution Date) after giving effect to the subordination provisions of the
Intercreditor Agreement and to the application of any amounts received by the
Escrow Agent in the Class G Paying Agent Account in respect of accrued interest
on the Class G Deposits, any drawing paid under the Class G Liquidity Facility
in respect of interest due on the Class G Certificates on such Distribution Date
and any withdrawal of funds from the Class G Cash Collateral Account in respect
of such interest, the Subordination Agent does not then have sufficient funds
available for the payment of all amounts due and owing in respect of accrued
interest on the Class G Certificates at the Stated Interest Rate for Class
G-Certificates ("Accrued Class G Interest"), the Subordination Agent is to
request a policy drawing under the Policy in an amount sufficient to enable the
Subordination Agent to pay such Accrued Class G Interest.
Proceeds Deficiency Drawing
If on any Special Distribution Date (other than an Election Distribution
Date) established by the Subordination Agent by reason of its receipt of a
Special Payment constituting the proceeds of any Series G Equipment Note or the
related Trust Indenture Estate or Collateral, as the case may be, after giving
effect to the subordination provisions of the Intercreditor Agreement and to the
application of any amounts received by the Escrow Agent in the Class G Paying
Agent Account in respect of accrued interest on the Class G Deposits, any
drawing paid under the Class G Liquidity Facility in respect of interest due on
the Class G Certificates on such Distribution Date and any withdrawal of funds
in the Class G Cash Collateral Account in respect of such interest, the
Subordination Agent does not then have sufficient funds available for a
reduction in the outstanding Pool Balance of the Class G Certificates by an
amount equal to the outstanding principal amount of such Equipment Note
(determined immediately prior to the receipt of such proceeds) plus interest on
the amount of such reduction accrued at the Stated Interest Rate for the period
from the immediately preceding Regular Distribution Date to such Special
Distribution Date, the Subordination Agent is to request a policy drawing under
the Policy in an amount sufficient to enable the Subordination Agent to pay the
amount of such reduction plus such accrued interest.
No Proceeds Drawing
On the first Business Day (which shall be a Special Distribution Date) that
is 24 months after the last date on which any payment was made on any Series G
Equipment Note as to which there has subsequently been a failure to pay
principal or that has subsequently been accelerated, if the Subordination Agent
has not received a Special Payment constituting proceeds from the disposition of
that Equipment Note or the related Trust Indenture Estate or Collateral, as the
case may be, the Subordination Agent is to request a policy drawing under the
Policy in an amount equal to the then outstanding principal amount of such
Equipment Note plus accrued interest thereon at the Stated Interest Rate for the
Class G
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Certificates from the immediately preceding Regular Distribution Date to that
Special Distribution Date. The Subordination Agent is to give prompt notice to
each Trustee, the Liquidity Provider and the Policy Provider setting forth the
non-receipt of any such Special Payment and, establishing such Business Day as
such Special Distribution Date, which notice is to be given not less than 25
days prior to such Special Distribution Date. After the payment by the Policy
Provider in full of such amount of principal and accrued interest for such
policy drawing, the Subordination Agent will have no right to make any further
policy drawing in respect of any subsequent sale or other disposition of such
Equipment Note.
Notwithstanding the foregoing, the Policy Provider has the right at the end
of any such 24-month period, so long as no Policy Provider Default shall have
occurred and be continuing, to elect (the "Policy Provider Election") instead
(a) to pay on such Special Distribution Date an amount equal to any shortfall in
the scheduled principal and interest that came due on such Equipment Note
(without regard to the acceleration thereof) during such 24-month period (after
giving effect to the application of funds received from the Class G Liquidity
Facility, the Class G Cash Collateral Account and any Policy Drawings, in each
case, attributable to such interest), (b) thereafter, on each Regular
Distribution Date until the establishment of an Election Distribution Date, to
permit drawings under the Policy for an amount equal to the scheduled principal
and interest that were to become due on such Equipment Note on the related
payment date (without regard to any acceleration thereof) and (c) (i) on any
Business Day (which shall be a Special Distribution Date) elected by the Policy
Provider upon 20 days' notice to request the Subordination Agent, or (ii)
following either the occurrence and continuation of a Policy Provider Default or
the sale or other disposition of such Equipment Note or its underlying
collateral, on any Business Day (which shall be a Special Distribution Date)
specified by the Subordination Agent upon 20 days' notice (each such Business
Day in the case of clauses (i) and (ii), an "Election Distribution Date"), the
Subordination Agent shall be required, in each case, to make a policy drawing
for an amount equal to the then outstanding principal balance of such Equipment
Note and accrued interest thereon at the Stated Interest Rate for the Class G
Certificates from the immediately preceding Regular Distribution Date to such
Election Distribution Date (after giving effect to the application of funds, if
any, received from the Class G Liquidity Facility and the Class G Cash
Collateral Account attributable to such interest) less any policy drawings
previously paid by the Policy Provider in respect of principal on such Equipment
Note, without derogation of the Policy Provider's continuing obligations for all
previous Policy Drawings that remain unpaid in respect of such Equipment Note.
The Intercreditor Agreement instructs the Subordination Agent to make each such
drawing under the Policy.
In addition, regardless of whether or not the Policy Provider makes a
Policy Provider Election, the Policy Provider shall, at the end of such 24-month
period, amend (to the extent not previously amended) the Policy to provide for
the payment to the Liquidity Provider of interest accruing on the outstanding
drawings under the Class G and Class C Liquidity Facilities from and after the
end of such 24-month period as and when such interest becomes due in accordance
with such Liquidity Facilities.
Final Policy Drawing
If on the Final Legal Distribution Date of the Class G Certificates after
giving effect to the subordination provisions of the Intercreditor Agreement and
to the application of any amounts received by the Escrow Agent in the Class G
Paying Agent Account in respect of accrued interest on the Class G Deposits, any
drawing paid under the Class G Liquidity Facility in respect of interest
included in the Final Distributions and any withdrawal of funds in the Class G
Cash Collateral Account in respect of interest included in the Final
Distributions, the Subordination Agent does not then have sufficient funds
available for the payment in full of the Final Distributions (calculated as at
such date but excluding any accrued and unpaid premium) on the Class G
Certificates, the Subordination Agent is to request a policy, drawing under the
Policy in an amount sufficient to enable the Subordination Agent to pay the
Final Distributions (calculated as at such date but excluding any accrued and
unpaid premium) on the Class G Certificates.
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Avoidance Drawing
If at any time the Subordination Agent has actual knowledge of the issuance
of any Order, the Subordination Agent is to give prompt notice to each Trustee,
each Liquidity Provider and the Policy Provider of such Order and prior to the
expiration of the Policy, to request a policy drawing for the relevant
Preference Amount and to deliver to the Policy Provider a copy of the
documentation required by the Policy with respect to such Order. To the extent
that any portion of such Preference Amount is to be paid to the Subordination
Agent (and not to any receiver, conservator, debtor-in-possession or trustee in
bankruptcy as provided in the Policy), the Subordination Agent shall establish
as a Special Distribution Date the date that is the earlier of the third
Business Day that immediately precedes the expiration of the Policy and the
Business Day that immediately follows the 25th day after that notice for
distribution of such portion of the proceeds of such policy drawing. With
respect to that Special Distribution Date, the Subordination Agent is to request
a policy drawing for the relevant Preference Amount and to deliver to the Policy
Provider a copy of the documentation required by the Policy with respect to such
Order.
GENERAL
All requests by the Subordination Agent for a policy drawing are to be made
by it no later than 1:00 p.m. (New York City time) on (or, in the case of any
Preference Amount, at least three days prior to) the applicable Distribution
Date and in the form required by the Policy and delivered to the Policy Provider
in accordance with the Policy. All proceeds of any policy drawing are to be
deposited by the Subordination Agent in the Policy Account and from there paid
to the Class G Trustee for distribution to the holders of the Class G
Certificates without regard to the subordination provisions of the Intercreditor
Agreement. In the case of any Preference Amounts, however, all or part of the
policy drawing will be paid directly to the bankruptcy receiver,
debtor-in-possession or trustee to the extent such amounts have not been paid by
the Certificateholders. If any request for a policy drawing is rejected as not
meeting the requirements of the Policy, the Subordination Agent is to resubmit
such request so as to meet such requirements.
The Policy provides that if such a request for a policy drawing is properly
submitted or resubmitted it will pay to the Subordination Agent for deposit in
the Policy Account the applicable payment under the Policy no later than 4:00
p.m. on the later of the relevant Distribution Date and the date the request is
received by the Policy Provider (if the request is received by 1:00 p.m. on such
date) or the next Policy Business Day (if the request is received after that
time).
The Policy Provider will be subrogated to all of the rights of the holders
of the Series G Equipment Notes to the extent provided in the Intercreditor
Agreement and will not be subrogated to the Class G Certificates. Once any
payment under the Policy is paid to the Subordination Agent, the Policy Provider
will have no further obligation in respect of those payments. THE POLICY
PROVIDER SHALL NOT BE REQUIRED TO MAKE ANY PAYMENT EXCEPT AT THE TIMES AND IN
THE AMOUNTS AND UNDER THE CIRCUMSTANCES EXPRESSLY SET FORTH IN THE POLICY.
The Policy does not cover (i) shortfalls, if any, attributable to the
liability of the Class G Trust, the Class G Trustee or the Subordination Agent
for withholding taxes, if any (including interest and penalties in respect of
that liability), (ii) any premium, prepayment penalty or other accelerated
payment, which at any time may become due on or with respect to any Class G
Certificate, nor (iii) any failure of the Subordination Agent or the Class G
Trustee to make any payment due to the holders of the Class G Certificates from
funds received.
The Policy Provider's obligation under the Policy will be discharged to the
extent that funds are received by the Subordination. Agent for distribution to
the Class G Trustee and the holders of Class G Certificates, whether or not the
funds are properly distributed by the Subordination Agent or the Class G
Trustee.
The Policy is noncancellable. The Policy expires and terminates without any
action on the part of the Policy Provider or any other person on the earlier of
(i) July 3, 2021 and (ii) the date that is one year
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and one day following the date on which the Pool Balance of the Class G
Certificates and all interest at the Stated Interest Rate for the Class G
Certificates has been paid in full, unless a request for a policy drawing has
been made prior thereto, in which case upon payment by the Policy Provider of
amounts due under the policy pursuant to such request. No portion of the premium
under the Policy is refundable for any reason including payment, or provision
being made for payment.
The Policy is issued under and pursuant to and shall be construed under,
the laws of the State of New York, without giving effect to the conflict of laws
principles that might invoke the substantive laws of other jurisdictions.
DEFINITIONS
"Order" means the order referred to in the definition of the term
"Preference Amount."
"Policy Business Day," for the purposes of this "Description of the Policy
and the Policy Provider Agreement," means any day that is not a Saturday, a
Sunday or other day on which banking institutions in New York City or in the
city in which the Corporate Trust Office of the Subordination Agent or the
office of the Policy Provider is located are authorized or obligated by law or
executive order to close.
"Preference Amount" means any payment of principal or interest at the
Stated Interest Rate on the Series G Equipment Notes made to the Trustee or the
Subordination Agent or (without duplication) any payment of the Pool Balance of
or interest at the Stated Interest Rate on the Class G Certificates or any
payment of the proceeds of any drawing under the Class G Liquidity Facility made
to a holder which has become recoverable or been recovered from the Trustee, the
Subordination Agent or the holders of the Class G Certificates (as the case may
be) as a result of such payment being determined or deemed a preferential
transfer pursuant to the United States Bankruptcy Code or otherwise rescinded or
requested to be returned in accordance with a final, nonappealable order of a
court of competent jurisdiction.
THE POLICY PROVIDER AGREEMENT
The Subordination Agent, the Company and the Policy Provider have entered
into an insurance and indemnity agreement (the "Policy Provider Agreement")
pursuant to which the Company agreed to reimburse the Policy Provider for
amounts paid pursuant to claims made under the Policy. Pursuant to the Policy
Provider Agreement, America West agrees to pay the Policy Provider a premium for
the Policy based on the Pool Balance of the Class G Certificates and a fee in
connection with any prepayment of the Certificates (including by reason of an
acceleration of the underlying Equipment Notes, but excluding a prepayment
associated with an event of loss of an Aircraft) and to reimburse the Policy
Provider for certain expenses.
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DESCRIPTION OF THE INTERCREDITOR AGREEMENT
The following summary describes certain provisions of the Intercreditor
Agreement (the "Intercreditor Agreement") among the Trustees, the Liquidity
Provider, the Policy Provider and Wilmington Trust Company, as subordination
agent (the "Subordination Agent"). The summary does not purport to be complete
and is qualified in its entirety by reference to the provisions of the
Intercreditor Agreement. Upon request, copies of the Intercreditor Agreement
will be furnished to any prospective investor in the Certificates. Requests for
such agreement should be addressed to the Trustees.
INTERCREDITOR RIGHTS
Controlling Party
Pursuant to the Intercreditor Agreement, the Trustees, the Policy Provider
and the Liquidity Provider agree that, with respect to any Indenture at any
given time, the Loan Trustee will be directed in taking, or refraining from
taking, any action thereunder or with respect to the Equipment Notes issued
thereunder, subject to certain limitations, by the Controlling Party, including
acceleration of such Equipment Notes and foreclosing the lien on the Aircraft
securing such Equipment Notes, in each case, in accordance with their terms. See
"Description of the Certificates--Indenture Defaults and Certain Rights Upon an
Indenture Default" and below at "--Voting of Equipment Notes" for a description
of the rights of the Certificateholders of each Trust to direct the respective
Trustees under certain circumstances.
The Controlling Party will be:
- The Policy Provider until payment of final distributions to the holders
of the Class G Certificates and no obligations owing to the Policy
Provider remain outstanding or, if a Policy Provider Default has
occurred and is continuing, the Class G Trustee.
- Upon payment of final distributions to the holders of the Class G
Certificates and if either no obligations owing to the Policy Provider
remain outstanding or a Policy Provider Default has occurred and is
continuing, the Class C Trustee.
Notwithstanding the foregoing, at any time after 18 months from the
earliest to occur of certain events set forth below, the Liquidity Provider with
the highest outstanding amount of unreimbursed Liquidity Obligations (so long as
such Liquidity Provider has not defaulted in its obligation to make any advance
under any Liquidity Facility) will have the right to elect to become the
Controlling Party with respect to any Indenture.
Time at Which Liquidity Provider May Elect to Become Controlling Party
(1) The date on which the entire available amount under any Liquidity
Facility shall have been drawn (for any reason other than a Downgrade
Drawing or a Non-Extension Drawing) and remain unreimbursed.
(2) The date on which the entire amount of any Downgrade Drawing or
Non-Extension Drawing shall have been withdrawn from the relevant Cash
Collateral Account to pay interest on the relevant Class of
Certificates and remain unreimbursed.
(3) The date on which all Equipment Notes shall have been accelerated
(provided, that prior to the Delivery Period Termination Date the
aggregate outstanding principal amount thereof exceeds $100 million).
Notwithstanding the foregoing, the Policy Provider shall remain the
Controlling Party so long as no Policy Provider Default has occurred and is
continuing (in which case such Liquidity Provider, if it so elects and if
Liquidity Obligations owing to it remain outstanding, or if it does not so elect
or if no such
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Liquidity Obligations remain outstanding, the Class G Trustee, shall become the
Controlling Party) and either of the following occur:
(1) The Policy Provider amends the Policy to cover payments of all
drawings and interest theron owing to the Liquidity Provider under the
Class G and Class C Liquidity Facilities (determined without regard to
the availability of funds for the payment thereof by the Subordination
Agent) and certain other conditions are met, including the Rating
Agencies confirming that they will not withdraw, suspend or downgrade
their ratings on any class of Certificates; or
(2) The Policy Provider pays to the Liquidity Provider all outstanding
drawings and interest thereon owing to the Liquidity Provider (as so
determined) under the Class G and Class C Liquidity Facilities
including all interest accrued thereon to such date.
For purposes of giving effect to the foregoing, the Trustees (other than the
Controlling Party) will irrevocably agree, and the Certificateholders (other
than the Certificateholders represented by the Controlling Party) will be deemed
to agree by virtue of their purchase of Certificates, that the Subordination
Agent, as record holder of the Equipment Notes, shall (subject to the
limitations specified therein) exercise its voting rights in respect of the
Equipment Notes as directed by the Controlling Party. (Intercreditor Agreement,
Section 2.6) For a description of certain limitations on the Controlling Party's
rights to exercise remedies, see "Description of the Equipment Notes--Remedies"
and to exercise certain other voting rights, see below at "--Voting of Equipment
Notes".
"Policy Provider Default" shall mean the occurrence of any of the following
events (a) the Policy Provider fails to make a payment required under the Policy
in accordance with its terms and such failure remains unremedied for 2 business
days following the delivery of written notice of such failure to the Policy
Provider or (b) the Policy Provider (i) files any petition or commences any case
or proceeding under any provisions of any federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or reorganization, (ii)
makes a general assignment for the benefit of its creditors or (iii) has an
order for relief entered against it under any federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or reorganization that is
final and nonappealable, or (c) a court of competent jurisdiction, the Wisconsin
Department of Insurance or another competent regulatory authority enters a final
and nonappealable order, judgment or decree (i) appointing a custodian, trustee,
agent or receiver for the Policy Provider or for all or any material portion of
its property or (ii) authorizing the taking of possession by a custodian,
trustee, agent or receiver of the Policy Provider (or taking of possession of
all or any material portion of the Policy Provider's property).
"Final Distributions" means, with respect to the Certificates of any Trust
on any Distribution Date, shall be calculated under the following formula:
Calculation of Distributions
(1) The aggregate amount of all accrued and unpaid interest on such
Certificates (excluding interest, if any, payable on the Deposits
relating to such Trust), plus
(2) the Pool Balance of such Certificates as of the immediately preceding
Distribution Date (less the amount of the Deposits for such Class of
Certificates as of such preceding Distribution Date other than any
portion of such Deposits thereafter used to acquire Equipment Notes
pursuant to the Note Purchase Agreement).
For purposes of calculating Final Distributions with respect to the Certificates
of any Trust, any premium paid on the Equipment Notes held in such Trust which
has not been distributed to the Certificateholders of such Trust (other than
such premium or a portion thereof applied as the payment of interest on the
Certificates of such Trust on the reduction of the Pool Balance of such Trust)
shall be added to the amount of such Final Distributions.
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Sale of Equipment Notes or Aircraft
Following the occurrence and during the continuation of an Indenture
Default under any Indenture, the Controlling Party may direct the acceleration
of the Equipment Notes issued thereunder, and, subject to the provisions of the
immediately following sentence, may direct the Subordination Agent to sell all
(but not less than all) of the Equipment Notes issued under such Indenture to
any person. So long as any Certificates are outstanding, during nine months
after the earlier of (i) the acceleration of the Equipment Notes under any
Indenture and (ii) the bankruptcy or insolvency of America West, without the
consent of each Trustee, (a) no Aircraft subject to the lien of such Indenture
or such Equipment Notes may be sold if the net proceeds from such sale would be
less than the Minimum Sale Price for such Aircraft or such Equipment Notes, and
(b) with respect to any Leased Aircraft, the amount and payment dates of rentals
payable by America West under the Lease for such Leased 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 America West under such Lease before giving effect to such
adjustment, in each case, using the weighted average interest rate of the
Equipment Notes issued under such Indenture as the discount rate. (Intercreditor
Agreement, Section 4.1(a))
"Minimum Sale Price" means, with respect to any Aircraft or the Equipment
Notes issued in respect of such Aircraft, at any time, the lesser of (1) 75% of
the Appraised Current Market Value of such Aircraft and (2) the aggregate
outstanding principal amount of such Equipment Notes, plus accrued and unpaid
interest thereon.
The Subordination Agent may from time to time during the continuance of an
Indenture Default (and before the occurrence of a Triggering Event) commission
LTV Appraisals with respect to an Aircraft at the request of the Controlling
Party. (Intercreditor Agreement, Section 4.1(a)(iii))
PRIORITY OF DISTRIBUTIONS
So long as no Triggering Event shall have occurred, the payments in respect
of the Equipment Notes and certain other payments received on any Distribution
Date will be promptly distributed by the Subordination Agent on such
Distribution Date in the following order of priority:
Priority of Distributions
(1) To pay all accrued and unpaid Liquidity Expenses to the Liquidity
Provider and all accrued and unpaid Policy Expenses to the Policy
Provider.
(2) To pay interest accrued on the Liquidity Obligations (as determined
after giving effect to certain payments by the Policy Provider to the
Liquidity Provider) to the Liquidity Provider and interest accrued on
certain Policy Provider Obligations (as provided in the definition
thereof) to the Policy Provider, pro rata.
(3) To pay or reimburse the Liquidity Provider for the Liquidity
Obligations (other than amounts payable pursuant to clauses (1) and
(2) above and as determined after giving effect to certain payments by
the Policy Provider to the Liquidity Provider) and/or, if applicable,
to replenish each Cash Collateral Account up to the applicable
Required Amount.
(4) To pay Expected Distributions on the Class G Certificates to the
holders of Class G Certificates.
(5) To pay or reimburse the Policy Provider for any Policy Provider
Obligations (other than amounts payable pursuant to clauses (1) and
(2) above and any Excess Reimbursement Obligations).
(6) To pay Expected Distributions on the Class C Certificates to the
holders of Class C Certificates.
(7) To pay any Excess Reimbursement Obligations to the Policy Provider.
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(8) If Class D Certificates have been issued, to pay "Expected
Distributions" (to be defined in a manner equivalent to the definition
below for other Classes of Certificates) on the Class D Certificates
to the holders of Class D Certificates.
(9) To pay certain fees and expenses of the Subordination Agent and the
Trustees.
(Intercreditor Agreement, Sections 2.4 and 3.2)
"Liquidity Expenses" means all amounts owing to the Liquidity Provider
under each Liquidity Facility or certain other agreements other than any
interest accrued thereon or the amount of any drawing under a Liquidity
Facility.
"Policy Expenses" means all amounts (including amounts in respect of
expenses or indemnities) owing to the Policy Provider under the Policy Provider
Agreement or certain other agreements other than the amount of any Policy
Drawing and any interest accrued on any Policy Provider Obligation.
"Liquidity Obligations" means the obligations to reimburse or to pay the
Liquidity Provider all principal, interest, fees and other amounts owing to it
under each Liquidity Facility or certain other agreements.
"Policy Provider Obligations" means all reimbursement and other amounts,
including fees and indemnities, due to the Policy Provider under the Policy
Provider Agreement but shall not include any interest on Policy Drawings except,
if the Class G Liquidity Provider has failed to honor any Interest Drawing,
interest on any Policy Drawing made to cover the shortfall attributable to such
failure by the Class G Liquidity Provider in an amount equal to the amount of
interest that would have accrued on such Interest Drawing if such Interest
Drawing had been made at the interest rate applicable to such Interest Drawing
until such Policy Drawing has been repaid in full, up to a maximum of three such
Policy Drawings. For the avoidance of doubt, Policy Provider Obligations include
reimbursement of, and interest on, the Liquidity Obligations in respect of the
Class G and Class C Liquidity Facilities paid by the Policy Provider to the
Liquidity Provider.
"Policy Drawing" means any payment of a claim under the Policy.
"Excess Reimbursement Obligations" means, (a) in the event of any Policy
Provider Election, the portion of the Policy Provider Obligations that
represents, when added to that portion of any Liquidity Obligations that
represents, interest on the Series G Equipment Note in respect of which the
Policy Provider Election has been made in excess of 24 months of interest at the
interest rate applicable to such Equipment Note and (b) any interest on the
Liquidity Obligations in respect of the Class G and Class C Liquidity Facilities
paid by the Policy Provider to the Liquidity Provider from and after the end of
the 24-month period referred to under the caption "Description of the Policy and
the Policy Provider Agreement--The Policy--No Proceeds Drawing".
Definitions of Expected Distributions and Adjusted Expected Distributions
"Expected Distributions" means, with respect to the Certificates of any
Trust on any Distribution Date (the "Current Distribution Date"), the sum of (x)
accrued and unpaid interest on such Certificates (excluding interest, if any,
payable with respect to the Deposits relating to such Trust) and (y) the
difference between (A) the Pool Balance of such Certificates as of the
immediately preceding Distribution Date (or, if the Current Distribution Date is
the first Distribution Date, the original aggregate face amount of the
Certificates of such Trust) and (B) the Pool Balance of such Certificates as of
the Current Distribution Date calculated on the basis that (i) the principal of
the Equipment Notes held in such Trust has been paid when due (whether at stated
maturity, upon redemption, prepayment, purchase or acceleration or otherwise)
and such payments have been distributed to the holders of such Certificates and
(ii) the principal of any Equipment Notes formerly held in such Trust that have
been sold has been paid in full and such payments have been distributed to the
holders of such Certificates, but without giving effect to any reduction in the
Pool Balance as a result of any distribution attributable to Deposits occurring
after the immediately preceding Distribution Date (or, if the Current
Distribution Date is the first
75.
<PAGE> 77
Distribution Date, occurring after the initial issuance of the Certificates of
such Trust). For purposes of calculating Expected Distributions with respect to
the Certificates of any Trust, any premium paid on the Equipment Notes held in
such Trust which has not been distributed to the Certificateholders of such
Trust (other than such premium or a portion thereof applied to the payment of
interest on the Certificates of such Trust or the reduction of the Pool Balance
of such Trust) shall be added to the amount of such Expected Distributions. For
purposes of determining the priority of distributions on account of the
redemption, purchase or prepayment of all of the Equipment Notes issued pursuant
to an Indenture, clause (x) of the definition of Expected Distributions shall be
deemed to read as follows: "(x) accrued, due and unpaid interest on such
Certificates together with (without duplication) accrued and unpaid interest on
a portion of such Certificates equal to the outstanding principal amount of the
Equipment Notes held in trust and being redeemed, purchased or prepaid
(immediately prior to such redemption, purchase or prepayment), in each case
excluding interest, if any, payable with respect to the Deposits related to such
Trust."
Subject to the terms of the Intercreditor Agreement, upon the occurrence of
a Triggering Event and at all times thereafter, all funds received by the
Subordination Agent in respect of the Equipment Notes and certain other payments
will be promptly distributed by the Subordination Agent in the following order
of priority:
(1) to pay certain out-of-pocket costs and expenses actually incurred by
the Subordination Agent, the Liquidity Provider, the Policy Provider
or any Trustee or to reimburse any Certificateholder, the Liquidity
Provider or the Policy Provider in respect of payments made to the
Subordination Agent or any Trustee in connection with the protection
or realization of the value of the Equipment Notes or any Collateral
or any Trust Indenture Estate (the "Administration Expenses");
(2) to the Liquidity Provider to pay the Liquidity Expenses and to the
Policy Provider to pay the Policy Expenses;
(3) to the Liquidity Provider, to pay interest accrued on the Liquidity
Obligations (as determined after giving effect to certain payments by
the Policy Provider to the Liquidity Provider) and to the Policy
Provider to pay interest accrued on certain Policy Provider
Obligations (as provided in the definition thereof), pro rata;
(4) to the Liquidity Provider, to pay the outstanding amount of all
remaining Liquidity Obligations (as determined after giving effect to
certain payments by the Policy Provider to the Liquidity Provider)
and/or, if applicable, with respect to any particular Liquidity
Facility, unless (a) less than 65% of the aggregate outstanding
principal amount of all Equipment Notes are Performing Equipment
Notes and a Liquidity Event of Default shall have occurred and be
continuing under such Liquidity Facility or (b) a Final Drawing shall
have occurred under such Liquidity Facility, to replenish the Cash
Collateral Account with respect to such Liquidity Facility up to the
Required Amount for the related Class of Certificates (less the
amount of any repayments of Interest Drawings under such Liquidity
Facility while subclause (a) is applicable);
(5) to pay certain fees, taxes, charges and other amounts payable to the
Subordination Agent, any Trustee or any Certificateholder;
(6) to pay Adjusted Expected Distributions on the Class G Certificates to
the holders of Class G Certificates;
(7) to the Policy Provider, to pay the Policy Provider Obligations (other
than amounts payable pursuant to clauses (1), (2) and (3) above and
any Excess Reimbursement Obligations);
(8) to pay Adjusted Expected Distributions on the Class C Certificates to
the holders of Class C Certificates;
(9) to pay any Excess Reimbursement Obligations to the Policy Provider;
and
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<PAGE> 78
(10) if Class D Certificates have been issued, to pay "Adjusted Expected
Distributions" (to be defined in a manner equivalent to the
definition below for other Classes of Certificates) on the Class D
Certificates to the holders of Class D Certificates.
(Intercreditor Agreement, Section 3.3)
"Adjusted Expected Distributions" means, with respect to the Certificates
of any Trust on any Current Distribution Date, the sum of (x) accrued and unpaid
interest on such Certificates (excluding interest, if any, payable with respect
to the Deposits relating to such Trust) and (y) the greater of:
(A) the difference between (x) the Pool Balance of such Certificates as of the
immediately preceding Distribution Date (or, if the Current Distribution
Date is the first Distribution Date, the original aggregate face amount of
the Certificates of such Trust) and (y) the Pool Balance of such
Certificates as of the Current Distribution Date calculated on the basis
that (i) the principal of the Non-Performing Equipment Notes held in such
Trust has been paid in full and such payments have been distributed to the
holders of such Certificates, (ii) the principal of the Performing
Equipment Notes held in such Trust has been paid when due (but without
giving effect to any acceleration of Performing Equipment Notes) and such
payments have been distributed to the holders of such Certificates and
(iii) the principal of any Equipment Notes formerly held in such Trust that
have been sold has been paid in full and such payment has been distributed
to the holders of such Certificates, but without giving effect to any
reduction in the Pool Balance as a result of any distribution attributable
to Deposits occurring after the immediately preceding Distribution Date
(or, if the Current Distribution Date is the first Distribution Date,
occurring after the initial issuance of the Certificates of such Trust);
and
(B) the amount of the excess, if any, of (i) the Pool Balance of such Class of
Certificates as of the immediately preceding Distribution Date (or, if the
Current Distribution Date is the first Distribution Date, the original
aggregate face amount of the Certificates of such Trust), less the amount
of the Deposits for such Class of Certificates as of such preceding
Distribution Date (or, if the Current Distribution Date is the first
Distribution Date, the original aggregate amount of the Deposits for such
Class of Certificates) other than any portion of such Deposits thereafter
used to acquire Equipment Notes pursuant to the Note Purchase Agreement,
over (ii) the Aggregate LTV Collateral Amount for such Class of
Certificates for the Current Distribution Date;
provided that, until the date of the initial LTV Appraisals, clause (B) shall
not apply.
For purposes of calculating Expected Distributions or Adjusted Expected
Distributions with respect to the Certificates of any Trust, any premium paid on
the Equipment Notes held in such Trust that has not been distributed to the
Certificateholders of such Trust (other than such premium or a portion thereof
applied to the payment of interest on the Certificates of such Trust or the
reduction of the Pool Balance of such Trust) shall be added to the amount of
Expected Distributions or Adjusted Expected Distributions.
Other Definitions
"Aggregate LTV Collateral Amount" for any Class of Certificates for any
Distribution Date means the sum of the applicable LTV Collateral Amounts for
each Aircraft, minus the Pool Balance for each Class of Certificates, if any,
senior to such Class, after giving effect to any distribution of principal on
such Distribution Date with respect to such senior Class or Classes.
"LTV Collateral Amount" of any Aircraft for any Class of Certificates
means, as of any Distribution Date, the lesser of (a) the LTV Ratio for such
Class of 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 and as defined in the relevant Lease, in the case of a Leased
Aircraft, or Indenture, in the case of an Owned Aircraft, the amount of the
insurance proceeds paid to the related Loan Trustee in respect thereof to the
extent then held by such Loan Trustee (and/or on deposit in the Special Payments
Account) or payable to such Loan Trustee in respect thereof) and (b) the
outstanding principal amount
77.
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of the Equipment Notes secured by such Aircraft after giving effect to any
principal payments of such Equipment Notes on or before such Distribution Date.
"LTV Ratio" means for the Class G Certificates 57.0% and for the Class C
Certificates 62.0%.
"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.
After a Triggering Event occurs and any Equipment Note becomes a Non-Performing
Equipment Note, 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 such LTV Appraisals, the Controlling Party shall have the right to
obtain or cause to be obtained substitute LTV Appraisals (including LTV
Appraisals based upon physical inspection of such Aircraft).
"LTV Appraisal" means a fair market value appraisal (which may be a
"desktop" appraisal) performed by any Appraiser or any other nationally
recognized aircraft 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.
"Non-Performing Equipment Note" means an Equipment Note that is not a
Performing Equipment Note.
Interest Drawings under the Liquidity Facility and withdrawals from the
Cash Collateral Account, in each case in respect of interest on the Certificates
of any Trust, will be distributed to the Trustee for such Trust and drawings
under the Policy will be distributed by the Class G Trustee, notwithstanding the
priority of distributions set forth in the Intercreditor Agreement and otherwise
described herein. All amounts on deposit in the Cash Collateral Account for any
Trust that are in excess of the Required Amount will be paid to the applicable
Liquidity Provider.
VOTING OF EQUIPMENT NOTES
In the event that the Subordination Agent, as the registered holder of any
Equipment Note, receives a request for its consent to any amendment,
modification, consent or waiver under such Equipment Note or the related
Indenture (or, if applicable, the Lease, the Participation Agreement or other
related document), (i) if no Indenture Default shall have occurred and be
continuing with respect to such Indenture, the Subordination Agent shall request
direction from the Trustee of the Trust which holds each series of such
Equipment Notes and shall vote or consent in accordance with the directions of
such Trustee except that so long as the Final Distribution on the Class G
Certificates has not been made or any Policy Provider Obligations remain
outstanding and no Policy Provider Default shall have occurred and be
continuing, the Subordination Agent shall request directions from the Policy
Provider rather than the Class G Trustee with respect to the Series G Equipment
Notes held in the Class G Trust and (ii) if any Indenture Default 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,
subject to certain limitations; provided that no such amendment, modification,
consent or waiver shall; without the consent of the Liquidity Provider and the
Policy Provider, reduce the amount of rent, supplemental rent or stipulated loss
values payable by America West under any Lease or reduce the amount of principal
or interest payable by America West under any Equipment Note issued under any
Owned Aircraft Indenture. (Intercreditor Agreement, Section 9.1(b))
ADDITION OF TRUSTEE FOR CLASS D CERTIFICATES
If the Class D Certificates are issued, the Class D Trustee will become a
party to the Intercreditor Agreement. (Intercreditor Agreement, Section 9.1(c))
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THE SUBORDINATION AGENT
Wilmington Trust Company is the Subordination Agent under the Intercreditor
Agreement. America West and its affiliates may from time to time enter into
banking and trustee relationships with the Subordination Agent and its
affiliates. The Subordination Agent's address is Rodney Square North, 1100 North
Market Street, Wilmington, Delaware, Attention: Corporate Trust Administration.
The Subordination Agent may resign at any time, in which event a successor
Subordination Agent will be appointed as provided in the Intercreditor
Agreement. The Controlling Party may remove the Subordination Agent for cause as
provided in the Intercreditor Agreement. In such circumstances, a successor
Subordination Agent will be appointed as provided in the Intercreditor
Agreement. Any resignation or removal of the Subordination Agent and appointment
of a successor Subordination Agent does not become effective until acceptance or
the appointment and assumption of its obligations by the successor Subordination
Agent. (Intercreditor Agreement, Section 8.1)
79.
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DESCRIPTION OF THE AIRCRAFT AND THE APPRAISALS
THE AIRCRAFT
The Aircraft consist of five Airbus A319-132 aircraft and five Airbus
A320-232 aircraft (collectively, the "Aircraft"), all of which will be newly or
recently delivered by the manufacturer at the time that the Equipment Notes
relating thereto are issued. The Aircraft have been designed to be in compliance
with Stage 3 noise level standards, which are the most restrictive regulatory
standards currently in effect in the United States for aircraft noise abatement.
The Airbus A319-100 series aircraft is a medium range aircraft with a
seating capacity of approximately 124 passengers. The engine type utilized on
America West's A319-132 aircraft is expected to be International Aero Engines
V2524-A5 engines.
The Airbus A320-200 series aircraft is a medium range aircraft with a
seating capacity of approximately 150 passengers. The engine type utilized on
America West's A320-232 aircraft is expected to be International Aero Engines
V2527-A5 engines.
THE APPRAISALS
The table below sets forth the appraised values and certain additional
information regarding the Aircraft.
<TABLE>
<CAPTION>
MAXIMUM
PRINCIPAL APPRAISED VALUE
EXPECTED AMOUNT OF ---------------------------------------
AIRCRAFT REGISTRATION MANUFACTURER'S EQUIPMENT DELIVERY
TYPE NUMBER SERIAL NUMBER NOTES(1) MONTH(2) AVITAS AVSOLUTIONS MBA
- -------- ------------ -------------- ----------- ---------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
A319-132 N807AW 1064 $23,163,200 Aug. 1999 $35,200,000 $38,980,000 $37,900,000
A319-132 N808AW 1088 23,192,133 Sept. 1999 35,200,000 38,980,000 38,040,000
A319-132 N809AW 1111 23,299,600 Oct. 1999 35,300,000 39,250,000 38,190,000
A319-132 N810AW 1116 23,328,533 Nov. 1999 35,300,000 39,250,000 38,330,000
A319-132 N811AW 1178 23,626,133 Feb. 2000 36,000,000 39,560,000 38,760,000
A320-232 N654AW 1050 27,501,133 Aug. 1999 43,500,000 45,030,000 44,540,000
A320-232 N655AW 1075 27,538,333 Sept. 1999 43,500,000 45,030,000 44,720,000
A320-232 N656AW 1079 27,680,933 Oct. 1999 43,700,000 45,350,000 44,890,000
A320-232 N657AW 1083 27,680,933 Oct. 1999 43,700,000 45,350,000 44,890,000
A320-232 N658AW 1166 28,071,533 Feb. 2000 44,500,000 45,740,000 45,590,000
</TABLE>
- -------------------------
(1) The actual principal amount issued for an Aircraft may be less depending on
the circumstances of the financing of such Aircraft. The aggregate
principal amount of all of the Equipment Notes will not exceed the
aggregate face amount of the Certificates.
(2) Reflects the scheduled delivery month under America West's purchase
agreement with AVSA. The actual delivery date for any Aircraft may be
subject to change. See "--Deliveries of Aircraft".
The appraised values set forth in the foregoing chart were determined by
the following three independent aircraft appraisal and consulting firms: AVITAS,
AvSolutions and MBA. Each Appraiser was asked to provide its opinion as to the
appraised value of each Aircraft projected as of the scheduled delivery month of
each such Aircraft, and such opinions were furnished as of June 10, 1999, July
6, 1999 and July 13, 1999, respectively. As part of this process, all three
Appraisers performed "desk-top" appraisals without any physical inspection of
the Aircraft. The appraisals are based on various assumptions and methodologies,
which vary among the appraisals. The Appraisers have delivered letters
summarizing their respective appraisals, copies of which are annexed to this
Prospectus as Appendix II. For a discussion of the assumptions and methodologies
used in each of the appraisals, reference is hereby made to such summaries.
An appraisal is only an estimate of value, is not indicative of the price
at which an aircraft may be purchased from the manufacturer and should not be
relied upon as a measure of realizable value; the
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proceeds realized upon a sale of any Aircraft may be less than the appraised
value thereof. The value of the Aircraft in the event of the exercise of
remedies under the applicable Indenture will depend on market and economic
conditions, the availability of buyers, the condition of the Aircraft and other
similar factors. Accordingly, there can be no assurance that the proceeds
realized upon any such exercise with respect to the Equipment Notes and the
Aircraft pursuant to the applicable Indenture would be as appraised or
sufficient to satisfy in full payments due on the Equipment Notes issued
thereunder or the Certificates.
DELIVERIES OF AIRCRAFT
The Aircraft are scheduled for delivery under America West's purchase
agreement with AVSA from August 1999 to February 2000. See the table under
"--The Appraisals" for the scheduled month of delivery of each Aircraft. Under
such purchase agreement, delivery of an Aircraft may be delayed due to
"Excusable Delay," which is defined to include, among other things, acts of God,
governmental acts or failures to act, strikes or other labor troubles, inability
to procure materials, or any other cause beyond AVSA's control or not occasioned
by AVSA's fault or negligence.
The Note Purchase Agreement provides that the delivery period (the
"Delivery Period") will expire on May 30, 2000, subject to extension, in the
event that the Equipment Notes relating to all of the Aircraft (or Substitute
Aircraft in lieu thereof) have not been purchased by the Trustees on or prior to
such date due to any reason beyond the control of America West and not
occasioned by America West's fault or negligence, to the earlier of (i) the
purchase by the trustees of Equipment Notes relating to the last Aircraft (or a
Substitute Aircraft in lieu thereof) and (ii) August 31, 2000.
If delivery of any Aircraft is delayed by more than 30 days after the month
scheduled for delivery, America West has the right to replace such Aircraft with
a Substitute Aircraft, subject to certain conditions. See "--Substitute
Aircraft". If delivery of any Aircraft is delayed beyond the Delivery Period
Termination Date and America West does not exercise its right to replace such
Aircraft with a Substitute Aircraft, there will be unused Deposits that will be
distributed to Certificateholders together with accrued and unpaid interest
thereon and, under certain circumstances, a premium. See "Description of the
Deposit Agreements--Unused Deposits".
SUBSTITUTE AIRCRAFT
If the delivery date for any Aircraft is delayed more than 30 days after
the month scheduled for delivery, America West may identify for delivery a
Substitute Aircraft therefor meeting the following conditions:
Conditions Required of a Substitute Aircraft
(1) A Substitute Aircraft must be an Airbus A319-100 or A320-200 aircraft
manufactured after the Issuance Date.
(2) One or more Substitute Aircraft of the same or different types may be
substituted for one or more Aircraft of the same or different types so
long as after giving effect thereto the maximum principal amount of
Equipment Notes of each Series issued in respect of the Substitute
Aircraft under the Mandatory Economic Terms would not exceed the
maximum principal amount of the Equipment Notes of each Series that
could have been issued under the Mandatory Economic Terms in respect
of the replaced Aircraft.
(3) America West will be obligated to obtain written confirmation from
each Rating Agency that substituting such Substitute Aircraft for the
replaced Aircraft will not result in a withdrawal, suspension or
downgrading of the ratings of any Class of Certificates (without
regard to the Policy).
81.
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BRIDGE FINANCING
America West may, pursuant to the Note Purchase Agreement, initially take
delivery of an Aircraft using bridge financing. Such bridge financing would be
utilized, for example, if America West has not finalized arrangements with an
Owner Participant in connection with a leveraged lease financing. Such bridge
financing would be paid, and any lien on the bridge financed Aircraft
extinguished, within 90 days of delivery of such Aircraft and prior to the
financing of such Aircraft pursuant to the Note Purchase Agreement.
CONVERSION OPTION
America West may, pursuant to the Note Purchase Agreement, initially
finance an Aircraft as an Owned Aircraft and, within four months of such
financing, convert such Aircraft into a Leased Aircraft. Such conversion option
would be utilized or example, if America West has not finalized arrangements
with an Owner Participant in connection with a leveraged lease financing.
DESCRIPTION OF THE EQUIPMENT NOTES
The statements under this caption are summaries and do not purport to be
complete. The summaries make use of terms defined in and are qualified in their
entirety by reference to all of the provisions of the Equipment Notes, the
Indentures, the Leases, the Participation Agreements, the Trust Agreements and
the Note Purchase Agreement. Except as otherwise indicated, the following
summaries relate to the Equipment Notes, the Indentures, the Lease, the
Participation Agreement and the Trust Agreement that may be applicable to each
Aircraft.
Under the Note Purchase Agreement, America West has the option of entering
into a leveraged lease financing or a debt financing with respect to each
Aircraft. In addition, America West may, subject to certain conditions, elect to
convert a secured debt financing to a leveraged lease financing by entering into
a sale-leaseback transaction. The Note Purchase Agreement provides for the
relevant parties to enter into either (i) with respect to each Leased Aircraft,
a Participation Agreement, a Lease and an Indenture (among other documents)
relating to the financing of such Aircraft and (ii) with respect to each Owned
Aircraft, a Participation Agreement and an Owned Aircraft Indenture relating to
the financing of such Owned Aircraft. The description of such agreements in this
Prospectus is based on the forms of such agreements annexed to the Note Purchase
Agreement. Requests for the Note Purchase Agreement, including the forms of such
agreements annexed thereto, should be addressed to the Trustees.
In the case of any leveraged lease financing of an Aircraft, America West
will select an owner participant that will be the beneficial owner of such
Aircraft (the "Owner Participant"). Such Owner Participant may request revisions
to the forms of the Participation Agreement, the Lease and the Leased Aircraft
Indenture that are contemplated by the Note Purchase Agreement, so that the
terms of such agreements applicable to any particular Leased Aircraft may differ
from the description of such agreements contained in this Prospectus. In the
case of the financing of an Aircraft where America West has elected to issue
Series D Equipment Notes and to fund the sale of such Series D Equipment Notes
through the sale of Class D Certificates, America West may select purchasers of
Class D Certificates. Such Class D Certificate purchasers may request revisions
to the Leased Aircraft documents, in the case of a Leased Aircraft, or to the
forms of Participation Agreement and Owned Aircraft Indenture, in the case of an
Owned Aircraft, that are, in either case, contemplated by the Note Purchase
Agreement, so that the terms of such agreements applicable to any particular
Leased Aircraft or Owned Aircraft, as the case may be, may differ from the
description of such agreements contained in this Prospectus. In addition,
America West may structure a financing in ways other than contemplated by the
Note Purchase Agreement, such as through a "cross border" lease or a synthetic
lease (a "Special Structure"), which may require different terms in the
financing agreements. Although such changes are permitted, under the Note
Purchase Agreement, the terms of such agreements are in all cases required to
(i) except in the case of a Special Structure, contain the Mandatory Document
Terms and (ii) not vary the Mandatory Economic Terms. In addition, America West
is obligated (i) to certify to the Trustees that any such
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modifications (a) do not materially and adversely affect the Certificateholders
or the Policy Provider and (b) in the case of any Special Structure, do not
expose the Certificateholder, the Liquidity Provider or the Policy Provider to
any material additional risks beyond those to which such persons would have been
exposed absent such Special Structure. The Policy Provider must approve any such
Special Structure. America West must also obtain written confirmation from each
Rating Agency that the use of versions of such agreements modified in any
material respect will not result in a withdrawal, suspension or downgrading of
the rating of any Class of Certificates (without regard to the Policy). See
"Description of the Certificates--Obligation to Purchase Equipment Notes."
GENERAL
The Equipment Notes will be issued in two series with respect to each
Aircraft (the "Series G Equipment Notes" and the "Series C Equipment Notes,"
and, collectively, the "Equipment Notes"). America West may elect to issue a
third series of Equipment Notes with respect to an Aircraft (the "Series D
Equipment Notes"), which will be funded from sources other than this Offering.
See "Description of the Certificates--Possible Issuance of Class D
Certificates". The Equipment Notes with respect to each Leased Aircraft will be
issued under a separate Leased Aircraft Indenture between State Street Bank and
Trust Company of Connecticut, N.A., as owner trustee of a trust for the benefit
of the Owner Participant who will be the beneficial owner of such Aircraft
(each, an "Owner Trustee"), and Wilmington Trust Company, as indenture trustee
thereunder (each, a "Leased Aircraft Trustee"). The Equipment Notes with respect
to each Owned Aircraft will be issued under a separate Owned Aircraft Indenture
between America West and Wilmington Trust Company, as indenture trustee
thereunder (each, an "Owned Aircraft Trustee" and, together with the other Owned
Aircraft Trustees and the Leased Aircraft Trustees, the "Loan Trustees").
In the case of any Leased Aircraft, the related Owner Trustee will lease
such Leased Aircraft to America West pursuant to a separate Lease between such
Owner Trustee and America West. Under each Lease, America West will be obligated
to make or cause to be made rental and other payments to the related Leased
Aircraft Trustee on behalf of the related Owner Trustee, which rental and other
payments will be at least sufficient to pay in full when due all payments of
principal and interest required to be made on the Equipment Notes issued with
respect to such Leased Aircraft. The Equipment Notes issued with respect to the
Leased Aircraft are not, however, direct obligations of, or guaranteed by,
America West. America West's rental obligations under each Lease and America
West's obligations under the Equipment Notes issued with respect to each Owned
Aircraft will be general obligations of America West.
In certain circumstances described below in "--The Leases and Certain
Provisions of the Owned Aircraft Indentures--Renewal and Purchase Options,"
America West will have the right to purchase an Owner Trustee's right, title and
interest in and to the related Aircraft and to assume the related Leased
Aircraft Equipment Notes on a full recourse basis, subject to certain
conditions, which would reflect a financing contemplated by an Owned Aircraft
Indenture. Such conditions include: (i) the delivery by America West of an
assumption agreement giving effect to such assumption; and (ii) the receipt by
the related Leased Aircraft Trustee of a legal opinion to the effect that no
holder of the Certificates will be required to recognize gain or loss for U.S.
federal income tax purposes in connection with such assumption (or, if such
opinion cannot be given, America West will provide in the assumption agreement
an indemnification in favor of the holders of the Certificates in form and
substance reasonably satisfactory to the relevant Leased Aircraft Trustee). See
"Certain U.S. Federal Income Tax Consequences--Taxation of Certificateholders
Generally".
SUBORDINATION
Series C Equipment Notes issued in respect of any Aircraft will be
subordinated in right of payment to Series G Equipment Notes issued in respect
of such Aircraft and, if America West elects to issue Series D Equipment Notes,
they will be subordinated in right of payment to the Series G Equipment Notes
and the Series C Equipment Notes issued with respect to such Aircraft. On each
Equipment Note payment date, (i) payments of interest and principal due on
Series G Equipment Notes issued in respect
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of any Aircraft will be made prior to payments of interest and principal due on
Series C Equipment Notes issued in respect of such Aircraft; and (ii) if America
West elects to issue Series D Equipment Notes, payments of interest and
principal due on such Series C Equipment Notes will be made prior to payments of
interest and principal due on Series D Equipment Notes issued in respect of such
Aircraft.
PRINCIPAL AND INTEREST PAYMENTS
Subject to the provisions of the Intercreditor Agreement, interest paid on
the Equipment Notes held in each Trust will be passed through to the
Certificateholders of such Trust on the dates and at the rate per annum set
forth on the cover page of this Prospectus with respect to Certificates issued
by such Trust (subject to change as provided in the Registration Rights
Agreement) until the final expected Regular Distribution Date for such Trust.
Subject to the provisions of the Intercreditor Agreement, principal paid on the
Equipment Notes held in each Trust will be passed through to the
Certificateholders of such Trust in scheduled amounts on the dates set forth
herein until the final expected Regular Distribution Date for such Trust.
Interest will be payable on the unpaid principal amount of each Equipment
Note at the rate applicable to such Equipment Note on January 2 and July 2 in
each year, commencing on the first such date to occur after initial issuance
thereof. Such interest will be computed on the basis of a 360-day year of twelve
30-day months. Under certain circumstances described in "The Exchange
Offer--General", the interest rates for the Equipment Notes will be increased
(or following any such increase, decreased) to the extent described therein.
Scheduled principal payments on the Equipment Notes will be made on January
2 and July 2 in certain years, commencing on or after January 2, 2000. See
"Description of the Certificates--Pool Factors" for a discussion of the
scheduled payments of principal of the Equipment Notes and possible revisions
thereto.
If any date scheduled for any payment of principal, premium (if any) or
interest with respect to the Equipment Notes is not a Business Day, such payment
will be made on the next succeeding Business Day without any additional
interest.
REDEMPTION
Event of Loss
If an Event of Loss occurs with respect to any Aircraft and such Aircraft
is not replaced by America West under the related Lease (in the case of a Leased
Aircraft) or under the related Owned Aircraft Indenture (in the case of an Owned
Aircraft), the Equipment Notes issued with respect to such Aircraft will be
redeemed, in whole, in each case at a price equal to the aggregate unpaid
principal amount thereof, together with accrued interest thereon to, but not
including, the date of redemption, but without premium, on a Special
Distribution Date. (Indentures, Section 2.10(a))
America West Optional Redemptions
If America West exercises its right to terminate a Lease under Section 9 of
any Lease because the related Aircraft has become obsolete or surplus to the
Company's needs, the Equipment Notes relating to such Aircraft will be redeemed,
in whole, on a Special Distribution Date at a price equal to the aggregate
unpaid principal amount thereof, together with accrued interest thereon to, but
not including, the date of redemption, plus a Make-Whole Premium. (Leased
Aircraft Indentures, Section 2. 10 (b)) See "--The Leases and Certain Provisions
of the Owned Aircraft Indentures--Lease Termination".
All of the Equipment Notes issued with respect to a Leased Aircraft may be
redeemed prior to maturity as part of a refunding or refinancing thereof under
Section 11 of the applicable Participation Agreement, and all of the Equipment
Notes issued with respect to an Owned Aircraft may be redeemed prior to maturity
at any time at the option of America West, in each case at a price equal to the
aggregate unpaid principal thereof, together with accrued interest thereon to,
but not including, the date of
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redemption, plus, in the case of any series of Equipment Notes, a Make-Whole
Premium. (Indentures, Section 2.11) If notice of such a redemption shall have
been given in connection with a refinancing of Equipment Notes with respect to a
Leased Aircraft, such notice may be revoked not later than three days prior to
the proposed redemption date. (Leased Aircraft Indentures, Section 2.12)
In addition, under certain Leases all of the Equipment Notes issued with
respect to such Leases may be redeemed prior to maturity with a Make-Whole
Premium on a Special Distribution Date in connection with America West's
exercise of certain options or elections relating to the purchase of the
Aircraft subject to such Leases under certain circumstances. See "The Leases and
Certain Provisions of the Owned Aircraft Indentures--Renewal and Purchase
Options".
If, with respect to a Leased Aircraft, any of those certain events listed
below occur, then, in each case all, but not less than all, of the Equipment
Notes issued with respect to such Leased Aircraft may be purchased by the Owner
Trustee or Owner Participant on the applicable purchase date at a price equal to
the aggregate unpaid principal thereof, together with accrued and unpaid
interest thereon to, but not including, the date of purchase, but without any
premium (provided that a Make-Whole Premium shall be payable if such Equipment
Notes are to be purchased pursuant to clause (1) below when a Lease Event of
Default shall have occurred and been continuing for fewer than 180 days).
(Leased Aircraft Indentures, Section 2.13)
Events Triggering Right to Redemption
(1) One or more Lease Events of Default shall have occurred and be
continuing.
(2) In the event of a bankruptcy proceeding involving America West, (a)
during the Section 1110 Period, the trustee in such proceeding or
America West does not agree to perform its obligations under the
related Lease or (b) at any time after agreeing to perform such
obligations, such trustee or America West ceases to perform such
obligations such that the stay period applicable under the U.S.
Bankruptcy Code comes to an end.
(3) The Equipment Notes with respect to such Aircraft have been
accelerated or the Leased Aircraft Trustee with respect to such
Equipment Notes takes action or notifies the applicable Owner Trustee
that it intends to take action to foreclose the lien of the related
Leased Aircraft Indenture or otherwise commence the exercise of any
significant remedy under such Indenture or the related Lease.
America West as owner of the Owned Aircraft has no comparable right under
the Owned Aircraft Indentures to purchase the Equipment Notes under such
circumstances.
Certain Definitions
"Make-Whole Premium" means, with respect to any Equipment Note, an amount
(as determined by an independent investment banker of national standing selected
by America West) equal to the excess, if any, determined under the following
calculation:
Calculation of Make-Whole Premium
(1) the present value of the remaining scheduled payments of principal and
interest to maturity of such Equipment Note computed by discounting
such payments on a semiannual basis on each Payment Date (assuming a
360-day year of twelve 30-day months) using a discount rate equal to
the Treasury Yield, minus
(2) the outstanding principal amount of such Equipment Note plus accrued
interest to the date of determination.
For purposes of determining the Make-Whole Premium, "Treasury Yield" means,
at the date of determination with respect to any Equipment Note, the interest
rate (expressed as a decimal and, in the case of United States Treasury bills,
converted to a bond equivalent yield) determined to be the per
85.
<PAGE> 87
annum rate equal to the semiannual yield to maturity for United States Treasury
securities maturing on the Average Life Date of such Equipment Note 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 the public securities markets, (i) one maturing
as close as possible to, but earlier than, the Average Life Date of such
Equipment Note and (ii) the other maturing as close as possible to, but later
than, the Average Life Date of such Equipment Note, 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 Equipment
Note is reported in the most recent H.15(519), such weekly average yield to
maturity as published in such H.15(519). "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 shall be the third Business Day prior to
the applicable payment or redemption date and the "most recent H.15(549)" means
the H.15(519) published prior to the close of business on the third Business Day
prior to the applicable payment or redemption date.
"Average Life Date" for any Equipment Note shall be the date which follows
the time of determination by a period equal to the Remaining Weighted Average
Life of such Equipment Note. "Remaining Weighted Average Life" on a given date
with respect to any Equipment Note shall be the number of days equal to the
quotient obtained under the following calculation:
Calculation of Remaining Weighted Average Life
- ----------------------------------------------------
(1) Divide the sum of each of the products obtained by multiplying
(a) the amount of each then remaining scheduled payment of principal of
such Equipment Note, by
(b) the number of days from and including such determination date to
but excluding the date on which such payment of principal is
scheduled to be made, by
(2) the then outstanding principal amount of such Equipment Note.
SECURITY
The Equipment Notes issued with respect to each Leased Aircraft will be
secured by all of the following items:
Security for Equipment Notes
- -------------------------------
(1) An assignment by the related Owner Trustee to the related Leased
Aircraft Trustee of such Owner Trustee's rights, except for certain
limited rights, under the Lease with respect to the related Aircraft,
including the right to receive payments of rent thereunder.
(2) A mortgage to such Leased Aircraft Trustee of such Aircraft, subject
to the rights of America West under such Lease.
(3) An assignment to such Leased Aircraft Trustee of certain of such Owner
Trustee's rights under the purchase agreement between America West and
the related manufacturer.
Prior to an Indenture Default, the Owner Participant in respect of any
Leased Aircraft will have the right, to the exclusion of the related Loan
Trustee, to approve as satisfactory counsel furnishing legal opinions,
appraisers and accountants. Also, such Owner Participant will have the right, to
the exclusion of the related Loan Trustee, to approve the identity of permitted
sublessees (not otherwise permitted by the related Lease), and to approve the
forms of certain documentation required for the substitution of Aircraft
following an event of loss thereof.
Unless and until the related Leased Aircraft Trustee has foreclosed upon
the Lien of the related Leased Aircraft Indenture, the Leased Aircraft Trustee
may not exercise the balance of the rights of the
86.
<PAGE> 88
Owner Trustee under the related Lease (such as the amendment or modification of
such Lease) without the concurrence of such Owner Trustee. However, in all
instances, the right of the Leased Aircraft Trustee to exercise remedies under
Section 15 of the related Lease are rights exclusive to the Leased Aircraft
Trustee. The assignment by the Owner Trustee to the Leased Aircraft Trustee of
its rights under the related Lease will also exclude certain rights of such
Owner Trustee and the related Owner Participant to receive indemnification by
America West for certain matters, insurance proceeds payable to such Owner
Trustee in its individual capacity or to such Owner Participant under public
liability insurance maintained by America West under such Lease or by such Owner
Trustee or such Owner Participant, insurance proceeds payable to such Owner
Trustee in its individual capacity or to such Owner Participant under certain
casualty insurance maintained by such Owner Trustee or such Owner Participant
under such Lease and certain reimbursement payments made by America West to such
Owner Trustee. (Leased Aircraft Indenture, Granting Clause and Section 5.02) The
Equipment Notes are not cross-collateralized, and, consequently, the Equipment
Notes issued in respect of any one Aircraft will not be secured by any of the
other Aircraft or replacement aircraft therefor (as described in "--The Leases
and Certain Provisions of the Owned Aircraft Indentures--Events of Loss") or the
Leases related thereto.
The Equipment Notes issued with respect to each Owned Aircraft will be
secured by (i) a mortgage to the Owned Aircraft Trustee of such Aircraft and
(ii) an assignment to the Owned Aircraft Trustee of certain of America West's
rights under its purchase agreement with the related manufacturer.
Funds, if any, held from time to time by the Loan Trustee with respect to
any Aircraft, including funds held as the result of an Event of Loss to such
Aircraft or, in the case of a Leased Aircraft, termination of the Lease, if any,
relating thereto, will be invested and reinvested by such Loan Trustee, at the
direction of America West (except in the case of certain Indenture Defaults), in
investments described in the related Indenture. (Indentures, Section 5.09)
LOAN TO VALUE RATIOS OF EQUIPMENT NOTES
The following tables set forth examples of loan to Aircraft value ratios
for the Equipment Notes issued in respect of Aircraft as of the Regular
Distribution Dates that occur after the scheduled date of original issuance of
such Equipment Notes, assuming that the Equipment Notes in the maximum principal
amount are issued in respect of each such Aircraft. These examples were utilized
by America West in preparing the Assumed Amortization Schedule, although such
schedule may not be applicable in the case of any particular Aircraft. See
"Description of the Certificates Pool Factors." The LTV was obtained by dividing
(i) the outstanding balance (assuming no payment default) of such Equipment
Notes determined immediately after giving effect to the payments scheduled to be
made on each such Regular Distribution Date by (ii) the assumed value (the
"Assumed Aircraft Value") of the Aircraft securing such Equipment Notes.
The following tables are based on the assumption that the value of each
Aircraft set forth opposite the initial Regular Distribution Date included in
each table depreciates by approximately 3% of the initial appraised-value per
year for the first 15 years after delivery of such Aircraft, by approximately 4%
of the initial appraised value per year thereafter (the "Depreciation
Assumption"). Other rates or methods of depreciation would result in materially
different loan to Aircraft value ratios, and no assurance can be given (i) that
the depreciation rates and method assumed for the purposes of the tables are the
ones most likely to occur or (ii) as to the actual future value of any Aircraft.
Thus the tables should not be considered a forecast or prediction of expected or
likely loan to Aircraft value ratios, but simply a mathematical calculation
based on one set of assumptions.
87.
<PAGE> 89
<TABLE>
<CAPTION>
A319-132 A320-232
--------------------------------------- ---------------------------------------
EQUIPMENT NOTE ASSUMED LOAN TO EQUIPMENT NOTE ASSUMED LOAN TO
OUTSTANDING AIRCRAFT VALUE OUTSTANDING AIRCRAFT VALUE
DATE BALANCE VALUE RATIO BALANCE VALUE RATIO
- ---- -------------- ---------- ------- -------------- ---------- -------
(MILLIONS) (MILLIONS) (MILLIONS) (MILLIONS)
<S> <C> <C> <C> <C> <C> <C>
July 2, 2000 $23.63 $38.11 62.0% $28.07 $45.28 62.0%
July 2, 2001 22.41 36.96 60.6 27.23 43.92 62.0
July 2, 2002 21.75 35.82 60.7 26.04 42.56 61.2
July 2, 2003 21.00 34.68 60.6 24.70 41.20 60.0
July 2, 2004 19.88 33.53 59.3 23.25 39.84 58.4
July 2, 2005 18.67 32.39 57.7 21.94 38.49 57.0
July 2, 2006 17.81 31.25 57.0 21.16 37.13 57.0
July 2, 2007 16.77 30.10 55.7 19.92 35.77 55.7
July 2, 2008 16.00 28.96 55.3 19.02 34.41 55.3
July 2, 2009 15.24 27.82 54.8 18.11 33.05 54.8
July 2, 2010 14.48 26.67 54.3 17.21 31.69 54.3
July 2, 2011 13.34 25.53 52.2 15.85 30.34 52.2
July 2, 2012 12.57 24.39 51.6 14.94 28.98 51.6
July 2, 2013 11.43 23.25 49.2 13.58 27.62 49.2
July 2, 2014 10.29 22.10 46.5 12.22 26.26 46.6
July 2, 2015 8.76 20.96 41.8 10.41 24.90 41.8
July 2, 2016 7.24 19.43 37.3 8.42 23.09 36.4
July 2, 2017 5.06 17.91 28.3 6.20 21.28 29.1
July 2, 2018 2.64 16.39 16.1 3.23 19.47 16.6
July 2, 2019 0.00 0.00 NA 0.00 0.00 NA
</TABLE>
LIMITATION OF LIABILITY
The Equipment Notes issued with respect to the Leased Aircraft are not
direct obligations of, or guaranteed by, America West, any Owner Participant or
any Owner Trustee in its individual capacity. None of the Owner Trustees, the
Owner Participants or the Leased Aircraft Trustees, or any affiliates thereof,
will be personally liable to any holder of an Equipment Note or, in the case of
the Owner Trustees and the Owner Participants, to the Leased Aircraft Trustees
for any amounts payable under the Equipment Notes or, except as provided in each
Leased Aircraft Indenture, for any liability under such Leased Aircraft
Indenture. All payments of principal of, premium, if any, and interest on the
Equipment Notes issued with respect to any Leased Aircraft (other than payments
made in connection with (x) an optional redemption or purchase of Equipment
Notes issued with respect to a Leased Aircraft by the related Owner Trustee or
the related Owner Participant or (y) the election by an Owner Trustee to retain
title to an Aircraft subject to a termination for obsolescence) will be made
only from the assets subject to the lien of the Indenture with respect to such
Leased Aircraft or the income and proceeds received by the related Leased
Aircraft Trustee therefrom (including rent payable by America West under the
Lease with respect to such Leased Aircraft).
The Equipment Notes issued with respect to the Owned Aircraft will be
direct obligations of America West.
Except as otherwise provided in the Indentures, each Owner Trustee and each
Loan Trustee, in its individual capacity, will not be answerable or accountable
under the Indentures or under the Equipment Notes under any circumstances except
for its own willful misconduct or gross negligence. None of the Owner
Participants will have any duty or responsibility under any of the Leased
Aircraft Indentures or the Equipment Notes to the Leased Aircraft Trustees or to
any holder of any Equipment Note.
88.
<PAGE> 90
INDENTURE DEFAULTS, NOTICE AND WAIVER
A list of Indenture Defaults is set forth below:
Indenture Defaults
- -------------------
(1) In the case of a Leased Aircraft Indenture, the occurrence of any
Lease Event of Default under the related Lease.
(2) The failure by the related Owner Trustee (other than as a result of a
Lease Default or Lease Event of Default), in the case of a Leased
Aircraft Indenture, or America West, in the case of an Owned Aircraft
Indenture, to pay any interest or principal or premium, if any, when
due, under such Indenture or under any Equipment Note issued
thereunder that continues for more than ten Business Days, in the case
of principal, interest or Make-Whole Premium, and, in all other cases,
30 days after the relevant Owner Trustee, Owner Participant or America
West, as the case may be, receives written demand from the related
Loan Trustee or holder of an Equipment Note.
(3) The failure by the related Owner Participant or the related Owner
Trustee (in its individual capacity), in the case of a Leased Aircraft
Indenture, or America West, in the case of an Owned Aircraft
Indenture, to discharge certain liens that continue after notice and
specified cure periods.
(4) Any representation or warranty made by the related Owner Trustee,
Owner Participant or America West, as the case may be, in the related
Operative Agreements, or certain related documents furnished to the
Loan Trustee pursuant thereto being false or incorrect in any material
respect when made that continues to be material and adverse to the
interests of the Loan Trustee or Note Holders and remains unremedied
after notice and specified cure periods.
(5) Failure by America West or the related Owner Trustee or Owner
Participant to perform or observe in any material respect any covenant
or obligation for the benefit of the Loan Trustee or holders of
Equipment Notes under such Indenture or certain related documents that
continues after notice and specified cure periods.
(6) The registration of the related Aircraft ceasing to be effective as a
result of the Owner Participant (in the case of a Leased Aircraft) or
America West (in the case of an Owned Aircraft) not being a citizen of
the United States, as defined in the Transportation Code (subject to a
cure period).
(7) With respect to the Owned Aircraft, the lapse or cancellation of
insurance required under the Owned Aircraft Indenture.
(8) The occurrence of certain events of bankruptcy, reorganization or
insolvency of the related Owner Trustee or Owner Participant (in the
case of a Leased Aircraft) or America West (in the case of the Owned
Aircraft). (Leased Aircraft Indentures, Section 4.02; Owned Aircraft
Indentures, Section 5.01)
There will not be cross-default provisions in the Indentures or in the Leases
(unless, in the case of a Lease, otherwise agreed between an Owner Participant
and America West). Consequently, events resulting in an Indenture Default under
any particular Indenture may or may not result in an Indenture Default occurring
under any other Indenture, and a Lease Event of Default under any particular
Lease may or may not constitute a Lease Event of Default under any other Lease.
Equity Cure Rights
If America West fails to make any semiannual basic rental payment due under
any Lease, within a specified period after such failure the applicable Owner
Trustee may furnish to the Leased Aircraft Trustee the amount due on the
Equipment Notes issued with respect to the related Leased Aircraft,
89.
<PAGE> 91
together with any interest thereon on account of the delayed payment thereof, in
which event the Leased Aircraft Trustee and the holders of outstanding Equipment
Notes issued under such Indenture may not exercise any remedies otherwise
available under such Indenture or such Lease as the result of such failure to
make such rental payment, unless such Owner Trustee has previously cured three
or more immediately preceding semiannual basic rental payment defaults or, in
total, six or more previous semiannual basic rental payment defaults. The
applicable Owner Trustee also may cure certain other defaults by America West in
the performance of its obligations under any Lease that can be cured with the
payment of money. (Leased Aircraft Indentures, Section 4.03)
The holders of a majority in principal amount of the outstanding Equipment
Notes issued with respect to any Aircraft, by notice to the Loan Trustee, may on
behalf of all the holders waive any existing default and its consequences under
the Indenture with respect to such Aircraft, except a default in the payment of
the principal of, or premium or interest on any such Equipment Notes or a
default in respect of any covenant or provision of such Indenture that cannot be
modified or amended without the consent of each holder of Equipment Notes
affected thereby. (Leased Aircraft Indentures, Section 4.08; Owned Aircraft
Indentures, Section 5.06)
REMEDIES
If an Indenture Default occurs and is continuing under an Indenture, the
related Loan Trustee or the holders of a majority in principal amount of the
Equipment Notes outstanding under such Indenture may, subject to the applicable
Owner Participant's or Owner Trustee's right to cure, as discussed above,
declare the principal of all such Equipment Notes issued thereunder immediately
due and payable, together with all accrued but unpaid interest thereon, provided
that in the event of a reorganization proceeding involving America West
instituted under Chapter 11 of the U.S. Bankruptcy Code, if no other Lease Event
of Default and no other Indenture Default (other than the failure to pay the
outstanding amount of the Equipment Notes which by such declaration shall have
become payable) exists at any time after the consummation of such proceeding,
such declaration will be automatically rescinded without any further action on
the part of any holder of Equipment Notes. The holders of a majority in
principal amount of Equipment Notes outstanding under such Indenture may rescind
any such declaration at any time before the judgment or decree for the payment
of the money so due shall be entered if (i) there has been paid to the related
Loan Trustee an amount sufficient to pay all principal, interest, and premium,
if any, on any such Equipment Notes, to the extent such amounts have become due
otherwise than by such declaration of acceleration and (ii) all other Indenture
Defaults and incipient Indenture Defaults under such Indenture have been cured.
(Leased Aircraft Indentures, Section 4.04(b); Owned Aircraft Indentures, Section
5.02(b))
Each Indenture provides that if an Indenture Default under such Indenture
has occurred and is continuing, the related Loan Trustee may exercise certain
rights or remedies available to it under such Indenture or under applicable law,
including, in the case of a Leased Aircraft, if the corresponding Lease has been
declared in default, one or more of the remedies under such Lease with respect
to the Aircraft subject to such Lease. In the case of a Leased Aircraft, if an
Indenture Default arises solely by reason of one or more events or circumstances
which constitute a Lease Event of Default, the related Leased Aircraft Trustee's
right to exercise remedies under a Leased Aircraft Indenture is subject, with
certain exceptions, to its having proceeded to exercise one or more of the
dispossessory remedies under the Lease with respect to such Leased Aircraft;
provided that the requirement to exercise one or more of such remedies under
such Lease shall not apply in circumstances where such exercise has been
involuntarily stayed or prohibited by applicable law or court order for a
continuous period in excess of 60 days or such other period as may be specified
in Section 1110(a)(1)(A) of the U.S. Bankruptcy Code (plus an additional period,
if any, resulting from (i) the trustee or debtor-in-possession in such
proceeding agreeing to perform its obligations under such Lease with the
approval of the applicable court and its continuous performance of such Lease
under Section 1110(a)(1)(A-B) of the U.S. Bankruptcy Code or such Leased
Aircraft Trustee's consent to an extension of such period, (ii) such Leased
Aircraft Trustee's failure to give any requisite notice, or (iii) America West's
assumption of such Lease with the approval of the
90.
<PAGE> 92
relevant court and its continuous performance of the Lease as so assumed). See
"--The Leases and Certain Provisions of the Owned Aircraft Indentures--Events of
Default under the Leases". Such remedies may be exercised by the related Leased
Aircraft Trustee to the exclusion of the related Owner Trustee, subject to
certain conditions specified in such Indenture, and of America West, subject to
the terms of such Lease. Any Aircraft sold in the exercise of such remedies will
be free and clear of any rights of those parties, including the rights of
America West under the Lease with respect to such Aircraft; provided that no
exercise of any remedies by the related Leased Aircraft Trustee may affect the
rights of America West under any Lease unless a Lease Event of Default has
occurred and is continuing. (Leased Aircraft Indentures, Section 4.04; Leases,
Section 15) The Owned Aircraft Indentures will not contain such limitations on
the Owned Aircraft Trustee's ability to exercise remedies upon an Indenture
Default under an Owned Aircraft Indenture.
If the Equipment Notes issued in respect of one Aircraft are in default,
the Equipment Notes issued in respect of the other Aircraft may not be in
default, and, if not, no remedies will be exercisable under the applicable
Indentures with respect to such other Aircraft.
Section 1110 of the U.S. Bankruptcy Code
Section 1110 of the U.S. Bankruptcy Code provides that the right of
lessors, conditional vendors and holders of security interests with respect to
"equipment" (as defined in Section 1110 of the U.S. Bankruptcy Code) to take
possession of such equipment in compliance with the provisions of a lease,
conditional sale contract or security agreement, as the case may be, is not
affected by the following events:
Events That Do Not Affect Rights with Respect to Equipment
(1) The automatic stay provision of the U.S. Bankruptcy Code, which
provision enjoins repossessions by creditors for the duration of the
reorganization period.
(2) The provision of the U.S. Bankruptcy Code allowing the trustee in
reorganization to use property of the debtor during the reorganization
period.
(3) Section 1129 of the U.S. Bankruptcy Code (which governs the
confirmation of plans of reorganization in Chapter 11 cases).
(4) Any power of the bankruptcy court to enjoin a repossession.
Section 1110 provides, however, that the right of a lessor, conditional vendor
or holder of a security interest to take possession of an aircraft in the event
of an event of default may not be exercised for 60 days following the date of
commencement of the reorganization proceedings (unless specifically permitted by
the bankruptcy court) and may not be exercised at all if, within such 60-day
period (or such longer period consented, to by the lessor, conditional vendor or
holder of a security interest), the trustee in reorganization agrees to perform
the debtor's obligations that become due on or after such date and cures all
existing defaults (other than defaults resulting solely from the financial
condition, bankruptcy, insolvency or reorganization of the debtor). "Equipment"
is defined in Section 1110 of the U.S. Bankruptcy Code, in part, as "an
aircraft, aircraft engine, propeller, appliance, or spare part (as defined in
section 40102 of title 49 of the U.S. Code) that is subject to a security
interest granted by, leased to, or conditionally sold to a debtor that is a
citizen of the United States (as defined in section 40102 of title 49 of the
U.S. Code) holding an air carrier operating certificate issued by the Secretary
of Transportation pursuant to chapter 447 of title 49 of the U.S. Code for
aircraft capable of carrying 10 or more individuals or 6,000 pounds or more of
cargo."
Opinion of America West Counsel
It is a condition to the Trustee's obligation to purchase Equipment Notes
with respect to each Aircraft that outside counsel to America West, which is
expected to be Vedder, Price, Kaufman & Kammholz, provide its opinion to the
Trustees that (i) if such Aircraft is a Leased Aircraft, the Owner Trustee, as
lessor under the Lease for such Aircraft, and the Leased Aircraft Trustee, as
assignee of such
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Owner Trustee's rights under such Lease pursuant to the related Leased Aircraft
Indenture, will be entitled to the benefits of Section 1110 of the U.S.
Bankruptcy Code with respect to the airframe and engines comprising such
Aircraft or (ii) if such Aircraft is an Owned Aircraft, the Owned Aircraft
Trustee will be entitled to the benefits of Section 1110 with respect to the
airframe and engines comprising such Owned Aircraft, in each case so long as
America West continues to be a "citizen of the United States" as defined in
Section 40102 of title 49 of the U.S. Code holding an air carrier operating
certificate issued by the Secretary of Transportation pursuant to chapter 447 of
title 49 of the U.S. Code for aircraft capable of carrying 10 or more
individuals or 6,000 pounds or more of cargo. For a description of certain
limitations on the Loan Trustee's exercise of rights contained in the Indenture,
see "--Indenture Defaults, Notice and Waiver".
The opinion of Vedder, Price, Kaufman & Kammholz will not address the
possible replacement of an Aircraft after an Event of Loss in the future, the
consummation of which is conditioned upon the contemporaneous delivery of an
opinion of counsel to the effect that the related Loan Trustee will be entitled
to Section 1110 benefits with respect to such replacement unless there was,
subsequent to the delivery of such Aircraft, a change in law or court
interpretation that results in Section 1110 benefits not being available. See
"--The Leases and Certain Provisions of the Owned Aircraft Indentures--Events of
Loss". The opinion of Vedder, Price, Kaufman & Kammholz will also not address
the availability of Section 1110 with respect to any possible sublessee of a
Leased Aircraft subleased by America West or to any possible lessee of an Owned
Aircraft if it is leased by America West.
During 1998, the U.S. District Court for the District of Colorado issued
two opinions arising from the bankruptcy proceedings of Western Pacific
Airlines, Inc. relating to Section 1110. The decisions held that, once an
airline debtor reaffirms its obligations and cures its defaults under an
aircraft lease within the prescribed period in accordance with Section 1110 of
the U.S. Bankruptcy Code, the lessor under such lease is not entitled to
repossess the aircraft under Section 1110 if the airline subsequently defaults
under such lease. The opinion of Vedder, Price, Kaufman & Kammholz will state
that, in such firm's opinion, the District Court holding is erroneous because it
is inconsistent with the overriding purpose of Section 1110 to protect lessors
of, and creditors served by, qualifying aircraft against being stayed from
exercising their rights while defaults under their leases or financing
agreements remain uncured. Certain legislation amending the U.S. Bankruptcy
Code, including Section 1110, is currently under consideration by Congress. The
amendments to Section 1110, if enacted, would statutorily override the Western
Pacific decisions. Appeals of such decisions were dismissed without
consideration of the substantive issues.
Reimbursement of Loan Trustee Expenses
If an Indenture Default under any Indenture occurs and is continuing, any
sums held or received by the related Loan Trustee, subject to certain limited
exceptions, may be applied to reimburse such Loan Trustee for any tax, expense
or other loss incurred by it and to pay any other amounts due to such Loan
Trustee prior to any payments to holders of the Equipment Notes issued under
such Indenture. (Indentures, Sections 3.03 and 3.04)
Bankruptcy or Like Proceedings of an Owner Participant
In the event of bankruptcy, insolvency, receivership or like proceedings
involving an Owner Participant, it is possible that, notwithstanding that the
applicable Leased Aircraft is owned by the related Owner Trustee in trust, such
Leased Aircraft and the related Lease and Equipment Notes might become part of
such proceeding. In such event, payments under such Lease or on such Equipment
Notes might be interrupted and the ability of the related Leased Aircraft
Trustee to exercise its remedies under the related Leased Aircraft Indenture
might be restricted, although such Leased Aircraft Trustee would retain its
status as a secured creditor in respect of the related Lease and the related
Leased Aircraft.
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MODIFICATION OF INDENTURES AND LEASES
Without the consent of holders of a majority in principal amount of the
Equipment Notes outstanding under any Indenture, the provisions of such
Indenture and any related Lease, Participation Agreement or Trust Agreement may
not be amended or modified, except to the extent indicated below.
Subject to certain limitations, certain provisions of any Leased Aircraft
Indenture, and of the Lease, the Participation Agreement and the Trust Agreement
related thereto, may be amended or modified by the parties thereto without the
consent of any holders of the Equipment Notes outstanding under such Indenture.
In the case of each Lease, such provisions include, among others, provisions
relating to (i) the return to the related Owner Trustee of the related Leased
Aircraft at the end of the term of such Lease (except to the extent that such
amendment would affect the rights or exercise of remedies under the Lease) and
(ii) the renewal of such Lease and the option of America West to purchase the
related Leased Aircraft so long as the same would not adversely affect the
holders of any Equipment Notes. (Leased Aircraft Indentures, Section 9.01(a)) In
addition, any Indenture may be amended without the consent of the holders of
Equipment Notes to, among other things, cure any defect or inconsistency in such
Indenture or the Equipment Notes issued thereunder, provided that such change
does not adversely affect the interests of any such holder. (Leased Aircraft
Indentures, Section 9.01(c); Owned Aircraft Indentures, Section 10.01)
Without the consent of the holder of each Equipment Note outstanding under
any Indenture affected thereby, no amendment or modification of such Indenture
may among other things have the effect noted below:
Amendments of Modifications of an Indenture Requiring Consent of Each
Holder of Equipment Notes
(1) Reduce the principal amount of, or premium, if any, or interest
payable on, any Equipment Notes issued under such Indenture or change
the date on which any principal or premium, if any, or interest is due
and payable.
(2) Permit the creation of any security interest with respect to the
property subject to the lien of such Indenture, except as provided in
such Indenture, or deprive any holder of an Equipment Note issued
under such Indenture of the benefit of the lien of such Indenture upon
the property subject thereto.
(3) Reduce the percentage in principal amount of outstanding Equipment
Notes issued under such Indenture necessary to modify or amend any
provision of such Indenture or to waive compliance therewith. (Leased
Aircraft Indentures, Section 9.01 (b); Owned Aircraft Indentures,
Section 10.01(a))
INDEMNIFICATION
America West will be required to indemnify each Loan Trustee, each Owner
Participant, each Owner Trustee, each Liquidity Provider, the Policy Provider,
the Subordination Agent, the Escrow Agent and each Trustee, but not the holders
of Certificates, for certain losses, claims and other matters. America West will
be required under certain circumstances to indemnify each Owner Participant
against the loss of depreciation deductions and certain other benefits allowable
for certain income tax purposes with respect to the related Leased Aircraft.
Each Owner Participant will be required to indemnify the related Loan Trustee
and the holders of the Equipment Notes issued with respect to the Leased
Aircraft in which such Owner Participant has an interest for certain losses that
may be suffered as a result of the failure of such Owner Participant to
discharge certain liens or claims on or against the assets subject to the lien
of the related Indenture.
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THE LEASES AND CERTAIN PROVISIONS OF THE OWNED AIRCRAFT INDENTURES
Each Leased Aircraft will be leased to America West by the relevant Owner
Trustee under the relevant lease agreement (each, a "Lease"). Each Owned
Aircraft will be owned by America West.
Lease Term Rentals and Payments
Each Leased Aircraft will be leased separately by the relevant Owner
Trustee to America West for a term commencing on the date on which the Aircraft
is acquired by the Owner Trustee and expiring on a date not earlier than the
latest maturity date of the relevant Equipment Notes, unless terminated prior to
the originally scheduled expiration date as permitted by the applicable Lease.
The semiannual basic rent payment under each Lease is payable by America West on
each related Lease Payment Date (or, if such day is not a Business Day, on the
next Business Day), and will be assigned by the Owner Trustee under the
corresponding Leased Aircraft Indenture to provide the funds necessary to make
scheduled payments of principal and interest due from the Owner Trustee on the
Equipment Notes issued under such Indenture. In certain cases, the semiannual
basic rent payments under the Leases may be adjusted, but each Lease provides
that under no circumstances will scheduled rent payments by America West be less
than the scheduled payments on the related Equipment Notes. In addition, the
amount of basic rent will be increased in an amount necessary to pay additional
interest due on the Equipment Notes on the relevant Lease Payment Date as a
result of any increase in the rate of interest on the Equipment Notes as
required by the terms of the Registration Rights Agreement. Any balance of each
such semiannual basic rent payment under each Lease, after payment of amounts
due on the Equipment Notes issued under the Indenture corresponding to such
Lease, will be paid over to the related Owner Trustee. (Leases, Section 3;
Leased Aircraft Indentures, Section 3.01)
"Lease Payment Date" means, with respect to each Lease, January 2 or July 2
during the term of such Lease.
Semiannual payments of interest on the Equipment Notes issued by America
West under an Owned Aircraft Indenture are payable each January 2 and July 2
commencing on the first such date after issuance thereof. Semiannual payments of
principal under the Equipment Notes issued by America West under an Owned
Aircraft Indenture are payable on January 2 and July 2 in certain years
commencing on or after January 2, 2000. The amount of a semiannual payment of
interest or principal will be increased in an amount equal to any increase in
the amount of interest due on such Equipment Notes on the relevant payment date
as a result of any increase in the rate of interest on such Equipment Notes as
required by the terms of the Registration Rights Agreement.
Net Lease; Maintenance
America West is obligated under each Lease, among other things and at its
expense, to keep each Aircraft duly registered and insured, to pay all costs of
operating the Aircraft and to maintain, service, repair and overhaul the
Aircraft so as to keep it in as good an operating condition as when delivered to
America West, ordinary wear and tear excepted, and without taking into
consideration hours and cycles, and in such condition as required to maintain
the airworthiness certificate for the Aircraft in good standing at all times,
subject to certain limited exceptions, including temporary storage or
maintenance periods and the grounding of similar aircraft by the applicable
aviation authority. (Leases, Sections 7.1, 8.1 and Annexes C and D) The Owned
Aircraft Indenture imposes comparable registration, insurance, maintenance,
service and repair obligations on America West with respect to the Owned
Aircraft. (Owned Aircraft Indentures, Section 4.02)
Possession, Sublease and Transfer
Each Aircraft may be operated by America West or, subject to certain
restrictions, by certain other persons. Normal interchange and pooling
agreements with respect to any Engine are permitted. Subleases, in the case of
Leased Aircraft, and leases, in the case of Owned Aircraft, are also permitted
to U.S. air carriers and foreign air carriers that have their principal
executive office in countries that are listed in the
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applicable Lease or Owned Aircraft Indenture, subject to a reasonably
satisfactory legal opinion that, among other things, such country would
recognize (in the case of the Leased Aircraft) Owner Trustee's title to, and the
Loan Trustee's security interest in respect of, the applicable Aircraft. In
addition, a sublessee or lessee may not be subject to insolvency or similar
proceedings at the commencement of such sublease or lease. (Leases, Section 7;
Owned Aircraft Indentures, Section 4.02) Permitted foreign air carriers are not
limited to those based in a country that is a party to the Convention on the
International Recognition of Rights in Aircraft (Geneva 1948) (the
"Convention"). It is uncertain to what extent the relevant Loan Trustee's
security interest would be recognized if an Aircraft were registered or located
in a jurisdiction not a party to the Convention. Moreover, in the case of an
Indenture Event of Default, the ability of the related Loan Trustee to realize
upon its security interest in an Aircraft could be adversely affected as a legal
or practical matter if such Aircraft were registered or located outside the
United States.
Registration
Subject to the next paragraph, America West is required to keep each
Aircraft duly registered under the Transportation Code with the FAA, except (in
the case of a Leased Aircraft) if the relevant Owner Trustee or the relevant
Owner Participant fails to meet the applicable citizenship requirements, and to
record each Lease (in the case of a Leased Aircraft, but subject to such
citizenship requirements) and Indenture and certain other documents under the
Transportation Code. (Leases, Section 7; Owned Aircraft Indentures, Section
4.02(e)) Such recordation of the Indenture and other documents with respect to
each Aircraft is intended to give the relevant Loan Trustee a first priority
perfected security interest in such Aircraft whenever it is located in the
United States or any of its territories and possessions. The Convention provides
that such security interest will also be recognized, with certain limited
exceptions, in those jurisdictions that have ratified or adhere to the
Convention.
So long as no Lease Event of Default exists, America West has the right to
register the Leased Aircraft subject to any Lease in a country other than the
United States at its own expense in connection with a permitted sublease of such
Aircraft to a permitted foreign air carrier, subject to certain conditions set
forth in the related Participation Agreement. These conditions include a
requirement that the lien of the applicable Indenture continue as a first
priority security interest in the applicable Aircraft. (Leases, Section 7.1.2;
Participation Agreements, Section 7.6.11) The Owned Aircraft Indentures contain
comparable provisions with respect to registration of the Owned Aircraft outside
of the United States in connection with a permitted lease of the Owned Aircraft.
(Owned Aircraft Indentures, Section 4.02(e))
Liens
America West is required to maintain each Aircraft free of any liens, other
than the rights of the relevant Loan Trustee, the holders of the related
Equipment Notes, America West and, with respect to a Leased Aircraft, the Owner
Participant and Owner Trustee arising under the applicable Indenture, the Lease
(in the case of a Leased Aircraft) or the other operative documents related
thereto, and other than certain limited liens permitted under such documents,
including but not limited to those listed below; provided that in the case of
each of the liens described in the foregoing clauses (1), (2) and (3), such
liens and proceedings do not involve any material risk of the sale, forfeiture
or loss of such Aircraft or the interest of any Participant therein or impair
the lien of the relevant Indenture. (Leases, Section 6; Owned Aircraft
Indentures, Section 4.01)
Additional Permitted Liens
(1) Liens for taxes either not yet due or being contested in good faith by
appropriate proceedings.
(2) Materialmen's, mechanics' and other similar liens arising in the
ordinary course of business and securing obligations that either are
not yet delinquent for more than 60 days or are being contested in
good faith by appropriate proceedings.
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(3) Judgment liens so long as such judgment is discharged or vacated
within 60 days or the execution of such judgment is stayed pending
appeal and discharged, vacated or reversed within 60 days after
expiration of such stay.
(4) Insurers' salvage rights.
(5) Any other lien as to which America West has provided a bond or other
security adequate in the reasonable opinion of the related Owner
Trustee or Loan Trustee, as the case may be.
Replacement of Parts; Alterations
America West is obligated to replace all parts at its expense that may from
time to time be incorporated or installed in or attached to any Aircraft and
that may become lost, damaged beyond repair, worn out, stolen, seized,
confiscated or rendered permanently unfit for use. America West or any permitted
sublessee has the right, at its own expense, to make such alterations,
modifications and additions with respect to each Aircraft as it deems desirable
in the proper conduct of its business and to remove parts which it deems to be
obsolete or no longer suitable or appropriate for use, so long as such
alteration, modification, addition or removal does not impair the condition or
airworthiness and does not materially diminish the fair market value, utility,
or remaining useful life of the related Aircraft, Airframe or Engine. (Leases,
Section 8.1 and Annex C; Owned Aircraft Indentures, Section 4.04(d))
Insurance
America West is required to maintain, at its expense (or at the expense of
a permitted lessee, in the case of the Owned Aircraft, or a permitted sublessee,
in the case of a Leased Aircraft), all-risk aircraft hull insurance covering
each Aircraft, at all times in an amount not less than the stipulated loss value
of such Aircraft (which is required to be at least equal to the aggregate
outstanding principal amount of the Equipment Notes related to such Aircraft,
together with accrued interest thereon) or, in the case of an Owned Aircraft,
the aggregate outstanding principal amount of the Equipment Notes relating to
such Aircraft together with interest accrued thereon. However, after giving
effect to self-insurance permitted as described below, the amount payable under
such insurance may be less than such amounts payable with respect to the
Equipment Notes. In the event of a loss involving insurance proceeds in excess
of $5,000,000 per occurrence, if the insurers make payment to other than the
repairer of such loss, such proceeds up to the stipulated loss value of the
relevant Aircraft will be payable to the applicable Loan Trustee, for so long as
the relevant Indenture shall be in effect. In the event of a loss involving
insurance proceeds of up to $5,000,000 such proceeds will be payable directly to
America West so long as an Indenture Event of Default does not exist with
respect to the Owned Aircraft Indentures or (in the case of a Leased Aircraft)
the Owner Trustee has not notified the insurance underwriters that a Lease Event
of Default exists. So long as the loss does not constitute an Event of Loss,
insurance proceeds will be applied to repair or replace the property. (Leases,
Section 11 and Annex D; Owned Aircraft Indentures, Section 4.06)
In addition, America West is obligated to maintain comprehensive airline
liability insurance at its expense (or at the expense of a permitted lessee, in
the case of an Owned Aircraft, or a permitted sublessee, in the case of a Leased
Aircraft), including, without limitation, passenger legal liability, bodily
injury liability, property damage liability and contractual liability (exclusive
of manufacturer's product liability insurance) insurance with respect to each
Aircraft. Insurers of recognized responsibility must underwrite such liability
insurance. The amount of such liability insurance coverage per occurrence may
not be less than the amount of comprehensive airline liability insurance from
time to time applicable to aircraft owned or leased and operated by America West
of the same type and operating on similar routes as such Aircraft. (Leases,
Section 11.1 and Annex D; Owned Aircraft Indentures, Section 4.06)
America West is also required to maintain war-risk, hijacking or allied
perils insurance if it (or any permitted sublessee or lessee) operates any
Aircraft or any related airframe or engine in any area of recognized hostilities
(unless governmental indemnity in lieu thereof is obtained) or if America West
(or any permitted sublessee or lessee) maintains such insurance with respect to
other aircraft operated by
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America West (or any permitted sublessee or lessee) on the same routes on which
the Aircraft is operated. (Leases, Section 7.1.5 and Annex D; Owned Aircraft
Indentures, Section 4.06)
America West may self-insure under a program applicable to all aircraft in
its fleet, but the amount of such self-insurance in the aggregate may not exceed
50% of the largest replacement value of any single aircraft in America West's
fleet or 1.5% of the average aggregate insurable value (during the preceding
calendar year) of all aircraft on which America West carries insurance,
whichever is less, unless an insurance broker of national standing shall certify
that the standard among all other major U.S. airlines is a higher level of
self-insurance, in which case America West may self-insure the Aircraft to such
higher level. In addition, America West may self-insure to the extent of any
applicable deductible per Aircraft that does not exceed industry standards for
major U.S. airlines. (Leases, Section 11.1 and Annex D; Owned Aircraft
Indentures, Section 4.06(d))
In respect of each Aircraft, America West is required to name as additional
insured parties the relevant Loan Trustee and holders of the Equipment Notes and
(in the case of the Leased Aircraft) the relevant Owner Participant and Owner
Trustee, in its individual capacity and as owner of such Aircraft, and in some
cases certain other parties under all liability, hull and property and war risk,
hijacking and allied perils insurance policies required with respect to such
Aircraft. In addition, the insurance policies maintained under the Leases and
the Owned Aircraft Indentures will be required to provide that, in respect of
the interests of such additional insured persons, the insurance shall not be
invalidated or impaired by any act or omission of America West or any other
person and to insure the respective interests of such additional insured
persons, regardless of any breach or violation of any representation, warranty,
declaration, term or condition contained in such policies by America West, any
permitted sublessee or any other person. (Leases, Annex D; Owned Aircraft
Indentures, Section 4.06)
Lease Termination
Unless a Lease Event of Default shall have occurred and be continuing,
America West may terminate any Lease on any Lease Payment Date occurring on or
after the fifth anniversary of the date on which such Lease commenced, if it
makes a good faith determination that the Leased Aircraft subject to such Lease
is economically obsolete or surplus to its requirements. America West is
required to give notice of its intention to exercise its right of termination
described in this paragraph at least 90 days prior to the proposed date of
termination, which notice may be withdrawn up to ten Business Days prior to such
proposed date; provided that America West may give only five such termination
notices. In such a situation, unless the Owner Trustee elects to retain title to
such Aircraft, America West is required to use commercially reasonable efforts
to sell such Aircraft as an agent for such Owner Trustee, and Owner Trustee will
sell such Aircraft on the date of termination to the highest cash bidder. If
such sale occurs, the Equipment Notes related thereto are required to be
prepaid. If the net proceeds to be received from such sale are less than the
termination value for such Aircraft (which is expressed always to be sufficient
to pay the aggregate outstanding principal amount of the Equipment Notes related
to such Aircraft, together with accrued interest thereon), America West is
required to pay to the applicable Owner Trustee an amount equal to the excess,
if any, of the applicable termination value for such Aircraft over such net
proceeds. Upon payment of termination value for such Aircraft and an amount
equal to the Make-Whole Premium, if any, payable on such date of payment,
together with certain additional amounts, the lien of the relevant Indenture
will be released, the relevant Lease will terminate, and the obligation of
America West thereafter to make scheduled rent payments under such Lease will
cease. (Leases, Section 9; Leased Aircraft Indentures, Sections 2.10(b) and
10.01)
The Owner Trustee under any Lease has the option to retain title to the
Leased Aircraft subject thereto if America West has given a notice of
termination under such Lease. In such event, such Owner Trustee will pay to the
applicable Loan Trustee an amount sufficient to prepay the outstanding principal
of and interest on the Equipment Notes issued with respect to such Aircraft (but
America West will be obligated to pay the Make-Whole Premium in respect
thereof), in which case the lien of the relevant Indenture will be released, the
relevant Lease will terminate and the obligation of America West thereafter
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to make scheduled rent payments under such Lease will cease. (Leases, Section 9;
Leased Aircraft Indentures, Sections 2.10(b) and 10.01)
Events of Loss
If an Event of Loss occurs with respect to the airframe or the airframe and
engines of an Aircraft, America West must elect within 45 days after such
occurrence either to make payment with respect to such Event of Loss or to
replace such airframe and any such engines. Not later than the first Business
Day following the earliest of (i) the 120th day following the date of occurrence
of such Event of Loss, and (ii) the fourth Business Day following the receipt of
the insurance proceeds in respect of such Event of Loss, America West must take
either of the steps noted below:
Alternative Steps Required Upon an Event of Loss
(1) Pay to the applicable Owner Trustee (in the case of a Leased Aircraft)
or to the Owned Aircraft Trustee (in the case of an Owned Aircraft)
the stipulated loss value of such Aircraft (in the case of a Leased
Aircraft) or the outstanding principal amount and accrued interest on
the Equipment Notes (in the case of an Owned Aircraft), together with
certain additional amounts, but, in any case, without any Make-Whole
Premium.
(2) Unless any Lease Event of Default or failure to pay basic rent under
the relevant Lease (in the case of a Leased Aircraft), an Indenture
Event of Default or failure to pay principal or interest under the
Owned Aircraft Indenture (in the case of an Owned Aircraft) or certain
bankruptcy defaults shall have occurred and be continuing, substitute
an airframe (or airframe and one or more engines, as the case may be)
for the airframe, or airframe and engine (s), that suffered such Event
of Loss. (Leases, Sections 10.1.1, 10.1.2 and 10.1.3; Leased Aircraft
Indentures, Section 2.10(a); Owned Aircraft Indentures, Sections 2.10
and 4.05(a))
If America West elects to replace an airframe (or airframe and one or more
engines, as the case may be) that suffered such Event of Loss, it shall, in the
case of a Leased Aircraft, convey to the related Owner Trustee title to an
airframe (or airframe and one or more engines, as the case may be), and such
replacement airframe or airframe and engines must be the same model as the
airframe or airframe and engines to be replaced or an improved model, with a
value, utility and remaining useful life (without regard to hours or cycles
remaining until the next regular maintenance check) at least equal to the
airframe or airframe and engines to be replaced, assuming that such airframe and
such engines had been maintained in accordance with the related Lease. America
West is also required to provide to the relevant Loan Trustee and (in the case
of a Leased Aircraft) the relevant Owner Trustee and Owner Participant
reasonably acceptable opinions of counsel to the effect, among other things,
that (i) certain specified documents have been duly filed under the
Transportation Code (or comparable applicable law of the relevant jurisdiction
of registration) and (ii) such Owner Trustee and Leased Aircraft Trustee (as
assignee of lessor's rights and interests under the Lease), in the case of a
Leased Aircraft, or the Owned Aircraft Trustee, in the case of an Owned
Aircraft, will be entitled to the benefits of Section 1110 of the U.S.
Bankruptcy Code with respect to any such replacement airframe (unless, as a
result of a change in law or court interpretation, such benefits are not then
available). (Leases, Sections 10.1.3 and 10.3; Owned Aircraft Indentures,
Section 4.05(c))
If America West elects not to replace such airframe, or airframe and
engine(s), then upon payment of the outstanding principal amount of the
Equipment Notes issued with respect to such Aircraft (in the case of an Owned
Aircraft) or the stipulated loss value for such Aircraft (in the case of a
Leased Aircraft), together with all additional amounts then due and unpaid with
respect to such Aircraft, which must be at least sufficient to pay in full as of
the date of payment thereof the aggregate unpaid principal amount under such
Equipment Notes together with accrued but unpaid interest thereon and all other
amounts due and owing in respect of such Equipment Notes, the lien of the
Indenture and (in the case of a Leased Aircraft) the Lease relating to such
Aircraft shall terminate with respect to such Aircraft, the obligation of
America West thereafter to make the scheduled rent payments (in the case of a
Leased
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Aircraft) or interest and principal payments (in the case of an Owned Aircraft)
with respect thereto shall cease and (in the case of a Leased Aircraft) the
related Owner Trustee shall transfer all of its right, title and interest in and
to the related Aircraft to America West (or, if directed by America West, the
Aircraft insurers). The stipulated loss value and other payments made under the
Leases or the Owned Aircraft Indentures, as the case may be, by America West
shall be deposited with the applicable Loan Trustee. Amounts in excess of the
amounts due and owing under the Equipment Notes issued with respect to such
Aircraft will be distributed by such Loan Trustee to the applicable Owner
Trustee or to America West, as the case may be. (Leases, Section 10.1.2; Leased
Aircraft Indentures, Sections 3.02 and 10.01; Owned Aircraft Indentures,
Sections 2.10 and 4.05(a)(ii))
If an Event of Loss occurs with respect to an engine alone, America West
will be required to replace such engine within 60 days after the occurrence of
such Event of Loss with another engine, free and clear of all liens (other than
certain permitted liens). Such replacement engine shall be the same make and
model as the engine to be replaced, or an improved model, suitable for
installation and use on the airframe, and having a value, utility and remaining
useful life (without regard to hours or cycles remaining until overhaul) at
least equal to the engine to be replaced, assuming that such engine had been
maintained in accordance with the relevant Lease or the Owned Aircraft
Indentures, as the case may be, immediately prior to the occurrence of the Event
of Loss. (Leases, Section 10.2; Owned Aircraft Indentures, Section 4.05(a)(i))
America West may, whether or not an Event of Loss shall have occurred with
respect to any engine, replace such engine with a replacement engine satisfying
the same conditions for a replacement engine following an Event of Loss.
(Leases, Section 10.2.3; Owned Aircraft Indentures, 4.04(e))
An "Event of Loss" with respect to an Aircraft, Airframe or any Engine
means any of the events noted below:
Events of Loss With Respect to an Aircraft, Airframe or any Engine
(1) The destruction of such property, damage to such property beyond
practical or economic repair or rendition of such property permanently
unfit for normal use.
(2) The actual or constructive total loss of such property or any damage
to such property or requisition of title or use of such property which
results in an insurance settlement with respect to such property on
the basis of a total loss or a constructive or compromised total loss.
(3) Any theft, hijacking or disappearance of such property for a period of
180 days or more or, if earlier, the first to occur of the last day of
the term of the related Lease (if such property is subject to a Lease)
or the date on which America West has confirmed in writing that it
cannot recover such property.
(4) Any seizure, condemnation, confiscation, taking or requisition of
title to such property by any governmental entity or purported
governmental entity (other than the country of registration of the
relevant Aircraft) for a period exceeding 180 days (exceeding 90 days
in the case of a requisition of title) or, if earlier, at the end of
the term of such Lease (in the case of a Leased Aircraft).
(5) In the case of any Leased Aircraft, any seizure, condemnation,
confiscation, taking or requisition of use of such property by any
U.S. government entity that continues until the 30th day after the
last day of the term of the relevant Lease (unless the Owner Trustee
shall have elected not to treat such event as an Event of Loss).
(6) As a result of any law, rule, regulation, order or other action by the
FAA or any governmental entity, the use of such property in the normal
course of America West's business of passenger air transportation is
prohibited for 180 days, unless America West, prior to the expiration
of such 180-day period, shall have undertaken and shall be diligently
carrying forward steps which are necessary or desirable to permit the
normal use of such property by America West, but in any event if such
use shall have been prohibited for a period of two consecutive years;
provided
99.
<PAGE> 101
that no Event of Loss shall be deemed to have occurred if such
prohibition has been applicable to America West's entire U.S. fleet of
similar property and America West, prior to the expiration of such
two-year period, shall have conformed at least one unit of such
property in its fleet to the requirements of any such law, rule,
regulation, order or other action and commenced regular commercial use
of the same and shall be diligently carrying forward, in a manner
which does not discriminate against applicable property in so
conforming such property, steps which are necessary or desirable to
permit the normal use of such property by America West, but in any
event if such use shall have been prohibited for a period of three
years or, in the case of the Leased Aircraft, such use shall be
prohibited at the expiration of the term of the relevant Lease.
(Leases, Annex A; Owned Aircraft Indentures, Annex A)
Renewal and Purchase Options
With respect to any Leased Aircraft, America West may elect to purchase
such Aircraft and terminate the related Lease' prior to the end of the term of
such Lease (i) on the Lease Payment Date, if any, agreed by the Owner
Participant for such Aircraft in connection with an early buy-out option or (ii)
under certain circumstances, on any Lease Payment Date, if America West would be
required to make certain indemnity payments with respect to such Aircraft in
excess of a certain designated amount, which indemnity payments could be avoided
through a purchase by America West of such Aircraft (each, an "Early Purchase
Option"). In connection with the exercise of an Early Purchase Option, America
West is required with respect to the Equipment Notes relating to the Aircraft
being purchased either (x) to pay to the related Owner Trustee funds at least
sufficient to pay any principal of and interest and Make-Whole Premium, if any,
on such Equipment Notes or (y) to assume on a full recourse basis the
obligations of the related Owner Trustee under such Equipment Notes, the related
Indenture and the related Participation Agreement. (Leases, Section 17.3; Leased
Aircraft Indentures, Sections 2.10 and 2.15)
If America West elects to purchase the Aircraft and pay the amount
described in clause (x) above, then upon payment to the related Owner Trustee of
the full purchase price for such Aircraft determined in accordance with such
Lease and all other amounts owing to the parties to the related Participation
Agreement, such Owner Trustee will transfer all of its right, title and interest
in and to such Aircraft to America West and the related Lease and the Lien of
the related Indenture will terminate. If America West elects to purchase the
Aircraft and assume the obligations of such Owner Trustee described in clause
(y) above, then the related operative agreements will be amended to provide for
the assumption of such obligations on a full recourse basis by America West,
maintaining for the benefit of the holders of such Equipment Notes the security
interest in such Aircraft created by the related Indenture. In the event of such
an assumption, America West will either furnish an opinion to the Leased
Aircraft Trustee that such assumption does not result in a taxable gain or loss
for the Certificateholders for U.S. federal tax purposes or an indemnity for the
benefit of the Certificateholders in form and substance reasonably satisfactory
to the Leased Aircraft Trustee. See "Certain U.S. Federal Income Tax
Consequences--Taxation of Certificateholders Generally". (Leases, Section 17.3;
Leased Aircraft Indentures, Sections 2.10 and 2.15)
At the end of the term of each Lease after final maturity of the related
Equipment Notes and subject to certain conditions, America West will have
certain options to renew such Lease for additional limited periods. In addition,
America West may have the right at the end of the term of each Lease to purchase
the Aircraft subject thereto for an amount to be calculated in accordance with
the terms of such Lease. (Leases, Section 17)
100.
<PAGE> 102
Events of Default under the Leases
Lease Events of Default under each Lease include, among other things, the
items listed below:
Lease Events of Default
(1) Failure by America West to make any payment of basic rent, stipulated
loss value or termination value under such Lease within ten Business
Days after the same shall have become due, or failure by America West
to pay any other amount due under such Lease or under any other
related operative document within 30 days from and after the date of
any written demand therefor from the Owner Trustee.
(2) Failure by America West to make any excluded payment (as defined in
the Leases) within 30 days after written notice that such failure
constitutes a Lease Event of Default is given by the relevant Owner
Participant to America West and the relevant Loan Trustee.
(3) Failure by America West to carry and maintain insurance on and in
respect of the Aircraft, airframe and engines, in accordance with the
provisions of such Lease.
(4) Failure by America West to perform or observe in any material respect
any other covenant or agreement to be performed or observed by it
under such Lease or the related Participation Agreement or any other
related operative document (other than the related tax indemnity
agreement between America West and the Owner Participant), and such
failure shall continue unremedied for a period of 30 days after
written notice of such failure by the applicable Owner Trustee or Loan
Trustee unless such failure is capable of being corrected and America
West shall be diligently proceeding to correct such failure, in which
case there shall be no Lease Event of Default unless and until such
failure shall continue unremedied for a period of 180 days after
receipt of such notice.
(5) Any representation or warranty made by America West in such Lease or
the related Participation Agreement or in any other related operative
document (other than in the related tax indemnity agreement between
America West and the Owner Participant) shall prove to have been
untrue or inaccurate in any material respect at the time made, such
representation or warranty is material at the time in question and the
same shall remain uncured (to the extent of the adverse impact
thereof) for more than 30 days after the date of written notice
thereof to America West.
(6) The occurrence of certain voluntary events of bankruptcy,
reorganization or insolvency of America West or the occurrence of
certain involuntary events of bankruptcy, reorganization or insolvency
which shall continue undismissed, unvacated or unstayed for a period
of 90 days. (Leases, Section 14)
Indenture Events of Default under the Owned Aircraft Indentures are
discussed above under "--Indenture Defaults, Notice and Waiver".
Remedies Exercisable upon Events of Default under the Lease
If a Lease Event of Default has occurred and is continuing, the applicable
Owner Trustee may (or, so long as the Indenture shall be in effect, the
applicable Loan Trustee may, subject to the terms of the Indenture) exercise one
or more of the remedies provided in such Lease with respect to the related
Aircraft. These remedies include the right to repossess and use or operate such
Aircraft, to rescind or terminate such Lease, to sell or re-lease such Aircraft
free and clear of America West's rights, except as set forth in the Lease, and
retain the proceeds, and to require America West to pay, as liquidated
101.
<PAGE> 103
damages, any due and unpaid basic rent plus an amount, at such Owner Trustee's
(or, subject to the terms of the relevant Leased Aircraft Indenture, the Leased
Aircraft Trustee's) option, set forth below:
Alternative Amount of Payment Amount upon a Lease Event of Default
(1) The excess of the present value of all unpaid rent during the
remainder of the term of such Lease over the present value of the fair
market rental value of such Aircraft for the remainder of the term of
such Lease; or
(2) The excess of the stipulated loss value of such Aircraft over the fair
market sales value of such Aircraft or, if such Aircraft has been
sold, the net sales proceeds from the sale of such Aircraft. (Leases,
Section 15; Leased Aircraft Indentures, Section 4.04)
Remedies under the Owned Aircraft Indentures are discussed above under
"--Remedies".
Transfer of Owner Participant Interests
Subject to certain restrictions, each Owner Participant may transfer all or
any part of its interest in the related Leased Aircraft. (Participation
Agreements, Section 10.1.1)
102.
<PAGE> 104
CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES
EXCHANGE OF OLD CERTIFICATES FOR NEW CERTIFICATES
The following summary describes the principal U.S. federal income tax
consequences to Certificateholders of the exchange of Old Certificates for New
Certificates. This summary is addressed to beneficial owners of Certificates
that are citizens or residents of the United States, corporations, partnerships
or other entities created or organized in or under the laws of the United States
or any state therein, estates the income of which is subject to U.S. federal
income taxation regardless of its source, and trusts that meet the following two
tests: (a) a court in the United States is able to exercise primary supervision
over the administration of the trust and (b) one or more U.S. persons have
authority to control all substantial decisions of the trust, that will hold the
Certificates as capital assets.
The exchange of Old Certificates for New Certificates (the "Exchange")
pursuant to the Exchange Offer will not be a taxable event for U.S. federal
income tax purposes. The receipt of Certificates in the Exchange will be treated
as a continuation of the original investment in the Certificates. As a result, a
holder of an Old Certificate whose Old Certificate is accepted in the Exchange
Offer will not recognize gain or loss on the Exchange. A tendering holder's tax
basis in the New Certificates will be the same as such holder's tax basis in its
Old Certificates. A tendering holder's holding period for the New Certificates
received pursuant to the Exchange Offer will include its holding period for the
Old Certificates surrendered therefor.
THE FOREGOING SUMMARY OF U.S. FEDERAL INCOME TAX CONSEQUENCES IS FOR
GENERAL INFORMATION ONLY AND IS NOT TAX ADVICE. ACCORDINGLY, ALL HOLDERS OF OLD
CERTIFICATES ARE ADVISED TO CONSULT THEIR OWN TAX ADVISORS REGARDING THE U.S.
FEDERAL, STATE AND LOCAL TAX CONSEQUENCES OF THE EXCHANGE OF OLD CERTIFICATES
FOR NEW CERTIFICATE AND OF THE OWNERSHIP AND DISPOSITION OF NEW CERTIFICATES
RECEIVED IN THE EXCHANGE OFFER IN LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES.
ERISA CONSIDERATIONS
In general, employee benefit plans subject to ERISA or Section 4975 of the
Code or entities which may be deemed to hold the assets of any ERISA Plan will
not be eligible to purchase the Certificates, unless certain conditions apply
and subject to the circumstances applicable to such ERISA Plans.
A fiduciary of an employee benefit plan subject to ERISA should consider
fiduciary standards under ERISA in the context of the particular circumstances
of such plan before authorizing an investment in the Certificates. Such
fiduciary should determine whether the investment satisfies ERISA's
diversification and prudence requirements and whether the investment is in
accordance with the documents and instruments governing the plan. In addition,
ERISA and the Code prohibit a wide range of transactions ("Prohibited
Transactions") involving an employee benefit plan subject to ERISA and/or
Section 4975 of the Code and persons who have certain specified relationships to
the ERISA Plan ("parties in interest," within the meaning of ERISA and
"disqualified persons," within the meaning of the Code). Such transactions may
require "correction" and may cause an ERISA Plan fiduciary to incur certain
liabilities and the parties in interest or disqualified persons to be subject to
excise taxes.
Each of the Owner Participants, the manufacturers of the Aircraft, the
holders of the Equipment Notes, the Initial Purchasers, the Escrow Agent, the
Depositary, the Liquidity Provider, the Policy Provider and the Company may be a
party in interest or a disqualified person with respect to an ERISA Plan
purchasing the Certificates; therefore, the purchase by an ERISA Plan of the
Certificates may give rise to a direct or indirect Prohibited Transaction. Any
person who is, or who in acquiring the Certificates is or may be using the
assets of, an ERISA Plan may purchase the Certificates, if such person
determines that a statutory or an administrative exemption from the Prohibited
Transaction rules discussed below or otherwise available is applicable to such
person's purchase and holding of the Certificates (or a participation interest
therein).
103.
<PAGE> 105
Certain statutory or administrative exemptions from the Prohibited
Transaction rules under ERISA and the Code may be available to an ERISA Plan
which is purchasing the Certificates. Included among these exemptions are: PTCE
90-1, regarding investments by insurance company pooled separate accounts; PTCE
91-38, regarding investments by bank collective investment funds; PTCE 84-14,
regarding transactions effected by a qualified professional asset manager; PTCE
95-60, regarding investments by insurance company general accounts or PTCE
96-23, regarding investments by an in-house professional asset manager. Certain
of the exemptions, however, do not afford relief from the Prohibited Transaction
rules under Section 406(b) of ERISA and Section 4975 (c)(I)(E)-(F) of the Code.
In addition, there can be no assurance that any of these administrative
exemptions will be available with respect to any particular transaction
involving the Certificates.
The Department of Labor ("DOL") has issued individual administrative
exemptions to certain of the Underwriters which are substantially the same as
the administrative exemption issued to Morgan Stanley & Co. Incorporated
(Prohibited Transaction Exemption 90-24 et al., Exemption Application NO. D-8019
et al, 55 Fed. Reg. 20,548 (1990) (the "Underwriter Exemption")) which generally
exempts from certain of the Prohibited Transaction rules the initial purchase,
the holding and the subsequent resale by an ERISA Plan of certificates in
certain pass through trusts, the assets of which pass through trust consist of
secured credit instruments that bear interest or are purchased at a discount in
transactions by or between business entities (including qualified equipment
trust certificates secured by leases). The limited relief provided by the DOL in
the Underwriter Exemption is subject to several other conditions, including a
requirement that certificates acquired by an ERISA Plan under the Underwriter
Exemption have received a rating at the time of acquisition by the ERISA Plan
that is in one of the three highest rating categories from either Standard &
Poor's or Moody's. Under the Underwriter Exemption, an equipment trust
certificate secured by a lease will be considered qualified only under certain
circumstances. The Underwriter Exemption also requires that the acquisition of
certificates by an ERISA Plan be on terms (including the price for the
certificate) that are at least as favorable to an ERISA Plan as they would be in
an arm's-length transaction with an unrelated party, and that the rights and
interests evidenced by the certificates must not be subordinated to the rights
and interests evidenced by other certificates of the same trust estate.
With respect to the investment restrictions set forth in the Underwriter
Exemption, an investment in a Certificate will evidence both an interest in the
respective Original Trust as well as an interest in the Deposits held in escrow
by an Escrow Agent for the benefit of the Certificateholder. Under the terms of
the Escrow Agreement, the proceeds from the Offering of the Certificates of each
Class will be paid over by the Initial Purchasers to the Depositary on behalf of
the Escrow Agent (for the benefit of such Certificateholders as the holders of
the Escrow Receipts) and will not constitute property of the Original Trusts.
Under the terms of each Escrow Agreement, the Escrow Agent will be irrevocably
instructed to enter into the Deposit Agreements with the Depositary and to
effect withdrawals upon the receipt of appropriate notice from the relevant
Trustee so as to enable such Trustee to purchase the identified Equipment Notes
on the terms and conditions set forth in the Note Purchase Agreement. Interest
on the Deposits relating to each Trust will be paid to the Certificateholders of
such Trust as Receiptholders through a Paying Agent appointed by the Escrow
Agent. Pending satisfaction of such conditions and withdrawal of such Deposits,
the Escrow Agent's rights with respect to the Deposits will remain plan assets
subject to the fiduciary responsibility and prohibited transaction provisions of
ERISA and the Prohibited Transaction rules.
The DOL has issued an amendment to the Underwriter Exemption, 62 FR 39,021
(July 21, 1997), which allows the assets of a pass through trust to include a
prefunding account under certain circumstances. The relief provided by this
amendment is subject to several conditions, including a requirement that the
prefunding period end no later than the earliest to occur of: (i) the date the
amount on deposit in the prefunding account is less than the minimum dollar
amount specified in the pooling and servicing agreement; (ii) the date on which
an event of default occurs under the pooling and servicing agreement; or (iii)
the date which is the later of three months or 90 days after the closing date.
Such restrictions on prefunding accounts may not be applicable in certain
circumstances where, although certain
104.
<PAGE> 106
of the equipment securing equipment trust certificates held by the trust have
not been delivered on the date of the issuance of such equipment trust
certificates, such equipment trust certificates otherwise constitute, at the
time an ERISA Plan acquires the pass through certificates, secured credit
instruments that bear interest. However, there can be no assurance that the DOL
would agree that the prefunding restrictions would not apply in such a case.
Moreover, even if such restrictions would not apply, no monitoring or other
measures will be taken to ensure that all of the conditions of the Underwriter
Exemption, as amended, will be satisfied.
It is clear that the Underwriter Exemption will not apply to subordinated
classes of certificates, such as the Class C Certificates or the Class D
Certificates. It also appears that the Underwriter Exemption will not apply to
the purchase by Class C Certificateholders or Class D Certificateholders of
Class G Certificates in connection with the exercise of their rights upon the
occurrence and during the continuance of a Triggering Event. In addition, for
the reasons noted above, no assurance can be given that the Underwriter
Exemption will otherwise apply with respect to any particular transaction
involving the Class G Certificates or the assets of the Class G Trust.
If an ERISA Plan acquires a Certificate, the ERISA Plan's assets may
include both the Certificate acquired and an undivided interest in the
underlying assets of the Trust, unless the actual investment by "benefit plan
investors" in the Certificates is not "significant" within the meaning of the
DOL plan assets regulations. Consequently, the Trust assets could be deemed to
be "plan assets" of such ERISA Plan for purposes of the fiduciary responsibility
provisions of ERISA and the Prohibited Transaction rules. Any person who
exercises any authority or control with respect to the management or disposition
of the assets of an ERISA Plan is considered to be a fiduciary of such ERISA
Plan. The Trustee could, therefore, become a fiduciary of ERISA Plans that have
invested in the Certificates and be subject to general fiduciary requirements of
ERISA in exercising its authority with respect to the management of the assets
of the Trust. If the Trustee becomes a fiduciary with respect to the ERISA Plans
purchasing the Certificates, there may be an improper delegation by such ERISA
Plans of the responsibility to manage plan assets. In order to avoid such
prohibited transactions, each investing ERISA Plan, by purchasing that
Certificates, will be deemed to have directed the Trust to invest in the assets
held in such trust. Any ERISA Plan purchasing the Certificates must ensure that
any statutory or administrative exemption from the Prohibited Transaction rules
on which such ERISA Plan relies with respect to its purchase or holding of the
Pass Through Certificates also applies to such ERISA Plan's indirect holding of
the assets of the Trust.
Governmental plans and certain church plans (each as defined under ERISA)
are not subject to the Prohibited Transaction rules. Such plans may, however, be
subject to federal, state or local laws or regulations which may affect their
investment in the Certificates. Any fiduciary of such a governmental or church
plan considering a purchase of the Certificates must determine the need for, and
the availability, if necessary, of any exemptive relief under any such laws or
regulations.
The foregoing discussion is general in nature and is not intended to be all
inclusive. Any fiduciary of an ERISA Plan, governmental plan or church plan
considering the purchase and holding of the Certificates should consult with its
legal advisors regarding the consequences of such purchase and holding. By its
purchase and acceptance of a Certificate, each Certificateholder will be deemed
to have represented and warranted that either (i) no ERISA Plan assets have been
used to purchase such Certificate, or (ii) one or more prohibited transaction
statutory or administrative exemptions applies such that the use of such ERISA
Plan assets to purchase and hold such Certificate will not constitute a
non-exempt Prohibited Transaction.
EACH ERISA PLAN FIDUCIARY (AND EACH FIDUCIARY FOR A GOVERNMENTAL OR CHURCH
PLAN SUBJECT TO RULES SIMILAR TO THOSE IMPOSED ON ERISA PLANS UNDER ERISA)
SHOULD CONSULT WITH ITS LEGAL ADVISOR CONCERNING AN INVESTMENT IN ANY OF THE
CERTIFICATES.
105.
<PAGE> 107
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Certificates for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Certificates. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of New Certificates received in
exchange for Old Certificates where such Old Certificates were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, starting on the Expiration Date and ending on the close of business
180 days after the Expiration Date, it will make this Prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until such date all broker-dealers effecting transactions
in the New Certificates may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of New Certificates
by broker-dealers. New Certificates received by broker-dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the New Certificates or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such New Certificates. Any
broker-dealer that resells New Certificates that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such New Certificates may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit of any
such resale of New Certificates and any commissions or concessions received by
any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that by acknowledging that it
will deliver and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
Starting on the Expiration Date, the Company will promptly send additional
copies of this Prospectus and any amendment or supplement to this Prospectus to
any broker-dealer that requests such documents in the Letter of Transmittal. The
Company has agreed to pay all expenses incident to the Exchange Offer other than
commissions or concessions of any brokers or dealers, fees of counsel to the
Holders and certain transfer taxes, and will indemnify the Holders of the New
Certificates (including any broker-dealers) against certain liabilities,
including liabilities under the Securities Act.
106.
<PAGE> 108
LEGAL MATTERS
The validity of the New Certificates is being passed upon for America West
by Morris, James, Hitchens & Williams, Wilmington, Delaware, counsel for
Wilmington Trust Company.
EXPERTS
The financial statements and financial statement schedule of America West
Airlines, Inc. as of December 31, 1998 and 1997, and for each of the years in
the three-year period ended December 31, 1998, have been incorporated by
reference herein and in the registration statement in reliance upon the report
of KPMG LLP, independent certified public accountants, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and
auditing.
The references to AvSolutions, AVITAS and MBA, and to their respective
appraisal reports, dated as of July 6, 1999, June 10, 1999, and July 13, 1999,
respectively, are included herein in reliance upon the authority of each such
firm as an expert with respect to the matters contained in its appraisal report.
107.
<PAGE> 109
APPENDIX I-INDEX OF TERMS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
10-K.................................. 2
10-Q.................................. 2
Accrued Class G Interest.............. 13
Adjusted Expected Distributions....... 37
Administration Expenses............... 72
Aggregate LTV Collateral Amount....... 73
Air China............................. 14
Aircraft.............................. 7
Aircraft Operative Agreements......... 50
Ambac................................. 13
America West.......................... 5
Appraised Current Market Value........ 73
Appraisers............................ 18
Assumed Aircraft Value................ 82
Assumed Amortization Schedule......... 41
Assumed Appraised Value............... 50
ATDP.................................. 31
Average Life Date..................... 80
AVITAS................................ 18
AVSA.................................. 17
AvSolutions........................... 18
Bankruptcy Code....................... 59
Base Rate............................. 62
British Airways....................... 14
Business Day.......................... 60
Cash Collateral Account............... 60
CASM.................................. 19
Cede.................................. 6
Certificate Account................... 39
Certificate Owners.................... 43
Certificateholders.................... 5
Certificates.......................... 5
Class B Common Stock.................. 27
Class C Certificates.................. 5
Class C Trust......................... 5
Class D Certificates.................. 11
Class D Trust......................... 11
Class G Certificates.................. 5
Class G Trust......................... 5
Code.................................. 13
Company............................... 5
Continental Airways................... 14
Controlling Party..................... 12
Convention............................ 89
Current Distribution Date............. 71
Delivery Period....................... 9
</TABLE>
<TABLE>
<CAPTION>
PAGE
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<S> <C>
Delivery Period Termination Date...... 55
Deposit............................... 9
Deposit Agreement..................... 9
Deposit Make-Whole Premium............ 56
Depositary............................ 9
Depreciation Assumption............... 82
Distribution Date..................... 36
DOL................................... 96
Downgrade Drawing..................... 60
DTC................................... 6
DTC Participants...................... 9
EVA Airways of Taiwan................. 14
Early Purchase Option................. 93
Election Distribution Date............ 65
Eligible Institution.................. 31
Equipment Notes....................... 7
ERISA................................. 13
ERISA Plans........................... 13
Escrow Agent.......................... 7
Escrow Agreements..................... 7
Escrow Receipts....................... 57
Excess Reimbursement Obligations...... 71
Event of Loss......................... 93
Exchange.............................. 95
Exchange Act.......................... 2
Exchange Agent........................ 5
Exchange Offer........................ 5
Expected Distributions................ 36
Expiration Date....................... 5
FAA................................... 26
Final Distributions................... 69
Final Drawing......................... 61
Final Legal Distribution Date......... 8
Global Certificates................... 53
H.15(519)............................. 80
Holdings.............................. 15
Indenture Default..................... 43
Indentures............................ 10
Indirect Participants................. 54
Initial Purchasers.................... 5
Intercreditor Agreement............... 7
Interest Drawings..................... 11
Issuance Date......................... 28
IT.................................... 26
Lease................................. 10
Lease Event of Default................ 43
</TABLE>
A-I-1
<PAGE> 110
<TABLE>
<CAPTION>
PAGE
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<S> <C>
Lease Payment Date.................... 88
Leased Aircraft....................... 10
Leased Aircraft Indenture............. 10
Leased Aircraft Trustee............... 10
Leisure Co............................ 15
Letter of Transmittal................. 5
LIBOR................................. 61
Liquidity Event of Default............ 62
Liquidity Expenses.................... 71
Liquidity Facility.................... 11
Liquidity Obligations................. 11
Liquidity Provider.................... 8
Loan Trustees......................... 10
LTV Appraisal......................... 74
LTV Collateral Amount................. 73
LTV Ratio............................. 73
Make-Whole Premium.................... 10
Mandatory Document Terms.............. 51
Mandatory Economic Terms.............. 49
Maximum Amount........................ 56
Maximum Available Commitment.......... 58
MBA................................... 18
Mesa Airlines......................... 14
Minimum Sale Price.................... 70
Moody's............................... 20
Morton Beyer & Agnew.................. 18
most recent H.15 (519)................ 80
MSCS.................................. 58
MSDW.................................. 58
New Trustee........................... 52
Non-Extension Drawing................. 61
Non-Performing Equipment Note......... 74
Non-Premium Amount.................... 56
Northwest Airlines.................... 14
Note Holders.......................... 51
Note Purchase Agreement............... 7
Offering.............................. 52
Order................................. 66
Original Trustee...................... 7
Original Trusts....................... 9
Owned Aircraft........................ 10
Owned Aircraft Indenture.............. 10
Owned Aircraft Trustee................ 10
Owner Participant..................... 10
Owner Trustee......................... 10
Par Redemption Amount................. 55
Participation Agreement............... 49
Pass Through Trust Agreements......... 7
</TABLE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Paying Agent.......................... 7
Paying Agent Account.................. 40
Performing Equipment Note............. 59
Policy................................ 13
Policy Business Day................... 66
Policy Drawing........................ 71
Policy Expenses....................... 71
Policy Provider....................... 13
Policy Provider Agreement............. 66
Policy Provider Default............... 69
Policy Provider Election.............. 65
Policy Provider Obligations........... 71
Pool Balance.......................... 40
Pool Factor........................... 40
Preference Amount..................... 66
Prohibited Transactions............... 96
Project............................... 25
PTC Event of Default.................. 45
RASM.................................. 15
Rating Agencies....................... 20
Receiptholder......................... 57
Registration Event.................... 28
Registration Rights Agreement......... 28
Regular Distribution Dates............ 38
Remaining Weighted Average Life....... 80
Replacement Facility.................. 58
Required Amount....................... 81
S&P................................... 20
SOP 90-7.............................. 13
Scheduled Payments.................... 8
Section 1110 Period................... 59
Securities Act........................ 28
Series C Equipment Notes.............. 9
Series D Equipment Notes.............. 10
Series G Equipment Notes.............. 9
Shelf Registration Statement.......... 28
Special Distribution Date............. 39
Special Payment....................... 9
Special Payments Account.............. 39
Special Structure..................... 77
Standard & Poor's..................... 20
Standard & Poor's..................... 57
Stated Interest Rates................. 58
Subordination Agent................... 7
Successor Trust....................... 7
Successor Trustee..................... 7
T+5................................... 128
Termination Notice.................... 62
</TABLE>
A-I-2
<PAGE> 111
<TABLE>
<CAPTION>
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<S> <C>
Threshold Rating...................... 60
Transfer Date......................... 7
Transportation Code................... 46
Treasury Yield........................ 80
Triggering Event...................... 9
Trust Property........................ 7
</TABLE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Trustee............................... 7
Trusts................................ 5
Underwriter Exemption................. 97
Warrants.............................. 27
Year 2000 Project..................... 25
</TABLE>
A-I-3
<PAGE> 112
APPENDIX II--APPRAISAL LETTERS
A-II-1
<PAGE> 113
[AVITAS LETTERHEAD]
AMERICA WEST AIRLINES
JUNE 20, 1999
INTRODUCTION
AVITAS, Inc. has been retained by America West Airlines (the "Client") to
provide its opinion as to the Base Value for five Airbus A319-100 and five
A320-200 aircraft. The subject aircraft are identified and their values are set
forth in Figure 1 in this report.
The values presented in this report assume that this aircraft will be in
new, "flyaway" condition and fully certificated for commercial operations. We
have further assumed that the subject aircraft will be operated under the air
transport regulations of a major nation.
The values presented in this report do not take into consideration fleet
sales, attached leases, tax considerations or other factors that might be
considered in structuring the terms and conditions of a specific transaction.
These factors do not directly affect the value of the aircraft itself but can
affect the economics of the transaction. Therefore, the negotiated striking
price in an aircraft transaction may take into consideration factors such as the
present value of the future lease stream, the terms and conditions of the
specific lease agreement and the impact of tax considerations.
DEFINITIONS
AVITAS's value definitions conform to those of the International Society of
Transport Aircraft Trading ("ISTAT") adopted in January 1994, and are summarized
as follows:
- BASE VALUE is the appraiser's opinion of the underlying economic value of
an aircraft in an open, unrestricted, stable market environment with a
reasonable balance of supply and demand, and assumes full consideration
of its "highest and best use." An aircraft's Base Value is founded in the
historical trend of values and in the projection of value trends and
presumes an arm's-length, cash transaction between willing and
knowledgeable parties, acting prudently, with an absence of duress and
with a reasonable period of time for marketing. Base Value typically
assumes that an aircraft's physical condition is average for an aircraft
of its type and age, and its maintenance time status is at mid-life,
mid-time (or benefiting from an above-average maintenance status if it is
new or nearly new).
1
<PAGE> 114
[AVITAS GRAPHIC]
AIRCRAFT VALUE
AVITAS's opinion as to the value of the subject aircraft is presented below
in millions of U.S. dollars.
The Base Value of a new aircraft is the modal price paid by an average
operator in a single unit or small lot sale. Actual transaction prices may be
either above or below that level due to a number of factors. For example, a
launch order or a large fleet order may result in discounts, whereas a single
unit sale to a small operator who needs a substantial amount of support may be
approaching the list price.
Furthermore, implicit in these values is AVITAS's assumption that the new
aircraft will remain with the original operator for at least two years. If a
newly delivered aircraft comes onto the market, the seller is at an immediate
disadvantage as he is likely to be in competition with the manufacturer who can
offer training and support.
2
<PAGE> 115
FIGURE 1
<TABLE>
<CAPTION>
<C> <C> <C> <S> <C>
- ---------------------------------------------------------------------------------------------
AMERICA WEST AIRLINES
AIRCRAFT VALUES
(US$ MILLIONS)
- ---------------------------------------------------------------------------------------------
DELIVERY BASE
REG. NO. TYPE ENGINES DATE VALUE
- ---------------------------------------------------------------------------------------------
N807AW A319-100 V2524-A5 Aug-99 $35.2
- ---------------------------------------------------------------------------------------------
N808AW A319-100 V2524-A5 Sep-99 35.2
- ---------------------------------------------------------------------------------------------
N809AW A319-100 V2524-A5 Oct-99 35.3
- ---------------------------------------------------------------------------------------------
N810AW A319-100 V2524-A5 Nov-99 35.3
- ---------------------------------------------------------------------------------------------
N811AW A319-100 V2524-A5 Feb-00 36.0
- ---------------------------------------------------------------------------------------------
N654AW A320-200 V2527-A5 Aug-99 43.5
- ---------------------------------------------------------------------------------------------
N655AW A320-200 V2527-A5 Sep-99 43.5
- ---------------------------------------------------------------------------------------------
N656AW A320-200 V2527-A5 Oct-99 43.7
- ---------------------------------------------------------------------------------------------
N657AW A320-200 V2527-A5 Oct-99 43.7
- ---------------------------------------------------------------------------------------------
N658AW A320-200 V2527-A5 Feb-00 44.5
- ---------------------------------------------------------------------------------------------
</TABLE>
GENERAL MARKET OVERVIEW
INTRODUCTION
AVITAS believes that the aircraft market is poised to experience a downturn
in the market cycle. While these economic changes tend to precipitate a feeling
of panic in the industry, it is important to note that the cycle presents an
opportunity to invest soundly for those who have the proper resources and
confidence.
Orders are believed to have reached their peak in 1998. Lagging behind
slightly are deliveries, which in 1999 are scheduled to be over 1,200. Aircraft
deferrals notwithstanding, 1999 will represent the peak for deliveries in this
cycle. In comparison, approximately 933 aircraft were delivered in 1998 and 650
in 1997.
Competition between Airbus and Boeing has kept the cost of new aircraft at
a comfortable level and low inflation has been beneficial to the financing of
large deals. The changing structure of Airbus will continue to affect pricing by
bringing market competition to the foreground. U.S. airlines experienced their
best financial year ever in 1998 due to strong domestic demand and healthy
fares. They shared their wealth by ordering large numbers of narrowbodies.
Margin over market share appears to be the new strategy as carriers take
advantage of low fuel prices and restructure to lower their operating costs.
BACKGROUND--AIRBUS A319
The A319 program was launched in June 1993 and the first aircraft of the
type was certified in April 1996. The aircraft seats 124 passengers in a typical
two-class configuration or 154 in a maximum seating configuration. It has a
basic range of 2,000 nautical miles with a MTOW of 141,100 pounds and an
optional range of 3,500 nautical miles with a MTOW of 149,900 pounds. The A319
has a fuselage 12 feet shorter than that of the A320, accomplished by removing
two fuselage plugs.
The design of this new aircraft is focused on maintaining a high degree of
commonality with the A320 and the A321 so that an existing A319 operator could
easily transition to its larger versions, where almost all of the major systems
of the A319 are exactly the same.
3
<PAGE> 116
The A319 is available with either CFM56-5A or IAE V2500-A5 engine and meets
the noise abatement requirements outlined in U.S. FAR Part 36, Stage 3, and ICAO
Annex 16, Chapter 3 regulations.
CURRENT MARKET--AIRBUS A319-100
CURRENT MARKET
AVITAS believes that A319 current market is firm, representative of the
narrowbody market as a whole. The aircraft type has a solid operator base and
backlog and the benefit of commonality with other Airbus products. Airbus has
during the last year captured some strategically important orders from formerly
Boeing loyal airlines and lessors. The A319 competes with the Boeing 737-300 and
- -700 aircraft, of which there are currently a combined 1,187 aircraft in service
and 292 on firm order.
HISTORIC MARKET DEVELOPMENT
The development of the A319, A320, and A321 characterizes the market
strategy of Airbus to build an entire family of aircraft capable of
accommodating a wide range of travel demands while maintaining a high degree of
commonality. Operators that have a mixed fleet of A319, A320s and A321s will a
have greater ability to match capacity to demand, reduce operating cost,
increase crew productivity and simplify ground handling. This is shown by the
fact that all but one current operator of A319 aircraft or with A319 aircraft on
order are present A320 customers.
AVAILABILITY
As of May 1999, AVITAS is not aware of any used aircraft available. This is
in line with expectations for such a new aircraft program.
CURRENT OPERATOR BASE AND BACKLOG
As of April there were 140 A319-100 aircraft in service and 404 on firm
order.
OUTLOOK AND FUTURE ASSET RISK ANALYSIS
It is AVITAS's opinion that expansion of the A319's operator base will
primarily come from existing A320 operators. Of minor concern is the trend
surfacing in recent orders whereby the orderholders have likely ordered the
aircraft with the flexibility to convert to A320 or A321 aircraft; however, the
strength of the A320 family of aircraft in the market has overall positive
implications for the A319. With a backlog of 404 firm orders among 17 airline
operators and four leasing companies and acceptance in the North American
market, the A319 values should remain firm for the foreseeable future.
BACKGROUND--AIRBUS A320 SERIES
The A320, a Stage 3 compliant short to medium range twin-engine jetliner,
was launched in 1984 with certification in 1988. The original was the A320-100,
of which there are only 18 in service among two airline operators. The -100
aircraft have no wing center tank which limits the range and payload.
The A320-200 was first flown and delivered in 1988 to Air France and
British Caledonian Airways. Its typical configuration includes a two-person
cockpit crew with capacity for 150 passengers but the aircraft can seat 164 in a
single-class arrangement. The A320 has a range of 3,000 nautical miles with 150
passengers. It is powered by CFM56-5A1/-5A3, V2500-A1/A5 and V2527-A5 engines,
with thrust ranging from 25,000 pounds to 26,500 pounds. The maximum takeoff
weight (MTOW) ranges from 162,000 pounds to 169,750 pounds. A technically
advanced aircraft, the A320 includes such design concepts as fly-by-wire flight
controls, centralized maintenance reporting system, side stick controllers in
the cockpit and the use of composite materials in the major elements of primary
structures including the horizontal and vertical stabilizers.
4
<PAGE> 117
The A320 has a common type rating with the A319 and the A321, which means
that they can be operated as one aircraft type with cost saving advantages in
crew training and maintenance procedures.
CURRENT MARKET--AIRBUS A320-200
CURRENT MARKET
AVITAS is of the opinion that the current market for the Airbus A320 series
aircraft is firm. This is evidenced by a low level of availability and high
demand for the type, which AVITAS attributes to a strong Stage 3 narrowbody
aircraft market. Airbus has enjoyed a great deal of success in 1998 with the
A320 aircraft and has received several large and strategically important orders
from traditional Boeing customers. In addition, the Asian crisis has left this
family of aircraft largely unscathed, as only a handful A320 orders have been
canceled.
HISTORIC MARKET DEVELOPMENT
The A320 market was very soft during the early 1990s with an excess supply
of new aircraft being delivered into a depressed market. This was caused not
only by bankruptcies of several carriers with A320s on order, but also by the
speculative buying of A320s by leasing companies. Additionally, Airbus had to
take on Boeing, which already had an established market base for its 737
product. During 1994 and 1995, the market for the aircraft firmed substantially
and has since then remained stable.
AVAILABILITY
As of May 1999, AVITAS is aware of one A320-200s available for ACMI lease
from Interscaldes Management. Availability for A320 aircraft has been
consistently low for several months. In May 1998, there were 18 A320-200 on the
market.
OPERATOR BASE AND BACKLOG
As of April 1999, there were 710 aircraft in service and 351 on firm order.
The operator base is significant with 87 airlines, and major leasing companies
having 97 firm orders.
OUTLOOK AND FUTURE ASSET RISK ANALYSIS
AVITAS believes that the A320-200 will continue to be a significant
competitor in the 150-seat market well into the future with competition from
Boeing 737-400 and the 737-800. The A320 has more range than the 737-400 and
slightly higher seat capacity. The 737-800 has approximately the same range
(3,000 nautical miles) but 12 more seats than the A320 (exact number of seats
depends on seat configuration).
The A320-200 has a well-established population of aircraft currently in
service among a broad operator base. This coupled with the 351 aircraft on firm
order scheduled for delivery throughout the year 2006 indicates the future
market base for the type is due to expand significantly and residual values will
remain firm.
Pratt & Whitney is developing the PW 8000 engine for a new generation A320,
which may enter service in 2005. With the introduction of the PW 8000, the
engine manufacturer hopes to reduce maintenance costs, and lower fuel
consumption. This will improve an already technologically advanced aircraft.
COVENANTS
Unless otherwise noted, the values presented in this report assume an
arm's-length, free market transaction for cash between informed, willing and
able parties free of any duress to complete the transaction. If a distress sale
becomes necessary, a substantial discount may be required to quickly dispose of
the equipment.
5
<PAGE> 118
AVITAS does not have, and does not intend to have, any financial or other
interest in the subject aircraft. Further, this report is prepared for the
exclusive use of the Client and shall not be provided to other parties without
the express consent of the Client.
This report represents the opinion of AVITAS and is intended to be advisory
only in nature. Therefore, AVITAS assumes no responsibility or legal liability
for any action taken, or not taken, by the Client or any other party, with
regard to this equipment. By accepting this report, all parties agree that
AVITAS shall bear no such responsibility or legal liability including liability
for special or consequential damage.
STATEMENT OF INDEPENDENCE
AVITAS hereby states that this valuation report has been independently
prepared and fairly represents AVITAS's opinion of the subject aircraft's value.
/s/ SUSANNA BLACKMAN
- ---------------------------------------------------------
Susanna Blackman
Manager--Appraisal Operations
6
<PAGE> 119
APPENDIX A--AVITAS APPRAISAL METHODOLOGY
At AVITAS, we undertake formal periodic value reviews of the approximately
ten dozen aircraft types that we regularly track as well as value updates as
market events and movements require. The primary value opinions we develop are
Market Value, Base Value and Future Base Value. An aircraft's Market Value is
the price at which you could sell the aircraft under the market conditions
prevailing at the time in question and its Base Value is the theoretical value
of the aircraft assuming a balanced market in terms of supply and demand. In
reaching our value opinions, we use data on actual market transactions, various
analytical techniques, a proprietary forecasting model and our own extensive
industry experience. And while Market Value and Base Value embody different
value concepts, we are continually cross checking their relationships to
determine if our value opinions are reasonable given existing market conditions.
Our broad aviation industry backgrounds are critically important; they add
a diversity of viewpoints and a high degree of realism to our value opinions.
Our backgrounds include: aircraft design, performance analysis, traffic and
yield forecasting, fleet forecasting, aircraft finance, the negotiation of
aircraft loans, finance leases and operating leases, problem deal workouts,
repossessions, aircraft sales, jetliner manufacturing, maintenance and overhaul
activities, econometric modeling and forecasting, market research, and database
development.
- MARKET VALUE In determining Current Market Values, we use a blend of
techniques and tools. First, through various services and our extensive
personal contacts, we collect as much actual transaction data as
possible on aircraft sales, leases, financings and scrappings. Our
published values assume airframes, engines and landing gear to be
halfway through their various overhaul and/or life cycles. Because sales
of half-life aircraft rarely occur, and because sales can include spare
engines, parts, attached lease streams, tax considerations and other
factors, judgment and experience are important in adjusting actual
transaction data to represent clean, half-life Market Values. In
addition, because over the last several years there have been a large
number of aircraft leases, our experience and knowledge of the market is
used to make value inferences from lease rentals and terms.
As a supplement to transaction data, and in some cases in the absence of
actual market activity, we also use other methods to assist in framing Market
Value opinions. We use several analytical tools because we do not believe that
there is any one technique which always results in the "right" number.
Replacement cost analysis can simply be the cost of a new airplane of the same
model or it can be used where it is possible to reproduce an aircraft. It is
often helpful in framing the upper limit of an aircraft's value, particularly
for modified or upgraded aircraft. Examples would be a passenger aircraft such
as the 747-100 which can be converted into freighter configuration or a Stage 2
airplane which can be hushkitted to Stage 3 compliance. Value in use or income
analysis is another technique in which an aircraft's earning capacity over time
is determined and the present value of those earnings is calculated. Because
different operators have different costs, yields and hurdle rates of return,
this technique can yield a range of values. Therefore, the appraiser must use
his judgment to determine what value in that range represents a Market Value
representative of the overall marketplace. Another powerful tool which we use is
should-cost analysis, which is a blend of replacement cost and value in use
analysis. This technique is used when there is little or no market data on a
particular airplane type but there is on similar or competing types. By
analyzing the economic and operational profiles of competing aircraft, the
appraiser is able to impute what the aircraft in question should cost to
position it competitively.
Once we have formulated our own internal Market Value opinions, we present
them to a small, select group of outside aviation experts--individuals in the
fields of aircraft manufacturing, sales, remarketing, financing and forecasting
who we know well and regard very highly--for their review and frank comments. We
consider this "reality check," which often results in further value refinements,
to be a critical part of our value process in that it helps us combat "ivory
tower syndrome."
- BASE VALUE The determination of Base Value, an aircraft's balanced
market, long term value, is a highly subjective matter, one in which
even the most skilled appraisers may have widely
7
<PAGE> 120
divergent views. We use three main tools in developing Base Values.
First, we use our own research, judgment and perceptions of each
aircraft type's long term competitive strengths and weaknesses vis-a-vis
both competing aircraft types and the marketplace as a whole. Second, we
utilize a transaction-based computer forecasting model developed by a
former AVITAS director and refined over the years. Based on thousands of
actual market transactions, the model sets forth a series of value
curves which describe the value behaviors of aircraft under different
circumstances. Third, we do a final reality check by comparing our
opinion of an aircraft's Base Value to our opinion of its Current Market
Value and current marketplace conditions.
We analyze each aircraft model to determine its historic, current and
projected competitive position with respect to similar aircraft types in terms
of mission capability (i.e., what are the aircraft's capabilities and to what
extent does the market require those capabilities), economic profile and market
penetration. As a result of weighing those factors, we assign a numerical
"strength" to each aircraft for each year of its economic life, where Strength
10 represents the strongest value performance and Strength 1 the weakest. The
model then takes those strength factors and translates them into the aircraft's
Base and Future Base Values based on its actual replacement cost (or theoretical
replacement cost if it is no longer in production). After Base Values have been
calculated, we compare them to our Current Market Value opinions as a
calibration check of the computer model. In the infrequent case where the
marketplace for that aircraft is in balance, Base Value and Current Market Value
should be the same. In most cases, though, we must subjectively compare Base
Value with Current Market Value to see if we believe the relationship is
reasonable. This may highlight where Base Value inputs require further
refinements. Because of the dynamics of the aircraft marketplace and our
continuing recalibration, Base Value opinions are not static.
8
<PAGE> 121
[AVSOLUTIONS LETTERHEAD]
July 6, 1999
Mr. Doug Parker
Executive Vice President
America West Airlines
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Dear Mr. Parker:
Aviation Solutions Inc. (AvSOLUTIONS) is pleased to provide this opinion on
the base value, as of July 1999, of five Airbus Industrie A319-100 aircraft and
five Airbus Industrie A320-200 aircraft (the aircraft). The Airbus A319-100
aircraft are powered by IAE V2524-A5 engines. The Airbus A320-200 aircraft are
powered by IAE V2527-A5 engines. The total of ten aircraft will be delivered new
to America West Airlines between the third quarter of 1999 and the first quarter
of 2000. A listing of the A319-100 and A320-200 aircraft is provided as
attachment 1 of this document.
Set forth below is a summary of the methodology, considerations and
assumptions utilized in this appraisal.
BASE VALUE
Base value is the appraiser's opinion of the underlying economic value of
an aircraft in an open, unrestricted, stable market environment with a
reasonable balance of supply and demand, and assumes full consideration of its
"highest and best use". An aircraft's base value is founded in the historical
trend of values and in the projection of future value trends and presumes an
arm's length, cash transaction between willing, able and knowledgeable parties,
acting prudently, with an absence of duress and with a reasonable period of time
available for marketing.
CURRENT FAIR MARKET VALUE
According to the International Society of Transport Aircraft Trading's
(ISTAT) definition of Fair Market Value (FMV), to which AvSOLUTIONS subscribes,
the quoted FMV is the appraiser's opinion of the most likely trading price that
may be generated for an aircraft under the market circumstances that are
perceived to exist at the time in question. The fair market value assumes that
the aircraft is valued for its highest and best use, that the parties to the
hypothetical sales transaction are willing, able, prudent and knowledgeable, and
under no unusual pressure for a prompt sale, and that the transaction would be
negotiated in an open and unrestricted market on an arm's length basis, for cash
equivalent consideration, and given an adequate amount of time for effective
market exposure to prospective buyers, which AvSOLUTIONS considers to be ten to
twenty months.
APPRAISAL METHODOLOGY
The method employed by AvSOLUTIONS to appraise the current and future
values of aircraft and the associated equipment addresses the factors that
influence the market value of an aircraft, such as its age, condition,
configuration, the population of similar aircraft, similar aircraft on the
market, operating costs, cost to acquire a new aircraft, and the state of demand
for transportation services.
To achieve this objective, cross-sectional data concerning the values of
aircraft in each of several general categories is collected and analyzed.
Cross-sectional data is then postulated and compared with reported market values
at a specified point in time. Such data reflect the effect of deterioration in
aircraft performance due to usage and exposure to the elements, as well as the
effect of obsolescence due to the evolutionary development and implementation of
new designs and materials.
<PAGE> 122
Page 2
America West Airlines
The product of the analysis identifies the relationship between the value
of each aircraft and its characteristics, such as age, model designation,
service configuration and engine type. Once the relationship is identified, one
can then postulate the effects of the difference between the economic
circumstances at the time when the cross-sectional data were collected and the
current situation. Therefore, if one can determine the current value of an
aircraft in one category, it is possible to estimate the current values of all
aircraft in that category.
The manufacturer and size of the aircraft usually determine the specific
category to which it is assigned. Segregating the world airplane fleet in this
manner accommodates the potential effects of different size and different design
philosophies.
The variability of the data used by AvSOLUTIONS to determine the current
and future market values implies that the actual value realized will fall within
a range of values. Therefore, if a contemplated value falls within the specified
confidence range, AvSOLUTIONS cannot reject the hypothesis that it is a
reasonable representation of the current market situation.
LIMITING CONDITIONS AND ASSUMPTIONS
In order to conduct this valuation, AvSOLUTIONS is solely relying on
information as supplied by America West Airlines and from data within
AvSOLUTIONS' own database. In determining the base value of the subject Airbus
A319-100 and Airbus A320-200 aircraft, the following assumptions have been
researched and determined:
1. AvSOLUTIONS has not inspected these aircraft or their maintenance
records; accordingly, AvSOLUTIONS cannot attest to their specific
location or condition.
2. The aircraft will be delivered new to America West Airlines between the
third quarter of 1999 and the first quarter of 2000.
3. The aircraft will be certified, maintained and operated under United
States Federal Aviation Regulation (FAR) part 121.
4. All mandatory inspections and Airworthiness Directives have been
complied with.
5. The aircraft have no damage history.
6. The aircraft are in good condition.
7. AvSOLUTIONS considers the economic useful life of these aircraft to be
at least 32 years.
Based upon the above methodology, considerations and assumptions, it is
AvSOLUTIONS' opinion that the base values of each aircraft are as listed in
attachment 1.
STATEMENT OF INDEPENDENCE
This appraisal report represents the opinion of AvSOLUTIONS, and is
intended to be advisory in nature. Therefore, AvSOLUTIONS assumes no
responsibility or legal liability for actions taken or not taken by the Client
or any other party with regard to the subject aircraft. By accepting this
report, the Client agrees that AvSOLUTIONS shall bear no responsibility or legal
liability regarding this report. Further, this report is prepared for the
exclusive use of the Client and shall not be provided to other parties without
the Client's express consent.
<PAGE> 123
Page 3
America West Airlines
AvSOLUTIONS hereby states that this valuation report has been independently
prepared and fairly represents the subject aircraft and AvSOLUTIONS' opinion of
their values. AvSOLUTIONS further states that it has no present or contemplated
future interest or association with the subject aircraft.
Signed,
/s/ BRYANT LYNCH
--------------------------------------
Bryant Lynch
Manager, Commercial Appraisals
<PAGE> 124
MORTEN BEYER & AGNEW
- --------------------------------------------------------------------------------
AVIATION CONSULTING FIRM
APPRAISAL OF
FIVE AIRBUS A319-132
AND
FIVE AIRBUS A320-231/-232 AIRCRAFT
PREPARED FOR:
AMERICA WEST AIRLINES
JULY 13, 1999
<TABLE>
<S> <C>
Washington, D.C. London
8180 Greensboro Drive Lahinch 62, Lashmere
Suite 1000 Copthorne
McLean, Virginia 22102 West Sussex
Phone +703 847 6598 Phone +44 1342 716248
Fax +703 847 1911 Fax +44 1342 718967
</TABLE>
<PAGE> 125
I. INTRODUCTION AND EXECUTIVE SUMMARY
Morten Beyer & Agnew (MBA) has been retained by America West Airlines to
determine the Base Values of five A319-132 and five Airbus A320-231/-232
passenger aircraft. The aircraft are further identified in Section II of this
report.
Based on the information set forth in this report, it is our opinion that
the aggregate Base Value of the aircraft in this portfolio is $415,850,000 with
their respective individual values noted in Section II.
MBA uses the definition of certain terms, such as Current Market Value and
Base Value, as promulgated by the Appraisal Program of International Society of
Transport Aircraft Trading (ISTAT), a non-profit association of management
personnel from banks, leasing companies, airlines, manufacturers, brokers, and
others who have a vested interest in the commercial aviation industry and
established a technical and ethical recognition as expert appraisers.
ISTAT defines Current Market Value (CMV) as the appraiser's opinion of the
most likely trading price that may be generated for an aircraft under market
conditions that are perceived to exist at the time in question. Market Value
(MV) assumes that the aircraft is valued for its highest, best use; that the
parties to the hypothetical sale transaction are willing, able, prudent and
knowledgeable and under no unusual pressure for a prompt sale; and that the
transaction would be negotiated in an open and unrestricted market on an
arm's-length basis, for cash or equivalent consideration, and given an adequate
amount of time for effective exposure to prospective buyers.
The ISTAT definition of Base Value (BV) states that market circumstances
are assumed to be in a reasonable state of equilibrium. Thus, BV pertains to an
idealized aircraft and market combination and will not necessarily reflect the
actual Current Market Value of the aircraft in question. BV is founded in the
historical trend of values and is generally used to analyze historical values or
to project future values.
II. AIRCRAFT & BASE VALUES
<TABLE>
<CAPTION>
<S> <C> <C> <C>
- ---------------------------------------------------------------------------------------
A319 & A320 AIRCRAFT
- ---------------------------------------------------------------------------------------
TAIL NUMBER DELIVERY DATE ENGINE TYPE BASE VALUES
- ---------------------------------------------------------------------------------------
807 (A319-132) August 1999 V2524-A5 $37,900,000
- ---------------------------------------------------------------------------------------
808 (A319-132) September 1999 V2524-A5 $38,040,000
- ---------------------------------------------------------------------------------------
809 (A319-132) October 1999 V2524-A5 $38,190,000
- ---------------------------------------------------------------------------------------
810 (A319-132) November 1999 V2524-A5 $38,330,000
- ---------------------------------------------------------------------------------------
811 (A319-132) February 2000 V2524-A5 $38,760,000
- ---------------------------------------------------------------------------------------
A319-132 TOTAL $191,370,000
- ---------------------------------------------------------------------------------------
654 (A320-231) August 1999 V2500-A1 $44,540,000
- ---------------------------------------------------------------------------------------
655 (A320-231) September 1999 V2500-A1 $44,720,000
- ---------------------------------------------------------------------------------------
656 (A320-232) October 1999 V2527-A5 $44,890,000
- ---------------------------------------------------------------------------------------
657 (A320-232) October 1999 V2527-A5 $44,890,000
- ---------------------------------------------------------------------------------------
658 (A320-232) February 2000 V2527-A5 $45,590,000
- ---------------------------------------------------------------------------------------
A320-232 TOTAL $224,630,000
- ---------------------------------------------------------------------------------------
GRAND TOTAL $415,850,000
- ---------------------------------------------------------------------------------------
</TABLE>
III. CURRENT MARKET CONDITIONS
A319--A320-200--A321-100/-200
The A320 was Airbus' first all new design since the launch of the original
A300 in 1971. The program was initiated in 1983 and logged almost 400 orders
prior to first delivery in 1988. The A320s are now
<PAGE> 126
offered with both the CFM-56 and the IAE V-2500 engine, with the CFM version
having a long head start. The A320 has achieved a wide market base on all
continents, with a total of 79 current operators to date.
The A321, a stretched version designed to directly challenge the 757-200
and bridge the gap between the A320 and A330/340, was launched in 1989. The
first deliveries were made to Lufthansa and Alitalia in early 1994. Seating in
the A321 was increased to 186 (and more in all-coach configurations) from a
nominal 150 in the A320 and the gross weight increased by 19,200 pounds.
The A319 is the opposite of the A321--that is, a truncated version of the
original aircraft. The program was officially launched with a modest
six-aircraft order by leasing giant ILFC in late 1992. Prospects were not
encouraging as more than one year went by before subsequent orders were placed.
However, Air Canada provided a major boost to Airbus with an order of 35 A319s
in April 1994 (35 now delivered). Ironically, the carrier had reportedly decided
against ordering new aircraft to replace its aging DC-9 fleet when Fokker
Aircraft convinced the carrier to re-examine the benefits of new airframes. ACA
Chairman Hollis Harris agreed, but Fokker lost the battle to its European
competitor.
The Northwest and Air Canada situations are significant due to the Airbus
family concept factor, (common type ratings and minimal differences training for
pilots of the A319 through A340 aircraft), which is the core of the
manufacturer's goal to develop entire fleets with major carriers. Air Canada,
which operates A320s already, chose this Airbus concept with both the A319 order
and an eight-plane A340 order as well. Northwest Airlines, which operates 65
A320s (and has 5 on order) ordered 50 A319s and switched their A340 order for 16
A330s for delivery beyond 2000. Other carriers, including Air France and
Lufthansa, operate at least three of these five types, but the European
influence may tilt decision-makers at airlines such as these. Airbus believes
its concept will give its new designs significant advantages over Boeing
aircraft, and the 1997 and 1998 order books indicate it is doing just that. MBA
believes the combination of extremely efficient designs and the inherent savings
in training and other costs make the Airbus family an attractive avenue for an
entire fleet refurbishment, as US Airways' commitment for 400-some aircraft
appears to justify.
United's 1994 order for 50 A320s, plus an option for 50 more was announced
as a 727 replacement, of which United still operates 52 and has 34 A320s on
order. It is obvious that other airlines will use their large orders to surplus
older aircraft as well. Alitalia, with 22 A321s in service and three on order,
is replacing its stable of MD-82s. As mentioned, Air Canada's commitments for
the A319 will eventually go to reduce the fleet count of DC-9s. Thus the advent
of the A320 family is hastening the retirement of older, far less efficient
jets. The A320s currently in service are operating at seat mile costs as low as
half of that for older aircraft. The combination of all the above factors leads
us to believe the A320 family will enjoy a long production run and in-service
useful life, with strong residual values.
The A320 also offers the advantage of being able to carry seven LD-3 cargo
containers--a feat not even the 767 can perform. The fuselage is approximately
10 inches wider than that of the 727/737/757 series, offering wider aisles and
roomier seats--a feature much appreciated by passengers. There are no cargo or
Combi models currently offered by Airbus, although such a configuration is
obviously possible
ECONOMICS
The A320/321 vies with the 757 for top honors as the most efficient
aircraft in service. Great fuel efficiency, new technology design and low
operating cost parameters all combine to give these aircraft among the lowest
seat mile costs of any being built or in service. The MBA Model indicates that
both will produce very satisfactory operating and net ratios well into the next
century. The A319 will not be quite as favorable, as is the case with most
truncated derivatives (747SP, L-1011-500). They will, however, provide enough
incentive for larger carriers (likely with Airbus aircraft already) to order and
place them at the bottom of the capacity scale in their fleets.
TOTAL NUMBER OF A319S ON MARKET, APRIL 1999: NONE
TOTAL NUMBER OF A320S ON MARKET, APRIL 1999: FIVE
2
<PAGE> 127
IV. A319 PROFILE
<TABLE>
<CAPTION>
<S> <C>
- -----------------------------------------------------------------------------
A319 FLEET STATISTICS
- -----------------------------------------------------------------------------
AS OF APRIL 1999
- -----------------------------------------------------------------------------
Number of Ordered Aircraft 570
- -----------------------------------------------------------------------------
Number of Delivered Aircraft 131
- -----------------------------------------------------------------------------
Number of Cancelled Aircraft 16
- -----------------------------------------------------------------------------
Backlog 423
- -----------------------------------------------------------------------------
Options 342
- -----------------------------------------------------------------------------
Delivered in the last 12 months 50
- -----------------------------------------------------------------------------
Number of Destroyed Aircraft 0
- -----------------------------------------------------------------------------
Number of Retired Aircraft 0
- -----------------------------------------------------------------------------
Number of Parked Aircraft 0
- -----------------------------------------------------------------------------
Number of Aircraft in Operation 131
- -----------------------------------------------------------------------------
Number of Operators 12
- -----------------------------------------------------------------------------
Number of Leased Aircraft 31
- -----------------------------------------------------------------------------
Number of Owned Aircraft 100
- -----------------------------------------------------------------------------
</TABLE>
NOTE: There were only three A319-132 aircraft delivered to America West Airlines
as of April 1999.
<TABLE>
<CAPTION>
<S> <C>
- -----------------------------------------------------------------------------
A319 ENGINE DISTRIBUTION
- -----------------------------------------------------------------------------
AS OF APRIL 1999
- -----------------------------------------------------------------------------
CFM56-5A 67 Aircraft
- -----------------------------------------------------------------------------
CFM56-5B 34 Aircraft
- -----------------------------------------------------------------------------
V2522-A5 26 Aircraft
- -----------------------------------------------------------------------------
V2524-A5 4 Aircraft
- -----------------------------------------------------------------------------
TOTAL 131 Aircraft
- -----------------------------------------------------------------------------
</TABLE>
3
<PAGE> 128
Geographic dispersion of the A319 operator base was as follows:
[GEOGRAPHIC DISPERSION OF A319 OPERATOR BASE GRAPHIC]
V. A320 PROFILE
<TABLE>
<CAPTION>
<S> <C>
- -----------------------------------------------------------------------------
A320 FLEET STATISTICS
- -----------------------------------------------------------------------------
AS OF APRIL 1999
- -----------------------------------------------------------------------------
Number of Ordered Aircraft 1,273
- -----------------------------------------------------------------------------
Number of Delivered Aircraft 716
- -----------------------------------------------------------------------------
Number of Cancelled Aircraft 98
- -----------------------------------------------------------------------------
Backlog 459
- -----------------------------------------------------------------------------
Options 166
- -----------------------------------------------------------------------------
Delivered in the last 12 months 80
- -----------------------------------------------------------------------------
Number of Destroyed Aircraft 6
- -----------------------------------------------------------------------------
Number of Retired Aircraft 0
- -----------------------------------------------------------------------------
Number of Parked Aircraft 5
- -----------------------------------------------------------------------------
Number of Aircraft in Operation 710
- -----------------------------------------------------------------------------
Number of Operators 79
- -----------------------------------------------------------------------------
Number of Leased Aircraft 366
- -----------------------------------------------------------------------------
Number of Owned Aircraft 344
- -----------------------------------------------------------------------------
</TABLE>
NOTE: There were 21 A320-231 and 12 A320-232 aircraft delivered to America West
Airlines as of April 1999.
4
<PAGE> 129
<TABLE>
<CAPTION>
<S> <C>
- -----------------------------------------------------------------------------
A320 ENGINE DISTRIBUTION
- -----------------------------------------------------------------------------
AS OF APRIL 1999
- -----------------------------------------------------------------------------
CFM56-5A 359 Aircraft
- -----------------------------------------------------------------------------
CFM56-5B 74 Aircraft
- -----------------------------------------------------------------------------
V2500-A1 142 Aircraft
- -----------------------------------------------------------------------------
V2527-A5 119 Aircraft
- -----------------------------------------------------------------------------
V2527E-A5 16 Aircraft
- -----------------------------------------------------------------------------
TOTAL 710 Aircraft
- -----------------------------------------------------------------------------
</TABLE>
Geographic dispersion of the A320 operator base was as follows:
[GEOGRAPHIC DISPERSION OF A320 OPERATOR BASE GRAPHIC]
VI. COVENANTS
This report has been prepared for the exclusive use of America West
Airlines and shall not be provided to other parties by MBA without the express
consent of America West Airlines.
MBA certifies that this report has been independently prepared and that it
fully and accurately reflects MBA's opinion as to the Base Value. MBA further
certifies that it does not have, and does not expect to have, any financial or
other interest in the subject or similar aircraft.
This report represents the opinion of MBA as to the Base Value of the
subject aircraft and is intended to be advisory only, in nature. Therefore, MBA
assumes no responsibility or legal liability for any actions taken, or not
taken, by America West Airlines or any other party with regard to the subject
5
<PAGE> 130
aircraft. By accepting this report, all parties agree that MBA shall bear no
such responsibility or legal liability.
PREPARED BY:
/s/ TEO OZDENER
--------------------------------------
TEO OZDENER, M.SC., P.ENG.
VICE PRESIDENT--TECHNICAL
REVIEWED BY:
/s/ MORTEN S. BEYER
--------------------------------------
MORTEN S. BEYER, APPRAISER FELLOW
CHAIRMAN & CEO
ISTAT CERTIFIED SENIOR APPRAISER
6
<PAGE> 131
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The Company's Restated Certificate of Incorporation and Restated Bylaws
provide that the Company will indemnify each of its directors and officers to
the full extent permitted by the laws of the State of Delaware and may indemnify
certain other persons as authorized by the Delaware General Corporation Law (the
"GCL").
Section 145 of the GCL provides as follows:
"(a) A corporation shall have power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation
and except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in
subsections (a) and (b). Such determination shall be made (1) by a majority
vote of the board of directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) if there are no such
directors,
II-1
<PAGE> 132
or if such directors so direct, by independent legal counsel in a written
opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative, or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any bylaw, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
such office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability
under this section.
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent for such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to an employee benefit
plan; and references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit
plan, its participants, or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of expenses
or indemnification brought under this section or under any bylaw,
agreement, vote of stockholders or disinterested directors, or otherwise.
The Court of Chancery may summarily determine a corporation's obligation to
advance expenses (including attorneys' fees).
(l) The Restated Certificate of Incorporation and Restated Bylaws
also limit the personal liability of directors to the Company and its
stockholders for monetary damages resulting from certain
II-2
<PAGE> 133
breaches of the directors' fiduciary duties. The Restated Certificate of
Incorporation of the Company provides as follows:
"A person who is or was a Director of the Corporation shall not be
personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a Director, except for liability
(i) for any breach of the Director's duty of loyalty to the corporation
or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the DGCL or (iv) for any transaction from
which the Director derived any improper personal benefit. If the DGCL is
amended to authorize corporate action further eliminating or limiting
the personal liability of Directors, then the liability of Directors of
the Corporation shall be eliminated or limited to the full extent
permitted by the DGCL, as so amended. The elimination and limitation of
liability provided herein shall continue after a Director has ceased to
occupy such position as to acts or omissions occurring during such
Director's term or terms of office, and no amendment or repeal of this
Section 12 shall apply to or have any effect on the liability or alleged
liability of any Director of the Corporation for or with respect to any
acts or omissions of such Director occurring prior to such amendment or
repeal."
The Company maintains directors' and officers' liability insurance.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ------- -----------
<C> <S>
4.1 Form of 8.54% America West Airlines Pass Through Certificate
Series 1999-1C-O (included in Exhibit 4.3)
4.2 Form of 7.93% America West Airlines Pass Through Certificate
Series 1998-1G-O (included in Exhibit 4.5)
4.3 Pass Through Trust Agreement, dated as of September 21,
1999, between America West Airlines, Inc., and Wilmington
Trust Company, as Trustee, made with respect to the
formation of America West Airlines Pass Through Trust,
Series 1999-1C-O and the issuance of 8.54% Initial Pass
Through Certificates, Series 1999-1C-O and 8.54% Exchange
Pass Through Certificates, Series 1999-1C-O
4.4 Pass Through Trust Agreement, dated as of September 21,
1999, between America West Airlines, Inc., and Wilmington
Trust Company, as Trustee, made with respect to the
formation of America West Airlines Pass Through Trust,
Series 1999-1C-S and the issuance of 8.54% Initial Pass
Through Certificates, Series 1999-1C-S and 8.54% Exchange
Pass Through Certificates, Series 1999-1C-S
4.5 Pass Through Trust Agreement, dated as of September 21,
1999, between America West Airlines, Inc., and Wilmington
Trust Company, as Trustee, made with respect to the
formation of America West Airlines Pass Through Trust,
Series 1999-1G-O and the issuance of 7.93% Initial Pass
Through Certificates, Series 1999-1G-O and 7.93% Exchange
Pass Through Certificates, Series 1999-1G-O
4.6 Pass Through Trust Agreement, dated as of September 21,
1999, between America West Airlines, Inc., and Wilmington
Trust Company, as Trustee, made with respect to the
formation of America West Airlines Pass Through Trust,
Series 1999-1G-S and the issuance of 7.93% Initial Pass
Through Certificates, Series 1999-1G-S and 7.93% Exchange
Pass Through Certificates, Series 1999-1G-S
4.7 Revolving Credit Agreement, dated September 21, 1999,
between Wilmington Trust Company, as Subordination Agent, as
agent and trustee for the America West Airlines Pass Through
Trust 1999-1C, as Borrower; and Morgan Stanley Capital
Services, Inc., as Liquidity Provider
</TABLE>
II-3
<PAGE> 134
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ------- -----------
<C> <S>
4.8 Revolving Credit Agreement, dated September 21, 1999,
between Wilmington Trust Company, as Subordination Agent, as
agent and trustee for the America West Airlines Pass Through
Trust 1999-1G, as Borrower; and Morgan Stanley Capital
Services, Inc., as Liquidity Provider
4.9 Intercreditor Agreement, dated as of September 21, 1999,
among Wilmington Trust Company, as Trustee under the America
West Airlines Pass Through Trust 1999-1C and America West
Airlines Pass Through Trust 1999-1G and Morgan Stanley
Capital Services, Inc., as Class C Liquidity Provider and
Class G Liquidity Provider, Ambac Assurance Corporation, as
Policy Provider, and Wilmington Trust Company, as
Subordination Agent and Trustee
4.10 Exchange and Registration Rights Agreement, dated as of
September 21, 1999, among America West Airlines, Inc.;
Wilmington Trust Company, as Trustee under America West
Airlines Pass Through Trust, Series 1999-1C-O and America
West Airlines Pass Through Trust, Series 1999-1G-O; and
Morgan Stanley & Co. Incorporated, Donaldson, Lufkin &
Jenrette Securities Corporation, Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Salomon Smith Barney Inc.
4.11 Deposit Agreement (Class C), dated as of September 21, 1999,
between Wilmington Trust Company, as Escrow Agent under the
Escrow and Paying Agent Agreement, and ABN AMRO Bank N.V.,
Chicago Branch, as Depositary
4.12 Deposit Agreement (Class G), dated as of September 21, 1999,
between Wilmington Trust Company, as Escrow Agent under the
Escrow and Paying Agent Agreement, and ABN AMRO Bank N.V.,
Chicago Branch, as Depositary
4.13 Escrow and Paying Agent Agreement (Class C), dated as of
September 21, 1999, among Wilmington Trust Company, as
Escrow Agent; Morgan Stanley & Co. Incorporated, Donaldson,
Lufkin & Jenrette Securities Corporation, Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Salomon Smith Barney
Inc., as Initial Purchasers; Wilmington Trust Company, as
Pass Through Trustee for and on behalf of America West
Airlines Pass Through Trust 1999-1C-O; and Wilmington Trust
Company as Paying Agent
4.14 Escrow and Paying Agent Agreement (Class G), dated as of
September 21, 1999, among Wilmington Trust Company, as
Escrow Agent; Morgan Stanley & Co. Incorporated, Donaldson,
Lufkin & Jenrette Securities Corporation, Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Salomon Smith Barney
Inc., as Initial Purchasers; Wilmington Trust Company, as
Pass Through Trustee for and on behalf of America West
Airlines Pass Through Trust 1999-1G-O; and Wilmington Trust
Company as Paying Agent
4.15 Insurance and Indemnity Agreement, dated as of September 21,
1999, among America West Airlines, Inc., Ambac Assurance
Corporation as Policy Provider and Wilmington Trust Company
as Subordination Agent and Trustee under the Pass Through
Trust 1999-1G-O.
4.16 Note Purchase Agreement dated as of September 21, 1999,
among America West Airlines, Inc., Wilmington Trust Company
as Pass Through Trustee under each of the Pass Through Trust
Agreements, and Wilmington Trust Company, as Subordination
Agent, Escrow Agent and Paying Agent
5.1 Opinion of Morris, James, Hitchens & Williams as to the
legality of the New Certificates being registered hereby.
12.1 Computation of ratio of earnings to fixed charges
23.1 Consent of Morris, James, Hitchens & Williams (included in
Exhibit 5.1)
23.2 Consent of KPMG LLP
23.3 Consent of AVITAS, Inc.
23.4 Consent of AvSolutions
23.5 Consent of Morten Beyer & Agnew
</TABLE>
II-4
<PAGE> 135
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ------- -----------
<S> <C>
24.1 Power of Attorney (see signature page in Part II of
Registration Statement)
25.1 Statement of Eligibility of Wilmington Trust Company for the
1999-1C Pass Through Certificates, on Form T-1
25.2 Statement of Eligibility of Wilmington Trust Company for the
1999-1G Pass Through Certificates, on Form T-1
99.1 Form of Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees
99.4 Form of Letter to Clients
</TABLE>
ITEM 22. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
shall not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plans annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-5
<PAGE> 136
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant, pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by any such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether or not
such indemnification is against public policy as expressed in the Securities Act
of 1933 and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-6
<PAGE> 137
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Tempe,
State of Arizona, on the 22nd day of December, 1999.
America West Airlines, Inc.
By: /s/ W. DOUGLAS PARKER
------------------------------------
W. Douglas Parker
Executive Vice President, Corporate
Group
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints, jointly and severally, William A.
Franke, W. Douglas Parker, Stephen L. Johnson, and each of them acting
individually, as his attorney-in-fact, each with full power of substitution, for
him in any and all capacities, including as an individual or as an officer or
director authorized to act on behalf of an entity, to sign any and all
amendments to this Registration Statement, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by our said attorney to any and all amendments to said Registration
Statement.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ WILLIAM A. FRANKE Chairman of the Board of December 22, 1999
- --------------------------------------------------- Directors and Director,
William A. Franke President and Chief
Executive Officer (Principal
Executive Officer)
/s/ W. DOUGLAS PARKER Executive Vice President, December 22, 1999
- --------------------------------------------------- Corporate Group (Principal
W. Douglas Parker Financial Officer) and
Director
/s/ MICHAEL R. CARREON Vice President and Controller December 22, 1999
- --------------------------------------------------- (Principal Accounting
Michael R. Carreon Officer)
/s/ JOHN L. GOOLSBY Director December 22, 1999
- ---------------------------------------------------
John L. Goolsby
/s/ WALTER T. KLENZ Director December 22, 1999
- ---------------------------------------------------
Walter T. Klenz
/s/ MARIE L. KNOWLES Director December 22, 1999
- ---------------------------------------------------
Marie L. Knowles
</TABLE>
<PAGE> 138
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ RICHARD C. KRAEMER Director December 22, 1999
- ---------------------------------------------------
Richard C. Kraemer
/s/ ROBERT J. MILLER Director December 22, 1999
- ---------------------------------------------------
Robert J. Miller
/s/ GILBERT D. MOOK Director December 22, 1999
- ---------------------------------------------------
Gilbert D. Mook
/s/ DENISE M. O'LEARY Director December 22, 1999
- ---------------------------------------------------
Denise M. O'Leary
/s/ RICHARD P. SCHIFTER Director December 22, 1999
- ---------------------------------------------------
Richard P. Schifter
/s/ JEFFREY A. SHAW Director December 22, 1999
- ---------------------------------------------------
Jeffrey A. Shaw
/s/ JOHN F. TIERNEY Director December 22, 1999
- ---------------------------------------------------
John F. Tierney
</TABLE>
<PAGE> 139
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ------- -----------
<S> <C>
4.1 Form of 8.54% America West Airlines Pass Through Certificate
Series 1999-1C-O (included in Exhibit 4.3)
4.2 Form of 7.93% America West Airlines Pass Through Certificate
Series 1998-1G-O (included in Exhibit 4.5)
4.3 Pass Through Trust Agreement, dated as of September 21,
1999, between America West Airlines, Inc., and Wilmington
Trust Company, as Trustee, made with respect to the
formation of America West Airlines Pass Through Trust,
Series 1999-1C-O and the issuance of 8.54% Initial Pass
Through Certificates, Series 1999-1C-O and 8.54% Exchange
Pass Through Certificates, Series 1999-1C-O
4.4 Pass Through Trust Agreement, dated as of September 21,
1999, between America West Airlines, Inc., and Wilmington
Trust Company, as Trustee, made with respect to the
formation of America West Airlines Pass Through Trust,
Series 1999-1C-S and the issuance of 8.54% Initial Pass
Through Certificates, Series 1999-1C-S and 8.54% Exchange
Pass Through Certificates, Series 1999-1C-S
4.5 Pass Through Trust Agreement, dated as of September 21,
1999, between America West Airlines, Inc., and Wilmington
Trust Company, as Trustee, made with respect to the
formation of America West Airlines Pass Through Trust,
Series 1999-1G-O and the issuance of 7.93% Initial Pass
Through Certificates, Series 1999-1G-O and 7.93% Exchange
Pass Through Certificates, Series 1999-1G-O
4.6 Pass Through Trust Agreement, dated as of September 21,
1999, between America West Airlines, Inc., and Wilmington
Trust Company, as Trustee, made with respect to the
formation of America West Airlines Pass Through Trust,
Series 1999-1G-S and the issuance of 7.93% Initial Pass
Through Certificates, Series 1999-1G-S and 7.93% Exchange
Pass Through Certificates, Series 1999-1G-S
4.7 Revolving Credit Agreement, dated September 21, 1999,
between Wilmington Trust Company, as Subordination Agent, as
agent and trustee for the America West Airlines Pass Through
Trust 1999-1C, as Borrower; and Morgan Stanley Capital
Services, Inc., as Liquidity Provider
4.8 Revolving Credit Agreement, dated September 21, 1999,
between Wilmington Trust Company, as Subordination Agent, as
agent and trustee for the America West Airlines Pass Through
Trust 1999-1G, as Borrower; and Morgan Stanley Capital
Services, Inc., as Liquidity Provider
4.9 Intercreditor Agreement, dated as of September 21, 1999,
among Wilmington Trust Company, as Trustee under the America
West Airlines Pass Through Trust 1999-1C and America West
Airlines Pass Through Trust 1999-1G, and Morgan Stanley
Capital Services, Inc., as Class C Liquidity Provider and
Class G Liquidity Provider, Ambac Assurance Corporation, as
Policy Provider, and Wilmington Trust Company, as
Subordination Agent and Trustee
4.10 Exchange and Registration Rights Agreement, dated as of
September 21, 1999, among America West Airlines, Inc.;
Wilmington Trust Company, as Trustee under America West
Airlines Pass Through Trust, Series 1999-1C-O and America
West Airlines Pass Through Trust, Series 1999-1G-O; and
Morgan Stanley & Co. Incorporated, Donaldson, Lufkin &
Jenrette Securities Corporation, Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Salomon Smith Barney Inc.
4.11 Deposit Agreement (Class C), dated as of September 21, 1999,
between Wilmington Trust Company, as Escrow Agent under the
Escrow and Paying Agent Agreement, and ABN AMRO Bank N.V.,
Chicago Branch, as Depositary
4.12 Deposit Agreement (Class G), dated as of September 21, 1999,
between Wilmington Trust Company, as Escrow Agent under the
Escrow and Paying Agent Agreement, and ABN AMRO Bank N.V.,
Chicago Branch, as Depositary
</TABLE>
<PAGE> 140
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ------- -----------
<S> <C>
4.13 Escrow and Paying Agent Agreement (Class C), dated as of
September 21, 1999, among Wilmington Trust Company, as
Escrow Agent; Morgan Stanley & Co. Incorporated, Donaldson,
Lufkin & Jenrette Securities Corporation, Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Salomon Smith Barney
Inc., as Initial Purchasers; Wilmington Trust Company, as
Pass Through Trustee for and on behalf of America West
Airlines Pass Through Trust 1999-1C-O; and Wilmington Trust
Company as Paying Agent
4.14 Escrow and Paying Agent Agreement (Class G), dated as of
September 21, 1999, among Wilmington Trust Company, as
Escrow Agent; Morgan Stanley & Co. Incorporated, Donaldson,
Lufkin & Jenrette Securities Corporation, Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Salomon Smith Barney
Inc., as Initial Purchasers; Wilmington Trust Company, as
Pass Through Trustee for and on behalf of America West
Airlines Pass Through Trust 1999-1G-O; and Wilmington Trust
Company as Paying Agent
4.15 Insurance and Indemnity Agreement, dated as of September 21,
1999, among America West Airlines, Inc., Ambac Assurance
Corporation as Policy Provider and Wilmington Trust Company
as Subordination Agent and Trustee under the Pass Through
Trust 1999-1G-O.
4.16 Note Purchase Agreement dated as of September 21, 1999,
among America West Airlines, Inc., Wilmington Trust Company
as Pass Through Trustee under each of the Pass Through Trust
Agreements, and Wilmington Trust Company, as Subordination
Agent, Escrow Agent and Paying Agent
5.1 Opinion of Morris, James, Hitchens & Williams as to the
legality of the New Certificates being registered hereby.
12.1 Computation of ratio of earnings to fixed charges
23.1 Consent of Morris, James, Hitchens & Williams (included in
Exhibit 5.1)
23.2 Consent of KPMG LLP
23.3 Consent of AVITAS, Inc.
23.4 Consent of AvSolutions
23.5 Consent of Morten Beyer & Agnew
24.1 Power of Attorney (see signature page in Part II of
Registration Statement)
25.1 Statement of Eligibility of Wilmington Trust Company for the
1999-1C Pass Through Certificates, on Form T-1
25.2 Statement of Eligibility of Wilmington Trust Company for the
1999-1G Pass Through Certificates, on Form T-1
99.1 Form of Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees
99.4 Form of Letter to Clients
</TABLE>
<PAGE> 1
Exhibit 4.3
EXECUTION COPY
PASS THROUGH TRUST AGREEMENT
Dated as of September 21, 1999
between
AMERICA WEST AIRLINES, INC.
and
WILMINGTON TRUST COMPANY,
as Trustee
America West Airlines Pass Through Trust, Series 1999-1C-O
8.54% Initial Pass Through Certificates, Series 1999-1C-O
8.54% Exchange Pass Through Certificates, Series 1999-1C-O
<PAGE> 2
Reconciliation and tie between America West Airlines Pass Through Trust
Agreement, Series 1999-1C-O dated as of September 21, 1999, and the Trust
Indenture Act of 1939. This reconciliation does not constitute part of the Pass
Through Trust Agreement.
<TABLE>
<CAPTION>
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
<S> <C>
310(a)(1) 7.08
(a)(2) 7.08
312(a) 3.05; 8.01; 8.02
313(a) 7.06; 8.03
314(a) 8.04(a),(c) & (d)
(a)(4) 8.04(e)
(c)(1) 1.02
(c)(2) 1.02
(d)(1) 7.13; 11.01
(d)(2) 7.13; 11.01
(d)(3) 2.01
(e) 1.02
315(b) 7.02
316(a)(last sentence) 1.04(c)
(a)(1)(A) 6.04
(a)(1)(B) 6.05
(b) 6.06
(c) 1.04(e)
317(a)(1) 6.03
(b) 7.13
318(a) 12.06
</TABLE>
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C> <C>
ARTICLE I DEFINITIONS ...........................................................................................2
Section 1.01 Definitions............................................................................2
Section 1.02 Compliance Certificates and Opinions..................................................14
Section 1.03 Form of Documents Delivered to Trustee................................................14
Section 1.04 Directions of Certificateholders......................................................15
ARTICLE II ORIGINAL ISSUANCE OF CERTIFICATES; ACQUISITION OF EQUIPMENT NOTES....................................16
Section 2.01 Issuance of Certificates; Acquisition of Equipment Notes..............................16
Section 2.02 Withdrawal of Deposits................................................................17
Section 2.03 Acceptance by Trustee.................................................................17
Section 2.04 Limitation of Powers..................................................................17
ARTICLE III THE CERTIFICATES....................................................................................18
Section 3.01 Title, Form, Denomination and Execution of Certificates...............................18
Section 3.02 Restrictive Legends...................................................................20
Section 3.03 Authentication of Certificates........................................................21
Section 3.04 Transfer and Exchange.................................................................22
Section 3.05 Book-Entry Provisions for Restricted Global Certificates and Regulation S
Global Certificates...................................................................23
Section 3.06 Special Transfer Provisions...........................................................24
Section 3.07 Mutilated, Destroyed, Lost or Stolen Certificates.....................................27
Section 3.08 Persons Deemed Owners.................................................................27
Section 3.09 Cancellation..........................................................................27
Section 3.10 Temporary Certificates................................................................28
Section 3.11 Limitation of Liability for Payments..................................................28
Section 3.12 ERISA Restrictive Legend..............................................................28
ARTICLE IV DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS......................................................29
Section 4.01 Certificate Account and Special Payments Account......................................29
Section 4.02 Distributions from Certificate Account and Special Payments Account...................29
Section 4.03 Statements to Certificateholders......................................................31
Section 4.04 Investment of Special Payment Moneys..................................................32
ARTICLE V THE COMPANY...........................................................................................32
Section 5.01 Maintenance of Corporate Existence....................................................32
Section 5.02 Consolidation, Merger, etc............................................................32
ARTICLE VI DEFAULT..............................................................................................33
Section 6.01 Events of Default.....................................................................33
Section 6.02 Incidents of Sale of Equipment Notes..................................................35
Section 6.03 Judicial Proceedings Instituted by Trustee; Trustee May Bring Suit....................36
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C> <C>
Section 6.04 Control by Certificateholders.........................................................36
Section 6.05. Waiver of Past Defaults...............................................................36
Section 6.06. Right of Certificateholders to Receive Payments Not to Be Impaired....................37
Section 6.07. Certificateholders May Not Bring Suit Except Under Certain Conditions.................37
Section 6.08. Remedies Cumulative...................................................................38
ARTICLE VII THE TRUSTEE.........................................................................................38
Section 7.01. Certain Duties and Responsibilities...................................................38
Section 7.02. Notice of Defaults....................................................................39
Section 7.03. Certain Rights of Trustee.............................................................39
Section 7.04. Not Responsible for Recitals or Issuance of Certificates..............................40
Section 7.05. May Hold Certificates.................................................................40
Section 7.06. Money Held in Trust...................................................................40
Section 7.07. Compensation and Reimbursement........................................................40
Section 7.08. Corporate Trustee Required; Eligibility...............................................42
Section 7.09 Resignation and Removal; Appointment of Successor.....................................42
Section 7.10. Acceptance of Appointment by Successor................................................43
Section 7.11. Merger, Conversion, Consolidation or Succession to Business...........................44
Section 7.12. Maintenance of Agencies...............................................................44
Section 7.13. Money for Certificate Payments to Be Held in Trust....................................45
Section 7.14. Registration of Equipment Notes in Name of Subordination Agent........................45
Section 7.15. Representations and Warranties of Trustee.............................................46
Section 7.16. Withholding Taxes, Information Reporting..............................................46
Section 7.17. Trustee's Liens.......................................................................47
Section 7.18. Preferential Collection of Claims.....................................................47
ARTICLE VIII CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE...................................................48
Section 8.01. The Company to Furnish Trustee with Names and Addresses of Certificateholders.........48
Section 8.02. Preservation of Information; Communications to Certificateholders.....................48
Section 8.03. Reports by Trustee....................................................................48
Section 8.04. Reports by the Company................................................................48
ARTICLE IX SUPPLEMENTAL AGREEMENTS..............................................................................49
Section 9.01. Supplemental Agreements Without Consent of Certificateholders.........................49
Section 9.02. Supplemental Agreements with Consent of Certificateholders............................50
Section 9.03. Documents Affecting Immunity or Indemnity.............................................52
Section 9.04. Execution of Supplemental Agreements..................................................52
Section 9.05. Effect of Supplemental Agreements.....................................................52
Section 9.06. Conformity with Trust Indenture Act...................................................52
Section 9.07. Reference in Certificates to Supplemental Agreements..................................52
</TABLE>
ii
<PAGE> 5
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
ARTICLE X AMENDMENTS TO INDENTURES AND FINANCING DOCUMENTS......................................................52
Section 10.01. Amendments and Supplements to Indentures and Financing Documents......................52
ARTICLE XI TERMINATION OF TRUST.................................................................................53
Section 11.01. Termination of the Trust..............................................................53
ARTICLE XII MISCELLANEOUS PROVISIONS............................................................................55
Section 12.01. Limitation on Rights of Certificateholders............................................55
Section 12.02. Certificates Nonassessable and Fully Paid.............................................56
Section 12.03. Notices...............................................................................56
Section 12.04. Governing Law.........................................................................57
Section 12.05. Severability of Provisions............................................................57
Section 12.06. Trust Indenture Act Controls..........................................................57
Section 12.07. Effect of Headings and Table of Contents..............................................57
Section 12.08. Successors and Assigns................................................................58
Section 12.09. Benefits of Agreement.................................................................58
Section 12.10. Legal Holidays........................................................................58
Section 12.11. Counterparts..........................................................................58
Section 12.12. Intention of Parties..................................................................58
</TABLE>
<TABLE>
<CAPTION>
<S> <C>
Exhibit A - Form of Certificate
Exhibit B - Form of Certificate to Request Removal of Restricted Legend
Exhibit C - Form of Certificate to be Delivered by an Institutional Accredited Investor
Exhibit D - Form of Assignment and Assumption Agreement
Exhibit E - Form of Notice to Withholding Agent
</TABLE>
iii
<PAGE> 6
PASS THROUGH TRUST AGREEMENT
This PASS THROUGH TRUST AGREEMENT, dated as of September 21,
1999 (the "Agreement"), between AMERICA WEST AIRLINES, INC., a Delaware
corporation, and WILMINGTON TRUST COMPANY, as Trustee, is made with respect to
the formation of America West Airlines Pass Through Trust, Series 1999-1C-O and
the issuance of 8.54% America West Airlines Pass Through Trust, Series 1999-1C-O
Pass Through Certificates representing fractional undivided interests in the
Trust.
WITNESSETH:
WHEREAS, the Company has obtained commitments from AVSA for
the delivery of certain Aircraft;
WHEREAS, the Company intends to finance (or refinance) the
acquisition of the Aircraft either (i) through separate leveraged lease
transactions in which the Company will lease such aircraft (collectively, the
"Leased Aircraft") or (ii) through separate secured loan transactions in which
the Company will own such Aircraft (collectively, the "Owned Aircraft");
WHEREAS, in the case of each Leased Aircraft, each Owner
Trustee, acting on behalf of the corresponding Owner Participant, will issue
pursuant to an Indenture, on a non-recourse basis, two series (or, subject to
satisfaction of certain preconditions contained in the Note Purchase Agreement,
three) of Equipment Notes in order to finance a portion of its purchase price of
such Leased Aircraft;
WHEREAS, in the case of each Owned Aircraft, the Company will
issue pursuant to an Indenture, on a recourse basis, two (or, subject to
satisfaction of certain preconditions contained in the Note Purchase Agreement,
three) series of Equipment Notes to finance a portion of the purchase price of
such Owned Aircraft;
WHEREAS, the Trustee, upon execution and delivery of this
Agreement, hereby declares the creation of the Trust for the benefit of the
Certificateholders, and the initial Certificateholders, as the grantors of the
Trust, by their respective acceptances of the Certificates, join in the creation
of this Trust with the Trustee;
WHEREAS, all Certificates to be issued by the Trust will
evidence fractional undivided interests in the Trust and will convey no rights,
benefits or interests in respect of any property other than the Trust Property
except for those Certificates to which an Escrow Receipt has been affixed;
WHEREAS, the Escrow Agent and the Initial Purchasers have
contemporaneously herewith entered into an Escrow Agreement with the Escrow
Paying Agent pursuant to which the Initial Purchasers have delivered to the
Escrow Agent the proceeds from the sale of the Certificates and have irrevocably
instructed the Escrow Agent to withdraw and pay funds from such proceeds upon
request and proper certification by the Trustee to purchase Equipment Notes;
<PAGE> 7
-2-
WHEREAS, the Escrow Agent on behalf of the Certificateholders
has contemporaneously herewith entered into a Deposit Agreement with the
Depositary under which the Deposits referred to therein will be made and from
which it will withdraw funds to allow the Trustee to purchase Equipment Notes
from time to time prior to the Delivery Period Termination Date;
WHEREAS, pursuant to the terms and conditions of this
Agreement and the Note Purchase Agreement, upon or following delivery of an
Aircraft, the Trustee on behalf of the Trust, using funds withdrawn under the
Escrow Agreement, may purchase an Equipment Note having the same interest rate
as, and final legal distribution date not later than the final Regular
Distribution Date of, the Certificates issued hereunder and shall hold such
Equipment Note in trust for the benefit of the Certificateholders;
WHEREAS, to facilitate the sale of Equipment Notes to, and the
purchase of Equipment Notes by, the Trustee on behalf of the Trust, the Company
has duly authorized the execution and delivery of this Agreement as the
"issuer", as such term is defined in and solely for purposes of the Securities
Act, of the Certificates to be issued pursuant hereto and as the "obligor", as
such term is defined in and solely for purposes of the Trust Indenture Act of
1939, as amended, with respect to all such Certificates and is undertaking to
perform certain administrative and ministerial duties hereunder and is also
undertaking to pay the ongoing fees and expenses of the Trustee;
WHEREAS, all of the conditions and requirements necessary to
make this Agreement, when duly executed and delivered, a valid, binding and
legal instrument, enforceable in accordance with its terms and for the purposes
herein expressed, have been done, performed and fulfilled, and the execution and
delivery of this Agreement in the form and with the terms hereof have been in
all respects duly authorized; and
WHEREAS, upon issuance of the Exchange Certificates, if any,
or the effectiveness of the Shelf Registration Statement, this Agreement, as
amended or supplemented from time to time, will be subject to the provisions of
the Trust Indenture Act of 1939, and shall, to the extent applicable, be
governed by such provisions;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, and of other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms used in this Agreement, including in the
recitals to this Agreement, that are defined in this Article have the
meanings assigned to them in this Article, and include the plural as
well as the singular;
<PAGE> 8
-3-
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, or by the rules
promulgated under the Trust Indenture Act, have the meanings assigned
to them therein;
(3) all references in this Agreement to designated "Articles",
"Sections", "Subsections" and other subdivisions are to the designated
Articles, Sections, Subsections and other subdivisions of this
Agreement;
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to
any particular Article, Section, SubSection or other subdivision; and
(5) unless the context otherwise requires, whenever the words
"including", "include" or "includes" are used herein, it shall be
deemed to be followed by the phrase "without limitation".
Affiliate: Means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such Person. For the
purposes of this definition, "control" means the power, directly or
indirectly, to direct the management and policies of such Person,
whether through the ownership of voting securities or by contract or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
Agent Members: Has the meaning specified in Section 3.05.
Agreement: Has the meaning specified in the initial paragraph
hereto.
Aircraft: Has the meaning specified in the Note Purchase
Agreement.
Aircraft Purchase Agreement: Has the meaning specified in the
Note Purchase Agreement.
Applicable Delivery Date: Has the meaning specified in Section
2.01(b).
Applicable Participation Agreement: Has the meaning specified
in Section 2.01(b).
Assignment and Assumption Agreement: Means the assignment and
assumption agreement substantially in the form of Exhibit D hereto to
be executed and delivered in accordance with Section 11.01.
Authorized Agent: Means any Paying Agent or Registrar for the
Certificates.
Avoidable Tax: Means a state or local tax (i) upon (w) the
Trust, (x) the Trust Property, (y) Certificate-holders or (z) the
Trustee for which the Trustee is entitled to seek reimbursement from
the Trust Property, and (ii) which would be avoided if the Trustee were
located in another state, or jurisdiction within a state, within the
United
<PAGE> 9
-4-
States. A tax shall not be an Avoidable Tax if the Company or
any Owner Trustee shall agree to pay, and shall pay, such tax.
AVSA: Means AVSA S.A.R.L., an affiliate of Airbus Industrie
G.I.E.
Business Day: Means any day other than a Saturday, a Sunday or
a day on which commercial banks are required or authorized to close in
Phoenix, Arizona, New York, New York, Wilmington, Delaware or, so long
as any Certificate is outstanding, the city and state in which the
Trustee or any Loan Trustee maintains its Corporate Trust Office or
receives and disburses funds.
Cedel: Means Cedel Bank societe anonyme.
Certificate: Means any one of the Initial Certificates or
Exchange Certificates and any such Certificates issued in exchange
therefor or replacement thereof pursuant to this Agreement.
Certificate Account: Means the account or accounts created and
maintained pursuant to Section 4.01(a).
Certificate Purchase Agreement: Means the Purchase Agreement
dated September 14, 1999 among the Initial Purchasers and the Company,
as the same may be amended, supplemented or otherwise modified from
time to time in accordance with its terms.
Certificateholder or Holder: Means the Person in whose name a
Certificate is registered in the Register.
Class D Certificateholder: Means, at any time, any holder of
one or more pass through certificates issued by the America West
Airlines Pass Through Trust, Series 1999-1D, if and when established.
Company: Means America West Airlines, Inc., a Delaware
corporation, or its successor in interest pursuant to Section 5.02, or
(only in the context of provisions hereof, if any, where such reference
is required for purposes of compliance with the Trust Indenture Act)
any other "obligor" (within the meaning of the Trust Indenture Act)
with respect to the Certificates.
Controlling Party: Has the meaning specified in the
Intercreditor Agreement.
Corporate Trust Office: With respect to the Trustee or any
Loan Trustee, means the office of such trustee in the city at which at
any particular time its corporate trust business shall be principally
administered.
Cut-off Date: Means the earlier of (a) the Delivery Period
Termination Date and (b) the date on which a Triggering Event occurs.
Definitive Certificates: Has the meaning specified in Section
3.01(e).
<PAGE> 10
-5-
Delivery Date: Has the meaning specified in the Note Purchase
Agreement.
Delivery Notice: Has the meaning specified in the Note
Purchase Agreement.
Delivery Period Termination Date: Means the earlier of (a) May
30, 2000, or, if the Equipment Notes relating to all of the Aircraft
(or Substitute Aircraft in lieu thereof) have not been purchased by the
Trustee and the Other Trustee on or prior to such date due to any
reason beyond the control of the Company and not occasioned by the
Company's fault or negligence, August 31, 2000 and (b) the date on
which Equipment Notes issued with respect to all of the Aircraft (or
Substitute Aircraft in lieu thereof) have been purchased by the Trustee
and the Other Trustee in accordance with the Note Purchase Agreement.
Deposits: Has the meaning specified in the Deposit Agreement.
Deposit Agreement: Means the Deposit Agreement dated as of
September 21, 1999 relating to the Certificates between the Depositary
and the Escrow Agent, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Depositary: Means ABN AMRO Bank N.V., acting through its
Chicago branch. Direction: Has the meaning specified in Section
1.04(a).
Distribution Date: Means any Regular Distribution Date or
Special Distribution Date as the context requires.
DTC: Means The Depository Trust Company, its nominees and
their respective successors.
EBO Date: Means the date set forth on Schedule 1 to the Lease
as the "EBO Date".
Equipment Notes: Means the equipment notes issued under the
Indentures.
ERISA: Means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor federal statute.
ERISA Legend: Has the meaning specified in Section 3.12.
Escrow Agent: Means, initially, Wilmington Trust Company.
Escrow Agreement: Means the Escrow and Paying Agent Agreement
dated as of September 21, 1999 relating to the Certificates, among the
Escrow Agent, the Escrow Paying Agent, the Trustee and the Initial
Purchasers, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
<PAGE> 11
-6-
Escrow Paying Agent: Means the Person acting as paying agent
under the Escrow Agreement.
Escrow Receipt: Means the receipt substantially in the form
annexed to the Escrow Agreement representing a fractional undivided
interest in the funds held in escrow thereunder.
Euroclear: Means Morgan Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System.
Event of Default: Means an Indenture Default under any
Indenture pursuant to which Equipment Notes held by the Trust were
issued.
Exchange Certificates: Means the pass through certificates
substantially in the form of Exhibit A hereto issued in exchange for
the Initial Certificates pursuant to the Registration Rights Agreement
and authenticated hereunder.
Exchange Offer: Means the exchange offer which may be made
pursuant to the Registration Rights Agreement to exchange Initial
Certificates for Exchange Certificates.
Exchange Offer Registration Statement: Means the registration
statement that, pursuant to the Registration Rights Agreement, is filed
by the Company with the SEC with respect to the exchange of Initial
Certificates for Exchange Certificates.
Final Legal Distribution Date: Means July 2, 2007.
Final Withdrawal: Has the meaning specified in the Escrow
Agreement.
Final Withdrawal Date: Has the meaning specified in the Escrow
Agreement.
Final Withdrawal Notice: Has the meaning specified in Section
2.02.
Financing Documents: With respect to any Equipment Note, means
(i) the Indenture and the Participation Agreement relating to such
Equipment Note, and (ii) in the case of any Equipment Note related to a
Leased Aircraft, the Lease relating to such Leased Aircraft.
Fractional Undivided Interest: Means the fractional undivided
interest in the Trust that is evidenced by a Certificate.
Global Certificates: Has the meaning specified in Section
3.01(d).
Global Exchange Certificate: Has the meaning specified in
Section 3.01(f).
Indenture: Means each of the separate trust indentures and
mortgages relating to the Aircraft, each as specified or described in a
Delivery Notice delivered pursuant to the Note Purchase Agreement or
the related Participation Agreement, in each case as the
<PAGE> 12
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same may be amended, supplemented or otherwise modified from
time to time in accordance with its terms.
Indenture Default: With respect to any Indenture, means any
Event of Default (as such term is defined in such Indenture).
Initial Certificates: Means the certificates issued and
authenticated hereunder substantially in the form of Exhibit A hereto
other than the Exchange Certificates.
Initial Purchasers: Means, collectively, Morgan Stanley & Co.
Incorporated, Donaldson, Lufkin & Jenrette Securities Corporation,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and Salomon Smith
Barney Inc.
Institutional Accredited Investor: Means an institutional
investor that is an "accredited investor" within the meaning set forth
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act.
Intercreditor Agreement: Means the Intercreditor Agreement
dated as of September 21, 1999 among the Trustee, the Other Trustee,
the Liquidity Provider, the liquidity provider relating to the
Certificates issued under (and as defined in) the Other Pass Through
Trust Agreement, the Policy Provider, and Wilmington Trust Company, as
Subordination Agent and as trustee thereunder, as amended, supplemented
or otherwise modified from time to time in accordance with its terms.
Investors: Means the Initial Purchasers together with all
subsequent beneficial owners of the Certificates.
Issuance Date: Means the date of the issuance of the Initial
Certificates.
Lease: Means, with respect to each Leased Aircraft, the lease
between an Owner Trustee, as the lessor, and the Company, as the
lessee, referred to in the related Indenture, as such lease may be
amended, supplemented or otherwise modified in accordance with its
terms.
Leased Aircraft: Has the meaning specified in the second
recital to this Agreement.
Liquidity Facility: Means, initially, the Revolving Credit
Agreement dated as of September 21, 1999 relating to the Certificates,
between the Liquidity Provider and the Subordination Agent, as agent
and trustee for the Trustee, and, from and after the replacement of
such Agreement pursuant to the Intercreditor Agreement, the replacement
liquidity facility therefor, in each case as amended, supplemented or
otherwise modified from time to time in accordance with their
respective terms.
Liquidity Provider: Means, initially, Morgan Stanley Capital
Services, Inc., and any replacement or successor therefor appointed in
accordance with the Intercreditor Agreement.
<PAGE> 13
-8-
Loan Trustee: With respect to any Equipment Note or the
Indenture applicable thereto, means the bank or trust company
designated as trustee under such Indenture, together with any successor
to such trustee appointed pursuant thereto.
Material Adverse Tax Event: Has the meaning specified in
Section 17.3(a)(4) of the Lease.
Non-U.S. Person: Means a Person that is not a "U.S. person",
as defined in Regulation S.
Note Purchase Agreement: Means the Note Purchase Agreement
dated as of September 21, 1999 among the Trustee, the Other Trustee,
the Company, the Escrow Agent, the Escrow Paying Agent and the
Subordination Agent, providing for, among other things, the purchase of
Equipment Notes by the Trustee on behalf of the Trust, as the same may
be amended, supplemented or otherwise modified from time to time, in
accordance with its terms.
Notice of Purchase Withdrawal: Has the meaning specified in
the Deposit Agreement.
Offering Circular: Means the Offering Memorandum dated
September 14, 1999 relating to the offering of the Certificates and the
certificates issued under the Other Pass Through Trust Agreement.
Officer's Certificate: Means a certificate signed, (a) in the
case of the Company, by any Vice President or more senior officer of
the Company or, (b) in the case of an Owner Trustee or a Loan Trustee,
a Responsible Officer of such Owner Trustee or such Loan Trustee, as
the case may be.
Opinion of Counsel: Means a written opinion of legal counsel
who (a) in the case of counsel for the Company may be (i) the General
Counsel of the Company, (ii) Cooley Godward LLP, (iii) Vedder, Price,
Kaufman & Kammholz, or (iv) such other counsel designated by the
Company and reasonably acceptable to the Trustee and (b) in the case of
counsel for any Owner Trustee or any Loan Trustee may be such counsel
as may be designated by any of them whether or not such counsel is an
employee of any of them, and who shall be reasonably acceptable to the
Trustee.
Other Pass Through Trust Agreement: Means the other America
West Airlines 1999-1 Pass Through Trust Agreement relating to America
West Airlines Pass Through Trust, Series 1999-1G-O, dated the date
hereof.
Other Trustee: Means the trustee under the Other Pass Through
Trust Agreement, and any successor or other trustee appointed as
provided therein.
Other Trust: Means the America West Airlines Pass Through
Trust, Series 1999-1G-O, created on the date hereof.
<PAGE> 14
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Outstanding: When used with respect to Certificates, means, as
of the date of determination, all Certificates theretofore
authenticated and delivered under this Agreement, except:
(i) Certificates theretofore canceled by the Registrar or
delivered to the Trustee or the Registrar for cancellation;
(ii) Certificates for which money in the full amount required
to make the final distribution with respect to such Certificates
pursuant to Section 11.01 hereof has been theretofore deposited with
the Trustee in trust for the Holders of such Certificates as provided
in Section 4.01 pending distribution of such money to such
Certificateholders pursuant to payment of such final distribution; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been authenticated and delivered pursuant to this
Agreement.
Owned Aircraft: Has the meaning specified in the second
recital to this Agreement.
Owner Participant: With respect to any Equipment Note relating
to a Leased Aircraft, means the "Owner Participant" as referred to in
the Indenture pursuant to which such Equipment Note is issued and any
permitted successor or assign of such Owner Participant; and Owner
Participants at any time of determination means all of the Owner
Participants thus referred to in the Indentures.
Owner Trustee: With respect to any Equipment Note relating to
a Leased Aircraft, means the "Owner Trustee", as referred to in the
Indenture pursuant to which such Equipment Note is issued, not in its
individual capacity but solely as trustee; and Owner Trustees means all
of the Owner Trustees party to any of the Indentures.
Participation Agreement: Means each Participation Agreement to
be entered into by the Trustee pursuant to the Note Purchase Agreement,
as the same may be amended, supplemented or otherwise modified in
accordance with its terms.
Paying Agent: Means the paying agent maintained and appointed
for the Certificates pursuant to Section 7.12.
Permitted Investments: Means obligations of the United States
of America or agencies or instrumentalities thereof for the payment of
which the full faith and credit of the United States of America is
pledged, maturing in not more than 60 days after the date of
acquisition thereof or such lesser time as is required for the
distribution of any Special Payments on a Special Distribution Date.
Person: Means any person, including any individual,
corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, trustee, unincorporated
organization, or government or any agency or political subdivision
thereof.
<PAGE> 15
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Policy: Has the meaning specified in the Intercreditor
Agreement.
Policy Provider: Has the meaning specified in the
Intercreditor Agreement.
Policy Provider Agreement: Has the meaning specified in the
Intercreditor Agreement.
Policy Provider Default: Has the meaning specified in the
Intercreditor Agreement.
Pool Balance: Means, as of any date, (i) the original
aggregate face amount of the Certificates less (ii) the aggregate
amount of all payments made in respect of such Certificates other than
payments made in respect of interest or premium thereon or
reimbursement of any costs or expenses incurred in connection
therewith. The Pool Balance as of any Distribution Date shall be
computed after giving effect to the payment of principal, if any, on
the Equipment Notes or other Trust Property held in such Trust and the
distribution thereof to be made on such Distribution Date and the
distribution of the Final Withdrawal to be made on such Distribution
Date.
Pool Factor: Means, as of any date, the quotient (rounded to
the seventh decimal place) computed by dividing (i) the Pool Balance as
at such date by (ii) the original aggregate face amount of the
Certificates. The Pool Factor as of any Distribution Date shall be
computed after giving effect to the payment of principal, if any, on
the Equipment Notes or other Trust Property and the distribution
thereof to be made on such Distribution Date and the distribution of
the Final Withdrawal to be made on such Distribution Date.
PTC Event of Default: Means any failure to pay within 10
Business Days of the due date thereof: (i) the outstanding Pool Balance
on the Final Legal Distribution Date or (ii) interest due on the
Certificates on any Distribution Date (unless the Subordination Agent
shall have made an Interest Drawing or Drawings (as defined in the
Intercreditor Agreement), or a withdrawal or withdrawals pursuant to
Section 3.6(f) of the Intercreditor Agreement, with respect thereto in
an aggregate amount sufficient to pay such interest and shall have
distributed such amount to the Trustee).
QIB: Means a qualified institutional buyer as defined in Rule
144A.
Record Date: Means (i) for Scheduled Payments to be
distributed on any Regular Distribution Date, other than the final
distribution, the 15th day (whether or not a Business Day) preceding
such Regular Distribution Date, and (ii) for Special Payments to be
distributed on any Special Distribution Date, other than the final
distribution, the 15th day (whether or not a Business Day) preceding
such Special Distribution Date.
Register and Registrar: Mean the register maintained and the
registrar appointed pursuant to Sections 3.04 and 7.12.
Registration Event: Means the declaration of the effectiveness
by the SEC of the Exchange Offer Registration Statement or the Shelf
Registration Statement.
<PAGE> 16
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Registration Rights Agreement: Means the Exchange and
Registration Rights Agreement dated as of September 21, 1999, among the
Initial Purchasers, the Trustee, the Other Trustee and the Company, as
amended, supplemented or otherwise modified from time to time in
accordance with its terms.
Regular Distribution Date: With respect to distributions of
Scheduled Payments in respect of the Certificates, means each date
designated as a Regular Distribution Date in the Certificates issued
pursuant to this Agreement, until payment of all the Scheduled Payments
to be made under the Equipment Notes held in the Trust have been made;
provided, however, that, if any such day shall not be a Business Day,
the related distribution shall be made on the next succeeding Business
Day without additional interest.
Regulation S: Means Regulation S under the Securities Act or
any successor regulation thereto.
Regulation S Definitive Certificates: Has the meaning
specified in Section 3.01(e).
Regulation S Global Certificates: Has the meaning specified in
Section 3.01(d).
Related Pass Through Trust Agreement: Means the Pass Through
Trust Agreement relating to the America West Airlines Pass Through
Trust, Series 1999-1C-S, dated the date hereof, between the Company and
the institution acting as trustee thereunder, which agreement becomes
effective upon the execution and delivery of the Assignment and
Assumption Agreement pursuant to Section 11.01.
Related Trust: Means the America West Pass Through Trust,
Series 1999-1C-S, formed under the Related Pass Through Trust
Agreement.
Related Trustee: Means the trustee under the Related Pass
Through Trust Agreement.
Responsible Officer: With respect to the Trustee, any Loan
Trustee and any Owner Trustee, means any officer in the Corporate Trust
Office of the Trustee, Loan Trustee or Owner Trustee or any other
officer customarily performing functions similar to those performed by
the persons who at the time shall be such officers, respectively, or to
whom any corporate trust matter is referred because of his knowledge of
and familiarity with a particular subject.
Restricted Definitive Certificates: Has the meaning specified
in Section 3.01(e).
Restricted Global Certificate: Has the meaning specified in
Section 3.01(c).
Restricted Legend: Has the meaning specified in Section 3.02.
Restricted Period: Has the meaning specified in Section
3.01(d).
<PAGE> 17
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Rule 144A: Means Rule 144A under the Securities Act and any
successor rule thereto.
Scheduled Payment: With respect to any Equipment Note, means
(i) any payment of principal or interest on or in respect of such
Equipment Note (other than any such payment which is not in fact
received by the Subordination Agent within five days of the date on
which such payment is scheduled to be made) due from the obligor
thereon or (ii) any payment of interest on the Certificates with funds
drawn under any Liquidity Facility or any payment of interest on or
principal of the Certificates with funds drawn under the Policy, which
payment in any such case represents the installment of principal at the
stated maturity of such installment of principal on such Equipment
Note, the payment of regularly scheduled interest accrued on the unpaid
principal amount of such Equipment Note, or both; provided that any
payment of principal, premium, if any, or interest resulting from the
redemption or purchase of any Equipment Note shall not constitute a
Scheduled Payment.
SEC: Means the Securities and Exchange Commission, as from
time to time constituted or created under the United States Securities
Exchange Act of 1934, as amended, or, if at any time after the
execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties on such date.
Securities Act: Means the United States Securities Act of
1933, as amended from time to time, or any successor thereto.
Shelf Registration Statement: Means the shelf registration
statement which may be required to be filed by the Company with the SEC
pursuant to any Registration Rights Agreement, other than an Exchange
Offer Registration Statement.
Special Distribution Date: Means each date on which a Special
Payment is to be distributed as specified in this Agreement; provided,
however, that, if any such day shall not be a Business Day, the related
distribution shall be made on the next succeeding Business Day without
additional interest.
Special Redemption Premium: Means the premium payable by the
Company in respect of the Final Withdrawal pursuant to the Note
Purchase Agreement.
Special Payment: Means any payment (other than a Scheduled
Payment) in respect of, or any proceeds of, any Equipment Note or Trust
Indenture Estate (as defined in each Indenture) or Special Redemption
Premium.
Special Payments Account: Means the account or accounts
created and maintained pursuant to Section 4.01(b).
Subordination Agent: Has the meaning specified in the
Intercreditor Agreement.
Substitute Aircraft: Has the meaning specified in the Note
Purchase Agreement.
<PAGE> 18
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Tax: Means all license, recording, documentary, registration
and other similar fees and all taxes, levies, imposts, duties, charges,
assessments or withholdings of any nature whatsoever imposed by any
Taxing Authority, together with any penalties, additions to tax, fines
or interest thereon or additions thereto.
Taxing Authority: Means any federal, state or local government
or other taxing authority in the United States, any foreign government
or any political subdivision or taxing authority thereof, any
international taxing authority or any territory or possession of the
United States or any taxing authority thereof.
TIN: Has the meaning specified in Section 7.16.
Transfer Date: Has the meaning specified in Section 11.01.
Triggering Event: Has the meaning assigned to such term in the
Intercreditor Agreement.
Trust: Means the trust created by this Agreement, the estate
of which consists of the Trust Property.
Trust Indenture Act: Means the United States Trust Indenture
Act of 1939, as amended from time to time, or any successor thereto.
Trust Property: Means (i) the Equipment Notes held as the
property of the Trust and, subject to the Intercreditor Agreement, all
monies at any time paid thereon and all monies due and to become due
thereunder, (ii) funds from time to time deposited in the Certificate
Account and the Special Payments Account and, subject to the
Intercreditor Agreement, any proceeds from the sale by the Trustee
pursuant to Article VI hereof of any Equipment Note and (iii) all
rights of the Trust and the Trustee, on behalf of the Trust, under the
Intercreditor Agreement, the Escrow Agreement, the Note Purchase
Agreement and the Liquidity Facilities, including, without limitation,
all rights to receive certain payments thereunder, and all monies paid
to the Trustee on behalf of the Trust pursuant to the Intercreditor
Agreement or the Liquidity Facilities, provided, that rights with
respect to the Deposits or under the Escrow Agreement, except for the
right to direct withdrawals for the purchase of Equipment Notes to be
held herein, will not constitute Trust Property.
Trustee: Means Wilmington Trust Company, or its successor in
interest, and any successor or other trustee appointed as provided
herein.
Trustee's Lien: Has the meaning specified in Section 7.17.
Unindemnified Tax: Means (i) any Tax imposed on the net
income, net worth or capital, or any franchise Tax or similar doing
business Tax, of the Pass Through Trustee (other than any such Tax
imposed as a result of the Company's assumption of the Equipment Notes
pursuant to the purchase of an aircraft on an EBO Date or a Material
Adverse Tax Event), (ii) any withholding Tax imposed by the United
States (including, without limitation, any withholding Tax imposed by
the United States which is imposed
<PAGE> 19
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or increased as a result of the Pass Through Trustee failing
to deliver to the Company any certificate or document necessary to
establish that payments under this Agreement are exempt from
withholding Tax), and (iii) any Avoidable Tax.
Section 1.02. Compliance Certificates and Opinions. Upon any
application or request (except with respect to matters set forth in Article II)
by the Company, any Owner Trustee or any Loan Trustee to the Trustee to take any
action under any provision of this Agreement, the Company, such Owner Trustee or
such Loan Trustee, as the case may be, shall furnish to the Trustee (i) an
Officer's Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and (ii) an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Agreement relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement (other than a certificate
provided pursuant to Section 8.04(e)) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions in
this Agreement relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters and any such Person may certify or give an opinion
as to such matters in one or several documents.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement or, in respect of the Certificates, this
Agreement, they may, but need not, be consolidated and form one instrument.
<PAGE> 20
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Section 1.04. Directions of Certificateholders. (a) Any
direction, consent, request, demand, authorization, notice, waiver or other
action provided by this Agreement to be given or taken by Certificateholders (a
"Direction") may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Certificateholders in person or by an
agent or proxy duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required pursuant to this Agreement, to the Company or any Loan Trustee. Proof
of execution of any such instrument or of a writing appointing any such agent or
proxy shall be sufficient for any purpose of this Agreement and conclusive in
favor of the Trustee, the Company and any Loan Trustee, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the certificate of any notary public
or other officer of any jurisdiction authorized to take acknowledgments of deeds
or administer oaths that the Person executing such instrument acknowledged to
him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or such other officer and where such execution
is by an officer of a corporation or association or a member of a partnership,
on behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other reasonable manner
which the Trustee deems sufficient.
(c) In determining whether the Certificateholders of the
requisite Fractional Undivided Interests of Certificates Outstanding have given
any Direction under this Agreement, Certificates owned by the Company or any
Affiliate thereof shall be disregarded and deemed not to be Outstanding for
purposes of any such determination. In determining whether the Trustee shall be
protected in relying upon any such Direction, only Certificates which the
Trustee knows to be so owned shall be so disregarded. Notwithstanding the
foregoing, (i) if any such Person owns 100% of the Certificates Outstanding,
such Certificates shall not be so disregarded, and (ii) if any amount of
Certificates so owned by any such Person have been pledged in good faith, such
Certificates shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Certificates and that the pledgee is not the Company or any Affiliate thereof.
(d) For all purposes of this Agreement, all Initial
Certificates and all Exchange Certificates shall vote and take all other actions
of Certificateholders together as one series of Certificates.
(e) The Company may at its option, by delivery of an Officer's
Certificate to the Trustee, set a record date to determine the
Certificateholders entitled to give any Direction. Notwithstanding Section
316(c) of the Trust Indenture Act, such record date shall be the record date
specified in such Officer's Certificate, which shall be a date not more than 30
days prior to the first solicitation of Certificateholders in connection
therewith. If such a record date is fixed, such Direction may be given before or
after such record date, but only the Certificateholders of record at the close
of business on such record date shall be deemed to be Certificateholders for the
purposes of determining whether Certificateholders of the requisite proportion
of
<PAGE> 21
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Outstanding Certificates have authorized or agreed or consented to such
Direction, and for that purpose the Outstanding Certificates shall be computed
as of such record date; provided that no such Direction by the
Certificateholders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Agreement not later than one
year after such record date.
(f) Any Direction by the Holder of any Certificate shall bind
the Holder of every Certificate issued upon the transfer thereof or in exchange
therefor or in lieu thereof, whether or not notation of such Direction is made
upon such Certificate.
(g) Except as otherwise provided in Section 1.04(c),
Certificates owned by or pledged to any Person shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority, or distinction as among all of the Certificates.
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF EQUIPMENT NOTES
Section 2.01. Issuance of Certificates; Acquisition of
Equipment Notes. (a) The Trustee is hereby directed (i) to execute and deliver
the Intercreditor Agreement, the Registration Rights Agreement, the Escrow
Agreement and the Note Purchase Agreement on or prior to the Issuance Date, each
in the form delivered to the Trustee by the Company and (ii) subject to the
respective terms thereof, to perform its obligations thereunder. Upon request of
the Company and the satisfaction or waiver of the closing conditions specified
in the Certificate Purchase Agreement, the Trustee shall execute, deliver,
authenticate, issue and sell Certificates in authorized denominations equaling
in the aggregate the amount set forth, with respect to the Trust, in Schedule II
to the Certificate Purchase Agreement evidencing the entire ownership interest
in the Trust, which amount equals the maximum aggregate principal amount of
Equipment Notes which may be purchased by the Trustee pursuant to the Note
Purchase Agreement. Except as provided in Sections 3.04, 3.05, 3.06, 3.07 and
3.10 hereof, the Trustee shall not execute, authenticate or deliver Certificates
in excess of the aggregate amount specified in this paragraph.
(b) On or after the Issuance Date, the Company may deliver
from time to time to the Trustee a Delivery Notice relating to one or more
Equipment Notes. After receipt of a Delivery Notice and in any case no later
than one Business Day prior to a Delivery Date as to which such Delivery Notice
relates (the "Applicable Delivery Date") (or, if the Issuance Date is an
Applicable Delivery Date, on the Issuance Date), the Trustee shall (as and when
specified in the Delivery Notice) instruct the Escrow Agent to provide a Notice
of Purchase Withdrawal to the Depositary requesting (A) the withdrawal of one or
more Deposits on the Applicable Delivery Date in accordance with and to the
extent permitted by the terms of the Escrow Agreement and the Deposit Agreement
and (B) the payment of all, or a portion, of such Deposit or Deposits in an
amount equal in the aggregate to the purchase price of such Equipment Notes to
or on behalf of the Owner Trustee or the Company, as the case may be, issuing
such Equipment Notes, all as shall be described in the Delivery Notice; provided
that, if the Issuance Date is an Applicable Delivery Date, such purchase price
shall be paid from a portion of the
<PAGE> 22
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proceeds of the sale of the Certificates. The Trustee shall (as and when
specified in such Delivery Notice), subject to the conditions set forth in
Section 2 of the Note Purchase Agreement, enter into and perform its obligations
under the Participation Agreement specified in such Delivery Notice (the
"Applicable Participation Agreement") and cause such certificates, documents and
legal opinions relating to the Trustee to be duly delivered as required by the
Applicable Participation Agreement. If at any time prior to the Applicable
Delivery Date, the Trustee receives a notice of postponement pursuant to Section
2(e) or 2(f) of the Note Purchase Agreement, then the Trustee shall give the
Depositary (with a copy to the Escrow Agent) a notice of cancellation of such
Notice of Purchase Withdrawal relating to such Deposit or Deposits on such
Applicable Delivery Date. Upon satisfaction of the conditions specified in the
Note Purchase Agreement and the Applicable Participation Agreement, the Trustee
shall purchase the applicable Equipment Notes with the proceeds of the
withdrawals of one or more Deposits made on the Applicable Delivery Date in
accordance with the terms of the Deposit Agreement and the Escrow Agreement (or,
if the Issuance Date is the Applicable Delivery Date with respect to such
Applicable Participation Agreement, from a portion of the proceeds of the sale
of the Certificates). The purchase price of such Equipment Notes shall equal the
principal amount of such Equipment Notes. Amounts withdrawn from such Deposit or
Deposits in excess of the purchase price of the Equipment Notes or to the extent
not applied on the Applicable Delivery Date to the purchase price of the
Equipment Notes, shall be re-deposited by the Trustee with the Depositary on the
Applicable Delivery Date in accordance with the terms of the Deposit Agreement.
Section 2.02. Withdrawal of Deposits. If any Deposits remain
outstanding on the Business Day next succeeding the Cut-Off Date, (i) (A) the
Trustee shall give the Escrow Agent notice that the Trustee's obligation to
purchase Equipment Notes under the Note Purchase Agreement has terminated and
instruct the Escrow Agent to provide a notice of Final Withdrawal to the
Depositary substantially in the form of Exhibit B to the Deposit Agreement (the
"Final Withdrawal Notice") and (B) the Trustee will make a demand upon the
Company under the Note Purchase Agreement for an amount equal to the Special
Redemption Premium, if applicable, such payment to be made on the Final
Withdrawal Date.
Section 2.03. Acceptance by Trustee. The Trustee, upon the
execution and delivery of this Agreement, acknowledges its acceptance of all
right, title and interest in and to the Trust Property and declares that the
Trustee holds and will hold such right, title and interest for the benefit of
all then present and future Certificateholders, upon the trusts herein set
forth. Subject to Section 7.14, the Trustee shall take all actions reasonably
necessary to effect the registration of all such Equipment Notes in the name of
the Subordination Agent. By its payment for and acceptance of each Certificate
issued to it under this Agreement, each initial Certificateholder as grantor of
the Trust thereby joins in the creation and declaration of the Trust.
Section 2.04. Limitation of Powers. The Trust is constituted
solely for the purpose of making the investment in the Equipment Notes, and,
except as set forth herein, the Trustee shall not be authorized or empowered to
acquire any other investments or engage in any other activities and, in
particular, the Trustee shall not be authorized or empowered to do anything that
would cause such Trust to fail to qualify as a "grantor trust" for federal
income tax purposes (including as subject to this restriction, acquiring any
Aircraft (as defined in the
<PAGE> 23
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respective Indentures) by bidding such Equipment Notes or otherwise, or taking
any action with respect to any such Aircraft once acquired).
ARTICLE III
THE CERTIFICATES
Section 3.01. Title, Form, Denomination and Execution of
Certificates. (a) The Initial Certificates shall be known as the "8.54% Initial
Pass Through Certificates, Series 1999-1C-O" and the Exchange Certificates shall
be known as the "8.54% Exchange Pass Through Certificates, Series 1999-1C-O", in
each case, of the Trust. Each Certificate will represent a fractional undivided
interest in the Trust and shall be substantially in the form set forth as
Exhibit A hereto, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Agreement and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
Trustee or the officers executing such Certificates, as evidenced by the
Trustee's or officer's execution of the Certificates (provided that such
letters, numbers or other marks of identification and such legends or
endorsements are in a form acceptable to the Company). At the Escrow Agent's
request under the Escrow Agreement, the Trustee shall affix the corresponding
Escrow Receipt to each Certificate. In any event, any transfer or exchange of
any Certificate shall also effect a transfer or exchange of the related Escrow
Receipt. Prior to the Final Withdrawal Date, no transfer or exchange of any
Certificate shall be permitted unless the Corresponding Escrow Receipt is
attached thereto and also is so transferred or exchanged. By acceptance of any
Certificate to which an Escrow Receipt is attached, each Holder of such a
Certificate acknowledges and accepts the restrictions on transfer of the Escrow
Receipt set forth herein and in the Escrow Agreement.
(b) The Initial Certificates shall be issued only in fully
registered form without coupons and only in denominations of $100,000 or
integral multiples of $1,000 in excess thereof, except that one Certificate may
be issued in a different denomination. The Exchange Certificates will be issued
in denominations of $1,000 or integral multiples thereof, except that one
Certificate may be issued in a different denomination. Each Certificate shall be
dated the date of its authentication. The aggregate Fractional Undivided
Interest of Certificates shall not at any time exceed $20,158,000.
(c) The Initial Certificates offered and sold in reliance on
Rule 144A shall be issued in the form of one or more Global Certificates
substantially in the form of Exhibit A hereto with such applicable legends as
are provided for in Section 3.02 (each a "Restricted Global Certificate") duly
executed and authenticated by the Trustee as hereinafter provided. Such
Restricted Global Certificates shall be in registered form and be registered in
the name of a nominee of DTC and deposited with the Trustee, at its Corporate
Trust Office, as custodian for DTC. The aggregate principal amount of any
Restricted Global Certificate may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for DTC for such
Restricted Global Certificate, as provided in Section 3.06 hereof, which
adjustments shall be conclusive as to the aggregate principal amount of any such
Global Certificate.
<PAGE> 24
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(d) The Initial Certificates offered and sold outside the
United States in reliance on Regulation S shall be issued in the form of one or
more global Certificates substantially in the form of Exhibit A hereto (each a
"Regulation S Global Certificate") duly executed and authenticated by the
Trustee as hereinafter provided. Such Regulation S Global Certificates shall be
in registered form and be registered in the name of a nominee of DTC and
deposited with the Trustee, at its Corporate Trust Office, as custodian for DTC,
for credit initially and during the Restricted Period (hereinafter defined) to
the respective accounts of beneficial owners of such Certificates (or to such
other accounts as they may direct) at Morgan Guaranty Trust Company of New York,
Brussels office, as operator of Euroclear or Cedel. As used herein, the term
"Restricted Period", with respect to the Regulation S Global Certificates
offered and sold in reliance on Regulation S, means the period of 40 consecutive
days beginning on and including the later of (i) the day on which the
Certificates are first offered to persons other than distributors (as defined in
Regulation S) in reliance on Regulation S and (ii) the date of the closing of
the offering under the Certificate Purchase Agreement. The aggregate principal
amount of any Regulation S Global Certificate may from time to time be increased
or decreased by adjustments made on the records of the Trustee, as custodian for
DTC for such Global Certificate, as provided in Section 3.06 hereof, which
adjustments shall be conclusive as to the aggregate principal amount of any such
Global Certificate. The Restricted Global Certificate and Regulation S Global
Certificate are sometimes collectively referred to herein as the "Global
Certificates".
(e) Initial Certificates offered and sold to any Institutional
Accredited Investor which is not a QIB in a transaction exempt from registration
under the Securities Act (and other than as described in Section 3.01(d)) shall
be issued substantially in the form of Exhibit A hereto in definitive, fully
registered form without interest coupons with such applicable legends as are
provided for in Section 3.02 (the "Restricted Definitive Certificates") duly
executed and authenticated by the Trustee as hereinafter provided. Certificates
issued pursuant to Section 3.05(b) in exchange for interests in a Regulation S
Global Certificate shall be issued in definitive, fully registered form without
interest coupons (the "Regulation S Definitive Certificates"). The Restricted
Definitive Certificates and the Regulation S Definitive Certificates are
sometimes collectively referred to herein as the "Definitive Certificates".
(f) The Exchange Certificates shall be issued in the form of
one or more global Certificates substantially in the form of Exhibit A hereto
(each, a "Global Exchange Certificate"), except that (i) the Restricted Legend
(hereinafter defined) shall be omitted and (ii) such Exchange Certificates shall
contain such appropriate insertions, omissions, substitutions and other
variations from the form set forth in Exhibit A hereto relating to the nature of
the Exchange Certificates as the Responsible Officer of the Trustee executing
such Exchange Certificates on behalf of the Trust may determine, as evidenced by
such officer's execution on behalf of the Trust of such Exchange Certificates.
Such Global Exchange Certificates shall be in registered form and be registered
in the name of DTC and deposited with the Trustee, at its Corporate Trust
Office, as custodian for DTC. The aggregate principal amount of any Global
Exchange Certificate may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for DTC for such
Global Exchange Certificate, which adjustments shall be conclusive as to the
aggregate principal amount of any such Global Exchange Certificate. Subject to
clause (i) and (ii) of the first sentence of this Section 3.01(f),
<PAGE> 25
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the terms hereof applicable to Restricted Global Certificates and/or Global
Certificates shall apply to the Global Exchange Certificates, mutatis mutandis.
(g) The Definitive Certificates shall be in registered form
and shall be typed, printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any other manner, all as
determined by the officers executing such Certificates, as evidenced by their
execution of such Certificates.
Section 3.02. Restrictive Legends. All Initial Certificates
issued pursuant to this Agreement for resale pursuant to Rule 144A or offered
and sold to any Institutional Accredited Investor which is not a QIB (including
any Global Certificate issued upon registration of transfer, in exchange for or
in lieu of such Certificates) shall be "Restricted Certificates" and shall bear
a legend to the following effect (the "Restricted Legend") unless the Company
and the Trustee determine otherwise consistent with applicable law:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, ANY PERSONS EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
CERTIFICATE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS CERTIFICATE OR THE
LAST DATE ON WHICH THIS CERTIFICATE WAS HELD BY AMERICA WEST AIRLINES,
INC., THE TRUSTEE OR ANY AFFILIATE OF ANY OF SUCH PERSONS RESELL OR
OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT (A) TO AMERICA WEST
AIRLINES, INC., (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT; AND (3) AGREES THAT IF IT SHOULD RESELL OR OTHERWISE TRANSFER THIS
CERTIFICATE IT WILL DELIVER TO EACH PERSON TO WHOM THIS CERTIFICATE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS CERTIFICATE WITHIN TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUANCE OF THIS CERTIFICATE OR THE LAST DATE
ON WHICH THIS CERTIFICATE WAS HELD BY AMERICA WEST AIRLINES, INC., THE
TRUSTEE OR ANY AFFILIATE OF ANY OF SUCH
<PAGE> 26
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PERSONS, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE PASS THROUGH
TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
Each Global Certificate shall bear the following legend on the face
thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS
CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS
OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 3.05 AND 3.06 OF
THE PASS THROUGH TRUST AGREEMENT REFERRED TO HEREIN.
Section 3.03. Authentication of Certificates. (a) On the
Issuance Date, the Trustee shall duly execute, authenticate and deliver
Certificates in authorized denominations equaling in the aggregate the amount
set forth, with respect to the Trust, in Schedule II to the Certificate Purchase
Agreement, evidencing the entire ownership of the Trust, which amount equals the
maximum aggregate principal amount of Equipment Notes which may be purchased by
the Trustee pursuant to the Note Purchase Agreement.
(b) No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, unless there appears on
such Certificate a certificate of authentication substantially in the form
provided for herein executed by the Trustee by the manual signature of one of
its authorized signatories, and such certificate upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder.
<PAGE> 27
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(c) Certificates bearing the manual or facsimile
signature of an individual who was, at the time when such signature was affixed,
authorized to sign on behalf of the Trustee shall be valid and binding
obligations of the Trust notwithstanding that such individual has ceased to be
so authorized prior to the authentication and delivery of such Certificates or
did not hold such office on the date of such Certificates.
Section 3.04. Transfer and Exchange. The Trustee shall cause
to be kept at the office or agency to be maintained by it in accordance with the
provisions of Section 7.12 a register (the "Register") of the Certificates in
which, subject to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of such Certificates and of transfers and
exchanges of such Certificates as herein provided. The Trustee shall initially
be the registrar (the "Registrar") for the purpose of registering such
Certificates and transfers and exchanges of such Certificates as herein
provided. The Company, upon notice to the Trustee, may change the Registrar at
any time.
All Certificates issued upon any registration of transfer or
exchange of Certificates shall be valid obligations of the Trust, evidencing the
same interest therein, and entitled to the same benefits under this Trust
Agreement, as the Certificates surrendered upon such registration of transfer or
exchange.
A Certificateholder may transfer a Certificate, or request
that a Certificate be exchanged for Certificates in an aggregate Fractional
Undivided Interest equal to the Fractional Undivided Interest of such
Certificate surrendered for exchange of other authorized denominations, by
surrender of such Certificate to the Trustee with the form of transfer notice
thereon duly completed and executed, and otherwise complying with the terms of
this Agreement, including providing evidence of compliance with any restrictions
on transfer, in form satisfactory to the Trustee and the Registrar; provided
that no exchanges of Initial Certificates for Exchange Certificates shall occur
until an Exchange Offer Registration Statement shall have been declared
effective by the SEC (notice of which shall be provided to the Trustee by the
Company). No such transfer shall be effected until, and such transferee shall
succeed to the rights of a Certificateholder only upon, final acceptance and
registration of the transfer by the Registrar in the Register. Prior to the
registration of any transfer by a Certificateholder as provided herein, the
Trustee shall treat the person in whose name the Certificate is registered as
the owner thereof for all purposes, and the Trustee shall not be affected by
notice to the contrary. Furthermore, DTC shall, by acceptance of a Global
Certificate, agree that transfers of beneficial interests in such Global
Certificate may be effected only through a book-entry system maintained by DTC
(or its agent) and that ownership of a beneficial interest in the Certificate
shall be required to be reflected in a book-entry. When Certificates are
presented to the Registrar with a request to register the transfer thereof or to
exchange them for other authorized denominations of a Certificate in a
Fractional Undivided Interest equal to the aggregate Fractional Undivided
Interest of Certificates surrendered for exchange, the Registrar shall register
the transfer or make the exchange as requested if its requirements for such
transactions are met.
To permit registrations of transfers and exchanges in
accordance with the terms, conditions and restrictions hereof, the Trustee shall
execute and authenticate Certificates at the Registrar's request. No service
charge shall be made to a Certificateholder for any registration of transfer or
exchange of Certificates, but the Trustee shall require payment of a sum
sufficient to
<PAGE> 28
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cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates. All Certificates surrendered for
registration of transfer or exchange shall be canceled and subsequently
destroyed by the Trustee.
Section 3.05. Book-Entry Provisions for Restricted Global
Certificates and Regulation S Global Certificates. (a) Members of, or
participants in, DTC ("Agent Members") shall have no rights under this Agreement
with respect to any Global Certificate held on their behalf by DTC, or the
Trustee as its custodian, and DTC may be treated by the Trustee and any agent of
the Trustee as the absolute owner of such Global Certificate for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Trustee or any agent of the Trustee from giving effect to any written
certification, proxy or other authorization furnished by DTC or shall impair, as
between DTC and its Agent Members, the operation of customary practices
governing the exercise of the rights of a holder of any Certificate. Upon the
issuance of any Global Certificate, the Registrar or its duly appointed agent
shall record DTC as the registered holder of such Global Certificate.
(b) Transfers of any Global Certificate shall be limited to
transfers of such Restricted Global Certificate or Regulation S Global
Certificate in whole, but not in part, to DTC. Beneficial interests in the
Restricted Global Certificate and any Regulation S Global Certificate may be
transferred in accordance with the rules and procedures of DTC and the
provisions of Section 3.06. Beneficial interests in a Restricted Global
Certificate or a Regulation S Global Certificate shall be delivered to all
beneficial owners thereof in the form of Restricted Definitive Certificates or
Regulation S Definitive Certificates, as the case may be, if (i) DTC notifies
the Trustee that it is unwilling or unable to continue as depositary for such
Restricted Global Certificate or Regulation S Global Certificate, as the case
may be, and a successor depositary is not appointed by the Trustee within 90
days of such notice, and (ii) after the occurrence and during the continuance of
an Event of Default, owners of beneficial interests in a Global Certificate with
Fractional Undivided Interests aggregating not less than a majority in interest
in the Trust advise the Trustee, the Company and DTC through Agent Members in
writing that the continuation of a book-entry system through DTC or its
successor is no longer in their best interests.
(c) Any beneficial interest in one of the Global Certificates
that is transferred to a Person who takes delivery in the form of an interest in
another Global Certificate will, upon such transfer, cease to be an interest in
such Global Certificate and become an interest in the other Global Certificate
and, accordingly, will thereafter be subject to all transfer restrictions, if
any, and other procedures applicable to beneficial interests in such other
Global Certificate for as long as it remains such an interest.
(d) In connection with the transfer of an entire Restricted
Global Certificate or an entire Regulation S Global Certificate to the
beneficial owners thereof pursuant to paragraph (b) of this Section 3.05, such
Restricted Global Certificate or Regulation S Global Certificate, as the case
may be, shall be deemed to be surrendered to the Trustee for cancellation, and
the Trustee shall execute, authenticate and deliver, to each beneficial owner
identified by DTC in exchange for its beneficial interest in such Restricted
Global Certificate or Regulation S Global Certificate, as the case may be, an
equal aggregate principal amount of Restricted Definitive Certificates or
Regulation S Definitive Certificates, as the case may be, of
<PAGE> 29
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authorized denominations. None of the Company, the Registrar, the Paying Agent
nor the Trustee shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
registration instructions. Upon the issuance of Definitive Certificates, the
Trustee shall recognize the Person in whose name the Definitive Certificates are
registered in the Register as Certificateholders hereunder. Neither the Company
nor the Trustee shall be liable if the Trustee or the Company is unable to
locate a qualified successor clearing agency.
(e) Any Definitive Certificate delivered in exchange for an
interest in the Restricted Global Certificate pursuant to paragraph (b) of this
Section 3.05 shall, except as otherwise provided by paragraph (e) of Section
3.06, bear the Restricted Legend.
(f) Prior to the expiration of the Restricted Period, any
Regulation S Definitive Certificate delivered in exchange for an interest in a
Regulation S Global Certificate pursuant to paragraph (b) of this Section shall
bear the Restricted Legend.
(g) The registered holder of any Restricted Global Certificate
or Regulation S Global Certificate may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Agreement or the Certificates.
Section 3.06. Special Transfer Provisions. Unless and until
(i) an Initial Certificate is sold under an effective Shelf Registration
Statement, or (ii) an Initial Certificate is exchanged for an Exchange
Certificate pursuant to an effective Exchange Offer Registration Statement, in
each case pursuant to the terms of the Registration Rights Agreement, the
following provisions shall apply to such Initial Certificates:
(a) Transfers to Non-QIB Institutional Accredited Investors.
The following provisions shall apply with respect to the registration
of any proposed transfer of a Certificate to any Institutional
Accredited Investor which is neither a QIB nor a Non-U.S. Person:
(i) The Registrar shall register the transfer of any
Certificate, whether or not bearing the Restricted Legend, only if (x)
the requested transfer is at least two years after the later of the
original issue date of the Certificates and the last date on which such
Certificate was held by the Company, the Trustee or any affiliate of
any of such Persons or (y) the proposed transferor is an Initial
Purchaser who is transferring Certificates purchased under the
Certificates Purchase Agreement and the proposed transferee has
delivered to the Registrar a letter substantially in the form of
Exhibit C hereto and the aggregate principal amount of the Certificates
being transferred is at least $100,000. Except as provided in the
foregoing clause (y), the Registrar shall not register the transfer of
any Certificate to any Institutional Accredited Investor which is
neither a QIB nor a Non-U.S. Person.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in a Restricted Global Certificate, upon receipt by
the Registrar of (x) the documents, if any, required by paragraph (i)
and (y) instructions given in
<PAGE> 30
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accordance with DTC's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date of
the transfer and a decrease in the principal amount of such
Restricted Global Certificate in an amount equal to the
principal amount of the beneficial interest in such Restricted
Global Certificate to be transferred, and the Trustee shall
execute, authenticate and deliver to the transferor or at its
direction, one or more Restricted Definitive Certificates of
like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer of an Initial
Certificate to a QIB (excluding Non-U.S. Persons):
(i) If the Certificate to be transferred consists of
Restricted Definitive Certificates, or of an interest in any
Regulation S Global Certificate during the Restricted Period,
the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box
provided for on the form of Initial Certificate stating, or
has otherwise advised the Trustee and the Registrar in
writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Initial Certificate
stating, or has otherwise advised the Trustee and the
Registrar in writing, that it is purchasing the Initial
Certificate for its own account or an account with respect to
which it exercises sole investment discretion and that it, or
the Person on whose behalf it is acting with respect to any
such account, is a QIB within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such information
regarding the Trust and/or the Company as it has requested
pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim
the exemption from registration provided by Rule 144A.
(ii) Upon receipt by the Registrar of the documents
required by clause (i) above and instructions given in
accordance with DTC's and the Registrar's procedures therefor,
the Registrar shall reflect on its books and records the date
of such transfer and an increase in the principal amount of a
Restricted Global Certificate in an amount equal to the
principal amount of the Restricted Definitive Certificates or
interests in such Regulation S Global Certificate, as the case
may be, being transferred, and the Trustee shall cancel such
Definitive Certificates or decrease the amount of such
Regulation S Global Certificate so transferred.
(c) Transfers of Interests in the Regulation S Global
Certificate or Regulation S Definitive Certificates. After the
expiration of the Restricted Period, the Registrar shall register any
transfer of interests in any Regulation S Global Certificate or
Regulation S Definitive Certificates without requiring any additional
certification. Until the expiration of the Restricted Period, interests
in the Regulation S Global Certificate may only be held through Agent
Members acting for and on behalf of Euroclear and Cedel.
<PAGE> 31
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(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any registration of any transfer
of an Initial Certificate to a Non-U.S. Person:
(i) Prior to the expiration of the Restricted Period,
the Registrar shall register any proposed transfer of an
Initial Certificate to a Non-U.S. Person upon receipt of a
certificate substantially in the form set forth as Exhibit B
hereto from the proposed transferor.
(ii) After the expiration of the Restricted Period,
the Registrar shall register any proposed transfer to any
Non-U.S. Person if the Certificate to be transferred is a
Restricted Definitive Certificate or an interest in a
Restricted Global Certificate, upon receipt of a certificate
substantially in the form of Exhibit B from the proposed
transferor. The Registrar shall promptly send a copy of such
certificate to the Company.
(iii) Upon receipt by the Registrar of (x) the
documents, if any, required by clause (ii) and (y)
instructions in accordance with DTC's and the Registrar's
procedures, the Registrar shall reflect on its books and
records the date of such transfer and a decrease in the
principal amount of such Restricted Global Certificate in an
amount equal to the principal amount of the beneficial
interest in such Restricted Global Certificate to be
transferred, and, upon receipt by the Registrar of
instructions given in accordance with DTC's and the
Registrar's procedures, the Registrar shall reflect on its
books and records the date and an increase in the principal
amount of the Regulation S Global Certificate in an amount
equal to the principal amount of the Restricted Definitive
Certificate or the Restricted Global Certificate, as the case
may be, to be transferred, and the Trustee shall cancel the
Definitive Certificate, if any, so transferred or decrease the
amount of such Restricted Global Certificate.
(e) Restricted Legend. Upon the transfer, exchange or
replacement of Certificates not bearing the Restricted Legend, the
Registrar shall deliver Certificates that do not bear the Restricted
Legend. Upon the transfer, exchange or replacement of Certificates
bearing the Restricted Legend, the Registrar shall deliver only
Certificates that bear the Restricted Legend unless either (i) the
circumstances contemplated by paragraph (d)(ii) of this Section 3.06
exist or (ii) there is delivered to the Registrar an Opinion of Counsel
to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the
provisions of the Securities Act.
(f) General. By acceptance of any Certificate bearing the
Restricted Legend, each Holder of such a Certificate acknowledges the
restrictions on transfer of such Certificate set forth in this
Agreement and agrees that it will transfer such Certificate only as
provided in this Agreement. The Registrar shall not register a transfer
of any Certificate unless such transfer complies with the restrictions
on transfer, if any, of such Certificate set forth in this Agreement.
In connection with any transfer of Certificates, each Certificateholder
agrees by its acceptance of the Certificates to furnish the Registrar
<PAGE> 32
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or the Trustee such certifications, legal opinions or other information
as either of them may reasonably require to confirm that such transfer
is being made pursuant to an exemption from, or a transaction not
subject to, the registration requirements of the Securities Act and in
accordance with the terms and provisions of this Article III; provided
that the Registrar shall not be required to determine the sufficiency of
any such certifications, legal opinions or other information.
Until such time as no Certificates remain Outstanding, the
Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 3.05 or this Section 3.06. The
Trustee, if not the Registrar at such time, shall have the right to inspect and
make copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Registrar.
Section 3.07. Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate is surrendered to the Registrar
or the Registrar receives evidence to its satisfaction of the destruction, loss
or theft of any Certificate and (b) there is delivered to the Registrar and the
Trustee such security, indemnity or bond, as may be required by them to save
each of them harmless, then, in the absence of notice to the Registrar or the
Trustee that such destroyed, lost or stolen Certificate has been acquired by a
protected purchaser, and provided that the requirements of Section 8-405 of the
Uniform Commercial Code in effect in any applicable jurisdiction are met, the
Trustee shall execute, authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Certificate, a new Certificate or
Certificates, in authorized denominations and of like Fractional Undivided
Interest and bearing a number not contemporaneously outstanding.
In connection with the issuance of any new Certificate under
this Section 3.07, the Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee
and the Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section 3.07
shall constitute conclusive evidence of the appropriate Fractional Undivided
Interest in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.08. Persons Deemed Owners. Prior to due presentment
of a Certificate for registration of transfer, the Trustee, the Registrar and
any Paying Agent may treat the Person in whose name any Certificate is
registered (as of the day of determination) as the owner of such Certificate for
the purpose of receiving distributions pursuant to Article IV and for all other
purposes whatsoever, and none of the Trustee, the Registrar or any Paying Agent
shall be affected by any notice to the contrary.
Section 3.09. Cancellation. All Certificates surrendered for
payment or transfer or exchange shall, if surrendered to the Trustee or any
agent of the Trustee other than the
<PAGE> 33
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Registrar, be delivered to the Registrar for cancellation and shall promptly be
canceled by it. No Certificates shall be authenticated in lieu of or in exchange
for any Certificates canceled as provided in this Section, except as expressly
permitted by this Agreement. All canceled Certificates held by the Registrar
shall be destroyed and a certification of their destruction delivered to the
Trustee.
Section 3.10. Temporary Certificates. Until definitive
Certificates are ready for delivery, the Trustee shall authenticate temporary
Certificates. Temporary Certificates shall be substantially in the form of
definitive Certificates but may have insertions, substitutions, omissions and
other variations determined to be appropriate by the officers executing the
temporary Certificates, as evidenced by their execution of such temporary
Certificates. If temporary Certificates are issued, the Trustee will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee designated for such purpose
pursuant to Section 7.12, without charge to the Certificateholder. Upon
surrender for cancellation of any one or more temporary Certificates, the
Trustee shall execute, authenticate and deliver in exchange therefor a like face
amount of definitive Certificates of authorized denominations. Until so
exchanged, the temporary Certificates shall be entitled to the same benefits
under this Agreement as definitive Certificates.
Section 3.11. Limitation of Liability for Payments. All
payments and distributions made to Certificateholders in respect of the
Certificates shall be made only from the Trust Property and only to the extent
that the Trustee shall have sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of Article IV of
this Agreement. Each Certificateholder, by its acceptance of a Certificate,
agrees that it will look solely to the income and proceeds from the Trust
Property for any payment or distribution due to such Certificateholder pursuant
to the terms of this Agreement and that it will not have any recourse to the
Company, the Trustee, the Loan Trustees, the Liquidity Provider, the Owner
Trustees or the Owner Participants, except as otherwise expressly provided
herein or in the Intercreditor Agreement.
The Company is a party to this Agreement solely for purposes
of meeting the requirements of the Trust Indenture Act, and therefore shall not
have any right, obligation or liability hereunder (except as otherwise expressly
provided herein).
Section 3.12 ERISA Restrictive Legend. All Certificates issued
pursuant to this Agreement shall bear a legend to the following effect (the
"ERISA Legend") unless the Company and the Trustee determine otherwise
consistent with applicable law:
"BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT (A) NO
PLAN ASSETS HAVE BEEN USED TO PURCHASE THIS CERTIFICATE OR AN INTEREST HEREIN OR
(B) THE PURCHASE AND HOLDING OF THIS CERTIFICATE OR AN INTEREST HEREIN IS EXEMPT
FROM THE PROHIBITED TRANSACTION RESTRICTIONS OF ERISA AND THE CODE PURSUANT TO
ONE OR MORE PROHIBITED TRANSACTION STATUTORY OR ADMINISTRATIVE EXEMPTIONS. THE
PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION REQUIRING
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THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION
OF THE FOREGOING RESTRICTIONS."
By acceptance of any Certificate bearing the ERISA Legend,
each Holder of such a Certificate acknowledges the restrictions on transfer of
such Certificate set forth in this Agreement and agrees that it will transfer
such Certificate only as provided in this Agreement. The Trustee shall not
register a transfer of any Certificate unless such transfer complies with the
restrictions on transfer, if any, of such Certificate set forth in such legend.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments
Account. (a) The Trustee shall establish and maintain on behalf of the
Certificateholders a Certificate Account as one or more non-interest-bearing
accounts. The Trustee shall hold the Certificate Account in trust for the
benefit of the Certificateholders, and shall make or permit withdrawals
therefrom only as provided in this Agreement. On each day when a Scheduled
Payment is made to the Trustee under the Intercreditor Agreement, the Trustee
upon receipt thereof shall immediately deposit the aggregate amount of such
Scheduled Payment in the Certificate Account.
(b) The Trustee shall establish and maintain on behalf of the
Certificateholders a Special Payments Account as one or more accounts, which
shall be non-interest bearing except as provided in Section 4.04. The Trustee
shall hold the Special Payments Account in trust for the benefit of the
Certificateholders and shall make or permit withdrawals therefrom only as
provided in this Agreement. On each day when one or more Special Payments are
made to the Trustee under the Intercreditor Agreement and upon the payment of
the Special Redemption Premium to the Trustee under the Note Purchase Agreement,
the Trustee, upon receipt thereof, shall immediately deposit the aggregate
amount of such Special Payments in the Special Payments Account.
(c) The Trustee shall cause the Subordination Agent to present
to the related Loan Trustee of each Equipment Note such Equipment Note on the
date of its stated final maturity or, in the case of any Equipment Note which is
to be redeemed in whole pursuant to the related Indenture, on the applicable
redemption date under such Indenture.
Section 4.02. Distributions from Certificate Account and
Special Payments Account. (a) On each Regular Distribution Date or as soon
thereafter as the Trustee has confirmed receipt of the payment of all or any
part of the Scheduled Payments due on such date, the Trustee shall distribute
out of the Certificate Account the entire amount deposited therein pursuant to
Section 4.01(a). There shall be so distributed to each Certificateholder of
record on the Record Date with respect to such Regular Distribution Date (other
than as provided in Section 11.01 concerning the final distribution) by check
mailed to such Certificateholder, at the address appearing in the Register, such
Certificateholder's pro rata share (based on the Fractional Undivided Interest
in the Trust held by such Certificateholder) of the total amount in the
Certificate Account, except that, with respect to Certificates registered on the
Record Date in the
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name of DTC, such distribution shall be made by wire transfer in immediately
available funds to the account designated by DTC.
(b) On each Special Distribution Date with respect to any
Special Payment or as soon thereafter as the Trustee has confirmed receipt of
any Special Payments due on the Equipment Notes held in the related Trust or
realized upon the sale of such Equipment Notes or receipt of the Special
Redemption Premium, the Trustee shall distribute out of the Special Payments
Account the entire amount of such Special Payment deposited therein pursuant to
Section 4.01(b). There shall be so distributed to each Certificateholder of
record on the Record Date with respect to such Special Distribution Date (other
than as provided in Section 11.01 concerning the final distribution) by check
mailed to such Certificateholder, at the address appearing in the Register, such
Certificateholder's pro rata share (based on the Fractional Undivided Interest
in the Trust held by such Certificateholder) of the total amount in the Special
Payments Account on account of such Special Payment, except that, with respect
to Certificates registered on the Record Date in the name of DTC, such
distribution shall be made by wire transfer in immediately available funds to
the account designated by DTC.
(c) The Trustee shall cause notice of each Special Payment to
be mailed to each Certificateholder at his address as it appears in the
Register. In the event of redemption or purchase of Equipment Notes held in the
Trust, such notice shall be mailed not less than 20 days prior to the Special
Distribution Date for the Special Payment resulting from such redemption or
purchase, which Special Distribution Date shall be the date of such redemption
or purchase. In the event of the payment of a Special Redemption Premium by the
Company to the Trustee under the Note Purchase Agreement, such notice shall be
mailed, together with the notice by the Escrow Paying Agent under Section 2.06
of the Escrow Agreement, not less than 20 days prior to the Special Distribution
Date for such amount, which Special Distribution Date shall be the Final
Withdrawal Date. In the case of any other Special Payments, such notice shall be
mailed as soon as practicable after the Trustee has confirmed that it has
received funds for such Special Payment, stating the Special Distribution Date
for such Special Payment which shall occur not less than 20 days after the date
of such notice and as soon as practicable thereafter. Notices mailed by the
Trustee shall set forth:
(i) the Special Distribution Date and the Record Date therefor
(except as otherwise provided in Section 11.01),
(ii) the amount of the Special Payment for each $1,000 face
amount Certificate and the amount thereof constituting principal,
premium, if any, and interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a
Regular Distribution Date, the total amount to be received on such date
for each $1,000 face amount Certificate.
If the amount of (i) premium, if any, payable upon the redemption or purchase of
an Equipment Note or (ii) the Special Redemption Premium, if any, has not been
calculated at the time that the
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Trustee mails notice of a Special Payment, it shall be sufficient if the notice
sets forth the other amounts to be distributed and states that any premium
received will also be distributed.
If any redemption of the Equipment Notes held in the Trust is
canceled, the Trustee, as soon as possible after learning thereof, shall cause
notice thereof to be mailed to each Certificateholder at its address as it
appears on the Register.
Section 4.03. Statements to Certificateholders. (a) On each
Distribution Date, the Trustee will include with each distribution to
Certificateholders of a Scheduled Payment or Special Payment, as the case may
be, a statement setting forth the information provided below (in the case of a
Special Payment, including any Special Redemption Premium, reflecting in part
the information provided by the Escrow Paying Agent under the Escrow Agreement).
Such statement shall set forth (per $1,000 face amount Certificate as to (ii),
(iii), (iv) and (v) below) the following information:
(i) the aggregate amount of funds distributed on such
Distribution Date hereunder and under the Escrow Agreement, indicating
the amount allocable to each source;
(ii) the amount of such distribution hereunder allocable to
principal and the amount allocable to premium (including the Special
Redemption Premium), if any;
(iii) the amount of such distribution hereunder allocable to
interest; and
(iv) the amount of such distribution under the Escrow
Agreement allocable to interest;
(v) the amount of such distribution under the Escrow Agreement
allocable to Deposits; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Certificates registered in the name of
DTC, on the Record Date prior to each Distribution Date, the Trustee will
request from DTC a securities position listing setting forth the names of all
Agent Members reflected on DTC's books as holding interests in the Certificates
on such Record Date. On each Distribution Date, the Trustee will mail to each
such Agent Member the statement described above and will make available
additional copies as requested by such Agent Member for forwarding to holders of
interests in the Certificates.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the Trustee
shall furnish to each Person who at any time during such calendar year was a
Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and (a)(v)
above for such calendar year or, in the event such Person was a
Certificateholder of record during a portion of such calendar year, for such
portion of such year, and such other items as are readily available to the
Trustee and which a Certificateholder shall reasonably request as necessary for
the purpose of such Certificateholder's preparation of its federal income tax
returns. Such statement and such other items shall be prepared on the basis of
information supplied to the Trustee by the Agent
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Members and shall be delivered by the Trustee to such Agent Members to be
available for forwarding by such Agent Members to the holders of interests in
the Certificates in the manner described in Section 4.03(a).
(c) Promptly following (i) the Delivery Period Termination
Date, if there has been any change in the information set forth in clauses (x),
(y) and (z) below from that set forth in pages 61-62 of the Offering Circular,
and (ii) any early redemption or purchase of, or any default in the payment of
principal or interest in respect of, any of the Equipment Notes held in the
Trust, or any Final Withdrawal, the Trustee shall furnish to Certificateholders
of record on such date a statement setting forth (x) the expected Pool Balances
for each subsequent Regular Distribution Date following the Delivery Period
Termination Date, (y) the related Pool Factors for such Regular Distribution
Dates and (z) the expected principal distribution schedule of the Equipment
Notes, in the aggregate, held as Trust Property at the date of such notice. With
respect to the Certificates registered in the name of DTC, on the Delivery
Period Termination Date, the Trustee will request from DTC a securities position
listing setting forth the names of all Agent Members reflected on DTC's books as
holding interests in the Certificates on such date. The Trustee will mail to
each such Agent Member the statement described above and will make available
additional copies as requested by such Agent Member for forwarding to holders of
interests in the Certificates.
Section 4.04. Investment of Special Payment Moneys. Any money
received by the Trustee pursuant to Section 4.01(b) representing a Special
Payment which is not distributed on the date received shall, to the extent
practicable, be invested in Permitted Investments by the Trustee pending
distribution of such Special Payment pursuant to Section 4.02. Any investment
made pursuant to this Section 4.04 shall be in such Permitted Investments having
maturities not later than the date that such moneys are required to be used to
make the payment required under Section 4.02 on the applicable Special
Distribution Date and the Trustee shall hold any such Permitted Investments
until maturity. The Trustee shall have no liability with respect to any
investment made pursuant to this Section 4.04, other than by reason of the
willful misconduct or negligence of the Trustee. All income and earnings from
such investments shall be distributed on such Special Distribution Date as part
of such Special Payment.
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence. The Company,
at its own cost and expense, will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, except as
permitted by Section 5.02.
Section 5.02. Consolidation, Merger, etc. The Company shall
not consolidate with or merge into any other corporation or convey, transfer or
lease substantially all of its assets as an entirety to any Person unless:
(a) the corporation formed by such consolidation or into which
the Company is merged or the Person that acquires by conveyance,
transfer or lease substantially all of the assets of the Company as an
entirety shall be (i) organized and validly existing under
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the laws of the United States of America or any state thereof or the
District of Columbia, (ii) a "citizen of the United States" as defined
in 49 U.S.C. 40102(a)(15), as amended, and (iii) a United States
certificated air carrier, if and so long as such status is a condition
of entitlement to the benefits of Section 1110 of the Bankruptcy Reform
Act of 1978, as amended (11 U.S.C. Section 1110);
(b) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance,
transfer or lease substantially all of the assets of the Company as an
entirety shall execute and deliver to the Trustee a duly authorized,
valid, binding and enforceable agreement in form and substance
reasonably satisfactory to the Trustee containing an assumption by such
successor corporation or Person of the due and punctual performance and
observance of each covenant and condition of this Agreement, the Other
Pass Through Trust Agreement and each Financing Document to be
performed or observed by the Company; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate of the Company reasonably satisfactory to the
Trustee, stating that such consolidation, merger, conveyance, transfer
or lease and the assumption agreement mentioned in clause (b) above
comply with this Section 5.02 and that all conditions precedent herein
provided for relating to such transaction have been complied with.
Upon any consolidation or merger, or any conveyance, transfer
or lease of substantially all of the assets of the Company as an entirety in
accordance with this Section 5.02, the successor corporation or Person formed by
such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Agreement with
the same effect as if such successor corporation or Person had been named as the
Company herein. No such conveyance, transfer or lease of substantially all of
the assets of the Company as an entirety shall have the effect of releasing any
successor corporation or Person which shall have become such in the manner
prescribed in this Section 5.02 from its liability in respect of this Agreement
and any Financing Document to which it is a party.
ARTICLE VI
DEFAULT
Section 6.01. Events of Default. (a) Exercise of Remedies.
Upon the occurrence and during the continuation of any Indenture Default under
any Indenture, with ten days' written notice to the Trustee and each
Certificateholder, the Trustee may, to the extent it is the Controlling Party at
such time (as determined pursuant to the Intercreditor Agreement), direct the
exercise of remedies as provided in the Intercreditor Agreement.
(b) Purchase Rights of Certificateholders. (i) At any time
within 180 days after the occurrence and during the continuation of a
Triggering Event, each Certificateholder shall have the right to
purchase, for the purchase price set forth in the Class G Trust
Agreement, all, but not less than all, of the Class G Certificates upon
ten days' written notice to the Class G Trustee and each other
Certificateholder, provided that (i) if prior to
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the end of such ten-day period any other Certificateholder notifies
such purchasing Certificateholder that such other Certificateholder
wants to participate in such purchase, then such other
Certificateholder may join with the purchasing Certificateholder to
purchase all, but not less than all, of the Class G Certificates pro
rata based on the Fractional Undivided Interest in the Trust held by
each such Certificateholder and (ii) if prior to the end of such
ten-day period any other Certificateholder fails to notify the
purchasing Certificateholder of such other Certificateholder's desire
to participate in such a purchase, then such other Certificateholder
shall lose its right to purchase the Class G Certificates pursuant to
this Section 6.01(b);
(ii) by acceptance of its Certificate, each Certificateholder
agrees that at any time within 180 days after the occurrence and during
the continuation of a Triggering Event, each Class D Certificateholder
shall have the right (which shall not expire upon any purchase of the
Class G Certificates pursuant to clause (b)(i) above) to purchase all,
but not less than all, of the Class G Certificates and the Certificates
upon ten days' written notice to the Class G Trustee and the Trustee
and each other Class D Certificateholder, provided that (1) if prior to
the end of such ten-day period any other Class D Certificateholder
notifies such purchasing Class D Certificateholder that such other
Class D Certificateholder wants to participate in such purchase, then
such other Class D Certificateholder may join with the purchasing Class
D Certificateholder to purchase all, but not less than all, of the
Class G Certificates and the Certificates pro rata based on the
Fractional Undivided Interest in the Class D Trust, taken as a whole,
held by each such Class D Certificateholder and (2) if prior to the end
of such ten day period any other Class D Certificateholder fails to
notify the purchasing Class D Certificateholder of such other Class D
Certificateholder's desire to participate in such a purchase, then such
other Class D Certificateholder shall lose its right to purchase the
Certificates pursuant to this Section 6.01(b); and
(iii) by acceptance of its Certificate, each Certificateholder
agrees that at any time after 180 days have elapsed since the
occurrence of a Triggering Event that is continuing, regardless of
whether the Certificateholders exercise their right to purchase the
Class G Certificates pursuant to clause (i) above, the Policy Provider,
if it is then the Controlling Party, shall have the right (except in
the event of a Policy Provider Default) to purchase all, but not less
than all, of the Class G Certificates upon ten days' written notice to
the Class G Trustee and the Class G Certificateholders.
The purchase price with respect to the Certificates shall be
equal to the Pool Balance of the Certificates, together with accrued and unpaid
interest thereon to the date of such purchase, without premium, but including
any other amounts then due and payable to the Certificateholders under this
Agreement, the Intercreditor Agreement, the Escrow Agreement or any Financing
Document or on or in respect of the Certificates; provided, however, that (i) if
such purchase occurs after the record date specified in Section 2.03(b) of the
Escrow Agreement relating to the distribution of unused Deposits and accrued and
unpaid interest thereunder, such purchase price shall be reduced by the
aggregate amount of unused Deposits and interest to be distributed under the
Escrow Agreement (which deducted amounts shall remain distributable to, and may
be retained by, the Certificateholder as of such Record Date) and (ii) if such
purchase occurs after a Record Date, such purchase price shall be reduced by the
amount to be distributed
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hereunder on the related Distribution Date (which deducted amounts shall remain
distributable to, and may be retained by, the Certificateholder as of such
Record Date); provided, further, that no such purchase of Certificates shall be
effective unless the purchaser(s) shall certify to the Trustee that
contemporaneously with such purchase, such purchaser(s) is purchasing, pursuant
to the terms of this Agreement and the Other Pass Through Trust Agreement, the
Certificates and the Class G Certificates which are senior to the securities
held by such purchaser(s). Each payment of the purchase price of the
Certificates referred to in the first sentence hereof shall be made to an
account or accounts designated by the Trustee and each such purchase shall be
subject to the terms of this Section 6.01(b). Each Certificateholder agrees by
its acceptance of its Certificate that it will, subject to Section 3.04 hereof,
upon payment from such Class D Certificateholder(s) of the purchase price set
forth in the first sentence of this paragraph, forthwith sell, assign, transfer
and convey to the purchaser(s) thereof (without recourse, representation or
warranty of any kind except for its own acts), all of the right, title, interest
and obligation of such Certificateholder in this Agreement, the Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity
Facility, the Financing Documents and all Certificates and Escrow Receipts held
by such Certificateholder (excluding all right, title and interest under any of
the foregoing to the extent such right, title or interest is with respect to an
obligation not then due and payable as respects any action or inaction or state
of affairs occurring prior to such sale) and the purchaser shall assume all of
such Certificateholder's obligations under this Agreement, the Escrow Agreement,
the Deposit Agreement, the Intercreditor Agreement, the Liquidity Facility, the
Financing Documents and all such Certificates and Escrow Receipts. The
Certificates will be deemed to be purchased on the date payment of the purchase
price is made notwithstanding the failure of the Certificateholders to deliver
any Certificates (whether in the form of Definitive Certificates or beneficial
interests in Global Certificates) and, upon such a purchase, (i) the only rights
of the Certificateholders will be to deliver the Certificates to the
purchaser(s) and receive the purchase price for such Certificates and (ii) if
the purchaser(s) shall so request, such Certificateholder will comply with all
the provisions of Section 3.04 hereof to enable new Certificates to be issued to
the purchaser in such denominations as it shall request. All charges and
expenses in connection with the issuance of any such new Certificates shall be
borne by the purchaser thereof.
As used in this Section 6.01(b), the terms "Class G
Certificate", "Class G Certificateholder", "Class G Trust", "Class G Trust
Agreement", "Class G Trustee", "Class D Certificate", and "Class D Trust", shall
have the respective meanings assigned to such terms in the Intercreditor
Agreement.
Section 6.02. Incidents of Sale of Equipment Notes. Upon any
sale of all or any part of the Equipment Notes made either under the power of
sale given under this Agreement or otherwise for the enforcement of this
Agreement, the following shall be applicable:
(1) Certificateholders and Trustee May Purchase Equipment
Notes. Any Certificateholder, the Trustee in its individual or any
other capacity or any other Person may bid for and purchase any of the
Equipment Notes, and upon compliance with the terms of sale, may hold,
retain, possess and dispose of such Equipment Notes in their own
absolute right without further accountability.
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(2) Receipt of Trustee Shall Discharge Purchaser. The receipt
of the Trustee making such sale shall be a sufficient discharge to any
purchaser for his purchase money, and, after paying such purchase money
and receiving such receipt, such purchaser or its personal
representative or assigns shall not be obliged to see to the
application of such purchase money, or be in any way answerable for any
loss, misapplication or non-application thereof.
(3) Application of Moneys Received upon Sale. Any moneys
collected by the Trustee upon any sale made either under the power of
sale given by this Agreement or otherwise for the enforcement of this
Agreement shall be applied as provided in Section 4.02.
Section 6.03. Judicial Proceedings Instituted by Trustee;
Trustee May Bring Suit. If there shall be a failure to make payment of the
principal of, premium, if any, or interest on any Equipment Note, or if there
shall be any failure to pay Rent (as defined in the relevant Lease) under any
Lease when due and payable, then the Trustee, in its own name and as trustee of
an express trust, as holder of such Equipment Notes, to the extent permitted by
and in accordance with the terms of the Intercreditor Agreement and the
Financing Documents (subject to the rights of the applicable Owner Trustee or
Owner Participant to cure any such failure to pay principal of, premium, if any,
or interest on any Equipment Note or to pay Rent under any Lease in accordance
with the applicable Indenture), shall be entitled and empowered to institute any
suits, actions or proceedings at law, in equity or otherwise, for the collection
of the sums so due and unpaid on such Equipment Notes or under such Lease and
may prosecute any such claim or proceeding to judgment or final decree with
respect to the whole amount of any such sums so due and unpaid.
Section 6.04 Control by Certificateholders. Subject to Section
6.03 and the Intercreditor Agreement, the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less than
a majority in interest in the Trust shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee with respect to the Trust or pursuant to the terms of the Intercreditor
Agreement, or exercising any trust or power conferred on the Trustee under this
Agreement or the Intercreditor Agreement, including any right of the Trustee as
Controlling Party under the Intercreditor Agreement or as holder of the
Equipment Notes, provided that:
(1) such Direction shall not be in conflict with any rule of
law or with this Agreement and would not involve the Trustee in
personal liability or expense,
(2) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Certificateholders not
taking part in such Direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such Direction.
Section 6.05. Waiver of Past Defaults. Subject to the
Intercreditor Agreement, the Certificateholders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in the Trust (i) may on behalf of all of the Certificateholders
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waive any past Event of Default hereunder and its consequences or (ii) if the
Trustee is the Controlling Party, may direct the Trustee to instruct the
applicable Loan Trustee to waive any past Indenture Default under any Indenture
and its consequences, and thereby annul any Direction given by such
Certificateholders or the Trustee to such Loan Trustee with respect thereto,
except a default:
(1) in the deposit of any Scheduled Payment or Special Payment
under Section 4.01 or in the distribution of any payment under Section
4.02 on the Certificates, or
(2) in the payment of the principal of (premium, if any) or
interest on the Equipment Notes, or
(3) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of each
Certificateholder holding an Outstanding Certificate affected thereby.
Upon any such waiver, such default shall cease to exist with
respect to the Certificates and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose and any direction given by the
Trustee on behalf of the Certificateholders to the relevant Loan Trustee shall
be annulled with respect thereto; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Upon any such waiver, the Trustee shall vote the Equipment Notes issued
under the relevant Indenture to waive the corresponding Indenture Default.
Section 6.06. Right of Certificateholders to Receive Payments
Not to Be Impaired. Anything in this Agreement to the contrary notwithstanding,
including, without limitation, Section 6.07 hereof, but subject to the
Intercreditor Agreement, the right of any Certificateholder to receive
distributions of payments required pursuant to Section 4.02 hereof on the
Certificates when due, or to institute suit for the enforcement of any such
payment on or after the applicable Regular Distribution Date or Special
Distribution Date, shall not be impaired or affected without the consent of such
Certificateholder.
Section 6.07. Certificateholders May Not Bring Suit Except
Under Certain Conditions. A Certificateholder shall not have the right to
institute any suit, action or proceeding at law or in equity or otherwise with
respect to this Agreement, for the appointment of a receiver or for the
enforcement of any other remedy under this Agreement, unless:
(1) such Certificateholder previously shall have given written
notice to the Trustee of a continuing Event of Default;
(2) Certificateholders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than 25% of the
Trust shall have requested the Trustee in writing to institute such
action, suit or proceeding and shall have offered to the Trustee
indemnity as provided in Section 7.03(e);
(3) the Trustee shall have refused or neglected to institute
such an action, suit or proceeding for 60 days after receipt of such
notice, request and offer of indemnity; and
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(4) no direction inconsistent with such written request shall
have been given to the Trustee during such 60-day period by
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the
Trust.
It is understood and intended that no one or more of the
Certificateholders shall have any right in any manner whatsoever hereunder or
under the Certificates to (i) surrender, impair, waive, affect, disturb or
prejudice any property in the Trust Property or the lien of any Indenture on any
property subject thereto, or the rights of the Certificateholders or the holders
of the Equipment Notes, (ii) obtain or seek to obtain priority over or
preference with respect to any other such Certificateholder or (iii) enforce any
right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all the Certificateholders subject to the
provisions of this Agreement.
Section 6.08. Remedies Cumulative. Every remedy given
hereunder to the Trustee or to any of the Certificateholders shall not be
exclusive of any other remedy or remedies, and every such remedy shall be
cumulative and in addition to every other remedy given hereunder or now or
hereafter given by statute, law, equity or otherwise.
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities. (a) Except
during the continuance of an Event of Default, the Trustee undertakes to perform
such duties as are specifically set forth in this Agreement, and no implied
covenants or obligations shall be read into this Agreement against the Trustee.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Agreement, 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 its own affairs.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this SubSection shall not be construed to limit the effect
of SubSection (a) of this Section; and
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts.
(d) Whether or not herein expressly so provided, every
provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
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Section 7.02. Notice of Defaults. As promptly as practicable
after, and in any event within 90 days after, the occurrence of any default (as
such term is defined below) hereunder, the Trustee shall transmit by mail to the
Company, the Owner Trustees, the Owner Participants, the Loan Trustees and the
Certificateholders in accordance with Section 313(c) of the Trust Indenture Act,
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
default on the payment of the principal, premium, if any, or interest on any
Equipment Note held in the Trust, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a trust committee of directors and/or Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interests of
the Certificateholders. For the purpose of this Section, the term "default"
means any event that is, or after notice or lapse of time or both would become,
an Event of Default.
Section 7.03. Certain Rights of Trustee. Subject to the
provisions of Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a written description of the subject
matter thereof accompanied by an Officer's Certificate and an Opinion
of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officer's
Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement at the Direction
of any of the Certificateholders pursuant to this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the cost, expenses and liabilities which
might be incurred by it in compliance with such Direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document;
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(g) the Trustee may execute any of the trusts or powers under
this Agreement or perform any duties under this Agreement either
directly or by or through agents or attorneys, and the Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
Direction of the Certificateholders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in
interest in the Trust relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; and
(i) the Trustee shall not be required to expend or risk its
own funds in the performance of any of its duties under this Agreement,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk is not reasonably assured to it.
Section 7.04. Not Responsible for Recitals or Issuance of
Certificates. The recitals contained herein and in the Certificates, except the
certificates of authentication, shall not be taken as the statements of the
Trustee, and the Trustee assumes no responsibility for their correctness.
Subject to Section 7.15, the Trustee makes no representations as to the validity
or sufficiency of this Agreement, any Equipment Notes, the Intercreditor
Agreement, the Deposit Agreement, the Escrow Agreement, the Certificates or any
other Financing Document, except that the Trustee hereby represents and warrants
that this Agreement has been, and the Intercreditor Agreement, the Registration
Rights Agreement, the Note Purchase Agreement, the Escrow Agreement and each
Certificate will be, executed, authenticated and delivered by one of its
officers who is duly authorized to execute, authenticate and deliver such
document on its behalf.
Section 7.05. May Hold Certificates. The Trustee, any Paying
Agent, Registrar or any of their Affiliates or any other agent in their
respective individual or any other capacity may become the owner or pledgee of
Certificates and, subject to Sections 310(b) and 311 of the Trust Indenture Act,
if applicable, may otherwise deal with the Company, the Owner Trustees or the
Loan Trustees with the same rights it would have if it were not Trustee, Paying
Agent, Registrar or such other agent.
Section 7.06. Money Held in Trust. Money held by the Trustee
or the Paying Agent in trust hereunder need not be segregated from other funds
except to the extent required herein or by law and neither the Trustee nor the
Paying Agent shall have any liability for interest upon any such moneys except
as provided for herein.
Section 7.07. Compensation and Reimbursement. The Company
agrees:
(1) to pay, or cause to be paid, to the Trustee from time to
time reasonable compensation for all services rendered by it hereunder
as set forth in a written fee letter dated the date hereof between the
Company and the Trustee, which letter is incorporated
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herein by reference (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse, or cause to be reimbursed, the Trustee upon its request for
all reasonable out-of-pocket expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of
this Agreement (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its undertaking its
normal administrative functions, or its negligence, willful misconduct
or bad faith or as may be incurred due to the Trustee's breach of its
representations and warranties set forth in Section 7.15; and
(3) to indemnify, or cause to be indemnified, the Trustee for,
and to hold it harmless against, any loss, liability, expense or Tax
(other than for or with respect to any Unindemnified Tax) incurred
without negligence, willful misconduct or bad faith, on its part,
arising out of or in connection with the acceptance or administration
of this Trust, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except for any
such loss, liability or expense incurred by reason of the Trustee's
breach of its covenants hereunder or under any Financing Document to
which it is a party or its representations and warranties set forth in
Section 7.15 or in any other Financing Document, the authorization or
giving or withholding of any future amendments, supplements, waivers or
consents with respect hereto or any of the Financing Documents, which
amendments, supplements, waivers or consents are not required pursuant
to the terms of the Financing Documents and not requested by the
Company, any loss of tax benefits, any Unindemnified Tax, or increase
in tax liability under any tax law whether or not the Company is
required to indemnify thereof or pursuant to this Agreement or any
costs associated with overhead or normal administration hereunder or
any voluntary resignation pursuant to Section 7.09.
With respect to paragraph (3) above, the Trustee shall notify
the Company promptly of any claim for which it may seek indemnity and the
Company shall make payment on any such claim within 30 days of written demand
thereof (delivered together with supporting documentation). The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel with the consent of the Company and the Company will pay
the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made, in settlement or otherwise, without its consent.
With respect to any Tax other than an Unindemnified Tax, the
Trustee shall be entitled to reimbursement from, and shall have a lien prior to
the Certificates upon, the Trust Property for any such Tax incurred without
negligence, bad faith or willful misconduct, on its part, arising out of or in
connection with the acceptance or administration of such Trust (other than any
Tax attributable to the Trustee's compensation for serving as such), including
any costs and expenses incurred in contesting the imposition of any such Tax. If
the Trustee reimburses itself from the Trust Property of such Trust for any such
Tax, it will mail a brief report within 30 days setting forth the circumstances
thereof to all Certificateholders as their names and addresses appear in the
Register.
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Section 7.08. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be eligible to act as a
trustee under Section 310(a) of the Trust Indenture Act and shall have a
combined capital and surplus of at least $75,000,000 (or a combined capital and
surplus in excess of $5,000,000 and the obligations of which, whether now in
existence or hereafter incurred, are fully and unconditionally guaranteed by a
corporation organized and doing business under the laws of the United States,
any state or territory thereof or of the District of Columbia and having a
combined capital and surplus of at least $75,000,000). If such corporation
publishes reports of conditions at least annually, pursuant to law or to the
requirements of federal, state, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section 7.08, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of conditions so
published.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.08 to act as Trustee, the
Trustee shall resign immediately as Trustee in the manner and with the effect
specified in Section 7.09.
Section 7.09 Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 7.10.
(b) The Trustee may resign at any time as trustee by giving
prior written notice thereof to the Company, the Authorized Agents, the Owner
Trustees and the Loan Trustees. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Company, the Authorized Agents, the
Owner Trustees, the Loan Trustees and the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Direction of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust
delivered to the Trustee and to the Company, the Owner Trustees and the Loan
Trustees.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310 of the
Trust Indenture Act, if applicable, after written request therefor by
the Company or by any Certificateholder who has been a bona fide
Certificateholder for at least six months; or
(2) the Trustee shall cease to be eligible under Section 7.08
and shall fail to resign after written request therefor by the Company
or by any such Certificateholder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
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then, in any case, (i) the Company may remove the Trustee or (ii) any
Certificateholder who has been a bona fide Certificateholder for at least six
months may, on behalf of itself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(e) If a Responsible Officer of the Trustee shall obtain
actual knowledge of an Avoidable Tax which has been or is likely to be asserted,
the Trustee shall promptly notify the Company and shall, within 30 days of such
notification, resign hereunder unless within such 30-day period the Trustee
shall have received notice that the Company has agreed to pay such tax. The
Company shall promptly appoint a successor Trustee in a jurisdiction where there
are no Avoidable Taxes.
(f) If the Trustee shall resign, be removed or become
incapable of acting or if a vacancy shall occur in the office of the Trustee for
any cause, the Company shall promptly appoint a successor Trustee. If, within
one year after such resignation, removal or incapability, or other occurrence of
such vacancy, a successor Trustee shall be appointed by Direction of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust
delivered to the Company, the Owner Trustees, the Loan Trustees and the retiring
Trustee, and the Company approves such appointment, which approval shall not be
unreasonably withheld, then the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee and
supersede the successor Trustee appointed as provided above. If no successor
Trustee shall have been so appointed as provided above and accepted appointment
in the manner hereinafter provided, any Certificateholder who has been a bona
fide Certificateholder for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(g) The successor Trustee shall give notice of the resignation
and removal of the Trustee and appointment of the successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Certificateholders as their names and addresses appear in the Register. Each
notice shall include the name of such successor Trustee and the address of its
Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder shall execute and deliver to the Company,
the Authorized Agents, the Owner Trustees and the Loan Trustees and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring Trustee
shall execute and deliver an instrument transferring to such successor Trustee
all such rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all Trust Property held
by such retiring Trustee hereunder, subject nevertheless to its lien, if any,
provided for in Section 7.07. Upon request of any such successor Trustee, the
Company, the retiring Trustee and such successor Trustee shall execute and
deliver any and all instruments containing such provisions as shall be necessary
or desirable to transfer and confirm to, and for more fully and certainly
vesting in, such successor Trustee all such rights, powers and trusts.
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No institution shall accept its appointment as a Trustee
hereunder unless at the time of such acceptance such institution shall be
qualified and eligible under this Article VII.
Section 7.11. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article VII, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Certificates shall have been
executed or authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such execution or authentication and deliver the Certificates so
executed or authenticated with the same effect as if such successor Trustee had
itself executed or authenticated such Certificates.
Section 7.12. Maintenance of Agencies. (a) There shall at all
times be maintained an office or agency in the location set forth in Section
12.03 where Certificates may be presented or surrendered for registration of
transfer or for exchange, and for payment thereof and where notices and demands
to or upon the Trustee in respect of such certificates or this Agreement may be
served; provided, however, that, if it shall be necessary that the Trustee
maintain an office or agency in another location (e.g., the Certificates shall
be represented by Definitive Certificates and shall be listed on a national
securities exchange), the Trustee will make all reasonable efforts to establish
such an office or agency. Written notice of the location of each such other
office or agency and of any change of location thereof shall be given by the
Trustee to the Company, the Owner Trustees, the Loan Trustees (in the case of
any Owner Trustee or Loan Trustee, at its address specified in the Financing
Documents or such other address as may be notified to the Trustee) and the
Certificateholders. In the event that no such office or agency shall be
maintained or no such notice of location or of change of location shall be
given, presentations and demands may be made and notices may be served at the
Corporate Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a Paying Agent
hereunder with respect to the Certificates. Each such Authorized Agent shall be
a bank or trust company, shall be a corporation organized and doing business
under the laws of the United States or any state, with a combined capital and
surplus of at least $75,000,000, or, if the Trustee shall be acting as the
Registrar or Paying Agent hereunder, a corporation having a combined capital and
surplus in excess of $5,000,000, the obligations of which are guaranteed by a
corporation organized and doing business under the laws of the United States or
any state, with a combined capital and surplus of at least $75,000,000, and
shall be authorized under such laws to exercise corporate trust powers, subject
to supervision by Federal or state authorities. The Trustee shall initially be
the Paying Agent and, as provided in Section 3.04, Registrar hereunder with
respect to the Certificates. Each Registrar shall furnish to the Trustee, at
stated intervals of not more than six months, and at such other times as the
Trustee may request in writing, a copy of the Register maintained by such
Registrar.
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(c) Any corporation into which any Authorized Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any Authorized
Agent shall be a party, or any corporation succeeding to the corporate trust
business of any Authorized Agent, shall be the successor of such Authorized
Agent hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the parties hereto or such Authorized Agent or such successor
corporation.
(d) Any Authorized Agent may at any time resign by giving
written notice of resignation to the Trustee, the Company, the Owner Trustees
and the Loan Trustees. The Company may, and at the request of the Trustee shall,
at any time terminate the agency of any Authorized Agent by giving written
notice of termination to such Authorized Agent and to the Trustee. Upon the
resignation or termination of an Authorized Agent or in case at any time any
such Authorized Agent shall cease to be eligible under this Section (when, in
either case, no other Authorized Agent performing the functions of such
Authorized Agent shall have been appointed), the Company shall promptly appoint
one or more qualified successor Authorized Agents, reasonably satisfactory to
the Trustee, to perform the functions of the Authorized Agent which has resigned
or whose agency has been terminated or who shall have ceased to be eligible
under this Section. The Company shall give written notice of any such
appointment made by it to the Trustee, the Owner Trustees and the Loan Trustees;
and in each case the Trustee shall mail notice of such appointment to all
Certificateholders as their names and addresses appear on the Register.
(e) The Company agrees to pay, or cause to be paid, from time
to time to each Authorized Agent reasonable compensation for its services and to
reimburse it for its reasonable expenses as set forth in the letter agreement
referred to in Section 7.07 hereof.
Section 7.13. Money for Certificate Payments to Be Held in
Trust. All moneys deposited with any Paying Agent for the purpose of any payment
on Certificates shall be deposited and held in trust for the benefit of the
Certificateholders entitled to such payment, subject to the provisions of this
Section. Moneys so deposited and held in trust shall constitute a separate trust
fund for the benefit of the Certificateholders with respect to which such money
was deposited.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Agreement or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Section 7.14. Registration of Equipment Notes in Name of
Subordination Agent. The Trustee agrees that all Equipment Notes to be purchased
by the Trust shall be issued in the name of the Subordination Agent or its
nominee and held by the Subordination Agent in trust for the benefit of the
Certificateholders, or, if not so held, the Subordination Agent or its nominee
shall be reflected as the owner of such Equipment Notes in the register of the
issuer of such Equipment Notes.
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Section 7.15. Representations and Warranties of Trustee. The
Trustee hereby represents and warrants that:
(a) the Trustee is a Delaware banking corporation organized
and validly existing in good standing under the laws of the State of Delaware;
(b) the Trustee has full power, authority and legal right to
execute, deliver, and perform this Agreement, the Intercreditor Agreement, the
Registration Rights Agreement, the Escrow Agreement, the Note Purchase Agreement
and the Financing Documents to which it is a party and has taken all necessary
action to authorize the execution, delivery, and performance by it of this
Agreement, the Intercreditor Agreement, the Registration Rights Agreement, the
Escrow Agreement, the Note Purchase Agreement and the Financing Documents to
which it is a party;
(c) the execution, delivery and performance by the Trustee of
this Agreement, the Intercreditor Agreement, the Registration Rights Agreement,
the Escrow Agreement, the Note Purchase Agreement and the Financing Documents to
which it is a party (i) will not violate any provision of United States federal
law or the law of the state of the United States where it is located governing
the banking and trust powers of the Trustee or any order, writ, judgment, or
decree of any court, arbitrator or governmental authority applicable to the
Trustee or any of its assets, (ii) will not violate any provision of the
articles of association or by-laws of the Trustee, or (iii) will not violate any
provision of, or constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of any lien on any properties
included in the Trust Property pursuant to the provisions of any mortgage,
indenture, contract, agreement or other undertaking to which it is a party,
which violation, default or lien could reasonably be expected to have an adverse
effect on the Trustee's performance or ability to perform its duties hereunder
or thereunder or on the transactions contemplated herein or therein;
(d) the execution, delivery and performance by the Trustee of
this Agreement, the Intercreditor Agreement, the Registration Rights Agreement,
the Escrow Agreement, the Note Purchase Agreement, and the Financing Documents
to which it is a party will not require the authorization, consent, or approval
of, the giving of notice to, the filing or registration with, or the taking of
any other action in respect of, any governmental authority or agency of the
United States or the state of the United States where it is located regulating
the banking and corporate trust activities of the Trustee; and
(e) this Agreement, the Intercreditor Agreement, the
Registration Rights Agreement, the Escrow Agreement, the Note Purchase
Agreement, and the Financing Documents to which it is a party have been duly
executed and delivered by the Trustee and constitute the legal, valid, and
binding agreements of the Trustee, enforceable against it in accordance with
their respective terms, provided that enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and (ii) general principles of
equity, regardless of whether applied in a proceeding in equity or at law.
Section 7.16. Withholding Taxes, Information Reporting. The
Trustee, as trustee of the grantor trust created by this Agreement, shall
exclude and withhold from each
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distribution of principal, premium, if any, and interest and other amounts due
under this Agreement or under the Certificates any and all withholding taxes
applicable thereto as required by law. In addition, the Trustee shall remit such
amounts as would be required by Section 1446 of the Internal Revenue Code of
1986, as amended, if the Trust were characterized as a partnership engaged in a
U.S. trade or business for U.S. federal income tax purposes and shall withhold
such amounts from amounts distributable to or for the benefit of
Certificateholders or Investors that are not United States persons within the
meaning of Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended.
In this regard, the Trustee shall cause the appropriate withholding agent to
withhold with respect to such distributions in the manner contemplated by
Section 10.04 of Revenue Procedure 89-31 and Treasury Regulation 1.1445-8(b)(3)
by filing a notice with the National Association of Securities Dealers, Inc.
substantially in the form of Exhibit E hereto on or before the date 10 days
prior to the Record Date. The Trustee shall mail such notice to the National
Association of Securities Dealers no later than the date than 15 days prior to
the Record Date. Investors that are not United States Persons agree to furnish a
United States taxpayer identification number ("TIN") to the Trustee and the
Trustee shall provide such TINs to the appropriate withholding agent. The
Trustee agrees to act as such withholding agent (except to the extent
contemplated above with respect to withholding amounts as if the Trust were
characterized as a partnership engaged in a U.S. trade or business for U.S.
federal income tax purposes) and, in connection therewith, whenever any present
or future taxes or similar charges are required to be withheld with respect to
any amounts payable in respect of the Certificates, to withhold such amounts and
timely pay the same to the appropriate authority in the name of and on behalf of
the Certificateholders, that it will file any necessary withholding tax returns
or statements when due, and that, as promptly as possible after the payment
thereof, it will deliver to each such Certificateholder appropriate
documentation showing the payment thereof, together with such additional
documentary evidence as such Certificateholders may reasonably request from time
to time. The Trustee agrees to file any other information reports as it may be
required to file under United States law. Each Certificateholder or Investor
that is not a United States person within the meaning of Section 7701(a)(30) of
the Internal Revenue Code, as amended, by its acceptance of a Certificate or a
beneficial interest therein, agrees to indemnify and hold harmless the Trust and
the Trustee from and against any improper failure to withhold taxes from amounts
payable to it or for its benefit, other than an improper failure attributable to
the gross negligence or willful misconduct of the Trustee.
Section 7.17. Trustee's Liens. The Trustee in its individual
capacity agrees that it will at its own cost and expense promptly take any
action as may be necessary to duly discharge and satisfy in full any mortgage,
pledge, lien, charge, encumbrance, security interest or claim ("Trustee's
Liens") on or with respect to the Trust Property which is attributable to the
Trustee either (i) in its individual capacity and which is unrelated to the
transactions contemplated by this Agreement, the Intercreditor Agreement, the
Note Purchase Agreement or the Financing Documents, or (ii) as Trustee hereunder
or in its individual capacity and which arises out of acts or omissions on the
part of the Trustee which are not contemplated by this Agreement.
Section 7.18. Preferential Collection of Claims. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship listed in
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Section 311(b) of the Trust Indenture Act. If the Trustee shall resign or be
removed as Trustee, it shall be subject to Section 311(a) of the Trust Indenture
Act to the extent provided therein.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and
Addresses of Certificateholders. The Company will furnish to the Trustee within
15 days after each Record Date with respect to a Scheduled Payment, and at such
other times as the Trustee may request in writing within 30 days after receipt
by the Company of any such request, a list, in such form as the Trustee may
reasonably require, of all information in the possession or control of the
Company as to the names and addresses of the Certificateholders, in each case as
of a date not more than 15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee is the sole Registrar, no such
list need be furnished; and provided further, however, that no such list need be
furnished for so long as a copy of the Register is being furnished to the
Trustee pursuant to Section 7.12.
Section 8.02. Preservation of Information; Communications to
Certificateholders. The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Certificateholders contained
in the most recent list furnished to the Trustee as provided in Section 7.12 or
Section 8.01, as the case may be, and the names and addresses of
Certificateholders received by the Trustee in its capacity as Registrar, if so
acting. The Trustee may destroy any list furnished to it as provided in Section
7.12 or Section 8.01, as the case may be, upon receipt of a new list so
furnished.
Section 8.03. Reports by Trustee. Within 60 days after May 15
of each year commencing with the first full year following the issuance of the
Certificates, the Trustee shall transmit to the Certificateholders, as provided
in Section 313(c) of the Trust Indenture Act, a brief report dated as of such
May 15, if required by Section 313(a) of the Trust Indenture Act.
Section 8.04. Reports by the Company. The Company shall:
(a) file with the Trustee, within 30 days after the Company is
required to file the same with the SEC, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may from time to time by
rules and regulations prescribe) which the Company is required to file
with the SEC pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended; or, if the Company is not required to
file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the SEC, in accordance with
rules and regulations prescribed by the SEC, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed in such rules and regulations;
<PAGE> 54
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(b) during any period, prior to the consummation of the
Exchange Offer and during which the Shelf Registration Statement is not
in effect, in which the Company is not subject to Section 13(a), 13(c)
or 15(d) under the Securities Exchange Act of 1934, make available to
any Holder of the Certificates in connection with any sale thereof and
any prospective purchaser of the Certificates from such Holder, in each
case upon request, the information specified in, and meeting the
requirements of, Rule 144A(d)(4) under the Securities Act but only for
so long as any of the Certificates remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act and, in any event, only until the second anniversary of
the Issuance Date;
(c) file with the Trustee and the SEC, in accordance with the
rules and regulations prescribed by the SEC, such additional
information, documents and reports with respect to compliance by the
Company with the conditions and covenants provided for in this
Agreement, as may be required by such rules and regulations, including,
in the case of annual reports, if required by such rules and
regulations, certificates or opinions of independent public
accountants, conforming to the requirements of Section 1.02;
(d) transmit to all Certificateholders, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act such
summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (c) of this
Section 8.04 as may be required by rules and regulations prescribed by
the SEC; and
(e) furnish to the Trustee, not less often than annually, a
brief certificate from the principal executive officer, principal
financial officer, any Vice President (or more senior ranking officer)
or the principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this
Agreement (it being understood that for purposes of this paragraph (e),
such compliance shall be determined without regard to any period of
grace or requirement of notice provided under this Agreement).
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of
Certificateholders. Without the consent of the Certificateholders, the Company
may (but will not be required to), and the Trustee (subject to Section 9.03)
shall, at the Company's request, at any time and from time to time, enter into
one or more agreements supplemental hereto or, if applicable, to the
Intercreditor Agreement, the Escrow Agreement, the Note Purchase Agreement, the
Deposit Agreement, the Registration Rights Agreement or any Liquidity Facility
in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein contained or of the Company's obligations under the
Note Purchase Agreement, the Registration Rights Agreement or any
Liquidity Facility; or
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(2) to add to the covenants of the Company for the benefit of
the Certificateholders, or to surrender any right or power conferred
upon the Company in this Agreement, the Note Purchase Agreement, the
Registration Rights Agreement or any Liquidity Facility; or
(3) to correct or supplement any provision in this Agreement,
the Intercreditor Agreement, the Escrow Agreement, the Deposit
Agreement, the Note Purchase Agreement, the Registration Rights
Agreement or any Liquidity Facility which may be defective or
inconsistent with any other provision herein or therein or to cure any
ambiguity or correct any mistake or to modify any other provision with
respect to matters or questions arising under this Agreement, the
Escrow Agreement, the Deposit Agreement, the Note Purchase Agreement,
the Intercreditor Agreement, the Registration Rights Agreement or any
Liquidity Facility, provided that any such action shall not materially
adversely affect the interests of the Certificateholders; or
(4) to comply with any requirement of the SEC, any applicable
law, rules or regulations of any exchange or quotation system on which
the Certificates are listed, any regulatory body or the Registration
Rights Agreement to effectuate the Exchange Offer; or
(5) to modify, eliminate or add to the provisions of this
Agreement to such extent as shall be necessary to continue the
qualification of this Agreement (including any supplemental agreement)
under the Trust Indenture Act or under any similar Federal statute
hereafter enacted, and to add to this Agreement such other provisions
as may be expressly permitted by the Trust Indenture Act, excluding,
however, the provisions referred to in Section 316(a)(2) of the Trust
Indenture Act as in effect at the date as of which this instrument was
executed or any corresponding provision in any similar Federal statute
hereafter enacted; or
(6) to evidence and provide for the acceptance of appointment
under this Agreement by the Trustee of a successor Trustee and to add
to or change any of the provisions of this Agreement as shall be
necessary to provide for or facilitate the administration of the Trust,
pursuant to the requirements of Section 7.10; or
(7) to provide the information required under Section 7.12 and
Section 12.03 as to the Trustee; or
(8) to modify or eliminate provisions relating to the transfer
or exchange of Exchange Certificates or the Initial Certificates upon
consummation of the Exchange Offer (as defined in the Registration
Rights Agreement) or effectiveness of the Shelf Registration Statement
or the Exchange Offer Registration Statement;
provided, however, that no such supplemental agreement shall adversely affect
the status of any Trust as a grantor trust under Subpart E, Part I of Subchapter
J of Chapter 1 of Subtitle A of the Internal Revenue Code of 1986, as amended,
for U.S. federal income tax purposes.
Section 9.02. Supplemental Agreements with Consent of
Certificateholders. With the consent of the Certificateholders holding
Certificates (including consents obtained in
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connection with a tender offer or exchange offer for the Certificates)
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Trust, by Direction of said Certificateholders delivered to
the Company and the Trustee, the Company may (with the consent of the Owner
Trustees, if any, which consent shall not be unreasonably withheld), and the
Trustee (subject to Section 9.03) shall, enter into an agreement or agreements
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement, the Intercreditor
Agreement, any Liquidity Facility, the Registration Rights Agreement, the Escrow
Agreement, the Deposit Agreement or the Note Purchase Agreement to the extent
applicable to such Certificateholders or of modifying in any manner the rights
and obligations of such Certificateholders under this Agreement, the
Intercreditor Agreement, any Liquidity Facility, the Registration Rights
Agreement, the Escrow Agreement, the Deposit Agreement or the Note Purchase
Agreement to the extent applicable to such Certificateholders or of modifying in
any manner the rights and obligations of such Certificateholders under this
Agreement, the Intercreditor Agreement, any Liquidity Facility, the Registration
Rights Agreement, the Escrow Agreement, the Deposit Agreement or the Note
Purchase Agreement; provided, however, that no such agreement shall, without the
consent of the Certificateholder of each Outstanding Certificate affected
thereby:
(1) reduce in any manner the amount of, or delay the timing
of, any receipt by the Trustee (or, with respect to the Deposits, the
Certificateholders) of payments on the Equipment Notes or other Trust
Property held in the Trust or on the Deposits or distributions that are
required to be made herein on any Certificate, or change any date of
payment on any Certificate, or change the place of payment where, or
the coin or currency in which, any Certificate is payable, or impair
the right to institute suit for the enforcement of any such payment or
distribution on or after the Regular Distribution Date or Special
Distribution Date applicable thereto; or
(2) permit the disposition of any Equipment Note included in
the Trust Property except as permitted by this Agreement, or otherwise
deprive such Certificateholder of the benefit of the ownership of the
Equipment Notes in the Trust; or
(3) reduce the specified percentage of the aggregate
Fractional Undivided Interests of the Trust which is required for any
such supplemental agreement, or reduce such specified percentage
required for any waiver of compliance with certain provisions of this
Agreement or certain defaults hereunder and their consequences provided
for in this Agreement; or
(4) waive, amend or modify Section 2.4, 3.2 or 3.3 of the
Intercreditor Agreement in a manner adverse to the Certificateholders;
or
(5) modify any of the provisions of this Section 9.02 or
Section 6.05, except to increase any such percentage or to provide that
certain other provisions of this Agreement cannot be modified or waived
without the consent of the Certificateholder of each Certificate
affected thereby; or
<PAGE> 57
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(6) adversely affect the status of any Trust as a grantor
trust under Subpart E, Part I of Subchapter J of Chapter 1 of Subtitle
A of the Internal Revenue Code of 1986, as amended, for U.S. federal
income tax purposes.
It shall not be necessary for any Direction of
Certificateholders under this Section to approve the particular form of any
proposed supplemental agreement, but it shall be sufficient if such Direction
shall approve the substance thereof.
Section 9.03. Documents Affecting Immunity or Indemnity.
Except for the performance of its covenants herein, if in the opinion of the
Trustee any document required to be executed by it pursuant to the terms of
Section 9.01 or 9.02 affects adversely any interest, right, duty, immunity or
indemnity in favor of the Trustee under this Agreement, the Trustee may in its
discretion decline to execute such document.
Section 9.04. Execution of Supplemental Agreements. In
executing, or accepting the additional trusts created by, any agreement
permitted by this Article or the modifications thereby of the trusts created by
this Agreement, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental agreement is authorized or permitted by this Agreement.
Section 9.05. Effect of Supplemental Agreements. Upon the
execution of any agreement supplemental to this Agreement under this Article,
this Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every Holder
of a Certificate theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.06. Conformity with Trust Indenture Act. Every
supplemental agreement executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act as then in effect.
Section 9.07. Reference in Certificates to Supplemental
Agreements. Certificates authenticated and delivered after the execution of any
supplemental agreement pursuant to this Article may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
agreement; and, in such case, suitable notation may be made upon Outstanding
Certificates after proper presentation and demand.
ARTICLE X
AMENDMENTS TO INDENTURES AND FINANCING DOCUMENTS
Section 10.01. Amendments and Supplements to Indentures and
Financing Documents. In the event that the Trustee, as holder (or beneficial
owner through the Subordination Agent) of any Equipment Note in trust for the
benefit of the Certificateholders or as Controlling Party under the
Intercreditor Agreement, receives (directly or indirectly through the
Subordination Agent) a request for a consent to any amendment,
<PAGE> 58
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modification, waiver or supplement under any Indenture, any other Financing
Document, any Equipment Note or any other related document, the Trustee shall
forthwith send a notice of such proposed amendment, modification, waiver or
supplement to each Certificateholder registered on the Register as of the date
of such notice. The Trustee shall request from the Certificateholders a
Direction as to (a) whether or not to take or refrain from taking (or direct the
Subordination Agent to take or refrain from taking) any action which a holder of
such Equipment Note has the option to direct, (b) whether or not to give or
execute (or direct the Subordination Agent to give or execute) any waivers,
consents, amendments, modifications or supplements as a holder of such Equipment
Note or a Controlling Party and (c) how to vote (or direct the Subordination
Agent to vote) any Equipment Note if a vote has been called for with respect
thereto. Provided such a request for Certificateholder Direction shall have been
made, in directing any action or casting any vote or giving any consent as the
holder of any Equipment Note (or in directing the Subordination Agent in any of
the foregoing), (i) other than as Controlling Party, the Trustee shall vote for
or give consent to any such action with respect to such Equipment Note in the
same proportion as that of (A) the aggregate face amounts of all Certificates
actually voted in favor of or for giving consent to such action by such
Direction of Certificateholders to (B) the aggregate face amount of all
Outstanding Certificates and (ii) as Controlling Party, the Trustee shall vote
as directed in such Certificateholder Direction by the Certificateholders
evidencing a Fractional Undivided Interest aggregating not less than a majority
in interest in the Trust. For purposes of the immediately preceding sentence, a
Certificate shall have been "actually voted" if the Holder of such Certificate
has delivered to the Trustee an instrument evidencing such Holder's consent to
such Direction prior to two Business Days before the Trustee directs such action
or casts such vote or gives such consent. Notwithstanding the foregoing, but
subject to Section 6.04 and the Intercreditor Agreement, the Trustee may, in its
own discretion and at its own direction, consent and notify the relevant Loan
Trustee of such consent (or direct the Subordination Agent to consent and notify
the Loan Trustee of such consent) to any amendment, modification, waiver or
supplement under the relevant Indenture, any other Financing Document, any
Equipment Note or any other related document, if an Event of Default hereunder
shall have occurred and be continuing, or if such amendment, modification,
waiver or supplement will not materially adversely affect the interests of the
Certificateholders.
ARTICLE XI
TERMINATION OF TRUST
Section 11.01. Termination of the Trust. The respective
obligations and responsibilities of the Company and the Trustee with respect to
the Trust shall terminate upon the earlier of (A) the completion of the
assignment, transfer and discharge described in the first sentence of the
immediately following paragraph and (B) distribution to all Holders of
Certificates and the Trustee of all amounts required to be distributed to them
pursuant to this Agreement and the disposition of all property held as part of
the Trust Property; provided, however, that in no event shall the Trust continue
beyond one hundred ten (110) years following the date of the earliest execution
of this Trust Agreement.
Upon the earlier of (i) the first Business Day after May 30,
2000, or, if later, the fifth Business Day following the Delivery Period
Termination Date and (ii) the fifth Business Day following the date on which a
Triggering Event occurs (such date, the "Transfer Date"), or, if later the date
on which all of the conditions set forth in the immediately following sentence
<PAGE> 59
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have been satisfied, the Trustee is hereby directed (subject only to the
immediately following sentence) to, and the Company shall direct the institution
that will serve as the Related Trustee under the Related Pass Through Trust
Agreement to, execute and deliver the Assignment and Assumption Agreement,
pursuant to which the Trustee shall assign, transfer and deliver all of the
Trustee's right, title and interest to the Trust Property to the Related Trustee
under the Related Pass Through Trust Agreement. The Trustee and the Related
Trustee shall execute and deliver the Assignment and Assumption Agreement upon
the satisfaction of the following conditions:
(i) The Trustee, the Related Trustee and each of the Rating
Agencies then rating the Certificates shall have received an Officer's
Certificate and an Opinion of Counsel dated the date of the Assignment
and Assumption Agreement and each satisfying the requirements of
Section 1.02, which Opinion of Counsel shall be substantially to the
effect set forth below and may be relied upon by the Beneficiaries (as
defined in the Assignment and Assumption Agreement):
(a) upon the execution and delivery thereof by the
parties thereto in accordance with the terms of this
Agreement and the Related Pass Through Trust
Agreement, the Assignment and Assumption Agreement
will constitute the valid and binding obligation of
each of the parties thereto enforceable against each
such party in accordance with its terms;
(b) upon the execution and delivery of the Assignment and
Assumption Agreement in accordance with the terms of
this Agreement and the Related Pass Through Trust
Agreement, each of the Certificates then Outstanding
will be entitled to the benefits of the Related Pass
Through Trust Agreement;
(c) the Related Trust is not required to be registered as
an investment company under the Investment Company
Act of 1940, as amended;
(d) the Related Pass Through Trust Agreement constitutes
the valid and binding obligation of the Company
enforceable against the Company in accordance with
its terms; and
(e) neither the execution and delivery of the Assignment
and Assumption Agreement in accordance with the terms
of this Agreement and the Related Pass Through Trust
Agreement, nor the consummation by the parties
thereto of the transactions contemplated to be
consummated thereunder on the date thereof, will
violate any law or governmental rule or regulation of
the State of New York or the United States of America
known to such counsel to be applicable to the
transactions contemplated by the Assignment and
Assumption Agreement.
(ii) The Trustee and the Company shall have received (x) a
copy of the articles of incorporation and bylaws of the Related Trustee
certified as of the Transfer Date by the Secretary or Assistant
Secretary of such institution and (y) a copy of the filing (including
all attachments thereto) made by the institution serving as the Related
Trustee with the
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Office of the Superintendent, State of New York Banking Department for
the qualification of the Related Trustee under Section 131(3) of the
New York Banking Law.
Upon the execution of the Assignment and Assumption Agreement by the parties
thereto, the Trust shall be terminated, the Certificateholders shall receive
beneficial interests in the Related Trust in exchange for their interests in the
Trust equal to their respective beneficial interests in the Trust, and the
Outstanding Certificates representing Fractional Undivided Interests in the
Trust shall be deemed for all purposes of this Agreement and the Related Pass
Through Trust Agreement, without further signature or action of any party or
Certificateholder, to be certificates representing the same fractional undivided
interests in the Related Trust and its trust property. By acceptance of its
Certificate, each Certificateholder consents to such assignment, transfer and
delivery of the Trust Property to the trustee of the Related Trust upon the
execution and delivery of the Assignment and Assumption Agreement.
In connection with the occurrence of the event set forth in
clause (B) above, notice of such termination, specifying the Distribution Date
upon which the Certificateholders may surrender their Certificates to the
Trustee for payment of the final distribution and cancellation, shall be mailed
promptly by the Trustee to Certificateholders not earlier than the 60th day and
not later than the 20th day next preceding such final Distribution Date
specifying (A) the Distribution Date upon which the proposed final payment of
the Certificates will be made upon presentation and surrender of Certificates at
the office or agency of the Trustee therein specified, (B) the amount of any
such proposed final payment, and (C) that the Record Date otherwise applicable
to such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Certificates at the office or agency of the
Trustee therein specified. The Trustee shall give such notice to the Registrar
at the time such notice is given to Certificateholders. Upon presentation and
surrender of the Certificates in accordance with such notice, the Trustee shall
cause to be distributed to Certificateholders such final payments.
In the event that all of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. No additional interest shall accrue on the Certificates after the
Distribution Date specified in the first written notice. In the event that any
money held by the Trustee for the payment of distributions on the Certificates
shall remain unclaimed for two years (or such lesser time as the Trustee shall
be satisfied, after sixty days' notice from the Company, is one month prior to
the escheat period provided under applicable law) after the final distribution
date with respect thereto, the Trustee shall pay to each Loan Trustee the
appropriate amount of money relating to such Loan Trustee and shall give written
notice thereof to the related Owner Trustees, the Owner Participants and the
Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders. The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle
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such Certificateholder's legal representatives or heirs to claim an accounting
or to take any action or commence any proceeding in any court for a partition or
winding up of the Trust, nor otherwise affect the rights, obligations, and
liabilities of the parties hereto or any of them.
Section 12.02. Certificates Nonassessable and Fully Paid.
Except as set forth in the last sentence of this Section 12.02,
Certificateholders shall not be personally liable for obligations of the Trust,
the Fractional Undivided Interests represented by the Certificates shall be
nonassessable for any losses or expenses of the Trust or for any reason
whatsoever, and Certificates, upon authentication thereof by the Trustee
pursuant to Section 3.03, are and shall be deemed fully paid. No
Certificateholder shall have any right (except as expressly provided herein) to
vote or in any manner otherwise control the operation and management of the
Trust Property, the Trust, or the obligations of the parties hereto, nor shall
anything set forth herein, or contained in the terms of the Certificates, be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association. Neither the existence of the Trust nor
any provision herein is intended to or shall limit the liability the
Certificateholders would otherwise incur if the Certificateholders owned Trust
Property as co-owners, or incurred any obligations of the Trust, directly rather
than through the Trust.
Section 12.03. Notices. (a) Unless otherwise specifically
provided herein, all notices required under the terms and provisions of this
Agreement shall be in English and in writing, and any such notice may be given
by United States mail, courier service or telecopy, and any such notice shall be
effective when received or, if made, given, furnished or filed by facsimile or
telecommunication transmission, when received unless received outside of
business hours, in which case on the next open of business on a Business Day,
if to the Company, to:
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85043
Attention: Vice President-
Treasurer
Facsimile: (602) 693-5886
if to the Trustee, to:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Department
Facsimile: (302) 651-8882
Telephone: (302) 651-8584
<PAGE> 62
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(b) The Company or the Trustee, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Certificateholders shall be
mailed by first-class mail to the addresses for Certificateholders shown on the
Register kept by the Registrar. Failure so to mail a notice or communication or
any defect in such notice or communication shall not affect its sufficiency with
respect to other Certificateholders.
(d) If a notice or communication is mailed in the manner
provided above within the time prescribed, it is conclusively presumed to have
been duly given, whether or not the addressee receives it.
(e) If the Company mails a notice or communication to the
Certificateholders, it shall mail a copy to the Trustee and to the Paying Agent
at the same time.
(f) Notwithstanding the foregoing, all communications or
notices to the Trustee shall be deemed to be given only when received by a
Responsible Officer of the Trustee.
(g) The Trustee shall promptly furnish the Company with a copy
of any demand, notice or written communication received by the Trustee hereunder
from any Certificateholder, Owner Trustee or Loan Trustee.
Section 12.04. Governing Law. THIS AGREEMENT HAS BEEN
DELIVERED IN THE STATE OF DELAWARE AND THIS AGREEMENT AND THE CERTIFICATES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.05. Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or the Trust, or of the
Certificates or the rights of the Certificateholders thereof.
Section 12.06. Trust Indenture Act Controls. Upon the
occurrence of any Registration Event, this Agreement shall become subject to the
provisions of the Trust Indenture Act and shall, to the extent applicable, be
governed by such provisions. From and after any Registration Event, if any
provision of this Agreement limits, qualifies or conflicts with another
provision which is required to be included in this Agreement by the Trust
Indenture Act, the required provision shall control.
Section 12.07. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
<PAGE> 63
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Section 12.08. Successors and Assigns. All covenants,
agreements, representations and warranties in this Agreement by the Trustee and
the Company shall bind and, to the extent permitted hereby, shall inure to the
benefit of and be enforceable by their respective successors and assigns,
whether so expressed or not.
Section 12.09. Benefits of Agreement. Nothing in this
Agreement or in the Certificates, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the
Certificateholders, any benefit or any legal or equitable right, remedy or claim
under this Agreement.
Section 12.10. Legal Holidays. In any case where any Regular
Distribution Date or Special Distribution Date relating to any Certificate shall
not be a Business Day, then (notwithstanding any other provision of this
Agreement) payment need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on such
Regular Distribution Date or Special Distribution Date, and no interest shall
accrue during the intervening period.
Section 12.11. Counterparts. For the purpose of facilitating
the execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
Section 12.12. Intention of Parties. The parties hereto intend
that the Trust be classified for U.S. federal income tax purposes as a grantor
trust under Subpart E, Part I of Subchapter J of the Internal Revenue Code of
1986, as amended, and not as a trust or association taxable as a corporation or
as a partnership. Each Certificateholder and Investor, by its acceptance of its
Certificate or a beneficial interest therein, agrees to treat the Trust as a
grantor trust for all U.S. federal, state and local income tax purposes. The
powers granted and obligations undertaken pursuant to this Agreement shall be so
construed so as to further such intent.
<PAGE> 64
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized as of
the day and year first written above.
AMERICA WEST AIRLINES, INC.
By:/s/ W. Douglas Parker
-------------------------
Name: W. Douglas Parker
Title: Executive vice President
WILMINGTON TRUST COMPANY,
as Trustee
By:/s/James P. Lawler
-------------------------
Name: James P. Lawler
Title: Vice President
<PAGE> 65
EXHIBIT A
FORM OF CERTIFICATE
REGISTERED
No._________
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, ANY PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS
NOT A U.S. PERSON AND IS ACQUIRING THIS CERTIFICATE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT;
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE OF THIS CERTIFICATE OR THE LAST DATE ON WHICH THIS
CERTIFICATE WAS HELD BY AMERICA WEST AIRLINES, INC., THE TRUSTEE OR ANY
AFFILIATE OF ANY OF SUCH PERSONS RESELL OR OTHERWISE TRANSFER THIS
CERTIFICATE EXCEPT (A) AMERICA WEST AIRLINES, INC., (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE) OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT; AND (3) AGREES THAT IF IT SHOULD
RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE IT WILL DELIVER TO EACH
PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
CERTIFICATE WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE
OF THIS CERTIFICATE OR THE LAST DATE ON WHICH THIS CERTIFICATE WAS HELD
BY AMERICA WEST AIRLINES, INC., THE TRUSTEE OR ANY AFFILIATE OF ANY OF
SUCH PERSONS, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON
THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE PASS THROUGH
TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY
<PAGE> 66
A-2
TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.]*
BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT (A) NO PLAN
ASSETS HAVE BEEN USED TO PURCHASE THIS CERTIFICATE OR AN INTEREST
HEREIN OR (B) THE PURCHASE AND HOLDING OF THIS CERTIFICATE OR AN
INTEREST HEREIN IS EXEMPT FROM THE PROHIBITED TRANSACTION RESTRICTIONS
OF ERISA AND THE CODE PURSUANT TO ONE OR MORE PROHIBITED TRANSACTION
STATUTORY OR ADMINISTRATIVE EXEMPTIONS. THE PASS THROUGH TRUST
AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTIONS 3.05 AND 3.06 OF THE PASS THROUGH
TRUST AGREEMENT REFERRED TO HEREIN.]**
* Not to be included on the face of the Regulation S Global
Certificate.
** To be included on the face of each Global Certificate.
<PAGE> 67
A-3
[GLOBAL CERTIFICATE]*
AMERICA WEST AIRLINES PASS THROUGH TRUST, SERIES 1999-1C-O
8.54% America West Airlines [Initial] [Exchange]
Pass Through Certificate,
Series 1999-1C-O
Final Legal Distribution Date: July 2, 2007
evidencing a fractional undivided interest in a trust, the property of which
includes certain equipment notes each secured by an Aircraft leased to or owned
by America West Airlines, Inc.
$__________ Fractional Undivided Interest representing
0.0049608096% of the Trust per $1,000 face amount
THIS CERTIFIES THAT _______________, for value received, is
the registered owner of a $________ (__________dollars) Fractional Undivided
Interest in the America West Airlines Pass Through Trust, Series 1999-1C-O (the
"Trust") created pursuant to a Pass Through Trust Agreement, dated as of
September 21, 1999 (the "Agreement"), between Wilmington Trust Company (the
"Trustee") and America West Airlines, Inc., a corporation incorporated under
Delaware law (the "Company"), a summary of certain of the pertinent provisions
of which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the
Agreement. This Certificate is one of the duly authorized Certificates
designated as "8.54% America West Airlines [Initial] [Exchange] Pass Through
Certificates, Series 1999-1C-O" (herein called the "Certificates"). This
Certificate is issued under and is subject to the terms, provisions, and
conditions of the Agreement. By virtue of its acceptance hereof the
Certificateholder of this Certificate assents to and agrees to be bound by the
provisions of the Agreement and the Intercreditor Agreement. The property of the
Trust includes an interest in certain Equipment Notes and all rights of the
Trust to receive payments under the Intercreditor Agreement and any Liquidity
Facility (the "Trust Property"). Each issue of the Equipment Notes is secured
by, among other things, a security interest in the Aircraft leased to or owned
by the Company.
* To be included on the face of each Global Certificate.
<PAGE> 68
A-4
The Certificates represent fractional undivided interests in
the Trust and the Trust Property, and have no rights, benefits or interest in
respect of any assets or property other than the Trust Property.
Subject to and in accordance with the terms of the Agreement
and the Intercreditor Agreement, from and to the extent of funds then available
to the Trustee, there will be distributed on each January 2 and July 2 (a
"Regular Distribution Date"), commencing on January 2, 2000, to the Person in
whose name this Certificate is registered at the close of business on the 15th
day preceding the Regular Distribution Date, an amount in respect of the
Scheduled Payments due on such Regular Distribution Date on the Equipment Notes,
the receipt of which has been confirmed by the Trustee, equal to the product of
the percentage interest in the Trust evidenced by this Certificate and an amount
equal to the sum of such Scheduled Payments. Subject to and in accordance with
the terms of the Agreement and the Intercreditor Agreement, in the event that
Special Payments on the Equipment Notes are received by the Trustee, from funds
then available to the Trustee, there shall be distributed on the applicable
Special Distribution Date, to the Person in whose name this Certificate is
registered at the close of business on the 15th day preceding the Special
Distribution Date, an amount in respect of such Special Payments on the
Equipment Notes, the receipt of which has been confirmed by the Trustee, equal
to the product of the percentage interest in the Trust evidenced by this
Certificate and an amount equal to the sum of such Special Payments so received.
If a Regular Distribution Date or Special Distribution Date is not a Business
Day, distribution shall be made on the immediately following Business Day with
the same force and effect as if made on such Regular Distribution Date or
Special Distribution Date and no interest shall accrue during the intervening
period. The Trustee shall mail notice of each Special Payment and the Special
Distribution Date therefor to the Certificateholder of this Certificate.
The Certificates do not represent a direct obligation of, or
an obligation guaranteed by, or an interest in, the Company or the Trustee or
any of their affiliates. The Certificates are limited in right or payment, all
as more specifically set forth on the face hereof and in the Agreement. All
payments or distributions made to Certificateholders under the Agreement shall
be made only from the Trust Property and only to the extent that the Trustee
shall have sufficient income or proceeds from the Trust Property to make such
payments in accordance with the terms of the Agreement. Each Certificateholder
of this Certificate, by its acceptance hereof, agrees that it will look solely
to the income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby. A copy of the Agreement may
be examined during normal business hours at the principal office of the Trustee,
and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Certificateholders under the
Agreement at any time by the Company and the Trustee with the consent of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust. Any
such consent by the Certificateholder of this Certificate shall be conclusive
and binding on such Certificateholder and
<PAGE> 69
A-5
upon all future Certificateholders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent is made upon this Certificate. The Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of the Certificateholders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Register upon surrender of this Certificate for registration of transfer
at the offices or agencies maintained by the Trustee in its capacity as
Registrar, or by any successor Registrar, in the Borough of Manhattan, the City
of New York, duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Trustee and the Registrar duly executed by the
Certificateholder hereof or such Certificateholder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate Fractional Undivided Interest in the Trust will be
issued to the designated transferee or transferees.
[The Holder of this Certificate is entitled to the benefits of
the Exchange and Registration Rights Agreement, dated as of September 21, 1999,
among the Company, the Trustee and the Initial Purchasers named therein (the
"Registration Rights Agreement"). In the event that no Registration Event has
occurred on or prior to the 210th day after the date of the issuance of the
Certificates, the interest rate per annum payable in respect of the Equipment
Notes and the Deposits shall be increased by 0.50%, from and including the 210th
day after the Issuance Date to but excluding the earlier of (i) the date on
which a Registration Event occurs and (ii) the date on which there cease to be
any Registrable Certificates (as defined in the Registration Rights Agreement).
In the event that the Shelf Registration Statement ceases to be effective at any
time during the period specified by Section 2(b)(B) of the Registration Rights
Agreement for more than 60 days, whether or not consecutive, during any 12-month
period, the interest rate per annum payable in respect of the Equipment Notes
and the Deposits shall be increased by 0.50% from the 61st day of the applicable
12-month period such Shelf Registration Statement ceases to be effective until
such time as the Shelf Registration Statement again becomes effective ( or, if
earlier, the end of the period specified by Section 2(b)(B) of the Registration
Rights Agreement).]*
Except as otherwise provided in the Agreement and
notwithstanding the above, the final distribution on this Certificate will be
made after notice mailed by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
of the Trustee specified in such notice.
Under certain circumstances set forth in Section 11.01 of the
Agreement, all of the Trustee's right, title and interest to the Trust Property
may be assigned, transferred and delivered to the Related Trustee of the Related
Trust pursuant to the Assignment and Assumption Agreement. Upon the
effectiveness of such Assignment and Assumption Agreement (the
* To be included only on each Exchange Certificate.
<PAGE> 70
A-6
"Transfer"), the Trust shall be terminated, the Certificateholders shall receive
beneficial interests in the Related Trust in exchange for their interests in the
Trust equal to their respective beneficial interests in the Trust, the
Certificates representing Fractional Undivided Interests in the Trust shall be
deemed for all purposes of the Agreement and the Related Pass Through Trust
Agreement to be certificates representing the same fractional undivided
interests in the Related Trust and its trust property. Each Certificateholder,
by its acceptance of this Certificate or a beneficial interest herein, agrees to
be bound by the Assignment and Assumption Agreement and subject to the terms of
the Related Pass Through Trust Agreement as a certificateholder thereunder. From
and after the Transfer, unless and to the extent the context otherwise requires,
references herein to the Trust, the Agreement and the Trustee shall constitute
references to the Related Trust, the Related Pass Through Trust Agreement and
trustee of the Related Trust, respectively.
The Certificates are issuable only as registered Certificates
without coupons in minimum denominations of [$100,000]* [$1,000]** Fractional
Undivided Interest and integral multiples of $1,000 in excess thereof except
that one Certificate may be in a different denomination. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of authorized denominations evidencing the
same aggregate Fractional Undivided Interest in the Trust, as requested by the
Certificateholder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee shall require payment by the Holder of a
sum sufficient to cover any tax or governmental charge payable in connection
therewith.
Each Certificateholder or Investor that is not a United States
person within the meaning of Section 7701(a)(30) of the Internal Revenue Code,
as amended, by its acceptance of a Certificate or a beneficial interest therein,
agrees to indemnify and hold harmless the Trust and the Trustee from and against
any improper failure to withhold taxes from amounts payable to it or for its
benefit. Each Certificateholder and Investor, by its acceptance of this
Certificate or a beneficial interest herein, agrees to treat the Trust as a
grantor trust for all U.S. federal, state and local income tax purposes.
The Trustee, the Registrar, and any agent of the Trustee or
the Registrar may treat the person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Trustee, the Registrar,
nor any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement
and the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required
* To be included only on each Initial Certificate.
** To be included only on each Exchange Certificate.
<PAGE> 71
A-7
to be distributed to them pursuant to the Agreement and the disposition of all
property held as part of the Trust Property.
UNTIL THE TRANSFER, THE AGREEMENT AND THIS CERTIFICATE SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. FROM AND AFTER THE TRANSFER, THE
AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
<PAGE> 72
A-8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: September 21, 1999
AMERICA WEST AIRLINES PASS THROUGH
TRUST, SERIES 1999-1C-O
By: WILMINGTON TRUST COMPANY, not in its
individual capacity
but solely as Trustee
By:
--------------------------------
Name:
Title:
<PAGE> 73
A-9
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates referred
to in the within-mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Trustee
By:
--------------------------------
Authorized Officer
<PAGE> 74
A-10
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
_______________________________
_______________________________
please print or typewrite name and address including zip code of assignee
____________________________________
the within Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
____________________________________
attorney to transfer said Certificate on the books of the Trustee with full
power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES
EXCEPT REGULATION S GLOBAL AND
REGULATION S DEFINITIVE CERTIFICATES]
In connection with any transfer of this Certificate occurring
prior to the date that is the earlier of the date of an effective Registration
Statement or the date two years after the later of the original issuance of this
Certificate or the last date on which this Certificate was held by America West
Airlines, Inc., the Trustee or any affiliate of such Persons, the undersigned
confirms that without utilizing any general solicitation or general advertising
that:
[Check One]
[ ] (a) this Certificate is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended, provided by Rule
144A thereunder.
or
[ ] (b) this Certificate is being transferred other than in accordance with (a)
above and documents are being furnished that comply with the conditions of
transfer set forth in this Certificate and the Agreement.
If neither of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Certificate in the name of any Person
other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 3.06 of the Agreement
shall have been satisfied.
<PAGE> 75
A-11
Date:__________________ [Name of Transferor]
NOTE: The signature must
correspond with the name as
written upon the face of
the within-mentioned
instrument in every
particular, without
alteration or any change
whatsoever.
Signature Guarantee: ______________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Certificate for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, as amended, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing representations
in order to claim the exemption from registration provided by Rule 144A.
Dated:__________________ _____________________________
NOTE: To be executed by an
executive officer.
<PAGE> 76
EXHIBIT B
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS OF CERTIFICATES PURSUANT TO REGULATION S
[date]
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Attention: Corporate Trust Trustee Administration
Re: America West Airlines Pass Through Trust (the "Trust"),
Series 1999-1C-O, America West Airlines Pass Through
Certificates, Series 1999-1C-O (the "Certificates")
Sirs:
In connection with our proposed sale of $_____ Fractional
Undivided Interest of the Certificates, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the Securities
Act of 1933, as amended, and, accordingly, we represent that:
(1) the offer of the Certificates was not made to a person in
the United States or to or for the account or benefit of a U.S. person;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we
nor any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(a) or Rule
904(a) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period
and the provisions of Rule 903(b)(2) or Rule 904(b)(1) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance with
the applicable provisions of Rule 903(b)(2) or Rule 904(b)(1), as the case may
be.
You and America West Airlines, Inc. are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any
<PAGE> 77
B-2
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Transferor]
<PAGE> 78
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS OF CERTIFICATES TO
NON-QIB INSTITUTIONAL ACCREDITED INVESTORS
[date]
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Attention: Corporate Trust Trustee Administration
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85043
AMERICA WEST AIRLINES
PASS THROUGH TRUST, SERIES 1999-1C-O (the "Trust")
Pass Through Certificates, Series 1999-1C-O
(the "Certificates")
Ladies and Gentlemen:
In connection with our proposed purchase of U.S.
$[_____________] Fractional Undivided Interest of Certificates, we confirm that:
1. We understand that any subsequent transfer of the Certificates is
subject to certain restrictions and conditions set forth in the Pass Through
Trust Agreement, dated as of September 21, 1999, between America West Airlines,
Inc. (the "Company") and Wilmington Trust Company (the "Trustee") relating to
the Certificates, and we agree to be bound by, and not to resell, pledge or
otherwise transfer the Certificates except in compliance with, such restrictions
and conditions and the Securities Act of 1933, as amended (the "Securities
Act").
2. We are purchasing Certificates having an aggregate principal amount
of not less than $100,000 and each account (if any) for which we are purchasing
Certificates is purchasing Certificates having an aggregate principal amount of
not less than $100,000.
3. We understand that the Certificates have not been registered under
the Securities Act, that the Certificates are being sold to us in a transaction
that is exempt from the registration requirements of the Securities Act and that
the Certificates may not be offered or resold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that, if we should sell any
Certificates within two
<PAGE> 79
C-2
years after the later of the original issuance of such Certificate and the last
date on which such Certificate is owned by the Company, the Trustee or any
affiliate of any of such persons, we will do so only (A) to the Company, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) outside the United States in accordance with
Rule 904 of Regulation S under the Securities Act, (D) pursuant to the exemption
from registration provided by Rule 144 under the Securities Act or (E) pursuant
to an effective registration statement under the Securities Act, and we further
agree to provide to any person purchasing any of the Certificates from us a
notice advising such purchaser that resales of the Certificates are restricted
as stated herein.
4. We understand that, on any proposed resale of any Certificates, we
will be required to furnish to the Company and the Trustee such certifications,
legal opinions and other information as the Company and the Trustee may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Certificates purchased by us will
bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Certificates, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or their investments.
6. We are acquiring the Certificates purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion and not with a view to any distribution of the Certificates, subject,
nevertheless to the understanding that the disposition of our property shall at
all times be and remain within our control.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy thereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:
--------------------------------
Name:
Title:
<PAGE> 80
EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
America West Airlines Pass Through Trust, Series 1999-1C
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated ____________, _____
(the "Agreement"), between Wilmington Trust Company, a Delaware banking
corporation ("WTC"), not in its individual capacity except as expressly provided
herein, but solely as trustee under the Pass Through Trust Agreement dated as of
September 21, 1999 (as amended, modified or otherwise supplemented from time to
time, the "Pass Through Trust Agreement") in respect of the America West
Airlines Pass Through Trust, Series 1999-1C-O (the "Assignor"), and Wilmington
Trust Company, a Delaware banking corporation, not in its individual capacity
except as expressly provided herein, but solely as trustee under the Pass
Through Trust Agreement dated as of September 21, 1999 (the "New Pass Through
Trust Agreement") in respect of the America West Airlines Pass Through Trust,
Series 1999-1C-S (the "Assignee").
W I T N E S S E T H:
WHEREAS, the parties hereto desire to effect on the date
hereof (the "Transfer Date") (a) the transfer by the Assignor to the Assignee of
all of the right, title and interest of the Assignor in, under and with respect
to, among other things, the Trust Property and each of the documents listed in
Schedule I hereto (the "Scheduled Documents") and (b) the assumption by the
Assignee of the obligations of the Assignor (i) under the Scheduled Documents
and (ii) in respect of the Certificates issued under the Pass Through Trust
Agreement; and
WHEREAS, the Scheduled Documents permit such transfer upon
satisfaction of certain conditions heretofore or concurrently herewith being
complied with;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements herein contained, the parties hereto do hereby
agree as follows (capitalized terms used herein without definition having the
meaning ascribed thereto in the Pass Through Trust Agreement):
1. Assignment. The Assignor does hereby sell, assign, convey,
transfer and set over unto the Assignee as of the Transfer Date all of its
present and future right, title and interest in, under and with respect to the
Trust Property and the Scheduled Documents and each other contract, agreement,
document or instrument relating to the Trust Property or the Scheduled Documents
(such other contracts, agreements, documents or instruments, together with the
Scheduled Documents, to be referred to as the "Assigned Documents"), and any
proceeds therefrom, together with all documents and instruments evidencing any
of such right, title and interest.
2. Assumption. The Assignee hereby assumes for the benefit of
the Assignor and each of the parties listed in Schedule II hereto (collectively,
the "Beneficiaries") all of the duties and obligations of the Assignor, whenever
accrued, pursuant to the Assigned Documents and hereby confirms that it shall be
deemed a party to each of the Assigned Documents to which the Assignor is a
party and shall be bound by all the terms thereof (including the agreements and
obligations of the Assignor set forth therein) as if therein named as the
Assignor. Further, the Assignee hereby assumes for the benefit of the Assignor
and the Beneficiaries all of the duties
<PAGE> 81
D-2
and obligations of the Assignor under the Outstanding Certificates and hereby
confirms that the Certificates representing Fractional Undivided Interests under
the Pass Through Trust Agreement shall be deemed for all purposes of the Pass
Through Trust Agreement and the New Pass Through Trust Agreement to be
certificates representing the same fractional undivided interests under the New
Pass Through Trust Agreement equal to their respective beneficial interests in
the trust created under the Pass Through Trust Agreement.
3. Effectiveness. This Agreement shall be effective upon the
execution and delivery hereof by the parties hereto, and each Certificateholder,
by its acceptance of its Certificate or a beneficial interest therein, agrees to
be bound by the terms of this Agreement.
4. Payments. The Assignor hereby covenants and agrees to pay
over to the Assignee, if and when received following the Transfer Date, any
amounts (including any sums payable as interest in respect thereof) paid to or
for the benefit of the Assignor that, under Section 1 hereof, belong to the
Assignee.
5. Further Assurances. The Assignor shall, at any time and
from time to time, upon the request of the Assignee, promptly and duly execute
and deliver any and all such further instruments and documents and take such
further action as the Assignee may reasonably request to obtain the full
benefits of this Agreement and of the right and powers herein granted. The
Assignor agrees to deliver the Global Certificates, and all Trust Property, if
any, then in the physical possession of the Assignor, to the Assignee.
6. Representations and Warranties. (a) The Assignee represents
and warrants to the Assignor and each of the Beneficiaries that:
(i) it has all requisite power and authority and legal right
to enter into and carry out the transactions contemplated hereby and to
carry out and perform the obligations of the "Pass Through Trustee"
under the Assigned Documents;
(ii) on and as of the date hereof, the representations and
warranties of the Assignee set forth in Section 7.15 of the New Pass
Through Trust Agreement are true and correct.
(b) The Assignor represents and warrants to the Assignee that:
(i) it is duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has the full trust
power, authority and legal right under the laws of the State of
Delaware and the United States pertaining to its trust and fiduciary
powers to execute and deliver this Agreement;
(ii) the execution and delivery by it of this Agreement and
the performance by it of its obligations hereunder have been duly
authorized by it and will not violate its articles of association or
by-laws or the provisions of any indenture, mortgage, contract or other
agreement to which it is a party or by which it is bound; and
(iii) this Agreement constitutes the legal, valid and binding
obligations of it enforceable against it in accordance with its terms,
except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
<PAGE> 82
D-3
the rights of creditors generally and by general principles of equity,
whether considered in a proceeding at law or in equity.
7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK INCLUDING MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES
OF CONFLICTS OF LAWS.
8. Counterparts. This Agreement may be executed in any number
of counterparts, all of which together shall constitute a single instrument. It
shall not be necessary that any counterpart be signed by both parties so long as
each party shall sign at least one counterpart.
9. Third Party Beneficiaries. The Assignee hereby agrees, for
the benefit of the Beneficiaries, that its representations, warranties and
covenants contained herein are also intended to be for the benefit of each
Beneficiary, and each Beneficiary shall be deemed to be an express third party
beneficiary with respect thereto, entitled to enforce directly and in its own
name any rights or claims it may have against such party as such beneficiary.
IN WITNESS WHEREOF, the parties hereto, through their
respective officers thereunto duly authorized, have duly executed this
Assignment as of the day and year first above written.
ASSIGNOR:
WILMINGTON TRUST COMPANY,
not in its individual
capacity except as
expressly provided herein,
but solely as trustee under
the Pass Through Trust
Agreement in respect of the
America West Airlines Pass
Through Trust 1999-1C-O
By:
--------------------------------
Title:
ASSIGNEE:
WILMINGTON TRUST COMPANY,
not in its individual
capacity except as
expressly provided herein,
but solely as trustee under
the Pass Through Trust
Agreement in respect of the
America West Airlines Pass
Through Trust 1999-1C-S
By:--------------------------------
Title:
<PAGE> 83
Schedule I
Schedule of Assigned Documents
(1) Intercreditor Agreement dated as of September 21, 1999 among the
Trustee, the Other Trustee, the Policy Provider, the Liquidity
Provider, the liquidity provider, if any, relating to the Certificates
issued under (and as defined in) the Other Pass Through Trust Agreement
and the Subordination Agent.
(2) Registration Rights Agreement dated as of September 21, 1999 among the
Initial Purchasers, the Trustee, the Other Trustee, and the Company.
(3) Escrow and Paying Agent Agreement (Class C) dated as of September 21,
1999 among the Escrow Agent, the Initial Purchasers, the Trustee and
the Paying Agent.
(4) Note Purchase Agreement dated as of September 21, 1999 among the
Company, the Trustee, the Other Trustee, the Depositary, the Escrow
Agent, the Paying Agent and the Subordination Agent.
(5) Deposit Agreement (Class C) dated as of September 21, 1999 between the
Escrow Agent and the Depositary.
(6) Policy dated September 21, 1999, as defined in the Intercreditor
Agreement.
(7) Policy Provider Agreement dated September 21, 1999, as defined in the
Intercreditor Agreement.
(8) Each of the Operative Agreements (as defined in the Participation
Agreement for each Aircraft) in effect as of the Transfer Date.
<PAGE> 84
Schedule II
Schedule of Beneficiaries
Wilmington Trust Company, not in its individual capacity but solely as
Subordination Agent.
Wilmington Trust Company, not in its individual capacity but solely as Paying
Agent
Morgan Stanley Capital Services, Inc., as Liquidity Provider
America West Airlines, Inc.
Morgan Stanley & Co. Incorporated, as Initial Purchaser
Donaldson, Lufkin & Jenrette Securities Corporation, as Initial Purchaser
Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Initial Purchaser
Salomon Smith Barney Inc., as Initial Purchaser
Wilmington Trust Company, as Escrow Agent
Each of the other parties to the Assigned Documents
<PAGE> 85
EXHIBIT E
FORM OF NOTICE TO DESIGNATE NOMINEE AS WITHHOLDING AGENT
(Treas. Reg. Section 1.1445-8(f); 17 C.F.R. 240.10b-17(b)(1))
[DATE]
National Association of
Securities Dealers, Inc.
Market Operations
80 Merritt Blvd.
Trumbull, CT 06611
Re: America West Airlines Pass Through Trust, Series 1999-1C-O
Pass Through Certificates, Series 1999-1C-O
With respect to distributions to be made on [INSERT
DISTRIBUTION DATE] to holders of the above-referenced Pass Through Certificates
in the amount of $ ____ per $1,000 principal amount of Certificate, we hereby
designate the appropriate nominees to withhold from amounts distributable to any
non-U.S. Person such amounts as required by Section 1446 of the Internal Revenue
Code of 1986, as amended. The term "non-U.S. Person" means any person or entity
that, for U.S. federal income tax purposes, is not a "U.S. Person." "U.S.
Person" for this purpose means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized under the laws of
the United States or any political subdivision thereof, or an estate or trust,
the income of which is subject to U.S. federal income taxation regardless of its
source. The date of record for determining holders of Certificates entitled to
receive the distribution on [INSERT DISTRIBUTION DATE] is [INSERT RELATED RECORD
DATE].
Very truly yours,
<PAGE> 1
EXHIBIT 4.4
EXECUTION COPY
- --------------------------------------------------------------------------------
PASS THROUGH TRUST AGREEMENT
Dated as of September 21, 1999
between
AMERICA WEST AIRLINES, INC.
and
WILMINGTON TRUST COMPANY,
as Trustee
America West Airlines Pass Through Trust, Series 1999-1C-S
8.54% Initial Pass Through Certificates, Series 1999-1C-S
8.54% Exchange Pass Through Certificates, Series 1999-1C-S
- --------------------------------------------------------------------------------
<PAGE> 2
Reconciliation and tie between America West Airlines Pass Through Trust
Agreement, Series 1999-1C-S dated as of September 21, 1999, and the Trust
Indenture Act of 1939. This reconciliation does not constitute part of the Pass
Through Trust Agreement.
<TABLE>
<CAPTION>
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
----------------- -----------------
<S> <C>
310(a)(1) 7.08
(a)(2) 7.08
312(a) 3.05; 8.01; 8.02
313(a) 7.06; 8.03
314(a) 8.04(a),(c) & (d)
(a)(4) 8.04(e)
(c)(1) 1.02
(c)(2) 1.02
(d)(1) 7.13; 11.01
(d)(2) 7.13; 11.01
(d)(3) 2.01
(e) 1.02
315(b) 7.02
316(a)(last sentence) 1.04(c)
(a)(1)(A) 6.04
(a)(1)(B) 6.05
(b) 6.06
(c) 1.04(e)
317(a)(1) 6.03
(b) 7.13
318(a) 12.06
</TABLE>
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
ARTICLE I DEFINITIONS .......................................................................................... 2
Section 1.01. Definitions........................................................................... 2
Section 1.02. Compliance Certificates and Opinions.................................................. 13
Section 1.03. Form of Documents Delivered to Trustee................................................ 14
Section 1.04. Directions of Certificateholders...................................................... 14
ARTICLE II ACQUISITION OF TRUST PROPERTY........................................................................ 16
Section 2.01. Acquisition of Trust Property......................................................... 16
Section 2.02. Acceptance by the Trustee............................................................. 16
Section 2.03. Limitation of Powers.................................................................. 16
ARTICLE III THE CERTIFICATES.................................................................................... 17
Section 3.01. Title, Form, Denomination and Execution of Certificates............................... 17
Section 3.02. Restrictive Legends................................................................... 19
Section 3.03. Authentication of Certificates........................................................ 20
Section 3.04. Transfer and Exchange................................................................. 21
Section 3.05. Book-Entry Provisions for Restricted Global Certificates and Regulation S Global
Certificates.......................................................................... 22
Section 3.06. Special Transfer Provisions........................................................... 23
Section 3.07. Mutilated, Destroyed, Lost or Stolen Certificates..................................... 26
Section 3.08. Persons Deemed Owners................................................................. 26
Section 3.09. Cancellation.......................................................................... 26
Section 3.10. Temporary Certificates................................................................ 27
Section 3.11. Limitation of Liability for Payments.................................................. 27
Section 3.12. ERISA Restrictive Legend.............................................................. 27
ARTICLE IV DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS...................................................... 28
Section 4.01. Certificate Account and Special Payments Account...................................... 28
Section 4.02. Distributions from Certificate Account and Special Payments Account................... 28
Section 4.03. Statements to Certificateholders...................................................... 30
Section 4.04. Investment of Special Payment Moneys.................................................. 31
ARTICLE V THE COMPANY .......................................................................................... 31
Section 5.01. Maintenance of Corporate Existence.................................................... 31
Section 5.02. Consolidation, Merger, Etc............................................................ 31
ARTICLE VI DEFAULT ............................................................................................. 32
Section 6.01. Events of Default..................................................................... 32
Section 6.02. Incidents of Sale of Equipment Notes.................................................. 34
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee May Bring Suit.................... 35
Section 6.04. Control by Certificateholders......................................................... 35
Section 6.05. Waiver of Past Defaults............................................................... 35
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
Section 6.06. Right of Certificateholders to Receive Payments Not to Be Impaired.................... 36
Section 6.07. Certificateholders May Not Bring Suit Except Under Certain Conditions................. 36
Section 6.08. Remedies Cumulative................................................................... 37
ARTICLE VII THE TRUSTEE ........................................................................................ 37
Section 7.01. Certain Duties and Responsibilities................................................... 37
Section 7.02. Notice of Defaults.................................................................... 38
Section 7.03. Certain Rights of Trustee............................................................. 38
Section 7.04. Not Responsible for Recitals or Issuance of Certificates.............................. 39
Section 7.05. May Hold Certificates................................................................. 39
Section 7.06. Money Held in Trust................................................................... 39
Section 7.07. Compensation and Reimbursement........................................................ 39
Section 7.08. Corporate Trustee Required; Eligibility............................................... 41
Section 7.09. Resignation and Removal; Appointment of Successor..................................... 41
Section 7.10. Acceptance of Appointment by Successor................................................ 42
Section 7.11. Merger, Conversion, Consolidation or Succession to Business........................... 43
Section 7.12. Maintenance of Agencies............................................................... 43
Section 7.13. Money for Certificate Payments to Be Held in Trust.................................... 44
Section 7.14. Registration of Equipment Notes in Name of Subordination Agent........................ 44
Section 7.15. Representations and Warranties of Trustee............................................. 45
Section 7.16. Withholding Taxes, Information Reporting.............................................. 46
Section 7.17. Trustee's Liens....................................................................... 46
Section 7.18. Preferential Collection of Claims..................................................... 46
ARTICLE VIII CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE................................................... 46
Section 8.01. The Company to Furnish Trustee with Names and Addresses of Certificateholders......... 46
Section 8.02. Preservation of Information; Communications to Certificateholders..................... 47
Section 8.03. Reports by Trustee.................................................................... 47
Section 8.04. Reports by the Company................................................................ 47
ARTICLE IX SUPPLEMENTAL AGREEMENTS.............................................................................. 48
Section 9.01. Supplemental Agreements Without Consent of Certificateholders......................... 48
Section 9.02. Supplemental Agreements with Consent of Certificateholders............................ 49
Section 9.03. Documents Affecting Immunity or Indemnity............................................. 50
Section 9.04. Execution of Supplemental Agreements.................................................. 50
Section 9.05. Effect of Supplemental Agreements..................................................... 51
Section 9.06. Conformity with Trust Indenture Act................................................... 51
Section 9.07. Reference in Certificates to Supplemental Agreements.................................. 51
ARTICLE X AMENDMENTS TO INDENTURES AND FINANCING DOCUMENTS...................................................... 51
Section 10.01. Amendments and Supplements to Indentures and Financing Documents...................... 51
</TABLE>
ii
<PAGE> 5
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
ARTICLE XI TERMINATION OF TRUST................................................................................. 52
Section 11.01. Termination of the Trust.............................................................. 52
ARTICLE XII MISCELLANEOUS PROVISIONS............................................................................ 53
Section 12.01. Limitation on Rights of Certificateholders............................................ 53
Section 12.02. Certificates Nonassessable and Fully Paid............................................. 53
Section 12.03. Notices............................................................................... 53
Section 12.04. Governing Law......................................................................... 54
Section 12.05. Severability of Provisions............................................................ 54
Section 12.06. Trust Indenture Act Controls.......................................................... 54
Section 12.07. Effect of Headings and Table of Contents.............................................. 55
Section 12.08. Successors and Assigns................................................................ 55
Section 12.09. Benefits of Agreement................................................................. 55
Section 12.10. Legal Holidays........................................................................ 55
Section 12.11. Counterparts.......................................................................... 55
Section 12.12. Intention of Parties.................................................................. 55
Exhibit A - Form of Certificate to Request Removal of Restricted Legend
Exhibit B - Form of Certificate to be Delivered by an Institutional Accredited Investor
</TABLE>
iii
<PAGE> 6
PASS THROUGH TRUST AGREEMENT
This PASS THROUGH TRUST AGREEMENT, dated as of September 21,
1999 (the "Agreement"), between AMERICA WEST AIRLINES, INC., a Delaware
corporation, and WILMINGTON TRUST COMPANY, as Trustee, is made with respect to
the formation of America West Airlines Pass Through Trust, Series 1999-1C-S and
the 8.54% America West Airlines Pass Through Trust, Series 1999-1C-S Pass
Through Certificates representing fractional undivided interests in the Trust.
WITNESSETH:
WHEREAS, the Company has obtained commitments from AVSA for
the delivery of certain Aircraft;
WHEREAS, as of the Transfer Date, the Company will have
financed (or refinanced) the acquisition of all or a portion of the Aircraft
either (i) through separate leveraged lease transactions in which the Company
will lease such aircraft (collectively, the "Leased Aircraft") or (ii) through
separate secured loan transactions in which the Company will own such Aircraft
(collectively, the "Owned Aircraft");
WHEREAS, as of the Transfer Date, in the case of each Leased
Aircraft, each Owner Trustee, acting on behalf of the corresponding Owner
Participant, will have issued pursuant to an Indenture, on a non-recourse basis,
two (or, subject to satisfaction of certain preconditions contained in the Note
Purchase Agreement, three) series of Equipment Notes in order to finance a
portion of its purchase price of such Leased Aircraft;
WHEREAS, as of the Transfer Date, in the case of each Owned
Aircraft, the Company will have issued pursuant to an Indenture, on a recourse
basis, two (or, subject to satisfaction of certain preconditions contained in
the Note Purchase Agreement, three) series of Equipment Notes to finance a
portion of the purchase price of such Owned Aircraft;
WHEREAS, as of the Transfer Date, the Related Trustee will
assign, transfer and deliver all of such trustee's right, title and interest to
the trust property held by the Related Trustee to the Trustee pursuant to the
Assignment and Assumption Agreement;
WHEREAS, the Trustee, effective only, but automatically, upon
execution and delivery of the Assignment and Assumption Agreement, will be
deemed to have declared the creation of the Trust for the benefit of the
Certificateholders, and each holder of Certificates outstanding as of the
Transfer Date, as the grantors of the Trust, by their respective acceptances of
the Certificates, will join in the creation of this Trust with the Trustee;
WHEREAS, all Certificates deemed issued by the Trust will
evidence fractional undivided interests in the Trust and will convey no rights,
benefits or interests in respect of any property other than the Trust Property
except for those Certificates to which an Escrow Receipt (as defined below) has
been affixed;
<PAGE> 7
2
WHEREAS, the Company has duly authorized the execution,
delivery and effectiveness of this Agreement as the "issuer", as such term is
defined in and solely for purposes of the Securities Act, of the Certificates
deemed to be issued pursuant hereto and as the "obligor", as such term is
defined in and solely for purposes of the Trust Indenture Act of 1939, as
amended, with respect to all such Certificates and is undertaking to perform
certain administrative and ministerial duties hereunder and is also undertaking
to pay the ongoing fees and expenses of the Trustee;
WHEREAS, upon the execution and delivery of the Assignment and
Assumption Agreement, all of the conditions and requirements necessary to make
this Agreement a valid, binding and legal instrument, enforceable in accordance
with its terms and for the purposes herein expressed, will have been done,
performed and fulfilled, and the execution and delivery of this Agreement in the
form and with the terms hereof will have been in all respects duly authorized;
and
WHEREAS, upon issuance of the Exchange Certificates, if any,
or the effectiveness of the Shelf Registration Statement, this Agreement, as
amended or supplemented from time to time, will be subject to the provisions of
the Trust Indenture Act of 1939, and shall, to the extent applicable, be
governed by such provisions;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, and of other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms used in this Agreement, including in the
recitals to this Agreement, that are defined in this Article have the
meanings assigned to them in this Article, and include the plural as
well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, or by the rules
promulgated under the Trust Indenture Act, have the meanings assigned
to them therein;
(3) all references in this Agreement to designated "Articles",
"Sections", "Subsections" and other subdivisions are to the designated
Articles, Sections, Subsections and other subdivisions of this
Agreement;
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to
any particular Article, Section, Subsection or other subdivision; and
<PAGE> 8
3
(5) unless the context otherwise requires, whenever the words
"including", "include" or "includes" are used herein, it shall be
deemed to be followed by the phrase "without limitation".
Affiliate: Means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such Person. For the
purposes of this definition, "control" means the power, directly or
indirectly, to direct the management and policies of such Person,
whether through the ownership of voting securities or by contract or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
Agent Members: Has the meaning specified in Section 3.05.
Agreement: Has the meaning specified in the initial paragraph
hereto.
Aircraft: Has the meaning specified in the Note Purchase
Agreement.
Aircraft Purchase Agreement: Has the meaning specified in the
Note Purchase Agreement.
Assignment and Assumption Agreement: Means the assignment and
assumption agreement substantially in the form of Exhibit D to the
Related Pass Through Trust Agreement to be executed and delivered in
accordance with Section 11.01 of the Related Pass Through Trust
Agreement.
Authorized Agent: Means any Paying Agent or Registrar for the
Certificates.
Avoidable Tax: Means a state or local tax (i) upon (w) the
Trust, (x) the Trust Property, (y) Certificateholders or (z) the
Trustee for which the Trustee is entitled to seek reimbursement from
the Trust Property, and (ii) which would be avoided if the Trustee were
located in another state, or jurisdiction within a state, within the
United States. A tax shall not be an Avoidable Tax if the Company or
any Owner Trustee shall agree to pay, and shall pay, such tax.
AVSA: Means AVSA S.A.R.L., an affiliate of Airbus Industrie
G.I.E.
Business Day: Means any day other than a Saturday, a Sunday or
a day on which commercial banks are required or authorized to close in
Phoenix, Arizona, New York, New York, Wilmington, Delaware or, so long
as any Certificate is outstanding, the city and state in which the
Trustee or any Loan Trustee maintains its Corporate Trust Office or
receives and disburses funds.
Cedel: Means Cedel Bank societe anonyme.
Certificate: Means any one of the Initial Certificates or
Exchange Certificates issued by the Related Trust and that are
"Outstanding" (as defined in the Related Pass Through Trust Agreement)
as of the Transfer Date (the "Transfer Date Certificates") and
<PAGE> 9
4
any such Initial Certificates or Exchange Certificates issued in
exchange therefor or replacement thereof pursuant to this Agreement.
Certificate Account: Means the account or accounts created and
maintained pursuant to Section 4.01(a).
Certificate Purchase Agreement: Means the Purchase Agreement
dated September 14, 1999 among the Initial Purchasers and the Company,
as the same may be amended, supplemented or otherwise modified from
time to time in accordance with its terms.
Certificateholder or Holder: Means the Person in whose name a
Certificate is registered in the Register.
Class D Certificateholder: Means, at any time, any holder of
one or more pass through certificates issued by the America West
Airlines Pass Through Trust, Series 1999-1D, if and when established.
Company: Means America West Airlines, Inc., a Delaware
corporation, or its successor in interest pursuant to Section 5.02, or
(only in the context of provisions hereof, if any, where such reference
is required for purposes of compliance with the Trust Indenture Act)
any other "obligor" (within the meaning of the Trust Indenture Act)
with respect to the Certificates.
Controlling Party: Has the meaning specified in the
Intercreditor Agreement.
Corporate Trust Office: With respect to the Trustee or any
Loan Trustee, means the office of such trustee in the city at which at
any particular time its corporate trust business shall be principally
administered.
Definitive Certificates: Has the meaning specified in Section
3.01(e).
Delivery Period Termination Date: Has the meaning specified in
the Related Pass Through Trust Agreement.
Deposits: Has the meaning specified in the Deposit Agreement.
Deposit Agreement: Means the Deposit Agreement dated as of
September 21, 1999 relating to the Certificates between the Depositary
and the Escrow Agent, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Depositary: Means ABN AMRO Bank N.V., acting through its
Chicago branch.
Direction: Has the meaning specified in Section 1.04(a).
Distribution Date: Means any Regular Distribution Date or
Special Distribution Date as the context requires.
<PAGE> 10
5
DTC: Means The Depository Trust Company, its nominees and
their respective successors.
EBO Date: Means the date set forth on Schedule 1 to the Lease
as the "EBO Date".
Equipment Notes: Means the equipment notes issued under the
Indentures.
ERISA: Means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor federal statute.
ERISA Legend: Has the meaning specified in Section 3.12.
Escrow Agent: Means, initially, Wilmington Trust Company, and
any replacement or successor therefor appointed in accordance with the
Escrow Agreement.
Escrow Agreement: Means the Escrow and Paying Agent Agreement
dated as of September 21, 1999 relating to the Certificates, among the
Escrow Agent, the Escrow Paying Agent, the Related Trustee (and after
the Transfer Date, the Trustee) and the Initial Purchasers, as the same
may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
Escrow Paying Agent: Means the Person acting as paying agent
under the Escrow Agreement.
Escrow Receipt: Means the receipt substantially in the form
annexed to the Escrow Agreement representing a fractional undivided
interest in the funds held in escrow thereunder.
Euroclear: Means Morgan Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System.
Event of Default: Means an Indenture Default under any
Indenture pursuant to which Equipment Notes held by the Trust were
issued.
Exchange Certificates: Means the pass through certificates
issued in exchange for the Initial Certificates pursuant to the
Registration Rights Agreement and authenticated under the Related Pass
Through Trust Agreement (prior to the Transfer Date) or hereunder
(after the Transfer Date).
Exchange Offer: Means the exchange offer which may be made
pursuant to the Registration Rights Agreement to exchange Initial
Certificates for Exchange Certificates.
Exchange Offer Registration Statement: Means the registration
statement that, pursuant to the Registration Rights Agreement, is filed
by the Company with the SEC with respect to the exchange of Initial
Certificates for Exchange Certificates.
Final Legal Distribution Date: Means July 2, 2007.
<PAGE> 11
6
Final Withdrawal: Has the meaning specified in the Escrow
Agreement.
Final Withdrawal Date: Has the meaning specified in the Escrow
Agreement.
Financing Documents: With respect to any Equipment Note, means
(i) the Indenture and the Participation Agreement relating to such
Equipment Note, and (ii) in the case of any Equipment Note related to a
Leased Aircraft, the Lease relating to such Leased Aircraft.
Fractional Undivided Interest: Means the fractional undivided
interest in the Trust that is evidenced by a Certificate.
Global Certificates: Has the meaning specified in Section
3.01(d).
Global Exchange Certificate: Has the meaning specified in
Section 3.01(f).
Indenture: Means each of the separate trust indentures and
mortgages relating to the Aircraft, each as specified or described in a
Delivery Notice delivered pursuant to the Note Purchase Agreement or
the related Participation Agreement, in each case as the same may be
amended, supplemented or otherwise modified from time to time in
accordance with its terms.
Indenture Default: With respect to any Indenture, means any
Event of Default (as such term is defined in such Indenture).
Initial Certificates: Means the "Initial Certificates" issued
and authenticated under the Related Pass Through Trust Agreement, and
any certificates issued and authenticated thereunder substantially in
the form of Exhibit A thereto other than the Exchange Certificates.
Initial Purchasers: Means, collectively, Morgan Stanley & Co.
Incorporated, Donaldson, Lufkin & Jenrette Securities Corporation,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and Salomon Smith
Barney Inc.
Institutional Accredited Investor: Means an institutional
investor that is an "accredited investor" within the meaning set forth
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act.
Intercreditor Agreement: Means the Intercreditor Agreement
dated as of September 21, 1999 among the Related Trustee (and after the
Transfer Date, the Trustee), the Related Other Trustee (and after the
Transfer Date, the Other Trustee), the Liquidity Provider, the
liquidity provider relating to the Certificates issued under (and as
defined in) the Related Other Pass Through Trust Agreement, the Policy
Provider and Wilmington Trust Company, as Subordination Agent and as
trustee thereunder, as amended, supplemented or otherwise modified from
time to time in accordance with its terms.
<PAGE> 12
7
Investors: Means the Initial Purchasers together with all
subsequent beneficial owners of the Certificates.
Issuance Date: Means the date of the issuance of the Initial
Certificates.
Lease: Means, with respect to each Leased Aircraft, the lease
between an Owner Trustee, as the lessor, and the Company, as the
lessee, referred to in the related Indenture, as such lease may be
amended, supplemented or otherwise modified in accordance with its
terms.
Leased Aircraft: Has the meaning specified in the second
recital to this Agreement.
Liquidity Facility: Means, initially, the Revolving Credit
Agreement dated as of September 21, 1999 relating to the Certificates,
between the Liquidity Provider and the Subordination Agent, as agent
and trustee for the Trustee, and, from and after the replacement of
such Agreement pursuant to the Intercreditor Agreement, the replacement
liquidity facility therefor, in each case as amended, supplemented or
otherwise modified from time to time in accordance with their
respective terms.
Liquidity Provider: Means, initially, Morgan Stanley Capital
Services, Inc., and any replacement or successor therefor appointed in
accordance with the Intercreditor Agreement.
Loan Trustee: With respect to any Equipment Note or the
Indenture applicable thereto, means the bank or trust company
designated as trustee under such Indenture, together with any successor
to such trustee appointed pursuant thereto.
Material Adverse Tax Event: Has the meaning specified in
Section 17.3(a)(4) of the Lease.
Non-U.S. Person: Means a Person that is not a "U.S. person",
as defined in Regulation S.
Note Purchase Agreement: Means the Note Purchase Agreement
dated as of September 21, 1999 among the Related Trustee (and after the
Transfer Date, the Trustee), the Related Other Trustee (and after the
Transfer Date, the Other Trustee), the Company, the Escrow Agent, the
Escrow Paying Agent and the Subordination Agent, as the same may be
amended, supplemented or otherwise modified from time to time, in
accordance with its terms.
Offering Circular: Means the Offering Memorandum dated
September 14, 1999 relating to the offering of the Certificates and the
other certificates issued under the Related Other Pass Through Trust
Agreement.
Officer's Certificate: Means a certificate signed, (a) in the
case of the Company, by any Vice President or more senior officer of
the Company or, (b) in the case of an
<PAGE> 13
8
Owner Trustee or a Loan Trustee, a Responsible Officer of such Owner
Trustee or such Loan Trustee, as the case may be.
Opinion of Counsel: Means a written opinion of legal counsel
who (a) in the case of counsel for the Company may be (i) the General
Counsel of the Company, (ii) Cooley Godward LLP, (iii) Vedder, Price,
Kaufman & Kammholz, or (iv) such other counsel designated by the
Company and reasonably acceptable to the Trustee and (b) in the case of
counsel for any Owner Trustee or any Loan Trustee may be such counsel
as may be designated by any of them whether or not such counsel is an
employee of any of them, and who shall be reasonably acceptable to the
Trustee.
Other Pass Through Trust Agreement: Means the other America
West Airlines 1999-1 Pass Through Trust Agreement relating to America
West Airlines Pass Through Trust, Series 1999-1G-S, dated the date
hereof.
Other Trustee: Means the trustee under the Other Pass Through
Trust Agreement, and any successor or other trustee appointed as
provided therein.
Other Trust: Means the America West Airlines Pass Through
Trust, Series 1999-1G-S, created under the Other Pass Through Trust
Agreement.
Outstanding: When used with respect to Certificates, means, as
of the date of determination, all Transfer Date Certificates, and all
other Certificates theretofore authenticated and delivered under this
Agreement, in each case except:
(i) Certificates theretofore canceled by the
Registrar or delivered to the Trustee or the Registrar for
cancellation;
(ii) Certificates for which money in the full amount
required to make the final distribution with respect to such
Certificates pursuant to Section 11.01 hereof has been
theretofore deposited with the Trustee in trust for the
Holders of such Certificates as provided in Section 4.01
pending distribution of such money to such Certificateholders
pursuant to payment of such final distribution; and
(iii) Certificates in exchange for or in lieu of
which other Certificates have been authenticated and delivered
pursuant to this Agreement.
Owned Aircraft: Has the meaning specified in the second
recital to this Agreement.
Owner Participant: With respect to any Equipment Note relating
to a Leased Aircraft, means the "Owner Participant" as referred to in
the Indenture pursuant to which such Equipment Note is issued and any
permitted successor or assign of such Owner Participant; and Owner
Participants at any time of determination means all of the Owner
Participants thus referred to in the Indentures.
Owner Trustee: With respect to any Equipment Note relating to
a Leased Aircraft, means the "Owner Trustee", as referred to in the
Indenture pursuant to which
<PAGE> 14
9
such Equipment Note is issued, not in its individual capacity but
solely as trustee; and Owner Trustees means all of the Owner Trustees
party to any of the Indentures.
Participation Agreement: Means each Participation Agreement to
be entered into by the Related Trustee pursuant to the Note Purchase
Agreement, as the same may be amended, supplemented or otherwise
modified in accordance with its terms.
Paying Agent: Means the paying agent maintained and appointed
for the Certificates pursuant to Section 7.12.
Permitted Investments: Means obligations of the United States
of America or agencies or instrumentalities thereof for the payment of
which the full faith and credit of the United States of America is
pledged, maturing in not more than 60 days after the date of
acquisition thereof or such lesser time as is required for the
distribution of any Special Payments on a Special Distribution Date.
Person: Means any person, including any individual,
corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, trustee, unincorporated
organization, or government or any agency or political subdivision
thereof.
Policy: Has the meaning specified in the Intercreditor
Agreement.
Policy Provider: Has the meaning specified in the
Intercreditor Agreement.
Policy Provider Agreement: Has the meaning specified in the
Intercreditor Agreement.
Policy Provider Default: Has the meaning specified in the
Intercreditor Agreement.
Pool Balance: Means, as of any date, (i) the original
aggregate face amount of the "Certificates" as defined in the Related
Pass Through Trust Agreement, less (ii) the aggregate amount of all
payments made in respect of such Certificates other than payments made
in respect of interest or premium thereon or reimbursement of any costs
or expenses incurred in connection therewith. The Pool Balance as of
any Distribution Date shall be computed after giving effect to the
payment of principal, if any, on the Equipment Notes or other Trust
Property held in such Trust and the distribution thereof to be made on
such Distribution Date and the distribution of the Final Withdrawal to
be made on such Distribution Date.
Pool Factor: Means, as of any date, the quotient (rounded to
the seventh decimal place) computed by dividing (i) the Pool Balance as
at such date by (ii) the original aggregate face amount of the
"Certificates" as defined in the Related Pass Through Trust Agreement.
The Pool Factor as of any Distribution Date shall be computed after
giving effect to the payment of principal, if any, on the Equipment
Notes or other Trust Property and the distribution thereof to be made
on such Distribution Date and the distribution of the Final Withdrawal
to be made on such Distribution Date.
<PAGE> 15
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PTC Event of Default: Means any failure to pay within 10
Business Days of the due date thereof: (i) the outstanding Pool Balance
on the Final Legal Distribution Date or (ii) interest due on the
Certificates on any Distribution Date (unless the Subordination Agent
shall have made an Interest Drawing or Drawings (as defined in the
Intercreditor Agreement), or a withdrawal or withdrawals pursuant to
Section 3.6(f) of the Intercreditor Agreement, with respect thereto in
an aggregate amount sufficient to pay such interest and shall have
distributed such amount to the Trustee).
QIB: Means a qualified institutional buyer as defined in
Rule 144A.
Record Date: Means (i) for Scheduled Payments to be
distributed on any Regular Distribution Date, other than the final
distribution, the 15th day (whether or not a Business Day) preceding
such Regular Distribution Date, and (ii) for Special Payments to be
distributed on any Special Distribution Date, other than the final
distribution, the 15th day (whether or not a Business Day) preceding
such Special Distribution Date.
Register and Registrar: Mean the register maintained and the
registrar appointed pursuant to Sections 3.04 and 7.12.
Registration Event: Means the declaration of the effectiveness
by the SEC of the Exchange Offer Registration Statement or the Shelf
Registration Statement.
Registration Rights Agreement: Means the Exchange and
Registration Rights Agreement dated as of September 21, 1999, among the
Initial Purchasers, the Related Trustee (and after the Transfer Date,
the Trustee), the Related Other Trustee (and after the Transfer Date,
the Other Trustee) and the Company, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Regular Distribution Date: With respect to distributions of
Scheduled Payments in respect of the Certificates, means each date
designated as a Regular Distribution Date in the Certificates issued
pursuant to this Agreement, until payment of all the Scheduled Payments
to be made under the Equipment Notes held in the Trust have been made;
provided, however, that, if any such day shall not be a Business Day,
the related distribution shall be made on the next succeeding Business
Day without additional interest.
Regulation S: Means Regulation S under the Securities Act or
any successor regulation thereto.
Regulation S Definitive Certificates: Has the meaning
specified in Section 3.01(e).
Regulation S Global Certificates: Has the meaning specified in
Section 3.01(d).
Related Other Pass Through Trust Agreement: Means the "Other
Pass Through Trust Agreement" as defined in the Related Pass Through
Trust Agreement.
<PAGE> 16
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Related Other Trustee: Means the "Other Trustee" as defined in
the Related Pass Through Trust Agreement.
Related Other Trust: Means the "Other Trust" as defined in the
Related Pass Through Trust Agreement.
Related Pass Through Trust Agreement: Means the Pass Through
Trust Agreement relating to the America West Airlines Pass Through
Trust, Series 1999-1C-O, dated as of the date hereof, between the
Company and the institution acting as trustee thereunder, as amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
Related Trust: Means the America West Pass Through Trust,
Series 1999-1C-O, formed under the Related Pass Through Trust
Agreement.
Related Trustee: Means the trustee under the Related Pass
Through Trust Agreement.
Responsible Officer: With respect to the Trustee, any Loan
Trustee and any Owner Trustee, means any officer in the Corporate Trust
Office of the Trustee, Loan Trustee or Owner Trustee or any other
officer customarily performing functions similar to those performed by
the persons who at the time shall be such officers, respectively, or to
whom any corporate trust matter is referred because of his knowledge of
and familiarity with a particular subject.
Restricted Definitive Certificates: Has the meaning specified
in Section 3.01(e).
Restricted Global Certificate: Has the meaning specified in
Section 3.01(c).
Restricted Legend: Has the meaning specified in Section 3.02.
Restricted Period: Has the meaning specified in Section
3.01(d).
Rule 144A: Means Rule 144A under the Securities Act and any
successor rule thereto.
Scheduled Payment: With respect to any Equipment Note, means
(i) any payment of principal or interest on or in respect of such
Equipment Note (other than any such payment which is not in fact
received by the Subordination Agent within five days of the date on
which such payment is scheduled to be made) due from the obligor
thereon or (ii) any payment of interest on the Certificates with funds
drawn under any Liquidity Facility or any payment of interest on or
principal of the Certificates with funds drawn under the Policy, which
payment in any such case represents the installment of principal at the
stated maturity of such installment of principal on such Equipment
Note, the payment of regularly scheduled interest accrued on the unpaid
principal amount of such Equipment Note, or both; provided that any
payment of principal, premium, if any, or interest resulting from the
redemption or purchase of any Equipment Note shall not constitute a
Scheduled Payment.
<PAGE> 17
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SEC: Means the Securities and Exchange Commission, as from
time to time constituted or created under the United States Securities
Exchange Act of 1934, as amended, or, if at any time after the
execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties on such date.
Securities Act: Means the United States Securities Act of
1933, as amended from time to time, or any successor thereto.
Shelf Registration Statement: Means the shelf registration
statement which may be required to be filed by the Company with the SEC
pursuant to any Registration Rights Agreement, other than an Exchange
Offer Registration Statement.
Special Distribution Date: Means each date on which a Special
Payment is to be distributed as specified in this Agreement; provided,
however, that, if any such day shall not be a Business Day, the related
distribution shall be made on the next succeeding Business Day without
additional interest.
Special Redemption Premium: Means the premium payable by the
Company in respect of the Final Withdrawal pursuant to the Note
Purchase Agreement.
Special Payment: Means any payment (other than a Scheduled
Payment) in respect of, or any proceeds of, any Equipment Note or Trust
Indenture Estate (as defined in each Indenture) or Special Redemption
Premium.
Special Payments Account: Means the account or accounts
created and maintained pursuant to Section 4.01(b).
Subordination Agent: Has the meaning specified in the
Intercreditor Agreement.
Substitute Aircraft: Has the meaning specified in the Note
Purchase Agreement.
Tax: Means all license, recording, documentary, registration
and other similar fees and all taxes, levies, imposts, duties, charges,
assessments or withholdings of any nature whatsoever imposed by any
Taxing Authority, together with any penalties, additions to tax, fines
or interest thereon or additions thereto.
Taxing Authority: Means any federal, state or local government
or other taxing authority in the United States, any foreign government
or any political subdivision or taxing authority thereof, any
international taxing authority or any territory or possession of the
United States or any taxing authority thereof.
Transfer Date: Means the moment of execution and delivery of
the Assignment and Assumption Agreement by each of the parties thereto.
Transfer Date Certificates: Has the meaning specified in the
definition of "Certificates".
<PAGE> 18
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Trust: Means the trust created by this Agreement, the estate
of which consists of the Trust Property.
Trust Indenture Act: Means the United States Trust Indenture
Act of 1939, as amended from time to time, or any successor thereto.
Trust Property: Means (i) the Equipment Notes held as the
property of the Trust and, subject to the Intercreditor Agreement, all
monies at any time paid thereon and all monies due and to become due
thereunder, (ii) funds from time to time deposited in the Certificate
Account and the Special Payments Account and, subject to the
Intercreditor Agreement, any proceeds from the sale by the Trustee
pursuant to Article VI hereof of any Equipment Note and (iii) all
rights of the Trust and the Trustee, on behalf of the Trust, under the
Intercreditor Agreement, the Escrow Agreement, the Note Purchase
Agreement and the Liquidity Facilities, including, without limitation,
all rights to receive certain payments thereunder, and all monies paid
to the Trustee on behalf of the Trust pursuant to the Intercreditor
Agreement or the Liquidity Facilities, provided, that rights with
respect to the Deposits or under the Escrow Agreement, except for the
right to direct withdrawals for the purchase of Equipment Notes to be
held in the Related Pass Through Trust Agreement, will not constitute
Trust Property.
Trustee: Means Wilmington Trust Company, or its successor in
interest, and any successor or other trustee appointed as provided
herein.
Trustee's Lien: Has the meaning specified in Section 7.17.
Unindemnified Tax: Means (i) any Tax imposed on the net
income, net worth or capital, or any franchise Tax or similar doing
business Tax, of the Pass Through Trustee (other than any such Tax
imposed as a result of the Company's assumption of the Equipment Notes
pursuant to the purchase of an aircraft on an EBO Date or a Material
Adverse Tax Event), (ii) any withholding Tax imposed by the United
States (including, without limitation, any withholding Tax imposed by
the United States which is imposed or increased as a result of the Pass
Through Trustee failing to deliver to the Company any certificate or
document necessary to establish that payments under this Agreement are
exempt from withholding Tax), and (iii) any Avoidable Tax.
Section 1.02. Compliance Certificates and Opinions. Upon any
application or request (except with respect to matters set forth in Article II)
by the Company, any Owner Trustee or any Loan Trustee to the Trustee to take any
action under any provision of this Agreement, the Company, such Owner Trustee or
such Loan Trustee, as the case may be, shall furnish to the Trustee (i) an
Officer's Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and (ii) an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Agreement relating to such particular application or request,
no additional certificate or opinion need be furnished.
<PAGE> 19
14
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement (other than a certificate
provided pursuant to Section 8.04(e)) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions in
this Agreement relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters and any such Person may certify or give an opinion
as to such matters in one or several documents.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement or, in respect of the Certificates, this
Agreement, they may, but need not, be consolidated and form one instrument.
Section 1.04. Directions of Certificateholders. (a) Any
direction, consent, request, demand, authorization, notice, waiver or other
action provided by this Agreement to be given or taken by Certificateholders (a
"Direction") may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Certificateholders in person or by an
agent or proxy duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required pursuant to this Agreement, to the Company or any Loan Trustee. Proof
of execution of any such instrument or of a writing appointing any such agent or
proxy shall be sufficient for any purpose of this Agreement and conclusive in
favor of the Trustee, the Company and any Loan Trustee, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the certificate of any notary public
or other officer of any jurisdiction authorized to take acknowledgments of deeds
or administer oaths that the Person executing such instrument acknowledged to
him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or such other officer and where such execution
is by
<PAGE> 20
15
an officer of a corporation or association or a member of a partnership, on
behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other reasonable manner
which the Trustee deems sufficient.
(c) In determining whether the Certificateholders of the
requisite Fractional Undivided Interests of Certificates Outstanding have given
any Direction under this Agreement, Certificates owned by the Company or any
Affiliate thereof shall be disregarded and deemed not to be Outstanding for
purposes of any such determination. In determining whether the Trustee shall be
protected in relying upon any such Direction, only Certificates which the
Trustee knows to be so owned shall be so disregarded. Notwithstanding the
foregoing, (i) if any such Person owns 100% of the Certificates Outstanding,
such Certificates shall not be so disregarded, and (ii) if any amount of
Certificates so owned by any such Person have been pledged in good faith, such
Certificates shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Certificates and that the pledgee is not the Company or any Affiliate thereof.
(d) For all purposes of this Agreement, all Initial
Certificates constituting Certificates and all Exchange Certificates
constituting Certificates shall vote and take all other actions of
Certificateholders together as one series of Certificates.
(e) The Company may at its option, by delivery of an Officer's
Certificate to the Trustee, set a record date to determine the
Certificateholders entitled to give any Direction. Notwithstanding Section
316(c) of the Trust Indenture Act, such record date shall be the record date
specified in such Officer's Certificate, which shall be a date not more than 30
days prior to the first solicitation of Certificateholders in connection
therewith. If such a record date is fixed, such Direction may be given before or
after such record date, but only the Certificateholders of record at the close
of business on such record date shall be deemed to be Certificateholders for the
purposes of determining whether Certificateholders of the requisite proportion
of Outstanding Certificates have authorized or agreed or consented to such
Direction, and for that purpose the Outstanding Certificates shall be computed
as of such record date; provided that no such Direction by the
Certificateholders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Agreement not later than one
year after such record date.
(f) Any Direction by the Holder of any Certificate shall bind
the Holder of every Certificate issued upon the transfer thereof or in exchange
therefor or in lieu thereof, whether or not notation of such Direction is made
upon such Certificate.
(g) Except as otherwise provided in Section 1.04(c),
Certificates owned by or pledged to any Person shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority, or distinction as among all of the Certificates.
<PAGE> 21
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ARTICLE II
ACQUISITION OF TRUST PROPERTY
Section 2.01. Acquisition of Trust Property. (a) The Trustee
is hereby irrevocably authorized and directed to execute and deliver the
Assignment and Assumption Agreement on the date specified in Section 11.01 of
the Related Pass Through Trust Agreement, subject only to the satisfaction of
the conditions to such execution set forth in said Section 11.01. This Agreement
(except only for the immediately preceding sentence hereof, which is effective
upon execution and delivery hereof) shall become effective upon the execution
and delivery of the Assignment and Assumption Agreement by the Trustee and the
Related Trustee, automatically and without any further signature or action on
the part of the Company and the Trustee, and shall thereupon constitute the
legal, valid and binding obligation of the parties hereto enforceable against
each of the parties hereto in accordance with its terms. Upon such execution and
delivery of the Assignment and Assumption Agreement, the Related Trust shall be
terminated, the Certificateholders shall receive beneficial interests in the
Trust in exchange for their interests in the Related Trust equal to their
respective beneficial interests in the Related Trust and the "Outstanding" (as
defined in the Related Pass Through Trust Agreement) pass through certificates
representing fractional undivided interests in the Related Trust shall be deemed
for all purposes of this Agreement and the Related Pass Through Trust Agreement,
without further signature or action of any party or Certificateholder, to be
Certificates representing the same Fractional Undivided Interests in the Trust
and the Trust Property. By acceptance of its Certificate, each Certificateholder
consents to and ratifies such assignment, transfer and delivery of the trust
property of the Related Trust to the Trustee upon the execution and delivery of
the Assignment and Assumption Agreement.
Section 2.02. Acceptance by the Trustee. The Trustee, upon the
execution and delivery of the Assignment and Assumption Agreement, acknowledges
its acceptance of all right, title and interest in and to the Trust Property and
declares that the Trustee holds and will hold such right, title and interest for
the benefit of all then present and future Certificateholders, upon the trusts
herein set forth. Subject to Section 7.14, the Trustee shall take all actions
reasonably necessary to maintain the registration of all such Equipment Notes in
the name of the Subordination Agent. By the acceptance of each Certificate
issued to it under the Related Pass Through Trust Agreement and deemed issued
under this Agreement, each holder of any such Certificate as grantor of the
Trust thereby joins in the creation and declaration of the Trust.
Section 2.03. Limitation of Powers. The Trust is constituted
solely for the purpose of making the investment in the Equipment Notes, and,
except as set forth herein, the Trustee shall not be authorized or empowered to
acquire any other investments or engage in any other activities and, in
particular, the Trustee shall not be authorized or empowered to do anything that
would cause such Trust to fail to qualify as a "grantor trust" for federal
income tax purposes (including as subject to this restriction, acquiring any
Aircraft (as defined in the respective Indentures) by bidding such Equipment
Notes or otherwise, or taking any action with respect to any such Aircraft once
acquired).
<PAGE> 22
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ARTICLE III
THE CERTIFICATES
Section 3.01. Title, Form, Denomination and Execution of
Certificates. (a) The Initial Certificates constituting Certificates shall be
known as the "8.54% Initial Pass Through Certificates, Series 1999-1C-S" and the
Exchange Certificates constituting Certificates shall be known as the "8.54%
Exchange Pass Through Certificates, Series 1999-1C-S", in each case, of the
Trust. Each Certificate will represent a fractional undivided interest in the
Trust and shall be substantially in the form set forth as Exhibit A to the
Related Pass Through Trust Agreement, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
the Related Pass Through Trust Agreement or this Agreement, as the case may be,
or as the Trustee may deem appropriate to reflect the fact that the Certificates
are being issued hereunder as opposed to the Related Pass Through Trust
Agreement, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the Trustee or the officers executing such Certificates, as
evidenced by the Trustee's or officer's execution of the Certificates (provided
that such letters, numbers or other marks of identification and such legends or
endorsements are in a form acceptable to the Company). At the Escrow Agent's
request under the Escrow Agreement, the Trustee shall affix the corresponding
Escrow Receipt to any Certificate issued hereunder. Any transfer or exchange of
any Certificate shall also effect a transfer or exchange of the related Escrow
Receipt. Prior to the Final Withdrawal Date, no transfer or exchange of any
Certificate shall be permitted unless the corresponding Escrow Receipt is
attached thereto and also is so transferred or exchanged. By acceptance of any
Certificate to which an Escrow Receipt is attached, each Holder of such a
Certificate acknowledges and accepts the restrictions on transfer of the Escrow
Receipt set forth herein and in the Escrow Agreement.
(b) The Initial Certificates shall be issued only in fully
registered form without coupons and only in denominations of $100,000 or
integral multiples of $1,000 in excess thereof, except that one Certificate may
be issued in a different denomination. The Exchange Certificates will be issued
in denominations of $1,000 or integral multiples thereof, except that one
Certificate may be issued in a different denomination. Each Certificate shall be
dated the date of its authentication. The aggregate Fractional Undivided
Interest of Certificates shall not at any time exceed $20,158,000.
(c) The Initial Certificates offered and sold in reliance on
Rule 144A shall be in the form of one or more Global Certificates substantially
in the form of Exhibit A to the Related Pass Through Trust Agreement with such
applicable legends as are provided for in Section 3.02 (each a "Restricted
Global Certificate"). Such Restricted Global Certificates shall be in registered
form and be registered in the name of a nominee of DTC and deposited with the
Trustee, at its Corporate Trust Office, as custodian for DTC. The aggregate
principal amount of any Restricted Global Certificate may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for DTC for such Restricted Global Certificate, as provided in Section
3.06 hereof, which adjustments shall be conclusive as to the aggregate principal
amount of any such Global Certificate.
<PAGE> 23
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(d) The Initial Certificates offered and sold outside the
United States in reliance on Regulation S shall be in the form of one or more
global Certificates substantially in the form of Exhibit A to the Related Pass
Through Trust Agreement (each a "Regulation S Global Certificate"). Such
Regulation S Global Certificates shall be in registered form and be registered
in the name of a nominee of DTC and deposited with the Trustee, at its Corporate
Trust Office, as custodian for DTC, for credit initially and during the
Restricted Period (hereinafter defined) to the respective accounts of beneficial
owners of such Certificates (or to such other accounts as they may direct) at
Morgan Guaranty Trust Company of New York, Brussels office, as operator of
Euroclear or Cedel. As used herein, the term "Restricted Period", with respect
to the Regulation S Global Certificates offered and sold in reliance on
Regulation S, means the period of 40 consecutive days beginning on and including
the later of (i) the day on which the "Certificates" (as defined in the Related
Pass Through Trust Agreement) are first offered to persons other than
distributors (as defined in Regulation S) in reliance on Regulation S and (ii)
the date of the closing of the offering under the Certificate Purchase
Agreement. The aggregate principal amount of any Regulation S Global Certificate
may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for DTC for such Global Certificate, as
provided in Section 3.06 hereof, which adjustments shall be conclusive as to the
aggregate principal amount of any such Global Certificate. The Restricted Global
Certificate and Regulation S Global Certificate are sometimes collectively
referred to herein as the "Global Certificates".
(e) Initial Certificates offered and sold to any Institutional
Accredited Investor which is not a QIB in a transaction exempt from registration
under the Securities Act (and other than as described in Section 3.01(d)) shall
be substantially in the form of Exhibit A to the Related Pass Through Trust
Agreement in definitive, fully registered form without interest coupons with
such applicable legends as are provided for in Section 3.02 (the "Restricted
Definitive Certificates"). Certificates issued pursuant to Section 3.05(b) in
exchange for interests in a Regulation S Global Certificate shall be issued in
definitive, fully registered form without interest coupons (the "Regulation S
Definitive Certificates"). The Restricted Definitive Certificates and the
Regulation S Definitive Certificates are sometimes collectively referred to
herein as the "Definitive Certificates".
(f) The Exchange Certificates exchanged for Initial
Certificates under the Related Pass Through Trust Agreement shall be in the form
of one or more global Certificates substantially in the form of Exhibit A
thereto (each, a "Global Exchange Certificate"). Exchange Certificates issued
under this Trust shall be in the form of one or more global certificates
substantially in the form of Exhibit A to the Related Pass Through Trust
Agreement, except that (i) the Restricted Legend (hereinafter defined) shall be
omitted and (ii) such Exchange Certificates shall contain such appropriate
insertions, omissions, substitutions and other variations from the form set
forth in Exhibit A to the Related Pass Through Trust Agreement relating to the
nature of the Exchange Certificates or to reflect the fact that the Certificates
are being issued hereunder as opposed to the Related Pass Through Trust
Agreement, as the Responsible Officer of the Trustee executing such Exchange
Certificates on behalf of the Trust may determine, as evidenced by such
officer's execution on behalf of the Trust of such Exchange Certificates. Such
Global Exchange Certificates shall be in registered form and be registered in
the name of DTC and deposited with the Trustee, at its Corporate Trust Office,
as custodian for DTC. The aggregate principal amount of any Global Exchange
Certificate may from time to
<PAGE> 24
19
time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for DTC for such Global Exchange Certificate, which
adjustments shall be conclusive as to the aggregate principal amount of any such
Global Exchange Certificate. Subject to clause (i) and (ii) of the second
sentence of this Section 3.01(f), the terms hereof applicable to Restricted
Global Certificates and/or Global Certificates shall apply to the Global
Exchange Certificates, mutatis mutandis.
(g) The Definitive Certificates shall be in registered form
and shall be typed, printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any other manner, all as
determined by the officers executing such Certificates, as evidenced by their
execution of such Certificates.
Section 3.02. Restrictive Legends. All Initial Certificates
issued for resale pursuant to Rule 144A or offered and sold to any Institutional
Accredited Investor which is not a QIB (including any Global Certificate issued
upon registration of transfer, in exchange for or in lieu of such Certificates)
shall be "Restricted Certificates" and shall bear a legend to the following
effect (the "Restricted Legend") unless the Company and the Trustee determine
otherwise consistent with applicable law:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, ANY PERSONS EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
CERTIFICATE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS CERTIFICATE OR THE
LAST DATE ON WHICH THIS CERTIFICATE WAS HELD BY AMERICA WEST AIRLINES,
INC., THE TRUSTEE OR ANY AFFILIATE OF ANY OF SUCH PERSONS RESELL OR
OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT (A) TO AMERICA WEST
AIRLINES, INC., (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT; AND (3) AGREES THAT IF IT SHOULD RESELL OR OTHERWISE TRANSFER THIS
CERTIFICATE IT WILL DELIVER TO EACH PERSON TO WHOM THIS CERTIFICATE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH
<PAGE> 25
20
ANY TRANSFER OF THIS CERTIFICATE WITHIN TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUANCE OF THIS CERTIFICATE OR THE LAST DATE ON WHICH
THIS CERTIFICATE WAS HELD BY AMERICA WEST AIRLINES, INC., THE TRUSTEE
OR ANY AFFILIATE OF ANY OF SUCH PERSONS, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER
OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT. THE PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
Each Global Certificate shall bear the following legend on the
face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS
CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS
OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 3.05 AND 3.06 OF
THE PASS THROUGH TRUST AGREEMENT REFERRED TO HEREIN.
Section 3.03. Authentication of Certificates. (a) No
Certificate shall be entitled to any benefit under this Agreement or be valid or
obligatory for any purpose, unless there appears on such Certificate a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
signatories, and such certificate upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder.
(b) Certificates bearing the manual or facsimile signature of
an individual who was, at the time when such signature was affixed, authorized
to sign on behalf of the Trustee shall be valid and binding obligations of the
Trust notwithstanding that such individual has
<PAGE> 26
21
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such office on the date of such Certificates.
Section 3.04. Transfer and Exchange. The Trustee shall cause
to be kept at the office or agency to be maintained by it in accordance with the
provisions of Section 7.12 a register (the "Register") of the Certificates in
which, subject to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of such Certificates and of transfers and
exchanges of such Certificates as herein provided. The Trustee shall initially
be the registrar (the "Registrar") for the purpose of registering such
Certificates and transfers and exchanges of such Certificates as herein
provided. The Company, upon notice to the Trustee, may change the Registrar at
any time.
All Certificates issued upon any registration of transfer or
exchange of Certificates shall be valid obligations of the Trust, evidencing the
same interest therein, and entitled to the same benefits under this Agreement,
as the Certificates surrendered upon such registration of transfer or exchange.
A Certificateholder may transfer a Certificate, or request
that a Certificate be exchanged for Certificates in an aggregate Fractional
Undivided Interest equal to the Fractional Undivided Interest of such
Certificate surrendered for exchange of other authorized denominations, by
surrender of such Certificate to the Trustee with the form of transfer notice
thereon duly completed and executed, and otherwise complying with the terms of
this Agreement, including providing evidence of compliance with any restrictions
on transfer, in form satisfactory to the Trustee and the Registrar; provided
that no exchanges of Initial Certificates for Exchange Certificates shall occur
until an Exchange Offer Registration Statement shall have been declared
effective by the SEC (notice of which shall be provided to the Trustee by the
Company). No such transfer shall be effected until, and such transferee shall
succeed to the rights of a Certificateholder only upon, final acceptance and
registration of the transfer by the Registrar in the Register. Prior to the
registration of any transfer by a Certificateholder as provided herein, the
Trustee shall treat the person in whose name the Certificate is registered as
the owner thereof for all purposes, and the Trustee shall not be affected by
notice to the contrary. Furthermore, DTC shall, by acceptance of a Global
Certificate, agree that transfers of beneficial interests in such Global
Certificate may be effected only through a book-entry system maintained by DTC
(or its agent), and that ownership of a beneficial interest in the Certificate
shall be required to be reflected in book-entry. When Certificates are presented
to the Registrar with a request to register the transfer thereof or to exchange
them for other authorized denominations of a Certificate in a Fractional
Undivided Interest equal to the aggregate Fractional Undivided Interest of
Certificates surrendered for exchange, the Registrar shall register the transfer
or make the exchange as requested if its requirements for such transactions are
met.
To permit registrations of transfers and exchanges in
accordance with the terms, conditions and restrictions hereof, the Trustee shall
execute and authenticate Certificates at the Registrar's request. No service
charge shall be made to a Certificateholder for any registration of transfer or
exchange of Certificates, but the Trustee shall require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates. All Certificates
surrendered for registration of transfer or exchange shall be canceled and
subsequently destroyed by the Trustee.
<PAGE> 27
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Section 3.05. Book-Entry Provisions for Restricted Global
Certificates and Regulation S Global Certificates. (a) Members of, or
participants in, DTC ("Agent Members") shall have no rights under this Agreement
with respect to any Global Certificate held on their behalf by DTC, or the
Trustee as its custodian, and DTC may be treated by the Trustee and any agent of
the Trustee as the absolute owner of such Global Certificate for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Trustee or any agent of the Trustee from giving effect to any written
certification, proxy or other authorization furnished by DTC or shall impair, as
between DTC and its Agent Members, the operation of customary practices
governing the exercise of the rights of a holder of any Certificate. Upon the
issuance of any Global Certificate, the Registrar or its duly appointed agent
shall record DTC as the registered holder of such Global Certificate.
(b) Transfers of any Global Certificate shall be limited to
transfers of such Restricted Global Certificate or Regulation S Global
Certificate in whole, but not in part, to DTC. Beneficial interests in the
Restricted Global Certificate and any Regulation S Global Certificate may be
transferred in accordance with the rules and procedures of DTC and the
provisions of Section 3.06. Beneficial interests in a Restricted Global
Certificate or a Regulation S Global Certificate shall be (or, under the Related
Pass Through Trust Agreement, may have been) delivered to all beneficial owners
thereof in the form of Restricted Definitive Certificates or Regulation S
Definitive Certificates, as the case may be, if (i) DTC notifies the Trustee
that it is unwilling or unable to continue as depositary for such Restricted
Global Certificate or Regulation S Global Certificate, as the case may be, and a
successor depositary is not appointed by the Trustee within 90 days of such
notice, and (ii) after the occurrence and during the continuance of an Event of
Default, owners of beneficial interests in a Global Certificate with Fractional
Undivided Interests aggregating not less than a majority in interest in the
Trust advise the Trustee, the Company and DTC through Agent Members in writing
that the continuation of a book-entry system through DTC or its successor is no
longer in their best interests.
(c) Any beneficial interest in one of the Global Certificates
that is transferred to a Person who takes delivery in the form of an interest in
another Global Certificate will, upon such transfer, cease to be an interest in
such Global Certificate and become an interest in the other Global Certificate
and, accordingly, will thereafter be subject to all transfer restrictions, if
any, and other procedures applicable to beneficial interests in such other
Global Certificate for as long as it remains such an interest.
(d) In connection with the transfer of an entire Restricted
Global Certificate or an entire Regulation S Global Certificate to the
beneficial owners thereof pursuant to paragraph (b) of this Section 3.05, such
Restricted Global Certificate or Regulation S Global Certificate, as the case
may be, shall be deemed to be surrendered to the Trustee for cancellation, and
the Trustee shall execute, authenticate and deliver, to each beneficial owner
identified by DTC in exchange for its beneficial interest in such Restricted
Global Certificate or Regulation S Global Certificate, as the case may be, an
equal aggregate principal amount of Restricted Definitive Certificates or
Regulation S Definitive Certificates, as the case may be, of authorized
denominations. None of the Company, the Registrar, the Paying Agent nor the
Trustee shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such registration
instructions. Upon the issuance of
<PAGE> 28
23
Definitive Certificates, the Trustee shall recognize the Person in whose name
the Definitive Certificates are registered in the Register as Certificateholders
hereunder. Neither the Company nor the Trustee shall be liable if the Trustee or
the Company is unable to locate a qualified successor clearing agency.
(e) Any Definitive Certificate delivered in exchange for an
interest in the Restricted Global Certificate pursuant to paragraph (b) of this
Section 3.05 shall, except as otherwise provided by paragraph (e) of Section
3.06, bear the Restricted Legend.
(f) Prior to the expiration of the Restricted Period, any
Regulation S Definitive Certificate delivered in exchange for an interest in a
Regulation S Global Certificate pursuant to paragraph (b) of this Section shall
bear the Restricted Legend.
(g) The registered holder of any Restricted Global Certificate
or Regulation S Global Certificate may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Agreement or the Certificates.
Section 3.06. Special Transfer Provisions. Unless and until
(i) an Initial Certificate is sold under an effective Shelf Registration
Statement, or (ii) an Initial Certificate is exchanged for an Exchange
Certificate pursuant to an effective Exchange Offer Registration Statement, in
each case pursuant to the terms of the Registration Rights Agreement, the
following provisions shall apply to such Initial Certificates:
(a) Transfers to Non-QIB Institutional Accredited Investors.
The following provisions shall apply with respect to the registration
of any proposed transfer of a Certificate to any Institutional
Accredited Investor which is neither a QIB nor a Non-U.S. Person:
(i) The Registrar shall register the transfer of any
Certificate, whether or not bearing the Restricted Legend,
only if (x) the requested transfer is at least two years after
the later of the original issue date of the Certificates and
the last date on which such Certificate was held by the
Company, the Trustee or any affiliate of any of such Persons
or (y) the proposed transferor is an Initial Purchaser who is
transferring Certificates purchased under the Certificates
Purchase Agreement and the proposed transferee has delivered
to the Registrar a letter substantially in the form of Exhibit
B hereto and the aggregate principal amount of the
Certificates being transferred is at least $100,000. Except as
provided in the foregoing clause (y), the Registrar shall not
register the transfer of any Certificate to any Institutional
Accredited Investor which is neither a QIB nor a Non-U.S.
Person.
(ii) If the proposed transferor is an Agent Member
holding a beneficial interest in a Restricted Global
Certificate, upon receipt by the Registrar of (x) the
documents, if any, required by paragraph (i) and (y)
instructions given in accordance with DTC's and the
Registrar's procedures, the Registrar shall reflect on its
books and records the date of the transfer and a decrease in
the principal amount of such Restricted Global Certificate in
an amount equal to the principal
<PAGE> 29
24
amount of the beneficial interest in such Restricted Global
Certificate to be transferred, and the Trustee shall execute,
authenticate and deliver to the transferor or at its
direction, one or more Restricted Definitive Certificates of
like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer of an Initial
Certificate to a QIB (excluding Non-U.S. Persons):
(i) If the Certificate to be transferred consists of
Restricted Definitive Certificates, or of an interest in any
Regulation S Global Certificate during the Restricted Period,
the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box
provided for on the form of Initial Certificate stating, or
has otherwise advised the Trustee and the Registrar in
writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Initial Certificate
stating, or has otherwise advised the Trustee and the
Registrar in writing, that it is purchasing the Initial
Certificate for its own account or an account with respect to
which it exercises sole investment discretion and that it, or
the Person on whose behalf it is acting with respect to any
such account, is a QIB within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such information
regarding the Trust and/or the Company as it has requested
pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim
the exemption from registration provided by Rule 144A.
(ii) Upon receipt by the Registrar of the documents
required by clause (i) above and instructions given in
accordance with DTC's and the Registrar's procedures therefor,
the Registrar shall reflect on its books and records the date
of such transfer and an increase in the principal amount of a
Restricted Global Certificate in an amount equal to the
principal amount of the Restricted Definitive Certificates or
interests in such Regulation S Global Certificate, as the case
may be, being transferred, and the Trustee shall cancel such
Definitive Certificates or decrease the amount of such
Regulation S Global Certificate so transferred.
(c) Transfers of Interests in the Regulation S Global
Certificate or Regulation S Definitive Certificates. After the
expiration of the Restricted Period, the Registrar shall register any
transfer of interests in any Regulation S Global Certificate or
Regulation S Definitive Certificates without requiring any additional
certification. Until the expiration of the Restricted Period, interests
in the Regulation S Global Certificate may only be held through Agent
Members acting for and on behalf of Euroclear and Cedel.
(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any registration of any transfer
of an Initial Certificate to a Non-U.S. Person:
<PAGE> 30
25
(i) Prior to the expiration of the Restricted Period,
the Registrar shall register any proposed transfer of an
Initial Certificate to a Non-U.S. Person upon receipt of a
certificate substantially in the form set forth as Exhibit A
hereto from the proposed transferor.
(ii) After the expiration of the Restricted Period,
the Registrar shall register any proposed transfer to any
Non-U.S. Person if the Certificate to be transferred is a
Restricted Definitive Certificate or an interest in a
Restricted Global Certificate, upon receipt of a certificate
substantially in the form of Exhibit A from the proposed
transferor. The Registrar shall promptly send a copy of such
certificate to the Company.
(iii) Upon receipt by the Registrar of (x) the
documents, if any, required by clause (ii) and (y)
instructions in accordance with DTC's and the Registrar's
procedures, the Registrar shall reflect on its books and
records the date of such transfer and a decrease in the
principal amount of such Restricted Global Certificate in an
amount equal to the principal amount of the beneficial
interest in such Restricted Global Certificate to be
transferred, and, upon receipt by the Registrar of
instructions given in accordance with DTC's and the
Registrar's procedures, the Registrar shall reflect on its
books and records the date and an increase in the principal
amount of the Regulation S Global Certificate in an amount
equal to the principal amount of the Restricted Definitive
Certificate or the Restricted Global Certificate, as the case
may be, to be transferred, and the Trustee shall cancel the
Definitive Certificate, if any, so transferred or decrease the
amount of such Restricted Global Certificate.
(e) Restricted Legend. Upon the transfer, exchange or
replacement of Certificates not bearing the Restricted Legend, the
Registrar shall deliver Certificates that do not bear the Restricted
Legend. Upon the transfer, exchange or replacement of Certificates
bearing the Restricted Legend, the Registrar shall deliver only
Certificates that bear the Restricted Legend unless either (i) the
circumstances contemplated by paragraph (d)(ii) of this Section 3.06
exist or (ii) there is delivered to the Registrar an Opinion of Counsel
to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the
provisions of the Securities Act.
(f) General. By acceptance of any Certificate bearing the
Restricted Legend, each Holder of such a Certificate acknowledges the
restrictions on transfer of such Certificate set forth in this
Agreement and agrees that it will transfer such Certificate only as
provided in this Agreement. The Registrar shall not register a transfer
of any Certificate unless such transfer complies with the restrictions
on transfer, if any, of such Certificate set forth in this Agreement.
In connection with any transfer of Certificates, each Certificateholder
agrees by its acceptance of the Certificates to furnish the Registrar
or the Trustee such certifications, legal opinions or other information
as either of them may reasonably require to confirm that such transfer
is being made pursuant to an exemption from, or a transaction not
subject to, the registration requirements of the Securities Act and in
accordance with the terms and provisions of this Article III;
<PAGE> 31
26
provided that the Registrar shall not be required to determine the
sufficiency of any such certifications, legal opinions or other
information.
Until such time as no Certificates remain Outstanding, the
Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 3.05 or this Section 3.06. The
Trustee, if not the Registrar at such time, shall have the right to inspect and
make copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Registrar.
Section 3.07. Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate is surrendered to the Registrar
or the Registrar receives evidence to its satisfaction of the destruction, loss
or theft of any Certificate and (b) there is delivered to the Registrar and the
Trustee such security, indemnity or bond, as may be required by them to save
each of them harmless, then, in the absence of notice to the Registrar or the
Trustee that such destroyed, lost or stolen Certificate has been acquired by a
protected purchaser, and provided that the requirements of Section 8-405 of the
Uniform Commercial Code in effect in any applicable jurisdiction are met, the
Trustee shall execute, authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Certificate, a new Certificate or
Certificates, in authorized denominations and of like Fractional Undivided
Interest and bearing a number not contemporaneously outstanding.
In connection with the issuance of any new Certificate under
this Section 3.07, the Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee
and the Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section 3.07
shall constitute conclusive evidence of the appropriate Fractional Undivided
Interest in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.08. Persons Deemed Owners. Prior to due presentment
of a Certificate for registration of transfer, the Trustee, the Registrar and
any Paying Agent may treat the Person in whose name any Certificate is
registered (as of the day of determination) as the owner of such Certificate for
the purpose of receiving distributions pursuant to Article IV and for all other
purposes whatsoever, and none of the Trustee, the Registrar or any Paying Agent
shall be affected by any notice to the contrary.
Section 3.09. Cancellation. All Certificates surrendered for
payment or transfer or exchange shall, if surrendered to the Trustee or any
agent of the Trustee other than the Registrar, be delivered to the Registrar for
cancellation and shall promptly be canceled by it. No Certificates shall be
authenticated in lieu of or in exchange for any Certificates canceled as
provided in this Section, except as expressly permitted by this Agreement. All
canceled
<PAGE> 32
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Certificates held by the Registrar shall be destroyed and a certification of
their destruction delivered to the Trustee.
Section 3.10. Temporary Certificates. Until definitive
Certificates are ready for delivery, the Trustee shall authenticate temporary
Certificates. Temporary Certificates shall be substantially in the form of
definitive Certificates but may have insertions, substitutions, omissions and
other variations determined to be appropriate by the officers executing the
temporary Certificates, as evidenced by their execution of such temporary
Certificates. If temporary Certificates are issued, the Trustee will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee designated for such purpose
pursuant to Section 7.12, without charge to the Certificateholder. Upon
surrender for cancellation of any one or more temporary Certificates, the
Trustee shall execute, authenticate and deliver in exchange therefor a like face
amount of definitive Certificates of authorized denominations. Until so
exchanged, the temporary Certificates shall be entitled to the same benefits
under this Agreement as definitive Certificates.
Section 3.11. Limitation of Liability for Payments. All
payments and distributions made to Certificateholders in respect of the
Certificates shall be made only from the Trust Property and only to the extent
that the Trustee shall have sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of Article IV of
this Agreement. Each Certificateholder, by its acceptance of a Certificate,
agrees that it will look solely to the income and proceeds from the Trust
Property for any payment or distribution due to such Certificateholder pursuant
to the terms of this Agreement and that it will not have any recourse to the
Company, the Trustee, the Loan Trustees, the Liquidity Provider, the Owner
Trustees or the Owner Participants, except as otherwise expressly provided
herein or in the Intercreditor Agreement.
The Company is a party to this Agreement solely for purposes
of meeting the requirements of the Trust Indenture Act, and therefore shall not
have any right, obligation or liability hereunder (except as otherwise expressly
provided herein).
Section 3.12 ERISA Restrictive Legend. All Certificates issued
pursuant to this Agreement shall bear a legend to the following effect (the
"ERISA Legend") unless the Company and the Trustee determine otherwise
consistent with applicable law:
"BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT (A) NO
PLAN ASSETS HAVE BEEN USED TO PURCHASE THIS CERTIFICATE OR AN INTEREST HEREIN OR
(B) THE PURCHASE AND HOLDING OF THIS CERTIFICATE OR AN INTEREST HEREIN IS EXEMPT
FROM THE PROHIBITED TRANSACTION RESTRICTIONS OF ERISA AND THE CODE PURSUANT TO
ONE OR MORE PROHIBITED TRANSACTION STATUTORY OR ADMINISTRATIVE EXEMPTIONS. THE
PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE
FOREGOING RESTRICTIONS."
<PAGE> 33
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By acceptance of any Certificate bearing the ERISA Legend,
each Holder of such a Certificate acknowledges the restrictions on transfer of
such Certificate set forth in this Agreement and agrees that it will transfer
such Certificate only as provided in this Agreement. The Trustee shall not
register a transfer of any Certificate unless such transfer complies with the
restrictions on transfer, if any, of such Certificate set forth in such legend.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments
Account. (a) The Trustee shall maintain on behalf of the Certificateholders a
Certificate Account as one or more non-interest-bearing accounts. The Trustee
shall hold the Certificate Account in trust for the benefit of the
Certificateholders, and shall make or permit withdrawals therefrom only as
provided in this Agreement. On each day when a Scheduled Payment is made to the
Trustee under the Intercreditor Agreement, the Trustee upon receipt thereof
shall immediately deposit the aggregate amount of such Scheduled Payment in the
Certificate Account.
(b) The Trustee shall maintain on behalf of the
Certificateholders a Special Payments Account as one or more accounts, which
shall be non-interest bearing except as provided in Section 4.04. The Trustee
shall hold the Special Payments Account in trust for the benefit of the
Certificateholders and shall make or permit withdrawals therefrom only as
provided in this Agreement. On each day when one or more Special Payments are
made to the Trustee under the Intercreditor Agreement and upon the payment of
the Special Redemption Premium to the Trustee under the Note Purchase Agreement,
the Trustee, upon receipt thereof, shall immediately deposit the aggregate
amount of such Special Payments in the Special Payments Account.
(c) The Trustee shall cause the Subordination Agent to
present to the related Loan Trustee of each Equipment Note such Equipment Note
on the date of its stated final maturity or, in the case of any Equipment Note
which is to be redeemed in whole pursuant to the related Indenture, on the
applicable redemption date under such Indenture.
Section 4.02. Distributions from Certificate Account and
Special Payments Account. (a) On each Regular Distribution Date or as soon
thereafter as the Trustee has confirmed receipt of the payment of all or any
part of the Scheduled Payments due on such date, the Trustee shall distribute
out of the Certificate Account the entire amount deposited therein pursuant to
Section 4.01(a). There shall be so distributed to each Certificateholder of
record on the Record Date with respect to such Regular Distribution Date (other
than as provided in Section 11.01 concerning the final distribution) by check
mailed to such Certificateholder, at the address appearing in the Register, such
Certificateholder's pro rata share (based on the Fractional Undivided Interest
in the Trust held by such Certificateholder) of the total amount in the
Certificate Account, except that, with respect to Certificates registered on the
Record Date in the name of DTC, such distribution shall be made by wire transfer
in immediately available funds to the account designated by DTC.
<PAGE> 34
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(b) On each Special Distribution Date with respect to any
Special Payment or as soon thereafter as the Trustee has confirmed receipt of
any Special Payments due on the Equipment Notes held in the related Trust or
realized upon the sale of such Equipment Notes or receipt of the Special
Redemption Premium, the Trustee shall distribute out of the Special Payments
Account the entire amount of such Special Payment deposited therein pursuant to
Section 4.01(b). There shall be so distributed to each Certificateholder of
record on the Record Date with respect to such Special Distribution Date (other
than as provided in Section 11.01 concerning the final distribution) by check
mailed to such Certificateholder, at the address appearing in the Register, such
Certificateholder's pro rata share (based on the Fractional Undivided Interest
in the Trust held by such Certificateholder) of the total amount in the Special
Payments Account on account of such Special Payment, except that, with respect
to Certificates registered on the Record Date in the name of DTC, such
distribution shall be made by wire transfer in immediately available funds to
the account designated by DTC.
(c) The Trustee shall cause notice of each Special Payment to
be mailed to each Certificateholder at his address as it appears in the
Register. In the event of redemption or purchase of Equipment Notes held in the
Trust, such notice shall be mailed not less than 20 days prior to the Special
Distribution Date for the Special Payment resulting from such redemption or
purchase, which Special Distribution Date shall be the date of such redemption
or purchase. In the event of the payment of a Special Redemption Premium by the
Company to the Trustee under the Note Purchase Agreement, such notice shall be
mailed, together with the notice by the Escrow Paying Agent under Section 2.06
of the Escrow Agreement, not less than 20 days prior to the Special Distribution
Date for such amount, which Special Distribution Date shall be the Final
Withdrawal Date. In the case of any other Special Payments, such notice shall be
mailed as soon as practicable after the Trustee has confirmed that it has
received funds for such Special Payment, stating the Special Distribution Date
for such Special Payment which shall occur not less than 20 days after the date
of such notice and as soon as practicable thereafter. Notices mailed by the
Trustee shall set forth:
(i) the Special Distribution Date and the Record Date therefor
(except as otherwise provided in Section 11.01),
(ii) the amount of the Special Payment for each $1,000 face
amount Certificate and the amount thereof constituting principal,
premium, if any, and interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a
Regular Distribution Date, the total amount to be received on such date
for each $1,000 face amount Certificate.
If the amount of (i) premium, if any, payable upon the redemption or purchase of
an Equipment Note or (ii) the Special Redemption Premium, if any, has not been
calculated at the time that the Trustee mails notice of a Special Payment, it
shall be sufficient if the notice sets forth the other amounts to be distributed
and states that any premium received will also be distributed.
<PAGE> 35
30
If any redemption of the Equipment Notes held in the Trust is
canceled, the Trustee, as soon as possible after learning thereof, shall cause
notice thereof to be mailed to each Certificateholder at its address as it
appears on the Register.
Section 4.03. Statements to Certificateholders. (a) On each
Distribution Date, the Trustee will include with each distribution to
Certificateholders of a Scheduled Payment or Special Payment, as the case may
be, a statement setting forth the information provided below (in the case of a
Special Payment, including any Special Redemption Premium, reflecting in part
the information provided by the Escrow Paying Agent under the Escrow Agreement).
Such statement shall set forth (per $1,000 face amount Certificate as to (ii),
(iii), (iv) and (v) below) the following information:
(i) the aggregate amount of funds distributed on such
Distribution Date hereunder and under the Escrow Agreement, indicating
the amount allocable to each source;
(ii) the amount of such distribution hereunder allocable to
principal and the amount allocable to premium (including the Special
Redemption Premium), if any;
(iii) the amount of such distribution hereunder allocable to
interest; and
(iv) the amount of such distribution under the Escrow
Agreement allocable to interest;
(v) the amount of such distribution under the Escrow Agreement
allocable to Deposits; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Certificates registered in the name of
DTC, on the Record Date prior to each Distribution Date, the Trustee will
request from DTC a securities position listing setting forth the names of all
Agent Members reflected on DTC's books as holding interests in the Certificates
on such Record Date. On each Distribution Date, the Trustee will mail to each
such Agent Member the statement described above and will make available
additional copies as requested by such Agent Member for forwarding to holders of
interests in the Certificates.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the Trustee
shall furnish to each Person who at any time during such calendar year was a
Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and (a)(v)
above for such calendar year or, in the event such Person was a
Certificateholder of record during a portion of such calendar year, for such
portion of such year, and such other items as are readily available to the
Trustee and which a Certificateholder shall reasonably request as necessary for
the purpose of such Certificateholder's preparation of its federal income tax
returns. Such statement and such other items shall be prepared on the basis of
information supplied to the Trustee by the Agent Members and shall be delivered
by the Trustee to such Agent Members to be available for forwarding by such
Agent Members to the holders of interests in the Certificates in the manner
described in Section 4.03(a).
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(c) Promptly following (i) the Transfer Date, if there has
been any change in the information set forth in clauses (x), (y) and (z) below
from that set forth in pages 61-62 of the Offering Circular, and (ii) any early
redemption or purchase of, or any default in the payment of principal or
interest in respect of, any of the Equipment Notes held in the Trust, or any
Final Withdrawal, the Trustee shall furnish to Certificateholders of record on
such date a statement setting forth (x) the expected Pool Balances for each
subsequent Regular Distribution Date following the Delivery Period Termination
Date, (y) the related Pool Factors for such Regular Distribution Dates and (z)
the expected principal distribution schedule of the Equipment Notes, in the
aggregate, held as Trust Property at the date of such notice. With respect to
the Certificates registered in the name of DTC, on the Transfer Date, the
Trustee will request from DTC a securities position listing setting forth the
names of all Agent Members reflected on DTC's books as holding interests in the
"Certificates" (as defined in the Related Pass Through Trust Agreement) on the
Delivery Period Termination Date. The Trustee will mail to each such Agent
Member the statement described above and will make available additional copies
as requested by such Agent Member for forwarding to holders of interests in the
Certificates.
Section 4.04. Investment of Special Payment Moneys. Any money
received by the Trustee pursuant to Section 4.01(b) representing a Special
Payment which is not distributed on the date received shall, to the extent
practicable, be invested in Permitted Investments by the Trustee pending
distribution of such Special Payment pursuant to Section 4.02. Any investment
made pursuant to this Section 4.04 shall be in such Permitted Investments having
maturities not later than the date that such moneys are required to be used to
make the payment required under Section 4.02 on the applicable Special
Distribution Date and the Trustee shall hold any such Permitted Investments
until maturity. The Trustee shall have no liability with respect to any
investment made pursuant to this Section 4.04, other than by reason of the
willful misconduct or negligence of the Trustee. All income and earnings from
such investments shall be distributed on such Special Distribution Date as part
of such Special Payment.
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence. The Company,
at its own cost and expense, will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, except as
permitted by Section 5.02.
Section 5.02. Consolidation, Merger, Etc. The Company shall
not consolidate with or merge into any other corporation or convey, transfer or
lease substantially all of its assets as an entirety to any Person unless:
(a) the corporation formed by such consolidation or into which
the Company is merged or the Person that acquires by conveyance,
transfer or lease substantially all of the assets of the Company as an
entirety shall be (i) organized and validly existing under the laws of
the United States of America or any state thereof or the District of
Columbia, (ii) a "citizen of the United States" as defined in 49 U.S.C.
40102(a)(15), as amended, and (iii) a United States certificated air
carrier, if and so long as such status is a condition
<PAGE> 37
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of entitlement to the benefits of Section 1110 of the Bankruptcy Reform
Act of 1978, as amended (11 U.S.C. Section 1110);
(b) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance,
transfer or lease substantially all of the assets of the Company as an
entirety shall execute and deliver to the Trustee a duly authorized,
valid, binding and enforceable agreement in form and substance
reasonably satisfactory to the Trustee containing an assumption by such
successor corporation or Person of the due and punctual performance and
observance of each covenant and condition of this Agreement, the Other
Pass Through Trust Agreement and each Financing Document to be
performed or observed by the Company; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate of the Company reasonably satisfactory to the
Trustee, stating that such consolidation, merger, conveyance, transfer
or lease and the assumption agreement mentioned in clause (b) above
comply with this Section 5.02 and that all conditions precedent herein
provided for relating to such transaction have been complied with.
Upon any consolidation or merger, or any conveyance, transfer
or lease of substantially all of the assets of the Company as an entirety in
accordance with this Section 5.02, the successor corporation or Person formed by
such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Agreement with
the same effect as if such successor corporation or Person had been named as the
Company herein. No such conveyance, transfer or lease of substantially all of
the assets of the Company as an entirety shall have the effect of releasing any
successor corporation or Person which shall have become such in the manner
prescribed in this Section 5.02 from its liability in respect of this Agreement
and any Financing Document to which it is a party.
ARTICLE VI
DEFAULT
Section 6.01. Events of Default. (a) Exercise of Remedies.
Upon the occurrence and during the continuation of any Indenture Default under
any Indenture, with ten days' written notice to the Trustee and each
Certificateholder, the Trustee may, to the extent it is the Controlling Party at
such time (as determined pursuant to the Intercreditor Agreement), direct the
exercise of remedies as provided in the Intercreditor Agreement.
(b) Purchase Rights of Certificateholders. (i) At any time
within 180 days after the occurrence and during the continuation of a
Triggering Event, each Certificateholder shall have the right to
purchase, for the purchase price set forth in the Class G Trust
Agreement, all, but not less than all, of the Class G Certificates upon
ten days' written notice to the Class G Trustee and each other
Certificateholder, provided that (i) if prior to the end of such
ten-day period any other Certificateholder notifies such purchasing
Certificateholder that such other Certificateholder wants to
participate in such purchase, then such other Certificateholder may
join with the purchasing Certificateholder to
<PAGE> 38
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purchase all, but not less than all, of the Class G Certificates pro
rata based on the Fractional Undivided Interest in the Trust held by
each such Certificateholder and (ii) if prior to the end of such
ten-day period any other Certificateholder fails to notify the
purchasing Certificateholder of such other Certificateholder's desire
to participate in such a purchase, then such other Certificateholder
shall lose its right to purchase the Class G Certificates pursuant to
this Section 6.01(b);
(ii) by acceptance of its Certificate, each Certificateholder
agrees that at any time within 180 days after the occurrence and during
the continuation of a Triggering Event, each Class D Certificateholder
shall have the right (which shall not expire upon any purchase of the
Class G Certificates pursuant to clause (b)(i) above) to purchase all,
but not less than all, of the Class G Certificates and the Certificates
upon ten days' written notice to the Class G Trustee and the Trustee
and each other Class D Certificateholder, provided that (1) if prior to
the end of such ten-day period any other Class D Certificateholder
notifies such purchasing Class D Certificateholder that such other
Class D Certificateholder wants to participate in such purchase, then
such other Class D Certificateholder may join with the purchasing Class
D Certificateholder to purchase all, but not less than all, of the
Class G Certificates and the Certificates pro rata based on the
Fractional Undivided Interest in the Class D Trust, taken as a whole,
held by each such Class D Certificateholder and (2) if prior to the end
of such ten day period any other Class D Certificateholder fails to
notify the purchasing Class D Certificateholder of such other Class D
Certificateholder's desire to participate in such a purchase, then such
other Class D Certificateholder shall lose its right to purchase the
Certificates pursuant to this Section 6.01(b); and
(iii) by acceptance of its Certificate, each Certificateholder
agrees that at any time after 180 days have elapsed since the
occurrence of a Triggering Event that is continuing, regardless of
whether the Certificateholders exercise their right to purchase the
Class G Certificates pursuant to clause (b)(i) above, the Policy
Provider, if it is then the Controlling Party, shall have the right
(except in the event of a Policy Provider Default) to purchase all, but
not less than all, of the Class G Certificates upon ten days' written
notice to the Class G Trustee and the Class G Certificateholders.
The purchase price with respect to the Certificates shall be
equal to the Pool Balance of the Certificates, together with accrued and unpaid
interest thereon to the date of such purchase, without premium, but including
any other amounts then due and payable to the Certificateholders under this
Agreement, the Intercreditor Agreement, the Escrow Agreement or any Financing
Document or on or in respect of the Certificates; provided, however, that (i) if
such purchase occurs after the record date specified in Section 2.03(b) of the
Escrow Agreement relating to the distribution of unused Deposits and accrued and
unpaid interest thereunder, such purchase price shall be reduced by the
aggregate amount of unused Deposits and interest to be distributed under the
Escrow Agreement (which deducted amounts shall remain distributable to, and may
be retained by, the Certificateholder as of such Record Date) and (ii) if such
purchase occurs after a Record Date, such purchase price shall be reduced by the
amount to be distributed hereunder on the related Distribution Date (which
deducted amounts shall remain distributable to, and may be retained by, the
Certificateholder as of such Record Date); provided, further, that no such
purchase of Certificates shall be effective unless the purchaser(s) shall
certify to the
<PAGE> 39
34
Trustee that contemporaneously with such purchase, such purchaser(s) is
purchasing, pursuant to the terms of this Agreement and the Other Pass Through
Trust Agreement, the Certificates and the Class G Certificates which are senior
to the securities held by such purchaser(s). Each payment of the purchase price
of the Certificates referred to in the first sentence hereof shall be made to an
account or accounts designated by the Trustee and each such purchase shall be
subject to the terms of this Section 6.01(b). Each Certificateholder agrees by
its acceptance of its Certificate that it will, subject to Section 3.04 hereof,
upon payment from such Class D Certificateholder(s) of the purchase price set
forth in the first sentence of this paragraph, forthwith sell, assign, transfer
and convey to the purchaser(s) thereof (without recourse, representation or
warranty of any kind except for its own acts), all of the right, title, interest
and obligation of such Certificateholder in this Agreement, the Escrow
Agreement, the Deposit Agreement, the Intercreditor Agreement, the Liquidity
Facility, the Financing Documents and all Certificates and Escrow Receipts held
by such Certificateholder (excluding all right, title and interest under any of
the foregoing to the extent such right, title or interest is with respect to an
obligation not then due and payable as respects any action or inaction or state
of affairs occurring prior to such sale) and the purchaser shall assume all of
such Certificateholder's obligations under this Agreement, the Escrow Agreement,
the Deposit Agreement, the Intercreditor Agreement, the Liquidity Facility, the
Financing Documents and all such Certificates and Escrow Receipts. The
Certificates will be deemed to be purchased on the date payment of the purchase
price is made notwithstanding the failure of the Certificateholders to deliver
any Certificates (whether in the form of Definitive Certificates or beneficial
interests in Global Certificates) and, upon such a purchase, (i) the only rights
of the Certificateholders will be to deliver the Certificates to the
purchaser(s) and receive the purchase price for such Certificates and (ii) if
the purchaser(s) shall so request, such Certificateholder will comply with all
the provisions of Section 3.04 hereof to enable new Certificates to be issued to
the purchaser in such denominations as it shall request. All charges and
expenses in connection with the issuance of any such new Certificates shall be
borne by the purchaser thereof.
As used in this Section 6.01(b), the terms "Class G
Certificate", "Class G Certificateholder", "Class G Trust", "Class G Trust
Agreement", "Class G Trustee", "Class D Certificate", and "Class D Trust", shall
have the respective meanings assigned to such terms in the Intercreditor
Agreement.
Section 6.02. Incidents of Sale of Equipment Notes. Upon any
sale of all or any part of the Equipment Notes made either under the power of
sale given under this Agreement or otherwise for the enforcement of this
Agreement, the following shall be applicable:
(1) Certificateholders and Trustee May Purchase Equipment
Notes. Any Certificateholder, the Trustee in its individual or any
other capacity or any other Person may bid for and purchase any of the
Equipment Notes, and upon compliance with the terms of sale, may hold,
retain, possess and dispose of such Equipment Notes in their own
absolute right without further accountability.
(2) Receipt of Trustee Shall Discharge Purchaser. The receipt
of the Trustee making such sale shall be a sufficient discharge to any
purchaser for his purchase money, and, after paying such purchase money
and receiving such receipt, such purchaser or its personal
representative or assigns shall not be obliged to see to the
application of such
<PAGE> 40
35
purchase money, or be in any way answerable for any loss,
misapplication or non-application thereof.
(3) Application of Moneys Received upon Sale. Any moneys
collected by the Trustee upon any sale made either under the power of
sale given by this Agreement or otherwise for the enforcement of this
Agreement shall be applied as provided in Section 4.02.
Section 6.03. Judicial Proceedings Instituted by Trustee;
Trustee May Bring Suit. If there shall be a failure to make payment of the
principal of, premium, if any, or interest on any Equipment Note, or if there
shall be any failure to pay Rent (as defined in the relevant Lease) under any
Lease when due and payable, then the Trustee, in its own name and as trustee of
an express trust, as holder of such Equipment Notes, to the extent permitted by
and in accordance with the terms of the Intercreditor Agreement and the
Financing Documents (subject to the rights of the applicable Owner Trustee or
Owner Participant to cure any such failure to pay principal of, premium, if any,
or interest on any Equipment Note or to pay Rent under any Lease in accordance
with the applicable Indenture), shall be entitled and empowered to institute any
suits, actions or proceedings at law, in equity or otherwise, for the collection
of the sums so due and unpaid on such Equipment Notes or under such Lease and
may prosecute any such claim or proceeding to judgment or final decree with
respect to the whole amount of any such sums so due and unpaid.
Section 6.04. Control by Certificateholders. Subject to
Section 6.03 and the Intercreditor Agreement, the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less than
a majority in interest in the Trust shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee with respect to the Trust or pursuant to the terms of the Intercreditor
Agreement, or exercising any trust or power conferred on the Trustee under this
Agreement or the Intercreditor Agreement, including any right of the Trustee as
Controlling Party under the Intercreditor Agreement or as holder of the
Equipment Notes, provided that:
(1) such Direction shall not be in conflict with any rule of
law or with this Agreement and would not involve the Trustee in
personal liability or expense,
(2) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Certificateholders not
taking part in such Direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such Direction.
Section 6.05. Waiver of Past Defaults. Subject to the
Intercreditor Agreement, the Certificateholders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in the Trust (i) may on behalf of all of the Certificateholders waive any past
Event of Default hereunder and its consequences or (ii) if the Trustee is the
Controlling Party, may direct the Trustee to instruct the applicable Loan
Trustee to waive any past Indenture Default under any Indenture and its
consequences, and thereby annul any
<PAGE> 41
36
Direction given by such Certificateholders or the Trustee to such Loan Trustee
with respect thereto, except a default:
(1) in the deposit of any Scheduled Payment or Special Payment
under Section 4.01 or in the distribution of any payment under Section
4.02 on the Certificates, or
(2) in the payment of the principal of (premium, if any) or
interest on the Equipment Notes, or
(3) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of each
Certificateholder holding an Outstanding Certificate affected thereby.
Upon any such waiver, such default shall cease to exist with
respect to the Certificates and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose and any direction given by the
Trustee on behalf of the Certificateholders to the relevant Loan Trustee shall
be annulled with respect thereto; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Upon any such waiver, the Trustee shall vote the Equipment Notes issued
under the relevant Indenture to waive the corresponding Indenture Default.
Section 6.06. Right of Certificateholders to Receive Payments
Not to Be Impaired. Anything in this Agreement to the contrary notwithstanding,
including, without limitation, Section 6.07 hereof, but subject to the
Intercreditor Agreement, the right of any Certificateholder to receive
distributions of payments required pursuant to Section 4.02 hereof on the
Certificates when due, or to institute suit for the enforcement of any such
payment on or after the applicable Regular Distribution Date or Special
Distribution Date, shall not be impaired or affected without the consent of such
Certificateholder.
Section 6.07. Certificateholders May Not Bring Suit Except
Under Certain Conditions. A Certificateholder shall not have the right to
institute any suit, action or proceeding at law or in equity or otherwise with
respect to this Agreement, for the appointment of a receiver or for the
enforcement of any other remedy under this Agreement, unless:
(1) such Certificateholder previously shall have given written
notice to the Trustee of a continuing Event of Default;
(2) Certificateholders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than 25% of the
Trust shall have requested the Trustee in writing to institute such
action, suit or proceeding and shall have offered to the Trustee
indemnity as provided in Section 7.03(e);
(3) the Trustee shall have refused or neglected to institute
such an action, suit or proceeding for 60 days after receipt of such
notice, request and offer of indemnity; and
(4) no direction inconsistent with such written request shall
have been given to the Trustee during such 60-day period by
Certificateholders holding Certificates
<PAGE> 42
37
evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in the Trust.
It is understood and intended that no one or more of the
Certificateholders shall have any right in any manner whatsoever hereunder or
under the Certificates to (i) surrender, impair, waive, affect, disturb or
prejudice any property in the Trust Property or the lien of any Indenture on any
property subject thereto, or the rights of the Certificateholders or the holders
of the Equipment Notes, (ii) obtain or seek to obtain priority over or
preference with respect to any other such Certificateholder or (iii) enforce any
right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all the Certificateholders subject to the
provisions of this Agreement.
Section 6.08. Remedies Cumulative. Every remedy given
hereunder to the Trustee or to any of the Certificateholders shall not be
exclusive of any other remedy or remedies, and every such remedy shall be
cumulative and in addition to every other remedy given hereunder or now or
hereafter given by statute, law, equity or otherwise.
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities. (a) Except
during the continuation of an Event of Default, the Trustee undertakes to
perform such duties as are specifically set forth in this Agreement, and no
implied covenants or obligations shall be read into this Agreement against the
Trustee.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Agreement, 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 its own affairs.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section; and
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts.
(d) Whether or not herein expressly so provided, every
provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
<PAGE> 43
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Section 7.02. Notice of Defaults. As promptly as practicable
after, and in any event within 90 days after, the occurrence of any default (as
such term is defined below) hereunder, the Trustee shall transmit by mail to the
Company, the Owner Trustees, the Owner Participants, the Loan Trustees and the
Certificateholders in accordance with Section 313(c) of the Trust Indenture Act,
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
default on the payment of the principal, premium, if any, or interest on any
Equipment Note held in the Trust, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a trust committee of directors and/or Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interests of
the Certificateholders. For the purpose of this Section, the term "default"
means any event that is, or after notice or lapse of time or both would become,
an Event of Default.
Section 7.03. Certain Rights of Trustee. Subject to the
provisions of Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a written description of the subject
matter thereof accompanied by an Officer's Certificate and an Opinion
of Counsel as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officer's
Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement at the Direction
of any of the Certificateholders pursuant to this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the cost, expenses and liabilities which
might be incurred by it in compliance with such Direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document;
<PAGE> 44
39
(g) the Trustee may execute any of the trusts or powers under
this Agreement or perform any duties under this Agreement either
directly or by or through agents or attorneys, and the Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
Direction of the Certificateholders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in
interest in the Trust relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; and
(i) the Trustee shall not be required to expend or risk its
own funds in the performance of any of its duties under this Agreement,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk is not reasonably assured to it.
Section 7.04. Not Responsible for Recitals or Issuance of
Certificates. The recitals contained herein and in the Certificates, except the
certificates of authentication, shall not be taken as the statements of the
Trustee, and the Trustee assumes no responsibility for their correctness.
Subject to Section 7.15, the Trustee makes no representations as to the validity
or sufficiency of this Agreement, any Equipment Notes, the Intercreditor
Agreement, the Deposit Agreement, the Escrow Agreement, the Certificates or any
other Financing Document, except that the Trustee hereby represents and warrants
that this Agreement has been, and the Intercreditor Agreement, the Registration
Rights Agreement, the Note Purchase Agreement, the Escrow Agreement and each
Certificate will be, executed, authenticated and delivered by one of its
officers who is duly authorized to execute, authenticate and deliver such
document on its behalf.
Section 7.05. May Hold Certificates. The Trustee, any Paying
Agent, Registrar or any of their Affiliates or any other agent in their
respective individual or any other capacity may become the owner or pledgee of
Certificates and, subject to Sections 310(b) and 311 of the Trust Indenture Act,
if applicable, may otherwise deal with the Company, the Owner Trustees or the
Loan Trustees with the same rights it would have if it were not Trustee, Paying
Agent, Registrar or such other agent.
Section 7.06. Money Held in Trust. Money held by the Trustee
or the Paying Agent in trust hereunder need not be segregated from other funds
except to the extent required herein or by law and neither the Trustee nor the
Paying Agent shall have any liability for interest upon any such moneys except
as provided for herein.
Section 7.07. Compensation and Reimbursement. The Company
agrees:
(1) to pay, or cause to be paid, to the Trustee from time to
time reasonable compensation for all services rendered by it hereunder
as set forth in a written fee letter dated the date hereof between the
Company and the Trustee, which letter is incorporated
<PAGE> 45
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herein by reference (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to
reimburse, or cause to be reimbursed, the Trustee upon its request for
all reasonable out-of-pocket expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of
this Agreement (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its undertaking its
normal administrative functions, or its negligence, willful misconduct
or bad faith or as may be incurred due to the Trustee's breach of its
representations and warranties set forth in Section 7.15; and
(3) to indemnify, or cause to be indemnified, the Trustee for,
and to hold it harmless against, any loss, liability, expense or Tax
(other than for or with respect to any Unindemnified Tax) incurred
without negligence, willful misconduct or bad faith, on its part,
arising out of or in connection with the acceptance or administration
of this Trust, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except for any
such loss, liability or expense incurred by reason of the Trustee's
breach of its covenants hereunder or under any Financing Document to
which it is a party or its representations and warranties set forth in
Section 7.15 or in any other Financing Document, the authorization or
giving or withholding of any future amendments, supplements, waivers or
consents with respect hereto or any of the Financing Documents, which
amendments, supplements, waivers or consents are not required pursuant
to the terms of the Financing Documents and not requested by the
Company, any loss of tax benefits, any Unindemnified Tax, or increase
in tax liability under any tax law whether or not the Company is
required to indemnify thereof or pursuant to this Agreement or any
costs associated with overhead or normal administration hereunder or
any voluntary resignation pursuant to Section 7.09.
With respect to paragraph (3) above, the Trustee shall notify
the Company promptly of any claim for which it may seek indemnity and the
Company shall make payment on any such claim within 30 days of written demand
thereof (delivered together with supporting documentation). The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel with the consent of the Company and the Company will pay
the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made, in settlement or otherwise, without its consent.
With respect to any Tax other than an Unindemnified Tax, the
Trustee shall be entitled to reimbursement from, and shall have a lien prior to
the Certificates upon, the Trust Property for any such Tax incurred without
negligence, bad faith or willful misconduct, on its part, arising out of or in
connection with the acceptance or administration of such Trust (other than any
Tax attributable to the Trustee's compensation for serving as such), including
any costs and expenses incurred in contesting the imposition of any such Tax. If
the Trustee reimburses itself from the Trust Property of such Trust for any such
Tax, it will mail a brief report within 30 days setting forth the circumstances
thereof to all Certificateholders as their names and addresses appear in the
Register.
<PAGE> 46
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Section 7.08. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be eligible to act as a
trustee under Section 310(a) of the Trust Indenture Act and shall have a
combined capital and surplus of at least $75,000,000 (or a combined capital and
surplus in excess of $5,000,000 and the obligations of which, whether now in
existence or hereafter incurred, are fully and unconditionally guaranteed by a
corporation organized and doing business under the laws of the United States,
any state or territory thereof or of the District of Columbia and having a
combined capital and surplus of at least $75,000,000). If such corporation
publishes reports of conditions at least annually, pursuant to law or to the
requirements of federal, state, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section 7.08, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of conditions so
published.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.08 to act as Trustee, the
Trustee shall resign immediately as Trustee in the manner and with the effect
specified in Section 7.09.
Section 7.09. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 7.10.
(b) The Trustee may resign at any time as trustee by giving
prior written notice thereof to the Company, the Authorized Agents, the Owner
Trustees and the Loan Trustees. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Company, the Authorized Agents, the
Owner Trustees, the Loan Trustees and the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Direction of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust
delivered to the Trustee and to the Company, the Owner Trustees and the Loan
Trustees.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310 of the
Trust Indenture Act, if applicable, after written request therefor by
the Company or by any Certificateholder who has been a bona fide
Certificateholder for at least six months; or
(2) the Trustee shall cease to be eligible under Section 7.08
and shall fail to resign after written request therefor by the Company
or by any such Certificateholder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
<PAGE> 47
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then, in any case, (i) the Company may remove the Trustee or (ii) any
Certificateholder who has been a bona fide Certificateholder for at least six
months may, on behalf of itself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(e) If a Responsible Officer of the Trustee shall obtain
actual knowledge of an Avoidable Tax which has been or is likely to be asserted,
the Trustee shall promptly notify the Company and shall, within 30 days of such
notification, resign hereunder unless within such 30-day period the Trustee
shall have received notice that the Company has agreed to pay such tax. The
Company shall promptly appoint a successor Trustee in a jurisdiction where there
are no Avoidable Taxes.
(f) If the Trustee shall resign, be removed or become
incapable of acting or if a vacancy shall occur in the office of the Trustee for
any cause, the Company shall promptly appoint a successor Trustee. If, within
one year after such resignation, removal or incapability, or other occurrence of
such vacancy, a successor Trustee shall be appointed by Direction of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust
delivered to the Company, the Owner Trustees, the Loan Trustees and the retiring
Trustee, and the Company approves such appointment, which approval shall not be
unreasonably withheld, then the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee and
supersede the successor Trustee appointed as provided above. If no successor
Trustee shall have been so appointed as provided above and accepted appointment
in the manner hereinafter provided, any Certificateholder who has been a bona
fide Certificateholder for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(g) The successor Trustee shall give notice of the resignation
and removal of the Trustee and appointment of the successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Certificateholders as their names and addresses appear in the Register. Each
notice shall include the name of such successor Trustee and the address of its
Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder shall execute and deliver to the Company,
the Authorized Agents, the Owner Trustees and the Loan Trustees and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring Trustee
shall execute and deliver an instrument transferring to such successor Trustee
all such rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all Trust Property held
by such retiring Trustee hereunder, subject nevertheless to its lien, if any,
provided for in Section 7.07. Upon request of any such successor Trustee, the
Company, the retiring Trustee and such successor Trustee shall execute and
deliver any and all instruments containing such provisions as shall be necessary
or desirable to transfer and confirm to, and for more fully and certainly
vesting in, such successor Trustee all such rights, powers and trusts.
<PAGE> 48
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No institution shall accept its appointment as a Trustee
hereunder unless at the time of such acceptance such institution shall be
qualified and eligible under this Article VII.
Section 7.11. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article VII, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Certificates shall have been
executed or authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such execution or authentication and deliver the Certificates so
executed or authenticated with the same effect as if such successor Trustee had
itself executed or authenticated such Certificates.
Section 7.12. Maintenance of Agencies. (a) There shall at all
times be maintained an office or agency in the location set forth in Section
12.03 where Certificates may be presented or surrendered for registration of
transfer or for exchange, and for payment thereof and where notices and demands
to or upon the Trustee in respect of such certificates or this Agreement may be
served; provided, however, that, if it shall be necessary that the Trustee
maintain an office or agency in another location (e.g., the Certificates shall
be represented by Definitive Certificates and shall be listed on a national
securities exchange), the Trustee will make all reasonable efforts to establish
such an office or agency. Written notice of the location of each such other
office or agency and of any change of location thereof shall be given by the
Trustee to the Company, the Owner Trustees, the Loan Trustees (in the case of
any Owner Trustee or Loan Trustee, at its address specified in the Financing
Documents or such other address as may be notified to the Trustee) and the
Certificateholders. In the event that no such office or agency shall be
maintained or no such notice of location or of change of location shall be
given, presentations and demands may be made and notices may be served at the
Corporate Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a Paying
Agent hereunder with respect to the Certificates. Each such Authorized Agent
shall be a bank or trust company, shall be a corporation organized and doing
business under the laws of the United States or any state, with a combined
capital and surplus of at least $75,000,000, or, if the Trustee shall be acting
as the Registrar or Paying Agent hereunder, a corporation having a combined
capital and surplus in excess of $5,000,000, the obligations of which are
guaranteed by a corporation organized and doing business under the laws of the
United States or any state, with a combined capital and surplus of at least
$75,000,000, and shall be authorized under such laws to exercise corporate trust
powers, subject to supervision by Federal or state authorities. The Trustee
shall initially be the Paying Agent and, as provided in Section 3.04, Registrar
hereunder with respect to the Certificates. Each Registrar shall furnish to the
Trustee, at stated intervals of not more than six months, and at such other
times as the Trustee may request in writing, a copy of the Register maintained
by such Registrar.
<PAGE> 49
44
(c) Any corporation into which any Authorized Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any Authorized
Agent shall be a party, or any corporation succeeding to the corporate trust
business of any Authorized Agent, shall be the successor of such Authorized
Agent hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the parties hereto or such Authorized Agent or such successor
corporation.
(d) Any Authorized Agent may at any time resign by giving
written notice of resignation to the Trustee, the Company, the Owner Trustees
and the Loan Trustees. The Company may, and at the request of the Trustee shall,
at any time terminate the agency of any Authorized Agent by giving written
notice of termination to such Authorized Agent and to the Trustee. Upon the
resignation or termination of an Authorized Agent or in case at any time any
such Authorized Agent shall cease to be eligible under this Section (when, in
either case, no other Authorized Agent performing the functions of such
Authorized Agent shall have been appointed), the Company shall promptly appoint
one or more qualified successor Authorized Agents, reasonably satisfactory to
the Trustee, to perform the functions of the Authorized Agent which has resigned
or whose agency has been terminated or who shall have ceased to be eligible
under this Section. The Company shall give written notice of any such
appointment made by it to the Trustee, the Owner Trustees and the Loan Trustees;
and in each case the Trustee shall mail notice of such appointment to all
Certificateholders as their names and addresses appear on the Register.
(e) The Company agrees to pay, or cause to be paid, from time
to time to each Authorized Agent reasonable compensation for its services and to
reimburse it for its reasonable expenses as set forth in the letter agreement
referred to in Section 7.07 hereof.
Section 7.13. Money for Certificate Payments to Be Held in
Trust. All moneys deposited with any Paying Agent for the purpose of any payment
on Certificates shall be deposited and held in trust for the benefit of the
Certificateholders entitled to such payment, subject to the provisions of this
Section. Moneys so deposited and held in trust shall constitute a separate trust
fund for the benefit of the Certificateholders with respect to which such money
was deposited.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Agreement or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Section 7.14. Registration of Equipment Notes in Name of
Subordination Agent. The Trustee agrees that all Equipment Notes to be purchased
by the Trust shall be issued in the name of the Subordination Agent or its
nominee and held by the Subordination Agent in trust for the benefit of the
Certificateholders, or, if not so held, the Subordination Agent or its nominee
shall be reflected as the owner of such Equipment Notes in the register of the
issuer of such Equipment Notes.
<PAGE> 50
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Section 7.15. Representations and Warranties of Trustee. The
Trustee hereby represents and warrants on the Transfer Date that:
(a) the Trustee is a Delaware banking corporation organized
and validly existing in good standing under the laws of the State of Delaware;
(b) the Trustee has full power, authority and legal right to
receive the Trust Property assigned by the Related Trustee, assume the
obligations under, and perform, the Assignment and Assumption Agreement, this
Agreement, the Intercreditor Agreement, the Registration Rights Agreement, the
Escrow Agreement, the Note Purchase Agreement and the Financing Documents to
which it is a party and has taken all necessary action to authorize such
receipt, assumption, and performance by it of the Assignment and Assumption
Agreement, this Agreement, the Intercreditor Agreement, the Registration Rights
Agreement, the Escrow Agreement, the Note Purchase Agreement and the Financing
Documents to which it is a party;
(c) the receipt of the Trust Property under the Assignment and
Assumption Agreement, and the performance by the Trustee of the Assignment and
Assumption Agreement, this Agreement, the Intercreditor Agreement, the
Registration Rights Agreement, the Escrow Agreement, the Note Purchase Agreement
and the Financing Documents to which it is a party (i) will not violate any
provision of United States federal law or the law of the state of the United
States where it is located governing the banking and trust powers of the Trustee
or any order, writ, judgment, or decree of any court, arbitrator or governmental
authority applicable to the Trustee or any of its assets, (ii) will not violate
any provision of the articles of association or by-laws of the Trustee, and
(iii) will not violate any provision of, or constitute, with or without notice
or lapse of time, a default under, or result in the creation or imposition of
any lien on any properties included in the Trust Property pursuant to the
provisions of any mortgage, indenture, contract, agreement or other undertaking
to which it is a party, which violation, default or lien could reasonably be
expected to have an adverse effect on the Trustee's performance or ability to
perform its duties hereunder or thereunder or on the transactions contemplated
herein or therein;
(d) the receipt of the Trust Property under the Assignment and
Assumption Agreement and the performance by the Trustee of the Assignment and
Assumption Agreement, this Agreement, the Intercreditor Agreement, the
Registration Rights Agreement, the Escrow Agreement, the Note Purchase
Agreement, and the Financing Documents to which it is a party will not require
the authorization, consent, or approval of, the giving of notice to, the filing
or registration with, or the taking of any other action in respect of, any
governmental authority or agency of the United States or the state of the United
States where it is located regulating the banking and corporate trust activities
of the Trustee; and
(e) this Assignment and Assumption Agreement has been duly
executed and delivered by the Trustee and this Agreement, the Assignment and
Assumption Agreement, the Intercreditor Agreement, the Registration Rights
Agreement, the Escrow Agreement, the Note Purchase Agreement, and the Financing
Documents to which it is a party constitute the legal, valid, and binding
agreements of the Trustee, enforceable against it in accordance with their
respective terms, provided that enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally
<PAGE> 51
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and (ii) general principles of equity, regardless of whether applied in a
proceeding in equity or at law.
Section 7.16. Withholding Taxes, Information Reporting. The
Trustee, as trustee of the grantor trust created by this Agreement, shall
exclude and withhold from each distribution of principal, premium, if any, and
interest and other amounts due under this Agreement or under the Certificates
any and all withholding taxes applicable thereto as required by law. The Trustee
agrees to act as such withholding agent and, in connection therewith, whenever
any present or future taxes or similar charges are required to be withheld with
respect to any amounts payable in respect of the Certificates, to withhold such
amounts and timely pay the same to the appropriate authority in the name of and
on behalf of the Certificateholders, that it will file any necessary withholding
tax returns or statements when due, and that, as promptly as possible after the
payment thereof, it will deliver to each such Certificateholder appropriate
documentation showing the payment thereof, together with such additional
documentary evidence as such Certificateholders may reasonably request from time
to time. The Trustee agrees to file any other information reports as it may be
required to file under United States law. Each Certificateholder or Investor
that is not a United States person within the meaning of Section 7701(a)(30) of
the Internal Revenue Code, as amended, by its acceptance of a Certificate or a
beneficial interest therein, agrees to indemnify and hold harmless the Trust and
the Trustee from and against any improper failure to withhold taxes from amounts
payable to it or for its benefit, other than an improper failure attributable to
the gross negligence or willful misconduct of the Trustee.
Section 7.17. Trustee's Liens. The Trustee in its individual
capacity agrees that it will at its own cost and expense promptly take any
action as may be necessary to duly discharge and satisfy in full any mortgage,
pledge, lien, charge, encumbrance, security interest or claim ("Trustee's
Liens") on or with respect to the Trust Property which is attributable to the
Trustee either (i) in its individual capacity and which is unrelated to the
transactions contemplated by this Agreement, the Intercreditor Agreement, the
Note Purchase Agreement or the Financing Documents, or (ii) as Trustee hereunder
or in its individual capacity and which arises out of acts or omissions on the
part of the Trustee which are not contemplated by this Agreement.
Section 7.18. Preferential Collection of Claims. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship listed in Section 311(b) of the Trust Indenture Act. If
the Trustee shall resign or be removed as Trustee, it shall be subject to
Section 311(a) of the Trust Indenture Act to the extent provided therein.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and
Addresses of Certificateholders. The Company will furnish to the Trustee within
15 days after each Record Date with respect to a Scheduled Payment, and at such
other times as the Trustee may request in writing within 30 days after receipt
by the Company of any such request, a list, in such form as the Trustee may
reasonably require, of all information in the possession or control of the
<PAGE> 52
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Company as to the names and addresses of the Certificateholders, in each case as
of a date not more than 15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee is the sole Registrar, no such
list need be furnished; and provided further, however, that no such list need be
furnished for so long as a copy of the Register is being furnished to the
Trustee pursuant to Section 7.12.
Section 8.02. Preservation of Information; Communications to
Certificateholders. The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Certificateholders contained
in the most recent list furnished to the Trustee as provided in Section 7.12 or
Section 8.01, as the case may be, and the names and addresses of
Certificateholders received by the Trustee in its capacity as Registrar, if so
acting. The Trustee may destroy any list furnished to it as provided in Section
7.12 or Section 8.01, as the case may be, upon receipt of a new list so
furnished.
Section 8.03. Reports by Trustee. Within 60 days after May 15
of each year commencing with the first full year following the date hereof, the
Trustee shall transmit to the Certificateholders, as provided in Section 313(c)
of the Trust Indenture Act, a brief report dated as of such May 15, if required
by Section 313(a) of the Trust Indenture Act.
Section 8.04. Reports by the Company. The Company shall:
(a) file with the Trustee, within 30 days after the Company is
required to file the same with the SEC, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may from time to time by
rules and regulations prescribe) which the Company is required to file
with the SEC pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended; or, if the Company is not required to
file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the SEC, in accordance with
rules and regulations prescribed by the SEC, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed in such rules and regulations;
(b) during any period, prior to the consummation of the
Exchange Offer and during which the Shelf Registration Statement is not
in effect, in which the Company is not subject to Section 13(a), 13(c)
or 15(d) under the Securities Exchange Act of 1934, make available to
any Holder of the Certificates in connection with any sale thereof and
any prospective purchaser of the Certificates from such Holder, in each
case upon request, the information specified in, and meeting the
requirements of, Rule 144A(d)(4) under the Securities Act but only for
so long as any of the Certificates remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act and, in any event, only until the second anniversary of
the Issuance Date;
(c) file with the Trustee and the SEC, in accordance with the
rules and regulations prescribed by the SEC, such additional
information, documents and reports with respect to compliance by the
Company with the conditions and covenants provided
<PAGE> 53
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for in this Agreement, as may be required by such rules and
regulations, including, in the case of annual reports, if required by
such rules and regulations, certificates or opinions of independent
public accountants, conforming to the requirements of Section 1.02;
(d) transmit to all Certificateholders, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act such
summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (c) of this
Section 8.04 as may be required by rules and regulations prescribed by
the SEC; and
(e) furnish to the Trustee, not less often than annually, a
brief certificate from the principal executive officer, principal
financial officer, any Vice President (or more senior ranking officer)
or the principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this
Agreement (it being understood that for purposes of this paragraph (e),
such compliance shall be determined without regard to any period of
grace or requirement of notice provided under this Agreement).
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of
Certificateholders. Without the consent of the Certificateholders, the Company
may (but will not be required to), and the Trustee (subject to Section 9.03)
shall, at the Company's request, at any time and from time to time, enter into
one or more agreements supplemental hereto or, if applicable, to the
Intercreditor Agreement, the Escrow Agreement, the Note Purchase Agreement, the
Deposit Agreement, the Registration Rights Agreement or any Liquidity Facility
in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein contained or of the Company's obligations under the
Note Purchase Agreement, the Registration Rights Agreement or any
Liquidity Facility; or
(2) to add to the covenants of the Company for the benefit of
the Certificateholders, or to surrender any right or power conferred
upon the Company in this Agreement, the Note Purchase Agreement, the
Registration Rights Agreement or any Liquidity Facility; or
(3) to correct or supplement any provision in this Agreement,
the Intercreditor Agreement, the Escrow Agreement, the Deposit
Agreement, the Note Purchase Agreement, the Registration Rights
Agreement or any Liquidity Facility which may be defective or
inconsistent with any other provision herein or therein or to cure any
ambiguity or correct any mistake or to modify any other provision with
respect to matters or questions arising under this Agreement, the
Escrow Agreement, the Deposit Agreement, the Note Purchase Agreement,
the Intercreditor Agreement, the Registration
<PAGE> 54
49
Rights Agreement or any Liquidity Facility, provided that any such
action shall not materially adversely affect the interests of the
Certificateholders; or
(4) to comply with any requirement of the SEC, any applicable
law, rules or regulations of any exchange or quotation system on which
the Certificates are listed, any regulatory body or the Registration
Rights Agreement to effectuate the Exchange Offer; or
(5) to modify, eliminate or add to the provisions of this
Agreement to such extent as shall be necessary to continue the
qualification of this Agreement (including any supplemental agreement)
under the Trust Indenture Act or under any similar Federal statute
hereafter enacted, and to add to this Agreement such other provisions
as may be expressly permitted by the Trust Indenture Act, excluding,
however, the provisions referred to in Section 316(a)(2) of the Trust
Indenture Act as in effect at the date as of which this instrument was
executed or any corresponding provision in any similar Federal statute
hereafter enacted; or
(6) to evidence and provide for the acceptance of appointment
under this Agreement by the Trustee of a successor Trustee and to add
to or change any of the provisions of this Agreement as shall be
necessary to provide for or facilitate the administration of the Trust,
pursuant to the requirements of Section 7.10; or
(7) to provide the information required under Section 7.12 and
Section 12.03 as to the Trustee; or
(8) to modify or eliminate provisions relating to the transfer
or exchange of Exchange Certificates or the Initial Certificates upon
consummation of the Exchange Offer (as defined in the Registration
Rights Agreement) or effectiveness of the Shelf Registration Statement
or the Exchange Offer Registration Statement;
provided, however, that no such supplemental agreement shall adversely affect
the status of any Trust as a grantor trust under Subpart E, Part I of Subchapter
J of Chapter 1 of Subtitle A of the Internal Revenue Code of 1986, as amended,
for U.S. federal income tax purposes.
Section 9.02. Supplemental Agreements with Consent of
Certificateholders. With the consent of the Certificateholders holding
Certificates (including consents obtained in connection with a tender offer or
exchange offer for the Certificates) evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in the Trust, by Direction of
said Certificateholders delivered to the Company and the Trustee, the Company
may (with the consent of the Owner Trustees, if any, which consent shall not be
unreasonably withheld), and the Trustee (subject to Section 9.03) shall, enter
into an agreement or agreements for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement,
the Intercreditor Agreement, any Liquidity Facility, the Registration Rights
Agreement, the Escrow Agreement, the Deposit Agreement or the Note Purchase
Agreement to the extent applicable to such Certificateholders or of modifying in
any manner the rights and obligations of such Certificateholders under this
Agreement, the Intercreditor Agreement, any Liquidity Facility, the Registration
Rights Agreement, the Escrow Agreement, the Deposit
<PAGE> 55
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Agreement or the Note Purchase Agreement; provided, however, that no such
agreement shall, without the consent of the Certificateholder of each
Outstanding Certificate affected thereby:
(1) reduce in any manner the amount of, or delay the timing
of, any receipt by the Trustee (or, with respect to the Deposits, the
Certificateholders) of payments on the Equipment Notes or other Trust
Property held in the Trust or on the Deposits or distributions that are
required to be made herein on any Certificate, or change any date of
payment on any Certificate, or change the place of payment where, or
the coin or currency in which, any Certificate is payable, or impair
the right to institute suit for the enforcement of any such payment or
distribution on or after the Regular Distribution Date or Special
Distribution Date applicable thereto; or
(2) permit the disposition of any Equipment Note included in
the Trust Property except as permitted by this Agreement, or otherwise
deprive such Certificateholder of the benefit of the ownership of the
Equipment Notes in the Trust; or
(3) reduce the specified percentage of the aggregate
Fractional Undivided Interests of the Trust which is required for any
such supplemental agreement, or reduce such specified percentage
required for any waiver of compliance with certain provisions of this
Agreement or certain defaults hereunder and their consequences provided
for in this Agreement; or
(4) waive, amend or modify Section 2.4, 3.2 or 3.3 of the
Intercreditor Agreement in a manner adverse to the Certificateholders;
or
(5) modify any of the provisions of this Section 9.02 or
Section 6.05, except to increase any such percentage or to provide that
certain other provisions of this Agreement cannot be modified or waived
without the consent of the Certificateholder of each Certificate
affected thereby; or
(6) adversely affect the status of any Trust as a grantor
trust under Subpart E, Part I of Subchapter J of Chapter 1 of Subtitle
A of the Internal Revenue Code of 1986, as amended, for U.S. federal
income tax purposes.
It shall not be necessary for any Direction of
Certificateholders under this Section to approve the particular form of any
proposed supplemental agreement, but it shall be sufficient if such Direction
shall approve the substance thereof.
Section 9.03. Documents Affecting Immunity or Indemnity. If in
the opinion of the Trustee any document required to be executed by it pursuant
to the terms of Section 9.01 or 9.02 affects adversely any interest, right,
duty, immunity or indemnity in favor of the Trustee under this Agreement, the
Trustee may in its discretion decline to execute such document.
Section 9.04. Execution of Supplemental Agreements. In
executing, or accepting the additional trusts created by, any agreement
permitted by this Article or the modifications thereby of the trusts created by
this Agreement, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental agreement is authorized or permitted by this Agreement.
<PAGE> 56
51
Section 9.05. Effect of Supplemental Agreements. Upon the
execution of any agreement supplemental to this Agreement under this Article,
this Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every Holder
of a Certificate theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.06. Conformity with Trust Indenture Act. Every
supplemental agreement executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 9.07. Reference in Certificates to Supplemental
Agreements. Certificates authenticated and delivered after the execution of any
supplemental agreement pursuant to this Article may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
agreement; and, in such case, suitable notation may be made upon Outstanding
Certificates after proper presentation and demand.
ARTICLE X
AMENDMENTS TO INDENTURES AND FINANCING DOCUMENTS
Section 10.01. Amendments and Supplements to Indentures and
Financing Documents. In the event that the Trustee, as holder (or beneficial
owner through the Subordination Agent) of any Equipment Note in trust for the
benefit of the Certificateholders or as Controlling Party under the
Intercreditor Agreement, receives (directly or indirectly through the
Subordination Agent) a request for a consent to any amendment, modification,
waiver or supplement under any Indenture, any other Financing Document, any
Equipment Note or any other related document, the Trustee shall forthwith send a
notice of such proposed amendment, modification, waiver or supplement to each
Certificateholder registered on the Register as of the date of such notice. The
Trustee shall request from the Certificateholders a Direction as to (a) whether
or not to take or refrain from taking (or direct the Subordination Agent to take
or refrain from taking) any action which a holder of such Equipment Note has the
option to direct, (b) whether or not to give or execute (or direct the
Subordination Agent to give or execute) any waivers, consents, amendments,
modifications or supplements as a holder of such Equipment Note or a Controlling
Party and (c) how to vote (or direct the Subordination Agent to vote) any
Equipment Note if a vote has been called for with respect thereto. Provided such
a request for Certificateholder Direction shall have been made, in directing any
action or casting any vote or giving any consent as the holder of any Equipment
Note (or in directing the Subordination Agent in any of the foregoing), (i)
other than as Controlling Party, the Trustee shall vote for or give consent to
any such action with respect to such Equipment Note in the same proportion as
that of (A) the aggregate face amounts of all Certificates actually voted in
favor of or for giving consent to such action by such Direction of
Certificateholders to (B) the aggregate face amount of all Outstanding
Certificates and (ii) as Controlling Party, the Trustee shall vote as directed
in such Certificateholder Direction by the Certificateholders evidencing a
Fractional Undivided Interest aggregating not less than a majority in interest
in the Trust. For purposes of the immediately preceding sentence, a Certificate
shall have been "actually voted" if the Holder of such Certificate has delivered
to the Trustee an instrument evidencing such Holder's consent to such Direction
prior to two Business Days before the Trustee directs such action or casts such
vote or
<PAGE> 57
52
gives such consent. Notwithstanding the foregoing, but subject to Section 6.04
and the Intercreditor Agreement, the Trustee may, in its own discretion and at
its own direction, consent and notify the relevant Loan Trustee of such consent
(or direct the Subordination Agent to consent and notify the Loan Trustee of
such consent) to any amendment, modification, waiver or supplement under the
relevant Indenture, any other Financing Document, any Equipment Note or any
other related document, if an Event of Default hereunder shall have occurred and
be continuing, or if such amendment, modification, waiver or supplement will not
materially adversely affect the interests of the Certificateholders.
ARTICLE XI
TERMINATION OF TRUST
Section 11.01. Termination of the Trust. The respective
obligations and responsibilities of the Company and the Trustee with respect to
the Trust shall terminate upon the distribution to all Holders of Certificates
and the Trustee of all amounts required to be distributed to them pursuant to
this Agreement and the disposition of all property held as part of the Trust
Property; provided, however, that in no event shall the Trust continue beyond
one hundred ten (110) years following the date of the earliest execution of this
Trust Agreement.
Notice of any termination, specifying the Distribution Date
upon which the Certificateholders may surrender their Certificates to the
Trustee for payment on the final Distribution Date and cancellation, shall be
mailed promptly by the Trustee to Certificateholders not earlier than the 60th
day and not later than the 20th day next preceding such final Distribution Date
specifying (A) the Distribution Date upon which the proposed final payment of
the Certificates will be made upon presentation and surrender of Certificates at
the office or agency of the Trustee therein specified, (B) the amount of any
such proposed final payment, and (C) that the Record Date otherwise applicable
to such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Certificates at the office or agency of the
Trustee therein specified. The Trustee shall give such notice to the Registrar
at the time such notice is given to Certificateholders. Upon presentation and
surrender of the Certificates in accordance with such notice, the Trustee shall
cause to be distributed to Certificateholders such final payments.
In the event that all of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. No additional interest shall accrue on the Certificates after the
Distribution Date specified in the first written notice. In the event that any
money held by the Trustee for the payment of distributions on the Certificates
shall remain unclaimed for two years (or such lesser time as the Trustee shall
be satisfied, after sixty days' notice from the Company, is one month prior to
the escheat period provided under applicable law) after the final distribution
date with respect thereto, the Trustee shall pay to each Loan Trustee the
appropriate amount of money relating to such Loan Trustee and shall give written
notice thereof to the related Owner Trustees, the Owner Participants and the
Company.
<PAGE> 58
53
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders. The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations, and liabilities of the parties
hereto or any of them.
Section 12.02. Certificates Nonassessable and Fully Paid.
Except as set forth in the last sentence of this Section 12.02,
Certificateholders shall not be personally liable for obligations of the Trust,
the Fractional Undivided Interests represented by the Certificates shall be
nonassessable for any losses or expenses of the Trust or for any reason
whatsoever, and Certificates, upon authentication thereof by the Trustee
pursuant to Section 3.03, are and shall be deemed fully paid. No
Certificateholder shall have any right (except as expressly provided herein) to
vote or in any manner otherwise control the operation and management of the
Trust Property, the Trust, or the obligations of the parties hereto, nor shall
anything set forth herein, or contained in the terms of the Certificates, be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association. Neither the existence of the Trust nor
any provision herein is intended to or shall limit the liability the
Certificateholders would otherwise incur if the Certificateholders owned Trust
Property as co-owners, or incurred any obligations of the Trust, directly rather
than through the Trust.
Section 12.03. Notices. (a) Unless otherwise specifically
provided herein, all notices required under the terms and provisions of this
Agreement shall be in English and in writing, and any such notice may be given
by United States mail, courier service or telecopy, and any such notice shall be
effective when received or, if made, given, furnished or filed by facsimile or
telecommunication transmission, when received unless received outside of
business hours, in which case on the next open of business on a Business Day,
if to the Company, to:
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85043
Attention: Vice President-
Treasurer
Facsimile: (602) 693-5886
if to the Trustee, to:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
<PAGE> 59
54
Attention: Corporate Trust Department
Facsimile: (302) 651-8882
Telephone: (302) 651-8584
(b) The Company or the Trustee, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Certificateholders shall be
mailed by first-class mail to the addresses for Certificateholders shown on the
Register kept by the Registrar. Failure so to mail a notice or communication or
any defect in such notice or communication shall not affect its sufficiency with
respect to other Certificateholders.
(d) If a notice or communication is mailed in the manner
provided above within the time prescribed, it is conclusively presumed to have
been duly given, whether or not the addressee receives it.
(e) If the Company mails a notice or communication to the
Certificateholders, it shall mail a copy to the Trustee and to the Paying Agent
at the same time.
(f) Notwithstanding the foregoing, all communications or
notices to the Trustee shall be deemed to be given only when received by a
Responsible Officer of the Trustee.
(g) The Trustee shall promptly furnish the Company with a copy
of any demand, notice or written communication received by the Trustee hereunder
from any Certificateholder, Owner Trustee or Loan Trustee.
Section 12.04. Governing Law. THIS AGREEMENT HAS BEEN
DELIVERED IN THE STATE OF NEW YORK AND THIS AGREEMENT AND THE CERTIFICATES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.05. Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or the Trust, or of the
Certificates or the rights of the Certificateholders thereof.
Section 12.06. Trust Indenture Act Controls. Upon the
occurrence of any Registration Event, this Agreement shall become subject to the
provisions of the Trust Indenture Act and shall, to the extent applicable, be
governed by such provisions. From and after any Registration Event, if any
provision of this Agreement limits, qualifies or conflicts with another
provision which is required to be included in this Agreement by the Trust
Indenture Act, the required provision shall control.
<PAGE> 60
55
Section 12.07. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 12.08. Successors and Assigns. All covenants,
agreements, representations and warranties in this Agreement by the Trustee and
the Company shall bind and, to the extent permitted hereby, shall inure to the
benefit of and be enforceable by their respective successors and assigns,
whether so expressed or not.
Section 12.09. Benefits of Agreement. Nothing in this
Agreement or in the Certificates, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the
Certificateholders, any benefit or any legal or equitable right, remedy or claim
under this Agreement.
Section 12.10. Legal Holidays. In any case where any Regular
Distribution Date or Special Distribution Date relating to any Certificate shall
not be a Business Day, then (notwithstanding any other provision of this
Agreement) payment need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on such
Regular Distribution Date or Special Distribution Date, and no interest shall
accrue during the intervening period.
Section 12.11. Counterparts. For the purpose of facilitating
the execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
Section 12.12. Intention of Parties. The parties hereto intend
that the Trust be classified for U.S. federal income tax purposes as a grantor
trust under Subpart E, Part I of Subchapter J of the Internal Revenue Code of
1986, as amended, and not as a trust or association taxable as a corporation or
as a partnership. Each Certificateholder and Investor, by its acceptance of its
Certificate or a beneficial interest therein, agrees to treat the Trust as a
grantor trust for all U.S. federal, state and local income tax purposes. The
powers granted and obligations undertaken pursuant to this Agreement shall be so
construed so as to further such intent.
<PAGE> 61
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized as of
the day and year first written above.
AMERICA WEST AIRLINES, INC.
By: /s/ W. Douglas Parker
----------------------------------------
Name: W. Douglas Parker
Title: Executive Vice President
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ James P. Lawler
----------------------------------------
Name: James P. Lawler
Title: Vice President
<PAGE> 62
EXHIBIT A
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS OF CERTIFICATES PURSUANT TO REGULATION S
--------------------------------------------------
[date]
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Attention: Corporate Trust Trustee Administration
Re: America West Airlines Pass Through Trust (the "Trust"),
Series 1999-1C-S, America West Airlines Pass Through
Certificates, Series 1999-1C-S (the "Certificates")
---------------------------------------------------
Sirs:
In connection with our proposed sale of $_____ Fractional
Undivided Interest of the Certificates, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the Securities
Act of 1933, as amended, and, accordingly, we represent that:
(1) the offer of the Certificates was not made to a person in
the United States or to or for the account or benefit of a U.S. person;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we
nor any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(a) or Rule
904(a) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period
and the provisions of Rule 903(b)(2) or Rule 904(b)(1) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance with
the applicable provisions of Rule 903(b)(2) or Rule 904(b)(1), as the case may
be.
You and America West Airlines, Inc. are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any
<PAGE> 63
A-2
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Transferor]
<PAGE> 64
EXHIBIT B
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS OF CERTIFICATES TO
NON-QIB INSTITUTIONAL ACCREDITED INVESTORS
------------------------------------------
[date]
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Attention: Corporate Trust Trustee Administration
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85043
AMERICA WEST AIRLINES
PASS THROUGH TRUST, SERIES 1999-1C-S (the "Trust")
Pass Through Certificates, Series 1999-1C-S
(the "Certificates")
--------------------
Ladies and Gentlemen:
In connection with our proposed purchase of U.S. $[_____________]
Fractional Undivided Interest of Certificates, we confirm that:
1. We understand that any subsequent transfer of the Certificates is
subject to certain restrictions and conditions set forth in the Pass Through
Trust Agreement, dated as of September 21, 1999, between America West Airlines,
Inc. (the "Company") and Wilmington Trust Company (the "Trustee") relating to
the Certificates, and we agree to be bound by, and not to resell, pledge or
otherwise transfer the Certificates except in compliance with, such restrictions
and conditions and the Securities Act of 1933, as amended (the "Securities
Act").
2. We are purchasing Certificates having an aggregate principal amount
of not less than $100,000 and each account (if any) for which we are purchasing
Certificates is purchasing Certificates having an aggregate principal amount of
not less than $100,000.
3. We understand that the Certificates have not been registered under
the Securities Act, that the Certificates are being sold to us in a transaction
that is exempt from the registration requirements of the Securities Act and that
the Certificates may not be offered or resold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that, if we should sell any
Certificates within two
<PAGE> 65
B-2
years after the later of the original issuance of such Certificate and the last
date on which such Certificate is owned by the Company, the Trustee or any
affiliate of any of such persons, we will do so only (A) to the Company, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) outside the United States in accordance with
Rule 904 of Regulation S under the Securities Act, (D) pursuant to the exemption
from registration provided by Rule 144 under the Securities Act or (E) pursuant
to an effective registration statement under the Securities Act, and we further
agree to provide to any person purchasing any of the Certificates from us a
notice advising such purchaser that resales of the Certificates are restricted
as stated herein.
4. We understand that, on any proposed resale of any Certificates, we
will be required to furnish to the Company and the Trustee such certifications,
legal opinions and other information as the Trustee may reasonably require to
confirm that the proposed sale complies with the foregoing restrictions. We
further understand that the Certificates purchased by us will bear a legend to
the foregoing effect.
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Certificates, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or their investments.
6. We are acquiring the Certificates purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion and not with a view to any distribution of the Certificates, subject,
nevertheless to the understanding that the disposition of our property shall at
all times be and remain within our control.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy thereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:
-------------------------------------------
Name:
Title:
2
<PAGE> 1
Exhibit 4.5
EXECUTION COPY
PASS THROUGH TRUST AGREEMENT
Dated as of September 21, 1999
between
AMERICA WEST AIRLINES, INC.
and
WILMINGTON TRUST COMPANY,
as Trustee
America West Airlines Pass Through Trust, Series 1999-1G-O
7.93% Initial Pass Through Certificates, Series 1999-1G-O
7.93% Exchange Pass Through Certificates, Series 1999-1G-O
<PAGE> 2
Reconciliation and tie between America West Airlines Pass Through Trust
Agreement, Series 1999-1G-O dated as of September 21, 1999, and the Trust
Indenture Act of 1939. This reconciliation does not constitute part of the Pass
Through Trust Agreement.
<TABLE>
<CAPTION>
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
--------------- -----------------
<S> <C> <C>
310(a)(1) 7.08
(a)(2) 7.08
312(a) 3.05; 8.01; 8.02
313(a) 7.06; 8.03
314(a) 8.04(a),(c) & (d)
(a)(4) 8.04(e)
(c)(1) 1.02
(c)(2) 1.02
(d)(1) 7.13; 11.01
(d)(2) 7.13; 11.01
(d)(3) 2.01
(e) 1.02
315(b) 7.02
316(a)(last sentence) 1.04(c)
(a)(1)(A) 6.04
(a)(1)(B) 6.05
(b) 6.06
(c) 1.04(e)
317(a)(1) 6.03
(b) 7.13
318(a) 12.06
</TABLE>
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
ARTICLE I DEFINITIONS ...........................................................................................2
Section 1.01. Definitions............................................................................2
Section 1.02. Compliance Certificates and Opinions..................................................13
Section 1.03. Form of Documents Delivered to Trustee................................................14
Section 1.04. Directions of Certificateholders......................................................14
ARTICLE II ORIGINAL ISSUANCE OF CERTIFICATES; ACQUISITION OF EQUIPMENT NOTES....................................16
Section 2.01. Issuance of Certificates; Acquisition of Equipment Notes..............................16
Section 2.02. Withdrawal of Deposits................................................................17
Section 2.03. Acceptance by Trustee.................................................................17
Section 2.04. Limitation of Powers..................................................................17
ARTICLE III THE CERTIFICATES....................................................................................17
Section 3.01. Title, Form, Denomination and Execution of Certificates...............................17
Section 3.02. Restrictive Legends...................................................................19
Section 3.03. Authentication of Certificates........................................................21
Section 3.04. Transfer and Exchange.................................................................21
Section 3.05. Book-Entry Provisions for Restricted Global Certificates and Regulation S
Global Certificates...................................................................22
Section 3.06. Special Transfer Provisions...........................................................24
Section 3.07. Mutilated, Destroyed, Lost or Stolen Certificates.....................................27
Section 3.08. Persons Deemed Owners.................................................................27
Section 3.09. Cancellation..........................................................................27
Section 3.10. Temporary Certificates................................................................27
Section 3.11. Limitation of Liability for Payments..................................................28
ARTICLE IV DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS......................................................28
Section 4.01. Certificate Account and Special Payments Account......................................28
Section 4.02. Distributions from Certificate Account and Special Payments Account...................29
Section 4.03. Statements to Certificateholders......................................................30
Section 4.04. Investment of Special Payment Moneys..................................................31
ARTICLE V THE COMPANY ..........................................................................................32
Section 5.01. Maintenance of Corporate Existence....................................................32
Section 5.02. Consolidation, Merger, etc............................................................32
ARTICLE VI DEFAULT .............................................................................................33
Section 6.01. Events of Default.....................................................................33
Section 6.02. Incidents of Sale of Equipment Notes..................................................35
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee May Bring Suit....................35
Section 6.04 Control by Certificateholders.........................................................36
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
Section 6.05. Waiver of Past Defaults...............................................................36
Section 6.06. Right of Certificateholders to Receive Payments Not to Be Impaired....................36
Section 6.07. Certificateholders May Not Bring Suit Except Under Certain Conditions.................37
Section 6.08. Remedies Cumulative...................................................................37
ARTICLE VII THE TRUSTEE ........................................................................................37
Section 7.01. Certain Duties and Responsibilities...................................................37
Section 7.02. Notice of Defaults....................................................................38
Section 7.03. Certain Rights of Trustee.............................................................38
Section 7.04. Not Responsible for Recitals or Issuance of Certificates..............................39
Section 7.05. May Hold Certificates.................................................................40
Section 7.06. Money Held in Trust...................................................................40
Section 7.07. Compensation and Reimbursement........................................................40
Section 7.08. Corporate Trustee Required; Eligibility...............................................41
Section 7.09 Resignation and Removal; Appointment of Successor.....................................41
Section 7.10. Acceptance of Appointment by Successor................................................43
Section 7.11. Merger, Conversion, Consolidation or Succession to Business...........................43
Section 7.12. Maintenance of Agencies...............................................................43
Section 7.13. Money for Certificate Payments to Be Held in Trust....................................45
Section 7.14. Registration of Equipment Notes in Name of Subordination Agent........................45
Section 7.15. Representations and Warranties of Trustee.............................................45
Section 7.16. Withholding Taxes, Information Reporting..............................................46
Section 7.17. Trustee's Liens.......................................................................47
Section 7.18. Preferential Collection of Claims.....................................................47
ARTICLE VIII CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE...................................................47
Section 8.01. The Company to Furnish Trustee with Names and Addresses of
Certificateholders....................................................................47
Section 8.02. Preservation of Information; Communications to Certificateholders.....................47
Section 8.03. Reports by Trustee....................................................................48
Section 8.04. Reports by the Company................................................................48
ARTICLE IX SUPPLEMENTAL AGREEMENTS..............................................................................49
Section 9.01. Supplemental Agreements Without Consent of Certificateholders.........................49
Section 9.02. Supplemental Agreements with Consent of Certificateholders............................50
Section 9.03. Documents Affecting Immunity or Indemnity.............................................51
Section 9.04. Execution of Supplemental Agreements..................................................51
Section 9.05. Effect of Supplemental Agreements.....................................................51
Section 9.06. Conformity with Trust Indenture Act...................................................52
Section 9.07. Reference in Certificates to Supplemental Agreements..................................52
ARTICLE X AMENDMENTS TO INDENTURES AND FINANCING DOCUMENTS......................................................52
Section 10.01. Amendments and Supplements to Indentures and Financing Documents......................52
</TABLE>
ii
<PAGE> 5
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
ARTICLE XI TERMINATION OF TRUST.................................................................................53
Section 11.01. Termination of the Trust..............................................................53
ARTICLE XII MISCELLANEOUS PROVISIONS............................................................................55
Section 12.01. Limitation on Rights of Certificateholders............................................55
Section 12.02. Certificates Nonassessable and Fully Paid.............................................55
Section 12.03. Notices...............................................................................55
Section 12.04. Governing Law.........................................................................56
Section 12.05. Severability of Provisions............................................................57
Section 12.06. Trust Indenture Act Controls..........................................................57
Section 12.07. Effect of Headings and Table of Contents..............................................57
Section 12.08. Successors and Assigns................................................................57
Section 12.09. Benefits of Agreement.................................................................57
Section 12.10. Legal Holidays........................................................................57
Section 12.11. Counterparts..........................................................................57
Section 12.12. Intention of Parties..................................................................57
</TABLE>
EXHIBIT A - FORM OF CERTIFICATE
EXHIBIT B - FORM OF CERTIFICATE TO REQUEST REMOVAL OF RESTRICTED LEGEND
EXHIBIT C - FORM OF CERTIFICATE TO BE DELIVERED BY AN INSTITUTIONAL ACCREDITED
INVESTOR
EXHIBIT D - FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT E - FORM OF NOTICE TO WITHHOLDING AGENT
iii
<PAGE> 6
PASS THROUGH TRUST AGREEMENT
This PASS THROUGH TRUST AGREEMENT, dated as of September 21,
1999 (the "Agreement"), between AMERICA WEST AIRLINES, INC., a Delaware
corporation, and WILMINGTON TRUST COMPANY, as Trustee, is made with respect to
the formation of America West Airlines Pass Through Trust, Series 1999-1G-O and
the issuance of 7.93% America West Airlines Pass Through Trust, Series 1999-1G-O
Pass Through Certificates representing fractional undivided interests in the
Trust.
WITNESSETH:
WHEREAS, the Company has obtained commitments from AVSA for
the delivery of certain Aircraft;
WHEREAS, the Company intends to finance (or refinance) the
acquisition of the Aircraft either (i) through separate leveraged lease
transactions in which the Company will lease such aircraft (collectively, the
"Leased Aircraft") or (ii) through separate secured loan transactions in which
the Company will own such Aircraft (collectively, the "Owned Aircraft");
WHEREAS, in the case of each Leased Aircraft, each Owner
Trustee, acting on behalf of the corresponding Owner Participant, will issue
pursuant to an Indenture, on a non-recourse basis, two series (or, subject to
satisfaction of certain preconditions contained in the Note Purchase Agreement,
three) of Equipment Notes in order to finance a portion of its purchase price of
such Leased Aircraft;
WHEREAS, in the case of each Owned Aircraft, the Company will
issue pursuant to an Indenture, on a recourse basis, two (or, subject to
satisfaction of certain preconditions contained in the Note Purchase Agreement,
three) series of Equipment Notes to finance a portion of the purchase price of
such Owned Aircraft;
WHEREAS, the Trustee, upon execution and delivery of this
Agreement, hereby declares the creation of the Trust for the benefit of the
Certificateholders, and the initial Certificateholders, as the grantors of the
Trust, by their respective acceptances of the Certificates, join in the creation
of this Trust with the Trustee;
WHEREAS, all Certificates to be issued by the Trust will
evidence fractional undivided interests in the Trust and will convey no rights,
benefits or interests in respect of any property other than the Trust Property
except for those Certificates to which an Escrow Receipt has been affixed;
WHEREAS, the Escrow Agent and the Initial Purchasers have
contemporaneously herewith entered into an Escrow Agreement with the Escrow
Paying Agent pursuant to which the Initial Purchasers have delivered to the
Escrow Agent the proceeds from the sale of the Certificates and have irrevocably
instructed the Escrow Agent to withdraw and pay funds from such proceeds upon
request and proper certification by the Trustee to purchase Equipment Notes;
<PAGE> 7
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WHEREAS, the Escrow Agent on behalf of the Certificateholders
has contemporaneously herewith entered into a Deposit Agreement with the
Depositary under which the Deposits referred to therein will be made and from
which it will withdraw funds to allow the Trustee to purchase Equipment Notes
from time to time prior to the Delivery Period Termination Date;
WHEREAS, pursuant to the terms and conditions of this
Agreement and the Note Purchase Agreement, upon or following delivery of an
Aircraft, the Trustee on behalf of the Trust, using funds withdrawn under the
Escrow Agreement, may purchase an Equipment Note having the same interest rate
as, and final legal distribution date not later than the final Regular
Distribution Date of, the Certificates issued hereunder and shall hold such
Equipment Note in trust for the benefit of the Certificateholders;
WHEREAS, to facilitate the sale of Equipment Notes to, and the
purchase of Equipment Notes by, the Trustee on behalf of the Trust, the Company
has duly authorized the execution and delivery of this Agreement as the
"issuer", as such term is defined in and solely for purposes of the Securities
Act, of the Certificates to be issued pursuant hereto and as the "obligor", as
such term is defined in and solely for purposes of the Trust Indenture Act of
1939, as amended, with respect to all such Certificates and is undertaking to
perform certain administrative and ministerial duties hereunder and is also
undertaking to pay the ongoing fees and expenses of the Trustee;
WHEREAS, all of the conditions and requirements necessary to
make this Agreement, when duly executed and delivered, a valid, binding and
legal instrument, enforceable in accordance with its terms and for the purposes
herein expressed, have been done, performed and fulfilled, and the execution and
delivery of this Agreement in the form and with the terms hereof have been in
all respects duly authorized; and
WHEREAS, upon issuance of the Exchange Certificates, if any,
or the effectiveness of the Shelf Registration Statement, this Agreement, as
amended or supplemented from time to time, will be subject to the provisions of
the Trust Indenture Act of 1939, and shall, to the extent applicable, be
governed by such provisions;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, and of other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms used in this Agreement, including in the
recitals to this Agreement, that are defined in this Article have the
meanings assigned to them in this Article, and include the plural as
well as the singular;
<PAGE> 8
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(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, or by the rules
promulgated under the Trust Indenture Act, have the meanings assigned
to them therein;
(3) all references in this Agreement to designated "Articles",
"Sections", "Subsections" and other subdivisions are to the designated
Articles, Sections, Subsections and other subdivisions of this
Agreement;
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to
any particular Article, Section, SubSection or other subdivision; and
(5) unless the context otherwise requires, whenever the words
"including", "include" or "includes" are used herein, it shall be
deemed to be followed by the phrase "without limitation".
Affiliate: Means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such Person. For the
purposes of this definition, "control" means the power, directly or
indirectly, to direct the management and policies of such Person,
whether through the ownership of voting securities or by contract or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
Agent Members: Has the meaning specified in Section 3.05.
Agreement: Has the meaning specified in the initial paragraph
hereto.
Aircraft: Has the meaning specified in the Note Purchase
Agreement.
Aircraft Purchase Agreement: Has the meaning specified in the
Note Purchase Agreement.
Applicable Delivery Date: Has the meaning specified in Section
2.01(b).
Applicable Participation Agreement: Has the meaning specified
in Section 2.01(b).
Assignment and Assumption Agreement: Means the assignment and
assumption agreement substantially in the form of Exhibit D hereto to
be executed and delivered in accordance with Section 11.01.
Authorized Agent: Means any Paying Agent or Registrar for the
Certificates.
Avoidable Tax: Means a state or local tax (i) upon (w) the
Trust, (x) the Trust Property, (y) Certificate-holders or (z) the
Trustee for which the Trustee is entitled to seek reimbursement from
the Trust Property, and (ii) which would be avoided if the Trustee were
located in another state, or jurisdiction within a state, within the
United
<PAGE> 9
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States. A tax shall not be an Avoidable Tax if the Company or any Owner
Trustee shall agree to pay, and shall pay, such tax.
AVSA: Means AVSA S.A.R.L., an affiliate of Airbus Industrie
G.I.E.
Business Day: Means any day other than a Saturday, a Sunday or
a day on which commercial banks are required or authorized to close in
Phoenix, Arizona, New York, New York, Wilmington, Delaware or, so long
as any Certificate is outstanding, the city and state in which the
Trustee or any Loan Trustee maintains its Corporate Trust Office or
receives and disburses funds.
Cedel: Means Cedel Bank societe anonyme.
Certificate: Means any one of the Initial Certificates or
Exchange Certificates and any such Certificates issued in exchange
therefor or replacement thereof pursuant to this Agreement.
Certificate Account: Means the account or accounts created and
maintained pursuant to Section 4.01(a).
Certificate Purchase Agreement: Means the Purchase Agreement
dated September 14, 1999 among the Initial Purchasers and the Company,
as the same may be amended, supplemented or otherwise modified from
time to time in accordance with its terms.
Certificateholder or Holder: Means the Person in whose name a
Certificate is registered in the Register.
Class D Certificateholder: Means, at any time, any holder of
one or more pass through certificates issued by the America West
Airlines Pass Through Trust, Series 1999-1D, if and when established.
Company: Means America West Airlines, Inc., a Delaware
corporation, or its successor in interest pursuant to Section 5.02, or
(only in the context of provisions hereof, if any, where such reference
is required for purposes of compliance with the Trust Indenture Act)
any other "obligor" (within the meaning of the Trust Indenture Act)
with respect to the Certificates.
Controlling Party: Has the meaning specified in the
Intercreditor Agreement.
Corporate Trust Office: With respect to the Trustee or any
Loan Trustee, means the office of such trustee in the city at which at
any particular time its corporate trust business shall be principally
administered.
Cut-off Date: Means the earlier of (a) the Delivery Period
Termination Date and (b) the date on which a Triggering Event occurs.
Definitive Certificates: Has the meaning specified in Section
3.01(e).
<PAGE> 10
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Delivery Date: Has the meaning specified in the Note Purchase
Agreement.
Delivery Notice: Has the meaning specified in the Note
Purchase Agreement.
Delivery Period Termination Date: Means the earlier of (a) May
30, 2000, or, if the Equipment Notes relating to all of the Aircraft
(or Substitute Aircraft in lieu thereof) have not been purchased by the
Trustee and the Other Trustee on or prior to such date due to any
reason beyond the control of the Company and not occasioned by the
Company's fault or negligence, August 31, 2000
and (b) the date on which Equipment Notes issued with respect to all of
the Aircraft (or Substitute Aircraft in lieu thereof) have been
purchased by the Trustee and the Other Trustee in accordance with the
Note Purchase Agreement.
Deposits: Has the meaning specified in the Deposit Agreement.
Deposit Agreement: Means the Deposit Agreement dated as of
September 21, 1999 relating to the Certificates between the Depositary
and the Escrow Agent, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Depositary: Means ABN AMRO Bank N.V., acting through its
Chicago branch.
Direction: Has the meaning specified in Section 1.04(a).
Distribution Date: Means any Regular Distribution Date or
Special Distribution Date as the context requires.
DTC: Means The Depository Trust Company, its nominees and
their respective successors.
EBO Date: Means the date set forth on Schedule 1 to the Lease
as the "EBO Date".
Equipment Notes: Means the equipment notes issued under the
Indentures.
Escrow Agent: Means, initially, Wilmington Trust Company.
Escrow Agreement: Means the Escrow and Paying Agent Agreement
dated as of September 21, 1999 relating to the Certificates, among the
Escrow Agent, the Escrow Paying Agent, the Trustee and the Initial
Purchasers, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
Escrow Paying Agent: Means the Person acting as paying agent
under the Escrow Agreement.
Escrow Receipt: Means the receipt substantially in the form
annexed to the Escrow Agreement representing a fractional undivided
interest in the funds held in escrow thereunder.
<PAGE> 11
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Euroclear: Means Morgan Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System.
Event of Default: Means an Indenture Default under any
Indenture pursuant to which Equipment Notes held by the Trust were
issued.
Exchange Certificates: Means the pass through certificates
substantially in the form of Exhibit A hereto issued in exchange for
the Initial Certificates pursuant to the Registration Rights Agreement
and authenticated hereunder.
Exchange Offer: Means the exchange offer which may be made
pursuant to the Registration Rights Agreement to exchange Initial
Certificates for Exchange Certificates.
Exchange Offer Registration Statement: Means the registration
statement that, pursuant to the Registration Rights Agreement, is filed
by the Company with the SEC with respect to the exchange of Initial
Certificates for Exchange Certificates.
Final Legal Distribution Date: Means July 2, 2020.
Final Withdrawal: Has the meaning specified in the Escrow
Agreement.
Final Withdrawal Date: Has the meaning specified in the Escrow
Agreement.
Final Withdrawal Notice: Has the meaning specified in Section
2.02.
Financing Documents: With respect to any Equipment Note, means
(i) the Indenture and the Participation Agreement relating to such
Equipment Note, and (ii) in the case of any Equipment Note related to a
Leased Aircraft, the Lease relating to such Leased Aircraft.
Fractional Undivided Interest: Means the fractional undivided
interest in the Trust that is evidenced by a Certificate.
Global Certificates: Has the meaning specified in Section
3.01(d).
Global Exchange Certificate: Has the meaning specified in
Section 3.01(f).
Indenture: Means each of the separate trust indentures and
mortgages relating to the Aircraft, each as specified or described in a
Delivery Notice delivered pursuant to the Note Purchase Agreement or
the related Participation Agreement, in each case as the same may be
amended, supplemented or otherwise modified from time to time in
accordance with its terms.
Indenture Default: With respect to any Indenture, means any
Event of Default (as such term is defined in such Indenture).
Initial Certificates: Means the certificates issued and
authenticated hereunder substantially in the form of Exhibit A hereto
other than the Exchange Certificates.
<PAGE> 12
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Initial Purchasers: Means, collectively, Morgan Stanley & Co.
Incorporated, Donaldson, Lufkin & Jenrette Securities Corporation,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and Salomon Smith
Barney Inc.
Institutional Accredited Investor: Means an institutional
investor that is an "accredited investor" within the meaning set forth
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act.
Intercreditor Agreement: Means the Intercreditor Agreement
dated as of September 21, 1999 among the Trustee, the Other Trustee,
the Liquidity Provider, the liquidity provider relating to the
Certificates issued under (and as defined in) the Other Pass Through
Trust Agreement, the Policy Provider, and Wilmington Trust Company, as
Subordination Agent and as trustee thereunder, as amended, supplemented
or otherwise modified from time to time in accordance with its terms.
Investors: Means the Initial Purchasers together with all
subsequent beneficial owners of the Certificates.
Issuance Date: Means the date of the issuance of the Initial
Certificates.
Lease: Means, with respect to each Leased Aircraft, the lease
between an Owner Trustee, as the lessor, and the Company, as the
lessee, referred to in the related Indenture, as such lease may be
amended, supplemented or otherwise modified in accordance with its
terms.
Leased Aircraft: Has the meaning specified in the second
recital to this Agreement.
Liquidity Facility: Means, initially, the Revolving Credit
Agreement dated as of September 21, 1999 relating to the Certificates,
between the Liquidity Provider and the Subordination Agent, as agent
and trustee for the Trustee, and, from and after the replacement of
such Agreement pursuant to the Intercreditor Agreement, the replacement
liquidity facility therefor, in each case as amended, supplemented or
otherwise modified from time to time in accordance with their
respective terms.
Liquidity Provider: Means, initially, Morgan Stanley Capital
Services, Inc. and any replacement or successor therefor appointed in
accordance with the Intercreditor Agreement.
Loan Trustee: With respect to any Equipment Note or the
Indenture applicable thereto, means the bank or trust company
designated as trustee under such Indenture, together with any successor
to such trustee appointed pursuant thereto.
Material Adverse Tax Event: Has the meaning specified in
Section 17.3(a)(4) of the Lease.
Non-U.S. Person: Means a Person that is not a "U.S. person",
as defined in Regulation S.
<PAGE> 13
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Note Purchase Agreement: Means the Note Purchase Agreement
dated as of September 21, 1999 among the Trustee, the Other Trustee,
the Company, the Escrow Agent, the Escrow Paying Agent and the
Subordination Agent, providing for, among other things, the purchase of
Equipment Notes by the Trustee on behalf of the Trust, as the same may
be amended, supplemented or otherwise modified from time to time, in
accordance with its terms.
Notice of Purchase Withdrawal: Has the meaning specified in
the Deposit Agreement.
Offering Circular: Means the Offering Memorandum dated
September 14, 1999 relating to the offering of the Certificates and the
certificates issued under the Other Pass Through Trust Agreement.
Officer's Certificate: Means a certificate signed, (a) in the
case of the Company, by any Vice President or more senior officer of
the Company or, (b) in the case of an Owner Trustee or a Loan Trustee,
a Responsible Officer of such Owner Trustee or such Loan Trustee, as
the case may be.
Opinion of Counsel: Means a written opinion of legal counsel
who (a) in the case of counsel for the Company may be (i) the General
Counsel of the Company, (ii) Cooley Godward LLP, (iii) Vedder, Price,
Kaufman & Kammholz, or (iv) such other counsel designated by the
Company and reasonably acceptable to the Trustee and (b) in the case of
counsel for any Owner Trustee or any Loan Trustee may be such counsel
as may be designated by any of them whether or not such counsel is an
employee of any of them, and who shall be reasonably acceptable to the
Trustee.
Other Pass Through Trust Agreement: Means the other America
West Airlines 1999-1 Pass Through Trust Agreement relating to America
West Airlines Pass Through Trust, Series 1999-1C-O, dated the date
hereof.
Other Trustee: Means the trustee under the Other Pass Through
Trust Agreement, and any successor or other trustee appointed as
provided therein.
Other Trust: Means the America West Airlines Pass Through
Trust, Series 1999-1C-O, created on the date hereof.
Outstanding: When used with respect to Certificates, means, as
of the date of determination, all Certificates theretofore
authenticated and delivered under this Agreement, except:
(i) Certificates theretofore canceled by the
Registrar or delivered to the Trustee or the Registrar for
cancellation;
(ii) Certificates for which money in the full amount
required to make the final distribution with respect to such
Certificates pursuant to Section 11.01 hereof has been
theretofore deposited with the Trustee in trust for the
Holders of
<PAGE> 14
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such Certificates as provided in Section 4.01 pending
distribution of such money to such Certificateholders pursuant
to payment of such final distribution; and
(iii) Certificates in exchange for or in lieu of which
other Certificates have been authenticated and delivered
pursuant to this Agreement.
Owned Aircraft: Has the meaning specified in the second
recital to this Agreement.
Owner Participant: With respect to any Equipment Note relating
to a Leased Aircraft, means the "Owner Participant" as referred to in
the Indenture pursuant to which such Equipment Note is issued and any
permitted successor or assign of such Owner Participant; and Owner
Participants at any time of determination means all of the Owner
Participants thus referred to in the Indentures.
Owner Trustee: With respect to any Equipment Note relating to
a Leased Aircraft, means the "Owner Trustee", as referred to in the
Indenture pursuant to which such Equipment Note is issued, not in its
individual capacity but solely as trustee; and Owner Trustees means all
of the Owner Trustees party to any of the Indentures.
Participation Agreement: Means each Participation Agreement to
be entered into by the Trustee pursuant to the Note Purchase Agreement,
as the same may be amended, supplemented or otherwise modified in
accordance with its terms.
Paying Agent: Means the paying agent maintained and appointed
for the Certificates pursuant to Section 7.12.
Permitted Investments: Means obligations of the United States
of America or agencies or instrumentalities thereof for the payment of
which the full faith and credit of the United States of America is
pledged, maturing in not more than 60 days after the date of
acquisition thereof or such lesser time as is required for the
distribution of any Special Payments on a Special Distribution Date.
Person: Means any person, including any individual,
corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, trustee, unincorporated
organization, or government or any agency or political subdivision
thereof.
Policy: Has the meaning specified in the Intercreditor
Agreement.
Policy Provider: Has the meaning specified in the
Intercreditor Agreement.
Policy Provider Agreement: Has the meaning specified in the
Intercreditor Agreement.
Policy Provider Default: Has the meaning specified in the
Intercreditor Agreement.
<PAGE> 15
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Pool Balance: Means, as of any date, (i) the original
aggregate face amount of the Certificates less (ii) the aggregate
amount of all payments made in respect of such Certificates other than
payments made in respect of interest or premium thereon or
reimbursement of any costs or expenses incurred in connection
therewith. The Pool Balance as of any Distribution Date shall be
computed after giving effect to the payment of principal, if any, on
the Equipment Notes or other Trust Property held in such Trust and the
distribution thereof to be made on such Distribution Date and the
distribution of the Final Withdrawal to be made on such Distribution
Date.
Pool Factor: Means, as of any date, the quotient (rounded to
the seventh decimal place) computed by dividing (i) the Pool Balance as
at such date by (ii) the original aggregate face amount of the
Certificates. The Pool Factor as of any Distribution Date shall be
computed after giving effect to the payment of principal, if any, on
the Equipment Notes or other Trust Property and the distribution
thereof to be made on such Distribution Date and the distribution of
the Final Withdrawal to be made on such Distribution Date.
PTC Event of Default: Means any failure to pay within 10
Business Days of the due date thereof: (i) the outstanding Pool Balance
on the Final Legal Distribution Date or (ii) interest due on the
Certificates on any Distribution Date (unless the Subordination Agent
shall have made an Interest Drawing or Drawings (as defined in the
Intercreditor Agreement), or a withdrawal or withdrawals pursuant to
Section 3.6(f) of the Intercreditor Agreement, with respect thereto in
an aggregate amount sufficient to pay such interest and shall have
distributed such amount to the Trustee).
QIB: Means a qualified institutional buyer as defined in Rule
144A.
Record Date: Means (i) for Scheduled Payments to be
distributed on any Regular Distribution Date, other than the final
distribution, the 15th day (whether or not a Business Day) preceding
such Regular Distribution Date, and (ii) for Special Payments to be
distributed on any Special Distribution Date, other than the final
distribution, the 15th day (whether or not a Business Day) preceding
such Special Distribution Date.
Register and Registrar: Mean the register maintained and the
registrar appointed pursuant to Sections 3.04 and 7.12.
Registration Event: Means the declaration of the effectiveness
by the SEC of the Exchange Offer Registration Statement or the Shelf
Registration Statement.
Registration Rights Agreement: Means the Exchange and
Registration Rights Agreement dated as of September 21, 1999, among the
Initial Purchasers, the Trustee, the Other Trustee and the Company, as
amended, supplemented or otherwise modified from time to time in
accordance with its terms.
Regular Distribution Date: With respect to distributions of
Scheduled Payments in respect of the Certificates, means each date
designated as a Regular Distribution Date in the Certificates issued
pursuant to this Agreement, until payment of all the Scheduled Payments
to be made under the Equipment Notes held in the Trust have been made;
<PAGE> 16
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provided, however, that, if any such day shall not be a Business Day,
the related distribution shall be made on the next succeeding Business
Day without additional interest.
Regulation S: Means Regulation S under the Securities Act or
any successor regulation thereto.
Regulation S Definitive Certificates: Has the meaning
specified in Section 3.01(e).
Regulation S Global Certificates: Has the meaning specified in
Section 3.01(d).
Related Pass Through Trust Agreement: Means the Pass Through
Trust Agreement relating to the America West Airlines Pass Through
Trust, Series 1999-1G-S, dated the date hereof, between the Company and
the institution acting as trustee thereunder, which agreement becomes
effective upon the execution and delivery of the Assignment and
Assumption Agreement pursuant to Section 11.01.
Related Trust: Means the America West Pass Through Trust,
Series 1999-1G-S, formed under the Related Pass Through Trust
Agreement.
Related Trustee: Means the trustee under the Related Pass
Through Trust Agreement.
Responsible Officer: With respect to the Trustee, any Loan
Trustee and any Owner Trustee, means any officer in the Corporate Trust
Office of the Trustee, Loan Trustee or Owner Trustee or any other
officer customarily performing functions similar to those performed by
the persons who at the time shall be such officers, respectively, or to
whom any corporate trust matter is referred because of his knowledge of
and familiarity with a particular subject.
Restricted Definitive Certificates: Has the meaning specified
in Section 3.01(e).
Restricted Global Certificate: Has the meaning specified in
Section 3.01(c).
Restricted Legend: Has the meaning specified in Section 3.02.
Restricted Period: Has the meaning specified in Section
3.01(d).
Rule 144A: Means Rule 144A under the Securities Act and any
successor rule thereto.
Scheduled Payment: With respect to any Equipment Note, means
(i) any payment of principal or interest on or in respect of such
Equipment Note (other than any such payment which is not in fact
received by the Subordination Agent within five days of the date on
which such payment is scheduled to be made) due from the obligor
thereon or (ii) any payment of interest on the Certificates with funds
drawn under any Liquidity Facility or any payment of interest on or
principal of the Certificates with funds drawn
<PAGE> 17
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under the Policy, which payment in any such case represents the
installment of principal at the stated maturity of such installment of
principal on such Equipment Note, the payment of regularly scheduled
interest accrued on the unpaid principal amount of such Equipment Note,
or both; provided that any payment of principal, premium, if any, or
interest resulting from the redemption or purchase of any Equipment
Note shall not constitute a Scheduled Payment.
SEC: Means the Securities and Exchange Commission, as from
time to time constituted or created under the United States Securities
Exchange Act of 1934, as amended, or, if at any time after the
execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties on such date.
Securities Act: Means the United States Securities Act of
1933, as amended from time to time, or any successor thereto.
Shelf Registration Statement: Means the shelf registration
statement which may be required to be filed by the Company with the SEC
pursuant to any Registration Rights Agreement, other than an Exchange
Offer Registration Statement.
Special Distribution Date: Means each date on which a Special
Payment is to be distributed as specified in this Agreement; provided,
however, that, if any such day shall not be a Business Day, the related
distribution shall be made on the next succeeding Business Day without
additional interest.
Special Redemption Premium: Means the premium payable by the
Company in respect of the Final Withdrawal pursuant to the Note
Purchase Agreement.
Special Payment: Means any payment (other than a Scheduled
Payment) in respect of, or any proceeds of, any Equipment Note or Trust
Indenture Estate (as defined in each Indenture) or Special Redemption
Premium.
Special Payments Account: Means the account or accounts
created and maintained pursuant to Section 4.01(b).
Subordination Agent: Has the meaning specified in the
Intercreditor Agreement.
Substitute Aircraft: Has the meaning specified in the Note
Purchase Agreement.
Tax: Means all license, recording, documentary, registration
and other similar fees and all taxes, levies, imposts, duties, charges,
assessments or withholdings of any nature whatsoever imposed by any
Taxing Authority, together with any penalties, additions to tax, fines
or interest thereon or additions thereto.
Taxing Authority: Means any federal, state or local government
or other taxing authority in the United States, any foreign government
or any political subdivision or taxing authority thereof, any
international taxing authority or any territory or possession of the
United States or any taxing authority thereof.
<PAGE> 18
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TIN: Has the meaning specified in Section 7.16.
Transfer Date: Has the meaning specified in Section 11.01.
Triggering Event: Has the meaning assigned to such term in the
Intercreditor Agreement.
Trust: Means the trust created by this Agreement, the estate
of which consists of the Trust Property.
Trust Indenture Act: Means the United States Trust Indenture
Act of 1939, as amended from time to time, or any successor thereto.
Trust Property: Means (i) the Equipment Notes held as the
property of the Trust and, subject to the Intercreditor Agreement, all
monies at any time paid thereon and all monies due and to become due
thereunder, (ii) funds from time to time deposited in the Certificate
Account and the Special Payments Account and, subject to the
Intercreditor Agreement, any proceeds from the sale by the Trustee
pursuant to Article VI hereof of any Equipment Note and (iii) all
rights of the Trust and the Trustee, on behalf of the Trust, under the
Intercreditor Agreement, the Escrow Agreement, the Note Purchase
Agreement, the Policy and the Liquidity Facilities, including, without
limitation, all rights to receive certain payments thereunder, and all
monies paid to the Trustee on behalf of the Trust pursuant to the
Intercreditor Agreement, the Policy or the Liquidity Facilities,
provided, that rights with respect to the Deposits or under the Escrow
Agreement, except for the right to direct withdrawals for the purchase
of Equipment Notes to be held herein, will not constitute Trust
Property.
Trustee: Means Wilmington Trust Company, or its successor in
interest, and any successor or other trustee appointed as provided
herein.
Trustee's Lien: Has the meaning specified in Section 7.17.
Unindemnified Tax: Means (i) any Tax imposed on the net
income, net worth or capital, or any franchise Tax or similar doing
business Tax, of the Pass Through Trustee (other than any such Tax
imposed as a result of the Company's assumption of the Equipment Notes
pursuant to the purchase of an aircraft on an EBO Date or a Material
Adverse Tax Event), (ii) any withholding Tax imposed by the United
States (including, without limitation, any withholding Tax imposed by
the United States which is imposed or increased as a result of the Pass
Through Trustee failing to deliver to the Company any certificate or
document necessary to establish that payments under this Agreement are
exempt from withholding Tax), and (iii) any Avoidable Tax.
Section 1.02. Compliance Certificates and Opinions. Upon any
application or request (except with respect to matters set forth in Article II)
by the Company, any Owner Trustee or any Loan Trustee to the Trustee to take any
action under any provision of this Agreement, the Company, such Owner Trustee or
such Loan Trustee, as the case may be, shall furnish to the Trustee (i) an
Officer's Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have
<PAGE> 19
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been complied with and (ii) an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Agreement relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement (other than a certificate
provided pursuant to Section 8.04(e)) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions in
this Agreement relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters and any such Person may certify or give an opinion
as to such matters in one or several documents.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement or, in respect of the Certificates, this
Agreement, they may, but need not, be consolidated and form one instrument.
Section 1.04. Directions of Certificateholders. (a) Any
direction, consent, request, demand, authorization, notice, waiver or other
action provided by this Agreement to be given or taken by Certificateholders (a
"Direction") may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Certificateholders in person or by an
agent or proxy duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required pursuant to this Agreement, to the Company or any Loan Trustee. Proof
of execution of any such instrument or of a writing appointing any such agent or
proxy shall be sufficient for any purpose of this Agreement and conclusive in
favor of the Trustee, the Company and any Loan Trustee, if made in the manner
provided in this Section.
<PAGE> 20
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(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the certificate of any notary public
or other officer of any jurisdiction authorized to take acknowledgments of deeds
or administer oaths that the Person executing such instrument acknowledged to
him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or such other officer and where such execution
is by an officer of a corporation or association or a member of a partnership,
on behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other reasonable manner
which the Trustee deems sufficient.
(c) In determining whether the Certificateholders of the
requisite Fractional Undivided Interests of Certificates Outstanding have given
any Direction under this Agreement, Certificates owned by the Company or any
Affiliate thereof shall be disregarded and deemed not to be Outstanding for
purposes of any such determination. In determining whether the Trustee shall be
protected in relying upon any such Direction, only Certificates which the
Trustee knows to be so owned shall be so disregarded. Notwithstanding the
foregoing, (i) if any such Person owns 100% of the Certificates Outstanding,
such Certificates shall not be so disregarded, and (ii) if any amount of
Certificates so owned by any such Person have been pledged in good faith, such
Certificates shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Certificates and that the pledgee is not the Company or any Affiliate thereof.
(d) For all purposes of this Agreement, all Initial
Certificates and all Exchange Certificates shall vote and take all other actions
of Certificateholders together as one series of Certificates.
(e) The Company may at its option, by delivery of an Officer's
Certificate to the Trustee, set a record date to determine the
Certificateholders entitled to give any Direction. Notwithstanding Section
316(c) of the Trust Indenture Act, such record date shall be the record date
specified in such Officer's Certificate, which shall be a date not more than 30
days prior to the first solicitation of Certificateholders in connection
therewith. If such a record date is fixed, such Direction may be given before or
after such record date, but only the Certificateholders of record at the close
of business on such record date shall be deemed to be Certificateholders for the
purposes of determining whether Certificateholders of the requisite proportion
of Outstanding Certificates have authorized or agreed or consented to such
Direction, and for that purpose the Outstanding Certificates shall be computed
as of such record date; provided that no such Direction by the
Certificateholders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Agreement not later than one
year after such record date.
(f) Any Direction by the Holder of any Certificate shall bind
the Holder of every Certificate issued upon the transfer thereof or in exchange
therefor or in lieu thereof, whether or not notation of such Direction is made
upon such Certificate.
<PAGE> 21
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(g) Except as otherwise provided in Section 1.04(c),
Certificates owned by or pledged to any Person shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority, or distinction as among all of the Certificates.
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES;
ACQUISITION OF EQUIPMENT NOTES
Section 2.01. Issuance of Certificates; Acquisition of
Equipment Notes. (a) The Trustee is hereby directed (i) to execute and deliver
the Intercreditor Agreement, the Registration Rights Agreement, the Escrow
Agreement and the Note Purchase Agreement on or prior to the Issuance Date, each
in the form delivered to the Trustee by the Company and (ii) subject to the
respective terms thereof, to perform its obligations thereunder. Upon request of
the Company and the satisfaction or waiver of the closing conditions specified
in the Certificate Purchase Agreement, the Trustee shall execute, deliver,
authenticate, issue and sell Certificates in authorized denominations equaling
in the aggregate the amount set forth, with respect to the Trust, in Schedule II
to the Certificate Purchase Agreement evidencing the entire ownership interest
in the Trust, which amount equals the maximum aggregate principal amount of
Equipment Notes which may be purchased by the Trustee pursuant to the Note
Purchase Agreement. Except as provided in Sections 3.04, 3.05, 3.06, 3.07 and
3.10 hereof, the Trustee shall not execute, authenticate or deliver Certificates
in excess of the aggregate amount specified in this paragraph.
(b) On or after the Issuance Date, the Company may deliver
from time to time to the Trustee a Delivery Notice relating to one or more
Equipment Notes. After receipt of a Delivery Notice and in any case no later
than one Business Day prior to a Delivery Date as to which such Delivery Notice
relates (the "Applicable Delivery Date") (or, if the Issuance Date is an
Applicable Delivery Date, on the Issuance Date), the Trustee shall (as and when
specified in the Delivery Notice) instruct the Escrow Agent to provide a Notice
of Purchase Withdrawal to the Depositary requesting (A) the withdrawal of one or
more Deposits on the Applicable Delivery Date in accordance with and to the
extent permitted by the terms of the Escrow Agreement and the Deposit Agreement
and (B) the payment of all, or a portion, of such Deposit or Deposits in an
amount equal in the aggregate to the purchase price of such Equipment Notes to
or on behalf of the Owner Trustee or the Company, as the case may be, issuing
such Equipment Notes, all as shall be described in the Delivery Notice; provided
that, if the Issuance Date is an Applicable Delivery Date, such purchase price
shall be paid from a portion of the proceeds of the sale of the Certificates.
The Trustee shall (as and when specified in such Delivery Notice), subject to
the conditions set forth in Section 2 of the Note Purchase Agreement, enter into
and perform its obligations under the Participation Agreement specified in such
Delivery Notice (the "Applicable Participation Agreement") and cause such
certificates, documents and legal opinions relating to the Trustee to be duly
delivered as required by the Applicable Participation Agreement. If at any time
prior to the Applicable Delivery Date, the Trustee receives a notice of
postponement pursuant to Section 2(e) or 2(f) of the Note Purchase Agreement,
then the Trustee shall give the Depositary (with a copy to the Escrow Agent) a
notice of cancellation of such Notice of Purchase Withdrawal relating to such
Deposit or
<PAGE> 22
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Deposits on such Applicable Delivery Date. Upon satisfaction of the conditions
specified in the Note Purchase Agreement and the Applicable Participation
Agreement, the Trustee shall purchase the applicable Equipment Notes with the
proceeds of the withdrawals of one or more Deposits made on the Applicable
Delivery Date in accordance with the terms of the Deposit Agreement and the
Escrow Agreement (or, if the Issuance Date is the Applicable Delivery Date with
respect to such Applicable Participation Agreement, from a portion of the
proceeds of the sale of the Certificates). The purchase price of such Equipment
Notes shall equal the principal amount of such Equipment Notes. Amounts
withdrawn from such Deposit or Deposits in excess of the purchase price of the
Equipment Notes or to the extent not applied on the Applicable Delivery Date to
the purchase price of the Equipment Notes, shall be re-deposited by the Trustee
with the Depositary on the Applicable Delivery Date in accordance with the terms
of the Deposit Agreement.
Section 2.02. Withdrawal of Deposits. If any Deposits remain
outstanding on the Business Day next succeeding the Cut-Off Date, (i) (A) the
Trustee shall give the Escrow Agent notice that the Trustee's obligation to
purchase Equipment Notes under the Note Purchase Agreement has terminated and
instruct the Escrow Agent to provide a notice of Final Withdrawal to the
Depositary substantially in the form of Exhibit B to the Deposit Agreement (the
"Final Withdrawal Notice") and (B) the Trustee will make a demand upon the
Company under the Note Purchase Agreement for an amount equal to the Special
Redemption Premium, if applicable, such payment to be made on the Final
Withdrawal Date.
Section 2.03. Acceptance by Trustee. The Trustee, upon the
execution and delivery of this Agreement, acknowledges its acceptance of all
right, title and interest in and to the Trust Property and declares that the
Trustee holds and will hold such right, title and interest for the benefit of
all then present and future Certificateholders, upon the trusts herein set
forth. Subject to Section 7.14, the Trustee shall take all actions reasonably
necessary to effect the registration of all such Equipment Notes in the name of
the Subordination Agent. By its payment for and acceptance of each Certificate
issued to it under this Agreement, each initial Certificateholder as grantor of
the Trust thereby joins in the creation and declaration of the Trust.
Section 2.04. Limitation of Powers. The Trust is constituted
solely for the purpose of making the investment in the Equipment Notes, and,
except as set forth herein, the Trustee shall not be authorized or empowered to
acquire any other investments or engage in any other activities and, in
particular, the Trustee shall not be authorized or empowered to do anything that
would cause such Trust to fail to qualify as a "grantor trust" for federal
income tax purposes (including as subject to this restriction, acquiring any
Aircraft (as defined in the respective Indentures) by bidding such Equipment
Notes or otherwise, or taking any action with respect to any such Aircraft once
acquired).
ARTICLE III
THE CERTIFICATES
Section 3.01. Title, Form, Denomination and Execution of
Certificates. (a) The Initial Certificates shall be known as the "7.93% Initial
Pass Through Certificates, Series 1999-1G-O" and the Exchange Certificates shall
be known as the "7.93% Exchange Pass Through
<PAGE> 23
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Certificates, Series 1999-1G-O", in each case, of the Trust. Each Certificate
will represent a fractional undivided interest in the Trust and shall be
substantially in the form set forth as Exhibit A hereto, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Agreement and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the Trustee or the officers executing
such Certificates, as evidenced by the Trustee's or officer's execution of the
Certificates (provided that such letters, numbers or other marks of
identification and such legends or endorsements are in a form acceptable to the
Company). At the Escrow Agent's request under the Escrow Agreement, the Trustee
shall affix the corresponding Escrow Receipt to each Certificate. In any event,
any transfer or exchange of any Certificate shall also effect a transfer or
exchange of the related Escrow Receipt. Prior to the Final Withdrawal Date, no
transfer or exchange of any Certificate shall be permitted unless the
Corresponding Escrow Receipt is attached thereto and also is so transferred or
exchanged. By acceptance of any Certificate to which an Escrow Receipt is
attached, each Holder of such a Certificate acknowledges and accepts the
restrictions on transfer of the Escrow Receipt set forth herein and in the
Escrow Agreement.
(b) The Initial Certificates shall be issued only in fully
registered form without coupons and only in denominations of $100,000 or
integral multiples of $1,000 in excess thereof, except that one Certificate may
be issued in a different denomination. The Exchange Certificates will be issued
in denominations of $1,000 or integral multiples thereof, except that one
Certificate may be issued in a different denomination. Each Certificate shall be
dated the date of its authentication. The aggregate Fractional Undivided
Interest of Certificates shall not at any time exceed $233,668,000.
(c) The Initial Certificates offered and sold in reliance on
Rule 144A shall be issued in the form of one or more Global Certificates
substantially in the form of Exhibit A hereto with such applicable legends as
are provided for in Section 3.02 (each a "Restricted Global Certificate") duly
executed and authenticated by the Trustee as hereinafter provided. Such
Restricted Global Certificates shall be in registered form and be registered in
the name of a nominee of DTC and deposited with the Trustee, at its Corporate
Trust Office, as custodian for DTC. The aggregate principal amount of any
Restricted Global Certificate may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for DTC for such
Restricted Global Certificate, as provided in Section 3.06 hereof, which
adjustments shall be conclusive as to the aggregate principal amount of any such
Global Certificate.
(d) The Initial Certificates offered and sold outside the
United States in reliance on Regulation S shall be issued in the form of one or
more global Certificates substantially in the form of Exhibit A hereto (each a
"Regulation S Global Certificate") duly executed and authenticated by the
Trustee as hereinafter provided. Such Regulation S Global Certificates shall be
in registered form and be registered in the name of a nominee of DTC and
deposited with the Trustee, at its Corporate Trust Office, as custodian for DTC,
for credit initially and during the Restricted Period (hereinafter defined) to
the respective accounts of beneficial owners of such Certificates (or to such
other accounts as they may direct) at Morgan Guaranty Trust Company of New York,
Brussels office, as operator of Euroclear or Cedel. As
<PAGE> 24
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used herein, the term "Restricted Period", with respect to the Regulation S
Global Certificates offered and sold in reliance on Regulation S, means the
period of 40 consecutive days beginning on and including the later of (i) the
day on which the Certificates are first offered to persons other than
distributors (as defined in Regulation S) in reliance on Regulation S and (ii)
the date of the closing of the offering under the Certificate Purchase
Agreement. The aggregate principal amount of any Regulation S Global Certificate
may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for DTC for such Global Certificate, as
provided in Section 3.06 hereof, which adjustments shall be conclusive as to the
aggregate principal amount of any such Global Certificate. The Restricted Global
Certificate and Regulation S Global Certificate are sometimes collectively
referred to herein as the "Global Certificates".
(e) Initial Certificates offered and sold to any Institutional
Accredited Investor which is not a QIB in a transaction exempt from registration
under the Securities Act (and other than as described in Section 3.01(d)) shall
be issued substantially in the form of Exhibit A hereto in definitive, fully
registered form without interest coupons with such applicable legends as are
provided for in Section 3.02 (the "Restricted Definitive Certificates") duly
executed and authenticated by the Trustee as hereinafter provided. Certificates
issued pursuant to Section 3.05(b) in exchange for interests in a Regulation S
Global Certificate shall be issued in definitive, fully registered form without
interest coupons (the "Regulation S Definitive Certificates"). The Restricted
Definitive Certificates and the Regulation S Definitive Certificates are
sometimes collectively referred to herein as the "Definitive Certificates".
(f) The Exchange Certificates shall be issued in the form of
one or more global Certificates substantially in the form of Exhibit A hereto
(each, a "Global Exchange Certificate"), except that (i) the Restricted Legend
(hereinafter defined) shall be omitted and (ii) such Exchange Certificates shall
contain such appropriate insertions, omissions, substitutions and other
variations from the form set forth in Exhibit A hereto relating to the nature of
the Exchange Certificates as the Responsible Officer of the Trustee executing
such Exchange Certificates on behalf of the Trust may determine, as evidenced by
such officer's execution on behalf of the Trust of such Exchange Certificates.
Such Global Exchange Certificates shall be in registered form and be registered
in the name of DTC and deposited with the Trustee, at its Corporate Trust
Office, as custodian for DTC. The aggregate principal amount of any Global
Exchange Certificate may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for DTC for such
Global Exchange Certificate, which adjustments shall be conclusive as to the
aggregate principal amount of any such Global Exchange Certificate. Subject to
clause (i) and (ii) of the first sentence of this Section 3.01(f), the terms
hereof applicable to Restricted Global Certificates and/or Global Certificates
shall apply to the Global Exchange Certificates, mutatis mutandis.
(g) The Definitive Certificates shall be in registered form
and shall be typed, printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any other manner, all as
determined by the officers executing such Certificates, as evidenced by their
execution of such Certificates.
Section 3.02. Restrictive Legends. All Initial Certificates
issued pursuant to this Agreement for resale pursuant to Rule 144A or offered
and sold to any Institutional Accredited
<PAGE> 25
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Investor which is not a QIB (including any Global Certificate issued upon
registration of transfer, in exchange for or in lieu of such Certificates) shall
be "Restricted Certificates" and shall bear a legend to the following effect
(the "Restricted Legend") unless the Company and the Trustee determine otherwise
consistent with applicable law:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, ANY PERSONS EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
CERTIFICATE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS CERTIFICATE OR THE
LAST DATE ON WHICH THIS CERTIFICATE WAS HELD BY AMERICA WEST AIRLINES,
INC., THE TRUSTEE OR ANY AFFILIATE OF ANY OF SUCH PERSONS RESELL OR
OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT (A) TO AMERICA WEST
AIRLINES, INC., (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT; AND (3) AGREES THAT IF IT SHOULD RESELL OR OTHERWISE TRANSFER THIS
CERTIFICATE IT WILL DELIVER TO EACH PERSON TO WHOM THIS CERTIFICATE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS CERTIFICATE WITHIN TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUANCE OF THIS CERTIFICATE OR THE LAST DATE
ON WHICH THIS CERTIFICATE WAS HELD BY AMERICA WEST AIRLINES, INC., THE
TRUSTEE OR ANY AFFILIATE OF ANY OF SUCH PERSONS, THE HOLDER MUST CHECK
THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE
MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT. THE PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
<PAGE> 26
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Each Global Certificate shall bear the following legend on the
face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS
CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS
OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 3.05 AND 3.06 OF
THE PASS THROUGH TRUST AGREEMENT REFERRED TO HEREIN.
Section 3.03. Authentication of Certificates. (a) On the
Issuance Date, the Trustee shall duly execute, authenticate and deliver
Certificates in authorized denominations equaling in the aggregate the amount
set forth, with respect to the Trust, in Schedule II to the Certificate Purchase
Agreement, evidencing the entire ownership of the Trust, which amount equals the
maximum aggregate principal amount of Equipment Notes which may be purchased by
the Trustee pursuant to the Note Purchase Agreement.
(b) No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, unless there appears on
such Certificate a certificate of authentication substantially in the form
provided for herein executed by the Trustee by the manual signature of one of
its authorized signatories, and such certificate upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder.
(c) Certificates bearing the manual or facsimile signature of
an individual who was, at the time when such signature was affixed, authorized
to sign on behalf of the Trustee shall be valid and binding obligations of the
Trust notwithstanding that such individual has ceased to be so authorized prior
to the authentication and delivery of such Certificates or did not hold such
office on the date of such Certificates.
Section 3.04. Transfer and Exchange. The Trustee shall cause
to be kept at the office or agency to be maintained by it in accordance with the
provisions of Section 7.12 a register (the "Register") of the Certificates in
which, subject to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of such Certificates and of transfers
<PAGE> 27
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and exchanges of such Certificates as herein provided. The Trustee shall
initially be the registrar (the "Registrar") for the purpose of registering such
Certificates and transfers and exchanges of such Certificates as herein
provided. The Company, upon notice to the Trustee, may change the Registrar at
any time.
All Certificates issued upon any registration of transfer or
exchange of Certificates shall be valid obligations of the Trust, evidencing the
same interest therein, and entitled to the same benefits under this Trust
Agreement, as the Certificates surrendered upon such registration of transfer or
exchange.
A Certificateholder may transfer a Certificate, or request
that a Certificate be exchanged for Certificates in an aggregate Fractional
Undivided Interest equal to the Fractional Undivided Interest of such
Certificate surrendered for exchange of other authorized denominations, by
surrender of such Certificate to the Trustee with the form of transfer notice
thereon duly completed and executed, and otherwise complying with the terms of
this Agreement, including providing evidence of compliance with any restrictions
on transfer, in form satisfactory to the Trustee and the Registrar; provided
that no exchanges of Initial Certificates for Exchange Certificates shall occur
until an Exchange Offer Registration Statement shall have been declared
effective by the SEC (notice of which shall be provided to the Trustee by the
Company). No such transfer shall be effected until, and such transferee shall
succeed to the rights of a Certificateholder only upon, final acceptance and
registration of the transfer by the Registrar in the Register. Prior to the
registration of any transfer by a Certificateholder as provided herein, the
Trustee shall treat the person in whose name the Certificate is registered as
the owner thereof for all purposes, and the Trustee shall not be affected by
notice to the contrary. Furthermore, DTC shall, by acceptance of a Global
Certificate, agree that transfers of beneficial interests in such Global
Certificate may be effected only through a book-entry system maintained by DTC
(or its agent) and that ownership of a beneficial interest in the Certificate
shall be required to be reflected in a book-entry. When Certificates are
presented to the Registrar with a request to register the transfer thereof or to
exchange them for other authorized denominations of a Certificate in a
Fractional Undivided Interest equal to the aggregate Fractional Undivided
Interest of Certificates surrendered for exchange, the Registrar shall register
the transfer or make the exchange as requested if its requirements for such
transactions are met.
To permit registrations of transfers and exchanges in
accordance with the terms, conditions and restrictions hereof, the Trustee shall
execute and authenticate Certificates at the Registrar's request. No service
charge shall be made to a Certificateholder for any registration of transfer or
exchange of Certificates, but the Trustee shall require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates. All Certificates
surrendered for registration of transfer or exchange shall be canceled and
subsequently destroyed by the Trustee.
Section 3.05. Book-Entry Provisions for Restricted Global
Certificates and Regulation S Global Certificates. (a) Members of, or
participants in, DTC ("Agent Members") shall have no rights under this Agreement
with respect to any Global Certificate held on their behalf by DTC, or the
Trustee as its custodian, and DTC may be treated by the Trustee and any agent of
the Trustee as the absolute owner of such Global Certificate for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Trustee or any agent of the
<PAGE> 28
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Trustee from giving effect to any written certification, proxy or other
authorization furnished by DTC or shall impair, as between DTC and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a holder of any Certificate. Upon the issuance of any Global
Certificate, the Registrar or its duly appointed agent shall record DTC as the
registered holder of such Global Certificate.
(b) Transfers of any Global Certificate shall be limited to
transfers of such Restricted Global Certificate or Regulation S Global
Certificate in whole, but not in part, to DTC. Beneficial interests in the
Restricted Global Certificate and any Regulation S Global Certificate may be
transferred in accordance with the rules and procedures of DTC and the
provisions of Section 3.06. Beneficial interests in a Restricted Global
Certificate or a Regulation S Global Certificate shall be delivered to all
beneficial owners thereof in the form of Restricted Definitive Certificates or
Regulation S Definitive Certificates, as the case may be, if (i) DTC notifies
the Trustee that it is unwilling or unable to continue as depositary for such
Restricted Global Certificate or Regulation S Global Certificate, as the case
may be, and a successor depositary is not appointed by the Trustee within 90
days of such notice, and (ii) after the occurrence and during the continuance of
an Event of Default, owners of beneficial interests in a Global Certificate with
Fractional Undivided Interests aggregating not less than a majority in interest
in the Trust advise the Trustee, the Company and DTC through Agent Members in
writing that the continuation of a book-entry system through DTC or its
successor is no longer in their best interests.
(c) Any beneficial interest in one of the Global Certificates
that is transferred to a Person who takes delivery in the form of an interest in
another Global Certificate will, upon such transfer, cease to be an interest in
such Global Certificate and become an interest in the other Global Certificate
and, accordingly, will thereafter be subject to all transfer restrictions, if
any, and other procedures applicable to beneficial interests in such other
Global Certificate for as long as it remains such an interest.
(d) In connection with the transfer of an entire Restricted
Global Certificate or an entire Regulation S Global Certificate to the
beneficial owners thereof pursuant to paragraph (b) of this Section 3.05, such
Restricted Global Certificate or Regulation S Global Certificate, as the case
may be, shall be deemed to be surrendered to the Trustee for cancellation, and
the Trustee shall execute, authenticate and deliver, to each beneficial owner
identified by DTC in exchange for its beneficial interest in such Restricted
Global Certificate or Regulation S Global Certificate, as the case may be, an
equal aggregate principal amount of Restricted Definitive Certificates or
Regulation S Definitive Certificates, as the case may be, of authorized
denominations. None of the Company, the Registrar, the Paying Agent nor the
Trustee shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such registration
instructions. Upon the issuance of Definitive Certificates, the Trustee shall
recognize the Person in whose name the Definitive Certificates are registered in
the Register as Certificateholders hereunder. Neither the Company nor the
Trustee shall be liable if the Trustee or the Company is unable to locate a
qualified successor clearing agency.
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(e) Any Definitive Certificate delivered in exchange for an
interest in the Restricted Global Certificate pursuant to paragraph (b) of this
Section 3.05 shall, except as otherwise provided by paragraph (e) of Section
3.06, bear the Restricted Legend.
(f) Prior to the expiration of the Restricted Period, any
Regulation S Definitive Certificate delivered in exchange for an interest in a
Regulation S Global Certificate pursuant to paragraph (b) of this Section shall
bear the Restricted Legend.
(g) The registered holder of any Restricted Global Certificate
or Regulation S Global Certificate may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Agreement or the Certificates.
Section 3.06. Special Transfer Provisions. Unless and until
(i) an Initial Certificate is sold under an effective Shelf Registration
Statement, or (ii) an Initial Certificate is exchanged for an Exchange
Certificate pursuant to an effective Exchange Offer Registration Statement, in
each case pursuant to the terms of the Registration Rights Agreement, the
following provisions shall apply to such Initial Certificates:
(a) Transfers to Non-QIB Institutional Accredited Investors.
The following provisions shall apply with respect to the registration
of any proposed transfer of a Certificate to any Institutional
Accredited Investor which is neither a QIB nor a Non-U.S. Person:
(i) The Registrar shall register the transfer of any
Certificate, whether or not bearing the Restricted Legend,
only if (x) the requested transfer is at least two years after
the later of the original issue date of the Certificates and
the last date on which such Certificate was held by the
Company, the Trustee or any affiliate of any of such Persons
or (y) the proposed transferor is an Initial Purchaser who is
transferring Certificates purchased under the Certificates
Purchase Agreement and the proposed transferee has delivered
to the Registrar a letter substantially in the form of Exhibit
C hereto and the aggregate principal amount of the
Certificates being transferred is at least $100,000. Except as
provided in the foregoing clause (y), the Registrar shall not
register the transfer of any Certificate to any Institutional
Accredited Investor which is neither a QIB nor a Non-U.S.
Person.
(ii) If the proposed transferor is an Agent Member
holding a beneficial interest in a Restricted Global
Certificate, upon receipt by the Registrar of (x) the
documents, if any, required by paragraph (i) and (y)
instructions given in accordance with DTC's and the
Registrar's procedures, the Registrar shall reflect on its
books and records the date of the transfer and a decrease in
the principal amount of such Restricted Global Certificate in
an amount equal to the principal amount of the beneficial
interest in such Restricted Global Certificate to be
transferred, and the Trustee shall execute, authenticate and
deliver to the transferor or at its direction, one or more
Restricted Definitive Certificates of like tenor and amount.
<PAGE> 30
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(b) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer of an Initial
Certificate to a QIB (excluding Non-U.S. Persons):
(i) If the Certificate to be transferred consists of
Restricted Definitive Certificates, or of an interest in any
Regulation S Global Certificate during the Restricted Period,
the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box
provided for on the form of Initial Certificate stating, or
has otherwise advised the Trustee and the Registrar in
writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Initial Certificate
stating, or has otherwise advised the Trustee and the
Registrar in writing, that it is purchasing the Initial
Certificate for its own account or an account with respect to
which it exercises sole investment discretion and that it, or
the Person on whose behalf it is acting with respect to any
such account, is a QIB within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such information
regarding the Trust and/or the Company as it has requested
pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim
the exemption from registration provided by Rule 144A.
(ii) Upon receipt by the Registrar of the documents
required by clause (i) above and instructions given in
accordance with DTC's and the Registrar's procedures therefor,
the Registrar shall reflect on its books and records the date
of such transfer and an increase in the principal amount of a
Restricted Global Certificate in an amount equal to the
principal amount of the Restricted Definitive Certificates or
interests in such Regulation S Global Certificate, as the case
may be, being transferred, and the Trustee shall cancel such
Definitive Certificates or decrease the amount of such
Regulation S Global Certificate so transferred.
(c) Transfers of Interests in the Regulation S Global
Certificate or Regulation S Definitive Certificates. After the
expiration of the Restricted Period, the Registrar shall register any
transfer of interests in any Regulation S Global Certificate or
Regulation S Definitive Certificates without requiring any additional
certification. Until the expiration of the Restricted Period, interests
in the Regulation S Global Certificate may only be held through Agent
Members acting for and on behalf of Euroclear and Cedel.
(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any registration of any transfer
of an Initial Certificate to a Non-U.S. Person:
(i) Prior to the expiration of the Restricted Period,
the Registrar shall register any proposed transfer of an
Initial Certificate to a Non-U.S. Person upon receipt of a
certificate substantially in the form set forth as Exhibit B
hereto from the proposed transferor.
<PAGE> 31
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(ii) After the expiration of the Restricted Period,
the Registrar shall register any proposed transfer to any
Non-U.S. Person if the Certificate to be transferred is a
Restricted Definitive Certificate or an interest in a
Restricted Global Certificate, upon receipt of a certificate
substantially in the form of Exhibit B from the proposed
transferor. The Registrar shall promptly send a copy of such
certificate to the Company.
(iii) Upon receipt by the Registrar of (x) the
documents, if any, required by clause (ii) and (y)
instructions in accordance with DTC's and the Registrar's
procedures, the Registrar shall reflect on its books and
records the date of such transfer and a decrease in the
principal amount of such Restricted Global Certificate in an
amount equal to the principal amount of the beneficial
interest in such Restricted Global Certificate to be
transferred, and, upon receipt by the Registrar of
instructions given in accordance with DTC's and the
Registrar's procedures, the Registrar shall reflect on its
books and records the date and an increase in the principal
amount of the Regulation S Global Certificate in an amount
equal to the principal amount of the Restricted Definitive
Certificate or the Restricted Global Certificate, as the case
may be, to be transferred, and the Trustee shall cancel the
Definitive Certificate, if any, so transferred or decrease the
amount of such Restricted Global Certificate.
(e) Restricted Legend. Upon the transfer, exchange or
replacement of Certificates not bearing the Restricted Legend, the
Registrar shall deliver Certificates that do not bear the Restricted
Legend. Upon the transfer, exchange or replacement of Certificates
bearing the Restricted Legend, the Registrar shall deliver only
Certificates that bear the Restricted Legend unless either (i) the
circumstances contemplated by paragraph (d)(ii) of this Section 3.06
exist or (ii) there is delivered to the Registrar an Opinion of Counsel
to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the
provisions of the Securities Act.
(f) General. By acceptance of any Certificate bearing the
Restricted Legend, each Holder of such a Certificate acknowledges the
restrictions on transfer of such Certificate set forth in this
Agreement and agrees that it will transfer such Certificate only as
provided in this Agreement. The Registrar shall not register a transfer
of any Certificate unless such transfer complies with the restrictions
on transfer, if any, of such Certificate set forth in this Agreement.
In connection with any transfer of Certificates, each Certificateholder
agrees by its acceptance of the Certificates to furnish the Registrar
or the Trustee such certifications, legal opinions or other information
as either of them may reasonably require to confirm that such transfer
is being made pursuant to an exemption from, or a transaction not
subject to, the registration requirements of the Securities Act and in
accordance with the terms and provisions of this Article III; provided
that the Registrar shall not be required to determine the sufficiency
of any such certifications, legal opinions or other information.
Until such time as no Certificates remain Outstanding, the
Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 3.05
<PAGE> 32
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or this Section 3.06. The Trustee, if not the Registrar at such time, shall have
the right to inspect and make copies of all such letters, notices or other
written communications at any reasonable time upon the giving of reasonable
written notice to the Registrar.
Section 3.07. Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate is surrendered to the Registrar
or the Registrar receives evidence to its satisfaction of the destruction, loss
or theft of any Certificate and (b) there is delivered to the Registrar and the
Trustee such security, indemnity or bond, as may be required by them to save
each of them harmless, then, in the absence of notice to the Registrar or the
Trustee that such destroyed, lost or stolen Certificate has been acquired by a
protected purchaser, and provided that the requirements of Section 8-405 of the
Uniform Commercial Code in effect in any applicable jurisdiction are met, the
Trustee shall execute, authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Certificate, a new Certificate or
Certificates, in authorized denominations and of like Fractional Undivided
Interest and bearing a number not contemporaneously outstanding.
In connection with the issuance of any new Certificate under
this Section 3.07, the Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee
and the Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section 3.07
shall constitute conclusive evidence of the appropriate Fractional Undivided
Interest in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.08. Persons Deemed Owners. Prior to due presentment
of a Certificate for registration of transfer, the Trustee, the Registrar and
any Paying Agent may treat the Person in whose name any Certificate is
registered (as of the day of determination) as the owner of such Certificate for
the purpose of receiving distributions pursuant to Article IV and for all other
purposes whatsoever, and none of the Trustee, the Registrar or any Paying Agent
shall be affected by any notice to the contrary.
Section 3.09. Cancellation. All Certificates surrendered for
payment or transfer or exchange shall, if surrendered to the Trustee or any
agent of the Trustee other than the Registrar, be delivered to the Registrar for
cancellation and shall promptly be canceled by it. No Certificates shall be
authenticated in lieu of or in exchange for any Certificates canceled as
provided in this Section, except as expressly permitted by this Agreement. All
canceled Certificates held by the Registrar shall be destroyed and a
certification of their destruction delivered to the Trustee.
Section 3.10. Temporary Certificates. Until definitive
Certificates are ready for delivery, the Trustee shall authenticate temporary
Certificates. Temporary Certificates shall be substantially in the form of
definitive Certificates but may have insertions, substitutions,
<PAGE> 33
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omissions and other variations determined to be appropriate by the officers
executing the temporary Certificates, as evidenced by their execution of such
temporary Certificates. If temporary Certificates are issued, the Trustee will
cause definitive Certificates to be prepared without unreasonable delay. After
the preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee designated for such purpose
pursuant to Section 7.12, without charge to the Certificateholder. Upon
surrender for cancellation of any one or more temporary Certificates, the
Trustee shall execute, authenticate and deliver in exchange therefor a like face
amount of definitive Certificates of authorized denominations. Until so
exchanged, the temporary Certificates shall be entitled to the same benefits
under this Agreement as definitive Certificates.
Section 3.11. Limitation of Liability for Payments. All
payments and distributions made to Certificateholders in respect of the
Certificates shall be made only from the Trust Property and only to the extent
that the Trustee shall have sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of Article IV of
this Agreement. Each Certificateholder, by its acceptance of a Certificate,
agrees that it will look solely to the income and proceeds from the Trust
Property for any payment or distribution due to such Certificateholder pursuant
to the terms of this Agreement and that it will not have any recourse to the
Company, the Trustee, the Loan Trustees, the Liquidity Provider, the Policy
Provider, the Owner Trustees or the Owner Participants, except as otherwise
expressly provided herein or in the Intercreditor Agreement.
The Company is a party to this Agreement solely for purposes
of meeting the requirements of the Trust Indenture Act, and therefore shall not
have any right, obligation or liability hereunder (except as otherwise expressly
provided herein).
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments
Account. (a) The Trustee shall establish and maintain on behalf of the
Certificateholders a Certificate Account as one or more non-interest-bearing
accounts. The Trustee shall hold the Certificate Account in trust for the
benefit of the Certificateholders, and shall make or permit withdrawals
therefrom only as provided in this Agreement. On each day when a Scheduled
Payment is made to the Trustee under the Intercreditor Agreement, the Trustee
upon receipt thereof shall immediately deposit the aggregate amount of such
Scheduled Payment in the Certificate Account.
(b) The Trustee shall establish and maintain on behalf of the
Certificateholders a Special Payments Account as one or more accounts, which
shall be non-interest bearing except as provided in Section 4.04. The Trustee
shall hold the Special Payments Account in trust for the benefit of the
Certificateholders and shall make or permit withdrawals therefrom only as
provided in this Agreement. On each day when one or more Special Payments are
made to the Trustee under the Intercreditor Agreement and upon the payment of
the Special Redemption Premium to the Trustee under the Note Purchase Agreement,
the Trustee, upon
<PAGE> 34
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receipt thereof, shall immediately deposit the aggregate amount of such Special
Payments in the Special Payments Account.
(c) The Trustee shall cause the Subordination Agent to present
to the related Loan Trustee of each Equipment Note such Equipment Note on the
date of its stated final maturity or, in the case of any Equipment Note which is
to be redeemed in whole pursuant to the related Indenture, on the applicable
redemption date under such Indenture.
Section 4.02. Distributions from Certificate Account and
Special Payments Account. (a) On each Regular Distribution Date or as soon
thereafter as the Trustee has confirmed receipt of the payment of all or any
part of the Scheduled Payments due on such date, the Trustee shall distribute
out of the Certificate Account the entire amount deposited therein pursuant to
Section 4.01(a). There shall be so distributed to each Certificateholder of
record on the Record Date with respect to such Regular Distribution Date (other
than as provided in Section 11.01 concerning the final distribution) by check
mailed to such Certificateholder, at the address appearing in the Register, such
Certificateholder's pro rata share (based on the Fractional Undivided Interest
in the Trust held by such Certificateholder) of the total amount in the
Certificate Account, except that, with respect to Certificates registered on the
Record Date in the name of DTC, such distribution shall be made by wire transfer
in immediately available funds to the account designated by DTC.
(b) On each Special Distribution Date with respect to any
Special Payment or as soon thereafter as the Trustee has confirmed receipt of
any Special Payments due on the Equipment Notes held in the related Trust or
realized upon the sale of such Equipment Notes or receipt of the Special
Redemption Premium, the Trustee shall distribute out of the Special Payments
Account the entire amount of such Special Payment deposited therein pursuant to
Section 4.01(b). There shall be so distributed to each Certificateholder of
record on the Record Date with respect to such Special Distribution Date (other
than as provided in Section 11.01 concerning the final distribution) by check
mailed to such Certificateholder, at the address appearing in the Register, such
Certificateholder's pro rata share (based on the Fractional Undivided Interest
in the Trust held by such Certificateholder) of the total amount in the Special
Payments Account on account of such Special Payment, except that, with respect
to Certificates registered on the Record Date in the name of DTC, such
distribution shall be made by wire transfer in immediately available funds to
the account designated by DTC.
(c) The Trustee shall cause notice of each Special Payment to
be mailed to each Certificateholder at his address as it appears in the
Register. In the event of redemption or purchase of Equipment Notes held in the
Trust, such notice shall be mailed not less than 20 days prior to the Special
Distribution Date for the Special Payment resulting from such redemption or
purchase, which Special Distribution Date shall be the date of such redemption
or purchase. In the event of the payment of a Special Redemption Premium by the
Company to the Trustee under the Note Purchase Agreement, such notice shall be
mailed, together with the notice by the Escrow Paying Agent under Section 2.06
of the Escrow Agreement, not less than 20 days prior to the Special Distribution
Date for such amount, which Special Distribution Date shall be the Final
Withdrawal Date. In the case of distributions pursuant to Section 3.7(c) or
Section 3.7(e) of the Intercreditor Agreement, the Trustee will mail notice to
the Certificateholders stating the Special Distribution Date, the related Record
Date, the amount of such distribution and the
<PAGE> 35
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reason for such distribution. In the case of any other Special Payments, such
notice shall be mailed as soon as practicable after the Trustee has confirmed
that it has received funds for such Special Payment, stating the Special
Distribution Date for such Special Payment which shall occur not less than 20
days after the date of such notice and as soon as practicable thereafter.
Notices mailed by the Trustee shall set forth:
(i) the Special Distribution Date and the Record Date therefor
(except as otherwise provided in Section 11.01),
(ii) the amount of the Special Payment for each $1,000 face
amount Certificate and the amount thereof constituting principal,
premium, if any, and interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a
Regular Distribution Date, the total amount to be received on such date
for each $1,000 face amount Certificate.
If the amount of (i) premium, if any, payable upon the redemption or purchase of
an Equipment Note or (ii) the Special Redemption Premium, if any, has not been
calculated at the time that the Trustee mails notice of a Special Payment, it
shall be sufficient if the notice sets forth the other amounts to be distributed
and states that any premium received will also be distributed.
If any redemption of the Equipment Notes held in the Trust is
canceled, the Trustee, as soon as possible after learning thereof, shall cause
notice thereof to be mailed to each Certificateholder at its address as it
appears on the Register.
Section 4.03. Statements to Certificateholders. (a) On each
Distribution Date, the Trustee will include with each distribution to
Certificateholders of a Scheduled Payment or Special Payment, as the case may
be, a statement setting forth the information provided below (in the case of a
Special Payment, including any Special Redemption Premium, reflecting in part
the information provided by the Escrow Paying Agent under the Escrow Agreement).
Such statement shall set forth (per $1,000 face amount Certificate as to (ii),
(iii), (iv) and (v) below) the following information:
(i) the aggregate amount of funds distributed on such
Distribution Date hereunder and under the Escrow Agreement, indicating
the amount allocable to each source including any portion thereof paid
by the Liquidity Provider and/or the Policy Provider;
(ii) the amount of such distribution hereunder allocable to
principal and the amount allocable to premium (including the Special
Redemption Premium), if any;
(iii) the amount of such distribution hereunder allocable to
interest; and
(iv) the amount of such distribution under the Escrow
Agreement allocable to interest;
<PAGE> 36
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(v) the amount of such distribution under the Escrow Agreement
allocable to Deposits; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Certificates registered in the name of
DTC, on the Record Date prior to each Distribution Date, the Trustee will
request from DTC a securities position listing setting forth the names of all
Agent Members reflected on DTC's books as holding interests in the Certificates
on such Record Date. On each Distribution Date, the Trustee will mail to each
such Agent Member the statement described above and will make available
additional copies as requested by such Agent Member for forwarding to holders of
interests in the Certificates.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the Trustee
shall furnish to each Person who at any time during such calendar year was a
Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and (a)(v)
above for such calendar year or, in the event such Person was a
Certificateholder of record during a portion of such calendar year, for such
portion of such year, and such other items as are readily available to the
Trustee and which a Certificateholder shall reasonably request as necessary for
the purpose of such Certificateholder's preparation of its federal income tax
returns. Such statement and such other items shall be prepared on the basis of
information supplied to the Trustee by the Agent Members and shall be delivered
by the Trustee to such Agent Members to be available for forwarding by such
Agent Members to the holders of interests in the Certificates in the manner
described in Section 4.03(a).
(c) Promptly following (i) the Delivery Period Termination
Date, if there has been any change in the information set forth in clauses (x),
(y) and (z) below from that set forth in pages 61-62 of the Offering Circular,
and (ii) any early redemption or purchase of, or any default in the payment of
principal or interest in respect of, any of the Equipment Notes held in the
Trust, or any Final Withdrawal, the Trustee shall furnish to Certificateholders
of record on such date a statement setting forth (x) the expected Pool Balances
for each subsequent Regular Distribution Date following the Delivery Period
Termination Date, (y) the related Pool Factors for such Regular Distribution
Dates and (z) the expected principal distribution schedule of the Equipment
Notes, in the aggregate, held as Trust Property at the date of such notice. With
respect to the Certificates registered in the name of DTC, on the Delivery
Period Termination Date, the Trustee will request from DTC a securities position
listing setting forth the names of all Agent Members reflected on DTC's books as
holding interests in the Certificates on such date. The Trustee will mail to
each such Agent Member the statement described above and will make available
additional copies as requested by such Agent Member for forwarding to holders of
interests in the Certificates.
Section 4.04. Investment of Special Payment Moneys. Any money
received by the Trustee pursuant to Section 4.01(b) representing a Special
Payment which is not distributed on the date received shall, to the extent
practicable, be invested in Permitted Investments by the Trustee pending
distribution of such Special Payment pursuant to Section 4.02. Any investment
made pursuant to this Section 4.04 shall be in such Permitted Investments having
maturities not
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later than the date that such moneys are required to be used to make the payment
required under Section 4.02 on the applicable Special Distribution Date and the
Trustee shall hold any such Permitted Investments until maturity. The Trustee
shall have no liability with respect to any investment made pursuant to this
Section 4.04, other than by reason of the willful misconduct or negligence of
the Trustee. All income and earnings from such investments shall be distributed
on such Special Distribution Date as part of such Special Payment.
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence. The Company,
at its own cost and expense, will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, except as
permitted by Section 5.02.
Section 5.02. Consolidation, Merger, etc. The Company shall
not consolidate with or merge into any other corporation or convey, transfer or
lease substantially all of its assets as an entirety to any Person unless:
(a) the corporation formed by such consolidation or into which
the Company is merged or the Person that acquires by conveyance,
transfer or lease substantially all of the assets of the Company as an
entirety shall be (i) organized and validly existing under the laws of
the United States of America or any state thereof or the District of
Columbia, (ii) a "citizen of the United States" as defined in 49 U.S.C.
40102(a)(15), as amended, and (iii) a United States certificated air
carrier, if and so long as such status is a condition of entitlement to
the benefits of Section 1110 of the Bankruptcy Reform Act of 1978, as
amended (11 U.S.C. Section 1110);
(b) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance,
transfer or lease substantially all of the assets of the Company as an
entirety shall execute and deliver to the Trustee a duly authorized,
valid, binding and enforceable agreement in form and substance
reasonably satisfactory to the Trustee containing an assumption by such
successor corporation or Person of the due and punctual performance and
observance of each covenant and condition of this Agreement, the Other
Pass Through Trust Agreement and each Financing Document to be
performed or observed by the Company; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate of the Company reasonably satisfactory to the
Trustee, stating that such consolidation, merger, conveyance, transfer
or lease and the assumption agreement mentioned in clause (b) above
comply with this Section 5.02 and that all conditions precedent herein
provided for relating to such transaction have been complied with.
Upon any consolidation or merger, or any conveyance, transfer
or lease of substantially all of the assets of the Company as an entirety in
accordance with this Section 5.02, the successor corporation or Person formed by
such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be
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substituted for, and may exercise every right and power of, the Company under
this Agreement with the same effect as if such successor corporation or Person
had been named as the Company herein. No such conveyance, transfer or lease of
substantially all of the assets of the Company as an entirety shall have the
effect of releasing any successor corporation or Person which shall have become
such in the manner prescribed in this Section 5.02 from its liability in respect
of this Agreement and any Financing Document to which it is a party.
ARTICLE VI
DEFAULT
Section 6.01. Events of Default. (a) Exercise of Remedies.
Upon the occurrence and during the continuation of any Indenture Default under
any Indenture, with ten days' written notice to the Trustee and each
Certificateholder, the Trustee may, to the extent it is the Controlling Party at
such time (as determined pursuant to the Intercreditor Agreement), direct the
exercise of remedies as provided in the Intercreditor Agreement.
(b) Purchase Rights of Certificateholders. By acceptance of
its Certificate, each Certificateholder agrees that at any time within 180 days
after the occurrence and during the continuation of a Triggering Event,
(i) each Class C Certificateholder shall have the right to
purchase all, but not less than all, of the Certificates upon ten days'
written notice to the Trustee and each other Class C Certificateholder,
provided that (A) if prior to the end of such ten-day period any other
Class C Certificateholder notifies such purchasing Class C
Certificateholder that such other Class C Certificateholder wants to
participate in such purchase, then such other Class C Certificateholder
may join with the purchasing Class C Certificateholder to purchase all,
but not less than all, of the Certificates pro rata based on the
Fractional Undivided Interest in the Class C Trust held by each such
Class C Certificateholder and (B) if prior to the end of such ten-day
period any other Class C Certificateholder fails to notify the
purchasing Class C Certificateholder of such other Class C
Certificateholder's desire to participate in such a purchase, then such
other Class C Certificateholder shall lose its right to purchase the
Certificates pursuant to this Section 6.01(b);
(ii) each Class D Certificateholder shall have the right
(which shall not expire upon any purchase of the Certificates pursuant
to clause (i) above) to purchase all, but not less than all, of the
Certificates and the Class C Certificates upon ten days' written notice
to the Trustee, the Class C Trustee and each other Class D
Certificateholder, provided that (A) if prior to the end of such
ten-day period any other Class D Certificateholder notifies such
purchasing Class D Certificateholder that such other Class D
Certificateholder wants to participate in such purchase, then such
other Class D Certificateholder may join with the purchasing Class D
Certificateholder to purchase all, but not less than all, of the
Certificates and the Class C Certificates pro rata based on the
Fractional Undivided Interest in the Class D Trust, taken as a whole,
held by each such Class D Certificateholder and (B) if prior to the end
of such ten-day period any other Class D Certificateholder fails to
notify the purchasing Class D Certificateholder of such other Class D
Certificateholder's desire to participate in such a purchase, then such
other
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Class D Certificateholder shall lose its right to purchase the
Certificates pursuant to this Section 6.01(b); and
(iii) whether or not any Class C Certificateholders or Class D
Certificateholders exercise their right to purchase pursuant to clause
(i) or (ii) above, the Policy Provider, if it is then the Controlling
Party and 180 days have elapsed since the occurrence of a Triggering
Event that is continuing, shall have the right (except in the event of
a Policy Provider Default) to purchase all, but not less than all, of
the Certificates upon ten days' written notice to the Trustee and the
Certificateholders.
The purchase price with respect to the Certificates shall be
equal to the Pool Balance of the Certificates, together with accrued and unpaid
interest thereon to the date of such purchase, without premium, but including
any other amounts then due and payable to the Certificateholders under this
Agreement, the Intercreditor Agreement, the Escrow Agreement or any Financing
Document or on or in respect of the Certificates; provided, however, that (i) if
such purchase occurs after the record date specified in Section 2.03(b) of the
Escrow Agreement relating to the distribution of unused Deposits and accrued and
unpaid interest thereunder, such purchase price shall be reduced by the
aggregate amount of unused Deposits and interest to be distributed under the
Escrow Agreement (which deducted amounts shall remain distributable to, and may
be retained by, the Certificateholder as of such Record Date) and (ii) if such
purchase occurs after a Record Date, such purchase price shall be reduced by the
amount to be distributed hereunder on the related Distribution Date (which
deducted amounts shall remain distributable to, and may be retained by, the
Certificateholder as of such Record Date); provided, further, that no such
purchase of Certificates shall be effective unless the purchaser(s) shall
certify to the Trustee that contemporaneously with such purchase, such
purchaser(s) is purchasing, pursuant to the terms of this Agreement and the
Other Pass Through Trust Agreement, the Certificates, the Class C Certificates
and the Class D Certificates which are senior to the securities held by such
purchaser(s). Each payment of the purchase price of the Certificates referred to
in the first sentence hereof shall be made to an account or accounts designated
by the Trustee and each such purchase shall be subject to the terms of this
Section 6.01(b). Each Certificateholder agrees by its acceptance of its
Certificate that it will, subject to Section 3.04 hereof, upon payment from such
Class C Certificateholder(s) or Class D Certificateholder(s), as the case may
be, of the purchase price set forth in the first sentence of this paragraph,
forthwith sell, assign, transfer and convey to the purchaser(s) thereof (without
recourse, representation or warranty of any kind except for its own acts), all
of the right, title, interest and obligation of such Certificateholder in this
Agreement, the Escrow Agreement, the Deposit Agreement, the Intercreditor
Agreement, the Liquidity Facility, the Policy, the Financing Documents and all
Certificates and Escrow Receipts held by such Certificateholder (excluding all
right, title and interest under any of the foregoing to the extent such right,
title or interest is with respect to an obligation not then due and payable as
respects any action or inaction or state of affairs occurring prior to such
sale) and the purchaser shall assume all of such Certificateholder's obligations
under this Agreement, the Escrow Agreement, the Deposit Agreement, the
Intercreditor Agreement, the Liquidity Facility, the Policy, the Financing
Documents and all such Certificates and Escrow Receipts. The Certificates will
be deemed to be purchased on the date payment of the purchase price is made
notwithstanding the failure of the Certificateholders to deliver any
Certificates (whether in the form of Definitive Certificates or beneficial
interests in Global Certificates) and, upon such a purchase, (i) the only rights
of the Certificateholders will be to deliver the Certificates to the
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purchaser(s) and receive the purchase price for such Certificates and (ii) if
the purchaser(s) shall so request, such Certificateholder will comply with all
the provisions of Section 3.04 hereof to enable new Certificates to be issued to
the purchaser in such denominations as it shall request. All charges and
expenses in connection with the issuance of any such new Certificates shall be
borne by the purchaser thereof.
As used in this Section 6.01(b), the terms "Class C
Certificate", "Class C Certificateholder", "Class C Trust", "Class C Trustee",
"Class D Certificate", "Class D Trust" and "Class D Trustee", shall have the
respective meanings assigned to such terms in the Intercreditor Agreement.
Section 6.02. Incidents of Sale of Equipment Notes. Upon any
sale of all or any part of the Equipment Notes made either under the power of
sale given under this Agreement or otherwise for the enforcement of this
Agreement, the following shall be applicable:
(1) Certificateholders and Trustee May Purchase Equipment
Notes. Any Certificateholder, the Trustee in its individual or any
other capacity or any other Person may bid for and purchase any of the
Equipment Notes, and upon compliance with the terms of sale, may hold,
retain, possess and dispose of such Equipment Notes in their own
absolute right without further accountability.
(2) Receipt of Trustee Shall Discharge Purchaser. The receipt
of the Trustee making such sale shall be a sufficient discharge to any
purchaser for his purchase money, and, after paying such purchase money
and receiving such receipt, such purchaser or its personal
representative or assigns shall not be obliged to see to the
application of such purchase money, or be in any way answerable for any
loss, misapplication or non-application thereof.
(3) Application of Moneys Received upon Sale. Any moneys
collected by the Trustee upon any sale made either under the power of
sale given by this Agreement or otherwise for the enforcement of this
Agreement shall be applied as provided in Section 4.02.
Section 6.03. Judicial Proceedings Instituted by Trustee;
Trustee May Bring Suit. If there shall be a failure to make payment of the
principal of, premium, if any, or interest on any Equipment Note, or if there
shall be any failure to pay Rent (as defined in the relevant Lease) under any
Lease when due and payable, then the Trustee, in its own name and as trustee of
an express trust, as holder of such Equipment Notes, to the extent permitted by
and in accordance with the terms of the Intercreditor Agreement and the
Financing Documents (subject to the rights of the applicable Owner Trustee or
Owner Participant to cure any such failure to pay principal of, premium, if any,
or interest on any Equipment Note or to pay Rent under any Lease in accordance
with the applicable Indenture), shall be entitled and empowered to institute any
suits, actions or proceedings at law, in equity or otherwise, for the collection
of the sums so due and unpaid on such Equipment Notes or under such Lease and
may prosecute any such claim or proceeding to judgment or final decree with
respect to the whole amount of any such sums so due and unpaid.
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Section 6.04 Control by Certificateholders. Subject to Section
6.03 and the Intercreditor Agreement, the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less than
a majority in interest in the Trust shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee with respect to the Trust or pursuant to the terms of the Intercreditor
Agreement, or exercising any trust or power conferred on the Trustee under this
Agreement or the Intercreditor Agreement, including any right of the Trustee as
Controlling Party under the Intercreditor Agreement or as holder of the
Equipment Notes, provided that:
(1) such Direction shall not be in conflict with any rule of
law or with this Agreement and would not involve the Trustee in
personal liability or expense,
(2) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Certificateholders not
taking part in such Direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such Direction.
Section 6.05. Waiver of Past Defaults. Subject to the
Intercreditor Agreement, the Certificateholders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in the Trust (i) may on behalf of all of the Certificateholders waive any past
Event of Default hereunder and its consequences or (ii) if the Trustee is the
Controlling Party, may direct the Trustee to instruct the applicable Loan
Trustee to waive any past Indenture Default under any Indenture and its
consequences, and thereby annul any Direction given by such Certificateholders
or the Trustee to such Loan Trustee with respect thereto, except a default:
(1) in the deposit of any Scheduled Payment or Special Payment
under Section 4.01 or in the distribution of any payment under Section
4.02 on the Certificates, or
(2) in the payment of the principal of (premium, if any) or
interest on the Equipment Notes, or
(3) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of each
Certificateholder holding an Outstanding Certificate affected thereby.
Upon any such waiver, such default shall cease to exist with
respect to the Certificates and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose and any direction given by the
Trustee on behalf of the Certificateholders to the relevant Loan Trustee shall
be annulled with respect thereto; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Upon any such waiver, the Trustee shall vote the Equipment Notes issued
under the relevant Indenture to waive the corresponding Indenture Default.
Section 6.06. Right of Certificateholders to Receive Payments
Not to Be Impaired. Anything in this Agreement to the contrary notwithstanding,
including, without
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limitation, Section 6.07 hereof, but subject to the Intercreditor Agreement, the
right of any Certificateholder to receive distributions of payments required
pursuant to Section 4.02 hereof on the Certificates when due, or to institute
suit for the enforcement of any such payment on or after the applicable Regular
Distribution Date or Special Distribution Date, shall not be impaired or
affected without the consent of such Certificateholder.
Section 6.07. Certificateholders May Not Bring Suit Except
Under Certain Conditions. A Certificateholder shall not have the right to
institute any suit, action or proceeding at law or in equity or otherwise with
respect to this Agreement, for the appointment of a receiver or for the
enforcement of any other remedy under this Agreement, unless:
(1) such Certificateholder previously shall have given written
notice to the Trustee of a continuing Event of Default;
(2) Certificateholders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than 25% of the
Trust shall have requested the Trustee in writing to institute such
action, suit or proceeding and shall have offered to the Trustee
indemnity as provided in Section 7.03(e);
(3) the Trustee shall have refused or neglected to institute
such an action, suit or proceeding for 60 days after receipt of such
notice, request and offer of indemnity; and
(4) no direction inconsistent with such written request shall
have been given to the Trustee during such 60-day period by
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the
Trust.
It is understood and intended that no one or more of the
Certificateholders shall have any right in any manner whatsoever hereunder or
under the Certificates to (i) surrender, impair, waive, affect, disturb or
prejudice any property in the Trust Property or the lien of any Indenture on any
property subject thereto, or the rights of the Certificateholders or the holders
of the Equipment Notes, (ii) obtain or seek to obtain priority over or
preference with respect to any other such Certificateholder or (iii) enforce any
right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all the Certificateholders subject to the
provisions of this Agreement.
Section 6.08. Remedies Cumulative. Every remedy given
hereunder to the Trustee or to any of the Certificateholders shall not be
exclusive of any other remedy or remedies, and every such remedy shall be
cumulative and in addition to every other remedy given hereunder or now or
hereafter given by statute, law, equity or otherwise.
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities. (a) Except
during the continuation of an Event of Default, the Trustee undertakes to
perform such duties as are
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specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Trustee.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Agreement, 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 its own affairs.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section; and
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts.
(d) Whether or not herein expressly so provided, every
provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
Section 7.02. Notice of Defaults. As promptly as practicable
after, and in any event within 90 days after, the occurrence of any default (as
such term is defined below) hereunder, the Trustee shall transmit by mail to the
Company, the Owner Trustees, the Owner Participants, the Loan Trustees and the
Certificateholders in accordance with Section 313(c) of the Trust Indenture Act,
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
default on the payment of the principal, premium, if any, or interest on any
Equipment Note held in the Trust, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a trust committee of directors and/or Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interests of
the Certificateholders. For the purpose of this Section, the term "default"
means any event that is, or after notice or lapse of time or both would become,
an Event of Default.
Section 7.03. Certain Rights of Trustee. Subject to the
provisions of Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a written description of the subject
matter thereof accompanied
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by an Officer's Certificate and an Opinion of Counsel as provided in
Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officer's
Certificate of the Company, any Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement at the Direction
of any of the Certificateholders pursuant to this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the cost, expenses and liabilities which
might be incurred by it in compliance with such Direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document;
(g) the Trustee may execute any of the trusts or powers under
this Agreement or perform any duties under this Agreement either
directly or by or through agents or attorneys, and the Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
Direction of the Certificateholders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in
interest in the Trust relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; and
(i) the Trustee shall not be required to expend or risk its
own funds in the performance of any of its duties under this Agreement,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk is not reasonably assured to it.
Section 7.04. Not Responsible for Recitals or Issuance of
Certificates. The recitals contained herein and in the Certificates, except the
certificates of authentication, shall not be taken as the statements of the
Trustee, and the Trustee assumes no responsibility for their correctness.
Subject to Section 7.15, the Trustee makes no representations as to the validity
or sufficiency of this Agreement, any Equipment Notes, the Intercreditor
Agreement, the Deposit Agreement, the Escrow Agreement, the Certificates or any
other Financing Document, except that the Trustee hereby represents and warrants
that this Agreement has been, and the
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Intercreditor Agreement, the Registration Rights Agreement, the Note Purchase
Agreement, the Escrow Agreement and each Certificate will be, executed,
authenticated and delivered by one of its officers who is duly authorized to
execute, authenticate and deliver such document on its behalf.
Section 7.05. May Hold Certificates. The Trustee, any Paying
Agent, Registrar or any of their Affiliates or any other agent in their
respective individual or any other capacity may become the owner or pledgee of
Certificates and, subject to Sections 310(b) and 311 of the Trust Indenture Act,
if applicable, may otherwise deal with the Company, the Owner Trustees or the
Loan Trustees with the same rights it would have if it were not Trustee, Paying
Agent, Registrar or such other agent.
Section 7.06. Money Held in Trust. Money held by the Trustee
or the Paying Agent in trust hereunder need not be segregated from other funds
except to the extent required herein or by law and neither the Trustee nor the
Paying Agent shall have any liability for interest upon any such moneys except
as provided for herein.
Section 7.07. Compensation and Reimbursement. The Company
agrees:
(1) to pay, or cause to be paid, to the Trustee from time to
time reasonable compensation for all services rendered by it hereunder
as set forth in a written fee letter dated the date hereof between the
Company and the Trustee, which letter is incorporated herein by
reference (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse, or cause to be reimbursed, the Trustee upon its request for
all reasonable out-of-pocket expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of
this Agreement (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its undertaking its
normal administrative functions, or its negligence, willful misconduct
or bad faith or as may be incurred due to the Trustee's breach of its
representations and warranties set forth in Section 7.15; and
(3) to indemnify, or cause to be indemnified, the Trustee for,
and to hold it harmless against, any loss, liability, expense or Tax
(other than for or with respect to any Unindemnified Tax) incurred
without negligence, willful misconduct or bad faith, on its part,
arising out of or in connection with the acceptance or administration
of this Trust, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except for any
such loss, liability or expense incurred by reason of the Trustee's
breach of its covenants hereunder or under any Financing Document to
which it is a party or its representations and warranties set forth in
Section 7.15 or in any other Financing Document, the authorization or
giving or withholding of any future amendments, supplements, waivers or
consents with respect hereto or any of the Financing Documents, which
amendments, supplements, waivers or consents are not required pursuant
to the terms of the Financing Documents and not requested by the
Company, any loss of tax
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benefits, any Unindemnified Tax, or increase in tax liability under any
tax law whether or not the Company is required to indemnify thereof or
pursuant to this Agreement or any costs associated with overhead or
normal administration hereunder or any voluntary resignation pursuant
to Section 7.09.
With respect to paragraph (3) above, the Trustee shall notify
the Company promptly of any claim for which it may seek indemnity and the
Company shall make payment on any such claim within 30 days of written demand
thereof (delivered together with supporting documentation). The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel with the consent of the Company and the Company will pay
the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made, in settlement or otherwise, without its consent.
With respect to any Tax other than an Unindemnified Tax, the
Trustee shall be entitled to reimbursement from, and shall have a lien prior to
the Certificates upon, the Trust Property for any such Tax incurred without
negligence, bad faith or willful misconduct, on its part, arising out of or in
connection with the acceptance or administration of such Trust (other than any
Tax attributable to the Trustee's compensation for serving as such), including
any costs and expenses incurred in contesting the imposition of any such Tax. If
the Trustee reimburses itself from the Trust Property of such Trust for any such
Tax, it will mail a brief report within 30 days setting forth the circumstances
thereof to all Certificateholders as their names and addresses appear in the
Register.
Section 7.08. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be eligible to act as a
trustee under Section 310(a) of the Trust Indenture Act and shall have a
combined capital and surplus of at least $75,000,000 (or a combined capital and
surplus in excess of $5,000,000 and the obligations of which, whether now in
existence or hereafter incurred, are fully and unconditionally guaranteed by a
corporation organized and doing business under the laws of the United States,
any state or territory thereof or of the District of Columbia and having a
combined capital and surplus of at least $75,000,000). If such corporation
publishes reports of conditions at least annually, pursuant to law or to the
requirements of federal, state, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section 7.08, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of conditions so
published.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.08 to act as Trustee, the
Trustee shall resign immediately as Trustee in the manner and with the effect
specified in Section 7.09.
Section 7.09 Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 7.10.
(b) The Trustee may resign at any time as trustee by giving
prior written notice thereof to the Company, the Authorized Agents, the Owner
Trustees and the Loan
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Trustees. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Company, the Authorized Agents, the Owner Trustees, the
Loan Trustees and the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Direction of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust
delivered to the Trustee and to the Company, the Owner Trustees and the Loan
Trustees.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310 of the
Trust Indenture Act, if applicable, after written request therefor by
the Company or by any Certificateholder who has been a bona fide
Certificateholder for at least six months; or
(2) the Trustee shall cease to be eligible under Section 7.08
and shall fail to resign after written request therefor by the Company
or by any such Certificateholder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any case, (i) the Company may remove the Trustee or (ii) any
Certificateholder who has been a bona fide Certificateholder for at least six
months may, on behalf of itself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(e) If a Responsible Officer of the Trustee shall obtain
actual knowledge of an Avoidable Tax which has been or is likely to be asserted,
the Trustee shall promptly notify the Company and shall, within 30 days of such
notification, resign hereunder unless within such 30-day period the Trustee
shall have received notice that the Company has agreed to pay such tax. The
Company shall promptly appoint a successor Trustee in a jurisdiction where there
are no Avoidable Taxes.
(f) If the Trustee shall resign, be removed or become
incapable of acting or if a vacancy shall occur in the office of the Trustee for
any cause, the Company shall promptly appoint a successor Trustee. If, within
one year after such resignation, removal or incapability, or other occurrence of
such vacancy, a successor Trustee shall be appointed by Direction of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust
delivered to the Company, the Owner Trustees, the Loan Trustees and the retiring
Trustee, and the Company approves such appointment, which approval shall not be
unreasonably withheld, then the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee and
supersede the successor Trustee appointed as provided above. If no successor
Trustee shall have been so appointed as provided above and accepted appointment
in the manner hereinafter provided, any Certificateholder who has been a bona
fide Certificateholder for at least six months may, on
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behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(g) The successor Trustee shall give notice of the resignation
and removal of the Trustee and appointment of the successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Certificateholders as their names and addresses appear in the Register. Each
notice shall include the name of such successor Trustee and the address of its
Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder shall execute and deliver to the Company,
the Authorized Agents, the Owner Trustees and the Loan Trustees and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring Trustee
shall execute and deliver an instrument transferring to such successor Trustee
all such rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all Trust Property held
by such retiring Trustee hereunder, subject nevertheless to its lien, if any,
provided for in Section 7.07. Upon request of any such successor Trustee, the
Company, the retiring Trustee and such successor Trustee shall execute and
deliver any and all instruments containing such provisions as shall be necessary
or desirable to transfer and confirm to, and for more fully and certainly
vesting in, such successor Trustee all such rights, powers and trusts.
No institution shall accept its appointment as a Trustee
hereunder unless at the time of such acceptance such institution shall be
qualified and eligible under this Article VII.
Section 7.11. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article VII, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Certificates shall have been
executed or authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such execution or authentication and deliver the Certificates so
executed or authenticated with the same effect as if such successor Trustee had
itself executed or authenticated such Certificates.
Section 7.12. Maintenance of Agencies. (a) There shall at all
times be maintained an office or agency in the location set forth in Section
12.03 where Certificates may be presented or surrendered for registration of
transfer or for exchange, and for payment thereof and where notices and demands
to or upon the Trustee in respect of such certificates or this Agreement may be
served; provided, however, that, if it shall be necessary that the Trustee
maintain an office or agency in another location (e.g., the Certificates shall
be represented by Definitive Certificates and shall be listed on a national
securities exchange), the Trustee will
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make all reasonable efforts to establish such an office or agency. Written
notice of the location of each such other office or agency and of any change of
location thereof shall be given by the Trustee to the Company, the Owner
Trustees, the Loan Trustees (in the case of any Owner Trustee or Loan Trustee,
at its address specified in the Financing Documents or such other address as may
be notified to the Trustee) and the Certificateholders. In the event that no
such office or agency shall be maintained or no such notice of location or of
change of location shall be given, presentations and demands may be made and
notices may be served at the Corporate Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a Paying Agent
hereunder with respect to the Certificates. Each such Authorized Agent shall be
a bank or trust company, shall be a corporation organized and doing business
under the laws of the United States or any state, with a combined capital and
surplus of at least $75,000,000, or, if the Trustee shall be acting as the
Registrar or Paying Agent hereunder, a corporation having a combined capital and
surplus in excess of $5,000,000, the obligations of which are guaranteed by a
corporation organized and doing business under the laws of the United States or
any state, with a combined capital and surplus of at least $75,000,000, and
shall be authorized under such laws to exercise corporate trust powers, subject
to supervision by Federal or state authorities. The Trustee shall initially be
the Paying Agent and, as provided in Section 3.04, Registrar hereunder with
respect to the Certificates. Each Registrar shall furnish to the Trustee, at
stated intervals of not more than six months, and at such other times as the
Trustee may request in writing, a copy of the Register maintained by such
Registrar.
(c) Any corporation into which any Authorized Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any Authorized
Agent shall be a party, or any corporation succeeding to the corporate trust
business of any Authorized Agent, shall be the successor of such Authorized
Agent hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the parties hereto or such Authorized Agent or such successor
corporation.
(d) Any Authorized Agent may at any time resign by giving
written notice of resignation to the Trustee, the Company, the Owner Trustees
and the Loan Trustees. The Company may, and at the request of the Trustee shall,
at any time terminate the agency of any Authorized Agent by giving written
notice of termination to such Authorized Agent and to the Trustee. Upon the
resignation or termination of an Authorized Agent or in case at any time any
such Authorized Agent shall cease to be eligible under this Section (when, in
either case, no other Authorized Agent performing the functions of such
Authorized Agent shall have been appointed), the Company shall promptly appoint
one or more qualified successor Authorized Agents, reasonably satisfactory to
the Trustee, to perform the functions of the Authorized Agent which has resigned
or whose agency has been terminated or who shall have ceased to be eligible
under this Section. The Company shall give written notice of any such
appointment made by it to the Trustee, the Owner Trustees and the Loan Trustees;
and in each case the Trustee shall mail notice of such appointment to all
Certificateholders as their names and addresses appear on the Register.
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(e) The Company agrees to pay, or cause to be paid, from time
to time to each Authorized Agent reasonable compensation for its services and to
reimburse it for its reasonable expenses as set forth in the letter agreement
referred to in Section 7.07 hereof.
Section 7.13. Money for Certificate Payments to Be Held in
Trust. All moneys deposited with any Paying Agent for the purpose of any payment
on Certificates shall be deposited and held in trust for the benefit of the
Certificateholders entitled to such payment, subject to the provisions of this
Section. Moneys so deposited and held in trust shall constitute a separate trust
fund for the benefit of the Certificateholders with respect to which such money
was deposited.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Agreement or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Section 7.14. Registration of Equipment Notes in Name of
Subordination Agent. The Trustee agrees that all Equipment Notes to be purchased
by the Trust shall be issued in the name of the Subordination Agent or its
nominee and held by the Subordination Agent in trust for the benefit of the
Certificateholders, or, if not so held, the Subordination Agent or its nominee
shall be reflected as the owner of such Equipment Notes in the register of the
issuer of such Equipment Notes.
Section 7.15. Representations and Warranties of Trustee. The
Trustee hereby represents and warrants that:
(a) the Trustee is a Delaware banking corporation organized
and validly existing in good standing under the laws of the State of Delaware;
(b) the Trustee has full power, authority and legal right to
execute, deliver, and perform this Agreement, the Intercreditor Agreement, the
Registration Rights Agreement, the Escrow Agreement, the Note Purchase Agreement
and the Financing Documents to which it is a party and has taken all necessary
action to authorize the execution, delivery, and performance by it of this
Agreement, the Intercreditor Agreement, the Registration Rights Agreement, the
Escrow Agreement, the Note Purchase Agreement and the Financing Documents to
which it is a party;
(c) the execution, delivery and performance by the Trustee of
this Agreement, the Intercreditor Agreement, the Registration Rights Agreement,
the Escrow Agreement, the Note Purchase Agreement and the Financing Documents to
which it is a party (i) will not violate any provision of United States federal
law or the law of the state of the United States where it is located governing
the banking and trust powers of the Trustee or any order, writ, judgment, or
decree of any court, arbitrator or governmental authority applicable to the
Trustee or any of its assets, (ii) will not violate any provision of the
articles of association or by-laws of the Trustee, or (iii) will not violate any
provision of, or constitute, with or without notice or lapse of time, a
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default under, or result in the creation or imposition of any lien on any
properties included in the Trust Property pursuant to the provisions of any
mortgage, indenture, contract, agreement or other undertaking to which it is a
party, which violation, default or lien could reasonably be expected to have an
adverse effect on the Trustee's performance or ability to perform its duties
hereunder or thereunder or on the transactions contemplated herein or therein;
(d) the execution, delivery and performance by the Trustee of
this Agreement, the Intercreditor Agreement, the Registration Rights Agreement,
the Escrow Agreement, the Note Purchase Agreement, and the Financing Documents
to which it is a party will not require the authorization, consent, or approval
of, the giving of notice to, the filing or registration with, or the taking of
any other action in respect of, any governmental authority or agency of the
United States or the state of the United States where it is located regulating
the banking and corporate trust activities of the Trustee; and
(e) this Agreement, the Intercreditor Agreement, the
Registration Rights Agreement, the Escrow Agreement, the Note Purchase
Agreement, and the Financing Documents to which it is a party have been duly
executed and delivered by the Trustee and constitute the legal, valid, and
binding agreements of the Trustee, enforceable against it in accordance with
their respective terms, provided that enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and (ii) general principles of
equity, regardless of whether applied in a proceeding in equity or at law.
Section 7.16. Withholding Taxes, Information Reporting. The
Trustee, as trustee of the grantor trust created by this Agreement, shall
exclude and withhold from each distribution of principal, premium, if any, and
interest and other amounts due under this Agreement or under the Certificates
any and all withholding taxes applicable thereto as required by law. In
addition, the Trustee shall remit such amounts as would be required by Section
1446 of the Internal Revenue Code of 1986, as amended, if the Trust were
characterized as a partnership engaged in a U.S. trade or business for U.S.
federal income tax purposes and shall withhold such amounts from amounts
distributable to or for the benefit of Certificateholders or Investors that are
not United States persons within the meaning of Section 7701(a)(30) of the
Internal Revenue Code of 1986, as amended. In this regard, the Trustee shall
cause the appropriate withholding agent to withhold with respect to such
distributions in the manner contemplated by Section 10.04 of Revenue Procedure
89-31 and Treasury Regulation 1.1445-8(b)(3) by filing a notice with the
National Association of Securities Dealers, Inc. substantially in the form of
Exhibit E hereto on or before the date 10 days prior to the Record Date. The
Trustee shall mail such notice to the National Association of Securities Dealers
no later than the date than 15 days prior to the Record Date. Investors that are
not United States Persons agree to furnish a United States taxpayer
identification number ("TIN") to the Trustee and the Trustee shall provide such
TINs to the appropriate withholding agent. The Trustee agrees to act as such
withholding agent (except to the extent contemplated above with respect to
withholding amounts as if the Trust were characterized as a partnership engaged
in a U.S. trade or business for U.S. federal income tax purposes) and, in
connection therewith, whenever any present or future taxes or similar charges
are required to be withheld with respect to any amounts payable in respect of
the Certificates, to withhold such amounts and timely pay the same to the
appropriate authority in the name of and on behalf of the Certificateholders,
that it will file any necessary
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withholding tax returns or statements when due, and that, as promptly as
possible after the payment thereof, it will deliver to each such
Certificateholder appropriate documentation showing the payment thereof,
together with such additional documentary evidence as such Certificateholders
may reasonably request from time to time. The Trustee agrees to file any other
information reports as it may be required to file under United States law. Each
Certificateholder or Investor that is not a United States person within the
meaning of Section 7701(a)(30) of the Internal Revenue Code, as amended, by its
acceptance of a Certificate or a beneficial interest therein, agrees to
indemnify and hold harmless the Trust and the Trustee from and against any
improper failure to withhold taxes from amounts payable to it or for its
benefit, other than an improper failure attributable to the gross negligence or
willful misconduct of the Trustee.
Section 7.17. Trustee's Liens. The Trustee in its individual
capacity agrees that it will at its own cost and expense promptly take any
action as may be necessary to duly discharge and satisfy in full any mortgage,
pledge, lien, charge, encumbrance, security interest or claim ("Trustee's
Liens") on or with respect to the Trust Property which is attributable to the
Trustee either (i) in its individual capacity and which is unrelated to the
transactions contemplated by this Agreement, the Intercreditor Agreement, the
Note Purchase Agreement or the Financing Documents, or (ii) as Trustee hereunder
or in its individual capacity and which arises out of acts or omissions on the
part of the Trustee which are not contemplated by this Agreement.
Section 7.18. Preferential Collection of Claims. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship listed in Section 311(b) of the Trust Indenture Act. If
the Trustee shall resign or be removed as Trustee, it shall be subject to
Section 311(a) of the Trust Indenture Act to the extent provided therein.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and
Addresses of Certificateholders. The Company will furnish to the Trustee within
15 days after each Record Date with respect to a Scheduled Payment, and at such
other times as the Trustee may request in writing within 30 days after receipt
by the Company of any such request, a list, in such form as the Trustee may
reasonably require, of all information in the possession or control of the
Company as to the names and addresses of the Certificateholders, in each case as
of a date not more than 15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee is the sole Registrar, no such
list need be furnished; and provided further, however, that no such list need be
furnished for so long as a copy of the Register is being furnished to the
Trustee pursuant to Section 7.12.
Section 8.02. Preservation of Information; Communications to
Certificateholders. The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Certificateholders contained
in the most recent list furnished to the Trustee as provided in Section 7.12 or
Section 8.01, as the case may be, and the names and addresses of
Certificateholders received by the Trustee in its capacity as Registrar, if so
acting.
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The Trustee may destroy any list furnished to it as provided in Section 7.12 or
Section 8.01, as the case may be, upon receipt of a new list so furnished.
Section 8.03. Reports by Trustee. Within 60 days after May 15
of each year commencing with the first full year following the issuance of the
Certificates, the Trustee shall transmit to the Certificateholders, as provided
in Section 313(c) of the Trust Indenture Act, a brief report dated as of such
May 15, if required by Section 313(a) of the Trust Indenture Act.
Section 8.04. Reports by the Company. The Company shall:
(a) file with the Trustee, within 30 days after the Company is
required to file the same with the SEC, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may from time to time by
rules and regulations prescribe) which the Company is required to file
with the SEC pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended; or, if the Company is not required to
file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the SEC, in accordance with
rules and regulations prescribed by the SEC, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed in such rules and regulations;
(b) during any period, prior to the consummation of the
Exchange Offer and during which the Shelf Registration Statement is not
in effect, in which the Company is not subject to Section 13(a), 13(c)
or 15(d) under the Securities Exchange Act of 1934, make available to
any Holder of the Certificates in connection with any sale thereof and
any prospective purchaser of the Certificates from such Holder, in each
case upon request, the information specified in, and meeting the
requirements of, Rule 144A(d)(4) under the Securities Act but only for
so long as any of the Certificates remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act and, in any event, only until the second anniversary of
the Issuance Date;
(c) file with the Trustee and the SEC, in accordance with the
rules and regulations prescribed by the SEC, such additional
information, documents and reports with respect to compliance by the
Company with the conditions and covenants provided for in this
Agreement, as may be required by such rules and regulations, including,
in the case of annual reports, if required by such rules and
regulations, certificates or opinions of independent public
accountants, conforming to the requirements of Section 1.02;
(d) transmit to all Certificateholders, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act such
summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (c) of this
Section 8.04 as may be required by rules and regulations prescribed by
the SEC; and
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(e) furnish to the Trustee, not less often than annually, a
brief certificate from the principal executive officer, principal
financial officer, any Vice President (or more senior ranking officer)
or the principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this
Agreement (it being understood that for purposes of this paragraph (e),
such compliance shall be determined without regard to any period of
grace or requirement of notice provided under this Agreement).
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of
Certificateholders. Without the consent of the Certificateholders, the Company
may (but will not be required to), and the Trustee (subject to Section 9.03)
shall, at the Company's request, at any time and from time to time, enter into
one or more agreements supplemental hereto or, if applicable, to the
Intercreditor Agreement, the Escrow Agreement, the Note Purchase Agreement, the
Deposit Agreement, the Registration Rights Agreement, the Policy, the Policy
Provider Agreement or any Liquidity Facility in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein contained or of the Company's obligations under the
Note Purchase Agreement, the Registration Rights Agreement, the Policy
Provider Agreement or any Liquidity Facility; or
(2) to add to the covenants of the Company for the benefit of
the Certificateholders, or to surrender any right or power conferred
upon the Company in this Agreement, the Note Purchase Agreement, the
Registration Rights Agreement, the Policy, the Policy Provider
Agreement or any Liquidity Facility; or
(3) to correct or supplement any provision in this Agreement,
the Intercreditor Agreement, the Escrow Agreement, the Deposit
Agreement, the Note Purchase Agreement, the Registration Rights
Agreement, the Policy, the Policy Provider Agreement or any Liquidity
Facility which may be defective or inconsistent with any other
provision herein or therein or to cure any ambiguity or correct any
mistake or to modify any other provision with respect to matters or
questions arising under this Agreement, the Escrow Agreement, the
Deposit Agreement, the Note Purchase Agreement, the Intercreditor
Agreement, the Registration Rights Agreement, the Policy, the Policy
Provider Agreement or any Liquidity Facility, provided that any such
action shall not materially adversely affect the interests of the
Certificateholders; or
(4) to comply with any requirement of the SEC, any applicable
law, rules or regulations of any exchange or quotation system on which
the Certificates are listed, any regulatory body or the Registration
Rights Agreement to effectuate the Exchange Offer; or
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(5) to modify, eliminate or add to the provisions of this
Agreement to such extent as shall be necessary to continue the
qualification of this Agreement (including any supplemental agreement)
under the Trust Indenture Act or under any similar Federal statute
hereafter enacted, and to add to this Agreement such other provisions
as may be expressly permitted by the Trust Indenture Act, excluding,
however, the provisions referred to in Section 316(a)(2) of the Trust
Indenture Act as in effect at the date as of which this instrument was
executed or any corresponding provision in any similar Federal statute
hereafter enacted; or
(6) to evidence and provide for the acceptance of appointment
under this Agreement by the Trustee of a successor Trustee and to add
to or change any of the provisions of this Agreement as shall be
necessary to provide for or facilitate the administration of the Trust,
pursuant to the requirements of Section 7.10; or
(7) to provide the information required under Section 7.12 and
Section 12.03 as to the Trustee; or
(8) to modify or eliminate provisions relating to the transfer
or exchange of Exchange Certificates or the Initial Certificates upon
consummation of the Exchange Offer (as defined in the Registration
Rights Agreement) or effectiveness of the Shelf Registration Statement
or the Exchange Offer Registration Statement;
provided, however, that no such supplemental agreement shall adversely affect
the status of any Trust as a grantor trust under Subpart E, Part I of Subchapter
J of Chapter 1 of Subtitle A of the Internal Revenue Code of 1986, as amended,
for U.S. federal income tax purposes.
Section 9.02. Supplemental Agreements with Consent of
Certificateholders. With the consent of the Certificateholders holding
Certificates (including consents obtained in connection with a tender offer or
exchange offer for the Certificates) evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in the Trust, by Direction of
said Certificateholders delivered to the Company and the Trustee, the Company
may (with the consent of the Owner Trustees, if any, which consent shall not be
unreasonably withheld), and the Trustee (subject to Section 9.03) shall, enter
into an agreement or agreements for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement,
the Intercreditor Agreement, any Liquidity Facility, the Registration Rights
Agreement, the Policy and the Policy Provider Agreement, the Escrow Agreement,
the Deposit Agreement or the Note Purchase Agreement to the extent applicable to
such Certificateholders or of modifying in any manner the rights and obligations
of such Certificateholders under this Agreement, the Intercreditor Agreement,
any Liquidity Facility, the Registration Rights Agreement, the Policy and the
Policy Provider Agreement, the Escrow Agreement, the Deposit Agreement or the
Note Purchase Agreement; provided, however, that no such agreement shall,
without the consent of the Certificateholder of each Outstanding Certificate
affected thereby:
(1) reduce in any manner the amount of, or delay the timing
of, any receipt by the Trustee (or, with respect to the Deposits, the
Certificateholders) of payments on the Equipment Notes or other Trust
Property held in the Trust or on the Deposits or distributions that are
required to be made herein on any Certificate, or change any date of
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payment on any Certificate, or change the place of payment where, or
the coin or currency in which, any Certificate is payable, or impair
the right to institute suit for the enforcement of any such payment or
distribution on or after the Regular Distribution Date or Special
Distribution Date applicable thereto; or
(2) permit the disposition of any Equipment Note included in
the Trust Property except as permitted by this Agreement, or otherwise
deprive such Certificateholder of the benefit of the ownership of the
Equipment Notes in the Trust; or
(3) reduce the specified percentage of the aggregate
Fractional Undivided Interests of the Trust which is required for any
such supplemental agreement, or reduce such specified percentage
required for any waiver of compliance with certain provisions of this
Agreement or certain defaults hereunder and their consequences provided
for in this Agreement; or
(4) waive, amend or modify Section 2.4, 3.2 or 3.3 of the
Intercreditor Agreement in a manner adverse to the Certificateholders;
or
(5) modify any of the provisions of this Section 9.02 or
Section 6.05, except to increase any such percentage or to provide that
certain other provisions of this Agreement cannot be modified or waived
without the consent of the Certificateholder of each Certificate
affected thereby; or
(6) adversely affect the status of any Trust as a grantor
trust under Subpart E, Part I of Subchapter J of Chapter 1 of Subtitle
A of the Internal Revenue Code of 1986, as amended, for U.S. federal
income tax purposes.
It shall not be necessary for any Direction of
Certificateholders under this Section to approve the particular form of any
proposed supplemental agreement, but it shall be sufficient if such Direction
shall approve the substance thereof.
Section 9.03. Documents Affecting Immunity or Indemnity.
Except for the performance of its covenants herein, if in the opinion of the
Trustee any document required to be executed by it pursuant to the terms of
Section 9.01 or 9.02 affects adversely any interest, right, duty, immunity or
indemnity in favor of the Trustee under this Agreement, the Trustee may in its
discretion decline to execute such document.
Section 9.04. Execution of Supplemental Agreements. In
executing, or accepting the additional trusts created by, any agreement
permitted by this Article or the modifications thereby of the trusts created by
this Agreement, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental agreement is authorized or permitted by this Agreement.
Section 9.05. Effect of Supplemental Agreements. Upon the
execution of any agreement supplemental to this Agreement under this Article,
this Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every Holder
of a Certificate theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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Section 9.06. Conformity with Trust Indenture Act. Every
supplemental agreement executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 9.07. Reference in Certificates to Supplemental
Agreements. Certificates authenticated and delivered after the execution of any
supplemental agreement pursuant to this Article may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
agreement; and, in such case, suitable notation may be made upon Outstanding
Certificates after proper presentation and demand.
ARTICLE X
AMENDMENTS TO INDENTURES AND FINANCING DOCUMENTS
Section 10.01. Amendments and Supplements to Indentures and
Financing Documents. In the event that the Trustee, as holder (or beneficial
owner through the Subordination Agent) of any Equipment Note in trust for the
benefit of the Certificateholders or as Controlling Party under the
Intercreditor Agreement, receives (directly or indirectly through the
Subordination Agent) a request for a consent to any amendment, modification,
waiver or supplement under any Indenture, any other Financing Document, any
Equipment Note or any other related document, the Trustee shall forthwith send a
notice of such proposed amendment, modification, waiver or supplement to each
Certificateholder registered on the Register as of the date of such notice. The
Trustee shall request from the Certificateholders a Direction as to (a) whether
or not to take or refrain from taking (or direct the Subordination Agent to take
or refrain from taking) any action which a holder of such Equipment Note has the
option to direct, (b) whether or not to give or execute (or direct the
Subordination Agent to give or execute) any waivers, consents, amendments,
modifications or supplements as a holder of such Equipment Note or a Controlling
Party and (c) how to vote (or direct the Subordination Agent to vote) any
Equipment Note if a vote has been called for with respect thereto. Provided such
a request for Certificateholder Direction shall have been made, in directing any
action or casting any vote or giving any consent as the holder of any Equipment
Note (or in directing the Subordination Agent in any of the foregoing), (i)
other than as Controlling Party, the Trustee shall vote for or give consent to
any such action with respect to such Equipment Note in the same proportion as
that of (A) the aggregate face amounts of all Certificates actually voted in
favor of or for giving consent to such action by such Direction of
Certificateholders to (B) the aggregate face amount of all Outstanding
Certificates and (ii) as Controlling Party, the Trustee shall vote as directed
in such Certificateholder Direction by the Certificateholders evidencing a
Fractional Undivided Interest aggregating not less than a majority in interest
in the Trust. For purposes of the immediately preceding sentence, a Certificate
shall have been "actually voted" if the Holder of such Certificate has delivered
to the Trustee an instrument evidencing such Holder's consent to such Direction
prior to two Business Days before the Trustee directs such action or casts such
vote or gives such consent. Notwithstanding the foregoing, but subject to
Section 6.04 and the Intercreditor Agreement, the Trustee may, in its own
discretion and at its own direction, consent and notify the relevant Loan
Trustee of such consent (or direct the Subordination Agent to consent and notify
the Loan Trustee of such consent) to any amendment, modification, waiver or
supplement under the relevant Indenture, any other Financing Document, any
Equipment Note or
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any other related document, if an Event of Default hereunder shall have occurred
and be continuing, or if such amendment, modification, waiver or supplement will
not materially adversely affect the interests of the Certificateholders.
ARTICLE XI
TERMINATION OF TRUST
Section 11.01. Termination of the Trust. The respective
obligations and responsibilities of the Company and the Trustee with respect to
the Trust shall terminate upon the earlier of (A) the completion of the
assignment, transfer and discharge described in the first sentence of the
immediately following paragraph and (B) distribution to all Holders of
Certificates and the Trustee of all amounts required to be distributed to them
pursuant to this Agreement and the disposition of all property held as part of
the Trust Property; provided, however, that in no event shall the Trust continue
beyond one hundred ten (110) years following the date of the earliest execution
of this Trust Agreement.
Upon the earlier of (i) the first Business Day after May 30,
2000, or, if later, the fifth Business Day following the Delivery Period
Termination Date and (ii) the fifth Business Day following the date on which a
Triggering Event occurs (such date, the "Transfer Date"), or, if later the date
on which all of the conditions set forth in the immediately following sentence
have been satisfied, the Trustee is hereby directed (subject only to the
immediately following sentence) to, and the Company shall direct the institution
that will serve as the Related Trustee under the Related Pass Through Trust
Agreement to, execute and deliver the Assignment and Assumption Agreement,
pursuant to which the Trustee shall assign, transfer and deliver all of the
Trustee's right, title and interest to the Trust Property to the Related Trustee
under the Related Pass Through Trust Agreement. The Trustee and the Related
Trustee shall execute and deliver the Assignment and Assumption Agreement upon
the satisfaction of the following conditions:
(i) The Trustee, the Related Trustee and each of the Rating
Agencies then rating the Certificates shall have received an Officer's
Certificate and an Opinion of Counsel dated the date of the Assignment
and Assumption Agreement and each satisfying the requirements of
Section 1.02, which Opinion of Counsel shall be substantially to the
effect set forth below and may be relied upon by the Beneficiaries (as
defined in the Assignment and Assumption Agreement):
(a) upon the execution and delivery thereof by the
parties thereto in accordance with the terms of this
Agreement and the Related Pass Through Trust
Agreement, the Assignment and Assumption Agreement
will constitute the valid and binding obligation of
each of the parties thereto enforceable against each
such party in accordance with its terms;
(b) upon the execution and delivery of the Assignment and
Assumption Agreement in accordance with the terms of
this Agreement and the Related Pass Through Trust
Agreement, each of the Certificates then Outstanding
will be entitled to the benefits of the Related Pass
Through Trust Agreement;
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(c) the Related Trust is not required to be registered as
an investment company under the Investment Company
Act of 1940, as amended;
(d) the Related Pass Through Trust Agreement constitutes
the valid and binding obligation of the Company
enforceable against the Company in accordance with
its terms; and
(e) neither the execution and delivery of the Assignment
and Assumption Agreement in accordance with the terms
of this Agreement and the Related Pass Through Trust
Agreement, nor the consummation by the parties
thereto of the transactions contemplated to be
consummated thereunder on the date thereof, will
violate any law or governmental rule or regulation of
the State of New York or the United States of America
known to such counsel to be applicable to the
transactions contemplated by the Assignment and
Assumption Agreement.
(ii) The Trustee and the Company shall have received (x) a
copy of the articles of incorporation and bylaws of the Related Trustee
certified as of the Transfer Date by the Secretary or Assistant
Secretary of such institution and (y) a copy of the filing (including
all attachments thereto) made by the institution serving as the Related
Trustee with the Office of the Superintendent, State of New York
Banking Department for the qualification of the Related Trustee under
Section 131(3) of the New York Banking Law.
Upon the execution of the Assignment and Assumption Agreement by the parties
thereto, the Trust shall be terminated, the Certificateholders shall receive
beneficial interests in the Related Trust in exchange for their interests in the
Trust equal to their respective beneficial interests in the Trust, and the
Outstanding Certificates representing Fractional Undivided Interests in the
Trust shall be deemed for all purposes of this Agreement and the Related Pass
Through Trust Agreement, without further signature or action of any party or
Certificateholder, to be certificates representing the same fractional undivided
interests in the Related Trust and its trust property. By acceptance of its
Certificate, each Certificateholder consents to such assignment, transfer and
delivery of the Trust Property to the trustee of the Related Trust upon the
execution and delivery of the Assignment and Assumption Agreement.
In connection with the occurrence of the event set forth in
clause (B) above, notice of such termination, specifying the Distribution Date
upon which the Certificateholders may surrender their Certificates to the
Trustee for payment of the final distribution and cancellation, shall be mailed
promptly by the Trustee to Certificateholders not earlier than the 60th day and
not later than the 20th day next preceding such final Distribution Date
specifying (A) the Distribution Date upon which the proposed final payment of
the Certificates will be made upon presentation and surrender of Certificates at
the office or agency of the Trustee therein specified, (B) the amount of any
such proposed final payment, and (C) that the Record Date otherwise applicable
to such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Certificates at the office or agency of the
Trustee therein specified. The Trustee shall give such notice to the Registrar
at the time such notice is given to Certificateholders. Upon presentation and
surrender of the Certificates in accordance with such notice, the Trustee shall
cause to be distributed to Certificateholders such final payments.
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In the event that all of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. No additional interest shall accrue on the Certificates after the
Distribution Date specified in the first written notice. In the event that any
money held by the Trustee for the payment of distributions on the Certificates
shall remain unclaimed for two years (or such lesser time as the Trustee shall
be satisfied, after sixty days' notice from the Company, is one month prior to
the escheat period provided under applicable law) after the final distribution
date with respect thereto, the Trustee shall pay to each Loan Trustee the
appropriate amount of money relating to such Loan Trustee and shall give written
notice thereof to the related Owner Trustees, the Owner Participants and the
Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders. The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations, and liabilities of the parties
hereto or any of them.
Section 12.02. Certificates Nonassessable and Fully Paid.
Except as set forth in the last sentence of this Section 12.02,
Certificateholders shall not be personally liable for obligations of the Trust,
the Fractional Undivided Interests represented by the Certificates shall be
nonassessable for any losses or expenses of the Trust or for any reason
whatsoever, and Certificates, upon authentication thereof by the Trustee
pursuant to Section 3.03, are and shall be deemed fully paid. No
Certificateholder shall have any right (except as expressly provided herein) to
vote or in any manner otherwise control the operation and management of the
Trust Property, the Trust, or the obligations of the parties hereto, nor shall
anything set forth herein, or contained in the terms of the Certificates, be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association. Neither the existence of the Trust nor
any provision herein is intended to or shall limit the liability the
Certificateholders would otherwise incur if the Certificateholders owned Trust
Property as co-owners, or incurred any obligations of the Trust, directly rather
than through the Trust.
Section 12.03. Notices. (a) Unless otherwise specifically
provided herein, all notices required under the terms and provisions of this
Agreement shall be in English and in writing, and any such notice may be given
by United States mail, courier service or telecopy, and any such notice shall be
effective when received or, if made, given, furnished or filed by facsimile or
telecommunication transmission, when received unless received outside of
business hours, in which case on the next open of business on a Business Day,
if to the Company, to:
<PAGE> 61
-56-
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85043
Attention: Vice President-
Treasurer
Facsimile: (602) 693-5886
if to the Trustee, to:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Department
Facsimile: (302) 651-8882
Telephone: (302) 651-8584
(b) The Company or the Trustee, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Certificateholders shall be
mailed by first-class mail to the addresses for Certificateholders shown on the
Register kept by the Registrar. Failure so to mail a notice or communication or
any defect in such notice or communication shall not affect its sufficiency with
respect to other Certificateholders.
(d) If a notice or communication is mailed in the manner
provided above within the time prescribed, it is conclusively presumed to have
been duly given, whether or not the addressee receives it.
(e) If the Company mails a notice or communication to the
Certificateholders, it shall mail a copy to the Trustee and to the Paying Agent
at the same time.
(f) Notwithstanding the foregoing, all communications or
notices to the Trustee shall be deemed to be given only when received by a
Responsible Officer of the Trustee.
(g) The Trustee shall promptly furnish the Company with a copy
of any demand, notice or written communication received by the Trustee hereunder
from any Certificateholder, Owner Trustee or Loan Trustee.
Section 12.04. Governing Law. THIS AGREEMENT HAS BEEN
DELIVERED IN THE STATE OF DELAWARE AND THIS AGREEMENT AND THE CERTIFICATES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
<PAGE> 62
-57-
Section 12.05. Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or the Trust, or of the
Certificates or the rights of the Certificateholders thereof.
Section 12.06. Trust Indenture Act Controls. Upon the
occurrence of any Registration Event, this Agreement shall become subject to the
provisions of the Trust Indenture Act and shall, to the extent applicable, be
governed by such provisions. From and after any Registration Event, if any
provision of this Agreement limits, qualifies or conflicts with another
provision which is required to be included in this Agreement by the Trust
Indenture Act, the required provision shall control.
Section 12.07. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 12.08. Successors and Assigns. All covenants,
agreements, representations and warranties in this Agreement by the Trustee and
the Company shall bind and, to the extent permitted hereby, shall inure to the
benefit of and be enforceable by their respective successors and assigns,
whether so expressed or not.
Section 12.09. Benefits of Agreement. Nothing in this
Agreement or in the Certificates, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the
Certificateholders, any benefit or any legal or equitable right, remedy or claim
under this Agreement.
Section 12.10. Legal Holidays. In any case where any Regular
Distribution Date or Special Distribution Date relating to any Certificate shall
not be a Business Day, then (notwithstanding any other provision of this
Agreement) payment need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on such
Regular Distribution Date or Special Distribution Date, and no interest shall
accrue during the intervening period.
Section 12.11. Counterparts. For the purpose of facilitating
the execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
Section 12.12. Intention of Parties. The parties hereto intend
that the Trust be classified for U.S. federal income tax purposes as a grantor
trust under Subpart E, Part I of Subchapter J of the Internal Revenue Code of
1986, as amended, and not as a trust or association taxable as a corporation or
as a partnership. Each Certificateholder and Investor, by its acceptance of its
Certificate or a beneficial interest therein, agrees to treat the Trust as a
grantor trust for all U.S. federal, state and local income tax purposes. The
powers granted and
<PAGE> 63
-58-
obligations undertaken pursuant to this Agreement shall be so construed so as to
further such intent.
<PAGE> 64
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized as of
the day and year first written above.
AMERICA WEST AIRLINES, INC.
By: /s/ W. Douglas Parker
---------------------------------
Name: W. Douglas Parker
Title: Executive Vice President
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ JAMES P. LAWLER
---------------------------------
Name: JAMES P. LAWLER
Title: Vice President
<PAGE> 65
EXHIBIT A
FORM OF CERTIFICATE
REGISTERED
No._________
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, ANY PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS
NOT A U.S. PERSON AND IS ACQUIRING THIS CERTIFICATE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT;
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE OF THIS CERTIFICATE OR THE LAST DATE ON WHICH THIS
CERTIFICATE WAS HELD BY AMERICA WEST AIRLINES, INC., THE TRUSTEE OR ANY
AFFILIATE OF ANY OF SUCH PERSONS RESELL OR OTHERWISE TRANSFER THIS
CERTIFICATE EXCEPT (A) AMERICA WEST AIRLINES, INC., (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE) OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT; AND (3) AGREES THAT IF IT SHOULD
RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE IT WILL DELIVER TO EACH
PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
CERTIFICATE WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE
OF THIS CERTIFICATE OR THE LAST DATE ON WHICH THIS CERTIFICATE WAS HELD
BY AMERICA WEST AIRLINES, INC., THE TRUSTEE OR ANY AFFILIATE OF ANY OF
SUCH PERSONS, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON
THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE PASS THROUGH
TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY
<PAGE> 66
A-2
TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.]*
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTIONS 3.05 AND 3.06 OF THE PASS THROUGH
TRUST AGREEMENT REFERRED TO HEREIN.]**
- ----------
* Not to be included on the face of the Regulation S Global
Certificate.
** To be included on the face of each Global Certificate.
<PAGE> 67
A-3
[GLOBAL CERTIFICATE]*
AMERICA WEST AIRLINES PASS THROUGH TRUST, SERIES 1999-1G-O
7.93% America West Airlines [Initial] [Exchange]
Pass Through Certificate,
Series 1999-1G-O
Final Legal Distribution Date: July 2, 2020
evidencing a fractional undivided interest in a trust, the property of which
includes certain equipment notes each secured by an Aircraft leased to or owned
by America West Airlines, Inc.
$__________ Fractional Undivided Interest representing
0.0004279576% of the Trust per $1,000 face amount
THIS CERTIFIES THAT _______________, for value received, is
the registered owner of a $________ (__________dollars) Fractional Undivided
Interest in the America West Airlines Pass Through Trust, Series 1999-1G-O (the
"Trust") created pursuant to a Pass Through Trust Agreement, dated as of
September 21, 1999 (the "Agreement"), between Wilmington Trust Company (the
"Trustee") and America West Airlines, Inc., a corporation incorporated under
Delaware law (the "Company"), a summary of certain of the pertinent provisions
of which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the
Agreement. This Certificate is one of the duly authorized Certificates
designated as "7.93% America West Airlines [Initial] [Exchange] Pass Through
Certificates, Series 1999-1G-O" (herein called the "Certificates"). This
Certificate is issued under and is subject to the terms, provisions, and
conditions of the Agreement. By virtue of its acceptance hereof the
Certificateholder of this Certificate assents to and agrees to be bound by the
provisions of the Agreement and the Intercreditor Agreement. The property of the
Trust includes an interest in certain Equipment Notes and all rights of the
Trust to receive payments under the Intercreditor Agreement, the Policy and any
Liquidity Facility (the "Trust Property"). Each issue of the Equipment Notes is
secured by, among other things, a security interest in the Aircraft leased to or
owned by the Company.
- ----------
* To be included on the face of each Global Certificate.
<PAGE> 68
A-4
The Certificates represent fractional undivided interests in
the Trust and the Trust Property, and have no rights, benefits or interest in
respect of any assets or property other than the Trust Property.
Subject to and in accordance with the terms of the Agreement
and the Intercreditor Agreement, from and to the extent of funds then available
to the Trustee, there will be distributed on each January 2 and July 2 (a
"Regular Distribution Date"), commencing on January 2, 2000, to the Person in
whose name this Certificate is registered at the close of business on the 15th
day preceding the Regular Distribution Date, an amount in respect of the
Scheduled Payments due on such Regular Distribution Date on the Equipment Notes,
the receipt of which has been confirmed by the Trustee, equal to the product of
the percentage interest in the Trust evidenced by this Certificate and an amount
equal to the sum of such Scheduled Payments. Subject to and in accordance with
the terms of the Agreement and the Intercreditor Agreement, in the event that
Special Payments on the Equipment Notes are received by the Trustee, from funds
then available to the Trustee, there shall be distributed on the applicable
Special Distribution Date, to the Person in whose name this Certificate is
registered at the close of business on the 15th day preceding the Special
Distribution Date, an amount in respect of such Special Payments on the
Equipment Notes, the receipt of which has been confirmed by the Trustee, equal
to the product of the percentage interest in the Trust evidenced by this
Certificate and an amount equal to the sum of such Special Payments so received.
If a Regular Distribution Date or Special Distribution Date is not a Business
Day, distribution shall be made on the immediately following Business Day with
the same force and effect as if made on such Regular Distribution Date or
Special Distribution Date and no interest shall accrue during the intervening
period. The Trustee shall mail notice of each Special Payment and the Special
Distribution Date therefor to the Certificateholder of this Certificate.
The Certificates do not represent a direct obligation of, or
an obligation guaranteed by, or an interest in, the Company or the Trustee or
any of their affiliates. The Certificates are limited in right or payment, all
as more specifically set forth on the face hereof and in the Agreement. All
payments or distributions made to Certificateholders under the Agreement shall
be made only from the Trust Property and only to the extent that the Trustee
shall have sufficient income or proceeds from the Trust Property to make such
payments in accordance with the terms of the Agreement. Each Certificate-holder
of this Certificate, by its acceptance hereof, agrees that it will look solely
to the income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Agreement. This
Certificate does not purport to summarize the Agreement and reference is made to
the Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby. A copy of the Agreement may
be examined during normal business hours at the principal office of the Trustee,
and at such other places, if any, designated by the Trustee, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Certificateholders under the
Agreement at any time by the Company and the Trustee with the consent of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust. Any
such consent by the Certificateholder of this Certificate shall be conclusive
and binding on such Certificateholder and
<PAGE> 69
A-5
upon all future Certificateholders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent is made upon this Certificate. The Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of the Certificateholders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Register upon surrender of this Certificate for registration of transfer
at the offices or agencies maintained by the Trustee in its capacity as
Registrar, or by any successor Registrar, in the Borough of Manhattan, the City
of New York, duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Trustee and the Registrar duly executed by the
Certificateholder hereof or such Certificateholder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate Fractional Undivided Interest in the Trust will be
issued to the designated transferee or transferees.
[The Holder of this Certificate is entitled to the benefits of
the Exchange and Registration Rights Agreement, dated as of September 21, 1999,
among the Company, the Trustee and the Initial Purchasers named therein (the
"Registration Rights Agreement"). In the event that no Registration Event has
occurred on or prior to the 210th day after the date of the issuance of the
Certificates, the interest rate per annum payable in respect of the Equipment
Notes and the Deposits shall be increased by 0.50%, from and including the 210th
day after the Issuance Date to but excluding the earlier of (i) the date on
which a Registration Event occurs and (ii) the date on which there cease to be
any Registrable Certificates (as defined in the Registration Rights Agreement).
In the event that the Shelf Registration Statement ceases to be effective at any
time during the period specified by Section 2(b)(B) of the Registration Rights
Agreement for more than 60 days, whether or not consecutive, during any 12-month
period, the interest rate per annum payable in respect of the Equipment Notes
and the Deposits shall be increased by 0.50% from the 61st day of the applicable
12- month period such Shelf Registration Statement ceases to be effective until
such time as the Shelf Registration Statement again becomes effective ( or, if
earlier, the end of the period specified by Section 2(b)(B) of the Registration
Rights Agreement).]*
Except as otherwise provided in the Agreement and
notwithstanding the above, the final distribution on this Certificate will be
made after notice mailed by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
of the Trustee specified in such notice.
Under certain circumstances set forth in Section 11.01 of the
Agreement, all of the Trustee's right, title and interest to the Trust Property
may be assigned, transferred and delivered to the Related Trustee of the Related
Trust pursuant to the Assignment and Assumption Agreement. Upon the
effectiveness of such Assignment and Assumption Agreement (the
- ----------
* To be included on the face of each Global Certificate.
<PAGE> 70
A-6
"Transfer"), the Trust shall be terminated, the Certificateholders shall receive
beneficial interests in the Related Trust in exchange for their interests in the
Trust equal to their respective beneficial interests in the Trust, the
Certificates representing Fractional Undivided Interests in the Trust shall be
deemed for all purposes of the Agreement and the Related Pass Through Trust
Agreement to be certificates representing the same fractional undivided
interests in the Related Trust and its trust property. Each Certificateholder,
by its acceptance of this Certificate or a beneficial interest herein, agrees to
be bound by the Assignment and Assumption Agreement and subject to the terms of
the Related Pass Through Trust Agreement as a certificateholder thereunder. From
and after the Transfer, unless and to the extent the context otherwise requires,
references herein to the Trust, the Agreement and the Trustee shall constitute
references to the Related Trust, the Related Pass Through Trust Agreement and
trustee of the Related Trust, respectively.
The Certificates are issuable only as registered Certificates
without coupons in minimum denominations of [$100,000]* [$1,000]** Fractional
Undivided Interest and integral multiples of $1,000 in excess thereof except
that one Certificate may be in a different denomination. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of authorized denominations evidencing the
same aggregate Fractional Undivided Interest in the Trust, as requested by the
Certificateholder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee shall require payment by the Holder of a
sum sufficient to cover any tax or governmental charge payable in connection
therewith.
Each Certificateholder or Investor that is not a United States
person within the meaning of Section 7701(a)(30) of the Internal Revenue Code,
as amended, by its acceptance of a Certificate or a beneficial interest therein,
agrees to indemnify and hold harmless the Trust and the Trustee from and against
any improper failure to withhold taxes from amounts payable to it or for its
benefit. Each Certificateholder and Investor, by its acceptance of this
Certificate or a beneficial interest herein, agrees to treat the Trust as a
grantor trust for all U.S. federal, state and local income tax purposes.
The Trustee, the Registrar, and any agent of the Trustee or
the Registrar may treat the person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Trustee, the Registrar,
nor any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement
and the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required
- --------
* To be included only on each Initial Certificate.
** To be included only on each Initial Certificate.
<PAGE> 71
A-7
to be distributed to them pursuant to the Agreement and the disposition of all
property held as part of the Trust Property.
UNTIL THE TRANSFER, THE AGREEMENT AND THIS CERTIFICATE SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. FROM AND AFTER THE TRANSFER, THE
AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Unless the certificate of authentication hereon has been
executed by the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
<PAGE> 72
A-8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: September 21, 1999
AMERICA WEST AIRLINES PASS THROUGH
TRUST, SERIES 1999-1G-O
By: WILMINGTON TRUST COMPANY, not in
its individual capacity
but solely as Trustee
By:
----------------------------------
Name:
Title:
<PAGE> 73
A-9
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates referred
to in the within-mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Trustee
By:
--------------------------------------------------
Authorized Officer
<PAGE> 74
A-10
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- -----------------
- -----------------
please print or typewrite name and address including zip code of assignee
- -----------------
the within Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
- -----------------
attorney to transfer said Certificate on the books of the Trustee with full
power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES
EXCEPT REGULATION S GLOBAL AND
REGULATION S DEFINITIVE CERTIFICATES]
In connection with any transfer of this Certificate occurring
prior to the date that is the earlier of the date of an effective Registration
Statement or the date two years after the later of the original issuance of this
Certificate or the last date on which this Certificate was held by America West
Airlines, Inc., the Trustee or any affiliate of such Persons, the undersigned
confirms that without utilizing any general solicitation or general advertising
that:
[Check One]
[ ] (a) this Certificate is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended, provided by Rule
144A thereunder.
or
[ ] (b) this Certificate is being transferred other than in accordance with (a)
above and documents are being furnished that comply with the conditions of
transfer set forth in this Certificate and the Agreement.
If neither of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Certificate in the name of any Person
other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 3.06 of the Agreement
shall have been satisfied.
<PAGE> 75
A-11
Date:__________________ [Name of Transferor]
NOTE: The signature must
correspond with the name as
written upon the face of
the within-mentioned
instrument in every
particular, without
alteration or any change
whatsoever.
Signature Guarantee: ______________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Certificate for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, as amended, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing representations
in order to claim the exemption from registration provided by Rule 144A.
Dated:__________________ _______________________________________
NOTE: To be executed by an executive officer.
<PAGE> 76
EXHIBIT B
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS OF CERTIFICATES PURSUANT TO REGULATION S
[date]
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Attention: Corporate Trust Trustee Administration
Re: America West Airlines Pass Through Trust (the "Trust"),
Series 1999-1G-O, America West Airlines Pass Through
Certificates, Series 1999-1G-O (the "Certificates")
Sirs:
In connection with our proposed sale of $_____ Fractional
Undivided Interest of the Certificates, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the Securities
Act of 1933, as amended, and, accordingly, we represent that:
(1) the offer of the Certificates was not made to a person in
the United States or to or for the account or benefit of a U.S. person;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we
nor any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(a) or Rule
904(a) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period
and the provisions of Rule 903(b)(2) or Rule 904(b)(1) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance with
the applicable provisions of Rule 903(b)(2) or Rule 904(b)(1), as the case may
be.
You and America West Airlines, Inc. are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any
<PAGE> 77
B-2
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Transferor]
<PAGE> 78
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS OF CERTIFICATES TO
NON-QIB INSTITUTIONAL ACCREDITED INVESTORS
[date]
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Attention: Corporate Trust Trustee Administration
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85043
AMERICA WEST AIRLINES
PASS THROUGH TRUST, SERIES 1999-1G-O (the "Trust")
Pass Through Certificates, Series 1999-1G-O
(the "Certificates")
Ladies and Gentlemen:
In connection with our proposed purchase of U.S. $[_____________]
Fractional Undivided Interest of Certificates, we confirm that:
1. We understand that any subsequent transfer of the Certificates is
subject to certain restrictions and conditions set forth in the Pass Through
Trust Agreement, dated as of September 21, 1999, between America West Airlines,
Inc. (the "Company") and Wilmington Trust Company (the "Trustee") relating to
the Certificates, and we agree to be bound by, and not to resell, pledge or
otherwise transfer the Certificates except in compliance with, such restrictions
and conditions and the Securities Act of 1933, as amended (the "Securities
Act").
2. We are purchasing Certificates having an aggregate principal amount
of not less than $100,000 and each account (if any) for which we are purchasing
Certificates is purchasing Certificates having an aggregate principal amount of
not less than $100,000.
3. We understand that the Certificates have not been registered under
the Securities Act, that the Certificates are being sold to us in a transaction
that is exempt from the registration requirements of the Securities Act and that
the Certificates may not be offered or resold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that, if we should sell any
Certificates within two years after the later of the original issuance of such
Certificate and the last date on which such
<PAGE> 79
C-2
Certificate is owned by the Company, the Trustee or any affiliate of any of such
persons, we will do so only (A) to the Company, (B) in accordance with Rule 144A
under the Securities Act to a "qualified institutional buyer" (as defined
therein), (C) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (D) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act or (E) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing any of the Certificates from us a notice
advising such purchaser that resales of the Certificates are restricted as
stated herein.
4. We understand that, on any proposed resale of any Certificates, we
will be required to furnish to the Company and the Trustee such certifications,
legal opinions and other information as the Company and the Trustee may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Certificates purchased by us will
bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Certificates, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or their investments.
6. We are acquiring the Certificates purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion and not with a view to any distribution of the Certificates, subject,
nevertheless to the understanding that the disposition of our property shall at
all times be and remain within our control.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy thereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:
-------------------------------
Name:
Title:
<PAGE> 80
EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
America West Airlines Pass Through Trust, Series 1999-1G
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated ____________, (the
"Agreement"), between Wilmington Trust Company, a Delaware banking corporation
("WTC"), not in its individual capacity except as expressly provided herein, but
solely as trustee under the Pass Through Trust Agreement dated as of September
21, 1999 (as amended, modified or otherwise supplemented from time to time, the
"Pass Through Trust Agreement") in respect of the America West Airlines Pass
Through Trust, Series 1999-1G-O (the "Assignor"), and Wilmington Trust Company,
a Delaware banking corporation, not in its individual capacity except as
expressly provided herein, but solely as trustee under the Pass Through Trust
Agreement dated as of September 21, 1999 (the "New Pass Through Trust
Agreement") in respect of the America West Airlines Pass Through Trust, Series
1999-1G-S (the "Assignee").
W I T N E S S E T H:
WHEREAS, the parties hereto desire to effect on the date
hereof (the "Transfer Date") (a) the transfer by the Assignor to the Assignee of
all of the right, title and interest of the Assignor in, under and with respect
to, among other things, the Trust Property and each of the documents listed in
Schedule I hereto (the "Scheduled Documents") and (b) the assumption by the
Assignee of the obligations of the Assignor (i) under the Scheduled Documents
and (ii) in respect of the Certificates issued under the Pass Through Trust
Agreement; and
WHEREAS, the Scheduled Documents permit such transfer upon
satisfaction of certain conditions heretofore or concurrently herewith being
complied with;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements herein contained, the parties hereto do hereby
agree as follows (capitalized terms used herein without definition having the
meaning ascribed thereto in the Pass Through Trust Agreement):
1. Assignment. The Assignor does hereby sell, assign, convey,
transfer and set over unto the Assignee as of the Transfer Date all of its
present and future right, title and interest in, under and with respect to the
Trust Property and the Scheduled Documents and each other contract, agreement,
document or instrument relating to the Trust Property or the Scheduled Documents
(such other contracts, agreements, documents or instruments, together with the
Scheduled Documents, to be referred to as the "Assigned Documents"), and any
proceeds therefrom, together with all documents and instruments evidencing any
of such right, title and interest.
2. Assumption. The Assignee hereby assumes for the benefit of
the Assignor and each of the parties listed in Schedule II hereto (collectively,
the "Beneficiaries") all of the duties and obligations of the Assignor, whenever
accrued, pursuant to the Assigned Documents and hereby confirms that it shall be
deemed a party to each of the Assigned Documents to which the Assignor is a
party and shall be bound by all the terms thereof (including the agreements and
obligations of the Assignor set forth therein) as if therein named as the
Assignor. Further, the Assignee hereby assumes for the benefit of the Assignor
and the Beneficiaries all of the duties
<PAGE> 81
D-2
and obligations of the Assignor under the Outstanding Certificates and hereby
confirms that the Certificates representing Fractional Undivided Interests under
the Pass Through Trust Agreement shall be deemed for all purposes of the Pass
Through Trust Agreement and the New Pass Through Trust Agreement to be
certificates representing the same fractional undivided interests under the New
Pass Through Trust Agreement equal to their respective beneficial interests in
the trust created under the Pass Through Trust Agreement.
3. Effectiveness. This Agreement shall be effective upon the
execution and delivery hereof by the parties hereto, and each Certificateholder,
by its acceptance of its Certificate or a beneficial interest therein, agrees to
be bound by the terms of this Agreement.
4. Payments. The Assignor hereby covenants and agrees to pay
over to the Assignee, if and when received following the Transfer Date, any
amounts (including any sums payable as interest in respect thereof) paid to or
for the benefit of the Assignor that, under Section 1 hereof, belong to the
Assignee.
5. Further Assurances. The Assignor shall, at any time and
from time to time, upon the request of the Assignee, promptly and duly execute
and deliver any and all such further instruments and documents and take such
further action as the Assignee may reasonably request to obtain the full
benefits of this Agreement and of the right and powers herein granted. The
Assignor agrees to deliver the Global Certificates, and all Trust Property, if
any, then in the physical possession of the Assignor, to the Assignee.
6. Representations and Warranties. (a) The Assignee represents
and warrants to the Assignor and each of the Beneficiaries that:
(i) it has all requisite power and authority and legal right
to enter into and carry out the transactions contemplated hereby and to
carry out and perform the obligations of the "Pass Through Trustee"
under the Assigned Documents;
(ii) on and as of the date hereof, the representations and
warranties of the Assignee set forth in Section 7.15 of the New Pass
Through Trust Agreement are true and correct.
(b) The Assignor represents and warrants to the Assignee that:
(i) it is duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has the full trust
power, authority and legal right under the laws of the State of
Delaware and the United States pertaining to its trust and fiduciary
powers to execute and deliver this Agreement;
(ii) the execution and delivery by it of this Agreement and
the performance by it of its obligations hereunder have been duly
authorized by it and will not violate its articles of association or
by-laws or the provisions of any indenture, mortgage, contract or other
agreement to which it is a party or by which it is bound; and
(iii) this Agreement constitutes the legal, valid and binding
obligations of it enforceable against it in accordance with its terms,
except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
<PAGE> 82
D-3
the rights of creditors generally and by general principles of equity,
whether considered in a proceeding at law or in equity.
7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK INCLUDING MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES
OF CONFLICTS OF LAWS.
8. Counterparts. This Agreement may be executed in any number
of counterparts, all of which together shall constitute a single instrument. It
shall not be necessary that any counterpart be signed by both parties so long as
each party shall sign at least one counterpart.
9. Third Party Beneficiaries. The Assignee hereby agrees, for
the benefit of the Beneficiaries, that its representations, warranties and
covenants contained herein are also intended to be for the benefit of each
Beneficiary, and each Beneficiary shall be deemed to be an express third party
beneficiary with respect thereto, entitled to enforce directly and in its own
name any rights or claims it may have against such party as such beneficiary.
IN WITNESS WHEREOF, the parties hereto, through their
respective officers thereunto duly authorized, have duly executed this
Assignment as of the day and year first above written.
ASSIGNOR:
WILMINGTON TRUST COMPANY,
not in its individual
capacity except as
expressly provided herein,
but solely as trustee under
the Pass Through Trust
Agreement in respect of the
America West Airlines Pass
Through Trust 1999-1G-O
By:
Title:
ASSIGNEE:
WILMINGTON TRUST COMPANY,
not in its individual
capacity except as
expressly provided herein,
but solely as trustee under
the Pass Through Trust
Agreement in respect of the
America West Airlines Pass
Through Trust 1999-1G-S
By:
Title:
<PAGE> 83
Schedule I
Schedule of Assigned Documents
(1) Intercreditor Agreement dated as of September 21, 1999 among the
Trustee, the Other Trustee, the Policy Provider, the Liquidity
Provider, the liquidity provider, if any, relating to the Certificates
issued under (and as defined in) the Other Pass Through Trust Agreement
and the Subordination Agent.
(2) Registration Rights Agreement dated as of September 21, 1999 among the
Initial Purchasers, the Trustee, the Other Trustee, and the Company.
(3) Escrow and Paying Agent Agreement (Class G) dated as of September 21,
1999 among the Escrow Agent, the Initial Purchasers, the Trustee and
the Paying Agent.
(4) Note Purchase Agreement dated as of September 21, 1999 among the
Company, the Trustee, the Other Trustee, the Depositary, the Escrow
Agent, the Paying Agent and the Subordination Agent.
(5) Deposit Agreement (Class G) dated as of September 21, 1999 between the
Escrow Agent and the Depositary.
(6) The Policy dated September 21, 1999, as defined in the Intercreditor
Agreement.
(7) The Policy Provider Agreement dated September 21, 1999, as defined in
the Intercreditor Agreement.
(8) Each of the Operative Agreements (as defined in the Participation
Agreement for each Aircraft) in effect as of the Transfer Date.
<PAGE> 84
Schedule II
Schedule of Beneficiaries
Wilmington Trust Company, not in its individual capacity but solely as
Subordination Agent.
Wilmington Trust Company, not in its individual capacity but solely as Paying
Agent
Morgan Stanley Capital Services, Inc., as Liquidity Provider
America West Airlines, Inc.
Morgan Stanley & Co. Incorporated, as Initial Purchaser
Donaldson, Lufkin & Jenrette Securities Corporation, as Initial Purchaser
Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Initial Purchaser
Salomon Smith Barney Inc., as Initial Purchaser
Wilmington Trust Company, as Escrow Agent
Ambac Assurance Corporation, as Policy Provider
Each of the other parties to the Assigned Documents
<PAGE> 85
EXHIBIT E
FORM OF NOTICE TO DESIGNATE NOMINEE AS WITHHOLDING AGENT
(Treas. Reg. Section 1.1445-8(f); 17 C.F.R. 240.10b-17(b)(1))
[DATE]
National Association of
Securities Dealers, Inc.
Market Operations
80 Merritt Blvd.
Trumbull, CT 06611
Re: America West Airlines Pass Through Trust, Series 1999-1G-O
Pass Through Certificates, Series 1999-1G-O
With respect to distributions to be made on [INSERT
DISTRIBUTION DATE] to holders of the above-referenced Pass Through Certificates
in the amount of $ ____ per $1,000 principal amount of Certificate, we hereby
designate the appropriate nominees to withhold from amounts distributable to any
non-U.S. Person such amounts as required by Section 1446 of the Internal Revenue
Code of 1986, as amended. The term "non-U.S. Person" means any person or entity
that, for U.S. federal income tax purposes, is not a "U.S. Person." "U.S.
Person" for this purpose means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized under the laws of
the United States or any political subdivision thereof, or an estate or trust,
the income of which is subject to U.S. federal income taxation regardless of its
source. The date of record for determining holders of Certificates entitled to
receive the distribution on [INSERT DISTRIBUTION DATE] is [INSERT RELATED RECORD
DATE].
Very truly yours,
<PAGE> 1
EXHIBIT 4.6
EXECUTION COPY
- --------------------------------------------------------------------------------
PASS THROUGH TRUST AGREEMENT
Dated as of September 21, 1999
between
AMERICA WEST AIRLINES, INC.
and
WILMINGTON TRUST COMPANY,
as Trustee
America West Airlines Pass Through Trust, Series 1999-1G-S
7.93% Initial Pass Through Certificates, Series 1999-1G-S
7.93% Exchange Pass Through Certificates, Series 1999-1G-S
- --------------------------------------------------------------------------------
<PAGE> 2
Reconciliation and tie between America West Airlines Pass Through Trust
Agreement, Series 1999-1G-S dated as of September 21, 1999, and the Trust
Indenture Act of 1939. This reconciliation does not constitute part of the Pass
Through Trust Agreement.
<TABLE>
<CAPTION>
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
------------------- -----------------
<S> <C>
310(a)(1) 7.08
(a)(2) 7.08
312(a) 3.05; 8.01; 8.02
313(a) 7.06; 8.03
314(a) 8.04(a),(c) & (d)
(a)(4) 8.04(e)
(c)(1) 1.02
(c)(2) 1.02
(d)(1) 7.13; 11.01
(d)(2) 7.13; 11.01
(d)(3) 2.01
(e) 1.02
315(b) 7.02
316(a)(last sentence) 1.04(c)
(a)(1)(A) 6.04
(a)(1)(B) 6.05
(b) 6.06
(c) 1.04(e)
317(a)(1) 6.03
(b) 7.13
318(a) 12.06
</TABLE>
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
ARTICLE I DEFINITIONS ......................................................................................................... 2
Section 1.01. Definitions............................................................................................ 2
Section 1.02. Compliance Certificates and Opinions .................................................................. 13
Section 1.03. Form of Documents Delivered to Trustee ................................................................ 14
Section 1.04. Directions of Certificateholders ...................................................................... 14
ARTICLE II ACQUISITION OF TRUST PROPERTY ..................................................................................... 16
Section 2.01. Acquisition of Trust Property ......................................................................... 16
Section 2.02. Acceptance by the Trustee ............................................................................. 16
Section 2.03. Limitation of Powers .................................................................................. 16
ARTICLE III THE CERTIFICATES ................................................................................................. 17
Section 3.01. Title, Form, Denomination and Execution of Certificates ............................................... 17
Section 3.02. Restrictive Legends ................................................................................... 19
Section 3.03. Authentication of Certificates ........................................................................ 20
Section 3.04. Transfer and Exchange ................................................................................. 21
Section 3.05. Book-Entry Provisions for Restricted Global Certificates and Regulation S Global Certificates ......... 22
Section 3.06. Special Transfer Provisions ........................................................................... 23
Section 3.07. Mutilated, Destroyed, Lost or Stolen Certificates ..................................................... 26
Section 3.08. Persons Deemed Owners ................................................................................. 27
Section 3.09. Cancellation .......................................................................................... 27
Section 3.10. Temporary Certificates ................................................................................ 27
Section 3.11. Limitation of Liability for Payments .................................................................. 27
ARTICLE IV DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS ................................................................... 28
Section 4.01. Certificate Account and Special Payments Account ...................................................... 28
Section 4.02. Distributions from Certificate Account and Special Payments Account ................................... 28
Section 4.03. Statements to Certificateholders ...................................................................... 30
Section 4.04. Investment of Special Payment Moneys .................................................................. 31
ARTICLE V THE COMPANY ........................................................................................................ 31
Section 5.01. Maintenance of Corporate Existence .................................................................... 31
Section 5.02. Consolidation, Merger, Etc ............................................................................ 31
ARTICLE VI DEFAULT ........................................................................................................... 32
Section 6.01. Events of Default ..................................................................................... 32
Section 6.02. Incidents of Sale of Equipment Notes .................................................................. 34
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee May Bring Suit .................................... 35
Section 6.04. Control by Certificateholders ......................................................................... 35
Section 6.05. Waiver of Past Defaults ............................................................................... 36
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
Section 6.06. Right of Certificateholders to Receive Payments Not to Be Impaired .................................... 36
Section 6.07. Certificateholders May Not Bring Suit Except Under Certain Conditions ................................. 37
Section 6.08. Remedies Cumulative ................................................................................... 37
ARTICLE VII THE TRUSTEE ...................................................................................................... 37
Section 7.01. Certain Duties and Responsibilities ................................................................... 37
Section 7.02. Notice of Defaults .................................................................................... 38
Section 7.03. Certain Rights of Trustee ............................................................................. 38
Section 7.04. Not Responsible for Recitals or Issuance of Certificates .............................................. 39
Section 7.05. May Hold Certificates ................................................................................. 40
Section 7.06. Money Held in Trust ................................................................................... 40
Section 7.07. Compensation and Reimbursement ........................................................................ 40
Section 7.08. Corporate Trustee Required; Eligibility ............................................................... 41
Section 7.09. Resignation and Removal; Appointment of Successor ..................................................... 42
Section 7.10. Acceptance of Appointment by Successor ................................................................ 43
Section 7.11. Merger, Conversion, Consolidation or Succession to Business ........................................... 43
Section 7.12. Maintenance of Agencies ............................................................................... 44
Section 7.13. Money for Certificate Payments to Be Held in Trust .................................................... 45
Section 7.14. Registration of Equipment Notes in Name of Subordination Agent ........................................ 45
Section 7.15. Representations and Warranties of Trustee ............................................................. 45
Section 7.16. Withholding Taxes, Information Reporting .............................................................. 46
Section 7.17. Trustee's Liens ....................................................................................... 47
Section 7.18. Preferential Collection of Claims ..................................................................... 47
ARTICLE VIII CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE ................................................................ 47
Section 8.01. The Company to Furnish Trustee with Names and Addresses of Certificateholders ......................... 47
Section 8.02. Preservation of Information; Communications to Certificateholders ..................................... 48
Section 8.03. Reports by Trustee .................................................................................... 48
Section 8.04. Reports by the Company ................................................................................ 48
ARTICLE IX SUPPLEMENTAL AGREEMENTS ........................................................................................... 49
Section 9.01. Supplemental Agreements Without Consent of Certificateholders ......................................... 49
Section 9.02. Supplemental Agreements with Consent of Certificateholders ............................................ 50
Section 9.03. Documents Affecting Immunity or Indemnity ............................................................. 51
Section 9.04. Execution of Supplemental Agreements .................................................................. 52
Section 9.05. Effect of Supplemental Agreements ..................................................................... 52
Section 9.06. Conformity with Trust Indenture Act ................................................................... 52
Section 9.07. Reference in Certificates to Supplemental Agreements .................................................. 52
</TABLE>
ii
<PAGE> 5
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
ARTICLE X AMENDMENTS TO INDENTURES AND FINANCING DOCUMENTS ................................................................... 52
Section 10.01. Amendments and Supplements to Indentures and Financing Documents ...................................... 52
ARTICLE XI TERMINATION OF TRUST .............................................................................................. 53
Section 11.01. Termination of the Trust .............................................................................. 53
ARTICLE XII MISCELLANEOUS PROVISIONS ......................................................................................... 54
Section 12.01. Limitation on Rights of Certificateholders ............................................................ 54
Section 12.02. Certificates Nonassessable and Fully Paid ............................................................. 54
Section 12.03. Notices ............................................................................................... 55
Section 12.04. Governing Law ......................................................................................... 56
Section 12.05. Severability of Provisions ............................................................................ 56
Section 12.06. Trust Indenture Act Controls .......................................................................... 56
Section 12.07. Effect of Headings and Table of Contents .............................................................. 56
Section 12.08. Successors and Assigns ................................................................................ 56
Section 12.09. Benefits of Agreement ................................................................................. 56
Section 12.10. Legal Holidays ........................................................................................ 56
Section 12.11. Counterparts .......................................................................................... 57
Section 12.12. Intention of Parties .................................................................................. 57
Exhibit A - Form of Certificate to Request Removal of Restricted Legend
Exhibit B - Form of Certificate to be Delivered by an Institutional Accredited Investor
</TABLE>
iii
<PAGE> 6
PASS THROUGH TRUST AGREEMENT
This PASS THROUGH TRUST AGREEMENT, dated as of September 21, 1999, (the
"Agreement") between AMERICA WEST AIRLINES, INC., a Delaware corporation, and
WILMINGTON TRUST COMPANY, as Trustee, is made with respect to the formation of
America West Airlines Pass Through Trust, Series 1999-1G-S and the 7.93% America
West Airlines Pass Through Trust, Series 1999-1G-S Pass Through Certificates
representing fractional undivided interests in the Trust.
WITNESSETH:
WHEREAS, the Company has obtained commitments from AVSA for the
delivery of certain Aircraft;
WHEREAS, as of the Transfer Date, the Company will have financed (or
refinanced) the acquisition of all or a portion of the Aircraft either (i)
through separate leveraged lease transactions in which the Company will lease
such aircraft (collectively, the "Leased Aircraft") or (ii) through separate
secured loan transactions in which the Company will own such Aircraft
(collectively, the "Owned Aircraft");
WHEREAS, as of the Transfer Date, in the case of each Leased Aircraft,
each Owner Trustee, acting on behalf of the corresponding Owner Participant,
will have issued pursuant to an Indenture, on a non-recourse basis, two (or,
subject to satisfaction of certain preconditions contained in the Note Purchase
Agreement, three) series of Equipment Notes in order to finance a portion of its
purchase price of such Leased Aircraft;
WHEREAS, as of the Transfer Date, in the case of each Owned Aircraft,
the Company, will have issued pursuant to an Indenture, on a recourse basis, two
(or, subject to satisfaction of certain preconditions contained in the Note
Purchase Agreement, three) series of Equipment Notes to finance a portion of the
purchase price of such Owned Aircraft;
WHEREAS, as of the Transfer Date, the Related Trustee will assign,
transfer and deliver all of such trustee's right, title and interest to the
trust property held by the Related Trustee to the Trustee pursuant to the
Assignment and Assumption Agreement;
WHEREAS, the Trustee, effective only, but automatically, upon execution
and delivery of the Assignment and Assumption Agreement, will be deemed to have
declared the creation of the Trust for the benefit of the Certificateholders,
and each holder of Certificates outstanding as of the Transfer Date, as the
grantors of the Trust, by their respective acceptances of the Certificates, will
join in the creation of this Trust with the Trustee;
WHEREAS, all Certificates deemed issued by the Trust will evidence
fractional undivided interests in the Trust and will convey no rights, benefits
or interests in respect of any property other than the Trust Property except for
those Certificates to which an Escrow Receipt (as defined below) has been
affixed;
<PAGE> 7
-2-
WHEREAS, the Company has duly authorized the execution, delivery and
effectiveness of this Agreement as the "issuer", as such term is defined in and
solely for purposes of the Securities Act, of the Certificates deemed to be
issued pursuant hereto and as the "obligor", as such term is defined in and
solely for purposes of the Trust Indenture Act of 1939, as amended, with respect
to all such Certificates and is undertaking to perform certain administrative
and ministerial duties hereunder and is also undertaking to pay the ongoing fees
and expenses of the Trustee;
WHEREAS, upon the execution and delivery of the Assignment and
Assumption Agreement, all of the conditions and requirements necessary to make
this Agreement a valid, binding and legal instrument, enforceable in accordance
with its terms and for the purposes herein expressed, will have been done,
performed and fulfilled, and the execution and delivery of this Agreement in the
form and with the terms hereof will have been in all respects duly authorized;
and
WHEREAS, upon issuance of the Exchange Certificates, if any, or the
effectiveness of the Shelf Registration Statement, this Agreement, as amended or
supplemented from time to time, will be subject to the provisions of the Trust
Indenture Act of 1939, and shall, to the extent applicable, be governed by such
provisions;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For all purposes of this Agreement, except
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms used in this Agreement, including in the recitals to this
Agreement, that are defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, or by the rules
promulgated under the Trust Indenture Act, have the meanings assigned to them
therein;
(3) all references in this Agreement to designated "Articles",
"Sections", "Subsections" and other subdivisions are to the designated Articles,
Sections, Subsections and other subdivisions of this Agreement;
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Subsection or other subdivision; and
<PAGE> 8
-3-
(5) unless the context otherwise requires, whenever the words
"including", "include" or "includes" are used herein, it shall be deemed to be
followed by the phrase "without limitation".
Affiliate: Means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person. For the purposes of this definition,
"control" means the power, directly or indirectly, to direct the management and
policies of such Person, whether through the ownership of voting securities or
by contract or otherwise, and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
Agent Members: Has the meaning specified in Section 3.05.
Agreement: Has the meaning specified in the initial paragraph hereto.
Aircraft: Has the meaning specified in the Note Purchase Agreement.
Aircraft Purchase Agreement: Has the meaning specified in the Note
Purchase Agreement.
Assignment and Assumption Agreement: Means the assignment and
assumption agreement substantially in the form of Exhibit D to the Related Pass
Through Trust Agreement to be executed and delivered in accordance with Section
11.01 of the Related Pass Through Trust Agreement.
Authorized Agent: Means any Paying Agent or Registrar for the
Certificates.
Avoidable Tax: Means a state or local tax (i) upon (w) the Trust, (x)
the Trust Property, (y) Certificateholders or (z) the Trustee for which the
Trustee is entitled to seek reimbursement from the Trust Property, and (ii)
which would be avoided if the Trustee were located in another state, or
jurisdiction within a state, within the United States. A tax shall not be an
Avoidable Tax if the Company or any Owner Trustee shall agree to pay, and shall
pay, such tax.
AVSA: Means AVSA S.A.R.L., an affiliate of Airbus Industrie G.I.E.
Business Day: Means any day other than a Saturday, a Sunday or a day on
which commercial banks are required or authorized to close in Phoenix, Arizona,
New York, New York, Wilmington, Delaware or, so long as any Certificate is
outstanding, the city and state in which the Trustee or any Loan Trustee
maintains its Corporate Trust Office or receives and disburses funds.
Cedel: Means Cedel Bank societe anonyme.
Certificate: Means any one of the Initial Certificates or Exchange
Certificates issued by the Related Trust and that are "Outstanding" (as defined
in the Related Pass Through Trust Agreement) as of the Transfer Date (the
"Transfer Date Certificates") and
<PAGE> 9
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any such Initial Certificates or Exchange Certificates issued in exchange
therefor or replacement thereof pursuant to this Agreement.
Certificate Account: Means the account or accounts created and
maintained pursuant to Section 4.01(a).
Certificate Purchase Agreement: Means the Purchase Agreement dated
September 14, 1999 among the Initial Purchasers and the Company, as the same may
be amended, supplemented or otherwise modified from time to time in accordance
with its terms.
Certificateholder or Holder: Means the Person in whose name a
Certificate is registered in the Register.
Class D Certificateholder: Means, at any time, any holder of one or
more pass through certificates issued by the America West Airlines Pass Through
Trust, Series 1999-1D, if and when established.
Company: Means America West Airlines, Inc., a Delaware corporation, or
its successor in interest pursuant to Section 5.02, or (only in the context of
provisions hereof, if any, where such reference is required for purposes of
compliance with the Trust Indenture Act) any other "obligor" (within the meaning
of the Trust Indenture Act) with respect to the Certificates.
Controlling Party: Has the meaning specified in the Intercreditor
Agreement.
Corporate Trust Office: With respect to the Trustee or any Loan
Trustee, means the office of such trustee in the city at which at any particular
time its corporate trust business shall be principally administered.
Definitive Certificates: Has the meaning specified in Section 3.01(e).
Delivery Period Termination Date: Has the meaning specified in the
Related Pass Through Trust Agreement.
Deposits: Has the meaning specified in the Deposit Agreement.
Deposit Agreement: Means the Deposit Agreement dated as of September
21, 1999 relating to the Certificates between the Depositary and the Escrow
Agent, as the same may be amended, supplemented or otherwise modified from time
to time in accordance with its terms.
Depositary: Means ABN AMRO Bank N.V., acting through its Chicago
branch.
Direction: Has the meaning specified in Section 1.04(a).
Distribution Date: Means any Regular Distribution Date or Special
Distribution Date as the context requires.
<PAGE> 10
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DTC: Means The Depository Trust Company, its nominees and their
respective successors.
EBO Date: Means the date set forth on Schedule 1 to the Lease as the
"EBO Date".
Equipment Notes: Means the equipment notes issued under the Indentures.
Escrow Agent: Means, initially, Wilmington Trust Company, and any
replacement or successor therefor appointed in accordance with the Escrow
Agreement.
Escrow Agreement: Means the Escrow and Paying Agent Agreement dated as
of September 21, 1999 relating to the Certificates, among the Escrow Agent, the
Escrow Paying Agent, the Related Trustee (and after the Transfer Date, the
Trustee) and the Initial Purchasers, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Escrow Paying Agent: Means the Person acting as paying agent under the
Escrow Agreement.
Escrow Receipt: Means the receipt substantially in the form annexed to
the Escrow Agreement representing a fractional undivided interest in the funds
held in escrow thereunder.
Euroclear: Means Morgan Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
Event of Default: Means an Indenture Default under any Indenture
pursuant to which Equipment Notes held by the Trust were issued.
Exchange Certificates: Means the pass through certificates issued in
exchange for the Initial Certificates pursuant to the Registration Rights
Agreement and authenticated under the Related Pass Through Trust Agreement
(prior to the Transfer Date) or hereunder (after the Transfer Date).
Exchange Offer: Means the exchange offer which may be made pursuant to
the Registration Rights Agreement to exchange Initial Certificates for Exchange
Certificates.
Exchange Offer Registration Statement: Means the registration statement
that, pursuant to the Registration Rights Agreement, is filed by the Company
with the SEC with respect to the exchange of Initial Certificates for Exchange
Certificates.
Final Legal Distribution Date: Means July 2, 2020.
Final Withdrawal: Has the meaning specified in the Escrow Agreement.
Final Withdrawal Date: Has the meaning specified in the Escrow
Agreement.
<PAGE> 11
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Financing Documents: With respect to any Equipment Note, means (i) the
Indenture and the Participation Agreement relating to such Equipment Note, and
(ii) in the case of any Equipment Note related to a Leased Aircraft, the Lease
relating to such Leased Aircraft.
Fractional Undivided Interest: Means the fractional undivided interest
in the Trust that is evidenced by a Certificate.
Global Certificates: Has the meaning specified in Section 3.01(d).
Global Exchange Certificate: Has the meaning specified in Section
3.01(f).
Indenture: Means each of the separate trust indentures and mortgages
relating to the Aircraft, each as specified or described in a Delivery Notice
delivered pursuant to the Note Purchase Agreement or the related Participation
Agreement, in each case as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
Indenture Default: With respect to any Indenture, means any Event of
Default (as such term is defined in such Indenture).
Initial Certificates: Means the "Initial Certificates" issued and
authenticated under the Related Pass Through Trust Agreement, and any
certificates issued and authenticated thereunder substantially in the form of
Exhibit A thereto other than the Exchange Certificates.
Initial Purchasers: Means, collectively, Morgan Stanley & Co.
Incorporated, Donaldson, Lufkin & Jenrette Securities Corporation, Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Salomon Smith Barney Inc.
Institutional Accredited Investor: Means an institutional investor that
is an "accredited investor" within the meaning set forth in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act.
Intercreditor Agreement: Means the Intercreditor Agreement dated as of
September 21, 1999 among the Related Trustee (and after the Transfer Date, the
Trustee), the Related Other Trustee (and after the Transfer Date, the Other
Trustee), the Liquidity Provider, the liquidity provider relating to the
Certificates issued under (and as defined in) the Related Other Pass Through
Trust Agreement, the Policy Provider and Wilmington Trust Company, as
Subordination Agent and as trustee thereunder, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
Investors: Means the Initial Purchasers together with all subsequent
beneficial owners of the Certificates.
Issuance Date: Means the date of the issuance of the Initial
Certificates.
<PAGE> 12
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Lease: Means, with respect to each Leased Aircraft, the lease between
an Owner Trustee, as the lessor, and the Company, as the lessee, referred to in
the related Indenture, as such lease may be amended, supplemented or otherwise
modified in accordance with its terms.
Leased Aircraft: Has the meaning specified in the second recital to
this Agreement.
Liquidity Facility: Means, initially, the Revolving Credit Agreement
dated as of September 21, 1999 relating to the Certificates, between the
Liquidity Provider and the Subordination Agent, as agent and trustee for the
Trustee, and, from and after the replacement of such Agreement pursuant to the
Intercreditor Agreement, the replacement liquidity facility therefor, in each
case as amended, supplemented or otherwise modified from time to time in
accordance with their respective terms.
Liquidity Provider: Means, initially, Morgan Stanley Capital Services,
Inc., and any replacement or successor therefor appointed in accordance with the
Intercreditor Agreement.
Loan Trustee: With respect to any Equipment Note or the Indenture
applicable thereto, means the bank or trust company designated as trustee under
such Indenture, together with any successor to such trustee appointed pursuant
thereto.
Material Adverse Tax Event: Has the meaning specified in Section
17.3(a)(4) of the Lease.
Non-U.S. Person: Means a Person that is not a "U.S. person", as defined
in Regulation S.
Note Purchase Agreement: Means the Note Purchase Agreement dated as of
September 21, 1999 among the Related Trustee (and after the Transfer Date, the
Trustee), the Related Other Trustee (and after the Transfer Date, the Other
Trustee), the Company, the Escrow Agent, the Escrow Paying Agent and the
Subordination Agent, as the same may be amended, supplemented or otherwise
modified from time to time, in accordance with its terms.
Offering Circular: Means the Offering Memorandum dated September 14,
1999 relating to the offering of the Certificates and the other certificates
under the Related Other Pass Through Trust Agreement.
Officer's Certificate: Means a certificate signed, (a) in the case of
the Company, by any Vice President or more senior officer of the Company or, (b)
in the case of an Owner Trustee or a Loan Trustee, a Responsible Officer of such
Owner Trustee or such Loan Trustee, as the case may be.
Opinion of Counsel: Means a written opinion of legal counsel who (a) in
the case of counsel for the Company may be (i) the General Counsel of the
Company, (ii) Cooley Godward LLP, (iii) Vedder, Price, Kaufman & Kammholz, or
(iv) such other counsel
<PAGE> 13
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designated by the Company and reasonably acceptable to the Trustee and (b) in
the case of counsel for any Owner Trustee or any Loan Trustee may be such
counsel as may be designated by any of them whether or not such counsel is an
employee of any of them, and who shall be reasonably acceptable to the Trustee.
Other Pass Through Trust Agreement: Means the other America West
Airlines 1999-1 Pass Through Trust Agreement relating to America West Airlines
Pass Through Trust, Series 1999-1C-S.
Other Trustee: Means the trustee under the Other Pass Through Trust
Agreement, and any successor or other trustee appointed as provided therein.
Other Trust: Means the America West Airlines Pass Through Trust, Series
1999-1C-S, created under the Other Pass Through Trust Agreement.
Outstanding: When used with respect to Certificates, means, as of the
date of determination, all Transfer Date Certificates, and all other
Certificates theretofore authenticated and delivered under this Agreement, in
each case except:
(i) Certificates theretofore canceled by the Registrar or
delivered to the Trustee or the Registrar for cancellation;
(ii) Certificates for which money in the full amount required to
make the final distribution with respect to such Certificates pursuant
to Section 11.01 hereof has been theretofore deposited with the
Trustee in trust for the Holders of such Certificates as provided in
Section 4.01 pending distribution of such money to such
Certificateholders pursuant to payment of such final distribution; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been authenticated and delivered pursuant to this
Agreement.
Owned Aircraft: Has the meaning specified in the second recital to this
Agreement.
Owner Participant: With respect to any Equipment Note relating to a
Leased Aircraft, means the "Owner Participant" as referred to in the Indenture
pursuant to which such Equipment Note is issued and any permitted successor or
assign of such Owner Participant; and Owner Participants at any time of
determination means all of the Owner Participants thus referred to in the
Indentures.
Owner Trustee: With respect to any Equipment Note relating to a Leased
Aircraft, means the "Owner Trustee", as referred to in the Indenture pursuant to
which such Equipment Note is issued, not in its individual capacity but solely
as trustee; and Owner Trustees means all of the Owner Trustees party to any of
the Indentures.
<PAGE> 14
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Participation Agreement: Means each Participation Agreement to be
entered into by the Related Trustee pursuant to the Note Purchase Agreement, as
the same may be amended, supplemented or otherwise modified in accordance with
its terms.
Paying Agent: Means the paying agent maintained and appointed for the
Certificates pursuant to Section 7.12.
Permitted Investments: Means obligations of the United States of
America or agencies or instrumentalities thereof for the payment of which the
full faith and credit of the United States of America is pledged, maturing in
not more than 60 days after the date of acquisition thereof or such lesser time
as is required for the distribution of any Special Payments on a Special
Distribution Date.
Person: Means any person, including any individual, corporation,
limited liability company, partnership, joint venture, association, joint-stock
company, trust, trustee, unincorporated organization, or government or any
agency or political subdivision thereof.
Policy: Has the meaning specified in the Intercreditor Agreement.
Policy Provider: Has the meaning specified in the Intercreditor
Agreement.
Policy Provider Agreement: Has the meaning specified in the
Intercreditor Agreement.
Policy Provider Default: Has the meaning specified in the Intercreditor
Agreement.
Pool Balance: Means, as of any date, (i) the original aggregate face
amount of the "Certificates" as defined in the Related Pass Through Trust
Agreement, less (ii) the aggregate amount of all payments made in respect of
such Certificates other than payments made in respect of interest or premium
thereon or reimbursement of any costs or expenses incurred in connection
therewith. The Pool Balance as of any Distribution Date shall be computed after
giving effect to the payment of principal, if any, on the Equipment Notes or
other Trust Property held in such Trust and the distribution thereof to be made
on such Distribution Date and the distribution of the Final Withdrawal to be
made on such Distribution Date.
Pool Factor: Means, as of any date, the quotient (rounded to the
seventh decimal place) computed by dividing (i) the Pool Balance as at such date
by (ii) the original aggregate face amount of the "Certificates" as defined in
the Related Pass Through Trust Agreement. The Pool Factor as of any Distribution
Date shall be computed after giving effect to the payment of principal, if any,
on the Equipment Notes or other Trust Property and the distribution thereof to
be made on such Distribution Date and the distribution of the Final Withdrawal
to be made on such Distribution Date.
PTC Event of Default: Means any failure to pay within 10 Business Days
of the due date thereof: (i) the outstanding Pool Balance on the Final Legal
Distribution Date or (ii) interest due on the Certificates on any Distribution
Date (unless the Subordination
<PAGE> 15
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Agent shall have made an Interest Drawing or Drawings (as defined in the
Intercreditor Agreement), or a withdrawal or withdrawals pursuant to Section
3.6(f) of the Intercreditor Agreement, with respect thereto in an aggregate
amount sufficient to pay such interest and shall have distributed such amount to
the Trustee).
QIB: Means a qualified institutional buyer as defined in Rule 144A.
Record Date: Means (i) for Scheduled Payments to be distributed on any
Regular Distribution Date, other than the final distribution, the 15th day
(whether or not a Business Day) preceding such Regular Distribution Date, and
(ii) for Special Payments to be distributed on any Special Distribution Date,
other than the final distribution, the 15th day (whether or not a Business Day)
preceding such Special Distribution Date.
Register and Registrar: Mean the register maintained and the registrar
appointed pursuant to Sections 3.04 and 7.12.
Registration Event: Means the declaration of the effectiveness by the
SEC of the Exchange Offer Registration Statement or the Shelf Registration
Statement.
Registration Rights Agreement: Means the Exchange and Registration
Rights Agreement dated as of September 21, 1999, among the Initial Purchasers,
the Related Trustee (and after the Transfer Date, the Trustee), the Related
Other Trustee (and after the Transfer Date, the Other Trustee) and the Company,
as amended, supplemented or otherwise modified from time to time in accordance
with its terms.
Regular Distribution Date: With respect to distributions of Scheduled
Payments in respect of the Certificates, means each date designated as a Regular
Distribution Date in the Certificates issued pursuant to this Agreement, until
payment of all the Scheduled Payments to be made under the Equipment Notes held
in the Trust have been made; provided, however, that, if any such day shall not
be a Business Day, the related distribution shall be made on the next succeeding
Business Day without additional interest.
Regulation S: Means Regulation S under the Securities Act or any
successor regulation thereto.
Regulation S Definitive Certificates: Has the meaning specified in
Section 3.01(e).
Regulation S Global Certificates: Has the meaning specified in Section
3.01(d).
Related Other Pass Through Trust Agreement: Means the "Other Pass
Through Trust Agreement" as defined in the Related Pass Through Trust Agreement.
Related Other Trustee: Means the "Other Trustee" as defined in the
Related Pass Through Trust Agreement.
<PAGE> 16
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Related Other Trust: Means the "Other Trust" as defined in the Related
Pass Through Trust Agreement.
Related Pass Through Trust Agreement: Means the Pass Through Trust
Agreement relating to America West Airlines Pass Through Trust, Series
1999-1G-O, dated as of the date hereof, between the Company and the institution
acting as trustee thereunder, as amended, supplemented or otherwise modified
from time to time in accordance with its terms.
Related Trust: Means the America West Pass Through Trust, Series
1998-1G-O, formed under the Related Pass Through Trust Agreement.
Related Trustee: Means the trustee under the Related Pass Through Trust
Agreement.
Responsible Officer: With respect to the Trustee, any Loan Trustee and
any Owner Trustee, means any officer in the Corporate Trust Office of the
Trustee, Loan Trustee or Owner Trustee or any other officer customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with a particular subject.
Restricted Definitive Certificates: Has the meaning specified in
Section 3.01(e).
Restricted Global Certificate: Has the meaning specified in Section
3.01(c).
Restricted Legend: Has the meaning specified in Section 3.02.
Restricted Period: Has the meaning specified in Section 3.01(d).
Rule 144A: Means Rule 144A under the Securities Act and any successor
rule thereto.
Scheduled Payment: With respect to any Equipment Note, means (i) any
payment of principal or interest on or in respect of such Equipment Note (other
than any such payment which is not in fact received by the Subordination Agent
within five days of the date on which such payment is scheduled to be made) due
from the obligor thereon or (ii) any payment of interest on the Certificates
with funds drawn under any Liquidity Facility, or any payment of interest on or
principal of the Certificates with funds drawn under the Policy, which payment
in any such case represents the installment of principal at the stated maturity
of such installment of principal on such Equipment Note, the payment of
regularly scheduled interest accrued on the unpaid principal amount of such
Equipment Note, or both; provided that any payment of principal, premium, if
any, or interest resulting from the redemption or purchase of any Equipment Note
shall not constitute a Scheduled Payment.
SEC: Means the Securities and Exchange Commission, as from time to time
constituted or created under the United States Securities Exchange Act of 1934,
as
<PAGE> 17
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amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
Securities Act: Means the United States Securities Act of 1933, as
amended from time to time, or any successor thereto.
Shelf Registration Statement: Means the shelf registration statement
which may be required to be filed by the Company with the SEC pursuant to any
Registration Rights Agreement, other than an Exchange Offer Registration
Statement.
Special Distribution Date: Means each date on which a Special Payment
is to be distributed as specified in this Agreement; provided, however, that, if
any such day shall not be a Business Day, the related distribution shall be made
on the next succeeding Business Day without additional interest.
Special Redemption Premium: Means the premium payable by the Company in
respect of the Final Withdrawal pursuant to the Note Purchase Agreement.
Special Payment: Means any payment (other than a Scheduled Payment) in
respect of, or any proceeds of, any Equipment Note or Trust Indenture Estate (as
defined in each Indenture) or Special Redemption Premium.
Special Payments Account: Means the account or accounts created and
maintained pursuant to Section 4.01(b).
Subordination Agent: Has the meaning specified in the Intercreditor
Agreement.
Substitute Aircraft: Has the meaning specified in the Note Purchase
Agreement.
Tax: Means all license, recording, documentary, registration and other
similar fees and all taxes, levies, imposts, duties, charges, assessments or
withholdings of any nature whatsoever imposed by any Taxing Authority, together
with any penalties, additions to tax, fines or interest thereon or additions
thereto.
Taxing Authority: Means any federal, state or local government or other
taxing authority in the United States, any foreign government or any political
subdivision or taxing authority thereof, any international taxing authority or
any territory or possession of the United States or any taxing authority
thereof.
Transfer Date: Means the moment of execution and delivery of the
Assignment and Assumption Agreement by each of the parties thereto.
Transfer Date Certificates: Has the meaning specified in the definition
of "Certificates".
Trust: Means the trust created by this Agreement, the estate of which
consists of the Trust Property.
<PAGE> 18
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Trust Indenture Act: Means the United States Trust Indenture
Act of 1939, as amended from time to time, or any successor thereto.
Trust Property: Means (i) the Equipment Notes held as the
property of the Trust and, subject to the Intercreditor Agreement, all
monies at any time paid thereon and all monies due and to become due
thereunder, (ii) funds from time to time deposited in the Certificate
Account and the Special Payments Account and, subject to the
Intercreditor Agreement, any proceeds from the sale by the Trustee
pursuant to Article VI hereof of any Equipment Note and (iii) all
rights of the Trust and the Trustee, on behalf of the Trust, under the
Intercreditor Agreement, the Escrow Agreement, the Note Purchase
Agreement, the Policy and the Liquidity Facilities, including, without
limitation, all rights to receive certain payments thereunder, and all
monies paid to the Trustee on behalf of the Trust pursuant to the
Intercreditor Agreement, the Policy or the Liquidity Facilities,
provided, that rights with respect to the Deposits or under the Escrow
Agreement, except for the right to direct withdrawals for the purchase
of Equipment Notes to be held in the Related Pass Through Trust
Agreement, will not constitute Trust Property.
Trustee: Means Wilmington Trust Company, or its successor in
interest, and any successor or other trustee appointed as provided
herein.
Trustee's Lien: Has the meaning specified in Section 7.17.
Unindemnified Tax: Means (i) any Tax imposed on the net
income, net worth or capital, any franchise Tax or similar doing
business Tax of the Pass Through Trustee (other than any such Tax
imposed as a result of the Company's assumption of the Equipment Notes
pursuant to the purchase of an aircraft on an EBO Date or a Material
Adverse Tax Event), (ii) any withholding Tax imposed by the United
States (including, without limitation, any withholding Tax imposed by
the United States which is imposed or increased as a result of the Pass
Through Trustee failing to deliver to the Company any certificate or
document necessary to establish that payments under this Agreement are
exempt from withholding Tax), and (iii) any Avoidable Tax.
Section 1.02. Compliance Certificates and Opinions. Upon any
application or request (except with respect to matters set forth in Article II)
by the Company, any Owner Trustee or any Loan Trustee to the Trustee to take any
action under any provision of this Agreement, the Company, such Owner Trustee or
such Loan Trustee, as the case may be, shall furnish to the Trustee (i) an
Officer's Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and (ii) an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Agreement relating to such particular application or request,
no additional certificate or opinion need be furnished.
<PAGE> 19
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement (other than a certificate
provided pursuant to Section 8.04(e)) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions in
this Agreement relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters and any such Person may certify or give an opinion as to such
matters in one or several documents.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement or, in respect of the Certificates, this
Agreement, they may, but need not, be consolidated and form one instrument.
Section 1.04. Directions of Certificateholders. (a) Any direction,
consent, request, demand, authorization, notice, waiver or other action provided
by this Agreement to be given or taken by Certificateholders (a "Direction") may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Certificateholders in person or by an agent or proxy duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required pursuant to this
Agreement, to the Company or any Loan Trustee. Proof of execution of any such
instrument or of a writing appointing any such agent or proxy shall be
sufficient for any purpose of this Agreement and conclusive in favor of the
Trustee, the Company and any Loan Trustee, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the Person executing such instrument acknowledged to him
the execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or such other officer and where such execution is by
<PAGE> 20
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an officer of a corporation or association or a member of a partnership, on
behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other reasonable manner
which the Trustee deems sufficient.
(c) In determining whether the Certificateholders of the requisite
Fractional Undivided Interests of Certificates Outstanding have given any
Direction under this Agreement, Certificates owned by the Company or any
Affiliate thereof shall be disregarded and deemed not to be Outstanding for
purposes of any such determination. In determining whether the Trustee shall be
protected in relying upon any such Direction, only Certificates which the
Trustee knows to be so owned shall be so disregarded. Notwithstanding the
foregoing, (i) if any such Person owns 100% of the Certificates Outstanding,
such Certificates shall not be so disregarded, and (ii) if any amount of
Certificates so owned by any such Person have been pledged in good faith, such
Certificates shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Certificates and that the pledgee is not the Company or any Affiliate thereof.
(d) For all purposes of this Agreement, all Initial Certificates
constituting Certificates and all Exchange Certificates constituting
Certificates shall vote and take all other actions of Certificateholders
together as one series of Certificates.
(e) The Company may at its option, by delivery of an Officer's
Certificate to the Trustee, set a record date to determine the
Certificateholders entitled to give any Direction. Notwithstanding Section
316(c) of the Trust Indenture Act, such record date shall be the record date
specified in such Officer's Certificate, which shall be a date not more than 30
days prior to the first solicitation of Certificateholders in connection
therewith. If such a record date is fixed, such Direction may be given before or
after such record date, but only the Certificateholders of record at the close
of business on such record date shall be deemed to be Certificateholders for the
purposes of determining whether Certificateholders of the requisite proportion
of Outstanding Certificates have authorized or agreed or consented to such
Direction, and for that purpose the Outstanding Certificates shall be computed
as of such record date; provided that no such Direction by the
Certificateholders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Agreement not later than one
year after such record date.
(f) Any Direction by the Holder of any Certificate shall bind the
Holder of every Certificate issued upon the transfer thereof or in exchange
therefor or in lieu thereof, whether or not notation of such Direction is made
upon such Certificate.
(g) Except as otherwise provided in Section 1.04(c), Certificates owned
by or pledged to any Person shall have an equal and proportionate benefit under
the provisions of this Agreement, without preference, priority, or distinction
as among all of the Certificates.
<PAGE> 21
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ARTICLE II
ACQUISITION OF TRUST PROPERTY
Section 2.01. Acquisition of Trust Property. The Trustee is hereby
irrevocably authorized and directed to execute and deliver the Assignment and
Assumption Agreement on the date specified in Section 11.01 of the Related Pass
Through Trust Agreement, subject only to the satisfaction of the conditions to
such execution set forth in said Section 11.01. This Agreement (except only for
the immediately preceding sentence hereof, which is effective upon execution and
delivery hereof) shall become effective upon the execution and delivery of the
Assignment and Assumption Agreement by the Trustee and the Related Trustee,
automatically and without any further signature or action on the part of the
Company and the Trustee, and shall thereupon constitute the legal, valid and
binding obligation of the parties hereto enforceable against each of the parties
hereto in accordance with its terms. Upon such execution and delivery of the
Assignment and Assumption Agreement, the Related Trust shall be terminated, the
Certificateholders shall receive beneficial interests in the Trust in exchange
for their interests in the Related Trust equal to their respective beneficial
interests in the Related Trust and the "Outstanding" (as defined in the Related
Pass Through Trust Agreement) pass through certificates representing fractional
undivided interests in the Related Trust shall be deemed for all purposes of
this Agreement and the Related Pass Through Trust Agreement, without further
signature or action of any party or Certificateholder, to be Certificates
representing the same Fractional Undivided Interests in the Trust and the Trust
Property. By acceptance of its Certificate, each Certificateholder consents to
and ratifies such assignment, transfer and delivery of the trust property of the
Related Trust to the Trustee upon the execution and delivery of the Assignment
and Assumption Agreement.
Section 2.02. Acceptance by the Trustee. The Trustee, upon the
execution and delivery of the Assignment and Assumption Agreement, acknowledges
its acceptance of all right, title and interest in and to the Trust Property and
declares that the Trustee holds and will hold such right, title and interest for
the benefit of all then present and future Certificateholders, upon the trusts
herein set forth. Subject to Section 7.14, the Trustee shall take all actions
reasonably necessary to maintain the registration of all such Equipment Notes in
the name of the Subordination Agent. By the acceptance of each Certificate
issued to it under the Related Pass Through Trust Agreement and deemed issued
under this Agreement, each holder of any such Certificate as grantor of the
Trust thereby joins in the creation and declaration of the Trust.
Section 2.03. Limitation of Powers. The Trust is constituted solely for
the purpose of making the investment in the Equipment Notes, and, except as set
forth herein, the Trustee shall not be authorized or empowered to acquire any
other investments or engage in any other activities and, in particular, the
Trustee shall not be authorized or empowered to do anything that would cause
such Trust to fail to qualify as a "grantor trust" for federal income tax
purposes (including as subject to this restriction, acquiring any Aircraft (as
defined in the respective Indentures) by bidding such Equipment Notes or
otherwise, or taking any action with respect to any such Aircraft once
acquired).
<PAGE> 22
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ARTICLE III
THE CERTIFICATES
Section 3.01. Title, Form, Denomination and Execution of Certificates.
(a) The Initial Certificates constituting Certificates shall be known as the
"7.93% Initial Pass Through Certificates, Series 1999-1G-S" and the Exchange
Certificates constituting Certificates shall be known as the "7.93% Exchange
Pass Through Certificates, Series 1999-1G-S", in each case, of the Trust. Each
Certificate will represent a fractional undivided interest in the Trust and
shall be substantially in the form set forth as Exhibit A to the Related Pass
Through Trust Agreement, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by the Related
Pass Through Trust Agreement or this Agreement, as the case may be, or as the
Trustee may deem appropriate to reflect the fact that the Certificates are being
issued hereunder as opposed to the Related Pass Through Trust Agreement, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
Trustee or the officers executing such Certificates, as evidenced by the
Trustee's or officer's execution of the Certificates (provided that such
letters, numbers or other marks of identification and such legends or
endorsements are in a form acceptable to the Company). At the Escrow Agent's
request under the Escrow Agreement, the Trustee shall affix the corresponding
Escrow Receipt to any Certificate issued hereunder. Any transfer or exchange of
any Certificate shall also effect a transfer or exchange of the related Escrow
Receipt. Prior to the Final Withdrawal Date, no transfer or exchange of any
Certificate shall be permitted unless the corresponding Escrow Receipt is
attached thereto and also is so transferred or exchanged. By acceptance of any
Certificate to which an Escrow Receipt is attached, each Holder of such a
Certificate acknowledges and accepts the restrictions on transfer of the Escrow
Receipt set forth herein and in the Escrow Agreement.
(b) The Initial Certificates shall be issued only in fully registered
form without coupons and only in denominations of $100,000 or integral multiples
of $1,000 in excess thereof, except that one Certificate may be issued in a
different denomination. The Exchange Certificates will be issued in
denominations of $1,000 or integral multiples thereof, except that one
Certificate may be issued in a different denomination. Each Certificate shall be
dated the date of its authentication. The aggregate Fractional Undivided
Interest of Certificates shall not at any time exceed $233,668,000.
(c) The Initial Certificates offered and sold in reliance on Rule 144A
shall be in the form of one or more Global Certificates substantially in the
form of Exhibit A to the Related Pass Through Trust Agreement with such
applicable legends as are provided for in Section 3.02 (each a "Restricted
Global Certificate"). Such Restricted Global Certificates shall be in registered
form and be registered in the name of a nominee of DTC and deposited with the
Trustee, at its Corporate Trust Office, as custodian for DTC. The aggregate
principal amount of any Restricted Global Certificate may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for DTC for such Restricted Global Certificate, as provided in Section
3.06 hereof, which adjustments shall be conclusive as to the aggregate principal
amount of any such Global Certificate.
<PAGE> 23
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(d) The Initial Certificates offered and sold outside the United States
in reliance on Regulation S shall be in the form of one or more global
Certificates substantially in the form of Exhibit A to the Related Pass Through
Trust Agreement (each a "Regulation S Global Certificate"). Such Regulation S
Global Certificates shall be in registered form and be registered in the name of
a nominee of DTC and deposited with the Trustee, at its Corporate Trust Office,
as custodian for DTC, for credit initially and during the Restricted Period
(hereinafter defined) to the respective accounts of beneficial owners of such
Certificates (or to such other accounts as they may direct) at Morgan Guaranty
Trust Company of New York, Brussels office, as operator of Euroclear or Cedel.
As used herein, the term "Restricted Period", with respect to the Regulation S
Global Certificates offered and sold in reliance on Regulation S, means the
period of 40 consecutive days beginning on and including the later of (i) the
day on which the "Certificates" (as defined in the Related Pass Through Trust
Agreement are first offered to persons other than distributors (as defined in
Regulation S) in reliance on Regulation S and (ii) the date of the closing of
the offering under the Certificate Purchase Agreement. The aggregate principal
amount of any Regulation S Global Certificate may from time to time be increased
or decreased by adjustments made on the records of the Trustee, as custodian for
DTC for such Global Certificate, as provided in Section 3.06 hereof, which
adjustments shall be conclusive as to the aggregate principal amount of any such
Global Certificate. The Restricted Global Certificate and Regulation S Global
Certificate are sometimes collectively referred to herein as the "Global
Certificates".
(e) Initial Certificates offered and sold to any Institutional
Accredited Investor which is not a QIB in a transaction exempt from registration
under the Securities Act (and other than as described in Section 3.01(d)) shall
be substantially in the form of Exhibit A to the Related Pass Through Trust
Agreement in definitive, fully registered form without interest coupons with
such applicable legends as are provided for in Section 3.02 (the "Restricted
Definitive Certificates"). Certificates issued pursuant to Section 3.05(b) in
exchange for interests in a Regulation S Global Certificate shall be issued in
definitive, fully registered form without interest coupons (the "Regulation S
Definitive Certificates"). The Restricted Definitive Certificates and the
Regulation S Definitive Certificates are sometimes collectively referred to
herein as the "Definitive Certificates".
(f) The Exchange Certificates exchanged for Initial Certificates under
the Related Pass Through Trust Agreement shall be in the form of one or more
global Certificates substantially in the form of Exhibit A thereto (each, a
"Global Exchange Certificate"). Exchange Certificates issued under this Trust
shall be in the form of one or more global certificates substantially in the
form of Exhibit A to the Related Pass Through Trust Agreement except that (i)
the Restricted Legend (hereinafter defined) shall be omitted and (ii) such
Exchange Certificates shall contain such appropriate insertions, omissions,
substitutions and other variations from the form set forth in Exhibit A to the
Related Pass Through Trust Agreement relating to the nature of the Exchange
Certificates or to reflect the fact that the Certificates are being issued
hereunder as opposed to the Related Pass Through Trust Agreement, as the
Responsible Officer of the Trustee executing such Exchange Certificates on
behalf of the Trust may determine, as evidenced by such officer's execution on
behalf of the Trust of such Exchange Certificates. Such Global Exchange
Certificates shall be in registered form and be registered in the name of DTC
and deposited with the Trustee, at its Corporate Trust Office, as custodian for
DTC. The aggregate principal amount of any Global Exchange
<PAGE> 24
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Certificate may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for DTC for such Global Exchange
Certificate, which adjustments shall be conclusive as to the aggregate principal
amount of any such Global Exchange Certificate. Subject to clause (i) and (ii)
of the second sentence of this Section 3.01(f), the terms hereof applicable to
Restricted Global Certificates and/or Global Certificates shall apply to the
Global Exchange Certificates, mutatis mutandis.
(g) The Definitive Certificates shall be in registered form and shall
be typed, printed, lithographed or engraved or produced by any combination of
these methods or may be produced in any other manner, all as determined by the
officers executing such Certificates, as evidenced by their execution of such
Certificates.
Section 3.02. Restrictive Legends. All Initial Certificates issued for
resale pursuant to Rule 144A or offered and sold to any Institutional Accredited
Investor which is not a QIB (including any Global Certificate issued upon
registration of transfer, in exchange for or in lieu of such Certificates) shall
be "Restricted Certificates" and shall bear a legend to the following effect
(the "Restricted Legend") unless the Company and the Trustee determine otherwise
consistent with applicable law:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, ANY PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY
ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS CERTIFICATE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; (2) AGREES THAT IT
WILL NOT WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS
CERTIFICATE OR THE LAST DATE ON WHICH THIS CERTIFICATE WAS HELD BY AMERICA
WEST AIRLINES, INC., THE TRUSTEE OR ANY AFFILIATE OF ANY OF SUCH PERSONS
RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT (A) TO AMERICA WEST
AIRLINES, INC., (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT; AND (3) AGREES THAT IF IT
SHOULD RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE IT WILL DELIVER TO
EACH PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH
<PAGE> 25
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ANY TRANSFER OF THIS CERTIFICATE WITHIN TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE OF THIS CERTIFICATE OR THE LAST DATE ON WHICH THIS
CERTIFICATE WAS HELD BY AMERICA WEST AIRLINES, INC., THE TRUSTEE OR ANY
AFFILIATE OF ANY OF SUCH PERSONS, THE HOLDER MUST CHECK THE APPROPRIATE BOX
SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO
THEM BY REGULATION S UNDER THE SECURITIES ACT. THE PASS THROUGH TRUST
AGREEMENT CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER
ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
Each Global Certificate shall bear the following legend on the face
thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTIONS 3.05 AND 3.06 OF THE PASS THROUGH TRUST
AGREEMENT REFERRED TO HEREIN.
Section 3.03. Authentication of Certificates. (a) No Certificate shall
be entitled to any benefit under this Agreement or be valid or obligatory for
any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by the manual signature of one of its authorized signatories, and such
certificate upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder.
(b) Certificates bearing the manual or facsimile signature of an
individual who was, at the time when such signature was affixed, authorized to
sign on behalf of the Trustee shall be valid and binding obligations of the
Trust notwithstanding that such individual has
<PAGE> 26
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ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such office on the date of such Certificates.
Section 3.04. Transfer and Exchange. The Trustee shall cause to be kept
at the office or agency to be maintained by it in accordance with the provisions
of Section 7.12 a register (the "Register") of the Certificates in which,
subject to such reasonable regulations as it may prescribe, the Trustee shall
provide for the registration of such Certificates and of transfers and exchanges
of such Certificates as herein provided. The Trustee shall initially be the
registrar (the "Registrar") for the purpose of registering such Certificates and
transfers and exchanges of such Certificates as herein provided. The Company,
upon notice to the Trustee, may change the Registrar at any time.
All Certificates issued upon any registration of transfer or exchange
of Certificates shall be valid obligations of the Trust, evidencing the same
interest therein, and entitled to the same benefits under this Agreement, as the
Certificates surrendered upon such registration of transfer or exchange.
A Certificateholder may transfer a Certificate, or request that a
Certificate be exchanged for Certificates in an aggregate Fractional Undivided
Interest equal to the Fractional Undivided Interest of such Certificate
surrendered for exchange of other authorized denominations, by surrender of such
Certificate to the Trustee with the form of transfer notice thereon duly
completed and executed, and otherwise complying with the terms of this
Agreement, including providing evidence of compliance with any restrictions on
transfer, in form satisfactory to the Trustee and the Registrar; provided that
no exchanges of Initial Certificates for Exchange Certificates shall occur until
an Exchange Offer Registration Statement shall have been declared effective by
the SEC (notice of which shall be provided to the Trustee by the Company). No
such transfer shall be effected until, and such transferee shall succeed to the
rights of a Certificateholder only upon, final acceptance and registration of
the transfer by the Registrar in the Register. Prior to the registration of any
transfer by a Certificateholder as provided herein, the Trustee shall treat the
person in whose name the Certificate is registered as the owner thereof for all
purposes, and the Trustee shall not be affected by notice to the contrary.
Furthermore, DTC shall, by acceptance of a Global Certificate, agree that
transfers of beneficial interests in such Global Certificate may be effected
only through a book-entry system maintained by DTC (or its agent), and that
ownership of a beneficial interest in the Certificate shall be required to be
reflected in book-entry. When Certificates are presented to the Registrar with a
request to register the transfer thereof or to exchange them for other
authorized denominations of a Certificate in a Fractional Undivided Interest
equal to the aggregate Fractional Undivided Interest of Certificates surrendered
for exchange, the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transactions are met.
To permit registrations of transfers and exchanges in accordance with
the terms, conditions and restrictions hereof, the Trustee shall execute and
authenticate Certificates at the Registrar's request. No service charge shall be
made to a Certificateholder for any registration of transfer or exchange of
Certificates, but the Trustee shall require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates. All Certificates surrendered for
registration of transfer or exchange shall be canceled and subsequently
destroyed by the Trustee.
<PAGE> 27
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Section 3.05. Book-Entry Provisions for Restricted Global Certificates
and Regulation S Global Certificates. (a) Members of, or participants in, DTC
("Agent Members") shall have no rights under this Agreement with respect to any
Global Certificate held on their behalf by DTC, or the Trustee as its custodian,
and DTC may be treated by the Trustee and any agent of the Trustee as the
absolute owner of such Global Certificate for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Trustee or any
agent of the Trustee from giving effect to any written certification, proxy or
other authorization furnished by DTC or shall impair, as between DTC and its
Agent Members, the operation of customary practices governing the exercise of
the rights of a holder of any Certificate. Upon the issuance of any Global
Certificate, the Registrar or its duly appointed agent shall record DTC as the
registered holder of such Global Certificate.
(b) Transfers of any Global Certificate shall be limited to transfers
of such Restricted Global Certificate or Regulation S Global Certificate in
whole, but not in part, to DTC. Beneficial interests in the Restricted Global
Certificate and any Regulation S Global Certificate may be transferred in
accordance with the rules and procedures of DTC and the provisions of Section
3.06. Beneficial interests in a Restricted Global Certificate or a Regulation S
Global Certificate shall be (or, under the Related Pass Through Trust Agreement,
may have been) delivered to all beneficial owners thereof in the form of
Restricted Definitive Certificates or Regulation S Definitive Certificates, as
the case may be, if (i) DTC notifies the Trustee that it is unwilling or unable
to continue as depositary for such Restricted Global Certificate or Regulation S
Global Certificate, as the case may be, and a successor depositary is not
appointed by the Trustee within 90 days of such notice, and (ii) after the
occurrence and during the continuance of an Event of Default, owners of
beneficial interests in a Global Certificate with Fractional Undivided Interests
aggregating not less than a majority in interest in the Trust advise the
Trustee, the Company and DTC through Agent Members in writing that the
continuation of a book-entry system through DTC or its successor is no longer in
their best interests.
(c) Any beneficial interest in one of the Global Certificates that is
transferred to a Person who takes delivery in the form of an interest in another
Global Certificate will, upon such transfer, cease to be an interest in such
Global Certificate and become an interest in the other Global Certificate and,
accordingly, will thereafter be subject to all transfer restrictions, if any,
and other procedures applicable to beneficial interests in such other Global
Certificate for as long as it remains such an interest.
(d) In connection with the transfer of an entire Restricted Global
Certificate or an entire Regulation S Global Certificate to the beneficial
owners thereof pursuant to paragraph (b) of this Section 3.05, such Restricted
Global Certificate or Regulation S Global Certificate, as the case may be, shall
be deemed to be surrendered to the Trustee for cancellation, and the Trustee
shall execute, authenticate and deliver, to each beneficial owner identified by
DTC in exchange for its beneficial interest in such Restricted Global
Certificate or Regulation S Global Certificate, as the case may be, an equal
aggregate principal amount of Restricted Definitive Certificates or Regulation S
Definitive Certificates, as the case may be, of authorized denominations. None
of the Company, the Registrar, the Paying Agent nor the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such registration instructions. Upon the
issuance of Definitive Certificates, the Trustee shall
<PAGE> 28
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recognize the Person in whose name the Definitive Certificates are registered in
the Register as Certificateholders hereunder. Neither the Company nor the
Trustee shall be liable if the Trustee or the Company is unable to locate a
qualified successor clearing agency.
(e) Any Definitive Certificate delivered in exchange for an interest in
the Restricted Global Certificate pursuant to paragraph (b) of this Section 3.05
shall, except as otherwise provided by paragraph (e) of Section 3.06, bear the
Restricted Legend.
(f) Prior to the expiration of the Restricted Period, any Regulation S
Definitive Certificate delivered in exchange for an interest in a Regulation S
Global Certificate pursuant to paragraph (b) of this Section shall bear the
Restricted Legend.
(g) The registered holder of any Restricted Global Certificate or
Regulation S Global Certificate may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Agreement or the Certificates.
Section 3.06. Special Transfer Provisions. Unless and until (i) an
Initial Certificate is sold under an effective Shelf Registration Statement, or
(ii) an Initial Certificate is exchanged for an Exchange Certificate pursuant to
an effective Exchange Offer Registration Statement, in each case pursuant to the
terms of the Registration Rights Agreement, the following provisions shall apply
to such Initial Certificates:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Certificate to any Institutional Accredited Investor
which is neither a QIB nor a Non-U.S. Person:
(i) The Registrar shall register the transfer of any Certificate,
whether or not bearing the Restricted Legend, only if (x) the
requested transfer is at least two years after the later of the
original issue date of the Certificates and the last date on which
such Certificate was held by the Company, the Trustee or any affiliate
of any of such Persons or (y) the proposed transferor is an Initial
Purchaser who is transferring Certificates purchased under the
Certificates Purchase Agreement and the proposed transferee has
delivered to the Registrar a letter substantially in the form of
Exhibit B hereto and the aggregate principal amount of the
Certificates being transferred is at least $100,000. Except as
provided in the foregoing clause (y), the Registrar shall not register
the transfer of any Certificate to any Institutional Accredited
Investor which is neither a QIB nor a Non-U.S. Person.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in a Restricted Global Certificate, upon receipt
by the Registrar of (x) the documents, if any, required by paragraph
(i) and (y) instructions given in accordance with DTC's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date of the transfer and a decrease in the principal
amount of such Restricted Global Certificate in an amount equal to the
<PAGE> 29
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principal amount of the beneficial interest in such Restricted Global
Certificate to be transferred, and the Trustee shall execute,
authenticate and deliver to the transferor or at its direction, one or
more Restricted Definitive Certificates of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of an Initial
Certificate to a QIB (excluding Non-U.S. Persons):
(i) If the Certificate to be transferred consists of Restricted
Definitive Certificates, or of an interest in any Regulation S Global
Certificate during the Restricted Period, the Registrar shall register
the transfer if such transfer is being made by a proposed transferor
who has checked the box provided for on the form of Initial
Certificate stating, or has otherwise advised the Trustee and the
Registrar in writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Initial Certificate stating,
or has otherwise advised the Trustee and the Registrar in writing,
that it is purchasing the Initial Certificate for its own account or
an account with respect to which it exercises sole investment
discretion and that it, or the Person on whose behalf it is acting
with respect to any such account, is a QIB within the meaning of Rule
144A, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information
regarding the Trust and/or the Company as it has requested pursuant to
Rule 144A or has determined not to request such information and that
it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A.
(ii) Upon receipt by the Registrar of the documents required by
clause (i) above and instructions given in accordance with DTC's and
the Registrar's procedures therefor, the Registrar shall reflect on
its books and records the date of such transfer and an increase in the
principal amount of a Restricted Global Certificate in an amount equal
to the principal amount of the Restricted Definitive Certificates or
interests in such Regulation S Global Certificate, as the case may be,
being transferred, and the Trustee shall cancel such Definitive
Certificates or decrease the amount of such Regulation S Global
Certificate so transferred.
(c) Transfers of Interests in the Regulation S Global Certificate or
Regulation S Definitive Certificates. After the expiration of the
Restricted Period, the Registrar shall register any transfer of interests
in any Regulation S Global Certificate or Regulation S Definitive
Certificates without requiring any additional certification. Until the
expiration of the Restricted Period, interests in the Regulation S Global
Certificate may only be held through Agent Members acting for and on behalf
of Euroclear and Cedel.
(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any registration of any transfer of
an Initial Certificate to a Non-U.S. Person:
<PAGE> 30
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(i) Prior to the expiration of the Restricted Period, the
Registrar shall register any proposed transfer of an Initial
Certificate to a Non-U.S. Person upon receipt of a certificate
substantially in the form set forth as Exhibit A hereto from the
proposed transferor.
(ii) After the expiration of the Restricted Period, the Registrar
shall register any proposed transfer to any Non-U.S. Person if the
Certificate to be transferred is a Restricted Definitive Certificate
or an interest in a Restricted Global Certificate, upon receipt of a
certificate substantially in the form of Exhibit A from the proposed
transferor. The Registrar shall promptly send a copy of such
certificate to the Company.
(iii) Upon receipt by the Registrar of (x) the documents, if any,
required by clause (ii) and (y) instructions in accordance with DTC's
and the Registrar's procedures, the Registrar shall reflect on its
books and records the date of such transfer and a decrease in the
principal amount of such Restricted Global Certificate in an amount
equal to the principal amount of the beneficial interest in such
Restricted Global Certificate to be transferred, and, upon receipt by
the Registrar of instructions given in accordance with DTC's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the
Regulation S Global Certificate in an amount equal to the principal
amount of the Restricted Definitive Certificate or the Restricted
Global Certificate, as the case may be, to be transferred, and the
Trustee shall cancel the Definitive Certificate, if any, so
transferred or decrease the amount of such Restricted Global
Certificate.
(e) Restricted Legend. Upon the transfer, exchange or replacement of
Certificates not bearing the Restricted Legend, the Registrar shall deliver
Certificates that do not bear the Restricted Legend. Upon the transfer,
exchange or replacement of Certificates bearing the Restricted Legend, the
Registrar shall deliver only Certificates that bear the Restricted Legend
unless either (i) the circumstances contemplated by paragraph (d)(ii) of
this Section 3.06 exist or (ii) there is delivered to the Registrar an
Opinion of Counsel to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with
the provisions of the Securities Act.
(f) General. By acceptance of any Certificate bearing the Restricted
Legend, each Holder of such a Certificate acknowledges the restrictions on
transfer of such Certificate set forth in this Agreement and agrees that it
will transfer such Certificate only as provided in this Agreement. The
Registrar shall not register a transfer of any Certificate unless such
transfer complies with the restrictions on transfer, if any, of such
Certificate set forth in this Agreement. In connection with any transfer of
Certificates, each Certificateholder agrees by its acceptance of the
Certificates to furnish the Registrar or the Trustee such certifications,
legal opinions or other information as either of them may reasonably
require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration
requirements of the Securities Act and in accordance with the terms and
provisions of this Article III;
<PAGE> 31
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provided that the Registrar shall not be required to determine the
sufficiency of any such certifications, legal opinions or other
information.
Until such time as no Certificates remain Outstanding, the Registrar
shall retain copies of all letters, notices and other written communications
received pursuant to Section 3.05 or this Section 3.06. The Trustee, if not the
Registrar at such time, shall have the right to inspect and make copies of all
such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Registrar.
Section 3.07. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate is surrendered to the Registrar or the Registrar
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Registrar and the Trustee such
security, indemnity or bond, as may be required by them to save each of them
harmless, then, in the absence of notice to the Registrar or the Trustee that
such destroyed, lost or stolen Certificate has been acquired by a protected
purchaser, and provided that the requirements of Section 8-405 of the Uniform
Commercial Code in effect in any applicable jurisdiction are met, the Trustee
shall execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate or
Certificates, in authorized denominations and of like Fractional Undivided
Interest and bearing a number not contemporaneously outstanding.
In connection with the issuance of any new Certificate under this
Section 3.07, the Trustee may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee and the
Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section 3.07 shall
constitute conclusive evidence of the appropriate Fractional Undivided Interest
in the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.08. Persons Deemed Owners. Prior to due presentment of a
Certificate for registration of transfer, the Trustee, the Registrar and any
Paying Agent may treat the Person in whose name any Certificate is registered
(as of the day of determination) as the owner of such Certificate for the
purpose of receiving distributions pursuant to Article IV and for all other
purposes whatsoever, and none of the Trustee, the Registrar or any Paying Agent
shall be affected by any notice to the contrary.
Section 3.09. Cancellation. All Certificates surrendered for payment or
transfer or exchange shall, if surrendered to the Trustee or any agent of the
Trustee other than the Registrar, be delivered to the Registrar for cancellation
and shall promptly be canceled by it. No Certificates shall be authenticated in
lieu of or in exchange for any Certificates canceled as provided in this
Section, except as expressly permitted by this Agreement. All canceled
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Certificates held by the Registrar shall be destroyed and a certification of
their destruction delivered to the Trustee.
Section 3.10. Temporary Certificates. Until definitive Certificates are
ready for delivery, the Trustee shall authenticate temporary Certificates.
Temporary Certificates shall be substantially in the form of definitive
Certificates but may have insertions, substitutions, omissions and other
variations determined to be appropriate by the officers executing the temporary
Certificates, as evidenced by their execution of such temporary Certificates. If
temporary Certificates are issued, the Trustee will cause definitive
Certificates to be prepared without unreasonable delay. After the preparation of
definitive Certificates, the temporary Certificates shall be exchangeable for
definitive Certificates upon surrender of the temporary Certificates at the
office or agency of the Trustee designated for such purpose pursuant to Section
7.12, without charge to the Certificateholder. Upon surrender for cancellation
of any one or more temporary Certificates, the Trustee shall execute,
authenticate and deliver in exchange therefor a like face amount of definitive
Certificates of authorized denominations. Until so exchanged, the temporary
Certificates shall be entitled to the same benefits under this Agreement as
definitive Certificates.
Section 3.11. Limitation of Liability for Payments. All payments and
distributions made to Certificateholders in respect of the Certificates shall be
made only from the Trust Property and only to the extent that the Trustee shall
have sufficient income or proceeds from the Trust Property to make such payments
in accordance with the terms of Article IV of this Agreement. Each
Certificateholder, by its acceptance of a Certificate, agrees that it will look
solely to the income and proceeds from the Trust Property for any payment or
distribution due to such Certificateholder pursuant to the terms of this
Agreement and that it will not have any recourse to the Company, the Trustee,
the Loan Trustees, the Liquidity Provider, the Policy Provider, the Owner
Trustees or the Owner Participants, except as otherwise expressly provided
herein or in the Intercreditor Agreement.
The Company is a party to this Agreement solely for purposes of meeting
the requirements of the Trust Indenture Act, and therefore shall not have any
right, obligation or liability hereunder (except as otherwise expressly provided
herein).
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01. Certificate Account and Special Payments Account. (a) The
Trustee shall maintain on behalf of the Certificateholders a Certificate Account
as one or more non-interest-bearing accounts. The Trustee shall hold the
Certificate Account in trust for the benefit of the Certificateholders, and
shall make or permit withdrawals therefrom only as provided in this Agreement.
On each day when a Scheduled Payment is made to the Trustee under the
Intercreditor Agreement, the Trustee upon receipt thereof shall immediately
deposit the aggregate amount of such Scheduled Payment in the Certificate
Account.
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(b) The Trustee shall maintain on behalf of the Certificateholders a
Special Payments Account as one or more accounts, which shall be non-interest
bearing except as provided in Section 4.04. The Trustee shall hold the Special
Payments Account in trust for the benefit of the Certificateholders and shall
make or permit withdrawals therefrom only as provided in this Agreement. On each
day when one or more Special Payments are made to the Trustee under the
Intercreditor Agreement and upon the payment of the Special Redemption Premium
to the Trustee under the Note Purchase Agreement, the Trustee, upon receipt
thereof, shall immediately deposit the aggregate amount of such Special Payments
in the Special Payments Account.
(c) The Trustee shall cause the Subordination Agent to present to the
related Loan Trustee of each Equipment Note such Equipment Note on the date of
its stated final maturity or, in the case of any Equipment Note which is to be
redeemed in whole pursuant to the related Indenture, on the applicable
redemption date under such Indenture.
Section 4.02. Distributions from Certificate Account and Special
Payments Account. (a) On each Regular Distribution Date or as soon thereafter as
the Trustee has confirmed receipt of the payment of all or any part of the
Scheduled Payments due on such date, the Trustee shall distribute out of the
Certificate Account the entire amount deposited therein pursuant to Section
4.01(a). There shall be so distributed to each Certificateholder of record on
the Record Date with respect to such Regular Distribution Date (other than as
provided in Section 11.01 concerning the final distribution) by check mailed to
such Certificateholder, at the address appearing in the Register, such
Certificateholder's pro rata share (based on the Fractional Undivided Interest
in the Trust held by such Certificateholder) of the total amount in the
Certificate Account, except that, with respect to Certificates registered on the
Record Date in the name of DTC, such distribution shall be made by wire transfer
in immediately available funds to the account designated by DTC.
(b) On each Special Distribution Date with respect to any Special
Payment or as soon thereafter as the Trustee has confirmed receipt of any
Special Payments due on the Equipment Notes held in the related Trust or
realized upon the sale of such Equipment Notes or receipt of the Special
Redemption Premium, the Trustee shall distribute out of the Special Payments
Account the entire amount of such Special Payment deposited therein pursuant to
Section 4.01(b). There shall be so distributed to each Certificateholder of
record on the Record Date with respect to such Special Distribution Date (other
than as provided in Section 11.01 concerning the final distribution) by check
mailed to such Certificateholder, at the address appearing in the Register, such
Certificateholder's pro rata share (based on the Fractional Undivided Interest
in the Trust held by such Certificateholder) of the total amount in the Special
Payments Account on account of such Special Payment, except that, with respect
to Certificates registered on the Record Date in the name of DTC, such
distribution shall be made by wire transfer in immediately available funds to
the account designated by DTC.
(c) The Trustee shall cause notice of each Special Payment to be mailed
to each Certificateholder at his address as it appears in the Register. In the
event of redemption or purchase of Equipment Notes held in the Trust, such
notice shall be mailed not less than 20 days prior to the Special Distribution
Date for the Special Payment resulting from such redemption or purchase, which
Special Distribution Date shall be the date of such redemption or purchase. In
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the event of the payment of a Special Redemption Premium by the Company to the
Trustee under the Note Purchase Agreement, such notice shall be mailed, together
with the notice by the Escrow Paying Agent under Section 2.06 of the Escrow
Agreement, not less than 20 days prior to the Special Distribution Date for such
amount, which Special Distribution Date shall be the Final Withdrawal Date. In
the case of distributions pursuant to Section 3.7(c) or Section 3.7(e) of the
Intercreditor Agreement, the Trustee will mail notice to the Certificateholders
stating the Special Distribution Date, the related Record Date, the amount of
such distribution and the reason for such distribution. In the case of any other
Special Payments, such notice shall be mailed as soon as practicable after the
Trustee has confirmed that it has received funds for such Special Payment,
stating the Special Distribution Date for such Special Payment which shall occur
not less than 20 days after the date of such notice and as soon as practicable
thereafter. Notices mailed by the Trustee shall set forth:
(i) the Special Distribution Date and the Record Date therefor
(except as otherwise provided in Section 11.01),
(ii) the amount of the Special Payment for each $1,000 face
amount Certificate and the amount thereof constituting principal,
premium, if any, and interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a
Regular Distribution Date, the total amount to be received on such
date for each $1,000 face amount Certificate.
If the amount of (i) premium, if any, payable upon the redemption or purchase of
an Equipment Note or (ii) the Special Redemption Premium, if any, has not been
calculated at the time that the Trustee mails notice of a Special Payment, it
shall be sufficient if the notice sets forth the other amounts to be distributed
and states that any premium received will also be distributed.
If any redemption of the Equipment Notes held in the Trust is canceled,
the Trustee, as soon as possible after learning thereof, shall cause notice
thereof to be mailed to each Certificateholder at its address as it appears on
the Register.
Section 4.03. Statements to Certificateholders. (a) On each
Distribution Date, the Trustee will include with each distribution to
Certificateholders of a Scheduled Payment or Special Payment, as the case may
be, a statement setting forth the information provided below (in the case of a
Special Payment, including any Special Redemption Premium, reflecting in part
the information provided by the Escrow Paying Agent under the Escrow Agreement).
Such statement shall set forth (per $1,000 face amount Certificate as to (ii),
(iii), (iv) and (v) below) the following information:
(i) the aggregate amount of funds distributed on such Distribution
Date hereunder and under the Escrow Agreement, indicating the amount
allocable to each source;
(ii) the amount of such distribution hereunder allocable to principal
and the amount allocable to premium (including the Special Redemption
Premium), if any;
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(iii) the amount of such distribution hereunder allocable to interest;
and
(iv) the amount of such distribution under the Escrow Agreement
allocable to interest;
(v) the amount of such distribution under the Escrow Agreement
allocable to Deposits; and
(vi) the Pool Balance and the Pool Factor.
With respect to the Certificates registered in the name of DTC, on the
Record Date prior to each Distribution Date, the Trustee will request from DTC a
securities position listing setting forth the names of all Agent Members
reflected on DTC's books as holding interests in the Certificates on such Record
Date. On each Distribution Date, the Trustee will mail to each such Agent Member
the statement described above and will make available additional copies as
requested by such Agent Member for forwarding to holders of interests in the
Certificates.
(b) Within a reasonable period of time after the end of each calendar
year but not later than the latest date permitted by law, the Trustee shall
furnish to each Person who at any time during such calendar year was a
Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and (a)(v)
above for such calendar year or, in the event such Person was a
Certificateholder of record during a portion of such calendar year, for such
portion of such year, and such other items as are readily available to the
Trustee and which a Certificateholder shall reasonably request as necessary for
the purpose of such Certificateholder's preparation of its federal income tax
returns. Such statement and such other items shall be prepared on the basis of
information supplied to the Trustee by the Agent Members and shall be delivered
by the Trustee to such Agent Members to be available for forwarding by such
Agent Members to the holders of interests in the Certificates in the manner
described in Section 4.03(a).
(c) Promptly following (i) the Transfer Date, if there has been any
change in the information set forth in clauses (x), (y) and (z) below from that
set forth in pages 61-62 of the Offering Circular, and (ii) any early redemption
or purchase of, or any default in the payment of principal or interest in
respect of, any of the Equipment Notes held in the Trust, or any Final
Withdrawal, the Trustee shall furnish to Certificateholders of record on such
date a statement setting forth (x) the expected Pool Balances for each
subsequent Regular Distribution Date following the Delivery Period Termination
Date, (y) the related Pool Factors for such Regular Distribution Dates and (z)
the expected principal distribution schedule of the Equipment Notes, in the
aggregate, held as Trust Property at the date of such notice. With respect to
the Certificates registered in the name of DTC, on the Transfer Date, the
Trustee will request from DTC a securities position listing setting forth the
names of all Agent Members reflected on DTC's books as holding interests in the
"Certificates" (as defined in the Related Pass Through Trust Agreement) on the
Delivery Period Termination Date. The Trustee will mail to each such Agent
Member the statement described above and will make available additional copies
as requested by such Agent Member for forwarding to holders of interests in the
Certificates.
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Section 4.04. Investment of Special Payment Moneys. Any money received
by the Trustee pursuant to Section 4.01(b) representing a Special Payment which
is not distributed on the date received shall, to the extent practicable, be
invested in Permitted Investments by the Trustee pending distribution of such
Special Payment pursuant to Section 4.02. Any investment made pursuant to this
Section 4.04 shall be in such Permitted Investments having maturities not later
than the date that such moneys are required to be used to make the payment
required under Section 4.02 on the applicable Special Distribution Date and the
Trustee shall hold any such Permitted Investments until maturity. The Trustee
shall have no liability with respect to any investment made pursuant to this
Section 4.04, other than by reason of the willful misconduct or negligence of
the Trustee. All income and earnings from such investments shall be distributed
on such Special Distribution Date as part of such Special Payment.
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence. The Company, at its
own cost and expense, will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, except as
permitted by Section 5.02.
Section 5.02. Consolidation, Merger, Etc. The Company shall not
consolidate with or merge into any other corporation or convey, transfer or
lease substantially all of its assets as an entirety to any Person unless:
(a) the corporation formed by such consolidation or into which
the Company is merged or the Person that acquires by conveyance,
transfer or lease substantially all of the assets of the Company as an
entirety shall be (i) organized and validly existing under the laws of
the United States of America or any state thereof or the District of
Columbia, (ii) a "citizen of the United States" as defined in 49
U.S.C. 40102(a)(15), as amended, and (iii) a United States
certificated air carrier, if and so long as such status is a condition
of entitlement to the benefits of Section 1110 of the Bankruptcy
Reform Act of 1978, as amended (11 U.S.C. Section 1110);
(b) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance,
transfer or lease substantially all of the assets of the Company as an
entirety shall execute and deliver to the Trustee a duly authorized,
valid, binding and enforceable agreement in form and substance
reasonably satisfactory to the Trustee containing an assumption by
such successor corporation or Person of the due and punctual
performance and observance of each covenant and condition of this
Agreement, the Other Pass Through Trust Agreement and each Financing
Document to be performed or observed by the Company; and
(c) the Company shall have delivered to the Trustee an Officer's
Certificate of the Company reasonably satisfactory to the Trustee,
stating that such consolidation, merger, conveyance, transfer or lease
and the assumption agreement mentioned in clause (b) above comply with
this Section 5.02 and that all conditions precedent herein provided
for relating to such transaction have been complied with.
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Upon any consolidation or merger, or any conveyance, transfer or lease
of substantially all of the assets of the Company as an entirety in accordance
with this Section 5.02, the successor corporation or Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Agreement with the
same effect as if such successor corporation or Person had been named as the
Company herein. No such conveyance, transfer or lease of substantially all of
the assets of the Company as an entirety shall have the effect of releasing any
successor corporation or Person which shall have become such in the manner
prescribed in this Section 5.02 from its liability in respect of this Agreement
and any Financing Document to which it is a party.
ARTICLE VI
DEFAULT
Section 6.01. Events of Default. (a) Exercise of Remedies. Upon the
occurrence and during the continuation of any Indenture Default under any
Indenture, with ten days' written notice to the Trustee and each
Certificateholder, the Trustee may, to the extent it is the Controlling Party at
such time (as determined pursuant to the Intercreditor Agreement), direct the
exercise of remedies as provided in the Intercreditor Agreement.
(b) Purchase Rights of Certificateholders. By acceptance of its
Certificate, each Certificateholder agrees that at any time within 180 days
after the occurrence and during the continuation of a Triggering Event,
(i) each Class C Certificateholder shall have the right to purchase
all, but not less than all, of the Certificates upon ten days' written
notice to the Trustee and each other Class C Certificateholder, provided
that (A) if prior to the end of such ten-day period any other Class C
Certificateholder notifies such purchasing Class C Certificateholder that
such other Class C Certificateholder wants to participate in such purchase,
then such other Class C Certificateholder may join with the purchasing
Class C Certificateholder to purchase all, but not less than all, of the
Certificates pro rata based on the Fractional Undivided Interest in the
Class C Trust held by each such Class C Certificateholder and (B) if prior
to the end of such ten-day period any other Class C Certificateholder fails
to notify the purchasing Class C Certificateholder of such other Class C
Certificateholder's desire to participate in such a purchase, then such
other Class C Certificateholder shall lose its right to purchase the
Certificates pursuant to this Section 6.01(b);
(ii) each Class D Certificateholder shall have the right (which shall
not expire upon any purchase of the Certificates pursuant to clause (i)
above) to purchase all, but not less than all, of the Certificates and the
Class C Certificates upon ten days' written notice to the Trustee, the
Class C Trustee and each other Class D Certificateholder, provided that (A)
if prior to the end of such ten-day period any other Class D
Certificateholder notifies such purchasing Class D Certificateholder that
such other Class D Certificateholder wants to participate in such purchase,
then such other Class D Certificateholder may join with the purchasing
Class D Certificateholder to purchase all, but not less than all, of the
Certificates and the Class C Certificates pro rata based on the
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Fractional Undivided Interest in the Class D Trust, taken as a whole, held
by each such Class D Certificateholder and (B) if prior to the end of such
ten-day period any other Class D Certificateholder fails to notify the
purchasing Class D Certificateholder of such other Class D
Certificateholder's desire to participate in such a purchase, then such
other Class D Certificateholder shall lose its right to purchase the
Certificates pursuant to this Section 6.01(b); and
(iii) whether or not any Class C Certificateholders or Class D
Certificateholders exercise their right to purchase pursuant to clause (i)
or (ii) above, the Policy Provider, if it is then the Controlling Party and
180 days have elapsed since the occurrence of a Triggering Event that is
continuing, shall have the right (except in the event of a Policy Provider
Default) to purchase all, but not less than all, of the Certificates upon
ten days' written notice to the Trustee and the Certificateholders.
The purchase price with respect to the Certificates shall be equal to
the Pool Balance of the Certificates, together with accrued and unpaid interest
thereon to the date of such purchase, without premium, but including any other
amounts then due and payable to the Certificateholders under this Agreement, the
Intercreditor Agreement, the Escrow Agreement or any Financing Document or on or
in respect of the Certificates; provided, however, that (i) if such purchase
occurs after the record date specified in Section 2.03(b) of the Escrow
Agreement relating to the distribution of unused Deposits and accrued and unpaid
interest thereunder, such purchase price shall be reduced by the aggregate
amount of unused Deposits and interest to be distributed under the Escrow
Agreement (which deducted amounts shall remain distributable to, and may be
retained by, the Certificateholder as of such Record Date) and (ii) if such
purchase occurs after a Record Date, such purchase price shall be reduced by the
amount to be distributed hereunder on the related Distribution Date (which
deducted amounts shall remain distributable to, and may be retained by, the
Certificateholder as of such Record Date); provided, further, that no such
purchase of Certificates shall be effective unless the purchaser(s) shall
certify to the Trustee that contemporaneously with such purchase, such
purchaser(s) is purchasing, pursuant to the terms of this Agreement and the
Other Pass Through Trust Agreement, the Certificates, the Class C Certificates
and the Class D Certificates which are senior to the securities held by such
purchaser(s). Each payment of the purchase price of the Certificates referred to
in the first sentence hereof shall be made to an account or accounts designated
by the Trustee and each such purchase shall be subject to the terms of this
Section 6.01(b). Each Certificateholder agrees by its acceptance of its
Certificate that it will, subject to Section 3.04 hereof, upon payment from such
Class C Certificateholder(s) or Class D Certificateholder(s), as the case may
be, of the purchase price set forth in the first sentence of this paragraph,
forthwith sell, assign, transfer and convey to the purchaser(s) thereof (without
recourse, representation or warranty of any kind except for its own acts), all
of the right, title, interest and obligation of such Certificateholder in this
Agreement, the Escrow Agreement, the Deposit Agreement, the Intercreditor
Agreement, the Liquidity Facility, the Policy, the Financing Documents and all
Certificates and Escrow Receipts held by such Certificateholder (excluding all
right, title and interest under any of the foregoing to the extent such right,
title or interest is with respect to an obligation not then due and payable as
respects any action or inaction or state of affairs occurring prior to such
sale) and the purchaser shall assume all of such Certificateholder's obligations
under this Agreement, the Escrow Agreement, the Deposit Agreement, the
Intercreditor Agreement, the Liquidity Facility, the Policy, the Financing
Documents and all such Certificates and Escrow Receipts. The Certificates will
be deemed to be purchased on the date payment of the purchase price is made
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notwithstanding the failure of the Certificateholders to deliver any
Certificates (whether in the form of Definitive Certificates or beneficial
interests in Global Certificates) and, upon such a purchase, (i) the only rights
of the Certificateholders will be to deliver the Certificates to the
purchaser(s) and receive the purchase price for such Certificates and (ii) if
the purchaser(s) shall so request, such Certificateholder will comply with all
the provisions of Section 3.04 hereof to enable new Certificates to be issued to
the purchaser in such denominations as it shall request. All charges and
expenses in connection with the issuance of any such new Certificates shall be
borne by the purchaser thereof.
As used in this Section 6.01(b), the terms "Class C Certificate",
"Class C Certificateholder", "Class C Trust", "Class C Trustee", "Class D
Certificate", "Class D Trust" and "Class D Trustee", shall have the respective
meanings assigned to such terms in the Intercreditor Agreement.
Section 6.02. Incidents of Sale of Equipment Notes. Upon any sale of
all or any part of the Equipment Notes made either under the power of sale given
under this Agreement or otherwise for the enforcement of this Agreement, the
following shall be applicable:
(1) Certificateholders and Trustee May Purchase Equipment Notes. Any
Certificateholder, the Trustee in its individual or any other capacity or
any other Person may bid for and purchase any of the Equipment Notes, and
upon compliance with the terms of sale, may hold, retain, possess and
dispose of such Equipment Notes in their own absolute right without further
accountability.
(2) Receipt of Trustee Shall Discharge Purchaser. The receipt of the
Trustee making such sale shall be a sufficient discharge to any purchaser
for his purchase money, and, after paying such purchase money and receiving
such receipt, such purchaser or its personal representative or assigns
shall not be obliged to see to the application of such purchase money, or
be in any way answerable for any loss, misapplication or non-application
thereof.
(3) Application of Moneys Received upon Sale. Any moneys collected by
the Trustee upon any sale made either under the power of sale given by this
Agreement or otherwise for the enforcement of this Agreement shall be
applied as provided in Section 4.02.
Section 6.03. Judicial Proceedings Instituted by Trustee; Trustee May
Bring Suit. If there shall be a failure to make payment of the principal of,
premium, if any, or interest on any Equipment Note, or if there shall be any
failure to pay Rent (as defined in the relevant Lease) under any Lease when due
and payable, then the Trustee, in its own name and as trustee of an express
trust, as holder of such Equipment Notes, to the extent permitted by and in
accordance with the terms of the Intercreditor Agreement and the Financing
Documents (subject to the rights of the applicable Owner Trustee or Owner
Participant to cure any such failure to pay principal of, premium, if any, or
interest on any Equipment Note or to pay Rent under any Lease in accordance with
the applicable Indenture), shall be entitled and empowered to institute any
suits, actions or proceedings at law, in equity or otherwise, for the collection
of the sums so due and unpaid on such Equipment Notes or under such Lease and
may prosecute any such claim or
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proceeding to judgment or final decree with respect to the whole amount of any
such sums so due and unpaid.
Section 6.04. Control by Certificateholders. Subject to Section 6.03
and the Intercreditor Agreement, the Certificateholders holding Certificates
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Trust shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee with
respect to the Trust or pursuant to the terms of the Intercreditor Agreement, or
exercising any trust or power conferred on the Trustee under this Agreement or
the Intercreditor Agreement, including any right of the Trustee as Controlling
Party under the Intercreditor Agreement or as holder of the Equipment Notes,
provided that:
(1) such Direction shall not be in conflict with any rule of law or
with this Agreement and would not involve the Trustee in personal liability
or expense,
(2) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to the Certificateholders not taking part in such
Direction, and
(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such Direction.
Section 6.05. Waiver of Past Defaults. Subject to the Intercreditor
Agreement, the Certificateholders holding Certificates evidencing Fractional
Undivided Interests aggregating not less than a majority in interest in the
Trust (i) may on behalf of all of the Certificateholders waive any past Event of
Default hereunder and its consequences or (ii) if the Trustee is the Controlling
Party, may direct the Trustee to instruct the applicable Loan Trustee to waive
any past Indenture Default under any Indenture and its consequences, and thereby
annul any Direction given by such Certificateholders or the Trustee to such Loan
Trustee with respect thereto, except a default:
(1) in the deposit of any Scheduled Payment or Special Payment under
Section 4.01 or in the distribution of any payment under Section 4.02 on
the Certificates, or
(2) in the payment of the principal of (premium, if any) or interest
on the Equipment Notes, or
(3) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of each
Certificateholder holding an Outstanding Certificate affected thereby.
Upon any such waiver, such default shall cease to exist with respect to
the Certificates and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose and any direction given by the Trustee on
behalf of the Certificateholders to the relevant Loan Trustee shall be annulled
with respect thereto; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon. Upon any
such waiver, the Trustee shall vote the Equipment Notes issued under the
relevant Indenture to waive the corresponding Indenture Default.
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Section 6.06. Right of Certificateholders to Receive Payments Not to Be
Impaired. Anything in this Agreement to the contrary notwithstanding, including,
without limitation, Section 6.07 hereof, but subject to the Intercreditor
Agreement, the right of any Certificateholder to receive distributions of
payments required pursuant to Section 4.02 hereof on the Certificates when due,
or to institute suit for the enforcement of any such payment on or after the
applicable Regular Distribution Date or Special Distribution Date, shall not be
impaired or affected without the consent of such Certificateholder.
Section 6.07. Certificateholders May Not Bring Suit Except Under
Certain Conditions. A Certificateholder shall not have the right to institute
any suit, action or proceeding at law or in equity or otherwise with respect to
this Agreement, for the appointment of a receiver or for the enforcement of any
other remedy under this Agreement, unless:
(1) such Certificateholder previously shall have given written notice
to the Trustee of a continuing Event of Default;
(2) Certificateholders holding Certificates evidencing Fractional
Undivided Interests aggregating not less than 25% of the Trust shall have
requested the Trustee in writing to institute such action, suit or
proceeding and shall have offered to the Trustee indemnity as provided in
Section 7.03(e);
(3) the Trustee shall have refused or neglected to institute such an
action, suit or proceeding for 60 days after receipt of such notice,
request and offer of indemnity; and
(4) no direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating
not less than a majority in interest in the Trust.
It is understood and intended that no one or more of the
Certificateholders shall have any right in any manner whatsoever hereunder or
under the Certificates to (i) surrender, impair, waive, affect, disturb or
prejudice any property in the Trust Property or the lien of any Indenture on any
property subject thereto, or the rights of the Certificateholders or the holders
of the Equipment Notes, (ii) obtain or seek to obtain priority over or
preference with respect to any other such Certificateholder or (iii) enforce any
right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all the Certificateholders subject to the
provisions of this Agreement.
Section 6.08. Remedies Cumulative. Every remedy given hereunder to the
Trustee or to any of the Certificateholders shall not be exclusive of any other
remedy or remedies, and every such remedy shall be cumulative and in addition to
every other remedy given hereunder or now or hereafter given by statute, law,
equity or otherwise.
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ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities. (a) Except during
the continuation of an Event of Default, the Trustee undertakes to perform such
duties as are specifically set forth in this Agreement, and no implied covenants
or obligations shall be read into this Agreement against the Trustee.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, 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 its
own affairs.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section; and
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts.
(d) Whether or not herein expressly so provided, every provision of
this Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 7.02. Notice of Defaults. As promptly as practicable after, and
in any event within 90 days after, the occurrence of any default (as such term
is defined below) hereunder, the Trustee shall transmit by mail to the Company,
the Owner Trustees, the Owner Participants, the Loan Trustees and the
Certificateholders in accordance with Section 313(c) of the Trust Indenture Act,
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
default on the payment of the principal, premium, if any, or interest on any
Equipment Note held in the Trust, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a trust committee of directors and/or Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interests of
the Certificateholders. For the purpose of this Section, the term "default"
means any event that is, or after notice or lapse of time or both would become,
an Event of Default.
Section 7.03. Certain Rights of Trustee. Subject to the provisions of
Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document
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believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a written description of the subject matter
thereof accompanied by an Officer's Certificate and an Opinion of Counsel
as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate of the Company, any
Owner Trustee or any Loan Trustee;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement at the Direction of any of
the Certificateholders pursuant to this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the cost, expenses and liabilities which might be
incurred by it in compliance with such Direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture or other paper or document;
(g) the Trustee may execute any of the trusts or powers under this
Agreement or perform any duties under this Agreement either directly or by
or through agents or attorneys, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the Direction
of the Certificateholders holding Certificates evidencing Fractional
Undivided Interests aggregating not less than a majority in interest in the
Trust relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Agreement; and
(i) the Trustee shall not be required to expend or risk its own funds
in the performance of any of its duties under this Agreement, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk is not reasonably assured to it.
Section 7.04. Not Responsible for Recitals or Issuance of Certificates.
The recitals contained herein and in the Certificates, except the certificates
of authentication, shall not
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be taken as the statements of the Trustee, and the Trustee assumes no
responsibility for their correctness. Subject to Section 7.15, the Trustee makes
no representations as to the validity or sufficiency of this Agreement, any
Equipment Notes, the Intercreditor Agreement, the Deposit Agreement, the Escrow
Agreement, the Certificates or any other Financing Document, except that the
Trustee hereby represents and warrants that this Agreement has been, and the
Intercreditor Agreement, the Registration Rights Agreement, the Note Purchase
Agreement, the Escrow Agreement and each Certificate will be, executed,
authenticated and delivered by one of its officers who is duly authorized to
execute, authenticate and deliver such document on its behalf.
Section 7.05. May Hold Certificates. The Trustee, any Paying Agent,
Registrar or any of their Affiliates or any other agent in their respective
individual or any other capacity may become the owner or pledgee of Certificates
and, subject to Sections 310(b) and 311 of the Trust Indenture Act, if
applicable, may otherwise deal with the Company, the Owner Trustees or the Loan
Trustees with the same rights it would have if it were not Trustee, Paying
Agent, Registrar or such other agent.
Section 7.06. Money Held in Trust. Money held by the Trustee or the
Paying Agent in trust hereunder need not be segregated from other funds except
to the extent required herein or by law and neither the Trustee nor the Paying
Agent shall have any liability for interest upon any such moneys except as
provided for herein.
Section 7.07. Compensation and Reimbursement. The Company agrees:
(1) to pay, or cause to be paid, to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder as set
forth in a written fee letter dated the date hereof between the Company and
the Trustee, which letter is incorporated herein by reference (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse, or
cause to be reimbursed, the Trustee upon its request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Agreement (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its undertaking its normal administrative functions, or its
negligence, willful misconduct or bad faith or as may be incurred due to
the Trustee's breach of its representations and warranties set forth in
Section 7.15; and
(3) to indemnify, or cause to be indemnified, the Trustee for, and to
hold it harmless against, any loss, liability, expense or Tax (other than
for or with respect to any Unindemnified Tax) incurred without negligence,
willful misconduct or bad faith, on its part, arising out of or in
connection with the acceptance or administration of this Trust, including
the costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or
duties hereunder, except for any such loss, liability or expense incurred
by reason of the Trustee's breach of its covenants hereunder or under any
Financing Document to which it is a party or its
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representations and warranties set forth in Section 7.15 or in any other
Financing Document, the authorization or giving or withholding of any
future amendments, supplements, waivers or consents with respect hereto or
any of the Financing Documents, which amendments, supplements, waivers or
consents are not required pursuant to the terms of the Financing Documents
and not requested by the Company, any loss of tax benefits, any
Unindemnified Tax, or increase in tax liability under any tax law whether
or not the Company is required to indemnify thereof or pursuant to this
Agreement or any costs associated with overhead or normal administration
hereunder or any voluntary resignation pursuant to Section 7.09.
With respect to paragraph (3) above, the Trustee shall notify the
Company promptly of any claim for which it may seek indemnity and the Company
shall make payment on any such claim within 30 days of written demand thereof
(delivered together with supporting documentation). The Company shall defend the
claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel with the consent of the Company and the Company will pay the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made, in settlement or otherwise, without its consent.
With respect to any Tax other than an Unindemnified Tax, the Trustee
shall be entitled to reimbursement from, and shall have a lien prior to the
Certificates upon, the Trust Property for any such Tax incurred without
negligence, bad faith or willful misconduct, on its part, arising out of or in
connection with the acceptance or administration of such Trust (other than any
Tax attributable to the Trustee's compensation for serving as such), including
any costs and expenses incurred in contesting the imposition of any such Tax. If
the Trustee reimburses itself from the Trust Property of such Trust for any such
Tax, it will mail a brief report within 30 days setting forth the circumstances
thereof to all Certificateholders as their names and addresses appear in the
Register.
Section 7.08. Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee hereunder which shall be eligible to act as a trustee
under Section 310(a) of the Trust Indenture Act and shall have a combined
capital and surplus of at least $75,000,000 (or a combined capital and surplus
in excess of $5,000,000 and the obligations of which, whether now in existence
or hereafter incurred, are fully and unconditionally guaranteed by a corporation
organized and doing business under the laws of the United States, any state or
territory thereof or of the District of Columbia and having a combined capital
and surplus of at least $75,000,000). If such corporation publishes reports of
conditions at least annually, pursuant to law or to the requirements of federal,
state, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section 7.08, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of conditions so published.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.08 to act as Trustee, the
Trustee shall resign immediately as Trustee in the manner and with the effect
specified in Section 7.09.
Section 7.09. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this
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Article shall become effective until the acceptance of appointment by the
successor Trustee under Section 7.10.
(b) The Trustee may resign at any time as trustee by giving prior
written notice thereof to the Company, the Authorized Agents, the Owner Trustees
and the Loan Trustees. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Company, the Authorized Agents, the Owner
Trustees, the Loan Trustees and the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Direction of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust
delivered to the Trustee and to the Company, the Owner Trustees and the Loan
Trustees.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310 of the Trust
Indenture Act, if applicable, after written request therefor by the Company
or by any Certificateholder who has been a bona fide Certificateholder for
at least six months; or
(2) the Trustee shall cease to be eligible under Section 7.08 and
shall fail to resign after written request therefor by the Company or by
any such Certificateholder; or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any case, (i) the Company may remove the Trustee or (ii) any
Certificateholder who has been a bona fide Certificateholder for at least six
months may, on behalf of itself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(e) If a Responsible Officer of the Trustee shall obtain actual
knowledge of an Avoidable Tax which has been or is likely to be asserted, the
Trustee shall promptly notify the Company and shall, within 30 days of such
notification, resign hereunder unless within such 30-day period the Trustee
shall have received notice that the Company has agreed to pay such tax. The
Company shall promptly appoint a successor Trustee in a jurisdiction where there
are no Avoidable Taxes.
(f) If the Trustee shall resign, be removed or become incapable of
acting or if a vacancy shall occur in the office of the Trustee for any cause,
the Company shall promptly appoint a successor Trustee. If, within one year
after such resignation, removal or incapability, or other occurrence of such
vacancy, a successor Trustee shall be appointed by Direction of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust
delivered to the Company, the Owner Trustees, the Loan Trustees and the retiring
Trustee, and the Company approves such appointment, which
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approval shall not be unreasonably withheld, then the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed as provided
above. If no successor Trustee shall have been so appointed as provided above
and accepted appointment in the manner hereinafter provided, any
Certificateholder who has been a bona fide Certificateholder for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(g) The successor Trustee shall give notice of the resignation and
removal of the Trustee and appointment of the successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Certificateholders as their names and addresses appear in the Register. Each
notice shall include the name of such successor Trustee and the address of its
Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute and deliver to the Company, the
Authorized Agents, the Owner Trustees and the Loan Trustees and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company or the successor Trustee, such retiring Trustee shall
execute and deliver an instrument transferring to such successor Trustee all
such rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all Trust Property held by such
retiring Trustee hereunder, subject nevertheless to its lien, if any, provided
for in Section 7.07. Upon request of any such successor Trustee, the Company,
the retiring Trustee and such successor Trustee shall execute and deliver any
and all instruments containing such provisions as shall be necessary or
desirable to transfer and confirm to, and for more fully and certainly vesting
in, such successor Trustee all such rights, powers and trusts.
No institution shall accept its appointment as a Trustee hereunder
unless at the time of such acceptance such institution shall be qualified and
eligible under this Article VII.
Section 7.11. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article VII, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Certificates shall have been
executed or authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such execution or authentication and deliver the Certificates so
executed or authenticated with the same effect as if such successor Trustee had
itself executed or authenticated such Certificates.
Section 7.12. Maintenance of Agencies. (a) There shall at all times be
maintained an office or agency in the location set forth in Section 12.03 where
Certificates may
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be presented or surrendered for registration of transfer or for exchange, and
for payment thereof and where notices and demands to or upon the Trustee in
respect of such certificates or this Agreement may be served; provided, however,
that, if it shall be necessary that the Trustee maintain an office or agency in
another location (e.g., the Certificates shall be represented by Definitive
Certificates and shall be listed on a national securities exchange), the Trustee
will make all reasonable efforts to establish such an office or agency. Written
notice of the location of each such other office or agency and of any change of
location thereof shall be given by the Trustee to the Company, the Owner
Trustees, the Loan Trustees (in the case of any Owner Trustee or Loan Trustee,
at its address specified in the Financing Documents or such other address as may
be notified to the Trustee) and the Certificateholders. In the event that no
such office or agency shall be maintained or no such notice of location or of
change of location shall be given, presentations and demands may be made and
notices may be served at the Corporate Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a Paying Agent
hereunder with respect to the Certificates. Each such Authorized Agent shall be
a bank or trust company, shall be a corporation organized and doing business
under the laws of the United States or any state, with a combined capital and
surplus of at least $75,000,000, or, if the Trustee shall be acting as the
Registrar or Paying Agent hereunder, a corporation having a combined capital and
surplus in excess of $5,000,000, the obligations of which are guaranteed by a
corporation organized and doing business under the laws of the United States or
any state, with a combined capital and surplus of at least $75,000,000, and
shall be authorized under such laws to exercise corporate trust powers, subject
to supervision by Federal or state authorities. The Trustee shall initially be
the Paying Agent and, as provided in Section 3.04, Registrar hereunder with
respect to the Certificates. Each Registrar shall furnish to the Trustee, at
stated intervals of not more than six months, and at such other times as the
Trustee may request in writing, a copy of the Register maintained by such
Registrar.
(c) Any corporation into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authorized Agent shall
be a party, or any corporation succeeding to the corporate trust business of any
Authorized Agent, shall be the successor of such Authorized Agent hereunder, if
such successor corporation is otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the parties
hereto or such Authorized Agent or such successor corporation.
(d) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Trustee, the Company, the Owner Trustees and the
Loan Trustees. The Company may, and at the request of the Trustee shall, at any
time terminate the agency of any Authorized Agent by giving written notice of
termination to such Authorized Agent and to the Trustee. Upon the resignation or
termination of an Authorized Agent or in case at any time any such Authorized
Agent shall cease to be eligible under this Section (when, in either case, no
other Authorized Agent performing the functions of such Authorized Agent shall
have been appointed), the Company shall promptly appoint one or more qualified
successor Authorized Agents, reasonably satisfactory to the Trustee, to perform
the functions of the Authorized Agent which has resigned or whose agency has
been terminated or who shall have ceased to be eligible under this Section. The
Company shall give written notice of any such appointment made by it
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to the Trustee, the Owner Trustees and the Loan Trustees; and in each case the
Trustee shall mail notice of such appointment to all Certificateholders as their
names and addresses appear on the Register.
(e) The Company agrees to pay, or cause to be paid, from time to time
to each Authorized Agent reasonable compensation for its services and to
reimburse it for its reasonable expenses as set forth in the letter agreement
referred to in Section 7.07 hereof.
Section 7.13. Money for Certificate Payments to Be Held in Trust. All
moneys deposited with any Paying Agent for the purpose of any payment on
Certificates shall be deposited and held in trust for the benefit of the
Certificateholders entitled to such payment, subject to the provisions of this
Section. Moneys so deposited and held in trust shall constitute a separate trust
fund for the benefit of the Certificateholders with respect to which such money
was deposited.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Agreement or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Section 7.14. Registration of Equipment Notes in Name of Subordination
Agent. The Trustee agrees that all Equipment Notes to be purchased by the Trust
shall be issued in the name of the Subordination Agent or its nominee and held
by the Subordination Agent in trust for the benefit of the Certificateholders,
or, if not so held, the Subordination Agent or its nominee shall be reflected as
the owner of such Equipment Notes in the register of the issuer of such
Equipment Notes.
Section 7.15. Representations and Warranties of Trustee. The Trustee
hereby represents and warrants on the Transfer Date that:
(a) the Trustee is a Delaware banking corporation organized and
validly existing in good standing under the laws of the State of Delaware;
(b) the Trustee has full power, authority and legal right to receive
the Trust Property assigned by the Related Trustee, assume the obligations
under, and perform, the Assignment and Assumption Agreement, this
Agreement, the Intercreditor Agreement, the Registration Rights Agreement,
the Escrow Agreement, the Note Purchase Agreement and the Financing
Documents to which it is a party and has taken all necessary action to
authorize such receipt, assumption and performance by it of the Assignment
and Assumption Agreement, this Agreement, the Intercreditor Agreement, the
Registration Rights Agreement, the Escrow Agreement, the Note Purchase
Agreement and the Financing Documents to which it is a party;
(c) the receipt of the Trust Property under the Assignment and
Assumption Agreement and the performance by the Trustee of the Assignment
and Assumption Agreement, this Agreement, the Intercreditor Agreement, the
Registration Rights
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Agreement, the Escrow Agreement, the Note Purchase Agreement and the
Financing Documents to which it is a party (i) will not violate any
provision of United States federal law or the law of the state of the
United States where it is located governing the banking and trust powers of
the Trustee or any order, writ, judgment, or decree of any court,
arbitrator or governmental authority applicable to the Trustee or any of
its assets, (ii) will not violate any provision of the articles of
association or by-laws of the Trustee, or (iii) will not violate any
provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of any lien on any
properties included in the Trust Property pursuant to the provisions of any
mortgage, indenture, contract, agreement or other undertaking to which it
is a party, which violation, default or lien could reasonably be expected
to have an adverse effect on the Trustee's performance or ability to
perform its duties hereunder or thereunder or on the transactions
contemplated herein or therein;
(d) the receipt of the Trust Property under the Assignment and
Assumption Agreement and the performance by the Trustee of the Assignment
and Assumption Agreement, this Agreement, the Intercreditor Agreement, the
Registration Rights Agreement, the Escrow Agreement, the Note Purchase
Agreement, and the Financing Documents to which it is a party will not
require the authorization, consent, or approval of, the giving of notice
to, the filing or registration with, or the taking of any other action in
respect of, any governmental authority or agency of the United States or
the state of the United States where it is located regulating the banking
and corporate trust activities of the Trustee; and
(e) the Assignment and Assumption Agreement has been duly executed and
delivered by the Trustee and this Agreement, the Assignment and Assumption
Agreement, the Intercreditor Agreement, the Registration Rights Agreement,
the Escrow Agreement, the Note Purchase Agreement, and the Financing
Documents to which it is a party constitute the legal, valid, and binding
agreements of the Trustee, enforceable against it in accordance with their
respective terms, provided that enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the rights of creditors generally and (ii) general
principles of equity, regardless of whether applied in a proceeding in
equity or at law.
Section 7.16. Withholding Taxes, Information Reporting. The Trustee, as
trustee of the grantor trust created by this Agreement, shall exclude and
withhold from each distribution of principal, premium, if any, and interest and
other amounts due under this Agreement or under the Certificates any and all
withholding taxes applicable thereto as required by law. The Trustee agrees to
act as such withholding agent and, in connection therewith, whenever any present
or future taxes or similar charges are required to be withheld with respect to
any amounts payable in respect of the Certificates, to withhold such amounts and
timely pay the same to the appropriate authority in the name of and on behalf of
the Certificateholders, that it will file any necessary withholding tax returns
or statements when due, and that, as promptly as possible after the payment
thereof, it will deliver to each such Certificateholder appropriate
documentation showing the payment thereof, together with such additional
documentary evidence as such Certificateholders may reasonably request from time
to time. The Trustee agrees to file any other information reports as it may be
required to file under United States law.
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Each Certificateholder or Investor that is not a United States person within the
meaning of Section 7701(a)(30) of the Internal Revenue Code, as amended, by its
acceptance of a Certificate or a beneficial interest therein, agrees to
indemnify and hold harmless the Trust and the Trustee from and against any
improper failure to withhold taxes from amounts payable to it or for its
benefit, other than an improper failure attributable to the gross negligence or
willful misconduct of the Trustee.
Section 7.17. Trustee's Liens. The Trustee in its individual capacity
agrees that it will at its own cost and expense promptly take any action as may
be necessary to duly discharge and satisfy in full any mortgage, pledge, lien,
charge, encumbrance, security interest or claim ("Trustee's Liens") on or with
respect to the Trust Property which is attributable to the Trustee either (i) in
its individual capacity and which is unrelated to the transactions contemplated
by this Agreement, the Intercreditor Agreement, the Note Purchase Agreement or
the Financing Documents, or (ii) as Trustee hereunder or in its individual
capacity and which arises out of acts or omissions on the part of the Trustee
which are not contemplated by this Agreement.
Section 7.18. Preferential Collection of Claims. The Trustee shall
comply with Section 311(a) of the Trust Indenture Act, excluding any creditor
relationship listed in Section 311(b) of the Trust Indenture Act. If the Trustee
shall resign or be removed as Trustee, it shall be subject to Section 311(a) of
the Trust Indenture Act to the extent provided therein.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and Addresses
of Certificateholders. The Company will furnish to the Trustee within 15 days
after each Record Date with respect to a Scheduled Payment, and at such other
times as the Trustee may request in writing within 30 days after receipt by the
Company of any such request, a list, in such form as the Trustee may reasonably
require, of all information in the possession or control of the Company as to
the names and addresses of the Certificateholders, in each case as of a date not
more than 15 days prior to the time such list is furnished; provided, however,
that so long as the Trustee is the sole Registrar, no such list need be
furnished; and provided further, however, that no such list need be furnished
for so long as a copy of the Register is being furnished to the Trustee pursuant
to Section 7.12.
Section 8.02. Preservation of Information; Communications to
Certificateholders. The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Certificateholders contained
in the most recent list furnished to the Trustee as provided in Section 7.12 or
Section 8.01, as the case may be, and the names and addresses of
Certificateholders received by the Trustee in its capacity as Registrar, if so
acting. The Trustee may destroy any list furnished to it as provided in Section
7.12 or Section 8.01, as the case may be, upon receipt of a new list so
furnished.
Section 8.03. Reports by Trustee. Within 60 days after May 15 of each
year commencing with the first full year following the date hereof, the Trustee
shall transmit to the
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Certificateholders, as provided in Section 313(c) of the Trust Indenture Act, a
brief report dated as of such May 15, if required by Section 313(a) of the Trust
Indenture Act.
Section 8.04. Reports by the Company. The Company shall:
(a) file with the Trustee, within 30 days after the Company is
required to file the same with the SEC, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of
any of the foregoing as the SEC may from time to time by rules and
regulations prescribe) which the Company is required to file with the SEC
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended; or, if the Company is not required to file information,
documents or reports pursuant to either of such sections, then to file with
the Trustee and the SEC, in accordance with rules and regulations
prescribed by the SEC, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended, in respect of a security
listed and registered on a national securities exchange as may be
prescribed in such rules and regulations;
(b) during any period, prior to the consummation of the Exchange Offer
and during which the Shelf Registration Statement is not in effect, in
which the Company is not subject to Section 13(a), 13(c) or 15(d) under the
Securities Exchange Act of 1934, make available to any Holder of the
Certificates in connection with any sale thereof and any prospective
purchaser of the Certificates from such Holder, in each case upon request,
the information specified in, and meeting the requirements of, Rule
144A(d)(4) under the Securities Act but only for so long as any of the
Certificates remain outstanding and are "restricted securities" within the
meaning of Rule 144(a)(3) under the Securities Act and, in any event, only
until the second anniversary of the Issuance Date;
(c) file with the Trustee and the SEC, in accordance with the rules
and regulations prescribed by the SEC, such additional information,
documents and reports with respect to compliance by the Company with the
conditions and covenants provided for in this Agreement, as may be required
by such rules and regulations, including, in the case of annual reports, if
required by such rules and regulations, certificates or opinions of
independent public accountants, conforming to the requirements of Section
1.02;
(d) transmit to all Certificateholders, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act such summaries
of any information, documents and reports required to be filed by the
Company pursuant to subsections (a) and (c) of this Section 8.04 as may be
required by rules and regulations prescribed by the SEC; and
(e) furnish to the Trustee, not less often than annually, a brief
certificate from the principal executive officer, principal financial
officer, any Vice President (or more senior ranking officer) or the
principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Agreement (it being
understood that for purposes of this paragraph (e), such compliance shall
be
<PAGE> 53
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determined without regard to any period of grace or requirement of notice
provided under this Agreement).
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of
Certificateholders. Without the consent of the Certificateholders, the Company
may (but will not be required to), and the Trustee (subject to Section 9.03)
shall, at the Company's request, at any time and from time to time, enter into
one or more agreements supplemental hereto or, if applicable, to the
Intercreditor Agreement, the Escrow Agreement, the Note Purchase Agreement, the
Deposit Agreement, the Registration Rights Agreement, the Policy, the Policy
Provider Agreement or any Liquidity Facility in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein contained or of the Company's obligations under the Note Purchase
Agreement, the Registration Rights Agreement, the Policy Provider Agreement
or any Liquidity Facility; or
(2) to add to the covenants of the Company for the benefit of the
Certificateholders, or to surrender any right or power conferred upon the
Company in this Agreement, the Note Purchase Agreement, the Registration
Rights Agreement, the Policy, the Policy Provider Agreement or any
Liquidity Facility; or
(3) to correct or supplement any provision in this Agreement, the
Intercreditor Agreement, the Escrow Agreement, the Deposit Agreement, the
Note Purchase Agreement, the Registration Rights Agreement, the Policy, the
Policy Provider Agreement or any Liquidity Facility which may be defective
or inconsistent with any other provision herein or therein or to cure any
ambiguity or correct any mistake or to modify any other provision with
respect to matters or questions arising under this Agreement, the Escrow
Agreement, the Deposit Agreement, the Note Purchase Agreement, the
Intercreditor Agreement, the Registration Rights Agreement, the Policy, the
Policy Provider Agreement or any Liquidity Facility, provided that any such
action shall not materially adversely affect the interests of the
Certificateholders; or
(4) to comply with any requirement of the SEC, any applicable law,
rules or regulations of any exchange or quotation system on which the
Certificates are listed, any regulatory body or the Registration Rights
Agreement to effectuate the Exchange Offer; or
(5) to modify, eliminate or add to the provisions of this Agreement to
such extent as shall be necessary to continue the qualification of this
Agreement (including any supplemental agreement) under the Trust Indenture
Act or under any similar Federal statute hereafter enacted, and to add to
this Agreement such other provisions as may be expressly permitted by the
Trust Indenture Act, excluding, however, the provisions referred to in
Section 316(a)(2) of the Trust Indenture Act as in effect at the date as of
<PAGE> 54
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which this instrument was executed or any corresponding provision in any
similar Federal statute hereafter enacted; or
(6) to evidence and provide for the acceptance of appointment under
this Agreement by the Trustee of a successor Trustee and to add to or
change any of the provisions of this Agreement as shall be necessary to
provide for or facilitate the administration of the Trust, pursuant to the
requirements of Section 7.10; or
(7) to provide the information required under Section 7.12 and Section
12.03 as to the Trustee; or
(8) to modify or eliminate provisions relating to the transfer or
exchange of Exchange Certificates or the Initial Certificates upon
consummation of the Exchange Offer (as defined in the Registration Rights
Agreement) or effectiveness of the Shelf Registration Statement or the
Exchange Offer Registration Statement;
provided, however, that no such supplemental agreement shall adversely affect
the status of any Trust as a grantor trust under Subpart E, Part I of Subchapter
J of Chapter 1 of Subtitle A of the Internal Revenue Code of 1986, as amended,
for U.S. federal income tax purposes.
Section 9.02. Supplemental Agreements with Consent of
Certificateholders. With the consent of the Certificateholders holding
Certificates (including consents obtained in connection with a tender offer or
exchange offer for the Certificates) evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in the Trust, by Direction of
said Certificateholders delivered to the Company and the Trustee, the Company
may (with the consent of the Owner Trustees, if any, which consent shall not be
unreasonably withheld), and the Trustee (subject to Section 9.03) shall, enter
into an agreement or agreements for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement,
the Intercreditor Agreement, any Liquidity Facility, the Registration Rights
Agreement, the Policy, the Policy Provider Agreement, the Escrow Agreement, the
Deposit Agreement or the Note Purchase Agreement to the extent applicable to
such Certificateholders or of modifying in any manner the rights and obligations
of such Certificateholders under this Agreement, the Intercreditor Agreement,
any Liquidity Facility, the Registration Rights Agreement, the Policy, the
Policy Provider Agreement, the Escrow Agreement, the Deposit Agreement or the
Note Purchase Agreement; provided, however, that no such agreement shall,
without the consent of the Certificateholder of each Outstanding Certificate
affected thereby:
(1) reduce in any manner the amount of, or delay the timing of, any
receipt by the Trustee (or, with respect to the Deposits, the
Certificateholders) of payments on the Equipment Notes or other Trust
Property held in the Trust or on the Deposits or distributions that are
required to be made herein on any Certificate, or change any date of
payment on any Certificate, or change the place of payment where, or the
coin or currency in which, any Certificate is payable, or impair the right
to institute suit for the enforcement of any such payment or distribution
on or after the Regular Distribution Date or Special Distribution Date
applicable thereto; or
<PAGE> 55
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(2) permit the disposition of any Equipment Note included in the Trust
Property except as permitted by this Agreement, or otherwise deprive such
Certificateholder of the benefit of the ownership of the Equipment Notes in
the Trust; or
(3) reduce the specified percentage of the aggregate Fractional
Undivided Interests of the Trust which is required for any such
supplemental agreement, or reduce such specified percentage required for
any waiver of compliance with certain provisions of this Agreement or
certain defaults hereunder and their consequences provided for in this
Agreement; or
(4) waive, amend or modify Section 2.4, 3.2 or 3.3 of the
Intercreditor Agreement in a manner adverse to the Certificateholders; or
(5) modify any of the provisions of this Section 9.02 or Section 6.05,
except to increase any such percentage or to provide that certain other
provisions of this Agreement cannot be modified or waived without the
consent of the Certificateholder of each Certificate affected thereby; or
(6) adversely affect the status of any Trust as a grantor trust under
Subpart E, Part I of Subchapter J of Chapter 1 of Subtitle A of the
Internal Revenue Code of 1986, as amended, for U.S. federal income tax
purposes.
It shall not be necessary for any Direction of Certificateholders under
this Section to approve the particular form of any proposed supplemental
agreement, but it shall be sufficient if such Direction shall approve the
substance thereof.
Section 9.03. Documents Affecting Immunity or Indemnity. Except for the
performance of its covenants herein, if in the opinion of the Trustee any
document required to be executed by it pursuant to the terms of Section 9.01 or
9.02 affects adversely any interest, right, duty, immunity or indemnity in favor
of the Trustee under this Agreement, the Trustee may in its discretion decline
to execute such document.
Section 9.04. Execution of Supplemental Agreements. In executing, or
accepting the additional trusts created by, any agreement permitted by this
Article or the modifications thereby of the trusts created by this Agreement,
the Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental agreement is authorized or permitted by this Agreement.
Section 9.05. Effect of Supplemental Agreements. Upon the execution of
any agreement supplemental to this Agreement under this Article, this Agreement
shall be modified in accordance therewith, and such supplemental agreement shall
form a part of this Agreement for all purposes; and every Holder of a
Certificate theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.06. Conformity with Trust Indenture Act. Every supplemental
agreement executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
<PAGE> 56
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Section 9.07. Reference in Certificates to Supplemental Agreements.
Certificates authenticated and delivered after the execution of any supplemental
agreement pursuant to this Article may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental agreement; and, in
such case, suitable notation may be made upon Outstanding Certificates after
proper presentation and demand.
ARTICLE X
AMENDMENTS TO INDENTURES AND FINANCING DOCUMENTS
Section 10.01. Amendments and Supplements to Indentures and Financing
Documents. In the event that the Trustee, as holder (or beneficial owner through
the Subordination Agent) of any Equipment Note in trust for the benefit of the
Certificateholders or as Controlling Party under the Intercreditor Agreement,
receives (directly or indirectly through the Subordination Agent) a request for
a consent to any amendment, modification, waiver or supplement under any
Indenture, any other Financing Document, any Equipment Note or any other related
document, the Trustee shall forthwith send a notice of such proposed amendment,
modification, waiver or supplement to each Certificateholder registered on the
Register as of the date of such notice. The Trustee shall request from the
Certificateholders a Direction as to (a) whether or not to take or refrain from
taking (or direct the Subordination Agent to take or refrain from taking) any
action which a holder of such Equipment Note has the option to direct, (b)
whether or not to give or execute (or direct the Subordination Agent to give or
execute) any waivers, consents, amendments, modifications or supplements as a
holder of such Equipment Note or a Controlling Party and (c) how to vote (or
direct the Subordination Agent to vote) any Equipment Note if a vote has been
called for with respect thereto. Provided such a request for Certificateholder
Direction shall have been made, in directing any action or casting any vote or
giving any consent as the holder of any Equipment Note (or in directing the
Subordination Agent in any of the foregoing), (i) other than as Controlling
Party, the Trustee shall vote for or give consent to any such action with
respect to such Equipment Note in the same proportion as that of (A) the
aggregate face amounts of all Certificates actually voted in favor of or for
giving consent to such action by such Direction of Certificateholders to (B) the
aggregate face amount of all Outstanding Certificates and (ii) as Controlling
Party, the Trustee shall vote as directed in such Certificateholder Direction by
the Certificateholders evidencing a Fractional Undivided Interest aggregating
not less than a majority in interest in the Trust. For purposes of the
immediately preceding sentence, a Certificate shall have been "actually voted"
if the Holder of such Certificate has delivered to the Trustee an instrument
evidencing such Holder's consent to such Direction prior to two Business Days
before the Trustee directs such action or casts such vote or gives such consent.
Notwithstanding the foregoing, but subject to Section 6.04 and the Intercreditor
Agreement, the Trustee may, in its own discretion and at its own direction,
consent and notify the relevant Loan Trustee of such consent (or direct the
Subordination Agent to consent and notify the Loan Trustee of such consent) to
any amendment, modification, waiver or supplement under the relevant Indenture,
any other Financing Document, any Equipment Note or any other related document,
if an Event of Default hereunder shall have occurred and be continuing, or if
such amendment, modification, waiver or supplement will not materially adversely
affect the interests of the Certificateholders.
<PAGE> 57
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ARTICLE XI
TERMINATION OF TRUST
Section 11.01. Termination of the Trust. The respective obligations and
responsibilities of the Company and the Trustee with respect to the Trust shall
terminate upon the distribution to all Holders of Certificates and the Trustee
of all amounts required to be distributed to them pursuant to this Agreement and
the disposition of all property held as part of the Trust Property; provided,
however, that in no event shall the Trust continue beyond one hundred ten (110)
years following the date of the earliest execution of this Trust Agreement.
Notice of any termination, specifying the Distribution Date upon which
the Certificateholders may surrender their Certificates to the Trustee for
payment on the final Distribution Date and cancellation, shall be mailed
promptly by the Trustee to Certificateholders not earlier than the 60th day and
not later than the 20th day next preceding such final Distribution Date
specifying (A) the Distribution Date upon which the proposed final payment of
the Certificates will be made upon presentation and surrender of Certificates at
the office or agency of the Trustee therein specified, (B) the amount of any
such proposed final payment, and (C) that the Record Date otherwise applicable
to such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Certificates at the office or agency of the
Trustee therein specified. The Trustee shall give such notice to the Registrar
at the time such notice is given to Certificateholders. Upon presentation and
surrender of the Certificates in accordance with such notice, the Trustee shall
cause to be distributed to Certificateholders such final payments.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. No
additional interest shall accrue on the Certificates after the Distribution Date
specified in the first written notice. In the event that any money held by the
Trustee for the payment of distributions on the Certificates shall remain
unclaimed for two years (or such lesser time as the Trustee shall be satisfied,
after sixty days' notice from the Company, is one month prior to the escheat
period provided under applicable law) after the final distribution date with
respect thereto, the Trustee shall pay to each Loan Trustee the appropriate
amount of money relating to such Loan Trustee and shall give written notice
thereof to the related Owner Trustees, the Owner Participants and the Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations, and liabilities of the parties
hereto or any of them.
<PAGE> 58
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Section 12.02. Certificates Nonassessable and Fully Paid. Except as set
forth in the last sentence of this Section 12.02, Certificateholders shall not
be personally liable for obligations of the Trust, the Fractional Undivided
Interests represented by the Certificates shall be nonassessable for any losses
or expenses of the Trust or for any reason whatsoever, and Certificates, upon
authentication thereof by the Trustee pursuant to Section 3.03, are and shall be
deemed fully paid. No Certificateholder shall have any right (except as
expressly provided herein) to vote or in any manner otherwise control the
operation and management of the Trust Property, the Trust, or the obligations of
the parties hereto, nor shall anything set forth herein, or contained in the
terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association.
Neither the existence of the Trust nor any provision herein is intended to or
shall limit the liability the Certificateholders would otherwise incur if the
Certificateholders owned Trust Property as co-owners, or incurred any
obligations of the Trust, directly rather than through the Trust.
Section 12.03. Notices. (a) Unless otherwise specifically provided
herein, all notices required under the terms and provisions of this Agreement
shall be in English and in writing, and any such notice may be given by United
States mail, courier service or telecopy, and any such notice shall be effective
when received or, if made, given, furnished or filed by facsimile or
telecommunication transmission, when received unless received outside of
business hours, in which case on the next open of business on a Business Day,
if to the Company, to:
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85043
Attention: Vice President-
Treasurer
Facsimile: (602) 693-5886
if to the Trustee, to:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Department
Facsimile: (302) 651-8882
Telephone: (302) 651-8584
(b) The Company or the Trustee, by notice to the other, may designate
additional or different addresses for subsequent notices or communications.
(c) Any notice or communication to Certificateholders shall be mailed
by first-class mail to the addresses for Certificateholders shown on the
Register kept by the
<PAGE> 59
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Registrar. Failure so to mail a notice or communication or any defect in such
notice or communication shall not affect its sufficiency with respect to other
Certificateholders.
(d) If a notice or communication is mailed in the manner provided above
within the time prescribed, it is conclusively presumed to have been duly given,
whether or not the addressee receives it.
(e) If the Company mails a notice or communication to the
Certificateholders, it shall mail a copy to the Trustee and to the Paying Agent
at the same time.
(f) Notwithstanding the foregoing, all communications or notices to the
Trustee shall be deemed to be given only when received by a Responsible Officer
of the Trustee.
(g) The Trustee shall promptly furnish the Company with a copy of any
demand, notice or written communication received by the Trustee hereunder from
any Certificateholder, Owner Trustee or Loan Trustee.
Section 12.04. Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN THE
STATE OF NEW YORK AND THIS AGREEMENT AND THE CERTIFICATES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 12.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions, or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or the Trust, or of the
Certificates or the rights of the Certificateholders thereof.
Section 12.06. Trust Indenture Act Controls. Upon the occurrence of any
Registration Event, this Agreement shall become subject to the provisions of the
Trust Indenture Act and shall, to the extent applicable, be governed by such
provisions. From and after any Registration Event, if any provision of this
Agreement limits, qualifies or conflicts with another provision which is
required to be included in this Agreement by the Trust Indenture Act, the
required provision shall control.
Section 12.07. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 12.08. Successors and Assigns. All covenants, agreements,
representations and warranties in this Agreement by the Trustee and the Company
shall bind and, to the extent permitted hereby, shall inure to the benefit of
and be enforceable by their respective successors and assigns, whether so
expressed or not.
<PAGE> 60
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Section 12.09. Benefits of Agreement. Nothing in this Agreement or in
the Certificates, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the Certificateholders, any
benefit or any legal or equitable right, remedy or claim under this Agreement.
Section 12.10. Legal Holidays. In any case where any Regular
Distribution Date or Special Distribution Date relating to any Certificate shall
not be a Business Day, then (notwithstanding any other provision of this
Agreement) payment need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on such
Regular Distribution Date or Special Distribution Date, and no interest shall
accrue during the intervening period.
Section 12.11. Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
Section 12.12. Intention of Parties. The parties hereto intend that the
Trust be classified for U.S. federal income tax purposes as a grantor trust
under Subpart E, Part I of Subchapter J of the Internal Revenue Code of 1986, as
amended, and not as a trust or association taxable as a corporation or as a
partnership. Each Certificateholder and Investor, by its acceptance of its
Certificate or a beneficial interest therein, agrees to treat the Trust as a
grantor trust for all U.S. federal, state and local income tax purposes. The
powers granted and obligations undertaken pursuant to this Agreement shall be so
construed so as to further such intent.
<PAGE> 61
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized as of
the day and year first written above.
AMERICA WEST AIRLINES, INC.
By: /s/ W. Douglas Parker
------------------------------
Name: W. Douglas Parker
Title: Executive Vice President
WILMINGTON TRUST COMPANY,
as Trustee
By:
------------------------------
Name:
Title:
<PAGE> 62
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized as of
the day and year first written above.
AMERICA WEST AIRLINES, INC.
By:
------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ James P. Lawler
------------------------------
Name: James P. Lawler
Title: Vice President
<PAGE> 63
EXHIBIT A
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS OF CERTIFICATES PURSUANT TO REGULATION S
[date]
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Attention: Corporate Trust Trustee Administration
Re: America West Airlines Pass Through Trust, Series 1999-1G-S (the
"Trust") America West Airlines Pass Through Certificates, Series
1999-1G-S (the "Certificates")
Sirs:
In connection with our proposed sale of $_____ Fractional Undivided
Interest of the Certificates, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended, and, accordingly, we represent that:
(1) the offer of the Certificates was not made to a person in the
United States or to or for the account or benefit of a U.S. person;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States or (b) the transaction was executed in, on or through the facilities
of a designated off-shore securities market and neither we nor any person
acting on our behalf knows that the transaction has been pre-arranged with
a buyer in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(a) or Rule 904(a) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(b)(2) or Rule 904(b)(1) of Regulation S are applicable
thereto, we confirm that such sale has been made in accordance with the
applicable provisions of Rule 903(b)(2) or Rule 904(b)(1), as the case may be.
You and America West Airlines, Inc. are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any
<PAGE> 64
A-2
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Transferor]
<PAGE> 65
EXHIBIT B
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS OF CERTIFICATES TO
NON-QIB INSTITUTIONAL ACCREDITED INVESTORS
[date]
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Attention: Corporate Trust Trustee Administration
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85043
AMERICA WEST AIRLINES
PASS THROUGH TRUST, SERIES 1999-1G-S (the "Trust")
Pass Through Certificates, Series 1999-1G-S
(the "Certificates")
Ladies and Gentlemen:
In connection with our proposed purchase of U.S. $[_____________]
Fractional Undivided Interest of Certificates, we confirm that:
1. We understand that any subsequent transfer of the Certificates is
subject to certain restrictions and conditions set forth in the Pass Through
Trust Agreement, dated as of September 21, 1999, between America West Airlines,
Inc. (the "Company") and Wilmington Trust Company (the "Trustee") relating to
the Certificates, and we agree to be bound by, and not to resell, pledge or
otherwise transfer the Certificates except in compliance with, such restrictions
and conditions and the Securities Act of 1933, as amended (the "Securities
Act").
2. We are purchasing Certificates having an aggregate principal amount
of not less than $100,000 and each account (if any) for which we are purchasing
Certificates is purchasing Certificates having an aggregate principal amount of
not less than $100,000.
3. We understand that the Certificates have not been registered under
the Securities Act, that the Certificates are being sold to us in a transaction
that is exempt from the registration requirements of the Securities Act and that
the Certificates may not be offered or resold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that, if we should sell any
Certificates within two years after the later of the original issuance of such
Certificate and the last date on which such Certificate is owned by the Company,
the Trustee or any affiliate of any
<PAGE> 66
B-2
of such persons, we will do so only (A) to the Company, (B) in accordance with
Rule 144A under the Securities Act to a "qualified institutional buyer" (as
defined therein), (C) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (D) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act or (E) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing any of the Certificates from us a notice
advising such purchaser that resales of the Certificates are restricted as
stated herein.
4. We understand that, on any proposed resale of any Certificates, we
will be required to furnish to the Company and the Trustee such certifications,
legal opinions and other information as the Trustee may reasonably require to
confirm that the proposed sale complies with the foregoing restrictions. We
further understand that the Certificates purchased by us will bear a legend to
the foregoing effect.
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Certificates, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or their investments.
6. We are acquiring the Certificates purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion and not with a view to any distribution of the Certificates, subject,
nevertheless to the understanding that the disposition of our property shall at
all times be and remain within our control.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy thereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:_____________________________
Name:
Title:
<PAGE> 1
Exhibit 4.7
-----------------------------------------------------------------
REVOLVING CREDIT AGREEMENT
(1999-1C)
Dated as of September 21, 1999
between
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Subordination Agent,
as agent and trustee for the
America West Airlines Pass Through Trust 1999-1C
as Borrower
and
MORGAN STANLEY CAPITAL SERVICES, INC.
as Liquidity Provider
-----------------------------------------------------------------
Relating to
America West Airlines Pass Through Trust 1999-1C
8.54% America West Airlines Pass Through Certificates,
Series 1999-1C
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS............................................................................................1
SECTION 1.01. CERTAIN DEFINED TERMS...........................................................................1
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENT....................................................................7
SECTION 2.01. THE ADVANCES....................................................................................7
SECTION 2.02. MAKING THE ADVANCES.............................................................................8
SECTION 2.03. FEES............................................................................................9
SECTION 2.04. ADJUSTMENTS OR TERMINATION OF THE MAXIMUM COMMITMENT............................................9
SECTION 2.05. REPAYMENTS OF INTEREST ADVANCES OR THE FINAL ADVANCE...........................................10
SECTION 2.06. REPAYMENTS OF PROVIDER ADVANCES................................................................10
SECTION 2.07. PAYMENTS TO THE LIQUIDITY PROVIDER UNDER THE INTERCREDITOR AGREEMENT...........................11
SECTION 2.08. BOOK ENTRIES...................................................................................12
SECTION 2.09. PAYMENTS FROM AVAILABLE FUNDS ONLY.............................................................12
SECTION 2.10. EXTENSION OF THE EXPIRY DATE; NON-EXTENSION ADVANCE............................................12
SECTION 3.01. INCREASED COSTS................................................................................12
SECTION 3.02. CAPITAL ADEQUACY...............................................................................14
SECTION 3.03. PAYMENTS FREE OF DEDUCTIONS....................................................................15
SECTION 3.04. PAYMENTS.......................................................................................15
SECTION 3.05. COMPUTATIONS...................................................................................16
SECTION 3.06. PAYMENT ON NON-BUSINESS DAYS...................................................................16
SECTION 3.07. INTEREST.......................................................................................16
SECTION 3.08. REPLACEMENT OF BORROWER........................................................................17
SECTION 3.09. FUNDING LOSS INDEMNIFICATION...................................................................17
SECTION 3.10. ILLEGALITY.....................................................................................18
ARTICLE IV CONDITIONS PRECEDENT.................................................................................18
SECTION 4.01. CONDITIONS PRECEDENT TO EFFECTIVENESS OF SECTION 2.01..........................................18
SECTION 4.02. CONDITIONS PRECEDENT TO BORROWING..............................................................19
ARTICLE V COVENANTS.............................................................................................20
SECTION 5.01. AFFIRMATIVE COVENANTS OF THE BORROWER..........................................................20
SECTION 5.02. NEGATIVE COVENANTS OF THE BORROWER.............................................................20
ARTICLE VI LIQUIDITY EVENTS OF DEFAULT..........................................................................20
SECTION 6.01. LIQUIDITY EVENTS OF DEFAULT....................................................................21
ARTICLE VII MISCELLANEOUS.......................................................................................21
SECTION 7.01. AMENDMENTS, ETC................................................................................21
SECTION 7.02. NOTICES, ETC...................................................................................21
SECTION 7.03. NO WAIVER; REMEDIES............................................................................22
SECTION 7.04. FURTHER ASSURANCES.............................................................................22
SECTION 7.05. INDEMNIFICATION; SURVIVAL OF CERTAIN PROVISIONS................................................22
SECTION 7.06. LIABILITY OF THE LIQUIDITY PROVIDER............................................................23
SECTION 7.07. COSTS, EXPENSES AND TAXES......................................................................23
SECTION 7.08. BINDING EFFECT; PARTICIPATIONS.................................................................24
SECTION 7.09. SEVERABILITY...................................................................................25
SECTION 7.10. GOVERNING LAW..................................................................................25
SECTION 7.11. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL; WAIVER OF IMMUNITY...........................25
SECTION 7.12. EXECUTION IN COUNTERPARTS......................................................................26
SECTION 7.13. ENTIRETY.......................................................................................26
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SECTION 7.14. HEADINGS.......................................................................................26
SECTION 7.15. TRANSFER.......................................................................................26
SECTION 7.16. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES...............................................27
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ANNEX I Interest Advance Notice of Borrowing
ANNEX II Non-Extension Advance Notice of Borrowing
ANNEX III Downgrade Advance Notice of Borrowing
ANNEX IV Final Advance Notice of Borrowing
ANNEX V Notice of Termination
ANNEX VI Notice of Replacement Subordination Agent
EXHIBIT I Form of Guarantee Agreement
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REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT dated as of September 21,
1999, between WILMINGTON TRUST COMPANY, a Delaware banking corporation, 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 C Trust (as defined below) (the "Borrower"), and MORGAN STANLEY CAPITAL
SERVICES, INC., a Delaware corporation (the "Liquidity Provider").
W I T N E S S E T H:
WHEREAS, pursuant to the Class C Trust Agreement (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 C Trust is issuing the Class C
Certificates;
WHEREAS, the Borrower, in order to support the timely payment
of a portion of the interest on the Class C 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; and
WHEREAS, the Liquidity Provider has requested Morgan Stanley
Dean Witter & Co. (the "Guarantor") to enter into a Guarantee Agreement,
providing for the full and unconditional guarantee of the Liquidity Provider's
obligations under this Agreement (the "Guarantee Agreement").
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:
"Additional Cost" has the meaning assigned to such term in
Section 3.01.
"Advance" means an Interest Advance, a Final Advance, a
Provider Advance, an Applied Provider Advance or an Unpaid Advance, as
the case may be.
"Applicable Liquidity Rate" has the meaning assigned to such
term in Section 3.07(f).
<PAGE> 6
2
"Applicable Margin" means (A) with respect to any Unpaid
Advance or Applied Provider Advance, (x) with respect to any LIBOR
Advance, 2.00% and (y) with respect to any Base Rate Advance, 2.00%,
and (B) with respect to any Unapplied Provider Advance, (x) with
respect to any LIBOR Advance, .35% and (y) with respect to any Base
Rate Advance, .35%.
"Applied Downgrade Advance" has the meaning assigned to such
term in Section 2.06(a).
"Applied Non-Extension Advance" has the meaning assigned to
such term in Section 2.06(a).
"Applied Provider Advance" has the meaning assigned to such
term in Section 2.06(a).
"Assignment and Assumption Agreement" means the Assignment and
Assumption to be entered into between the Borrower and the trustee of
the Successor Trust, substantially in the form of Exhibit D to the
Class C Trust Agreement.
"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 (a) the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day
for such transactions received by the Liquidity Provider from three
Federal funds brokers of recognized standing selected by it, plus (b)
one quarter of one percent (1/4 of 1%).
"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.
"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 Phoenix, Arizona, New York, New York or, so long as any Class C
Certificate is outstanding, the city and state in which the Class C
Trustee, the Borrower or any Loan Trustee 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 are carried on in the London
interbank market.
<PAGE> 7
3
"Deposits" has the meaning assigned to such terms in the
Deposit Agreement.
"Depositary" has the meaning assigned to such term in the
Deposit Agreement.
"Deposit Agreement" means the Deposit Agreement dated as of
the date hereof between Wilmington Trust Company, as Escrow Agent and
ABN AMRO Bank N.V., acting through its Chicago branch, as Depositary,
pertaining to the Class C Certificates, as the same may be amended,
modified or supplemented from time to time in accordance with the terms
thereof.
"Downgrade Advance" means an Advance made pursuant to Section
2.02(c).
"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.
"Excluded Taxes" means (i) taxes imposed on the overall net
income, net worth, capital or franchise of the Liquidity Provider or of
its Lending Office by the jurisdiction where such Liquidity Provider's
principal office or such Lending Office is located, and (ii) Excluded
Withholding Taxes.
"Excluded Withholding Taxes" means (i) withholding Taxes
imposed by the United States except (but only in the case of a
successor Liquidity Provider organized under the laws of a jurisdiction
outside the United States) to the extent that such United States
withholding Taxes are imposed as a result of any change in applicable
law (excluding from change in applicable law for this purpose a change
in an applicable treaty or other change in law affecting the
applicability of a treaty) after the date hereof, or in the case of a
successor Liquidity Provider (including a transferee of an Advance) or
Lending Office, after the date on which such successor Liquidity
Provider obtains its interest or on which the Lending Office is
changed, and (ii) any withholding Taxes imposed by the United States
which are imposed or increased as a result of the Liquidity Provider
failing to deliver to the Borrower any certificate or document (which
certificate or document in the good faith judgment of the Liquidity
Provider it is legally entitled to provide) which is reasonably
requested by the Borrower to establish that payments under this
Agreement are exempt from (or entitled to a reduced rate of)
withholding Tax.
"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 September 18, 2000, initially, or any date
to which the Expiry Date is extended pursuant to Section 2.10.
"Final Advance" means an Advance made pursuant to Section
2.02(d).
<PAGE> 8
4
"Guarantee Agreement" has the meaning assigned to such term in
the preliminary statements of this Agreement.
"Guarantee Event" has the meaning specified in Section
2.02(c).
"Guarantor" has the meaning assigned to such term in the
preliminary statements of this Agreement.
"Intercreditor Agreement" means the Intercreditor Agreement
dated as of the date hereof, among the Trustees, the Liquidity
Provider, the liquidity provider under each Liquidity Facility (other
than this Agreement), the Policy Provider 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 third Business Day
following either (x) the Liquidity Provider's receipt
of the Notice of Borrowing for such LIBOR Advance or
(y) the withdrawal of funds from the Class C Cash
Collateral Account for the purpose of paying interest
on the Class C Certificates as contemplated by
Section 2.06(a) hereof and, in either case, 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;
provided, however, that (I) if an Unapplied Provider Advance which is a
LIBOR Advance becomes an Applied Provider Advance, the Interest Period
then applicable to such Unapplied Provider Advance shall be applicable
to such Applied Provider Advance and (II) if (x) the Final Advance
shall have been made, or (y) other outstanding Advances shall have been
converted into the Final Advance, then the Interest Periods shall be
successive periods of one month beginning on the third Business Day
following the Liquidity Provider's receipt of the Notice of Borrowing
for such Final Advance (in the case of clause (x) above) or the last
day of the Interest Period then applicable to such outstanding Advances
(in the case of clause (y) above).
"Lending Office" means the office of the Liquidity Provider in
which it books this facility presently located at New York, New York,
or such other office as the Liquidity Provider from time to time shall
notify the Borrower as its "Lending Office" hereunder in which it books
this facility; provided that the Liquidity Provider shall not change
its Lending Office to a Lending Office outside the United States of
America except in accordance with Section 3.01, 3.02 or 3.03 hereof.
<PAGE> 9
5
"LIBOR Advance" means an Advance bearing interest at a rate
based upon the LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period,
(i) the rate per annum appearing on display page 3750
(British Bankers Association-LIBOR) of the Dow Jones
Markets Service (or any successor or substitute Page
of such Service, or any successor to or substitute
for such Service, providing rate quotations
comparable to those currently provided on such Page
applicable to deposits in dollars in the London
interbank market) at approximately 11:00 A.M. (London
time) two Business Days before the first day of such
Interest Period, as the rate for dollar deposits with
a maturity comparable to such Interest Period, or
(ii) if the rate calculated pursuant to clause (i) above
is not available, the average (rounded upwards, if
necessary, to the next 1/16 of 1%) of the rates per
annum at which deposits in dollars are offered for
the relevant Interest Period by three banks of
recognized standing selected by the Liquidity
Provider 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
an amount approximately equal to the principal amount
of the LIBOR Advance to which such Interest Period is
to apply and for a period comparable to such Interest
Period.
"Liquidity Event of Default" means the occurrence of either
(a) the Acceleration of all of the Equipment Notes (provided that, with
respect to the period prior to the Delivery Period Expiry Date, such
Equipment Notes have an aggregate outstanding principal balance in
excess of $125,000,000) or (b) an America West Bankruptcy Event.
"Liquidity Indemnitee" means (i) the Liquidity Provider, (ii)
the Guarantor, (iii) the respective directors, officers, employees and
agents of the Liquidity Provider and the Guarantor, and (iv) the
successors and permitted assigns of the persons described in clauses
(i) and (iii), inclusive.
"Liquidity Provider" has the meaning assigned to such term in
the recital of parties to this Agreement.
"Maximum Available Commitment" means, subject to the proviso
contained in the third sentence of Section 2.02(a), at any time of
determination, (a) the Maximum Commitment at such time less (b) the
aggregate amount of each Interest Advance outstanding at such time;
provided that following a Provider Advance or a Final Advance, the
Maximum Available Commitment shall be zero.
"Maximum Commitment" means initially $2,582,239.80, as the
same may be reduced from time to time in accordance with Section
2.04(a).
<PAGE> 10
6
"Non-Extension Advance" means an Advance made pursuant to
Section 2.02(b).
"Notice of Borrowing" has the meaning specified in Section
2.02(e).
"Notice of Replacement Subordination Agent" has the meaning
specified in Section 3.08.
"Offering Memorandum" means the Offering Memorandum dated
September 14, 1999 relating to the Certificates, as such Offering
Memorandum may be amended or supplemented.
"Performing Note Deficiency" means any time that less than 65%
of the then aggregate outstanding principal amount of all Equipment
Notes are Performing Equipment Notes.
"Provider Advance" means a Downgrade Advance or a
Non-Extension Advance.
"Regulatory Change" has the meaning assigned to such term in
Section 3.01.
"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 C Certificates, that would be
payable on the Class C 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 C Certificates
on such day and without regard to expected future payments of principal
on the Class C Certificates.
"Successor Trust" means America West Airlines Pass Through
Trust 1999-1C-S.
"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 C
Certificates have been paid in full (or provision has been made for
such payment in accordance with the Intercreditor Agreement and the
Trust 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 fifth Business Day following the
receipt by the Borrower of a Termination Notice from the Liquidity
Provider pursuant to Section 6.01 hereof; and (v) the date on which no
Advance
<PAGE> 11
7
is or may (including by reason of reinstatement as herein provided)
become available for a Borrowing hereunder.
"Termination Notice" means the Notice of Termination
substantially in the form of Annex V to this Agreement.
"Transferee" has the meaning assigned to such term in Section
7.08(b).
"Unapplied Provider Advance" means any Provider Advance other
than an Applied Provider Advance.
"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:
"Acceleration", "Affiliate", "America West", "America West Bankruptcy
Event", "Certificates", "Class C Cash Collateral Account", "Class C
Certificateholders", "Class C Certificates", "Class C Trust", "Class C
Trust Agreement", "Class C Trustee", "Class G Certificates", "Closing
Date", "Controlling Party", "Corporate Trust Office", "Delivery Period
Expiry Date", "Distribution Date", "Downgraded Facility", "Equipment
Notes", "Fee Letter", "Final Legal Distribution Date", "Financing
Agreement", "Indenture", "Initial Purchasers", "Interest Payment Date",
"Investment Earnings", "Liquidity Facility", "Liquidity Obligations",
"Loan Trustee", "Moody's", "Non-Extended Facility", "Note Purchase
Agreement", "Operative Agreements", "Performing Equipment Note",
"Person", "Policy Provider", "Pool Balance", "Purchase Agreement",
"Rating Agency", "Ratings Confirmation", "Regular Distribution Date",
"Replacement Liquidity Facility", "Responsible Officer", "Scheduled
Payment", "Special Payment", "Standard & Poor's", "Stated Interest
Rate", "Subordination Agent", "Taxes", "Threshold Rating", "Transfer",
"Trust Agreements", "Trustee", 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 Maximum Commitment.
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8
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 Maximum Available Commitment at such time and shall be
used solely for the payment when due of interest on the Class C 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 Maximum Available Commitment 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 Maximum Available Commitment shall be
reinstated by the amount of such repaid Interest Advance, but not to exceed the
Maximum Commitment; provided, however, that the Maximum Available Commitment
shall not be so reinstated at any time if (i) a Liquidity Event of Default shall
have occurred and be continuing and (ii) there is a Performing Note Deficiency.
(b) A Non-Extension Advance shall be made in a single
Borrowing if this Agreement is not extended in accordance with Section 3.6(d) of
the Intercreditor Agreement (unless a Replacement Liquidity Facility to replace
this Agreement shall have been delivered to the Borrower as contemplated by said
Section 3.6(d) within the time period specified in such Section) 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 Maximum Available Commitment
at such time, and shall be used to fund the Class C Cash Collateral Account in
accordance with said Section 3.6(d) and Section 3.6(f) of the Intercreditor
Agreement.
(c) A Downgrade Advance shall be made in a single Borrowing,
(i) upon a downgrading of the Guarantor's short-term unsecured debt rating
issued by either Rating Agency below the applicable Threshold Rating or (ii) if
the Guarantee Agreement ceases to be in full force and effect or becomes invalid
or unenforceable or the Guarantor denies its liability thereunder (any such
occurrence, a "Guarantee Event") (as provided for in Section 3.6(c) of the
Intercreditor Agreement), unless a Replacement Liquidity Facility to replace
this Agreement shall have been previously 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 III
attached hereto, signed by a Responsible Officer of the Borrower, in an amount
equal to the Maximum Available Commitment at such time, and shall be used to
fund the Class C Cash Collateral Account in accordance with said Section 3.6(c)
and Section 3.6(f) of the Intercreditor Agreement.
(d) A Final Advance shall be made in a single Borrowing upon
the receipt by the Borrower of a Termination Notice from the Liquidity Provider
pursuant to Section 6.01 hereof by delivery to the Liquidity Provider of a
written and completed Notice of Borrowing in substantially the form of Annex IV
attached hereto, signed by a Responsible Officer of the Borrower, in an amount
equal to the Maximum Available Commitment at such time, and shall be used to
fund the Class C Cash Collateral Account (in accordance with Section 3.6(i) of
the Intercreditor Agreement and Section 3.6(f) of the Intercreditor Agreement).
<PAGE> 13
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(e) Each Borrowing shall be made on notice in writing (a
"Notice of Borrowing") in substantially the form required by Section 2.02(a),
2.02(b), 2.02(c) or 2.02(d), as the case may be, given by the Borrower to the
Liquidity Provider. If a Notice of Borrowing is delivered by the Borrower in
respect of any Borrowing no later than 10:00 a.m. (New York City time) on a
Business Day, upon satisfaction of the conditions precedent set forth in Section
4.02 with respect to a requested Borrowing, the Liquidity Provider shall make
available to the Borrower, in accordance with its payment instructions, the
amount of such Borrowing in U.S. dollars and immediately available funds, before
12:00 noon. (New York City time) on such Business Day or on such later Business
Day specified in such Notice of Borrowing. If a Notice of Borrowing is delivered
by the Borrower in respect of any Borrowing after 10:00 a.m. (New York City
time) on a Business Day, upon satisfaction of the conditions precedent set forth
in Section 4.02 with respect to a requested Borrowing, the Liquidity Provider
shall make available to the Borrower, in accordance with its payment
instructions, the amount of such Borrowing in U.S. dollars and in immediately
available funds, before 12:00 Noon (New York City time) on the first 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.
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.
(f) 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. If the
Liquidity Provider makes an Advance requested pursuant to a Notice of Borrowing
before 12:00 Noon (New York City time) on the second Business Day after the date
of payment specified in said Section 2.02(e), the Liquidity Provider shall have
fully discharged its obligations hereunder with respect to such Advance and an
event of default shall not have occurred hereunder. Following the making of any
Advance pursuant to Section 2.02(b), (c) or (d) hereof to fund the Class C Cash
Collateral Account, the Liquidity Provider shall have no interest in or rights
to the Class C Cash Collateral Account, such Advance or any other amounts from
time to time on deposit in the Class C Cash Collateral Account; provided that
the foregoing shall not affect or impair the obligations of the Subordination
Agent to make the distributions contemplated by Section 3.6(e) or (f) of the
Intercreditor Agreement. 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. The Borrower agrees to pay to the
Liquidity Provider the fees set forth in the Fee Letter.
Section 2.04. Adjustments or Termination of the Maximum
Commitment.
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(a) Automatic Adjustments. Promptly following each date on
which the Required Amount is (1) reduced as a result of a reduction in the Pool
Balance of the Class C Certificates or otherwise, (2) increased as a result of
an increase in the Stated Interest Rate or (3) subsequent to such an increase
described in clause (2), reduced pursuant to the definition of "Stated Interest
Rate", the Maximum Commitment shall automatically be reduced or increased, as
the case may be, to an amount equal to the Required Amount (as calculated by the
Borrower). The Borrower shall give notice of any such automatic reduction or
increase, as the case may be, of the Maximum Commitment to the Liquidity
Provider within two Business Days thereof. The failure by the Borrower to
furnish any such notice shall not affect such automatic reduction or increase of
the Maximum Commitment.
(b) Termination. Upon the making of any Provider 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 2.06, 2.07 and 2.09 hereof, the Borrower hereby
agrees, without notice of an Advance or demand for repayment from the Liquidity
Provider (which notice and demand are hereby waived by the Borrower), 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 Advance (any such 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 hereof; provided that if
(i) the Liquidity Provider shall make a Provider Advance at any time after
making one or more Interest Advances which shall not have been repaid in
accordance with this Section 2.05 or (ii) this Liquidity Facility shall become a
Downgraded Facility or Non-Extended Facility at any time when unreimbursed
Interest Advances have reduced the Maximum Available Commitment to zero, then
such Interest Advances shall cease to constitute Unpaid Advances and shall be
deemed to have been changed into an Applied Downgrade Advance or an Applied
Non-Extension Advance, as the case may be, for all purposes of this Agreement
(including, without limitation, for the purpose of determining when such
Interest Advance is required to be repaid to the Liquidity Provider in
accordance with Section 2.06 and for the purposes of Section 2.06(b)). The
Borrower and the Liquidity Provider agree that the repayment in full of each
Interest Advance and Final Advance on the date such Advance is made is intended
to be a contemporaneous exchange for new value given to the Borrower by the
Liquidity Provider.
Section 2.06. Repayments of Provider Advances. (a) Amounts
advanced hereunder in respect of a Provider Advance shall be deposited in the
Class C Cash Collateral Account, invested and withdrawn from the Class C Cash
Collateral Account as set forth in Sections 3.6(c), (d) 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 Provider Advance, interest on the principal amount of
any such Provider Advance as provided in Section 3.07; provided, however, that
amounts in respect of a Provider Advance withdrawn from the Class C Cash
Collateral Account for the purpose of paying interest on the Class C
Certificates in accordance with Section 3.6(f) of the
<PAGE> 15
11
Intercreditor Agreement (the amount of any such withdrawal being (y) in the case
of a Downgrade Advance, an "Applied Downgrade Advance" and (z) in the case of a
Non-Extension Advance, an "Applied Non-Extension Advance" and, together with an
Applied Downgrade Advance, an "Applied Provider Advance") shall thereafter
(subject to Section 2.06(b)) be treated as an Interest Advance under this
Agreement for purposes of determining the Applicable Liquidity Rate for interest
payable thereon; provided further, however, that if, following the making of a
Provider Advance, the Liquidity Provider delivers a Termination Notice to the
Borrower pursuant to Section 6.01 hereof, such Provider Advance shall thereafter
be treated as a Final Advance under this Agreement for purposes of determining
the Applicable Liquidity Rate for interest payable thereon. Subject to Sections
2.07 and 2.09 hereof, immediately upon the withdrawal of any amounts from the
Class C Cash Collateral Account on account of a reduction in the Required
Amount, the Borrower shall repay to the Liquidity Provider a portion of the
Provider Advances in a principal amount equal to such reduction, plus interest
on the principal amount prepaid as provided in Section 3.07 hereof.
(b) At any time when an Applied Provider Advance (or any
portion thereof) is outstanding, upon the deposit in the Class C Cash Collateral
Account of any amount pursuant to clause "third" of Section 2.4(b) of the
Intercreditor Agreement, clause "third" of Section 3.2 of the Intercreditor
Agreement or clause "fourth" of Section 3.3 of the Intercreditor Agreement (any
such amount being a "Replenishment Amount") for the purpose of replenishing or
increasing the balance thereof up to the Required Amount at such time, (i) the
aggregate outstanding principal amount of all Applied Provider Advances (and of
Provider Advances treated as an Interest Advance for purposes of determining the
Applicable Liquidity Rate for interest payable thereon) shall be automatically
reduced by the amount of such Replenishment Amount and (ii) the aggregate
outstanding principal amount of all Unapplied Provider Advances 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, amounts remaining on deposit in the Class C Cash
Collateral Account after giving effect to any Applied Provider Advance on the
date of such replacement shall be reimbursed to the Liquidity Provider, but only
to the extent such amounts are necessary to repay in full to the Liquidity
Provider all amounts owing to it hereunder.
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 to Liquidity
Obligations then due and payable in accordance with the Intercreditor Agreement
or, if not provided for in the Intercreditor Agreement, then in such manner as
the Liquidity Provider shall deem appropriate.
<PAGE> 16
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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 the
amounts that constitute Scheduled Payments, Special Payments or payments under
Section 7.1 or 9.1, as the case may be, of the Participation Agreements and
Section 6 of the Note Purchase Agreement 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 C Cash Collateral Account shall be available to the Borrower to
make payments under this Agreement only to the extent and for the purposes
expressly contemplated in Section 3.6(f) of the Intercreditor Agreement.
Section 2.10. Extension of the Expiry Date; Non-Extension
Advance. The Expiry Date shall be automatically extended, effective on the 25th
day prior to each Expiry Date (unless such Expiry Date is on or after the date
that is 15 days after the Final Legal Distribution Date for the Class C
Certificates), for a period of 364 days after such Expiry Date (unless the
obligations of the Liquidity Provider are earlier terminated in accordance with
the terms hereof), without the necessity of any act on the part of the Borrower
or the Liquidity Provider, unless the Liquidity Provider shall advise the
Borrower prior to such 25th day that it does not agree to such extension of such
Expiry Date, in which event (and if the Liquidity Provider shall not have been
replaced in accordance with Section 3.6(e) of the Intercreditor Agreement), the
Borrower shall be entitled on and after such 25th day (but prior to the then
effective Expiry Date) to request a Non-Extension Advance in accordance with
Section 2.02(b) hereof and Section 3.6(d) of the Intercreditor Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs. The Borrower shall pay to the
Liquidity Provider from time to time such amounts as may be necessary to
compensate the Liquidity Provider for any increased costs incurred by the
Liquidity Provider which are reasonably attributable to its making or
maintaining any LIBOR Advances hereunder or its obligation to make any such
Advances hereunder, or any reduction in any amount receivable by the Liquidity
Provider under this Agreement or the Intercreditor Agreement in respect of any
such Advances or such
<PAGE> 17
13
obligation (such increases in costs and reductions in amounts receivable being
herein called "Additional Costs"), resulting from any change after the date of
this Agreement in U.S. federal, state, municipal, or foreign laws or regulations
(including Regulation D of the Board of Governors of the Federal Reserve System
applicable to banks generally), or the adoption or making after the date of this
Agreement of any interpretations, directives, or requirements applying to a
class of banks including the Liquidity Provider under any U.S. federal, state,
municipal, or any foreign laws or regulations (whether or not having the force
of law but of the type with which the Liquidity Provider is accustomed to
comply) by any court, central bank or monetary authority charged with the
interpretation or administration thereof in each case not publicly announced on
the date hereof (a "Regulatory Change"), which: (1) changes the basis of
taxation of any amounts payable to the Liquidity Provider under this Agreement
in respect of any such Advances (other than Excluded Taxes); or (2) imposes or
modifies any reserve, special deposit, compulsory loan or similar requirements
relating to any extensions of credit hereunder in respect of LIBOR Advances
(including any such Advances or any deposits referred to in the definition of
LIBOR Rate or related definitions), other than (i) costs which arise as a result
of the Liquidity Provider willfully contravening or exceeding any operating
limits or other restrictions imposed on it by any authority; or (ii) if the
increased costs would not have arisen but for any assignment to another
Liquidity Provider or an alteration in the lending office of the Liquidity
Provider. The Liquidity Provider agrees to use reasonable efforts (consistent
with applicable 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 that may thereafter accrue and
would not, in the reasonable judgment of the Liquidity Provider, be otherwise
disadvantageous to the Liquidity Provider.
The Liquidity Provider will notify the Borrower of any event
occurring after the date of this Agreement that will entitle the Liquidity
Provider to compensation pursuant to this Section 3.01 as promptly as
practicable after it obtains knowledge thereof and determines to request such
compensation, which notice shall describe in reasonable detail the calculation
of the amounts owed under this Section; provided, that if the Liquidity Provider
fails to give such notice within 30 days after it obtains such knowledge, the
Liquidity Provider shall, with respect to any costs resulting from such event,
only be entitled to payment under this Section 3.01 for costs incurred from and
after the date 30 days prior to the date the Liquidity Provider does give such
notice. Determinations by the Liquidity Provider for purposes of this Section
3.01 of the effect of any Regulatory Change on its costs of making or
maintaining Advances or on amounts receivable by it in respect of Advances, and
of the additional amounts required to compensate the Liquidity Provider in
respect of any Additional Costs, shall be prima facie evidence of the amount
owed under this Section.
Notwithstanding the preceding two paragraphs, the Liquidity
Provider and the Subordination Agent agree that any permitted assignee or
participant of the initial Liquidity Provider which is not a bank shall not be
entitled to the benefits of the preceding two paragraphs (but without limiting
the provisions of Section 7.08 hereof).
The Liquidity Provider shall not be entitled to compensation
under this Section 3.01 if (1) it shall not be also seeking compensation (if it
should be so entitled) under other comparable contractual provisions in its
other agreements, (2) if its claim under this Section 3.01
<PAGE> 18
14
arises through circumstances peculiar to the Liquidity Provider and which do not
affect a similarly organized commercial banking institution in the same
jurisdiction generally, or (3) the Liquidity Provider is not the initial
liquidity provider and America West did not consent to the transfer of this
facility to the Liquidity Provider, for the amount, if any, payable under this
Section 3.01 resulting from events occurring prior to the date the Liquidity
Provider acquired its interests hereunder as shall exceed the amount payable
under this Section 3.01 that would have been due to the Liquidity Provider's
transferor had it continued to be the liquidity provider hereunder.
Section 3.02. Capital Adequacy. If (1) the adoption, after the
date hereof, of any applicable governmental law, rule or regulation regarding
capital adequacy and not publicly announced on the date hereof, (2) any change,
after the date hereof, in the interpretation or administration of any such law,
rule or regulation by any central bank or other governmental authority charged
with the interpretation or administration thereof and not publicly announced on
the date hereof or (3) compliance by the Liquidity Provider or any corporation
controlling the Liquidity Provider with any applicable guideline or request of
general applicability, issued after the date hereof and not publicly announced
on the date hereof, by any central bank or other governmental authority (whether
or not having the force of law but of the type with which the Liquidity Provider
is accustomed to comply) that constitutes a change of the nature described in
clause (2), has the effect of requiring an increase in the amount of capital
required to be maintained by the Liquidity Provider or any corporation
controlling the Liquidity Provider, and such increase is based upon the
Liquidity Provider's obligations hereunder and other similar obligations, the
Borrower shall pay to the Liquidity Provider from time to time such additional
amount or amounts as are necessary to compensate the Liquidity Provider for such
portion of such increase as shall be reasonably allocable to the Liquidity
Provider's obligations to the Borrower hereunder. The Liquidity Provider agrees
to use reasonable efforts (consistent with applicable 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 that may thereafter accrue and would not, in the reasonable
judgment of the Liquidity Provider, be otherwise materially disadvantageous to
the Liquidity Provider.
The Liquidity Provider will notify the Borrower of any event
occurring after the date of this Agreement that will entitle the Liquidity
Provider to compensation pursuant to this Section 3.02 as promptly as
practicable after it obtains knowledge thereof and determines to request such
compensation, which notice shall describe in reasonable detail the calculation
of the amounts owed under this Section; provided that if the Liquidity Provider
fails to give such notice within 30 days after it obtains such knowledge, the
Liquidity Provider shall, with respect of any costs resulting from such event,
only be entitled to payment under this Section 3.02 for costs incurred from and
after the date 30 days prior to the date the Liquidity Provider does give such
notice. Determinations by the Liquidity Provider for purposes of this Section
3.02 of the effect of any increase in the amount of capital required to be
maintained by the Liquidity Provider and of the amount allocable to the
Liquidity Provider's obligations to the Borrower hereunder shall be prima facie
evidence of the amounts owed under this Section.
Notwithstanding the preceding two paragraphs, the Liquidity
Provider and the Subordination Agent agree that any permitted assignee or
participant of the initial Liquidity
<PAGE> 19
15
Provider which is not a bank shall not be entitled to the benefits of the
preceding two paragraphs (but without limiting the provisions of Section 7.08
hereof).
The Liquidity Provider shall not be entitled to compensation
under this Section 3.02 if (1) it shall not be also seeking compensation (if it
should be so entitled) under other comparable contractual provisions in its
other agreements, (2) if its claim under this Section 3.02 arises through
circumstances peculiar to the Liquidity Provider and which do not affect a
similarly organized commercial banking institution in the same jurisdiction
generally, or (3) the Liquidity Provider is not the initial liquidity provider
and America West did not consent to the transfer of this facility to the
Liquidity Provider, for the amount, if any, payable under this Section 3.02
resulting from events occurring prior to the date the Liquidity Provider
acquired its interests hereunder as shall exceed the amount payable under this
Section 3.02 that would have been due to the Liquidity Provider's transferor had
it continued to be the liquidity provider hereunder.
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, deductions or withholdings, of a similar nature
other than Excluded Taxes (collectively, "Non-Excluded Taxes" and, individually,
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
Liquidity Provider shall notify the Borrower and America West thereof and from
and after such notice, 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) the amount it would have received had no such
deduction or withholding occurred. The Liquidity Provider agrees to use
reasonable efforts (consistent with its 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 such additional amounts that may
thereafter accrue and shall otherwise take such reasonable steps as are open to
it to mitigate the effects of such circumstances provided that the Liquidity
Provider shall be under no obligation to take any such action if to do so would
have a material adverse effect on its business, operations or financial
condition or result in its rights, interests or position under this Agreement
being prejudiced or involved in any unlawful activity . From time to time upon
the reasonable request of the Borrower, the Liquidity Provider agrees to provide
to the Borrower two original Internal Revenue Service Form W-8BEN or W-8ECI, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that the Liquidity Provider is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to this
Agreement.
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 Citibank, N.A., New York, New
York, ABA#021000089, Account Name: Morgan Stanley Capital Services, Inc.,
Account #4072-4601, Reference: America West Airlines, Inc., 1999-1C.
<PAGE> 20
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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 interest based on the LIBOR Rate 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 shall be stated to be due on a day other than a
Business Day, such payment shall be made on the next succeeding Business Day and
no additional interest shall be due as a result (and if so made, shall be deemed
to have been made when due). If any payment in respect of interest on an Advance
is so deferred to the next succeeding Business Day, such deferral shall not
delay the commencement of the next Interest Period for such Advance (if such
Advance is a LIBOR Advance) or reduce the number of days for which interest will
be payable on such Advance on the next interest payment date for such Advance.
Section 3.07. Interest. (a) Subject to Section 2.09, the
Borrower shall pay, or shall cause to be paid, without duplication, 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 Provider Advance, from and including
the date on which the amount thereof was withdrawn from the Class C Cash
Collateral Account to pay interest on the Class C Certificates) to but excluding
the date such principal amount shall be paid in full (or, in the case of an
Applied Provider Advance, the date on which the Class C Cash Collateral Account
is fully replenished in respect of such Advance) 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.
(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.
(c) Each LIBOR Advance shall bear interest during each
Interest Period at a rate per annum 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
<PAGE> 21
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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 rate per
annum 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) 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 but excluding Advances) shall bear
interest at a rate per annum equal to the Base Rate plus 2% until paid.
(f) Each change in the Base Rate shall become effective
immediately. The rates of interest specified in this Section 3.07 with respect
to any Advance or other amount shall be referred to as the "Applicable Liquidity
Rate".
Section 3.08. Replacement of Borrower. From time to time and
subject to the successor Borrower's meeting the eligibility requirements set
forth in Section 6.9 of the Intercreditor Agreement applicable to the
Subordination Agent, upon the effective date and time specified in a written and
completed Notice of Replacement Subordination Agent in substantially the form of
Annex VI attached hereto (a "Notice of Replacement Subordination Agent")
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 incurred by it by reason of
the liquidation or redeployment of deposits or other funds acquired by the
Liquidity Provider to fund or maintain any LIBOR Advance (but excluding loss of
anticipated profits) incurred as a result of:
(1) Any repayment of a LIBOR Advance on a date other than the
last day of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance on
the date for borrowing specified in the relevant notice under Section
2.02.
Section 3.10. Illegality. Notwithstanding any other provision
in this Agreement, if any change in any applicable law, rule or regulation not
publicly announced on the date hereof shall make it unlawful or impossible for
the Liquidity Provider (or its Lending Office) to maintain or fund its LIBOR
Advances without breaking such law, 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 to the extent necessary to cure such
illegality (a) immediately upon demand of the Liquidity Provider, if such change
or compliance with such
<PAGE> 22
18
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. The Liquidity Provider agrees
to use reasonable efforts (consistent with applicable legal and regulatory
restrictions) to change the jurisdiction of its Lending Office if making such
change would avoid or cure the aforesaid illegality.
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, and in the case of each
document delivered pursuant to paragraphs (i), (ii) and (iii), 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) Fully executed copies of each of the Operative
Agreements executed and delivered on or before the Closing
Date (other than this Agreement and the Intercreditor
Agreement);
(iv) A copy of the Offering Memorandum and specimen
copies of the Class C Certificates;
(v) An executed copy of each document, instrument,
certificate and opinion delivered on or before the Closing
Date pursuant to the Class C Trust Agreement, the
Intercreditor Agreement and the other Operative Agreements (in
the case of each such opinion, other than the opinion of
counsel for the Initial Purchasers, either addressed to the
Liquidity Provider or accompanied by a letter from the counsel
rendering such opinion to the effect that the Liquidity
Provider is entitled to rely on such opinion as of its date as
if it were addressed to the Liquidity Provider);
(vi) 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 are necessary or in
order to establish, perfect, protect and preserve the right,
title and interest of the Liquidity Provider created by the
Operative Agreements executed and delivered on or prior to the
Closing Date;
<PAGE> 23
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(vii) An agreement from America West, pursuant to
which America West agrees to provide copies of quarterly
financial statements and audited annual financial statements
to the Liquidity Provider (which obligations may be satisfied
by the furnishing of America West's Form 10Q and 10K), in each
case, only to the extent that America West is obligated to
provide such information pursuant to Section 8.2.1 of the
Leases (related to Leased Aircraft) or the corresponding
section of the Indentures (related to Owned Aircraft) to the
parties thereto; and
(viii) Such other documents, instruments, opinions
and approvals pertaining to the transactions contemplated
hereby or by the other Operative Agreements as the Liquidity
Provider shall have reasonably requested.
(b) The following statement shall be true on and as of the
Effective Date: 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 account of the
Liquidity Provider on or prior to the Effective Date.
(d) All conditions precedent to the issuance of the
Certificates under the Trust Agreements shall have been satisfied or
waived, all conditions precedent to the effectiveness of the other
Liquidity Facilities shall have been satisfied or waived, and all
conditions precedent to the purchase of the Certificates by the Initial
Purchasers under the Purchase Agreement shall have been satisfied
(unless any of such conditions precedent shall have been waived by the
Initial Purchasers).
(e) The Borrower shall have received (i) the Guarantee
Agreement, substantially in the form of Exhibit I hereto, duly executed
on behalf of each of the parties thereto and (ii) 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.
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, 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 Advances requested.
<PAGE> 24
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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
Maximum 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.
(c) Certain Operative Agreements. Furnish to the Liquidity
Provider with reasonable promptness, such Operative Agreements entered
into after the date hereof as from time to time may be reasonably
requested by the Liquidity Provider.
Section 5.02. Negative Covenants of the Borrower. So long as
any Advance shall remain unpaid or the Liquidity Provider shall have any Maximum
Commitment hereunder or the Borrower shall have any obligation to pay any amount
to the Liquidity Provider hereunder, the Borrower will not appoint or permit or
suffer to be appointed any successor Borrower without the prior written consent
of the Liquidity Provider, which consent shall not be unreasonably withheld or
delayed.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default. If (a) any
Liquidity Event of Default has occurred and is continuing and (b) there is a
Performing Note Deficiency, the Liquidity Provider may, in its discretion,
deliver to the Borrower a Termination Notice, the effect of which shall be to
cause (i) the obligation of the Liquidity Provider to make Advances hereunder to
expire on the fifth Business Day after the date on which such Termination Notice
is received by the Borrower, (ii) the Borrower to promptly request, and the
Liquidity Provider to promptly make, a Final Advance in accordance with Section
2.02(d) hereof and Section 3.6(i) of the Intercreditor Agreement, (iii) all
other outstanding Advances to be automatically converted into Final Advances for
purposes of determining the Applicable Liquidity Rate for interest payable
<PAGE> 25
21
thereon, and (iv) subject to Sections 2.07 and 2.09 hereof, all Advances
(including, without limitation, any Provider Advance and Applied Provider
Advance), any accrued interest thereon and any other amounts outstanding
hereunder to 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 or of a
waiver by the Borrower, 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:
WILMINGTON TRUST COMPANY
Rodney Square North
1100 North Market Square
Wilmington, DE 19890-0001
Attention: Corporate Trust Administration
Telephone: 302-651-1000
Telecopy: 302-651-8882
Liquidity Provider:
MORGAN STANLEY CAPITAL SERVICES, INC.
1585 Broadway
New York, New York 10036
Attention: Keith Amburgey
Telephone: (212) 761-2504
Telecopy: (212) 781-0580
With a copy of any Notice of Borrowing to be delivered to:
MORGAN STANLEY DEAN WITTER & CO.
1585 Broadway
<PAGE> 26
22
New York, New York 10036
Attention: Aaron Lubowitz and Mark Esparrago
Telephone: (212) 761-2526 and (212) 761-2618
Telecopy: (212) 761-0406
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, and (ii) if given by other means, when
delivered at the address specified above. 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
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 Section 7.1 or 9.1, as the case may be, of the Participation
Agreements and Section 6(c) of the Note Purchase Agreement. The indemnities
contained in Section 7.1 or 9.1, as the case may be, of the Participation
Agreements, and Section 6(c) of the Note Purchase Agreement and the provisions
of Sections 3.01, 3.02, 3.03, 3.09, 7.05 and 7.07 hereof, 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, employees, directors or
affiliates 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; or (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 except as executed by the Liquidity Provider; 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
<PAGE> 27
23
payment hereunder after the delivery to it by the Borrower of a Notice of
Borrowing strictly complying with the terms and conditions hereof.
(b) Neither the Liquidity Provider nor any of its officers,
employees, directors or affiliates shall 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 (including, without limitation, the reasonable
fees and expenses of outside counsel for the Liquidity Provider) 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
and (B) on demand, all reasonable costs and expenses (including reasonable
counsel fees and expenses) of the Liquidity Provider 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) other
than amendments requested by the Liquidity Provider or a transfer made by the
Liquidity Provider either voluntarily or as a result of the mitigation
provisions of Article III or a Non-Extension Drawing or a Downgrade Drawing 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 Class
C Cash Collateral 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, other than
amendments requested by the Liquidity Provider or a transfer made by the
Liquidity Provider either voluntarily or as a result of the mitigation
provisions of Article III or a Non-Extension Drawing or a Downgrade Drawing, 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 (except as contemplated by Section 3.08) the Borrower shall have the
right to assign its rights or obligations hereunder or any interest herein
without the prior written consent of the other party, subject to the
requirements of Section 7.08(b). The Liquidity Provider may grant participations
herein or in any of its rights hereunder (including, without
<PAGE> 28
24
limitation, funded participations and participations in rights to receive
interest payments hereunder) and under the other Operative Agreements to such
Persons (other than America West or any of its Affiliates) as the Liquidity
Provider may in its sole discretion select, subject to the requirements 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, additional amounts due pursuant to Section 3.03 and the like
as they pertain to the Liquidity Provider shall be deemed also to include those
of each of its participants that are banks (subject, in each case, to the
maximum amount that would have been incurred by or attributable to the Liquidity
Provider directly if the initial Liquidity Provider, rather than the
participant, had held the interest participated and were a U.S. bank).
(b) If, pursuant to subsection (a) above, the Liquidity
Provider sells any participation in this Agreement to any bank or other entity
(each, a "Transferee"), then, concurrently with the effectiveness of such
participation, the Transferee 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 with
respect to any payments to be made to such Transferee 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 W-8BEN or Form W-8ECI, as
appropriate, or other applicable form, certificate or document prescribed by the
Internal Revenue Service certifying, in each case, such Transferee'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 W-8BEN or Form W-8ECI, 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 W-8ECI or Form
W-8BEN that such Transferee 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
(and required by applicable law) 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.
(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
<PAGE> 29
25
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 non-authorization 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; 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 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) 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
hereof, 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
<PAGE> 30
26
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 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 judgment entered by any such court
under the United States Foreign Sovereign Immunities Act of 1976 or any similar
successor legislation.
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, the Intercreditor
Agreement and the other Operative Agreements to which the Liquidity Provider is
a party constitute the entire agreement of the parties hereto with respect to
the subject matter hereof and supersedes all prior understandings and agreements
of such parties.
Section 7.14. Headings. 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.
Section 7.15. Transfer. The Liquidity Provider hereby
acknowledges and consents to the Transfer contemplated by the Assignment and
Assumption Agreement.
Section 7.16. 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.
<PAGE> 31
IN WITNESS WHEREOF, the parties 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.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent, as agent
and trustee for the Class C Trust, as
Borrower
By: /s/ James P. Lawler
-------------------------------------
Name: James P. Lawler
Title: Vice President
MORGAN STANLEY CAPITAL SERVICES, INC.,
as Liquidity Provider
By: /s/ Elinor L. Hoover
-------------------------------------
Name: Elinor L. Hoover
Title: Vice President
<PAGE> 32
Annex I to
Revolving Credit Agreement
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned borrower (the "Borrower"), hereby certifies to MORGAN STANLEY
CAPITAL SERVICES, INC. (the "Liquidity Provider"), with reference to the
Revolving Credit Agreement (1999-1C) dated as of September 21, 1999, 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,
subject to clause (3)(v) below, for the payment of interest on the
Class C Certificates which was payable on ____________, ____ (the
"Distribution Date") in accordance with the terms and provisions of the
Class C Trust Agreement and the Class C Certificates, which Advance is
requested to be made on the date hereof.
(3) The amount of the Interest Advance requested hereby (i) is
$_______________.__, to be applied in respect of the payment of the
interest which was due and payable on the Class C Certificates on the
Distribution Date, (ii) does not include any amount with respect to the
payment of principal of, or premium on, the Class C Certificates or the
Class G Certificates, or interest on the Class G Certificates, (iii)
was computed in accordance with the provisions of the Class C
Certificates, the Class C Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule
I), (iv) does not exceed the Maximum Available Commitment on the date
hereof, (v) does not include any amount of interest which was due and
payable on the Class C Certificates on such Distribution Date but which
remains unpaid due to the failure of the Depositary to pay any amount
of accrued interest on the Deposits on such Distribution Date and (vi)
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 Section 3.6(b) 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.
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
I-1
<PAGE> 33
Maximum 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 Notice of Borrowing 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 _________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent,
as Borrower
By:
-------------------------------------
Name:
Title:
I-2
<PAGE> 34
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest Advance
Notice of Borrowing]
I-2
<PAGE> 35
Annex II to
Revolving Credit Agreement
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned subordination agent (the "Borrower"), hereby certifies to MORGAN
STANLEY CAPITAL SERVICES, INC. (the "Liquidity Provider"), with reference to the
Revolving Credit Agreement (1999-1C) dated as of September 21, 1999, 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 Non-Extension Advance by the Liquidity Provider to be
used for the funding of the Class C Cash Collateral Account in
accordance with Section 3.6(d) of the Intercreditor Agreement, which
Advance is requested to be made on __________, ____.
(3) The amount of the Non-Extension Advance requested hereby
(i) is $______________, which equals the Maximum Available Commitment
on the date hereof and is to be applied in respect of the funding of
the Class C Cash Collateral Account in accordance with Section 3.6(d)
of the Intercreditor Agreement, (ii) does not include any amount with
respect to the payment of the principal of, or premium on, the Class C
Certificates, or principal of, or interest or premium on, the Class G
Certificates, (iii) was computed in accordance with the provisions of
the Class C Certificates, the Class C Trust Agreement 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 C Cash Collateral Account and apply the same in accordance with
the terms of Section 3.6(d) 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.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Non-Extension 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 Non-Extension Advance requested by this Notice of Borrowing, the Borrower
shall not be entitled to request any further Advances under the Liquidity
Agreement.
II-1
<PAGE> 36
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:
-------------------------------------
Name:
Title:
II-2
<PAGE> 37
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Non-Extension
Advance Notice of Borrowing]
II-2
<PAGE> 38
Annex III to
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned subordination agent (the "Borrower"), hereby certifies to MORGAN
STANLEY CAPITAL SERVICES, INC. (the "Liquidity Provider"), with reference to the
Revolving Credit Agreement (1999-1C) dated as of September 21, 1999, 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 C Cash Collateral Account in
accordance with Section 3.6(c) of the Intercreditor Agreement by reason
of (i) the downgrading of the short-term unsecured debt rating of the
Guarantor issued by either Rating Agency below the Threshold Rating, or
(ii) the occurrence of a Guarantee Event, which Advance is requested to
be made on __________, ____.
(3) The amount of the Downgrade Advance requested hereby (i)
is $________________, which equals the Maximum Available Commitment on
the date hereof and is to be applied in respect of the funding of the
Class C Cash Collateral 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 C
Certificates, or principal of, or interest or premium on, the Class G
Certificates, (iii) was computed in accordance with the provisions of
the Class C Certificates, the Class C Trust Agreement 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 C Cash Collateral 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.
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
<PAGE> 39
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 _________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:
-------------------------------------
Name:
Title:
<PAGE> 40
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Downgrade
Advance Notice of Borrowing]
<PAGE> 41
Annex IV to
Revolving Credit Agreement
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the
undersigned borrower (the "Borrower"), hereby certifies to MORGAN STANLEY
CAPITAL SERVICES, INC. (the "Liquidity Provider"), with reference to the
Revolving Credit Agreement (1999-1C) dated as of September 21, 1999, 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 Final Advance by the Liquidity Provider to be used
for the funding of the Class C Cash Collateral Account in accordance
with Section 3.6(i) of the Intercreditor Agreement by reason of the
receipt by the Borrower of a Termination Notice from the Liquidity
Provider with respect to the Liquidity Agreement, which Advance is
requested to be made on ____________, ____.
(3) The amount of the Final Advance requested hereby (i) is
$_________________, which equals the Maximum Available Commitment on
the date hereof and is to be applied in respect of the funding of the
Class C Cash Collateral Account in accordance with Section 3.6(i) of
the Intercreditor Agreement, (ii) does not include any amount with
respect to the payment of principal of, or premium on, the Class C
Certificates, or principal of, or interest or premium on, the Class G
Certificates, (iii) was computed in accordance with the provisions of
the Class C Certificates, the Class C Trust Agreement 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.
(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 C Cash Collateral Account and apply the same in accordance with
the terms of Section 3.6(i) 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.
The Borrower hereby acknowledges that, pursuant to the
Liquidity Agreement, (A) the making of the Final 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 Final
Advance requested by this Notice of Borrowing, the Borrower shall not be
entitled to request any further Advances under the Liquidity Agreement.
IV-1
<PAGE> 42
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:
-------------------------------------
Name:
Title:
<PAGE> 43
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Final Advance
Notice of Borrowing]
<PAGE> 44
Annex V to
Revolving Credit Agreement
NOTICE OF TERMINATION
[Date]
Wilmington Trust Company,
as Subordination Agent, as Borrower
Rodney Square North
1100 North Market Square
Wilmington, DE 19890-0001
Re: Revolving Credit Agreement dated as of September 21, 1999, between
Wilmington Trust Company, as Subordination Agent, as agent and trustee
for the America West Airlines Pass Through Trust, 1999-1C-[O/S], as
Borrower, and MORGAN STANLEY CAPITAL SERVICES, INC., as the Liquidity
Provider (the "Liquidity Agreement")
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.01 of the
Liquidity Agreement, by reason of the occurrence of a Liquidity Event of Default
and the existence of a Performing Note Deficiency (each as defined therein), we
are giving this notice to you in order to cause (i) our obligations to make
Advances (as defined therein) under such Liquidity Agreement to terminate on the
fifth Business Day after the date on which you receive this notice and (ii) you
to request a Final Advance under the Liquidity Agreement pursuant to Section
3.6(i) of the Intercreditor Agreement (as defined in the Liquidity Agreement) as
a consequence of your receipt of this notice.
V-1
<PAGE> 45
THIS NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR UNDER
THE LIQUIDITY AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY
AGREEMENT WILL TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU
RECEIVE THIS NOTICE.
Very truly yours,
MORGAN STANLEY CAPITAL
SERVICES, INC.,
as Liquidity Provider
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
cc: WILMINGTON TRUST COMPANY,
as Class C Trustee
V-2
<PAGE> 46
Annex VI to
Revolving Credit Agreement
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement dated as of September 21, 1999, between
WILMINGTON TRUST COMPANY, as Subordination Agent, as agent and trustee
for the America West Airlines Pass Through Trust, 1999-1C-[O/S], as
Borrower, and MORGAN STANLEY CAPITAL SERVICES, INC., as the Liquidity
Provider (the "Liquidity Agreement")
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby
irrevocably transfers to:
------------------------------
[Name of Transferee]
------------------------------
[Address of Transferee]
all rights and obligations 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, pursuant to the terms of Section 8.1 of
the Intercreditor 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 and obligations as Borrower
thereunder. The undersigned shall pay any costs and expenses of such transfer,
including, but not limited to, transfer taxes or governmental charges.
VI-1
<PAGE> 47
We ask that this transfer be effective as of _______________,
____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Subordination Agent, as
Borrower
By:
-------------------------------------
Name:
Title:
VI-2
<PAGE> 48
EXHIBIT I
[MORGAN STANLEY DEAN WITTER & CO. LETTERHEAD]
September 21, 1999
America West Pass Through Trust 1999-1C
Ladies and Gentlemen:
In consideration of each of the Revolving Credit Agreement (the
"Agreement") dated as of September 21, 1999 between Morgan Stanley Capital
Services Inc., a Delaware corporation (hereinafter "MSCS") and Wilmington Trust
Company as Subordination Agent, as agent and trustee for the America West Pass
Through Trust 1999-1C ("Counterparty"), Morgan Stanley Dean Witter & Co., a
Delaware corporation (hereinafter "MSDW"), hereby irrevocably and
unconditionally guarantees to Counterparty, with effect from the date of the
Agreement, the due and punctual payment of all amounts payable by MSCS under
the Agreement when the same shall become due and payable, whether on scheduled
payment dates, upon demand, upon declaration of termination or otherwise, in
accordance with the terms of the Agreement and giving effect to any applicable
grace period. Upon failure of MSCS punctually to pay any such amounts, and upon
written demand by Counterparty to MSDW at its address set forth in the
signature block of this Guarantee (or to such other address as MSDW may specify
in writing), MSDW agrees to pay or cause to be paid such amounts; provided that
delay by Counterparty in giving such demand shall in no event affect MSDW's
obligations under this Guarantee.
MSDW hereby agrees that its obligations hereunder shall be unconditional
and will not be discharged except by complete payment of the amounts payable
under the Agreement, irrespective of any claim as to the Agreement's validity,
regularity or enforceability or the lack of authority of MSCS to execute or
deliver the Agreement; or any change in or amendment to the Agreement; or any
waiver or consent by Counterparty with respect to any provisions thereof; or
the absence of any action to enforce the Agreement or the recovery of any
judgment against MSCS or of any action to enforce a judgment against MSCS
under the Agreement; or any similar circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor generally.
MSDW hereby waives diligence, presentment, demand on MSCS for payment or
otherwise (except as provided hereinabove), filing of claims, requirement of a
prior proceeding against MSCS and protest or notice, except as provided for in
the Agreement with respect to amounts payable by MSCS. If at any time payment
under the Agreement is rescinded or must be otherwise restored or returned by
Counterparty upon the insolvency, bankruptcy or reorganization of MSCS or MSDW
or otherwise, MSDW's obligations hereunder with respect to such payment shall
be reinstated upon such restoration or return being made by Counterparty.
MSDW represents to Counterparty as of the date hereof, which
representations will be deemed to be repeated by MSDW on each date on which a
Transaction is entered into, that:
(1) it is duly organized and validly existing under the laws of the
jurisdiction of its incorporation and has full power and legal right to execute
and deliver this Guarantee and to perform the provisions of this Guarantee on
its part to be performed;
<PAGE> 49
MORGAN STANLEY DEAN WITTER & CO.
September 21, 1999
Page 2
(2) its execution, delivery and performance of this Guarantee have been
and remain duly authorized by all necessary corporate action and do not
contravene any provision of its certificate of incorporation or by-laws or any
law, regulation or contractual restriction binding on it or its assets;
(3) all consents, authorizations, approvals and clearances (including,
without limitation, any necessary exchange control approval) and notifications,
reports and registrations requisite for its due execution, delivery and
performance of this Guarantee have been obtained from or, as the case may be,
filed with the relevant governmental authorities having jurisdiction and remain
in full force and effect and all conditions thereof have been duly complied
with and no other action by, and no notice to or filing with, any governmental
authority having jurisdiction is required for such execution, delivery or
performance; and
(4) this Guarantee is its legal, valid and binding obligation enforceable
against it in accordance with its terms except as enforcement hereof may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights or by general equity
principles.
By accepting this Guarantee and entering into the Agreement, Counterparty
agrees that MSDW shall be subrogated to all rights of Counterparty against MSCS
in respect of any amounts paid by MSDW pursuant to this Guarantee, provided
that MSDW shall be entitled to enforce or to receive any payment arising out of
or based upon such right of subrogation only to the extent that it has paid all
amounts payable by MSCS under the Agreement.
This Guarantee shall be governed by and construed in accordance with the
laws of the State of New York. All capitalized terms not otherwise defined
herein shall have the respective meanings assigned to them in the Agreement.
MORGAN STANLEY DEAN WITTER & CO.
By:/s/ Alexander C. Frank
------------------------------------
Name: Alexander C. Frank
Title: Treasurer
2
<PAGE> 50
MORGAN STANLEY DEAN WITTER & CO.
SECRETARY'S CERTIFICATE
I, Charlene R. Herzer, a duly elected and acting Assistant Secretary of
Morgan Stanley Dean Witter & Co., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), certify that (i) Alexander C.
Frank is the duly elected Treasurer and Eileen S. Wallace is a duly elected
Assistant Treasurer of the Corporation; (ii) pursuant to Section 7.01 of the
Bylaws of the Corporation and resolutions adopted by a Unanimous Consent of
Directors in Lieu of a Meeting, dated as of May 31, 1997, both of which are
attached as an exhibit, the Treasurer and the Assistant Treasurers are
authorized to enter into agreements and other instruments on behalf of the
Corporation; and (iii) the signatures of Alexander C. Frank and Eileen S.
Wallace appearing below are copies of their genuine signatures:
/s/ Alexander C. Frank
--------------------------------
/s/ Eileen S. Wallace
--------------------------------
IN WITNESS WHEREOF, I have hereunto set my name and affixed the seal of
the Corporation as of the 13th day of September, 1999.
/s/ Charlene R. Herzer
----------------------------
Charlene R. Herzer
Assistant Secretary
[SEAL]
<PAGE> 51
EXHIBIT
MORGAN STANLEY DEAN WITTER & CO.
SECTION 7.01 OF THE BYLAWS
SECTION 7.01. CONTRACTS. Except as otherwise required by law, the
Amended and Restated Certificate of Incorporation or these Amended and Restated
Bylaws, any contracts or other instruments may be executed and delivered in the
name and on the behalf of the Corporation by such officer or officers of the
Corporation as the Board of Directors may from time to time direct. Such
authority may be general or confined to specific instances as the Board may
determine. Subject to the control and direction of the Board of Directors, the
Chairman of the Board, the President, the Chief Financial Officer, the Chief
Strategic and Administrative Officer, the Chief Legal Officer and the Treasurer
may enter into, execute, deliver and amend bonds, promissory notes, contracts,
agreements, deeds, leases, guarantees, loans, commitments, obligations,
liabilities and other instruments to be made or executed for or on behalf of the
Corporation. Subject to any restrictions imposed by the Board of Directors, such
officers of the Corporation may delegate such powers to others under his or her
jurisdiction, it being understood, however, that any such delegation of power
shall not relieve such officer of responsibility with respect to the exercise of
such delegated power.
RESOLUTION ADOPTED BY A UNANIMOUS CONSENT OF
DIRECTORS IN LIEU OF A MEETING, DATED AS OF MAY 31, 1997
RESOLVED FURTHER, that the Treasurer shall have charge and
custody of, and be responsible for, all funds and securities of the
Corporation and shall be authorized to deposit all such funds in the
name of the Corporation in banks or other depositories. In addition,
the Treasurer shall perform all other necessary acts and duties in
connection with the financial affairs of the Corporation, shall
generally perform all duties appertaining to the office of treasurer of
a corporation and shall perform such other duties and have such other
powers as may be prescribed by the Board, subject to the supervision of
the Chief Financial Officer; and
RESOLVED FURTHER, that the Assistant Treasurer, if any, or, if
there shall be more than one, the Assistant Treasurers, shall, under
the supervision of the Treasurer, perform the duties and exercise the
powers of an assistant treasurer and, in the absence or disability of
the Treasurer, perform the duties and exercise the powers of the
Treasurer. In addition, each Assistant Treasurer is authorized to enter
into, execute, deliver and amend on behalf of the Corporation any and
all letters of credit, uncommitted short-term credit obligations and
short-term promissory notes (as defined by generally accepted
accounting principles), such authorization to cease automatically upon
termination of employment with the Corporation.
<PAGE> 1
EXHIBIT 4.8
-----------------------------------------------------------------
REVOLVING CREDIT AGREEMENT
(1999-1G)
Dated as of September 21, 1999
between
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Subordination Agent,
as agent and trustee for the
America West Airlines Pass Through Trust 1999-1G
as Borrower
and
MORGAN STANLEY CAPITAL SERVICES, INC.
as Liquidity Provider
-----------------------------------------------------------------
Relating to
America West Airlines Pass Through Trust 1999-1G
7.93% America West Airlines Pass Through Certificates,
Series 1999-1G
<PAGE> 2
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I DEFINITIONS ........................................................................................................ 1
SECTION 1.01. CERTAIN DEFINED TERMS ....................................................................................... 1
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENT ................................................................................ 7
SECTION 2.01. THE ADVANCES ................................................................................................ 7
SECTION 2.02. MAKING THE ADVANCES ......................................................................................... 8
SECTION 2.03. FEES ........................................................................................................ 10
SECTION 2.04. ADJUSTMENTS OR TERMINATION OF THE MAXIMUM COMMITMENT ........................................................ 10
SECTION 2.05. REPAYMENTS OF INTEREST ADVANCES OR THE FINAL ADVANCE ........................................................ 10
SECTION 2.06. REPAYMENTS OF PROVIDER ADVANCES ............................................................................. 10
SECTION 2.07. PAYMENTS TO THE LIQUIDITY PROVIDER UNDER THE INTERCREDITOR AGREEMENT ........................................ 11
SECTION 2.08. BOOK ENTRIES ................................................................................................ 12
SECTION 2.09. PAYMENTS FROM AVAILABLE FUNDS ONLY .......................................................................... 12
SECTION 2.10. EXTENSION OF THE EXPIRY DATE; NON-EXTENSION ADVANCE ......................................................... 12
SECTION 3.01. INCREASED COSTS ............................................................................................. 13
SECTION 3.02. CAPITAL ADEQUACY ............................................................................................ 14
SECTION 3.03. PAYMENTS FREE OF DEDUCTIONS ................................................................................. 15
SECTION 3.04. PAYMENTS .................................................................................................... 16
SECTION 3.05. COMPUTATIONS ................................................................................................ 16
SECTION 3.06. PAYMENT ON NON-BUSINESS DAYS ................................................................................ 16
SECTION 3.07. INTEREST .................................................................................................... 16
SECTION 3.08. REPLACEMENT OF BORROWER ..................................................................................... 17
SECTION 3.09. FUNDING LOSS INDEMNIFICATION ................................................................................ 17
SECTION 3.10. ILLEGALITY .................................................................................................. 18
ARTICLE IV CONDITIONS PRECEDENT .............................................................................................. 18
SECTION 4.01. CONDITIONS PRECEDENT TO EFFECTIVENESS OF SECTION 2.01 ....................................................... 18
SECTION 4.02. CONDITIONS PRECEDENT TO BORROWING ........................................................................... 20
ARTICLE V COVENANTS .......................................................................................................... 20
SECTION 5.01. AFFIRMATIVE COVENANTS OF THE BORROWER ....................................................................... 20
SECTION 5.02. NEGATIVE COVENANTS OF THE BORROWER .......................................................................... 20
ARTICLE VI LIQUIDITY EVENTS OF DEFAULT ....................................................................................... 21
SECTION 6.01. LIQUIDITY EVENTS OF DEFAULT ................................................................................. 21
ARTICLE VII MISCELLANEOUS .................................................................................................... 21
SECTION 7.01. AMENDMENTS, ETC ............................................................................................. 21
SECTION 7.02. NOTICES, ETC ................................................................................................ 21
SECTION 7.03. NO WAIVER; REMEDIES ......................................................................................... 22
SECTION 7.04. FURTHER ASSURANCES .......................................................................................... 22
SECTION 7.05. INDEMNIFICATION; SURVIVAL OF CERTAIN PROVISIONS ............................................................. 22
SECTION 7.06. LIABILITY OF THE LIQUIDITY PROVIDER ......................................................................... 23
SECTION 7.07. COSTS, EXPENSES AND TAXES ................................................................................... 23
SECTION 7.08. BINDING EFFECT; PARTICIPATIONS .............................................................................. 24
SECTION 7.09. SEVERABILITY ................................................................................................ 25
SECTION 7.10. GOVERNING LAW ............................................................................................... 25
SECTION 7.11. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL; WAIVER OF IMMUNITY ........................................ 25
SECTION 7.12. EXECUTION IN COUNTERPARTS ................................................................................... 26
SECTION 7.13. ENTIRETY .................................................................................................... 26
</TABLE>
i
<PAGE> 3
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
<S> <C>
SECTION 7.14. HEADINGS .................................................................................................... 26
SECTION 7.15. TRANSFER .................................................................................................... 26
SECTION 7.16. LIQUIDITY PROVIDER'S OBLIGATION TO MAKE ADVANCES ............................................................ 27
</TABLE>
ii
<PAGE> 4
TABLE OF CONTENTS
(CONTINUED)
ANNEX I Interest Advance Notice of Borrowing
ANNEX II Non-Extension Advance Notice of Borrowing
ANNEX III Downgrade Advance Notice of Borrowing
ANNEX IV Final Advance Notice of Borrowing
ANNEX V Notice of Termination
ANNEX VI Notice of Replacement Subordination Agent
EXHIBIT I Form of Guarantee Agreement
iii
<PAGE> 5
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT dated as of September 21, 1999, between
WILMINGTON TRUST COMPANY, a Delaware banking corporation, 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 G Trust (as defined
below) (the "Borrower"), and MORGAN STANLEY CAPITAL SERVICES, INC., a Delaware
corporation (the "Liquidity Provider").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Class G Trust Agreement (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 G Trust is issuing the Class G
Certificates;
WHEREAS, the Borrower, in order to support the timely payment of a
portion of the interest on the Class G 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; and
WHEREAS, the Liquidity Provider has requested Morgan Stanley Dean
Witter & Co. (the "Guarantor") to enter into a Guarantee Agreement, providing
for the full and unconditional guarantee of the Liquidity Provider's obligations
under this Agreement (the "Guarantee Agreement").
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:
"Additional Cost" has the meaning assigned to such term in Section
3.01.
"Advance" means an Interest Advance, a Final Advance, a Provider
Advance, an Applied Provider Advance or an Unpaid Advance, as the case may
be.
"Applicable Liquidity Rate" has the meaning assigned to such term in
Section 3.07(f).
<PAGE> 6
2
"Applicable Margin" means (A) with respect to any Unpaid Advance or
Applied Provider Advance, (x) with respect to any LIBOR Advance, 2.00% and
(y) with respect to any Base Rate Advance, 2.00%, and (B) with respect to
any Unapplied Provider Advance, (x) with respect to any LIBOR Advance, .35%
and (y) with respect to any Base Rate Advance, .35%.
"Applied Downgrade Advance" has the meaning assigned to such term in
Section 2.06(a).
"Applied Non-Extension Advance" has the meaning assigned to such term
in Section 2.06(a).
"Applied Provider Advance" has the meaning assigned to such term in
Section 2.06(a).
"Assignment and Assumption Agreement" means the Assignment and
Assumption to be entered into between the Borrower and the trustee of the
Successor Trust, substantially in the form of Exhibit D to the Class G Trust
Agreement.
"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 (a) the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or if such
rate is not so published for any day that is a Business Day, the average of
the quotations for such day for such transactions received by the Liquidity
Provider from three Federal funds brokers of recognized standing selected by
it, plus (b) one quarter of one percent (-1/4 of 1%).
"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.
"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 Phoenix,
Arizona, New York, New York or, so long as any Class G Certificate is
outstanding, the city and state in which the Class G Trustee, the Borrower
or any Loan Trustee 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
are carried on in the London interbank market.
<PAGE> 7
3
"Deposits" has the meaning assigned to such terms in the Deposit
Agreement.
"Depositary" has the meaning assigned to such term in the Deposit
Agreement.
"Deposit Agreement" means the Deposit Agreement dated as of the date
hereof between Wilmington Trust Company, as Escrow Agent and ABN AMRO Bank
N.V., acting through its Chicago branch, as Depositary, pertaining to the
Class G Certificates, as the same may be amended, modified or supplemented
from time to time in accordance with the terms thereof.
"Downgrade Advance" means an Advance made pursuant to Section 2.02(c).
"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.
"Excluded Taxes" means (i) taxes imposed on the overall net income, net
worth, capital or franchise of the Liquidity Provider or of its Lending
Office by the jurisdiction where such Liquidity Provider's principal office
or such Lending Office is located, and (ii) Excluded Withholding Taxes.
"Excluded Withholding Taxes" means (i) withholding Taxes imposed by the
United States except (but only in the case of a successor Liquidity Provider
organized under the laws of a jurisdiction outside the United States) to the
extent that such United States withholding Taxes are imposed as a result of
any change in applicable law (excluding from change in applicable law for
this purpose a change in an applicable treaty or other change in law
affecting the applicability of a treaty) after the date hereof, or in the
case of a successor Liquidity Provider (including a transferee of an
Advance) or Lending Office, after the date on which such successor Liquidity
Provider obtains its interest or on which the Lending Office is changed, and
(ii) any withholding Taxes imposed by the United States which are imposed or
increased as a result of the Liquidity Provider failing to deliver to the
Borrower any certificate or document (which certificate or document in the
good faith judgment of the Liquidity Provider it is legally entitled to
provide) which is reasonably requested by the Borrower to establish that
payments under this Agreement are exempt from (or entitled to a reduced rate
of) withholding Tax.
"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 September 18, 2000, initially, or any date to which
the Expiry Date is extended pursuant to Section 2.10.
"Final Advance" means an Advance made pursuant to Section 2.02(d).
<PAGE> 8
4
"Guarantee Agreement" has the meaning assigned to such term in the
preliminary statements of this Agreement.
"Guarantee Event" has the meaning specified in Section 2.02(c).
"Guarantor" has the meaning assigned to such term in the preliminary
statements of this Agreement.
"Intercreditor Agreement" means the Intercreditor Agreement dated as of
the date hereof, among the Trustees, the Liquidity Provider, the liquidity
provider under each Liquidity Facility (other than this Agreement), the
Policy Provider 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 third Business Day following either
(x) the Liquidity Provider's receipt of the Notice of Borrowing
for such LIBOR Advance or (y) the withdrawal of funds from the
Class G Cash Collateral Account for the purpose of paying
interest on the Class G Certificates as contemplated by Section
2.06(a) hereof and, in either case, 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;
provided, however, that (I) if an Unapplied Provider Advance which is a
LIBOR Advance becomes an Applied Provider Advance, the Interest Period then
applicable to such Unapplied Provider Advance shall be applicable to such
Applied Provider Advance and (II) if (x) the Final Advance shall have been
made, or (y) other outstanding Advances shall have been converted into the
Final Advance, then the Interest Periods shall be successive periods of one
month beginning on the third Business Day following the Liquidity Provider's
receipt of the Notice of Borrowing for such Final Advance (in the case of
clause (x) above) or the last day of the Interest Period then applicable to
such outstanding Advances (in the case of clause (y) above).
"Lending Office" means the office of the Liquidity Provider in which it
books this facility presently located at New York, New York, or such other
office as the Liquidity Provider from time to time shall notify the Borrower
as its "Lending Office" hereunder in which it books this facility; provided
that the Liquidity Provider shall not change its Lending Office to a Lending
Office outside the United States of America except in accordance with
Section 3.01, 3.02 or 3.03 hereof.
<PAGE> 9
5
"LIBOR Advance" means an Advance bearing interest at a rate based upon
the LIBOR Rate.
"LIBOR Rate" means, with respect to any Interest Period,
(i) the rate per annum appearing on display page 3750 (British
Bankers Association-LIBOR) of the Dow Jones Markets Service (or
any successor or substitute Page of such Service, or any
successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on such Page
applicable to deposits in dollars in the London interbank market)
at approximately 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period, as the rate for
dollar deposits with a maturity comparable to such Interest
Period, or
(ii) if the rate calculated pursuant to clause (i) above is not
available, the average (rounded upwards, if necessary, to the
next 1/16 of 1%) of the rates per annum at which deposits in
dollars are offered for the relevant Interest Period by three
banks of recognized standing selected by the Liquidity Provider
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 an amount approximately equal to the principal
amount of the LIBOR Advance to which such Interest Period is to
apply and for a period comparable to such Interest Period.
"Liquidity Event of Default" means the occurrence of either (a) the
Acceleration of all of the Equipment Notes (provided that, with respect to
the period prior to the Delivery Period Expiry Date, such Equipment Notes
have an aggregate outstanding principal balance in excess of $125,000,000)
or (b) an America West Bankruptcy Event.
"Liquidity Indemnitee" means (i) the Liquidity Provider, (ii) the
Guarantor, (iii) the respective directors, officers, employees and agents of
the Liquidity Provider and the Guarantor, and (iv) the successors and
permitted assigns of the persons described in clauses (i) and (iii),
inclusive.
"Liquidity Provider" has the meaning assigned to such term in the
recital of parties to this Agreement.
"Maximum Available Commitment" means, subject to the proviso contained
in the third sentence of Section 2.02(a), at any time of determination, (a)
the Maximum Commitment at such time less (b) the aggregate amount of each
Interest Advance outstanding at such time; provided that following a
Provider Advance or a Final Advance, the Maximum Available Commitment shall
be zero.
"Maximum Commitment" means initially $27,794,808.60, as the same may be
reduced from time to time in accordance with Section 2.04(a).
<PAGE> 10
6
"Non-Extension Advance" means an Advance made pursuant to Section
2.02(b).
"Notice of Borrowing" has the meaning specified in Section 2.02(e).
"Notice of Replacement Subordination Agent" has the meaning specified
in Section 3.08.
"Offering Memorandum" means the Offering Memorandum dated September 14,
1999 relating to the Certificates, as such Offering Memorandum may be
amended or supplemented.
"Performing Note Deficiency" means any time that less than 65% of the
then aggregate outstanding principal amount of all Equipment Notes are
Performing Equipment Notes.
"Provider Advance" means a Downgrade Advance or a Non-Extension
Advance.
"Regulatory Change" has the meaning assigned to such term in Section
3.01.
"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 G Certificates, that would be payable on the Class G
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 G Certificates on such day and without regard to expected
future payments of principal on the Class G Certificates. Notwithstanding
the above, in the event of any Policy Provider Election, the Required Amount
shall be deemed to be reduced by the amount (if positive) by which (a) the
then outstanding principal balance of each Series G Equipment Note in
respect of which such Policy Provider Election has been made shall exceed
(b) the amount of any policy drawings previously paid by the Policy Provider
in respect of principal on such Series G Equipment Note.
"Successor Trust" means America West Airlines Pass Through Trust
1999-1G-S.
"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 G Certificates have been paid in
full (or provision has been made for such payment in accordance with the
Intercreditor Agreement and the Trust 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
<PAGE> 11
7
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 fifth Business Day following the receipt
by the Borrower of a Termination Notice from the Liquidity Provider pursuant
to Section 6.01 hereof; 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.
"Termination Notice" means the Notice of Termination substantially in
the form of Annex V to this Agreement.
"Transferee" has the meaning assigned to such term in Section 7.08(b).
"Unapplied Provider Advance" means any Provider Advance other than an
Applied Provider Advance.
"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:
"Acceleration", "Affiliate", "America West", "America West Bankruptcy
Event", "Certificates", "Class C Certificates", "Class G Cash Collateral
Account", "Class G Certificates", "Class G Certificateholders", "Class G
Trust", "Class G Trust Agreement", "Class G Trustee", "Closing Date",
"Controlling Party", "Corporate Trust Office", "Delivery Period Expiry
Date", "Distribution Date", "Downgraded Facility", "Equipment Notes", "Fee
Letter", "Final Legal Distribution Date", "Financing Agreement",
"Indenture", "Initial Purchasers", "Interest Payment Date", "Investment
Earnings", "Liquidity Facility", "Liquidity Obligations", "Loan Trustee",
"Moody's", "Non-Extended Facility", "Note Purchase Agreement", "Operative
Agreements", "Performing Equipment Note", "Person", "Policy Provider",
"Policy Provider Election", "Pool Balance", "Purchase Agreement", "Rating
Agency", "Ratings Confirmation", "Regular Distribution Date", "Replacement
Liquidity Facility", "Responsible Officer", "Scheduled Payment", "Special
Payment", "Standard & Poor's", "Stated Interest Rate", "Subordination
Agent", "Taxes", "Threshold Rating", "Transfer", "Trust Agreements",
"Trustee", 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
<PAGE> 12
8
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
Maximum 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 Maximum Available Commitment at such time and shall be used
solely for the payment when due of interest on the Class G 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 Maximum Available Commitment 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 Maximum Available Commitment shall be
reinstated by the amount of such repaid Interest Advance, but not to exceed the
Maximum Commitment; provided, however, that the Maximum Available Commitment
shall not be so reinstated at any time if (i) a Liquidity Event of Default shall
have occurred and be continuing and (ii) there is a Performing Note Deficiency.
(b) A Non-Extension Advance shall be made in a single Borrowing if this
Agreement is not extended in accordance with Section 3.6(d) of the Intercreditor
Agreement (unless a Replacement Liquidity Facility to replace this Agreement
shall have been delivered to the Borrower as contemplated by said Section 3.6(d)
within the time period specified in such Section) 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 Maximum Available Commitment at such time,
and shall be used to fund the Class G Cash Collateral Account in accordance with
said Section 3.6(d) and Section 3.6(f) of the Intercreditor Agreement.
(c) A Downgrade Advance shall be made in a single Borrowing, (i) upon a
downgrading of the Guarantor's short-term unsecured debt rating issued by either
Rating Agency below the applicable Threshold Rating or (ii) if the Guarantee
Agreement ceases to be in full force and effect or becomes invalid or
unenforceable or the Guarantor denies its liability thereunder (any such
occurrence, a "Guarantee Event") (as provided for in Section 3.6(c) of the
Intercreditor Agreement), unless a Replacement Liquidity Facility to replace
this Agreement shall have been previously 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 III
attached hereto, signed by a Responsible Officer of the Borrower, in an amount
equal to the Maximum Available Commitment at such time, and shall be used to
fund the Class G Cash Collateral Account in accordance with said Section 3.6(c)
and Section 3.6(f) of the Intercreditor Agreement.
(d) A Final Advance shall be made in a single Borrowing upon the
receipt by the Borrower of a Termination Notice from the Liquidity Provider
pursuant to Section 6.01 hereof by delivery to the Liquidity Provider of a
written and completed Notice of Borrowing in
<PAGE> 13
9
substantially the form of Annex IV attached hereto, signed by a Responsible
Officer of the Borrower, in an amount equal to the Maximum Available Commitment
at such time, and shall be used to fund the Class G Cash Collateral Account (in
accordance with Section 3.6(i) of the Intercreditor Agreement and Section 3.6(f)
of the Intercreditor Agreement).
(e) Each Borrowing shall be made on notice in writing (a "Notice of
Borrowing") in substantially the form required by Section 2.02(a), 2.02(b),
2.02(c) or 2.02(d), as the case may be, given by the Borrower to the Liquidity
Provider. If a Notice of Borrowing is delivered by the Borrower in respect of
any Borrowing no later than 10:00 a.m. (New York City time) on a Business Day,
upon satisfaction of the conditions precedent set forth in Section 4.02 with
respect to a requested Borrowing, the Liquidity Provider shall make available to
the Borrower, in accordance with its payment instructions, the amount of such
Borrowing in U.S. dollars and immediately available funds, before 12:00 noon.
(New York City time) on such Business Day or on such later Business Day
specified in such Notice of Borrowing. If a Notice of Borrowing is delivered by
the Borrower in respect of any Borrowing after 10:00 a.m. (New York City time)
on a Business Day, upon satisfaction of the conditions precedent set forth in
Section 4.02 with respect to a requested Borrowing, the Liquidity Provider shall
make available to the Borrower, in accordance with its payment instructions, the
amount of such Borrowing in U.S. dollars and in immediately available funds,
before 12:00 Noon (New York City time) on the first 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. 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.
(f) 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. If the Liquidity Provider
makes an Advance requested pursuant to a Notice of Borrowing before 12:00 Noon
(New York City time) on the second Business Day after the date of payment
specified in said Section 2.02(e), the Liquidity Provider shall have fully
discharged its obligations hereunder with respect to such Advance and an event
of default shall not have occurred hereunder. Following the making of any
Advance pursuant to Section 2.02(b), (c) or (d) hereof to fund the Class G Cash
Collateral Account, the Liquidity Provider shall have no interest in or rights
to the Class G Cash Collateral Account, such Advance or any other amounts from
time to time on deposit in the Class G Cash Collateral Account; provided that
the foregoing shall not affect or impair the obligations of the Subordination
Agent to make the distributions contemplated by Section 3.6(e) or (f) of the
Intercreditor Agreement. 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.
<PAGE> 14
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Section 2.03. Fees. The Borrower agrees to pay to the Liquidity
Provider the fees set forth in the Fee Letter.
Section 2.04. Adjustments or Termination of the Maximum Commitment.
(a) Automatic Adjustments. Promptly following each date on which the
Required Amount is (1) reduced as a result of a reduction in the Pool Balance of
the Class G Certificates or otherwise, (2) increased as a result of an increase
in the Stated Interest Rate or (3) subsequent to such an increase described in
clause (2), reduced pursuant to the definition of "Stated Interest Rate", the
Maximum Commitment shall automatically be reduced or increased, as the case may
be, to an amount equal to the Required Amount (as calculated by the Borrower).
The Borrower shall give notice of any such automatic reduction or increase, as
the case may be, of the Maximum Commitment to the Liquidity Provider within two
Business Days thereof. The failure by the Borrower to furnish any such notice
shall not affect such automatic reduction or increase of the Maximum Commitment.
(b) Termination. Upon the making of any Provider 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 2.06, 2.07 and 2.09 hereof, the Borrower hereby agrees,
without notice of an Advance or demand for repayment from the Liquidity Provider
(which notice and demand are hereby waived by the Borrower), 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 Advance (any such 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 hereof; provided that if (i) the
Liquidity Provider shall make a Provider Advance at any time after making one or
more Interest Advances which shall not have been repaid in accordance with this
Section 2.05 or (ii) this Liquidity Facility shall become a Downgraded Facility
or Non-Extended Facility at any time when unreimbursed Interest Advances have
reduced the Maximum Available Commitment to zero, then such Interest Advances
shall cease to constitute Unpaid Advances and shall be deemed to have been
changed into an Applied Downgrade Advance or an Applied Non-Extension Advance,
as the case may be, for all purposes of this Agreement (including, without
limitation, for the purpose of determining when such Interest Advance is
required to be repaid to the Liquidity Provider in accordance with Section 2.06
and for the purposes of Section 2.06(b)). The Borrower and the Liquidity
Provider agree that the repayment in full of each Interest Advance and Final
Advance on the date such Advance is made is intended to be a contemporaneous
exchange for new value given to the Borrower by the Liquidity Provider.
Section 2.06. Repayments of Provider Advances. (a) Amounts advanced
hereunder in respect of a Provider Advance shall be deposited in the Class G
Cash Collateral Account, invested and withdrawn from the Class G Cash Collateral
Account as set forth in Sections 3.6(c), (d) and (f) of the Intercreditor
Agreement. The Borrower agrees to pay to the
<PAGE> 15
11
Liquidity Provider, on each Regular Distribution Date, commencing on the first
Regular Distribution Date after the making of a Provider Advance, interest on
the principal amount of any such Provider Advance as provided in Section 3.07;
provided, however, that amounts in respect of a Provider Advance withdrawn from
the Class G Cash Collateral Account for the purpose of paying interest on the
Class G Certificates in accordance with Section 3.6(f) of the Intercreditor
Agreement (the amount of any such withdrawal being (y) in the case of a
Downgrade Advance, an "Applied Downgrade Advance" and (z) in the case of a
Non-Extension Advance, an "Applied Non-Extension Advance" and, together with an
Applied Downgrade Advance, an "Applied Provider Advance") shall thereafter
(subject to Section 2.06(b)) be treated as an Interest Advance under this
Agreement for purposes of determining the Applicable Liquidity Rate for interest
payable thereon; provided further, however, that if, following the making of a
Provider Advance, the Liquidity Provider delivers a Termination Notice to the
Borrower pursuant to Section 6.01 hereof, such Provider Advance shall thereafter
be treated as a Final Advance under this Agreement for purposes of determining
the Applicable Liquidity Rate for interest payable thereon. Subject to Sections
2.07 and 2.09 hereof, immediately upon the withdrawal of any amounts from the
Class G Cash Collateral Account on account of a reduction in the Required
Amount, the Borrower shall repay to the Liquidity Provider a portion of the
Provider Advances in a principal amount equal to such reduction, plus interest
on the principal amount prepaid as provided in Section 3.07 hereof.
(b) At any time when an Applied Provider Advance (or any portion
thereof) is outstanding, upon the deposit in the Class G Cash Collateral Account
of any amount pursuant to clause "third" of Section 2.4(b) of the Intercreditor
Agreement, clause "third" of Section 3.2 of the Intercreditor Agreement or
clause "fourth" of Section 3.3 of the Intercreditor Agreement (any such amount
being a "Replenishment Amount") for the purpose of replenishing or increasing
the balance thereof up to the Required Amount at such time, (i) the aggregate
outstanding principal amount of all Applied Provider Advances (and of Provider
Advances treated as an Interest Advance for purposes of determining the
Applicable Liquidity Rate for interest payable thereon) shall be automatically
reduced by the amount of such Replenishment Amount and (ii) the aggregate
outstanding principal amount of all Unapplied Provider Advances 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, amounts remaining on deposit in the Class G Cash
Collateral Account after giving effect to any Applied Provider Advance on the
date of such replacement shall be reimbursed to the Liquidity Provider, but only
to the extent such amounts are necessary to repay in full to the Liquidity
Provider all amounts owing to it hereunder.
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
<PAGE> 16
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by the Liquidity Provider to Liquidity Obligations then due and payable in
accordance with the Intercreditor Agreement or, if not provided for in the
Intercreditor Agreement, then in such manner as the Liquidity Provider shall
deem appropriate.
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 the amounts
that constitute Scheduled Payments, Special Payments or payments under Section
7.1 or 9.1, as the case may be, of the Participation Agreements and Section 6 of
the Note Purchase Agreement 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 G Cash Collateral
Account shall be available to the Borrower to make payments under this Agreement
only to the extent and for the purposes expressly contemplated in Section 3.6(f)
of the Intercreditor Agreement.
Section 2.10. Extension of the Expiry Date; Non-Extension Advance. The
Expiry Date shall be automatically extended, effective on the 25th day prior to
each Expiry Date (unless such Expiry Date is on or after the date that is 15
days after the Final Legal Distribution Date for the Class G Certificates), for
a period of 364 days after such Expiry Date (unless the obligations of the
Liquidity Provider are earlier terminated in accordance with the terms hereof),
without the necessity of any act on the part of the Borrower or the Liquidity
Provider, unless the Liquidity Provider shall advise the Borrower prior to such
25th day that it does not agree to such extension of such Expiry Date, in which
event (and if the Liquidity Provider shall not have been replaced in accordance
with Section 3.6(e) of the Intercreditor Agreement), the Borrower shall be
entitled on and after such 25th day (but prior to the then effective Expiry
Date) to request a Non-Extension Advance in accordance with Section 2.02(b)
hereof and Section 3.6(d) of the Intercreditor Agreement.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs. The Borrower shall pay to the Liquidity
Provider from time to time such amounts as may be necessary to compensate the
Liquidity Provider for
<PAGE> 17
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any increased costs incurred by the Liquidity Provider which are reasonably
attributable to its making or maintaining any LIBOR Advances hereunder or its
obligation to make any such Advances hereunder, or any reduction in any amount
receivable by the Liquidity Provider under this Agreement or the Intercreditor
Agreement in respect of any such Advances or such obligation (such increases in
costs and reductions in amounts receivable being herein called "Additional
Costs"), resulting from any change after the date of this Agreement in U.S.
federal, state, municipal, or foreign laws or regulations (including Regulation
D of the Board of Governors of the Federal Reserve System applicable to banks
generally), or the adoption or making after the date of this Agreement of any
interpretations, directives, or requirements applying to a class of banks
including the Liquidity Provider under any U.S. federal, state, municipal, or
any foreign laws or regulations (whether or not having the force of law but of
the type with which the Liquidity Provider is accustomed to comply) by any
court, central bank or monetary authority charged with the interpretation or
administration thereof in each case not publicly announced on the date hereof (a
"Regulatory Change"), which: (1) changes the basis of taxation of any amounts
payable to the Liquidity Provider under this Agreement in respect of any such
Advances (other than Excluded Taxes); or (2) imposes or modifies any reserve,
special deposit, compulsory loan or similar requirements relating to any
extensions of credit hereunder in respect of LIBOR Advances (including any such
Advances or any deposits referred to in the definition of LIBOR Rate or related
definitions), other than (i) costs which arise as a result of the Liquidity
Provider willfully contravening or exceeding any operating limits or other
restrictions imposed on it by any authority; or (ii) if the increased costs
would not have arisen but for any assignment to another Liquidity Provider or an
alteration in the lending office of the Liquidity Provider. The Liquidity
Provider agrees to use reasonable efforts (consistent with applicable 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 that may thereafter accrue and would not, in the
reasonable judgment of the Liquidity Provider, be otherwise disadvantageous to
the Liquidity Provider.
The Liquidity Provider will notify the Borrower of any event occurring
after the date of this Agreement that will entitle the Liquidity Provider to
compensation pursuant to this Section 3.01 as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation, which
notice shall describe in reasonable detail the calculation of the amounts owed
under this Section; provided, that if the Liquidity Provider fails to give such
notice within 30 days after it obtains such knowledge, the Liquidity Provider
shall, with respect to any costs resulting from such event, only be entitled to
payment under this Section 3.01 for costs incurred from and after the date 30
days prior to the date the Liquidity Provider does give such notice.
Determinations by the Liquidity Provider for purposes of this Section 3.01 of
the effect of any Regulatory Change on its costs of making or maintaining
Advances or on amounts receivable by it in respect of Advances, and of the
additional amounts required to compensate the Liquidity Provider in respect of
any Additional Costs, shall be prima facie evidence of the amount owed under
this Section.
Notwithstanding the preceding two paragraphs, the Liquidity Provider
and the Subordination Agent agree that any permitted assignee or participant of
the initial Liquidity Provider which is not a bank shall not be entitled to the
benefits of the preceding two paragraphs (but without limiting the provisions of
Section 7.08 hereof).
<PAGE> 18
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The Liquidity Provider shall not be entitled to compensation under this
Section 3.01 if (1) it shall not be also seeking compensation (if it should be
so entitled) under other comparable contractual provisions in its other
agreements, (2) if its claim under this Section 3.01 arises through
circumstances peculiar to the Liquidity Provider and which do not affect a
similarly organized commercial banking institution in the same jurisdiction
generally, or (3) the Liquidity Provider is not the initial liquidity provider
and America West did not consent to the transfer of this facility to the
Liquidity Provider, for the amount, if any, payable under this Section 3.01
resulting from events occurring prior to the date the Liquidity Provider
acquired its interests hereunder as shall exceed the amount payable under this
Section 3.01 that would have been due to the Liquidity Provider's transferor had
it continued to be the liquidity provider hereunder.
Section 3.02. Capital Adequacy. If (1) the adoption, after the date
hereof, of any applicable governmental law, rule or regulation regarding capital
adequacy and not publicly announced on the date hereof, (2) any change, after
the date hereof, in the interpretation or administration of any such law, rule
or regulation by any central bank or other governmental authority charged with
the interpretation or administration thereof and not publicly announced on the
date hereof or (3) compliance by the Liquidity Provider or any corporation
controlling the Liquidity Provider with any applicable guideline or request of
general applicability, issued after the date hereof and not publicly announced
on the date hereof, by any central bank or other governmental authority (whether
or not having the force of law but of the type with which the Liquidity Provider
is accustomed to comply) that constitutes a change of the nature described in
clause (2), has the effect of requiring an increase in the amount of capital
required to be maintained by the Liquidity Provider or any corporation
controlling the Liquidity Provider, and such increase is based upon the
Liquidity Provider's obligations hereunder and other similar obligations, the
Borrower shall pay to the Liquidity Provider from time to time such additional
amount or amounts as are necessary to compensate the Liquidity Provider for such
portion of such increase as shall be reasonably allocable to the Liquidity
Provider's obligations to the Borrower hereunder. The Liquidity Provider agrees
to use reasonable efforts (consistent with applicable 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 that may thereafter accrue and would not, in the reasonable
judgment of the Liquidity Provider, be otherwise materially disadvantageous to
the Liquidity Provider.
The Liquidity Provider will notify the Borrower of any event occurring
after the date of this Agreement that will entitle the Liquidity Provider to
compensation pursuant to this Section 3.02 as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation, which
notice shall describe in reasonable detail the calculation of the amounts owed
under this Section; provided that if the Liquidity Provider fails to give such
notice within 30 days after it obtains such knowledge, the Liquidity Provider
shall, with respect of any costs resulting from such event, only be entitled to
payment under this Section 3.02 for costs incurred from and after the date 30
days prior to the date the Liquidity Provider does give such notice.
Determinations by the Liquidity Provider for purposes of this Section 3.02 of
the effect of any increase in the amount of capital required to be maintained by
the Liquidity Provider and
<PAGE> 19
15
of the amount allocable to the Liquidity Provider's obligations to the Borrower
hereunder shall be prima facie evidence of the amounts owed under this Section.
Notwithstanding the preceding two paragraphs, the Liquidity Provider
and the Subordination Agent agree that any permitted assignee or participant of
the initial Liquidity Provider which is not a bank shall not be entitled to the
benefits of the preceding two paragraphs (but without limiting the provisions of
Section 7.08 hereof).
The Liquidity Provider shall not be entitled to compensation under this
Section 3.02 if (1) it shall not be also seeking compensation (if it should be
so entitled) under other comparable contractual provisions in its other
agreements, (2) if its claim under this Section 3.02 arises through
circumstances peculiar to the Liquidity Provider and which do not affect a
similarly organized commercial banking institution in the same jurisdiction
generally, or (3) the Liquidity Provider is not the initial liquidity provider
and America West did not consent to the transfer of this facility to the
Liquidity Provider, for the amount, if any, payable under this Section 3.02
resulting from events occurring prior to the date the Liquidity Provider
acquired its interests hereunder as shall exceed the amount payable under this
Section 3.02 that would have been due to the Liquidity Provider's transferor had
it continued to be the liquidity provider hereunder.
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, deductions or withholdings, of a similar nature other
than Excluded Taxes (collectively, "Non-Excluded Taxes" and, individually, 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
Liquidity Provider shall notify the Borrower and America West thereof and from
and after such notice, 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) the amount it would have received had no such
deduction or withholding occurred. The Liquidity Provider agrees to use
reasonable efforts (consistent with its 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 such additional amounts that may
thereafter accrue and shall otherwise take such reasonable steps as are open to
it to mitigate the effects of such circumstances provided that the Liquidity
Provider shall be under no obligation to take any such action if to do so would
have a material adverse effect on its business, operations or financial
condition or result in its rights, interests or position under this Agreement
being prejudiced or involved in any unlawful activity . From time to time upon
the reasonable request of the Borrower, the Liquidity Provider agrees to provide
to the Borrower two original Internal Revenue Service Form W-8BEN or W-8ECI, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that the Liquidity Provider is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to this
Agreement.
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.
<PAGE> 20
16
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 Citibank, N.A., New York, New York, ABA#021000089, Account Name:
Morgan Stanley Capital Services, Inc., Account #4072-4601, Reference: America
West Airlines, Inc., 1999-1G.
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 interest based on the LIBOR Rate 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 shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day and no additional
interest shall be due as a result (and if so made, shall be deemed to have been
made when due). If any payment in respect of interest on an Advance is so
deferred to the next succeeding Business Day, such deferral shall not delay the
commencement of the next Interest Period for such Advance (if such Advance is a
LIBOR Advance) or reduce the number of days for which interest will be payable
on such Advance on the next interest payment date for such Advance.
Section 3.07. Interest. (a) Subject to Section 2.09, the Borrower shall
pay, or shall cause to be paid, without duplication, 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 Provider Advance, from and including the date on
which the amount thereof was withdrawn from the Class G Cash Collateral Account
to pay interest on the Class G Certificates) to but excluding the date such
principal amount shall be paid in full (or, in the case of an Applied Provider
Advance, the date on which the Class G Cash Collateral Account is fully
replenished in respect of such Advance) 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.
(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.
<PAGE> 21
17
(c) Each LIBOR Advance shall bear interest during each Interest Period
at a rate per annum 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 rate per annum
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) 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 but excluding Advances) shall bear interest
at a rate per annum equal to the Base Rate plus 2% until paid.
(f) Each change in the Base Rate shall become effective immediately.
The rates of interest specified in this Section 3.07 with respect to any Advance
or other amount shall be referred to as the "Applicable Liquidity Rate".
Section 3.08. Replacement of Borrower. From time to time and subject to
the successor Borrower's meeting the eligibility requirements set forth in
Section 6.9 of the Intercreditor Agreement applicable to the Subordination
Agent, upon the effective date and time specified in a written and completed
Notice of Replacement Subordination Agent in substantially the form of Annex VI
attached hereto (a "Notice of Replacement Subordination Agent") 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 incurred by it by reason of the
liquidation or redeployment of deposits or other funds acquired by the Liquidity
Provider to fund or maintain any LIBOR Advance (but excluding loss of
anticipated profits) incurred as a result of:
(1) Any repayment of a LIBOR Advance on a date other than the last day
of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance on the date
for borrowing specified in the relevant notice under Section 2.02.
Section 3.10. Illegality. Notwithstanding any other provision in this
Agreement, if any change in any applicable law, rule or regulation not publicly
announced on the date hereof shall make it unlawful or impossible for the
Liquidity Provider (or its Lending Office) to
<PAGE> 22
18
maintain or fund its LIBOR Advances without breaking such law, 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 to the extent
necessary to cure such illegality (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. The Liquidity Provider agrees to use reasonable efforts (consistent
with applicable legal and regulatory restrictions) to change the jurisdiction of
its Lending Office if making such change would avoid or cure the aforesaid
illegality.
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, and in the case of each document
delivered pursuant to paragraphs (i), (ii) and (iii), 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) Fully executed copies of each of the Operative Agreements
executed and delivered on or before the Closing Date (other than this
Agreement and the Intercreditor Agreement);
(iv) A copy of the Offering Memorandum and specimen copies of the
Class G Certificates;
(v) An executed copy of each document, instrument, certificate
and opinion delivered on or before the Closing Date pursuant to the
Class G Trust Agreement, the Intercreditor Agreement and the other
Operative Agreements (in the case of each such opinion, other than the
opinion of counsel for the Initial Purchasers, either addressed to the
Liquidity Provider or accompanied by a letter from the counsel
rendering such opinion to the effect that the Liquidity Provider is
entitled to rely on such opinion as of its date as if it were
addressed to the Liquidity Provider);
(vi) 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
<PAGE> 23
19
given or taken any notice or other similar action as are necessary or
in order to establish, perfect, protect and preserve the right, title
and interest of the Liquidity Provider created by the Operative
Agreements executed and delivered on or prior to the Closing Date;
(vii) An agreement from America West, pursuant to which America
West agrees to provide copies of quarterly financial statements and
audited annual financial statements to the Liquidity Provider (which
obligations may be satisfied by the furnishing of America West's Form
10Q and 10K), in each case, only to the extent that America West is
obligated to provide such information pursuant to Section 8.2.1 of the
Leases (related to Leased Aircraft) or the corresponding section of
the Indentures (related to Owned Aircraft) to the parties thereto; and
(viii) Such other documents, instruments, opinions and approvals
pertaining to the transactions contemplated hereby or by the other
Operative Agreements as the Liquidity Provider shall have reasonably
requested.
(b) The following statement shall be true on and as of the Effective
Date: 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 account of the Liquidity
Provider on or prior to the Effective Date.
(d) All conditions precedent to the issuance of the Certificates under
the Trust Agreements shall have been satisfied or waived, all conditions
precedent to the effectiveness of the other Liquidity Facilities shall have
been satisfied or waived, and all conditions precedent to the purchase of
the Certificates by the Initial Purchasers under the Purchase Agreement
shall have been satisfied (unless any of such conditions precedent shall
have been waived by the Initial Purchasers).
(e) The Borrower shall have received (i) the Guarantee Agreement,
substantially in the form of Exhibit I hereto, duly executed on behalf of
each of the parties thereto and (ii) 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.
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, 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 Advances requested.
<PAGE> 24
20
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 Maximum
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.
(c) Certain Operative Agreements. Furnish to the Liquidity Provider
with reasonable promptness, such Operative Agreements entered into after
the date hereof as from time to time may be reasonably requested by the
Liquidity Provider.
Section 5.02. Negative Covenants of the Borrower. So long as any
Advance shall remain unpaid or the Liquidity Provider shall have any Maximum
Commitment hereunder or the Borrower shall have any obligation to pay any amount
to the Liquidity Provider hereunder, the Borrower will not appoint or permit or
suffer to be appointed any successor Borrower without the prior written consent
of the Liquidity Provider, which consent shall not be unreasonably withheld or
delayed.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default. If (a) any Liquidity Event
of Default has occurred and is continuing and (b) there is a Performing Note
Deficiency, the Liquidity Provider may, in its discretion, deliver to the
Borrower a Termination Notice, the effect of which shall be to cause (i) the
obligation of the Liquidity Provider to make Advances hereunder to expire on the
fifth Business Day after the date on which such Termination Notice is received
by the Borrower, (ii) the Borrower to promptly request, and the Liquidity
Provider to promptly make, a Final Advance in accordance with Section 2.02(d)
hereof and Section 3.6(i) of the Intercreditor Agreement, (iii) all other
outstanding Advances to be automatically converted into Final Advances for
purposes of determining the Applicable Liquidity Rate for interest payable
<PAGE> 25
21
thereon, and (iv) subject to Sections 2.07 and 2.09 hereof, all Advances
(including, without limitation, any Provider Advance and Applied Provider
Advance), any accrued interest thereon and any other amounts outstanding
hereunder to 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 or of a waiver by the
Borrower, 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:
WILMINGTON TRUST COMPANY
Rodney Square North
1100 North Market Square
Wilmington, DE 19890-0001
Attention: Corporate Trust Administration
Telephone: 302-651-1000
Telecopy: 302-651-8882
Liquidity Provider:
MORGAN STANLEY CAPITAL SERVICES, INC.
1585 Broadway
New York, New York 10036
Attention: Keith Amburgey
Telephone: (212) 761-2504
Telecopy: (212) 781-0580
With a copy of any Notice of Borrowing to be delivered to:
MORGAN STANLEY DEAN WITTER & CO.
1585 Broadway
<PAGE> 26
22
New York, New York 10036
Attention: Aaron Lubowitz and Mark Esparrago
Telephone: (212) 761-2526 and (212) 761-2618
Telecopy: (212) 761-0406
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, and (ii) if given by other means, when
delivered at the address specified above. 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 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 Section 7.1 or 9.1, as the case may be, of the Participation
Agreements and Section 6(c) of the Note Purchase Agreement. The indemnities
contained in Section 7.1 or 9.1, as the case may be, of the Participation
Agreements, and Section 6(c) of the Note Purchase Agreement and the provisions
of Sections 3.01, 3.02, 3.03, 3.09, 7.05 and 7.07 hereof, 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, employees, directors or affiliates
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; or (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 except as executed by the Liquidity Provider; 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
<PAGE> 27
23
payment hereunder after the delivery to it by the Borrower of a Notice of
Borrowing strictly complying with the terms and conditions hereof.
(b) Neither the Liquidity Provider nor any of its officers, employees,
directors or affiliates shall 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 (including, without limitation, the reasonable fees and
expenses of outside counsel for the Liquidity Provider) 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 and (B)
on demand, all reasonable costs and expenses (including reasonable counsel fees
and expenses) of the Liquidity Provider 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) other than amendments
requested by the Liquidity Provider or a transfer made by the Liquidity Provider
either voluntarily or as a result of the mitigation provisions of Article III or
a Non-Extension Drawing or a Downgrade Drawing 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 Class G Cash Collateral
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, other than amendments requested by
the Liquidity Provider or a transfer made by the Liquidity Provider either
voluntarily or as a result of the mitigation provisions of Article III or a
Non-Extension Drawing or a Downgrade Drawing, 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
(except as contemplated by Section 3.08) the Borrower shall have the right to
assign its rights or obligations hereunder or any interest herein without the
prior written consent of the other party, subject to the requirements of Section
7.08(b). The Liquidity Provider may grant participations herein or in any of its
rights hereunder (including, without
<PAGE> 28
24
limitation, funded participations and participations in rights to receive
interest payments hereunder) and under the other Operative Agreements to such
Persons (other than America West or any of its Affiliates) as the Liquidity
Provider may in its sole discretion select, subject to the requirements 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, additional amounts due pursuant to Section 3.03 and the like
as they pertain to the Liquidity Provider shall be deemed also to include those
of each of its participants that are banks (subject, in each case, to the
maximum amount that would have been incurred by or attributable to the Liquidity
Provider directly if the initial Liquidity Provider, rather than the
participant, had held the interest participated and were a U.S. bank).
(b) If, pursuant to subsection (a) above, the Liquidity Provider sells
any participation in this Agreement to any bank or other entity (each, a
"Transferee"), then, concurrently with the effectiveness of such participation,
the Transferee 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 with
respect to any payments to be made to such Transferee 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 W-8BEN or Form W-8ECI, as
appropriate, or other applicable form, certificate or document prescribed by the
Internal Revenue Service certifying, in each case, such Transferee'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 W-8BEN or Form W-8ECI, 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 W-8ECI or Form
W-8BEN that such Transferee 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
(and required by applicable law) 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.
(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
<PAGE> 29
25
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 non-authorization 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; 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 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) 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 hereof, 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
<PAGE> 30
26
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 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 judgment entered by any such court under the
United States Foreign Sovereign Immunities Act of 1976 or any similar successor
legislation.
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, the Intercreditor Agreement and
the other Operative Agreements to which the Liquidity Provider is a party
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof and supersedes all prior understandings and agreements of
such parties.
Section 7.14. Headings. 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.
Section 7.15. Transfer. The Liquidity Provider hereby acknowledges and
consents to the Transfer contemplated by the Assignment and Assumption
Agreement.
Section 7.16. 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.
<PAGE> 31
IN WITNESS WHEREOF, the parties 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.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Subordination
Agent, as agent and trustee for the Class G Trust, as
Borrower
By: /s/ James P. Lawler
--------------------------------
Name: James P. Lawler
Title: Vice President
MORGAN STANLEY CAPITAL SERVICES, INC.,
as Liquidity Provider
By:
---------------------------------
Name:
Title:
<PAGE> 32
IN WITNESS WHEREOF, the parties 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.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Subordination
Agent, as agent and trustee for the Class G Trust, as
Borrower
By:
--------------------------------
Name:
Title:
MORGAN STANLEY CAPITAL SERVICES, INC.,
as Liquidity Provider
By: /s/ Elinor L. Hoover
---------------------------------
Name: Elinor L. Hoover
Title: Vice President
<PAGE> 33
Annex I to
Revolving Credit Agreement
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "Borrower"), hereby certifies to MORGAN STANLEY CAPITAL SERVICES,
INC. (the "Liquidity Provider"), with reference to the Revolving Credit
Agreement (1999-1G) dated as of September 21, 1999, 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, subject to
clause (3)(v) below, for the payment of interest on the Class G
Certificates which was payable on ____________, ____ (the "Distribution
Date") in accordance with the terms and provisions of the Class G Trust
Agreement and the Class G Certificates, which Advance is requested to be
made on the date hereof.
(3) The amount of the Interest Advance requested hereby (i) is
$_______________.__, to be applied in respect of the payment of the
interest which was due and payable on the Class G Certificates on the
Distribution Date, (ii) does not include any amount with respect to the
payment of principal of, or premium on, the Class G Certificates or the
Class C Certificates, or interest on the Class C Certificates, (iii) was
computed in accordance with the provisions of the Class G Certificates, the
Class G Trust Agreement and the Intercreditor Agreement (a copy of which
computation is attached hereto as Schedule I), (iv) does not exceed the
Maximum Available Commitment on the date hereof, (v) does not include any
amount of interest which was due and payable on the Class G Certificates on
such Distribution Date but which remains unpaid due to the failure of the
Depositary to pay any amount of accrued interest on the Deposits on such
Distribution Date and (vi) 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 Section 3.6(b) 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.
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
I-1
<PAGE> 34
Maximum 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 Notice of Borrowing 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 _________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent, as Borrower
By:_________________________________
Name:
Title:
I-2
<PAGE> 35
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest Advance Notice of
Borrowing]
I-2
<PAGE> 36
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice
of Borrowing as of the ____ day of _________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent, as Borrower
By:_________________________________
Name:
Title:
II-2
<PAGE> 37
Annex II to
Revolving Credit Agreement
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
subordination agent (the "Borrower"), hereby certifies to MORGAN STANLEY CAPITAL
SERVICES, INC. (the "Liquidity Provider"), with reference to the Revolving
Credit Agreement (1999-1G) dated as of September 21, 1999, 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 Non-Extension Advance by the Liquidity Provider to be used for the
funding of the Class G Cash Collateral Account in accordance with Section
3.6(d) of the Intercreditor Agreement, which Advance is requested to be
made on __________, ____.
(3) The amount of the Non-Extension Advance requested hereby (i) is
$______________, which equals the Maximum Available Commitment on the date
hereof and is to be applied in respect of the funding of the Class G Cash
Collateral Account in accordance with Section 3.6(d) of the Intercreditor
Agreement, (ii) does not include any amount with respect to the payment of
the principal of, or premium on, the Class G Certificates, or principal of,
or interest or premium on, the Class C Certificates, (iii) was computed in
accordance with the provisions of the Class G Certificates, the Class G
Trust Agreement 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 G
Cash Collateral Account and apply the same in accordance with the terms of
Section 3.6(d) 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.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Non-Extension 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
Non-Extension Advance requested by this Notice of Borrowing, the Borrower shall
not be entitled to request any further Advances under the Liquidity Agreement.
II-1
<PAGE> 38
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest Advance Notice of
Borrowing]
II-2
<PAGE> 39
Annex III to
Revolving Credit Agreement
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
subordination agent (the "Borrower"), hereby certifies to MORGAN STANLEY CAPITAL
SERVICES, INC. (the "Liquidity Provider"), with reference to the Revolving
Credit Agreement (1999-1G) dated as of September 21, 1999, 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 G Cash Collateral Account in accordance with Section
3.6(c) of the Intercreditor Agreement by reason of (i) the downgrading of
the short-term unsecured debt rating of the Guarantor issued by either
Rating Agency below the Threshold Rating, or (ii) the occurrence of a
Guarantee Event, which Advance is requested to be made on __________, ____.
(3) The amount of the Downgrade Advance requested hereby (i) is
$________________, which equals the Maximum Available Commitment on the
date hereof and is to be applied in respect of the funding of the Class G
Cash Collateral 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 G Certificates,
or principal of, or interest or premium on, the Class C Certificates, (iii)
was computed in accordance with the provisions of the Class G Certificates,
the Class G Trust Agreement 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 G
Cash Collateral 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.
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
<PAGE> 40
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 _________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent, as Borrower
By:_________________________________
Name:
Title:
<PAGE> 41
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Downgrade Advance Notice of
Borrowing]
<PAGE> 42
Annex IV to
Revolving Credit Agreement
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
borrower (the "Borrower"), hereby certifies to MORGAN STANLEY CAPITAL SERVICES,
INC. (the "Liquidity Provider"), with reference to the Revolving Credit
Agreement (1999-1G) dated as of September 21, 1999, 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 Final Advance by the Liquidity Provider to be used for the funding
of the Class G Cash Collateral Account in accordance with Section 3.6(i) of
the Intercreditor Agreement by reason of the receipt by the Borrower of a
Termination Notice from the Liquidity Provider with respect to the
Liquidity Agreement, which Advance is requested to be made on ____________,
____.
(3) The amount of the Final Advance requested hereby (i) is
$_________________, which equals the Maximum Available Commitment on the
date hereof and is to be applied in respect of the funding of the Class G
Cash Collateral Account in accordance with Section 3.6(i) of the
Intercreditor Agreement, (ii) does not include any amount with respect to
the payment of principal of, or premium on, the Class G Certificates, or
principal of, or interest or premium on, the Class C Certificates, (iii)
was computed in accordance with the provisions of the Class G Certificates,
the Class G Trust Agreement 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.
(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 G
Cash Collateral Account and apply the same in accordance with the terms of
Section 3.6(i) 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.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Final 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 Final Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
IV-1
<PAGE> 43
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Notice of Borrowing as of the ____ day of _________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Subordination Agent, as Borrower
By:_________________________________
Name:
Title:
<PAGE> 44
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Final Advance Notice of
Borrowing]
<PAGE> 45
Annex V to
Revolving Credit Agreement
NOTICE OF TERMINATION
[Date]
Wilmington Trust Company,
as Subordination Agent, as Borrower
Rodney Square North
1100 North Market Square
Wilmington, DE 19890-0001
Re: Revolving Credit Agreement dated as of September 21, 1999, between
Wilmington Trust Company, as Subordination Agent, as agent and trustee for
the America West Airlines Pass Through Trust, 1999-1G-[O/S], as Borrower,
and MORGAN STANLEY CAPITAL SERVICES, INC., as the Liquidity Provider (the
"Liquidity Agreement")
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.01 of the Liquidity
Agreement, by reason of the occurrence of a Liquidity Event of Default and the
existence of a Performing Note Deficiency (each as defined therein), we are
giving this notice to you in order to cause (i) our obligations to make Advances
(as defined therein) under such Liquidity Agreement to terminate on the fifth
Business Day after the date on which you receive this notice and (ii) you to
request a Final Advance under the Liquidity Agreement pursuant to Section 3.6(i)
of the Intercreditor Agreement (as defined in the Liquidity Agreement) as a
consequence of your receipt of this notice.
V-1
<PAGE> 46
THIS NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR UNDER THE
LIQUIDITY AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY
AGREEMENT WILL TERMINATE ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU
RECEIVE THIS NOTICE.
Very truly yours,
MORGAN STANLEY CAPITAL
SERVICES, INC.,
as Liquidity Provider
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
cc: WILMINGTON TRUST COMPANY,
as Class G Trustee
V-2
<PAGE> 47
Annex VI to
Revolving Credit Agreement
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Revolving Credit Agreement dated as of September 21, 1999, between
WILMINGTON TRUST COMPANY, as Subordination Agent, as agent and trustee
for the America West Airlines Pass Through Trust, 1999-1G-[O/S], as
Borrower, and MORGAN STANLEY CAPITAL SERVICES, INC., as the Liquidity
Provider (the "Liquidity Agreement")
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
------------------------------
[Name of Transferee]
------------------------------
[Address of Transferee]
all rights and obligations 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, pursuant to the terms of Section 8.1 of
the Intercreditor 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 and obligations as Borrower thereunder. The
undersigned shall pay any costs and expenses of such transfer, including, but
not limited to, transfer taxes or governmental charges.
VI-1
<PAGE> 48
We ask that this transfer be effective as of _______________, ____.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Subordination Agent, as Borrower
By:_________________________________
Name:
Title:
VI-2
<PAGE> 49
EXHIBIT I
MORGAN STANLEY DEAN WITTER & CO.
1221 AVENUE OF THE AMERICAS NEW YORK, NEW YORK 10020
September 21, 1999
America West Pass Through Trust 1999-1G
Ladies and Gentlemen:
In consideration of each of the Revolving Credit Agreement (the
"Agreement") dated as of September 21, 1999 between Morgan Stanley Capital
Services Inc., a Delaware corporation (hereinafter "MSCS") and Wilmington Trust
Company as Subordination Agent, as agent and trustee for the America West Pass
Through Trust 1999-1G ("Counterparty"), Morgan Stanley Dean Witter & Co., a
Delaware corporation (hereinafter "MSDW"), hereby irrevocably and
unconditionally guarantees to Counterparty, with effect from the date of the
Agreement, the due and punctual payment of all amounts payable by MSCS under
the Agreement when the same shall become due and payable, whether on scheduled
payment dates, upon demand, upon declaration of termination or otherwise, in
accordance with the terms of the Agreement and giving effect to any applicable
grace period. Upon failure of MSCS punctually to pay any such amounts, and upon
written demand by Counterparty to MSDW at its address set forth in the
signature block of this Guarantee (or to such other address as MSDW may specify
in writing), MSDW agrees to pay or cause to be paid such amounts; provided that
delay by Counterparty in giving such demand shall in no event affect MSDW's
obligations under this Guarantee.
MSDW hereby agrees that its obligations hereunder shall be unconditional
and will not be discharged except by complete payment of the amounts payable
under the Agreement, irrespective of any claim as to the Agreement's validity,
regularity or enforceability or the lack of authority of MSCS to execute or
deliver the Agreement; or any change in or amendment to the Agreement; or any
waiver or consent by Counterparty with respect to any provisions thereof; or
the absence of any action to enforce the Agreement or the recovery of any
judgment against MSCS or of any action to enforce a judgement against MSCS
under the Agreement; or any similar circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor generally.
MSDW hereby waives diligence, presentment, demand on MSCS for payment or
otherwise (except as provided hereinabove), filing of claims, requirement of a
prior proceeding against MSCS and protest or notice, except as provided for in
the Agreement with respect to amounts payable by MSCS. If at any time payment
under the Agreement is rescinded or must be otherwise restored or returned by
Counterparty upon the insolvency, bankruptcy or reorganization of MSCS or MSDW
or otherwise, MSDW's obligations hereunder with respect to such payment shall
be reinstated upon such restoration or return being made by Counterparty.
MSDW represents to Counterparty as of the date hereof, which
representations will be deemed to be repeated by MSDW on each date on which a
Transaction is entered into, that:
(1) it is duly organized and validly existing under the laws of the
jurisdiction of its incorporation and has full power and legal right to execute
and deliver this Guarantee and to perform the provisions of this Guarantee on
its part to be performed;
<PAGE> 50
MORGAN STANLEY DEAN WITTER & CO.
September 21, 1999
Page 2
(2) its execution, delivery and performance of this Guarantee have been
and remain duly authorized by all necessary corporate action and do not
contravene any provision of its certificate of incorporation or by-laws or any
law, regulation or contractual restriction binding on it or its assets;
(3) all consents, authorizations, approvals and clearances (including,
without limitation, any necessary exchange control approval) and notifications,
reports and registrations requisite for its due execution, delivery and
performance of this Guarantee have been obtained from or, as the case may be,
filed with the relevant governmental authorities having jurisdiction and remain
in full force and effect and all conditions thereof have been duly complied
with and no other action by, and no notice to or filing with, any governmental
authority having jurisdiction is required for such execution, delivery or
performance; and
(4) this Guarantee is its legal, valid and binding obligation enforceable
against it in accordance with its terms except as enforcement hereof may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights or by general equity
principles.
By accepting this Guarantee and entering into the Agreement, Counterparty
agrees that MSDW shall be subrogated to all rights of Counterparty against MSCS
in respect of any amounts paid by MSDW pursuant to this Guarantee, provided
that MSDW shall be entitled to enforce or to receive any payment arising out of
or based upon such right of subrogation only to the extent that it has paid all
amounts payable by MSCS under the Agreement.
This Guarantee shall be governed by and construed in accordance with the
laws of the State of New York. All capitalized terms not otherwise defined
herein shall have the respective meanings assigned to them in the Agreement.
MORGAN STANLEY DEAN WITTER & CO.
By: /s/ Alexander C. Frank
---------------------------
Name: Alexander C. Frank
Title: Treasurer
2
<PAGE> 51
MORGAN STANLEY DEAN WITTER & CO.
SECRETARY'S CERTIFICATE
I, Charlene R. Herzer, a duly elected and acting Assistant Secretary of
Morgan Stanley Dean Witter & Co., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), certify that (i) Alexander C.
Frank is the duly elected Treasurer and Eileen S. Wallace is a duly elected
Assistant Treasurer of the Corporation; (ii) pursuant to Section 7.01 of the
Bylaws of the Corporation and resolutions adopted by a Unanimous Consent of
Directors in Lieu of a Meeting, dated as of May 31, 1997, both of which are
attached as an exhibit, the Treasurer and the Assistant Treasurers are
authorized to enter into agreements and other instruments on behalf of the
Corporation; and (iii) the signatures of Alexander C. Frank and Eileen S.
Wallace appearing below are copies of their genuine signatures:
/s/ Alexander C. Frank
----------------------
/s/ Eileen S. Wallace
----------------------
IN WITNESS WHEREOF, I have hereunto set my name and affixed the seal of
the Corporation as of the 13th day of September, 1999.
/s/ Charlene R. Herzer
----------------------
Charlene R. Herzer
Assistant Secretary
[SEAL]
<PAGE> 52
EXHIBIT
MORGAN STANLEY DEAN WITTER & CO.
SECTION 7.01 OF THE BYLAWS
SECTION 7.01. CONTRACTS. Except as otherwise required by law, the Amended
and Restated Certificate of Incorporation or these Amended and Restated Bylaws,
any contracts or other instruments may be executed and delivered in the name and
on the behalf of the Corporation by such officer or officers of the Corporation
as the Board of Directors may from time to time direct. Such authority may be
general or confined to specific instances as the Board may determine. Subject to
the control and direction of the Board of Directors, the Chairman of the Board,
the President, the Chief Financial Officer, the Chief Strategic and
Administrative Officer, the Chief Legal Officer and the Treasurer may enter
into, execute, deliver and amend bonds, promissory notes, contracts, agreements,
deeds, leases, guarantees, loans, commitments, obligations, liabilities and
other instruments to be made or executed for or on behalf of the Corporation.
Subject to any restrictions imposed by the Board of Directors, such officers of
the Corporation may delegate such powers to others under his or her
jurisdiction, it being understood, however, that any such delegation of power
shall not relieve such officer of responsibility with respect to the exercise of
such delegated power.
RESOLUTION ADOPTED BY A UNANIMOUS CONSENT OF
DIRECTORS IN LIEU OF A MEETING, DATED AS OF MAY 31, 1997
RESOLVED FURTHER, that the Treasurer shall have charge and custody of,
and be responsible for, all funds and securities of the Corporation and
shall be authorized to deposit all such funds in the name of the
Corporation in banks or other depositories. In addition, the Treasurer
shall perform all other necessary acts and duties in connection with the
financial affairs of the Corporation, shall generally perform all duties
appertaining to the office of treasurer of a corporation and shall perform
such other duties and have such other powers as may be prescribed by the
Board, subject to the supervision of the Chief Financial Officer; and
RESOLVED FURTHER, that the Assistant Treasurer, if any, or, if there
shall be more than one, the Assistant Treasurers, shall, under the
supervision of the Treasurer, perform the duties and exercise the powers of
an assistant treasurer and, in the absence or disability of the Treasurer,
perform the duties and exercise the powers of the Treasurer. In addition,
each Assistant Treasurer is authorized to enter into, execute, deliver and
amend on behalf of the Corporation any and all letters of credit,
uncommitted short-term credit obligations and short-term promissory notes
(as defined by generally accepted accounting principles), such
authorization to cease automatically upon termination of employment with
the Corporation.
<PAGE> 1
EXHIBIT 4.9
- --------------------------------------------------------------------------------
INTERCREDITOR AGREEMENT
(1999-1)
Dated as of
September 21, 1999
AMONG
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Trustee under the
America West Airlines Pass Through Trust 1999-1G
and
America West Airlines Pass Through Trust 1999-1C
MORGAN STANLEY CAPITAL SERVICES, INC.
as Class G Liquidity Provider
and
as Class C Liquidity Provider
AMBAC ASSURANCE CORPORATION
as Policy Provider
AND
WILMINGTON TRUST COMPANY,
not in its individual capacity except
as expressly set forth herein but
solely as Subordination Agent and Trustee
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I DEFINITIONS...................................................................... 2
SECTION 1.1. DEFINITIONS................................................................ 2
ARTICLE II TRUST ACCOUNTS; CONTROLLING PARTY............................................... 23
SECTION 2.1. AGREEMENT TO TERMS OF SUBORDINATION; PAYMENTS FROM MONIES RECEIVED ONLY.... 23
SECTION 2.2. TRUST ACCOUNTS............................................................. 24
SECTION 2.3. DEPOSITS TO THE COLLECTION ACCOUNT AND SPECIAL PAYMENTS ACCOUNT............ 25
SECTION 2.4. DISTRIBUTIONS OF SPECIAL PAYMENTS.......................................... 25
SECTION 2.5. DESIGNATED REPRESENTATIVES................................................. 28
SECTION 2.6. CONTROLLING PARTY.......................................................... 29
ARTICLE III RECEIPT, DISTRIBUTION AND APPLICATION OF AMOUNTS RECEIVED...................... 31
SECTION 3.1. WRITTEN NOTICE OF DISTRIBUTION............................................. 31
SECTION 3.2. DISTRIBUTION OF AMOUNTS ON DEPOSIT IN THE COLLECTION ACCOUNT............... 33
SECTION 3.3. DISTRIBUTION OF AMOUNTS ON DEPOSIT FOLLOWING A TRIGGERING EVENT............ 34
SECTION 3.4. OTHER PAYMENTS............................................................. 37
SECTION 3.5. PAYMENTS TO THE TRUSTEES, LIQUIDITY PROVIDERS AND POLICY PROVIDER.......... 37
SECTION 3.6. LIQUIDITY FACILITIES....................................................... 37
SECTION 3.7. THE POLICY................................................................. 44
ARTICLE IV EXERCISE OF REMEDIES............................................................ 48
SECTION 4.1. DIRECTIONS FROM THE CONTROLLING PARTY...................................... 48
SECTION 4.2. REMEDIES CUMULATIVE........................................................ 49
SECTION 4.3. DISCONTINUANCE OF PROCEEDINGS.............................................. 49
SECTION 4.4. RIGHT OF CERTIFICATEHOLDERS TO RECEIVE PAYMENTS NOT TO BE IMPAIRED......... 49
SECTION 4.5. UNDERTAKING FOR COSTS...................................................... 49
ARTICLE V DUTIES OF THE SUBORDINATION AGENT; AGREEMENTS OF TRUSTEES, ETC................... 50
SECTION 5.1. NOTICE OF INDENTURE DEFAULT OR TRIGGERING EVENT............................ 50
SECTION 5.2. INDEMNIFICATION............................................................ 50
SECTION 5.3. NO DUTIES EXCEPT AS SPECIFIED IN INTERCREDITOR AGREEMENT................... 51
SECTION 5.4. NOTICE FROM THE LIQUIDITY PROVIDERS AND TRUSTEES........................... 51
ARTICLE VI THE SUBORDINATION AGENT......................................................... 51
SECTION 6.1. AUTHORIZATION; ACCEPTANCE OF TRUSTS AND DUTIES............................. 51
SECTION 6.2. ABSENCE OF DUTIES.......................................................... 51
SECTION 6.3. NO REPRESENTATIONS OR WARRANTIES AS TO DOCUMENTS........................... 52
SECTION 6.4. NO SEGREGATION OF MONIES; NO INTEREST...................................... 52
SECTION 6.5. RELIANCE; AGENTS; ADVICE OF COUNSEL........................................ 52
SECTION 6.6. CAPACITY IN WHICH ACTING................................................... 53
SECTION 6.7. COMPENSATION............................................................... 53
SECTION 6.8. MAY BECOME CERTIFICATEHOLDER............................................... 53
SECTION 6.9. SUBORDINATION AGENT REQUIRED; ELIGIBILITY.................................. 53
SECTION 6.10. MONEY TO BE HELD IN TRUST................................................. 53
ARTICLE VII INDEMNIFICATION OF SUBORDINATION AGENT......................................... 54
SECTION 7.1. SCOPE OF INDEMNIFICATION................................................... 54
ARTICLE VIII SUCCESSOR SUBORDINATION AGENT................................................. 54
SECTION 8.1. REPLACEMENT OF SUBORDINATION AGENT; APPOINTMENT OF SUCCESSOR............... 54
ARTICLE IX SUPPLEMENTS AND AMENDMENTS...................................................... 55
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 9.1. AMENDMENTS, WAIVERS, ETC................................................... 55
SECTION 9.2. SUBORDINATION AGENT PROTECTED.............................................. 57
SECTION 9.3. EFFECT OF SUPPLEMENTAL AGREEMENTS.......................................... 57
SECTION 9.4. NOTICE TO RATING AGENCIES.................................................. 57
ARTICLE X MISCELLANEOUS.................................................................... 58
SECTION 10.1. TERMINATION OF INTERCREDITOR AGREEMENT.................................... 58
SECTION 10.2. INTERCREDITOR AGREEMENT FOR BENEFIT OF TRUSTEES, LIQUIDITY PROVIDERS,
THE POLICY PROVIDER AND SUBORDINATION AGENT ............................ 58
SECTION 10.3. NOTICES................................................................... 58
SECTION 10.4. SEVERABILITY.............................................................. 60
SECTION 10.5. NO ORAL MODIFICATIONS OR CONTINUING WAIVERS............................... 60
SECTION 10.6. SUCCESSORS AND ASSIGNS.................................................... 60
SECTION 10.7. HEADINGS.................................................................. 60
SECTION 10.8. COUNTERPART FORM.......................................................... 60
SECTION 10.9. SUBORDINATION............................................................. 60
SECTION 10.10. GOVERNING LAW............................................................ 62
SECTION 10.11. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL; WAIVER OF IMMUNITY..... 62
</TABLE>
ii
<PAGE> 4
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT dated as of September 21, 1999, among
WILMINGTON TRUST COMPANY, a Delaware banking corporation ("WTC"), not in its
individual capacity but solely as Trustee of each Trust (each as defined below);
MORGAN STANLEY CAPITAL SERVICES, INC., a Delaware corporation ("MSCS"), as Class
G Liquidity Provider and Class C Liquidity Provider; AMBAC ASSURANCE
CORPORATION, a Wisconsin domiciled stock-insurance company as Policy Provider;
and WILMINGTON TRUST COMPANY, 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 (i) in the case of each
Aircraft that is owned by America West at the time such Indenture is entered
into (the "Owned Aircraft"), America West will issue on a recourse basis two (or
three, under certain circumstances) series of Equipment Notes to finance the
purchase of such Aircraft, and (ii) in the case of each Aircraft that is leased
to America West pursuant to a related Lease at the time such Indenture is
entered into (the "Leased Aircraft"), the related Owner Trustee will issue on a
nonrecourse basis two (or three, under certain circumstances) series of
Equipment Notes to finance the purchase of such Aircraft;
WHEREAS, pursuant to the Financing Agreements, each Trust will
acquire Equipment Notes having an interest rate equal to the interest rate
applicable to the Certificates to be issued by such Trust;
WHEREAS, pursuant to each Trust Agreement, the Trust created
thereby proposes to issue a single class of Certificates (a "Class") bearing the
interest rate and having the final distribution date described in such Trust
Agreement on the terms and subject to the conditions set forth therein;
WHEREAS, pursuant to the Purchase Agreement, the Initial
Purchasers propose to purchase the Certificates issued by each Trust in the
aggregate face amount set forth opposite the name of such Trust on Schedule I
thereto on the terms and subject to the conditions set forth therein;
WHEREAS, the Liquidity Provider proposes to enter into two
separate revolving credit agreements (each such agreement, a "Liquidity
Facility") with the Subordination Agent, as agent for the Trustee of each Trust,
respectively, for the benefit of the Certificateholders of such Trust;
WHEREAS, Morgan Stanley Dean Witter & Co. (the "Guarantor")
will guarantee in full, pursuant to separate Guarantee Agreements dated as of
the date hereof (each, a "Guarantee Agreement"), the obligations of MSCS under
the Liquidity Facilities;
<PAGE> 5
WHEREAS, the Policy Provider proposes to enter into the Policy
Provider Agreement providing for the issuance by the Policy Provider of the
Policy for the benefit of the Class G Trustee and Class G Certificateholders;
and
WHEREAS, it is a condition precedent to the obligations of the
Initial Purchasers under the Purchase Agreement that the Subordination Agent,
the Trustees, the Liquidity Provider and the Policy Provider agree to the terms
of subordination set forth in this Agreement in respect of each Class of
Certificates, and the Subordination Agent, the Trustees, the Liquidity Provider
and the Policy Provider, 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 Notes issued under any Indenture, such amounts becoming
immediately due and payable by declaration or otherwise. "Accelerate",
"Accelerated" and "Accelerating" have meanings correlative to the foregoing.
"Accrued Class G Interest" has the meaning specified in
Section 3.7(a).
"Adjusted Expected Distributions" means, with respect to the
Certificates of any Trust on any Current Distribution Date, the sum of (x)
accrued and unpaid interest on such Certificates (excluding interest, if any,
payable with respect to the Deposits related to such Trust) and (y) the greater
of:
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<PAGE> 6
(A) the difference between (x) the Pool Balance of such
Certificates as of the immediately preceding Distribution Date (or, if
the Current Distribution Date is the first Distribution Date, the
original aggregate face amount of the Certificates of such Trust) and
(y) the Pool Balance of such Certificates as of the Current
Distribution Date calculated on the basis that (i) the principal of the
Non-Performing Equipment Notes held in such Trust has been paid in full
and such payments have been distributed to the holders of such
Certificates, (ii) the principal of the Performing Equipment Notes held
in such Trust has been paid when due (but without giving effect to any
Acceleration of Performing Equipment Notes) and such payments have been
distributed to the holders of such Certificates and (iii) the principal
of any Equipment Notes formerly held in such Trust that have been sold
pursuant to the terms hereof has been paid in full and such payments
have been distributed to the holders of such Certificates, but without
giving effect to any reduction in the Pool Balance as a result of any
distribution attributable to Deposits occurring after the immediately
preceding Distribution Date (or, if the Current Distribution Date is
the first Distribution Date, occurring after the initial issuance of
the Certificates of such Trust), and
(B) the amount of the excess, if any, of (i) the Pool Balance
of such Class of Certificates as of the immediately preceding
Distribution Date (or, if the Current Distribution Date is the first
Distribution Date, the original aggregate face amount of the
Certificates of such Trust), less the amount of the Deposits for such
Class of Certificates as of such preceding Distribution Date (or, if
the Current Distribution Date is the first Distribution Date, the
original aggregate amount of the Deposits for such Class of
Certificates) other than any portion of such Deposits thereafter used
to acquire Equipment Notes pursuant to the Note Purchase Agreement,
over (ii) the Aggregate LTV Collateral Amount for such Class of
Certificates for the Current Distribution Date;
provided that, until the date of the initial LTV Appraisals, clause (B) shall
not apply.
For purposes of calculating Adjusted Expected Distributions
with respect to the Certificates of any Trust, any premium paid on the Equipment
Notes held in such Trust that has not been distributed to the Certificateholders
of such Trust (other than such premium or a portion thereof applied to the
payment of interest on the Certificates of such Trust or the reduction of the
Pool Balance of such Trust) shall be added to the amount of Adjusted Expected
Distributions.
"Advance", with respect to any Liquidity Facility, means any
Advances as defined in such Liquidity Facility.
"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" for any Class of
Certificates for any Distribution Date means the sum of the applicable LTV
Collateral Amounts for each Leased
3
<PAGE> 7
Aircraft and Owned Aircraft, minus the Pool Balance for each Class of
Certificates, if any, senior to such Class, after giving effect to any
distribution of principal on such Distribution Date with respect to such senior
Class or Classes.
"Aircraft" means, with respect to each Indenture, the
"Aircraft" referred to therein.
"America West" means America West Airlines, Inc., a Delaware
corporation, and its successors and assigns.
"America West Bankruptcy Event" means the occurrence and
continuation of any of the following:
(a) America West shall consent to the appointment of or the
taking of possession by a receiver, trustee or liquidator of itself or
of substantially all of its property, or America West 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
America West shall file a voluntary petition in bankruptcy or a
voluntary petition or an answer seeking reorganization, liquidation or
other relief in a case under any bankruptcy laws or other insolvency
laws (as in effect at such time) or an answer admitting the material
allegations of a petition filed against America West in any such case,
or America West shall seek relief by voluntary petition, answer or
consent, under the provisions of any other bankruptcy or other similar
law providing for the reorganization or winding-up of corporations (as
in effect at such time) or America West shall seek an agreement,
composition, extension or adjustment with its creditors under such
laws, or America West's board of directors shall adopt a resolution
authorizing corporate action in furtherance of any of the foregoing; or
(b) an order, judgment or decree shall be entered by any court
of competent jurisdiction appointing, without the consent of America
West, a receiver, trustee or liquidator of America West or of
substantially all of its property, or substantially all of the property
of America West shall be sequestered, or granting any other relief in
respect of America West as a debtor under any bankruptcy laws or other
insolvency laws (as in effect at such time), and any such order,
judgment or decree of appointment or sequestration shall remain in
force undismissed, unstayed and unvacated for a period of 90 days after
the date of entry thereof; or
(c) a petition against America West in a case under any
bankruptcy laws or other insolvency laws (as in effect at such time) is
filed and not withdrawn or dismissed within 90 days thereafter, or if,
under the provisions of any law providing for reorganization or
winding-up of corporations which may apply to America West, any court
of competent jurisdiction assumes jurisdiction, custody or control of
America West or of any substantial part of its property and such
jurisdiction, custody or control remains in force unrelinquished,
unstayed and unterminated for a period of 90 days.
"America West Provisions" has the meaning specified in Section
9.1(a).
4
<PAGE> 8
"Appraisal" means a fair market value appraisal (which may be
a "desktop" appraisal) performed by any Appraiser or any other nationally
recognized aircraft 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.
"Appraised Current Market Value" of any Leased Aircraft or
Owned Aircraft means the lower of the average and the median of the three most
recent Appraisals of such Aircraft.
"Appraisers" means AVITAS, Inc., AvSolutions, Inc., and Morten
Beyer and Agnew, Inc.
"Assignment and Assumption Agreements" means each of the
Assignment and Assumption Agreements to be executed among a Trustee and trustee
of the relevant Successor Trust in accordance with the relevant Trust Agreement,
as the same may be amended, modified or supplemented from time to time.
"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 at such time, less (b) the aggregate 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 provided in
Section 3.6(g) hereof as of such date; provided that, following a Downgrade
Drawing, a Non-Extension 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
Phoenix, Arizona, New York, New York, or, so long as any Certificate is
outstanding, the city and state in which any Trustee, the Subordination Agent or
any Loan Trustee maintains its Corporate Trust Office or receives and disburses
funds, and that, solely with respect to draws under any Liquidity Facility, also
is a "Business Day" as defined in such Liquidity Facility.
"Cash Collateral Account" means the Class G Cash Collateral
Account or the Class C Cash Collateral Account, as applicable.
"Certificate" means a Class G Certificate or a Class C
Certificate, as applicable.
"Certificateholder" means any holder of one or more
Certificates.
"Class" has the meaning assigned to such term in the
preliminary statements to this Agreement.
"Class C Cash Collateral 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 C Liquidity Facility pursuant to Section
3.6(c), 3.6(d) or 3.6(i) shall be deposited.
5
<PAGE> 9
"Class C Certificateholder" means, at any time, any holder of
one or more Class C Certificates.
"Class C Certificates" means the certificates issued by the
Class C Trust, substantially in the form of Exhibit A to the Class C Trust
Agreement, and authenticated by the Class C Trustee, representing fractional
undivided interests in the Class C Trust, and any certificates issued in
exchange therefor or replacement thereof pursuant to the terms of the Class C
Trust Agreement and/or the Registration Rights Agreement (including, without
limitation, any Exchange Certificates (as defined in the Class C Trust
Agreement).
"Class C Liquidity Facility" means, initially, the Revolving
Credit Agreement dated as of the date hereof, between the Subordination Agent,
as agent and trustee for the Class C Trustee, and the initial Class C 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 C Liquidity Provider" means MSCS, together with any
Replacement Liquidity Provider which has issued a Replacement Liquidity Facility
to replace any Class C Liquidity Facility pursuant to Section 3.6(e).
"Class C Trust" means (i) prior to the Transfer, the America
West Airlines Pass Through Trust 1999-1C-O created and administered pursuant to
the Class C Trust Agreement and (ii) after the Transfer, the America West
Airlines Pass Through Trust 1999-1C-S created and administered pursuant to the
Class C Trust Agreement.
"Class C Trust Agreement" means (i) prior to the Transfer, the
Pass Through Trust Agreement, dated as of the date hereof, between America West
and the Class C Trustee, governing the creation and administration of the
America West Airlines Pass Through Trust 1999-1C-O and the issuance of the Class
C Certificates, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with its terms, and (ii) after the Transfer, the
Pass Through Trust Agreement entered into between America West and the Class C
Trustee, governing the creation and administration of the America West Airlines
Pass Through Trust 1999-1C-S and the issuance of the Class C Certificates, as
the same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
"Class C Trustee" means WTC, not in its individual capacity
except as expressly set forth in the Class C Trust Agreement, but solely as
trustee under the Class C Trust Agreement, together with any successor trustee
appointed pursuant thereto.
"Class D Certificates" means any pass through certificates
issued by the Class D Trust representing fractional undivided interests in the
Class D Trust.
"Class D Trust" means the America West Airlines Pass Through
Trust 1999-1D, if and when established.
6
<PAGE> 10
"Class G Cash Collateral 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 G Liquidity Facility pursuant to Section
3.6(c), 3.6(d) or 3.6(i) shall be deposited.
"Class G Certificateholder" means, at any time, any holder of
one or more Class G Certificates.
"Class G Certificates" means the certificates issued by the
Class G Trust, substantially in the form of Exhibit A to the Class G Trust
Agreement, and authenticated by the Class G Trustee, representing fractional
undivided interests in the Class G Trust, and any certificates issued in
exchange therefor or replacement thereof pursuant to the terms of the Class G
Trust Agreement and/or the Registration Rights Agreement (including, without
limitation, any Exchange Certificates (as defined in the Class G Trust
Agreement).
"Class G Deposits" means the Deposits with respect to the
Class G Certificates.
"Class G Liquidity Facility" means, initially, the Revolving
Credit Agreement dated as of the date hereof, between the Subordination Agent,
as agent and trustee for the Class G Trustee, and the initial Class G 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 G Liquidity Provider" means MSCS, together with any
Replacement Liquidity Provider which has issued a Replacement Liquidity Facility
to replace any Class G Liquidity Facility pursuant to Section 3.6(e).
"Class G Paying Agent Account" means the Paying Agent Account
as defined in the Escrow and Paying Agent Agreement relating to the Class G
Certificates.
"Class G Trust" means (i) prior to the Transfer, the America
West Airlines Pass Through Trust 1999-1G-O created and administered pursuant to
the Class G Trust Agreement and (ii) after the Transfer, the America West
Airlines Pass Through Trust 1999-1G-S created and administered pursuant to the
Class G Trust Agreement.
"Class G Trust Agreement" means (i) prior to the Transfer, the
Pass Through Trust Agreement, dated as of the date hereof, between America West
and the Class G Trustee, governing the creation and administration of the
America West Airlines Pass Through Trust 1999-1G-O and the issuance of the Class
G Certificates, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with its terms, and (ii) after the Transfer, the
Pass Through Trust Agreement entered into between America West and the Class G
Trustee, governing the creation and administration of the America West Airlines
Pass Through Trust 1999-1G-S and the issuance of the Class G Certificates, as
the same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
7
<PAGE> 11
"Class G Trustee" means WTC, not in its individual capacity
except as expressly set forth in the Class G Trust Agreement, but solely as
trustee under the Class G Trust Agreement, together with any successor trustee
appointed pursuant thereto.
"Closing Date" means September 21, 1999.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the Treasury Regulations promulgated thereunder.
"Collateral" has the meaning assigned to such term in the
Owned Aircraft Indentures.
"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 Trustee,
the Subordination Agent or any Loan 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 Expected Distributions or the
Adjusted Expected Distributions with respect to the Certificates of any Trust as
of such Distribution Date.
"Delivery Period Expiry Date" means the earlier of (a) May 30,
2000, or, if the Equipment Notes relating to all the New Aircraft (or Substitute
Aircraft in lieu thereof) have not been purchased by the Trusts on or prior to
such date due to any reason beyond the control of America West and not
occasioned by America West's fault or negligence, August 31, 2000 and (b) the
date on which Equipment Notes with respect to all New Aircraft (or Substitute
Aircraft in lieu thereof) have been purchased by the Trusts in accordance with
the Note Purchase Agreement.
"Deposit Agreement" shall mean, with respect to any Class, the
Deposit Agreement pertaining to such Class dated as of the date hereof between
the Escrow Agent, and the Depositary, as the same may be amended, modified or
supplemented from time to time in accordance with the terms thereof.
"Depositary" means ABN AMRO Bank N.V., acting through its
Chicago Branch, as depositary under each Deposit Agreement, or its successors
and assigns.
"Deposits" with respect to any Class, shall have the meaning
set forth in the Deposit Agreement pertaining to such Class.
8
<PAGE> 12
"Designated Representatives" means the Subordination Agent
Representatives, the Trustee Representatives and the Provider 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, a
Non-Extension Drawing or a Downgrade Drawing, as the case may be.
"EBO Date" shall mean the date set forth on Schedule 1 to the
Lease as the "EBO Date".
"Election Distribution Date" has the meaning assigned to such
term in Section 3.7(c).
"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 A2 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 set-off and counterclaim with respect
to such account.
"Eligible Institution" means (a) the corporate trust
department of the Subordination Agent or any 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 A2 or its equivalent.
"Eligible Investments" means (a) investments in obligations
of, or guaranteed by, the United States Government having maturities no later
than 90 days following the date of such investment, (b) investments in open
market commercial paper of any corporation incorporated under the laws of the
United States of America or any state thereof with a short-term unsecured debt
rating issued by Moody's and Standard & Poor's of at least P-1 and A-1,
respectively, having maturities no later than 90 days following the date of such
investment or (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
9
<PAGE> 13
bank) with short-term unsecured debt ratings of at least A-1 by Moody's and P-1
by Standard & Poor's, having maturities no later than 90 days following the date
of such investment; provided, however, that (x) all Eligible Investments that
are bank obligations shall be denominated in U.S. dollars; and (y) the aggregate
amount of Eligible Investments at any one time that are bank obligations issued
by any one bank shall not be in excess of 5% of such bank's capital surplus;
provided further that (1) any investment of the types described in clauses (a),
(b) and (c) above may be made through a repurchase agreement in commercially
reasonable form with a bank or other financial institution qualifying as an
Eligible Institution so long as such investment is held by a third party
custodian also qualifying as an Eligible Institution, and (2) all such
investments set forth in clause (a), (b) or (c) above mature no later than the
Business Day immediately preceding the next Regular Distribution Date; provided
further, however, that in the case of any Eligible Investment issued by a
domestic branch of a foreign bank, the income from such investment shall be from
sources within the United States for purposes of the Code. Notwithstanding the
foregoing, no investment of the types described in clause (b) above which is
issued or guaranteed by America West or any of its Affiliates, and no investment
in the obligations of any one bank in excess of $10,000,000, shall be an
Eligible Investment unless written approval has been obtained from the Policy
Provider and a Ratings Confirmation shall have been received with respect to the
making of such investment.
"Equipment Notes" means, at any time, the Series G Equipment
Notes and the Series C Equipment Notes, collectively, and in each case, any
Equipment Notes issued in exchange therefor or replacement thereof pursuant to
the terms of the Indentures.
"Escrow Agent" means WTC, as escrow agent under each Escrow
and Paying Agent Agreement, together with its successors in such capacity.
"Escrow and Paying Agent Agreement" shall mean, with respect
to any Class, the Escrow and Paying Agent Agreement pertaining to such Class
dated as of the date hereof between the Escrow Agent, the Initial Purchasers,
the Trustee for such Class and the Paying Agent, as the same may be amended,
modified or supplemented from time to time in accordance with the terms thereof.
"Excess Interest Policy Drawing" has the meaning assigned to
such term in Section 3.7(c).
"Excess Reimbursement Obligations" means, (a) in the event of
any Policy Provider Election, the portion of the Policy Provider Obligations
that represents, when added to that portion of any Liquidity Obligations that
represents, interest on the Series G Equipment Note in respect of which the
Policy Provider Election has been made in excess of 24 months of interest at the
interest rate applicable to such Equipment Note and (b) any interest on the
Liquidity Obligations in respect of the Class G Liquidity Facility and Class C
Liquidity Facility paid by the Policy Provider to the Liquidity Provider from
and after the end of the 24-month period referred to in Section 3.7(c) hereof.
"Expected Distributions" means, with respect to the
Certificates of any Trust on any Current Distribution Date, the sum of (x)
accrued and unpaid interest on such Certificates (excluding interest, if any,
payable with respect to the Deposits related to such Trust) and (y) the
10
<PAGE> 14
difference between (A) the Pool Balance of such Certificates as of the
immediately preceding Distribution Date (or, if the Current Distribution Date is
the first Distribution Date, the original aggregate face amount of the
Certificates of such Trust), and (B) the Pool Balance of such Certificates as of
the Current Distribution Date calculated on the basis that (i) the principal of
the Equipment Notes held in such Trust has been paid when due (whether at stated
maturity, upon redemption, prepayment, purchase, Acceleration or otherwise) and
such payments have been distributed to the holders of such Certificates and (ii)
the principal of any Equipment Notes formerly held in such Trust that have been
sold pursuant to the terms hereof has been paid in full and such payments have
been distributed to the holders of such Certificates, but without giving effect
to any reduction in the Pool Balance as a result of any distribution
attributable to Deposits occurring after the immediately preceding Distribution
Date (or, if the Current Distribution Date is the first Distribution Date,
occurring after the initial issuance of the Certificates of such Trust). For
purposes of calculating Expected Distributions with respect to the Certificates
of any Trust, any premium paid on the Equipment Notes held in such Trust which
has not been distributed to the Certificateholders of such Trust (other than
such premium or a portion thereof applied to the payment of interest on the
Certificates of such Trust or the reduction of the Pool Balance of such Trust)
shall be added to the amount of such Expected Distributions.
"Expiry Date" with respect to any Liquidity Facility, shall
have the meaning set forth in such Liquidity Facility.
"Fee Letter" means the Fee Letter dated as of the date hereof
among America West, MSCS and the Subordination Agent with respect to the initial
Liquidity Facilities and any fee letter entered into among America West, the
Subordination Agent and any Replacement Liquidity Provider.
"Final Distributions" means, with respect to the Certificates
of any Trust on any Distribution Date, the sum of (x) the aggregate amount of
all accrued and unpaid interest on such Certificates (excluding interest, if
any, payable with respect to the Deposits relating to such Trust) and (y) the
Pool Balance of such Certificates as of the immediately preceding Distribution
Date (less the amount of the Deposits for such Class of Certificates as of such
preceding Distribution Date other than any portion of such Deposits thereafter
used to acquire Equipment Notes pursuant to the Note Purchase Agreement). For
purposes of calculating Final Distributions with respect to the Certificates of
any Trust, any premium paid on the Equipment Notes held in such Trust which has
not been distributed to the Certificateholders of such Trust (other than such
premium or a portion thereof applied to the payment of interest on the
Certificates of such Trust or the reduction of the Pool Balance of such Trust)
shall be added to the amount of such Final Distributions.
"Final Drawing" has the meaning assigned to such term in
Section 3.6(i).
"Final Legal Distribution Date" means (i) with respect to the
Class G Certificates, July 2, 2020 and (ii) with respect to the Class C
Certificates, July 2, 2007.
"Financing Agreement" means each of the Participation
Agreements and the Note Purchase Agreement.
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<PAGE> 15
"Guarantee Agreement" has the meaning assigned to such term in
the preliminary statements to this Agreement.
"Guarantee Event" has the meaning assigned to such term in
Section 3.6(c).
"Guarantor" has the meaning assigned to such term in the
preliminary statements to this Agreement.
"Indenture" means each of the Trust Indentures entered into by
the Loan Trustee, and the Owner Trustee or America West, pursuant to the Note
Purchase Agreement, in each case as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
"Indenture Default" means, with respect to any Indenture, any
Event of Default (as such term is defined in such Indenture) thereunder.
"Initial Purchasers" means Morgan Stanley & Co. Incorporated,
Merrill Lynch & Co., Donaldson, Lufkin & Jenrette Securities Corporation and
Salomon Smith Barney Inc.
"Interest Drawing" has the meaning assigned to such term in
Section 3.6(a).
"Interest Payment Date" means, with respect to any Liquidity
Facility, the final day of each Interest Period thereunder.
"Interest Period" with respect to any Liquidity Facility, has
the meaning assigned to such term in such Liquidity Facility.
"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 each Indenture pertaining to a
Leased Aircraft, the "Lease" referred to therein.
"Leased Aircraft" has the meaning assigned to such term in the
preliminary statements of this Agreement.
"Leased Aircraft Indenture" means, with respect to each Leased
Aircraft, the Indenture pertaining thereto.
"Lending Office" means, with respect to any Liquidity
Facility, the office of the Liquidity Provider thereunder, presently located at
New York, New York or such other office as such Liquidity Provider from time to
time shall notify the applicable Trustee as its "Lending Office" under any such
Liquidity Facility; provided that such Liquidity Provider shall not change its
Lending Office to a Lending Office outside the United States of America except
in accordance with Section 3.01, 3.02 or 3.03 of any such Liquidity Facility.
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"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 amount of any Drawings under the Liquidity Facilities and (ii) any
interest accrued on any Liquidity Obligations.
"Liquidity Facilities" means, at any time, the Class G
Liquidity Facility or the Class C Liquidity Facility.
"Liquidity Obligations" means all principal, interest, fees
and other amounts owing to the Liquidity Providers under the Liquidity
Facilities, Section 9.1 of the Participation Agreements or the Fee Letter.
"Liquidity Provider" means, at any time, any Class G Liquidity
Provider or any Class C Liquidity Provider, as applicable.
"Loan Trustee" means, with respect to any Indenture, the
mortgagee thereunder.
"LTV Appraisals" has the meaning assigned to such term in
Section 4.1(a).
"LTV Collateral Amount" of any Leased Aircraft or Owned
Aircraft for any Class of Certificates means, as of any Distribution Date, the
lesser of (i) the LTV Ratio for such Class of 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 and as defined in the
relevant Lease (in the case of a Leased Aircraft) or Indenture (in the case of
an Owned Aircraft), the amount of the insurance proceeds paid to the related
Loan Trustee in respect thereof to the extent then held by such Loan Trustee
(and/or on deposit in the Special Payments Account) or payable to such Loan
Trustee in respect thereof) and (ii) the outstanding principal amount of the
Equipment Notes secured by such Aircraft after giving effect to any principal
payments of such Equipment Notes on or before such Distribution Date.
"LTV Ratio" means for the Class G Certificates, 57% and for
the Class C Certificates, 62%.
"Material Adverse Tax Event" has the meaning assigned to such
term in Section 17.3(a)(4) of the Lease.
"Minimum Sale Price" means, with respect to any Aircraft or
the Equipment Notes issued in respect of such Aircraft, at any time, the lesser
of (a) 75% of the Appraised Current Market Value of such Aircraft and (b) the
aggregate outstanding principal amount of such Equipment Notes, plus accrued and
unpaid interest thereon.
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<PAGE> 17
"Moody's" means Moody's Investors Service, Inc.
"New Aircraft" has the meaning ascribed to the term "Aircraft"
in the Note Purchase Agreement.
"Non-Controlling Party" means, at any time, any of the
Trustees, the Liquidity Provider or the Policy Provider which is not the
Controlling Party at such time.
"Non-Extended Facility" has the meaning assigned to such term
in Section 3.6(d).
"Non-Extension Drawing" has the meaning assigned to such term
in Section 3.6(d).
"Non-Performing Equipment Note" means an Equipment Note issued
pursuant to an Indenture that is not a Performing Equipment Note.
"Note Purchase Agreement" means the Note Purchase Agreement
dated as of the date hereof, among America West, each Trustee, the Escrow Agent,
the Subordination Agent and the Paying Agent.
"Notice for Payment" means a Notice of Nonpayment as such term
is defined in the Policy.
"Notice of Avoided Payment" has the meaning assigned to such
term in the Policy.
"Officer's Certificate" of any Person means a certification
signed by a Responsible Officer of such Person.
"Operative Agreements" means this Agreement, the Liquidity
Facilities, the Policy, the Policy Provider Agreement, the Indentures, the Trust
Agreements, the Purchase Agreement, the Financing Agreements, the Leases, the
Fee Letter, the Equipment Notes and the Certificates, together with all exhibits
and schedules included with any of the foregoing.
"Order" has the meaning assigned to such term in the Policy.
"Outstanding" means, when used with respect to each Class of
Certificates, as of the date of determination, all Certificates of such Class
theretofore authenticated and delivered under the related Trust Agreement,
except:
(i) Certificates of such Class theretofore canceled by the
Registrar (as defined in such Trust Agreement) or delivered to the
Trustee thereunder or such Registrar for cancellation;
(ii) Certificates of such Class for which money in the full
amount required to make the final distribution with respect to such
Certificates pursuant to Section 11.01 of such Trust Agreement has been
theretofore deposited with the related Trustee in trust for
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<PAGE> 18
the holders of such Certificates as provided in Section 4.01 of such
Trust Agreement pending distribution of such money to such
Certificateholders pursuant to such final distribution payment; and
(iii) Certificates of such Class in exchange for or in lieu of
which other Certificates have been authenticated and delivered pursuant
to such Trust Agreement;
provided, however, that in determining whether the holders of the requisite
Outstanding amount of such Certificates have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, any Certificates
owned by America West or any of its Affiliates shall be disregarded and deemed
not to be Outstanding, except that, in determining whether such Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Certificates that such Trustee knows to be so
owned shall be so disregarded. Certificates so owned that have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the applicable Trustee the pledgee's right so to act with
respect to such Certificates and that the pledgee is not America West 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 after the
Scheduled Payment Date relating thereto.
"Owned Aircraft" has the meaning assigned to such term in the
preliminary statements of this Agreement.
"Owned Aircraft Indenture" means, with respect to each Owned
Aircraft, the Indenture pertaining to such Aircraft.
"Owner Trustee" means, with respect to any Indenture
pertaining to a Leased Aircraft, 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 Agreement" means, with respect to each
Indenture, the "Participation Agreement" referred to therein.
"Payee" has the meaning assigned to such term in Section
2.4(e).
"Paying Agent" means WTC, as paying agent under each Escrow
and Paying Agent Agreement, together with its successors in such capacity.
"Performing Equipment Note" means an Equipment Note issued
pursuant to an Indenture with respect to which no payment default has occurred
and is continuing (without giving effect to any Acceleration); provided that in
the event of a bankruptcy proceeding involving America West under Title 11 of
the United States Code (the "Bankruptcy Code"), (i) any payment default existing
during the 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
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<PAGE> 19
Code) (the "Section 1110 Period") shall not be taken into consideration, unless
during the Section 1110 Period the trustee in such proceeding or America West
refuses to assume or agree to perform its obligations under the Lease related to
such Equipment Note (in the case of a Leased Aircraft) or under the Indenture
related to such Equipment Note (in the case of an Owned Aircraft) 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.
"Performing Note Deficiency" means any time that less than 65%
of the then aggregate outstanding principal amount of all Equipment Notes are
Performing Equipment Notes.
"Person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock company, trust,
trustee, unincorporated organization or government or any agency or political
subdivision thereof.
"Policy" means the Ambac Certificate Guarantee Insurance
Policy No. AB0292BE, together with the Certificate Guaranty Insurance Policy
Endorsement attached thereto, issued as of the Closing Date, as amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
"Policy Account" means the Eligible Deposit Account
established by the Subordination Agent pursuant to Section 2.2(a)(iii).
"Policy Drawing" means any payment of a claim under the
Policy.
"Policy Expenses" means all amounts (including amounts in
respect of expenses or indemnities) due to the Policy Provider under the Policy
Provider Agreement or the Financing Agreements other than the amount of any
Policy Drawing and any interest accrued on any Policy Provider Obligations.
"Policy Provider" means Ambac Assurance Corporation.
"Policy Provider Agreement" means the Insurance and Indemnity
Agreement dated as of the date hereof among the Subordination Agent, as agent
and trustee for the Class G Trustee, America West and the Policy Provider as
amended, supplemented or otherwise modified from time to time in accordance with
its terms.
"Policy Provider Default" shall mean the occurrence of any of
the following events (a) the Policy Provider fails to make a payment required
under the Policy in accordance with its terms and such failure remains
unremedied for 2 Business Days following the delivery of Written Notice of such
failure to the Policy Provider or (b) the Policy Provider (i) files any petition
or commences any case or proceeding under any provisions of any federal or state
law relating to insolvency, bankruptcy, rehabilitation, liquidation or
reorganization, (ii) makes a general assignment for the benefit of its creditors
or (iii) has an order for relief entered against it under any federal or state
law relating to insolvency, bankruptcy, rehabilitation, liquidation or
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<PAGE> 20
reorganization that is final and nonappealable, or (c) a court of competent
jurisdiction, the Wisconsin Department of Insurance or another competent
regulatory authority enters a final and nonappealable order, judgment or decree
(i) appointing a custodian, trustee, agent or receiver for the Policy Provider
or for all or any material portion of its property or (ii) authorizing the
taking of possession by a custodian, trustee, agent or receiver of the Policy
Provider (or taking of possession of all or any material portion of the Policy
Provider's property).
"Policy Provider Election" has the meaning assigned to such
term in Section 3.7(c).
"Policy Provider Obligations" means all reimbursement and
other amounts, including, without limitation, fees and indemnities, due to the
Policy Provider under the Policy Provider Agreement but shall not include any
interest on Policy Drawings except, if the Class G Liquidity Provider has failed
to honor any Interest Drawing in accordance with Section 2.02(e) of the Class G
Liquidity Facility, interest on any Policy Drawing made to cover the shortfall
attributable to such failure in an amount equal to the amount of interest that
would have accrued on such Interest Drawing if such Interest Drawing had been
made in accordance with Section 2.02(e) of the Class G Liquidity Facility at the
interest rate applicable to such Interest Drawing until such Policy Drawing has
been repaid in full, up to a maximum of three such Policy Drawings. For the
avoidance of doubt, Policy Provider Obligations include reimbursement of, and
interest on, the Liquidity Obligations in respect of the Class G Liquidity
Facility and the Class C Liquidity Facility paid by the Policy Provider to the
Liquidity Provider.
"Policy Provider Rating" shall mean the respective ratings by
each of the Ratings Agencies of the Policy Provider's financial strength in
respect of the Policy.
"Policy Provider Threshold Rating" shall mean a Policy
Provider Rating of Aaa by Moody's and AAA by Standard & Poor's.
"Pool Balance" means, with respect to each Trust or the
Certificates issued by any Trust, as of any date, (i) the original aggregate
face amount of the Certificates of such Trust less (ii) the aggregate amount of
all payments made in respect of the Certificates of such Trust or in respect of
Deposits relating to 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 Trust or for the Certificates issued by any
Trust as of any Distribution Date shall be computed after giving effect to any
special distribution with respect to unused Deposits, payment of principal of
the Equipment Notes, payments under the Policy (other than in respect of
interest on the Certificates) or payment with respect to other Trust Property
held in such Trust and the distribution thereof to be made on that date.
"Preference Amount" has the meaning assigned to such term in
the Policy.
"Proceeding" means any suit in equity, action at law or other
judicial or administrative proceeding.
"Provider Representatives" has the meaning assigned to such
term in Section 2.5(c).
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"Provider Incumbency Certificate" has the meaning assigned to
such term in Section 2.5(c).
"PTC Event of Default" means, with respect to each Trust
Agreement, the failure to pay within 10 Business Days of the due date thereof:
(i) the outstanding Pool Balance of the applicable Class of Certificates on the
Final Legal Distribution Date for such Class or (ii) interest due on such
Certificates on any Distribution Date (unless the Subordination Agent shall have
made an Interest Drawing, or a withdrawal from the Cash Collateral Account, or a
drawing under the Policy, with respect thereto in an aggregate amount sufficient
to pay such interest and shall have distributed such amount to the Trustee
entitled thereto).
"Purchase Agreement" means the Purchase Agreement dated
September 14, 1999 among the Initial Purchasers and America West, relating to
the purchase of the Certificates by the Initial Purchasers, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
its terms.
"Rating Agencies" means, collectively, at any time, each
nationally recognized rating agency which shall have been requested to rate the
Certificates and which shall then be rating the Certificates. The initial Rating
Agencies will be 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 Certificates below the then current rating for such Class of Certificates
(without regard to the Policy in respect of the Class G Certificates) or (ii) a
withdrawal or suspension of the rating of any Class of Certificates.
"Registration Rights Agreement" means the Exchange and
Registration Rights Agreement dated as of the date hereof, among the Initial
Purchasers, the Trustees and America West, as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"Regular Distribution Dates" means each January 2 and July 2,
commencing on January 2, 2000; 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 any Liquidity
Facility, an irrevocable revolving credit agreement (or agreements) in
substantially the form of the replaced Liquidity Facility, 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 related Certificates (before
downgrading of such ratings, if any, as a result of (i) the downgrading of the
applicable Liquidity Provider or, if applicable, any guarantor of its
obligations or (ii) any guarantee of such Liquidity Provider's obligations
ceasing to be in full force and effect or becoming invalid or unenforceable or
such guarantor denying its liability thereunder, but, in each case, without
regard to the Policy) and, in the case of the Class G Liquidity Facility only,
be consented to by the Policy Provider, which consent shall not be unreasonably
withheld or delayed, in a face amount (or in an aggregate face amount) equal to
the
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<PAGE> 22
amount of interest payable on the Certificates of such Trust (at the Stated
Interest Rate for such Trust, and without regard to expected future principal
payments) on the three Regular Distribution Dates following the date of
replacement of such Liquidity Facility and issued by a Person (or Persons)
having unsecured short-term debt ratings issued by both Rating Agencies which
are equal to or higher than the Threshold Rating. Without limitation of the form
that a Replacement Liquidity Facility otherwise may have pursuant to the
preceding sentence, a Replacement Liquidity Facility for any Class of
Certificates may have a stated expiration date earlier than 15 days after the
Final Legal Distribution Date of such Class of Certificates so long as such
Replacement Liquidity Facility provides for a Non-Extension Drawing as
contemplated by Section 3.6(d) hereof.
"Replacement Liquidity Provider" means a Person (or Persons)
who issues a Replacement Liquidity Facility.
"Required Amount" means, with respect to each Liquidity
Facility, or the Cash Collateral Account, for any Class, 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 Certificates, that would be
payable on such Class of 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
Certificates on such date and without regard to expected future payments of
principal on such Class of Certificates. The Pool Balance for purposes of the
definition of Required Amount with respect to the Class G Liquidity Facility
shall, in the event of any Policy Provider Election, be deemed to be reduced by
the amount (if positive) by which (a) the then outstanding principal balance of
each Series G Equipment Note in respect of which such Policy Provider Election
has been made shall exceed (b) the amount of any Policy Drawings previously paid
by the Policy Provider in respect of principal on such Series G Equipment Note.
"Responsible Officer" means (i) with respect to the
Subordination Agent and each of the Trustees, any officer in the corporate trust
administration department of the Subordination Agent or such Trustee or any
other officer customarily performing functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with a particular subject, (ii) with respect to each Liquidity Provider, any
authorized officer of such Liquidity Provider, and (iii) with respect to the
Policy Provider, any authorized officer of the Policy Provider.
"Scheduled Payment" means, with respect to any Equipment Note,
(i) any payment of principal or interest on such Equipment Note (other than an
Overdue Scheduled Payment) due from the obligor thereon or (ii) any payment of
interest on the corresponding Class of Certificates with funds drawn under any
Liquidity Facility or the Policy, which payment represents the installment of
principal at the stated maturity of such installment of principal on such
Equipment Note, the payment of regularly scheduled interest accrued on the
unpaid principal amount of such Equipment Note, or both; provided that any
payment of principal of, premium, if any, or interest resulting from the
redemption or purchase of any Equipment Note shall not constitute a Scheduled
Payment.
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<PAGE> 23
"Scheduled Payment Date" means, with respect to any Scheduled
Payment, the date on which such Scheduled Payment is scheduled to be made.
"Section 2.4(b) Fraction" has the meaning assigned to such
term in Section 2.4(b).
"Series G Equipment Notes" means the 7.93% Series G Equipment
Notes issued pursuant to any Indenture by the related Owner Trustee or America
West, as the case may be, and authenticated by the Loan Trustee thereunder, and
any such Equipment Notes issued in exchange therefor or replacement thereof
pursuant to the terms of such Indenture.
"Series C Equipment Notes" means the 8.54% Series C Equipment
Notes issued pursuant to any Indenture by the related Owner Trustee or America
West, as the case may be, and authenticated by the Loan Trustee thereunder, and
any such Equipment Notes issued in exchange therefor or replacement thereof
pursuant to the terms of such Indenture.
"Series D Equipment Notes" means equipment notes, if any,
issued pursuant to any Indenture by the related Owner Trustee or America West,
as the case may be, and authenticated by the Loan Trustee thereunder, and
designated as "Series D" thereunder, and any such equipment notes issued in
exchange therefor or replacement thereof pursuant to the terms of such
Indenture.
"Special Distribution Date" means with respect to any Special
Payment: (i) 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, whether distributed pursuant to Section 2.4 or Section 3.3 hereof or
(ii) the date chosen by the Subordination Agent pursuant to Section 3.7(c) or
Section 3.7(e), as the case may be, for the distribution of such Special Payment
in accordance with the provisions thereof.
"Special Payment" means any payment (other than a Scheduled
Payment) in respect of, or any proceeds of, any Equipment Note or Trust
Indenture Estate or Collateral.
"Special Payments Account" means the Eligible Deposit Account
created pursuant to Section 2.2 as a sub-account to the Collection Account.
"Standard & Poor's" means Standard & Poor's Ratings Services,
a division of The McGraw-Hill Companies, Inc.
"Stated Amount" with respect to any Liquidity Facility, means
the Maximum Commitment (as defined in such Liquidity Facility) of the applicable
Liquidity Provider thereunder.
"Stated Expiration Date" has the meaning specified in Section
3.6(d).
"Stated Interest Rate" means (i) with respect to the Class G
Certificates, 7.93% per annum, and (ii) with respect to the Class C
Certificates, 8.54% per annum (such rate with respect to each Class of
Certificates, the "Initial Stated Interest Rate" for such Class), plus, in
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<PAGE> 24
each case, solely in the event no Registration Event (as defined in the
Registration Rights Agreement) occurs on or prior to the 210th day after the
Closing Date, an additional margin equal to 0.50% per annum, from and including
such 210th day (provided that any such additional margin shall cease to be in
effect from and including the earlier of (i) the date on which such Registration
Event occurs and (ii) the date on which there ceases to be any Registrable
Certificates (as defined in the Registration Rights Agreement)); provided that
if the Shelf Registration Statement (as defined in the Registration Rights
Agreement) ceases to be effective at any time during the period specified by
Section 2(b)(B) of the Registration Rights Agreement for more than 60 days,
whether or not consecutive, during any 12-month period, the Stated Interest Rate
shall be increased by 0.50% per annum from the 61st day of the applicable
12-month period such Shelf Registration Statement ceases to be effective until
such time as the Shelf Registration Statement again becomes effective (or, if
earlier, the end of the period specified by Section 2(b)(B) of the Registration
Rights Agreement). For the avoidance of doubt, the Stated Interest Rate for any
Class of Certificates shall never exceed 0.50% per annum over the initial Stated
Interest Rate for such Class of Certificates.
"Subordination Agent" has the meaning assigned to it in the
preliminary statements to this Agreement.
"Subordination Agent Incumbency Certificate" has the meaning
assigned to such term in Section 2.5(a).
"Subordination Agent Representatives" has the meaning assigned
to such term in Section 2.5(a).
"Substitute Aircraft" shall have the meaning set forth in the
Note Purchase Agreement.
"Successor Trusts" means, collectively, America West Airlines
Pass Through Trust 1999-1G-S and America West Airlines Pass Through Trust
1999-1C-S.
"Tax" and "Taxes" mean any and all taxes, levies, duties,
tariffs, imposts, and other charges of a similar 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 of America or by any state, local or
foreign government (or any subdivision or agency thereof) or other taxing
authority, including, without limitation: taxes 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; taxes in the nature of excise,
withholding, ad valorem, stamp, transfer, non-recoverable value added, taxes on
goods and services and gains taxes.
"Termination Notice" with respect to any Liquidity Facility
has the meaning assigned to such term in such Liquidity Facility.
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"Threshold Rating" means the short-term unsecured debt rating
of P-1 by Moody's and A-1 by Standard & Poor's for each Liquidity Provider (or
the Guarantor, so long as MSCS is the Class G Liquidity Provider or the Class C
Liquidity Provider, as the case may be).
"Transfer" means, with respect to any particular Trust, the
transfers contemplated by the Assignment and Assumption Agreement with respect
to such Trust.
"Treasury Regulations" means regulations, including proposed
or temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Triggering Event" means (x) the occurrence of an Indenture
Default under all of the Indentures resulting in a PTC Event of Default with
respect to the most senior Class of Certificates then Outstanding, (y) the
Acceleration of all of the outstanding Equipment Notes (provided that, with
respect to the period prior to the Delivery Period Expiry Date, the aggregate
principal balance of such Equipment Notes is in excess of $100 million) or (z)
the occurrence of an America West Bankruptcy Event.
"Trust" means either of the Class G Trust or the Class C
Trust.
"Trust Accounts" has the meaning assigned to such term in
Section 2.2(a).
"Trust Agreement" means either of the Class G Trust Agreement
or the Class C Trust Agreement.
"Trust Indenture Estate" has the meaning assigned to such term
in the Leased Aircraft Indentures.
"Trust Property" with respect to any Trust, has the meaning
set forth in the Trust Agreement for such Trust.
"Trustee" means any of the Class G Trustee or the Class C
Trustee.
"Trustee Incumbency Certificate" has the meaning assigned to
such term in Section 2.5(b).
"Trustee Representatives" has the meaning assigned to such
term in Section 2.5(b).
"Unindemnified Tax" means (i) any Tax imposed on the net
income, net worth or capital, any franchise Tax or similar doing business Tax of
the Subordination Agent (other than any such Tax imposed as a result of the
Company's assumption of the Equipment Notes pursuant to the purchase of an
Aircraft on an EBO Date or a Material Adverse Tax Event, and (ii) any
withholding Tax imposed by the United States (including, without limitation, any
withholding Tax imposed by the United States which is imposed or increased as a
result of the Subordination
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Agent's failing to deliver to the Company any certificate or document necessary
to establish that payments under this Agreement are exempt from withholding
Tax).
"Written Notice" means, from the Subordination Agent, any
Trustee, Liquidity Provider or the Policy Provider, a written instrument
executed by the Designated Representative of such Person. 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.
"WTC" has the meaning assigned to such term in the recital of
parties to this Agreement.
ARTICLE II
TRUST ACCOUNTS; CONTROLLING PARTY
SECTION 2.1. Agreement to Terms of Subordination; Payments
from Monies Received Only. (a) Each Trustee hereby acknowledges and agrees to
the terms of subordination and distribution set forth in this Agreement in
respect of each Class of Certificates and agrees to enforce such provisions and
cause all payments in respect of the Equipment Notes and the Liquidity
Facilities to be applied in accordance with the terms of this Agreement. In
addition, each Trustee hereby agrees to cause the Equipment Notes purchased by
the related Trust to be registered in the name of the Subordination Agent or its
nominee, as agent and trustee for such 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, payments under Section 9.1
of the Participation Agreements or payments under Sections 6 and 7 of the Note
Purchase Agreement, 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 of the Trustees and the
Subordination Agent hereby agrees and, as provided in each Trust Agreement, each
Certificateholder, by its acceptance of a Certificate, each Liquidity Provider,
by entering into the Liquidity Facility to which it is a party, and the Policy
Provider, by entering into the Policy Provider Agreement, has agreed to look
solely to such amounts to the extent available for distribution to it as
provided in this Agreement and to the relevant Deposits and that none of the
Trustees, Owner Trustees, Loan Trustees, Owner Participants nor the
Subordination Agent or WTC is personally liable to any of them for any amounts
payable or any liability under this Agreement, any Trust Agreement, any
Liquidity Facility, the Policy Provider Agreement or such Certificate, except
(in the case of the Subordination Agent) as expressly provided herein or (in the
case of the Trustees) as expressly provided in each Trust Agreement or (in the
case of the Owner Trustees and the Loan 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
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Eligible Deposit Account, bearing a designation clearly indicating that the
funds deposited therein are held in trust for the benefit of the Trustees, the
Certificateholders, the Liquidity Providers and the Policy Provider, (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 Trustees, the
Certificateholders, the Liquidity Providers and the Policy Provider, and (iii)
the Policy 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 Class G Trustee and the Class G Certificateholders. The Subordination Agent
shall establish and maintain the Cash Collateral 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 Collateral 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 Eligible 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 in Eligible Investments at the direction
of America West (or, if and to the extent so specified to the Subordination
Agent by America West with respect to any Liquidity Facility, the Liquidity
Provider with respect to such Liquidity Facility); provided further, however,
that following the making of a Downgrade Drawing or Non-Extension Drawing under
any initial Liquidity Facility, the Subordination Agent shall invest and
reinvest the amounts in the Cash Collateral Account with respect to such
Liquidity Facility in Eligible Investments pursuant to the written instructions
of the Liquidity Provider funding such Drawing; provided further, however, that
upon the occurrence and during the continuation of a Triggering Event, the
Subordination Agent shall invest and reinvest such amounts in accordance with
the written instructions of the Controlling Party. Unless otherwise expressly
provided in this Agreement (including, without limitation, with respect to
Investment Earnings on amounts on deposit in the Cash Collateral 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 other amounts on deposit in
the Collection Account are 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. Eligible 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
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all income thereon, except as otherwise expressly 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 Trustees, the Certificateholders, the Liquidity
Providers and the Policy Provider, 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 the Policy Provider and each Rating Agency may consent)
establish a new Collection Account, Special Payments Account, Policy Account or
Cash Collateral 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, Policy Account or Cash Collateral Account, as the case
may be. So long as WTC 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 (other
than any Scheduled Payment which by the express terms hereof is to be deposited
to the Policy Account or a Cash Collateral Account).
(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 Notes, 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 Notes, 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 Trustee, the Liquidity Providers and the
Policy Provider. The Subordination Agent shall promptly calculate the amount of
the redemption or purchase of Equipment Notes, the amount of any Overdue
Scheduled Payment or the proceeds of Equipment Notes, the Trust Indenture Estate
or Collateral, as the case may be, comprising such Special Payment under the
applicable Indenture or Indentures and shall promptly send to each Trustee a
Written Notice of such amount and the amount allocable to each Trust. Such
Written Notice shall also set the distribution date for such Special Payment (a
"Special Distribution Date"), which shall be the Business Day which immediately
follows the later to occur of (x) the 15th day after the date of such Written
Notice or (y) the date the Subordination Agent has received 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) Redemptions and Purchases of Equipment Notes. (i) 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,
purchase (including, without limitation, a purchase resulting from a sale of the
Equipment Notes permitted by Article IV hereof) or prepayment of all of the
Equipment Notes issued pursuant to an Indenture on the Special Distribution Date
for such Special Payment in the following order of priority:
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first, such amount as shall be required to pay (A) the
aggregate amount of all accrued and unpaid Liquidity Expenses and
Policy Expenses then in arrears ("past due amounts") plus (B) the
product of (x) the aggregate amount of all accrued and unpaid Liquidity
Expenses and Policy 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 Notes being
redeemed, purchased or prepaid on such Special Distribution Date and
the denominator of which is the aggregate outstanding principal amount
of all Equipment Notes (the "Section 2.4(b) Fraction")("accrued
amounts"), shall be distributed to the relevant Liquidity Providers and
the Policy Provider first in satisfaction of any past due amounts and
then in satisfaction of the accrued amounts, in each case, pro rata on
the basis of the amount of Liquidity Expenses and Policy Expenses, owed
to each Liquidity Provider and the Policy Provider;
second, such amount as shall be required to pay (i) (A) all
accrued and unpaid interest (including interest accrued and unpaid on
any Interest Drawing or any Applied Provider Advance (as defined in any
Liquidity Facility)) 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) the Section 2.4(b) Fraction (in each case
determined after application of the proceeds of any Excess Interest
Policy Drawing or other payment by the Policy Provider to the Liquidity
Provider in respect of any interest on Interest Drawings in accordance
with the provisions of Section 2.6(c)), and (ii)(A) all accrued and
unpaid interest then in arrears on any Policy Drawings made in respect
of any shortfall attributable to a failure by the Liquidity Provider to
honor an Interest Drawing (as more fully provided in the definition of
"Policy Provider Obligations") plus (B) the product of (x) the
aggregate amount of all accrued and unpaid interest on such Policy
Drawings not in arrears to such Special Distribution Date multiplied by
(y) the Section 2.4(b) Fraction, shall be distributed to the Liquidity
Providers and the Policy Provider pro rata on the basis of the amount
of such Liquidity Obligations and such Policy Provider Obligations
payable under this clause "second";
third, such amount as shall be required (A) if any Cash
Collateral Account had been previously funded as provided in Section
3.6(f), to fund such Cash Collateral Account up to its Required Amount
shall be deposited in such Cash Collateral Account, (B) if any
Liquidity Facility shall become a Downgraded Facility or a Non-Extended
Facility at a time when unreimbursed Interest Drawings under such
Liquidity Facility have reduced the Available Amount thereunder to
zero, to deposit into the related Cash Collateral Account an amount
equal to such Cash Collateral Account's Required Amount shall be
deposited in such Cash Collateral Account, and (C) if, with respect to
any particular Liquidity Facility, neither subclause (A) nor subclause
(B) of this clause "third" are applicable, to pay or reimburse the
Liquidity Provider in respect of such Liquidity Facility in an amount
equal to the amount of any unreimbursed Interest Drawings (net of any
and all payments made by the Policy Provider to the Liquidity Provider
with respect to the principal of any Interest Drawing under such
Liquidity Facility) under such Liquidity Facility shall be distributed
to such Liquidity Provider, pro rata on the basis of the amounts of all
such deficiencies and/or unreimbursed Interest Drawings in respect of
each Liquidity Provider;
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fourth, if, with respect to any particular Liquidity Facility,
any amounts are to be distributed pursuant to either subclause (A) or
(B) of clause "third" above, then the Liquidity Provider with respect
to such Liquidity Facility shall be paid the excess of (x) the
aggregate outstanding amount of unreimbursed Advances (whether or not
then due) under such Liquidity Facility over (y) the Required Amount
for the relevant Class, pro rata on the basis of such amounts in
respect of each Liquidity Provider;
fifth, such amount as shall be required to pay in full
Expected Distributions to the holders of Class G Certificates on such
Special Distribution Date shall be distributed to the Class G Trustee;
sixth, such amount as is required to pay the Policy Provider
all Policy Provider Obligations then due to the Policy Provider under
the Policy Provider Agreement (other than amounts payable pursuant to
clauses "first" and "second" of this Section 2.4 and any Excess
Reimbursement Obligations) shall be paid to the Policy Provider;
seventh, such amount as shall be required to pay in full
Expected Distributions to the holders of Class C Certificates on such
Special Distribution Date shall be distributed to the Class C Trustee;
and
eighth, such amounts as shall be required to pay any Excess
Reimbursement Obligations to the Policy Provider.
ninth, the balance, if any, of such Special Payment shall be
transferred to the Collection Account for distribution in accordance
with Section 3.2 hereof.
For the purposes of this Section 2.4(b)(i), clause (x) of the definition of
"Expected Distributions" shall be deemed to read as follows: "(x) accrued, due
and unpaid interest on such Certificates together with (without duplication)
accrued and unpaid interest on a portion of such Certificates equal to the
outstanding principal amount of the Equipment Notes held in trust and being
redeemed, purchased or prepaid (immediately prior to such redemption, purchase
or prepayment), in each case excluding interest, if any, payable with respect to
the Deposits related to such Trust".
(ii) Upon and after the occurrence of a Triggering Event
(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 of all of the Equipment Notes
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.
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(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 or expense reimbursement
received by it from the Owner Participant, the Owner Trustee or America West in
respect of any Trustee, any Liquidity Provider, any Policy Provider, any Paying
Agent, any Depositary or any Escrow Agent (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 or to the Policy
Provider under the Policy Provider Agreement) received by it from the Owner
Participant, the Owner Trustee or America West 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, the Subordination Agent shall furnish to each Liquidity
Provider, the Policy Provider and each Trustee, and from time to time thereafter
may furnish to each Liquidity Provider, the Policy Provider and each Trustee, at
the Subordination Agent's discretion, or upon any Liquidity Provider's, the
Policy Provider's or Trustee's request (which request shall not be made more
than one time in any 12-month period), a certificate (a "Subordination Agent
Incumbency Certificate") of a Responsible Officer of the Subordination Agent
certifying as to the incumbency and specimen signatures of the officers of the
Subordination Agent and the attorney-in-fact and agents of the Subordination
Agent (the "Subordination Agent Representatives") authorized to give Written
Notices on behalf of the Subordination Agent hereunder. Until each Liquidity
Provider, the Policy Provider and Trustee receives a subsequent Subordination
Agent Incumbency Certificate, it shall be entitled to rely on the last
Subordination Agent Incumbency Certificate delivered to it hereunder.
(b) With the delivery of this Agreement, each Trustee shall
furnish to the Subordination Agent, and from time to time thereafter may furnish
to the Subordination Agent, at such 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 Trustee certifying as to the incumbency and
specimen signatures of the officers of such Trustee and the attorney-in-fact and
agents of such Trustee (the "Trustee Representatives") authorized to give
Written Notices on behalf of such 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.
(c) With the delivery of this Agreement, each Liquidity
Provider and the Policy Provider shall furnish to the Subordination Agent, and
from time to time thereafter may furnish to the Subordination Agent, at such
Liquidity Provider's or Policy 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 (each a "Provider Incumbency Certificate") of
any Responsible Officer of such Liquidity Provider or Policy Provider certifying
as to the incumbency and specimen signatures of any officer, attorney-in-fact,
agent or other designated
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representative of such Liquidity Provider or Policy Provider (in each case the
"Provider Representatives" and, together with the Subordination Agent
Representatives and the Trustee Representatives, the "Designated
Representatives") authorized to give Written Notices on behalf of such Liquidity
Provider or Policy Provider hereunder. Until the Subordination Agent receives a
subsequent Provider Incumbency Certificate, it shall be entitled to rely on the
last Provider Incumbency Certificate delivered to it hereunder by the relevant
Liquidity Provider or the Policy Provider.
SECTION 2.6. Controlling Party. (a) Except as provided in
Section 2.6(c) and 9.1(b) hereof, the Trustees, the Liquidity Providers and the
Policy Provider hereby agree that, with respect to any Indenture at any given
time, the Loan Trustee thereunder will be directed by the Controlling Party.
(b) The Person who shall be the "Controlling Party" with
respect to any Indenture shall be: (x) the Policy Provider so long as the Final
Distribution on the Class G Certificates has not been made or any Policy
Provider Obligations remain outstanding, or, if any Policy Provider Default
shall have occurred and be continuing and the Final Distribution on the Class G
Certificates has not been made, the Class G Trustee; and (y) upon payment of the
Final Distributions to the Class G Certificateholders and if either no Policy
Provider Obligations remain outstanding or a Policy Provider Default has
occurred and is continuing, the Class C Trustee. For purposes of giving effect
to the foregoing provisions of this Section 2.6(a) and (b), the 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 Notes, shall exercise its
voting rights in respect of the Equipment Notes as directed by the Controlling
Party and any vote so exercised shall be binding upon the 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, at any time after 18 months
from the earliest to occur of (i) the date on which the entire Available Amount
under any Liquidity Facility shall have been drawn (for any reason other than a
Downgrade Drawing or a Non-Extension Drawing) and remain unreimbursed, (ii) the
date on which the entire amount of any Downgrade Drawing or Non-Extension
Drawing under any Liquidity Facility shall have become and remain "Applied
Downgrade Advances" or "Applied Non-Extension Advances", as the case may be,
under and as defined in such Liquidity Facility and (iii) the date on which all
Equipment Notes shall have been Accelerated (provided that, with respect to the
period prior to the Delivery Period Expiry Date, such Equipment Notes have an
aggregate outstanding principal balance of in excess of $100 million), the
Liquidity Provider with the highest outstanding amount of Liquidity Obligations
owed to it (so long as such Liquidity Provider has not defaulted in its
obligation to
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make any Drawing under any Liquidity Facility) shall have the right to elect, by
Written Notice to the Subordination Agent, the Policy Provider and each of the
Trustees, to become the Controlling Party hereunder with respect to any
Indenture at any time from and including the last day of such 18-month period;
provided, however, that if within 15 Business Days after its receipt of any such
written notice from such Liquidity Provider (A) (i) the Policy Provider then
meets the Policy Provider Threshold Rating and (ii) the Policy Provider delivers
to the Subordination Agent (with a copy to each of the Trustees and each
Liquidity Provider) (a) an amended Policy (x) extending the benefits of the
Policy to and covering in full all Drawings under each Liquidity Facility
together with accrued interest thereon (determined without regard to the
availability of funds for the payment thereof by the Subordination Agent) in
respect of the Class G Liquidity Facility and the Class C Liquidity Facility,
(y) permitting each Liquidity Provider when and as such Liquidity Obligations
become due under the applicable Liquidity Facility to demand a payment thereof
under such amended Policy directly from the Policy Provider and (z) prohibiting
any amendment or modification of such amended Policy without the prior written
consent of each Liquidity Provider and otherwise in form and substance
reasonably satisfactory to each Liquidity Provider, (b) a legal opinion to the
effect that the Policy as amended constitutes an enforceable obligation of the
Policy Provider and (c) a Ratings Confirmation issued by each Rating Agency with
respect thereto or (B) the Policy Provider pays to the Class G Liquidity
Provider and the Class C Liquidity Provider all outstanding Drawings under each
Liquidity Facility together with accrued interest thereof (as so determined) in
respect of the Class G Liquidity Facility and the Class C Liquidity Facility,
respectively, then, in either case, the Policy Provider rather than such
Liquidity Provider shall be the Controlling Party so long as no Policy Provider
Default has occurred and is continuing (in which case such Liquidity Provider,
if it so elects and if Liquidity Obligations owing to it remain outstanding, or,
if it does not so elect or if no such Liquidity Obligations remain outstanding,
the Class G Trustee, shall become the Controlling Party). In connection with the
delivery of any such amended Policy, the parties hereto agree to enter into an
amendment to this Agreement and the Subordination Agent agrees to enter into an
amendment to the Policy Provider Agreement, in each instance, to make such
changes thereto as may be necessary to give effect to the foregoing (any such
amendment to this Agreement to be subject to delivery to each of the Trustees
and the Subordination Agent of a Ratings Confirmation issued by each Rating
Agency with respect thereto and each such amendment to be in form and substance
reasonably satisfactory to each party thereto). In addition, each Liquidity
Provider agrees to request the Policy Drawings permitted by such amended Policy
and that the proceeds thereof shall reduce pro tanto the Liquidity Obligations
owing to it.
(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.
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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
Regular 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 G Certificates, the Class
G Trustee shall separately set forth the amounts to be paid in
accordance with clause "fifth" of Section 3.2 or 2.4(b), as the case
may be, hereof;
(ii) With respect to the Class C Certificates, the Class
C Trustee shall separately set forth the amounts to be paid in
accordance with clause "seventh" of Section 2.4(b) or clause "seventh"
of Section 3.2, as the case may be, hereof;
(iii) With respect to each Liquidity Facility, the
Liquidity Provider thereunder shall separately set forth the amounts to
be paid to it in accordance with clauses "first", "second", "third" and
"fourth" of Section 3.2 or 2.4(b), as the case may be, hereof;
(iv) The Policy Provider shall set forth the amounts to
be paid to it in accordance with clauses "first", "second", "sixth" and
"eighth" of Section 3.2 or 2.4(b), as the case may be, hereof; and
(v) Each Trustee shall set forth the amounts to be paid
in accordance with clause "ninth" 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 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 G Certificates, the Class G
Trustee shall separately set forth the amounts to be paid in accordance
with clauses "first" (to reimburse payments made by the Class G
Certificateholders pursuant to subclause (iv) of clause "first" of
Section 3.3 hereof) and "seventh" of Section 3.3 hereof;
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(ii) With respect to the Class C Certificates, the Class C
Trustee shall separately set forth the amounts to be paid in accordance
with clauses "first" (to reimburse payments made by the Class C
Certificateholders pursuant to subclause (iv) of clause "first" of
Section 3.3 hereof) and "ninth" of Section 3.3 hereof;
(iii) With respect to each Liquidity Facility, the Liquidity
Provider thereunder shall separately set forth the amounts to be paid
to it in accordance with subclause (iv) of clause "first" of Section
3.3 hereof, subclause (i) of clause "second" and clauses "third",
"fourth" and "fifth" of Section 3.3 hereof;
(iv) The Policy Provider shall separately set forth amounts
to be paid to it in accordance with subclauses (iii) and (iv) of clause
"first" of Section 3.3 hereof, subclause (ii) of clause "second",
subclause (ii) of clause "third", clause "eighth" and clause "tenth" of
Section 3.3 hereof; and
(v) Each Trustee shall set forth the amounts to be paid in
accordance with clause "sixth" of Section 3.3 hereof.
(c) At such time as a Trustee, a Liquidity Provider or the
Policy Provider shall have received all amounts owing to it (and, in the case of
a Trustee, the Certificateholders for which it is acting) pursuant to Section
2.4, 3.2, 3.3 or 3.7 hereof, as applicable, and, in the case of a Liquidity
Provider or the Policy Provider, its commitment or obligations under the related
Liquidity Facility or the Policy, as the case may be, 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 any Trustee, any Liquidity Provider or the Policy
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 Trustee, a Liquidity
Provider, the Policy Provider or the Subordination Agent, as applicable,
pursuant to Section 3.1(a), 3.1(b), 3.1(c) or 3.7 hereof, if made prior to 10:00
A.M. (New York City time) on any Business Day shall be effective on the date
delivered (or if delivered later on a Business Day or if delivered on a day
which is not a Business Day 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 paragraph (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
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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 "ninth" of Section 3.2 and clauses "first" through
"tenth" 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, the Policy Provider or any Trustee shall request, but in
any event automatically at the end of each calendar quarter, 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 thereof) 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 (i) all accrued
and unpaid Liquidity Expenses owed to each Liquidity Provider and (ii)
all accrued and unpaid Policy Expenses owed to the Policy Provider,
shall be distributed to each Liquidity Provider and the Policy Provider
pro rata on the basis of the amount of Liquidity Expenses and Policy
Expenses owed to each Liquidity Provider and the Policy Provider;
second, such amount as shall be required to pay (i) the
aggregate amount of interest accrued and unpaid on all Liquidity
Obligations (at the rate, or in the amount, provided in the applicable
Liquidity Facility) (determined after the application of the proceeds
of any Excess Interest Policy Drawing or other payment by the Policy
Provider to the Liquidity Provider in respect of any interest on
Interest Drawings in accordance with the provisions of Section 2.6(c))
and (ii) the aggregate amount of interest accrued and unpaid on any
Policy Drawings made in respect of any shortfall attributable to a
failure by the Liquidity Provider to honor any Interest Drawing (as
more fully provided in the definition of "Policy Provider Obligations")
shall be distributed to the Liquidity Providers and the Policy Provider
pro rata on the basis of the amount of such Liquidity Obligations and
such Policy Provider Obligations payable under this clause "second";
third, such amount as shall be required (A) if any Cash
Collateral Account had been previously funded as provided in Section
3.6(f), to fund such Cash Collateral Account up to its Required Amount
shall be deposited in such Cash Collateral Account, (B) if any
Liquidity Facility shall become a Downgraded Facility or a Non-Extended
Facility at a time when unreimbursed Interest Drawings under such
Liquidity Facility have reduced the Available Amount thereunder to
zero, to deposit into the related Cash Collateral Account an amount
equal to such Cash Collateral Account's Required Amount shall be
deposited in such Cash Collateral Account, and (C) if, with respect to
any
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particular Liquidity Facility, neither subclause (A) nor subclause (B)
of this clause "third" is applicable, to pay or reimburse the Liquidity
Provider in respect of such Liquidity Facility in an amount equal to
the amount of all Liquidity Obligations (net of any and all payments
made by the Policy Provider to the Liquidity Provider with respect to
the principal of any Interest Drawing under such Liquidity Facility)
then due under such Liquidity Facility (other than amounts payable
pursuant to clause "first" or "second" of this Section 3.2) shall be
distributed to such Liquidity Provider, pro rata on the basis of the
amounts of all such deficiencies and/or unreimbursed Liquidity
Obligations in respect of each Liquidity Provider;
fourth, if, with respect to any particular Liquidity Facility,
any amounts are to be distributed pursuant to either subclause (A) or
(B) of clause "third" above, then the Liquidity Provider with respect
to such Liquidity Facility shall be paid the excess of (x) the
aggregate outstanding amount of unreimbursed Advances (whether or not
then due) under such Liquidity Facility over (y) the Required Amount
for the relevant Class, pro rata on the basis of such amounts in
respect of each Liquidity Provider;
fifth, such amount as shall be required to pay in full
Expected Distributions to the holders of the Class G Certificates on
such Distribution Date shall be distributed to the Class G Trustee;
sixth, such amount as shall be required to pay the Policy
Provider all Policy Provider Obligations then due to the Policy
Provider under the Policy Provider Agreement (other than amounts
payable pursuant to clauses "first" and "second" of this Section 3.2
and Excess Reimbursement Obligations) shall be paid to the Policy
Provider;
seventh, such amount as shall be required to pay in full
Expected Distributions to the holders of the Class C Certificates on
such Distribution Date shall be distributed to the Class C Trustee;
eighth, such amount as shall be required to pay in full any
Excess Reimbursement Obligations shall be distributed to the Policy
Provider;
ninth, 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 Trustee pursuant
to the terms of this Agreement and the Trust Agreements, as the case
may be, shall be distributed to the Subordination Agent and such
Trustee; and
tenth, the balance, if any, of any such amount 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. Except as otherwise provided in Sections 3.1(f), 3.6(b) and
3.6(k) 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 (and, in any event, on each Interest Payment Date)
by the Subordination Agent in the following order of priority:
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first, such amount as shall be required to reimburse (i) the
Subordination Agent for any reasonable 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
Notes or any Collateral or Trust Indenture Estate, shall be applied by
the Subordination Agent in reimbursement of such costs and expenses,
(ii) each Trustee for any amounts of the nature described in clause (i)
above actually incurred by it under the applicable Trust Agreement (to
the extent not previously reimbursed), shall be distributed to such
Trustee, (iii) the Policy Provider for any amounts of the nature
described in clause (i) above actually incurred by it (to the extent
not previously reimbursed), shall be distributed to the Policy
Provider, and (iv) any Liquidity Provider, the Policy Provider or any
Certificateholder for payments, if any, made by it to the Subordination
Agent or any Trustee in respect of amounts described in clause (i)
above, shall be distributed to such Liquidity Provider, the Policy
Provider or to the applicable Trustee for the account of such
Certificateholder, in each such case, pro rata on the basis of all
amounts described in clauses (i) through (iv) above;
second, such amount remaining as shall be required to pay (i)
all accrued and unpaid Liquidity Expenses owed to each Liquidity
Provider and (ii) all accrued and unpaid Policy Expenses owed to the
Policy Provider, shall be distributed to each Liquidity Provider and
the Policy Provider pro rata on the basis of the amount of Liquidity
Expenses and Policy Expenses owed to each Liquidity Provider and the
Policy Provider;
third, such amount remaining as shall be required to pay (i)
the aggregate amount of interest accrued and unpaid on all Liquidity
Obligations (at the rate, or in the amount, provided in the applicable
Liquidity Facility) (determined after the application of the proceeds
of any Excess Interest Policy Drawing or other payment by the Policy
Provider to the Liquidity Provider in accordance with the provisions of
Section 2.6(c)) and (ii) the aggregate amount of interest accrued and
unpaid on any Policy Drawings made in respect of any shortfall
attributable to a failure by the Liquidity Provider to honor any
Interest Drawing (as more fully provided in the definition of "Policy
Provider Obligations") shall be distributed to the Liquidity Provider
and the Policy Provider pro rata on the basis of the amount of such
Liquidity Obligations and such Policy Provider Obligations payable
under this clause "third";
fourth, such amount remaining as shall be required (A) if any
Cash Collateral Account had been previously funded as provided in
Section 3.6(f), unless (i) a Performing Note Deficiency exists and a
Liquidity Event of Default shall have occurred and be continuing with
respect to the relevant Liquidity Facility or (ii) a Final Drawing
shall have occurred with respect to such Liquidity Facility, to fund
such Cash Collateral Account up to its Required Amount (less the amount
of any repayments of Interest Drawings under such Liquidity Facility
while subclause (A)(i) above is applicable) shall be deposited in such
Cash Collateral Account, (B) if any Liquidity Facility shall become a
Downgraded Facility or a Non-Extended Facility at a time when
unreimbursed Interest Drawings under such Liquidity Facility have
reduced the Available Amount thereunder to zero, unless (i) a
Performing Note Deficiency exists and a Liquidity Event of Default
shall have occurred and be continuing with respect to the relevant
Liquidity Facility or
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(ii) a Final Drawing shall have occurred with respect to such Liquidity
Facility, to deposit into the related Cash Collateral Account an amount
equal to such Cash Collateral Account's Required Amount (less the
amount of any repayments of Interest Drawings under such Liquidity
Facility while subclause (B)(i) above is applicable) shall be deposited
in such Cash Collateral Account, and (C) if, with respect to any
particular Liquidity Facility, neither subclause (A) nor subclause (B)
of this clause "fourth" are applicable, to pay in full the outstanding
amount of all Liquidity Obligations (net of any and all payments made
by the Policy Provider to the Liquidity Provider) then due under such
Liquidity Facility (other than amounts payable pursuant to clause
"second" or "third" of this Section 3.3) shall be distributed to such
Liquidity Provider, pro rata on the basis of the amounts of all such
deficiencies and/or unreimbursed Liquidity Obligations in respect of
each Liquidity Provider;
fifth, if, with respect to any particular Liquidity Facility,
any amounts are to be distributed pursuant to either subclause (A) or
(B) of clause "fourth" above, then the Liquidity Provider with respect
to such Liquidity Facility shall be paid the excess of (x) the
aggregate outstanding amount of unreimbursed Advances (whether or not
then due) under such Liquidity Facility over (y) the Required Amount
for the relevant Class (less the amount of any repayments of Interest
Drawings under such Liquidity Facility while subclause (A)(i) or
(B)(i), as the case may be, of clause "fourth" above is applicable),
pro rata on the basis of such amounts in respect of each Liquidity
Provider;
sixth, such amount as shall be required to reimburse or pay
(i) the Subordination Agent for any Tax (other than Unindemnified
Taxes), 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 Trustee for any Tax (other than
Unindemnified Taxes), expense, fee, charge, loss or any other amount
payable to such Trustee under the applicable Trust Agreements (to the
extent not previously reimbursed), shall be distributed to such
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 Trustee for
the account of such Certificateholder, in each such case, pro rata on
the basis of all amounts described in clauses (i) through (iii) above;
seventh, such amount remaining as shall be required to pay in
full Adjusted Expected Distributions on the Class G Certificates shall
be distributed to the Class G Trustee;
eighth, such amount as is required to pay to the Policy
Provider all Policy Provider Obligations then due to the Policy
Provider under the Policy Provider Agreement (other than amounts
payable pursuant to clauses "first", "second" and "third" of this
Section 3.3 and Excess Reimbursement Obligations) shall be paid to the
Policy Provider;
ninth, such amount as shall be required to pay in full
Adjusted Expected Distributions on the Class C Certificates shall be
distributed to the Class C Trustee; and
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tenth, such amount remaining as shall be required to pay in
full any Excess Reimbursement Obligations shall be distributed to the
Policy Provider.
SECTION 3.4. Other Payments. (a) 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 (i) in the
order of priority specified in Section 3.3 hereof and (ii) to the extent
received or realized at any time after the Final Distributions for each Class of
Certificates have been made, in the manner provided in clause "first" of Section
3.3 hereof.
(b) Except as otherwise provided in Section 3.3 hereof, if the
Subordination Agent receives any Scheduled Payment after the Scheduled Payment
Date relating thereto, but prior to such payment becoming an Overdue Scheduled
Payment, then the Subordination Agent shall deposit such Scheduled Payment in
the Collection Account and promptly distribute such Scheduled Payment in
accordance with the priority of distributions set forth in Section 3.2 hereof;
provided that, for the purposes of this Section 3.4(b) only, each reference in
clause "seventh" of Section 3.2 to "Distribution Date" shall be deemed to mean
the actual date of payment of such Scheduled Payment and each reference in
clause "fifth" or "sixth" of Section 3.2 to "Distribution Date" shall be deemed
to refer to such Scheduled Payment Date.
SECTION 3.5. Payments to the Trustees, Liquidity Providers and
Policy Provider. Any amounts distributed hereunder to any Liquidity Provider or
the Policy Provider shall be paid to such Liquidity Provider or Policy Provider
by wire transfer of funds to the address such Liquidity Provider or Policy
Provider shall provide to the Subordination Agent. The Subordination Agent shall
provide a Written Notice of any such transfer to the applicable Liquidity
Provider or Policy Provider, as the case may be, at the time of such transfer.
Any amounts distributed hereunder by the Subordination Agent to any Trustee
which shall not be the same institution as the Subordination Agent shall be paid
to such Trustee by wire transfer funds at the address such 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
G Certificates or the Class C Certificates (at the Stated Interest Rate for such
Class of Certificates), then, prior to 10:00 a.m. (New York City time) on 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 Certificates (and concurrently with the making of such request,
the Subordination Agent shall give notice to the Policy Provider of such
insufficiency of funds) 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 Certificates) and (ii) the Available Amount under such
Liquidity Facility, and shall pay such amount to the Trustee with respect to
such Class of 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
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respect of an Interest Drawing under the Class G Liquidity Facility and all
amounts withdrawn by the Subordination Agent from the Class G Cash Collateral
Account, and payable in each case to the Class G Trustee on behalf of the Class
G Certificateholders, shall be promptly distributed to the Class G Trustee, and
(ii) all payments received by the Subordination Agent in respect of an Interest
Drawing under the Class C Liquidity Facility and all amounts withdrawn by the
Subordination Agent from the Class C Cash Collateral Account, and payable in
each case to the Class C Trustee on behalf of the Class C Certificateholders,
shall be promptly distributed to the Class C Trustee, except that if after any
Distribution Date the Subordination Agent shall receive any amount in respect of
an Interest Drawing under the Class G Liquidity Facility or a withdrawal from
the Class G Cash Collateral Account to pay Accrued Class G Interest after such
Accrued Class G Interest has been fully paid by a Policy Drawing under the
Policy, such amounts shall be paid directly to the Policy Provider as
reimbursement of such Policy Drawing rather than to the Class G Trustee on
behalf of the Class G Certificateholders and shall constitute an Interest
Drawing under the Class G Liquidity Facility or a withdrawal from the Class G
Cash Collateral Account, as the case may be, hereunder.
(c) Downgrade Drawings. If at any time (i) the short-term
unsecured debt rating of any Liquidity Provider (or the Guarantor, with respect
to any Liquidity Facility, if MSCS is the Liquidity Provider thereunder), issued
by either Rating Agency is lower than the applicable Threshold Rating or (ii)
any Guarantee Agreement, if applicable, related to any Liquidity Facility ceases
to be in full force and effect or becomes invalid or unenforceable, or the
Guarantor denies its liability thereunder (any such occurrence, a "Guarantee
Event"), within 10 days after receiving notice of such downgrading or Guarantee
Event (but not later than the expiration date of the Liquidity Facility issued
by the downgraded Liquidity Provider (the "Downgraded Facility")), such
Liquidity Provider or America West 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 10th day (or if such 10th 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 applicable
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 such Liquidity Provider.
(d) Non-Extension Drawings. If any Liquidity Facility with
respect to any Class of 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 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, the Liquidity Provider fails
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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 and such Liquidity Facility shall not have
been replaced in accordance with Section 3.6(e) hereof, the Subordination Agent
shall, on such 25th day (or as soon as possible thereafter), in accordance with
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 a Non-Extension Drawing shall be maintained and
invested in accordance with Section 3.6(f) hereof. Notwithstanding the foregoing
provisions of this Section 3.6(d), so long as MSCS is the Liquidity Provider for
any Liquidity Facility, the Stated Expiration Date therefor shall be
automatically extended, effective on the 25th day prior to such Stated
Expiration Date (unless such Stated Expiration Date is on or after the date that
is 15 days after the Final Legal Distribution Date for the relevant Class of
Certificates), for a period of 364 days after such Stated Expiration Date
(unless the obligations of such Liquidity Provider are earlier terminated in
accordance with such Liquidity Facility) without the necessity of any act by the
Subordination Agent or such Liquidity Provider, unless such Liquidity Provider
shall advise the Subordination Agent, prior to such 25th day, that it does not
agree to such extension of the Stated Expiration Date, in which event, 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 Non-Extended
Facility, request a Non-Extension Drawing under the Non-Extended Facility of all
available and undrawn amounts thereunder.
(e) Issuance of Replacement Liquidity Facility. (i) At any
time, America West may, at its option, with cause or without cause, arrange for
a Replacement Liquidity Facility to replace any Liquidity Facility for any Class
of Certificates (including any Replacement Liquidity Facility provided pursuant
to Section 3.6(e)(ii) hereof); provided, however, that the initial Liquidity
Provider for any Liquidity Facility shall not be replaced by America West as a
Liquidity Provider with respect to such Liquidity Facility prior to the fifth
anniversary of the Closing Date unless (A) there shall have become due to such
initial Liquidity Provider, or such initial Liquidity Provider shall have
demanded, amounts pursuant to Section 3.01, 3.02 or 3.03 of any applicable
Liquidity Facility and the replacement of such initial Liquidity Provider would
reduce or eliminate the obligation to pay such amounts or America West
determines in good faith that there is a substantial likelihood that such
initial Liquidity Provider will have the right to claim any such amounts (unless
such initial Liquidity Provider waives, in writing, any right it may have to
claim such amounts), which determination shall be set forth in a certificate
delivered by America West to such initial Liquidity Provider setting forth the
basis for such determination and accompanied by an opinion of outside counsel
selected by America West and reasonably acceptable to such initial Liquidity
Provider verifying the legal conclusions, if any, of such certificate relating
to such basis, provided that, in the case of any likely claim for such amounts
based upon any proposed, or proposed change in, law, rule, regulation,
interpretation, directive, requirement, request or administrative practice, such
opinion may assume the adoption or promulgation of such proposed matter, (B) it
shall become unlawful or impossible for such initial Liquidity Provider (or its
Lending Office) to maintain or fund its LIBOR Advances as described in Section
3.10 of any Liquidity Facility, (C) any Liquidity Facility of such initial
Liquidity Provider shall become a Downgraded Facility or a Non-Extended Facility
or a Downgrade Drawing or a Non-Extension Drawing shall have occurred under any
Liquidity Facility of such initial Liquidity Provider or (D) such initial
Liquidity
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Provider shall have breached any of its payment (including, without limitation,
funding) obligations under any Liquidity Facility in respect of which it is the
Liquidity Provider. If such Replacement Liquidity Facility is provided at any
time after a Downgrade Drawing or Non-Extension Drawing has been made, all funds
on deposit in the relevant Cash Collateral Account will be returned to the
Liquidity Provider being replaced.
(ii) If any Liquidity Provider shall determine not to extend
any of its Liquidity Facilities in accordance with Section 3.6(d), then
such Liquidity Provider may, at its option, arrange for a Replacement
Liquidity Facility to replace such Liquidity Facility during the period
no earlier than 40 days and no later than 25 days prior to the then
effective Stated Expiration Date of such Liquidity Facility.
(iii) No Replacement Liquidity Facility arranged by America
West or a Liquidity Provider in accordance with clause (i) or (ii)
above or pursuant to Section 3.6(c), respectively, shall become
effective and no such Replacement Liquidity Facility shall be deemed a
"Liquidity Facility" under the Operative Agreements, unless and until
(A) each of the conditions referred to in sub-clauses (iv)(x) and (z)
below shall have been satisfied and (B) in the case of a Replacement
Liquidity Facility arranged by a Liquidity Provider under Section
3.6(e)(ii) or pursuant to Section 3.6(c), such Replacement Liquidity
Facility is acceptable to America West.
(iv) 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 any rating then in effect for
any Class of Certificates by such Rating Agency (without regard to any
downgrading of any rating of any Liquidity Provider (or its guarantor)
being replaced pursuant to Section 3.6(c) hereof and without regard to
the Policy) and, in the case of the Class G Liquidity Facility only,
the written consent of the Policy Provider (which consent shall not be
unreasonably withheld or delayed), (y) pay all Liquidity Obligations
then owing to the replaced Liquidity Provider (which payment shall be
made first from available funds in the applicable Cash Collateral
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) 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.
(v) Upon satisfaction of the conditions set forth in clauses
(iii) and (iv) of this Section 3.6(e) with respect to a Replacement
Liquidity Facility, (w) the replaced Liquidity Facility shall
terminate, (x) the Subordination Agent shall, if and to the extent so
requested by America West or the Liquidity Provider being replaced,
execute and deliver any certificate or other instrument required in
order to terminate the replaced Liquidity Facility, shall surrender the
replaced Liquidity Facility to the Liquidity Provider being replaced
and shall execute and deliver the Replacement Liquidity Facility and
any associated Fee Letter, (y) each of the parties hereto shall enter
into any amendments to this Agreement necessary to give effect to (1)
the replacement of the applicable Liquidity
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Provider with the applicable Replacement Liquidity Provider and (2) the
replacement of the applicable Liquidity Facility with the applicable
Replacement Liquidity Facility and (z) the applicable 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 Collateral Accounts; Withdrawals; Investments. In the
event the Subordination Agent shall draw all available amounts under the Class G
Liquidity Facility or the Class C Liquidity Facility pursuant to Section 3.6(c),
3.6(d) or 3.6(i) hereof, or in the event amounts are to be deposited in the
Class G Cash Collateral Account or the Class C Cash Collateral Account pursuant
to subclause (A) or (B) of clause "third" of Section 2.4(b)(i), subclause (A) or
(B) of clause "third" of Section 3.2 or subclause (A) or (B) of clause "fourth"
of Section 3.3, amounts so drawn or to be deposited, as the case may be, shall
be deposited by the Subordination Agent in the Class G Cash Collateral Account
or the Class C Cash Collateral Account, respectively. All amounts on deposit in
each Cash Collateral Account shall be invested and reinvested in Eligible
Investments in accordance with Section 2.2(b) hereof.
On each Interest Payment Date (or, in the case of any Special
Distribution Date occurring as contemplated in Section 2.4(b) hereof prior to
the occurrence of a Triggering Event (a "Special Payment Withdrawal"), on such
Special Distribution Date), Investment Earnings on amounts on deposit in each
Cash Collateral Account (or, in the case of any Special Payment Withdrawal, a
fraction of such Investment Earnings equal to the Section 2.4(b) Fraction) shall
be deposited in the Collection Account (or, in the case of any Special Payment
Withdrawal, the Special Payments Account) and applied on such Interest Payment
Date (or Special Distribution Date, as the case may be) in accordance with
Section 2.4, 3.2 or 3.3 (as applicable). The Subordination Agent shall deliver a
written statement to America West, the Policy Provider and the Liquidity
Provider one day prior to each Interest Payment Date and Special Distribution
Date setting forth the aggregate amount of Investment Earnings held in the Cash
Collateral 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 due and owing on the Class G Certificates (at the
Stated Interest Rate for the Class G Certificates) from any other
source, withdraw from the Class G Cash Collateral Account, and pay to
the Class G Trustee, 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 G Certificates) on such Class G Certificates and (y)
the amount on deposit in the Class G Cash Collateral 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 due and owing on the Class C Certificates (at the
Stated Interest Rate for the Class C Certificates) from any other
source, withdraw from the Class C Cash Collateral Account, and pay to
the Class C Trustee, 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 C Certificates) on such Class C Certificates and (y)
the amount on deposit in the Class C Cash Collateral Account;
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(iii) on each date on which the Pool Balance of the Class G
Trust shall have been reduced by payments made to the Class G
Certificateholders pursuant to Section 2.4, 3.2 or 3.3 hereof or
pursuant to Section 2.03 of the Escrow and Paying Agent Agreement for
such Class, the Subordination Agent shall withdraw from the Class G
Cash Collateral Account such amount as is necessary so that, after
giving effect to the reduction of the Pool Balance on such date and any
transfer of Investment Earnings from such Cash Collateral Account to
the Collection Account or the Special Payments Account on such date, an
amount equal to the sum of the Required Amount (with respect to the
Class G Liquidity Facility) plus (if on a Special Distribution Date not
coinciding with an Interest Payment Date) Investment Earnings on
deposit in such Cash Collateral Account will be on deposit in the Class
G Cash Collateral Account and shall first, pay such withdrawn amount to
the Class G Liquidity Provider until the Liquidity Obligations (with
respect to the Class G Certificates) owing to such Liquidity Provider
shall have been paid in full, and second, deposit any remaining
withdrawn amount in the Collection Account;
(iv) on each date on which the Pool Balance of the Class C
Trust shall have been reduced by payments made to the Class C
Certificateholders pursuant to Section 2.4, 3.2 or 3.3 hereof or
pursuant to Section 2.03 of the Escrow and Paying Agent Agreement for
such Class, the Subordination Agent shall withdraw from the Class C
Cash Collateral Account such amount as is necessary so that, after
giving effect to the reduction of the Pool Balance on such date and any
transfer of Investment Earnings from such Cash Collateral Account to
the Collection Account or the Special Payments Account on such date, an
amount equal to the sum of the Required Amount (with respect to the
Class C Liquidity Facility) plus (if such date is a Special
Distribution Date not coinciding with an Interest Payment Date)
Investment Earnings on deposit in such Cash Collateral Account will be
on deposit in the Class C Cash Collateral Account and shall first, pay
such withdrawn amount to the Class C Liquidity Provider until the
Liquidity Obligations (with respect to the Class C Certificates) owing
to such Liquidity Provider shall have been paid in full, and second,
deposit any remaining withdrawn amount in the Collection Account;
(v) if a Replacement Liquidity Facility for any Class of
Certificates shall be delivered to the Subordination Agent following
the date on which funds have been deposited into the Cash Collateral
Account for such Class of Certificates, the Subordination Agent shall
withdraw all amounts on deposit in such Cash Collateral 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 Certificates, on the date on which the Subordination
Agent shall have been notified by the Liquidity Provider for such Class
of 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 Collateral Account in respect of
such Class of Certificates and shall deposit such amount in the
Collection Account.
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(g) Reinstatement. With respect to any Interest Drawing under
the Liquidity Facility for any 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 of such
Interest Drawing so reimbursed to the applicable Liquidity Provider but not to
exceed the Stated 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 a Performing Note Deficiency exists and a Liquidity Event of
Default shall have occurred and be continuing with respect to the relevant
Liquidity Facility or (y) a Final Drawing shall have occurred with respect to
such Liquidity Facility. In the event that, with respect to any particular
Liquidity Facility, (i) funds are withdrawn from any Cash Collateral Account
pursuant to clause (i), (ii) or (iii) of Section 3.6(f) hereof or (ii) such
Liquidity Facility shall become a Downgraded Facility or a Non-Extended Facility
at a time when unreimbursed Interest Drawings under such Liquidity Facility have
reduced the Available Amount thereunder to zero, then funds received by the
Subordination Agent at any time other than (x) any time when a Liquidity Event
of Default shall have occurred and be continuing with respect to such Liquidity
Facility and a Performing Note Deficiency exists or (y) any time after a Final
Drawing shall have occurred with respect to such Liquidity Facility shall be
deposited in such Cash Collateral Account as and to the extent 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. Upon receipt from a Liquidity Provider of a
Termination Notice with respect to any Liquidity Facility, the Subordination
Agent shall, not later than the date specified in such Termination Notice, in
accordance with the terms of such Liquidity Facility, request a drawing under
such Liquidity Facility of all available and undrawn amounts thereunder (a
"Final Drawing"). Amounts drawn pursuant to a Final Drawing shall be maintained
and invested 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
Certificates is reduced as a result of a reduction in the Pool Balance with
respect to such Certificates, the Subordination Agent shall, if any such
Liquidity Facility provides for reductions of the Stated Amount of such
Liquidity Facility and if such reductions are not automatic, request such
Liquidity Provider for such Class of 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 Collateral
Accounts, in each case, in respect of interest on the Certificates of any Class,
will be distributed to the Trustee for such Class of Certificates for
distribution to Certificateholders of the related Class, notwithstanding
Sections 3.2, 3.3 and 3.6(h) hereof.
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(l) Assignment of Liquidity Facility. The Subordination Agent
agrees not to consent to the assignment by any Liquidity Provider of any of its
rights or obligations under any Liquidity Facility or any interest therein,
unless (i) America West shall have consented to such assignment, such consent to
be within America West's sole discretion, (ii) each Rating Agency shall have
provided a Ratings Confirmation in respect of such assignment and (iii) in the
case of the Class G Liquidity Facility only, the Policy Provider shall have
consented to such assignment (which consent shall not be unreasonably withheld
or delayed), and, upon the satisfaction of (i), (ii) and (iii) (if applicable),
the Subordination Agent shall give such consent.
SECTION 3.7. The Policy. (a) Interest Drawings. If on any
Regular Distribution Date (other than the Final Legal Distribution Date) after
giving effect to the subordination provisions of this Agreement and to the
application of any amounts received by the Escrow Agent in the Class G Paying
Agent Account in respect of accrued interest on the Class G Deposits, any
Drawing paid under the Class G Liquidity Facility in respect of interest due on
the Class G Certificates on such Distribution Date and any withdrawal of funds
from the Class G Cash Collateral Account in respect of such interest, the
Subordination Agent does not then have sufficient funds available for the
payment of all amounts due and owing in respect of accrued interest on the Class
G Certificates at the Stated Interest Rate for Class G Certificates ("Accrued
Class G Interest"), then, prior to 1:00 p.m. (New York City time) on such
Distribution Date, the Subordination Agent (i) shall deliver a Notice for
Payment, as provided in the Policy, to the Policy Provider or its fiscal agent,
requesting a Policy Drawing under the Policy (for payment into the Policy
Account) in an amount sufficient to enable the Subordination Agent to pay such
Accrued Class G Interest and (ii) shall pay such amount from the Policy Account
to the Class G Trustee in payment of such Accrued Class G Interest on such
Distribution Date.
(b) Proceeds Deficiency Drawing. If on any Special
Distribution Date (other than an Election Distribution Date) established by the
Subordination Agent by reason of its receipt of a Special Payment constituting
the proceeds of any Series G Equipment Note or related Trust Indenture Estate or
Collateral, as the case may be, and if on such Special Distribution Date after
giving effect to the subordination provisions of this Agreement and to the
application of any amounts received by the Escrow Agent in the Class G Paying
Agent Account in respect of accrued interest on the Class G Deposits, any
Drawing paid under the Class G Liquidity Facility in respect of interest due on
the Class G Certificates on such Distribution Date and any withdrawal of funds
in the Class G Cash Collateral Account in respect of such interest, the
Subordination Agent does not then have sufficient funds available for a
reduction in the outstanding Pool Balance of the Class G Certificates by an
amount equal to the outstanding principal amount of such Equipment Note
(determined immediately prior to the receipt of such proceeds) plus interest on
the amount of such reduction accrued at the Stated Interest Rate for the period
from the immediately preceding Regular Distribution Date to such Special
Distribution Date, then, prior to 1:00 p.m. (New York City time) on such Special
Distribution Date, the Subordination Agent (i) shall deliver a Notice for
Payment, as provided in the Policy (for payment into the Policy Account) in an
amount sufficient to enable the Subordination Agent to pay the amount of such
reduction plus such accrued interest and (ii) shall pay such amount from the
Policy Account to the Class G Trustee in payment of such reduction in the
outstanding Pool Balance of the Class G Certificates plus such accrued interest
on such Special Distribution Date.
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(c) No Proceeds Drawing. On the first Business Day that is 24
months after the last date on which any payment was made on any Series G
Equipment Note as to which there has subsequently been a failure to pay
principal or that has subsequently been Accelerated, if the Subordination Agent
has not received a Special Payment constituting proceeds from the disposition of
that Equipment Note or the related Trust Indenture Estate or Collateral, as the
case may be, then the Subordination Agent shall deliver a Notice for Payment, as
provided in the Policy, to the Policy Provider or its fiscal agent, requesting a
Policy Drawing under the Policy (for payment into the Policy Account) in an
amount equal to the then outstanding principal amount of such Equipment Note
plus accrued interest thereon at the Stated Interest Rate for the Class G
Certificates from the immediately preceding Regular Distribution Date to the
below referred to Special Distribution Date. The Subordination Agent shall
promptly, but not less than 25 days prior to such Business Day, send to the
Class G Trustee a Written Notice setting forth the non-receipt of any such
Special Payment and establishing such Business Day as the date for the
distribution of the proceeds of such Policy Drawing, which date shall constitute
a Special Distribution Date. No later than 1:00 p.m. (New York City time) on the
specified Special Distribution Date the Subordination Agent shall make the
specified Policy Drawing and upon its receipt of the proceeds thereof pay the
amount thereof from the Policy Account to the Class G Trustee in reduction of
the outstanding Pool Balance of the Class G Certificates together with such
accrued and unpaid interest thereon. For the avoidance of doubt, after the
payment in full of such amount under this Section 3.7(c), the Subordination
Agent shall have no right to make any further Policy Drawings under this Section
3.7(c) in respect of any subsequent sale or other disposition of such Equipment
Note.
Notwithstanding the foregoing, the Policy Provider has the
right at the end of any such 24-month period, so long as no Policy Provider
Default shall have occurred and be continuing, to elect (the "Policy Provider
Election") instead (a) to pay on such Special Distribution Date an amount equal
to any shortfall in the scheduled principal and interest that came due on such
Series G Equipment Note (without regard to the acceleration thereof) during such
24-month period (after giving effect to the application of funds received from
the Class G Liquidity Facility, the Class G Cash Collateral Account and any
Policy Drawings, in each case attributable to such interest), (b) thereafter, on
each Regular Distribution Date until the establishment of an Election
Distribution Date, to permit drawings under the Policy for an amount equal to
the scheduled principal and interest that were to become due on such Equipment
Note on the related payment date (without regard to any acceleration thereof)
and (c) (i) on any Business Day (which shall be a Special Distribution Date)
elected by the Policy Provider upon 20 days' Written Notice to the Subordination
Agent and the Class G Trustee to request the Subordination Agent, or (ii)
following either the occurrence and continuation of a Policy Provider Default or
the sale or other disposition of such Equipment Note or the related Trust
Indenture Estate or the Collateral, on any Business Day (which shall be a
Special Distribution Date) specified by the Subordination Agent upon 20 days'
Written Notice to the Class G Trustee (each such Business Day in the case of
clauses (i) and (ii) an "Election Distribution Date") to permit the
Subordination Agent, in each case, to make a Policy Drawing for an amount equal
to the then outstanding principal balance of such Equipment Note less any Policy
Drawings previously paid by the Policy Provider in respect of principal of such
Equipment Note and accrued interest on such amounts at the Stated Interest Rate
for the Class G Certificates from the immediately preceding Regular Distribution
Date to such Election Distribution Date (after giving effect to the application
of funds, if any, received from the Class G Liquidity Facility and the
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Class G Cash Collateral Account attributable to such interest) and without
derogation of the Policy Provider's continuing obligations for all previous
Policy Drawings that remain unpaid in respect of such Equipment Note. The
Subordination Agent shall make each such drawing referred to in this paragraph
under the Policy (for payment into the Policy Account) no later than 1:00 p.m.
(New York City time) on each such date and upon its receipt of the proceeds
thereof pay the amount thereof from the Policy Account to the Class G Trustee in
reduction of the outstanding Pool Balance of the Class G Certificates together
with such accrued and unpaid interest thereon.
In addition, regardless of whether or not the Policy Provider
makes a Policy Provider Election, the Policy Provider shall, at the end of such
24-month period, provide to the Trustees and each Liquidity Provider to the
extent not previously provided (a) an amended Policy (x) providing for the
payment to such Liquidity Provider of interest accruing on all outstanding
Drawings under such Liquidity Provider's Liquidity Facility together with
accrued interest thereon in respect of each respective Liquidity Facility from
and after the end of such 24-month period, (y) permitting each Liquidity
Provider when and as such interest becomes due under the applicable Liquidity
Facility to demand payment thereof directly from the Policy Provider under such
amended Policy (each such demand, an "Excess Interest Policy Drawing") and (z)
prohibiting any amendment or modification of such amended Policy without the
prior written consent of each Liquidity Provider and (b) a legal opinion to the
effect that the Policy as amended constitutes an enforceable obligation of the
Policy Provider. Each Liquidity Provider agrees to make such Excess Interest
Policy Drawings and that the proceeds thereof shall reduce pro tanto the
Liquidity Obligations owing to it.
(d) Final Policy Drawing. If on the Final Legal Distribution
Date of the Class G Certificates after giving effect to the subordination
provisions of this Agreement and to the application of any amounts received by
the Escrow Agent in the Class G Paying Agent Account in respect of accrued
interest on the Class G Deposits, any Drawing paid under the Class G Liquidity
Facility in respect of interest included in the Final Distributions and any
withdrawal of funds in the Class G Cash Collateral Account in respect of
interest included in the Final Distributions, the Subordination Agent does not
then have sufficient funds available on such date for the payment in full of the
Final Distributions (calculated as at such date but excluding any accrued and
unpaid premium) on the Class G Certificates then, prior to 1:00 p.m. (New York
City time) on such date the Subordination Agent shall: (i) deliver a Notice for
Payment, as provided in the Policy, to the Policy Provider or its fiscal agent,
requesting a Policy Drawing under the Policy (for payment into the Policy
Account) in an amount equal to the minimum amount sufficient to enable the
Subordination Agent to pay the Final Distributions (calculated as at such date
but excluding any accrued and unpaid premium) on the Class G Certificates, and
(ii) shall pay such amount from the Policy Account to the Class G Trustee in
payment of such amount on such date.
(e) Avoidance Drawings. If at any time the Subordination Agent
shall have actual knowledge of the issuance of any Order, the Subordination
Agent shall promptly give notice thereof to each Trustee, the Liquidity
Providers and the Policy Provider. The Subordination Agent shall thereupon
calculate the relevant Preference Amounts resulting therefrom and shall
promptly: (a) send to the Class G Trustee a Written Notice of such amount and
(b) prior to the expiration of the Policy, deliver to the Policy Provider or its
fiscal agent a Notice of Avoided Payment, together with a copy of the
documentation required by the Policy
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with respect thereto, requesting a Policy Drawing (for payment to the receiver,
conservator, debtor-in-possession or trustee in bankruptcy and/or to the
Subordination Agent for deposit into the Policy Account, as applicable) in an
amount equal to the amount of relevant Preference Amount. To the extent that any
portion of such Preference Amount is to be paid to the Subordination Agent, such
Written Notice shall also set the date for the distribution of such portion of
the proceeds of such Policy Drawing which date shall constitute a Special
Distribution Date and shall be the earlier of the third Business Day that
immediately precedes the expiration of the Policy and the Business Day that
immediately follows the 25th day after the date of such Written Notice. No later
than 1:00 p.m. (New York City time) on the specified Special Distribution Date,
the Subordination Agent shall make the specified Policy Drawing upon its receipt
of the proceeds thereof and pay the amount thereof from the Payment Account to
the Class G Trustee in reinstatement of the Preference Amount.
(f) Application of Policy Drawings. Notwithstanding anything
to the contrary contained in this Agreement (including, without limitation,
Sections 2.4, 3.2 and 3.3 hereof), all payments received by the Subordination
Agent in respect of a Policy Drawing (including, without limitation, that
portion, if any, of the proceeds of a Policy Drawing for any Preference Amount
that is to be paid to the Subordination Agent and not to any receiver,
conservator, debtor-in-possession or trustee in bankruptcy as provided in the
Policy) shall be promptly paid from the Payment Account to the Class G Trustee
for distribution to the Class G Certificateholders.
(g) Limitation to Outstanding Pool Balance. Notwithstanding
anything to the contrary in this Section 3.7, at no time shall the Subordination
Agent make any Policy Drawing under clause (b), (c) or (d) of this Section 3.7
in excess of the then outstanding Pool Balance of the Class G Certificates and
accrued and unpaid interest at the Stated Interest Rate on the Class G
Certificates. Nothing contained in this Intercreditor Agreement shall alter or
amend the liabilities, obligations, requirements or procedures of the Policy
Provider under the Policy and the Policy Provider shall not be obligated to make
payment except at the times and in the amounts and under the circumstances
expressly set forth in the Policy.
(h) Resubmission of Notice for Payment. If the Policy Provider
at any time informs the Subordination Agent in accordance with the Policy that a
Notice for Payment or Notice of Avoided Payment submitted by the Subordination
Agent does not meet the requirements of the Policy, the Subordination Agent
shall, as promptly as possible after being so informed, submit to the Policy
Provider an amended and revised Notice for Payment or Notice of Avoided Payment,
as the case may be, and shall pay to the Class G Trustee out of the Policy
Account the amount received pursuant to such amended or revised Notice for
Payment or Notice of Avoided Payment, as the case may be, when received.
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 Default
under any Indenture, the Controlling Party shall direct the Subordination Agent,
which in turn shall direct the Loan
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Trustee under such Indenture, in the exercise of remedies available to the
holders of the Equipment Notes issued pursuant to such Indenture. Subject to the
Owner Trustees' and the Owner Participants' rights, if any, set forth in the
Indentures with respect to Leased Aircraft to purchase the Equipment Notes and
the provisions of the next paragraph, if the Equipment Notes issued pursuant to
any Indenture have been Accelerated following an Indenture 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 Notes 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, if any, set forth in the Indentures with respect to Leased
Aircraft to purchase the Equipment Notes, and notwithstanding the
foregoing, so long as any Certificates remain Outstanding, during the
period ending on the date which is nine months after the earlier of (x)
the Acceleration of the Equipment Notes issued pursuant to any
Indenture or (y) the occurrence of an America West Bankruptcy Event,
without the consent of each Trustee, (A) no Aircraft subject to the
Lien of such Indenture or such Equipment Notes may be sold if the net
proceeds from such sale would be less than the Minimum Sale Price for
such Aircraft or such Equipment Notes, and (B) with respect to any
Leased Aircraft, the amount and payment dates of rentals payable by
America West 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 America West under such Lease before giving
effect to such adjustment, in each case, using the weighted average
interest rate of the Equipment Notes 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
Default (and before the occurrence of a Triggering Event) commission
LTV Appraisals with respect to the Aircraft subject to such Indenture.
(iv) After a Triggering Event occurs and any Equipment Note
becomes a Non-Performing Equipment Note, the Subordination Agent shall
obtain Appraisals with respect to all of the Aircraft (the "LTV
Appraisals") 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 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 Notes. In addition, in lieu of any sale, assignment,
contract to sell or other disposition, the Controlling Party may maintain or
cause the Subordination Agent to maintain possession of such Equipment Notes and
continue to apply monies received in respect of such Equipment Notes 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, subject to
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the terms and conditions of the related Indenture, instruct the Loan 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 under any applicable
law.
SECTION 4.2. Remedies Cumulative. Each and every right, power
and remedy given to the Trustees, the Liquidity Providers, the Policy Provider,
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 Trustee, any Liquidity Provider,
the Policy Provider, 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 Trustee, any Liquidity Provider, the Policy Provider, 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 Proceeding, 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 to Receive Payments
Not to Be Impaired. Anything in this Agreement to the contrary notwithstanding
but subject to each Trust Agreement, the right of any Certificateholder,
Liquidity Provider or the Policy Provider, respectively, to receive payments
hereunder (including without limitation 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, Liquidity Provider or Policy
Provider, respectively.
SECTION 4.5. Undertaking for Costs. In any Proceeding for the
enforcement of any right or remedy under this Agreement or in any Proceeding
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, the Policy Provider or a Trustee or a suit by
Certificateholders holding more than 10% of the original principal amount of any
Class of Certificates.
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ARTICLE V
DUTIES OF THE SUBORDINATION AGENT;
AGREEMENTS OF TRUSTEES, ETC.
SECTION 5.1. Notice of Indenture Default or Triggering Event.
(a) In the event the Subordination Agent shall have actual knowledge of the
occurrence of an Indenture 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 or courier to the Rating
Agencies, the Liquidity Providers, the Policy Provider and the Trustees notice
of such Indenture Default or Triggering Event, unless such Indenture Default or
Triggering Event shall have been cured or waived by the Controlling Party. 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 Default or Triggering Event unless notified in
writing by one or more Trustees, one or more Liquidity Providers, or the Policy
Provider or one or more Certificateholders.
(b) Other Notices. The Subordination Agent will furnish to
each Liquidity Provider, the Policy Provider and each 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 Notes or otherwise
in its capacity as Subordination Agent to the extent the same shall not have
been otherwise directly distributed to such Liquidity Provider, Policy Provider
or 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
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
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
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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 Trustees.
If any Liquidity Provider or any Trustee has notice of an Indenture Default or a
Triggering Event, such Person shall promptly give notice thereof to all other
Liquidity Providers, the Policy Provider and 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 of the Class G Trustee and the Class C Trustee hereby designates and
appoints the Subordination Agent as the agent and trustee of such Trustee under
the applicable Liquidity Facility (and, in the case of the Class G Trustee, the
Policy Provider Agreement) and authorizes the Subordination Agent to enter into
the applicable Liquidity Facility (and, in the case of the Class G Trustee, the
Policy Provider Agreement) as agent and trustee for such Trustee. Each of the
Liquidity Providers, the Policy Provider and the Trustees hereby designates and
appoints the Subordination Agent as the Subordination Agent under this
Agreement. WTC 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 gross negligence (or ordinary negligence in the handling
of funds), (b) as provided in Sections 2.2 and 5.3 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 Trustees, the Liquidity Providers and the Policy
Provider make no representation or warranty hereunder whatsoever.
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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 Trustee or any Liquidity Provider
as provided in Articles II and III hereof or deposited into one or more Trust
Accounts 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 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 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, the Policy Provider or the 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, Policy Provider or 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, the Policy
Provider and each of the 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,
the Policy Providers and Trustees 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 reimbursement for reasonable
expenses and disbursements, except with respect to any Unindemnified Taxes
incurred by the Subordination Agent in connection with the transactions
contemplated by this Agreement 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 (other than any
Unindemnified Taxes), to the extent that such compensation shall not be paid by
others. The Subordination Agent agrees that it shall have no right against any
Trustee, Liquidity Provider or the Policy
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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 or 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
of America, 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 Notes,
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 Notes, monies and other property. All such Equipment
Notes, 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
Section 9.1 of the Participation Agreements and Section 6 of the Note Purchase
Agreement. The indemnities contained in such Sections of such agreements shall
survive the resignation or removal of the Subordination Agent and the
termination of this Agreement.
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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
each Trustee, each Liquidity Provider and the Policy Provider. The Controlling
Party may remove the Subordination Agent for cause by so notifying the
Subordination Agent and may appoint a successor Subordination Agent. The
Controlling Party 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 shall promptly appoint a successor
Subordination Agent.
A successor Subordination Agent shall deliver (x) a written
acceptance of its appointment as Subordination Agent hereunder to the retiring
Subordination Agent and (y) a written assumption of its obligations hereunder
and under each Liquidity Facility and the Policy Provider Agreement to each
party hereto, 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 mail a notice of
its succession to the Liquidity Providers, the Policy Provider and the 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 one or more of the Trustees 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 Trustees, one or more of
the Liquidity Providers or the Policy Provider 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
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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 Trustee
(acting, except in the case of any amendment pursuant to Section 3.6(e)(v)(y)
hereof with respect to any Replacement Liquidity Facility, or any amendment
contemplated by the last sentence of this Section 9.1(a) or 9.1(c), with the
consent of holders of Certificates of the related Class evidencing interests in
the related Trust aggregating not less than a majority in interest in such Trust
or as otherwise authorized pursuant to the relevant Trust Agreement), the
Subordination Agent, each Liquidity Provider and the Policy Provider; provided,
however, that this Agreement may be supplemented, amended or modified without
the consent of (x) any Trustee if such supplement, amendment or modification (i)
is in accordance with Section 9.1(c) hereof or (ii) cures an ambiguity or
inconsistency or does not materially adversely affect such Trustee or the
holders of the related Class of Certificates and (y) any Liquidity Provider or
the Policy Provider if such supplement, amendment or modification is in
accordance with Section 9.1(c) hereof; provided further, however, that, if such
supplement, amendment or modification (A) would (x) directly or indirectly
modify or supersede, or otherwise conflict with, Section 2.2(b), Section 3.6(e),
Section 3.6(f), Section 3.6(l), the last sentence of this Section 9.1(a),
Section 9.1(c), the second sentence of Section 10.6 or this proviso
(collectively, the "America West Provisions") or (y) otherwise adversely affect
the interests of a potential Replacement Liquidity Provider or of America West
with respect to its ability to replace any Liquidity Facility or with respect to
its payment obligations under any Operative Agreement or (B) is made pursuant to
the last sentence of this Section 9.1(a) or pursuant to Section 9.1(c), then
such supplement, amendment or modification shall not be effective without the
additional written consent of America West. Notwithstanding the foregoing,
without the consent of each Certificateholder and each Liquidity Provider and
the Policy Provider, no supplement, amendment or modification of this Agreement
may (i) reduce the percentage of the interest in any Trust evidenced by the
Certificates issued by such Trust necessary to consent to modify or amend any
provision of this Agreement or to waive compliance therewith or (ii) except as
provided in Section 9.1(c) or the last sentence of this Section 9.1(a), 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 Notes or pursuant to the
Liquidity Facilities or the Policy. Nothing contained in this Section shall
require the consent of a Trustee at any time following the payment of Final
Distributions with respect to the related Class of Certificates. If the
Replacement Liquidity Facility for any Liquidity Facility in accordance with
Section 3.6(e) hereof is to be comprised of more than one instrument as
contemplated by the definition of the term "Replacement Liquidity Facility",
then each of the parties hereto agrees to amend this Agreement to incorporate
appropriate mechanics for multiple Liquidity Facilities for an individual Trust.
(b) In the event that the Subordination Agent, as the
registered holder of any Equipment Notes, receives a request for its consent to
any amendment, modification, consent or waiver under such Equipment Notes, the
Indenture pursuant to which such Equipment Notes
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were issued, or the related Lease, Participation Agreement or other related
document, (i) if no Indenture Default shall have occurred and be continuing with
respect to such Indenture, the Subordination Agent shall request directions from
the Trustee of the Trust which holds each series of such Equipment Notes and
shall vote or consent in accordance with the directions of such Trustee except
that so long as the Final Distribution on the Class G Certificates has not been
made or any Policy Provider Obligations remain outstanding and no Policy
Provider Default shall have occurred and be continuing, the Subordination Agent
shall request directions from the Policy Provider rather than the Class G
Trustee with respect to the Series G Equipment Notes held in the Class G Trust,
and (ii) if any Indenture Default (which, in the case of any Indenture
pertaining to a Leased Aircraft, has not been cured by the applicable Owner
Trustee or the applicable Owner Participant, if applicable, 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, subject to Sections 4.1 and 4.4 hereof;
provided that no such amendment, modification or waiver shall, without the
consent of each Liquidity Provider and the Policy Provider, reduce the amount of
rent, supplemental rent or stipulated loss values payable by America West under
any Lease or reduce the amount of principal or interest payable by America West
under any Equipment Note issued under any Indenture in respect of an Owned
Aircraft.
(c) If with respect to any Aircraft Class D Certificates are
issued, this Agreement shall be amended by written agreement of America West and
the Subordination Agent to provide for the subordination of such Class D
Certificates to the Class G Certificates and the Class C Certificates
substantially in the same manner as the Class C Certificates are subordinated
hereunder to the Class G Certificates. No such amendment shall materially
adversely affect any Trustee, the Liquidity Provider or the Policy Provider. The
amendment to this Agreement to give effect to the issuance of any Class C
Certificates shall include, without limitation:
(i) the trustee of the Class D Trust shall be added as a party
to this Agreement;
(ii) the definitions of "Cash Collateral Account,"
"Certificate," "Class," "Equipment Notes," "Final Legal Distribution
Date," "Liquidity Facilities," "Liquidity Provider," "LTV Ratio,"
"Stated Interest Rate," "Trust," "Trust Agreement," "Controlling Party"
shall be revised, as appropriate, to reflect the issuance of the Class
D Certificates (and the subordination thereof); and
(iii) the provisions of this Agreement governing payments with
respect to Certificates and related notices, including, without
limitation, Sections 2.4, 3.1, 3.2, 3.3 and 3.6(e), shall be revised to
provide for distributions on the Class D Certificates after payment of
all relevant distributions on the Class C Certificates.
If, with respect to any Aircraft, Series D Equipment Notes are
issued to any Person other than the Class D Trust, this Agreement shall be
amended by written agreement of America West and the Subordination Agent to (i)
provide for each holder of a Series D Equipment Note to be bound by the
provisions of Section 2.6(a) hereof so that the Controlling Party shall, among
other things, be entitled to direct the Loan Trustee as provided therein (and
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such Series D Equipment Notes shall make effective provision therefor so as to
bind each holder thereof to such provisions of Section 2.6(a) hereof) and (ii)
to revise the definitions of "Controlling Party" and "Equipment Notes", as
appropriate, to reflect the issuance of the Series D Equipment Notes (and the
prior rights, as against the holders of such Series D Equipment Notes, of the
Policy Provider, Class G Trustee and the Class C Trustee to be such "Controlling
Party"). No such amendment shall materially adversely affect any Trustee,
Liquidity Provider or the Policy Provider.
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 adversely affects any right, duty, immunity or indemnity with respect to it
under this Agreement, any Liquidity Facility or the Policy, 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, consent or supplement hereto pursuant to the
provisions hereof, this Agreement shall be and be deemed to be and shall 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 and shall 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 at its cost, 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
Certificates and the payment in full of all Liquidity Obligations to the
Liquidity Providers and all Policy Provider Obligations to the Policy Provider
and provided that there shall then be no other amounts due to the
Certificateholders, the Trustees, the Liquidity Providers, the Policy Provider
and the Subordination Agent hereunder or under the Trust Agreements, and that
the commitment of the (i) Liquidity Providers under the Liquidity Facilities and
(ii) Policy Provider under the Policy 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.
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SECTION 10.2. Intercreditor Agreement for Benefit of Trustees,
Liquidity Providers, the Policy Provider and Subordination Agent. Subject to the
second sentence of Section 10.6 and the provisions of Sections 4.4 and 9.1,
nothing in this Agreement, whether express or implied, shall be construed to
give to any Person other than the Trustees, the Liquidity Providers, the Policy
Provider 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 confirmed telecopy and
(i) if to the Subordination Agent, addressed to at its
office at:
WILMINGTON TRUST COMPANY
Rodney Square North
1100 N. Market Street
Wilmington, DE 19890-0001
Attention: Corporate Trust Administration
Telecopy: (302) 651-8882
(ii) if to any Trustee, addressed to it at its office at:
WILMINGTON TRUST COMPANY
Rodney Square North
1100 N. Market Street
Wilmington, DE 19890-0001
Attention: Corporate Trust Administration
Telecopy: (302) 651-8882
(iii) if to the initial Liquidity Provider, addressed to it
at its office at:
MORGAN STANLEY CAPITAL SERVICES, INC.
1585 Broadway
New York, NY 10036
Attention: Keith Amburgey
Telephone: (212) 761-2504
Telecopy: (212) 761-0580
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(iv) if to the initial Policy Provider, addressed to it at
its office at:
Ambac Assurance Corporation
One State Street Plaza
New York, New York 10004
Attention: Surveillance Department
Telephone: (212) 668-0340
Telecopy: (212) 363-1459
with a copy to:
Attention: General Counsel - Urgent
Telecopy: (212) 208-3558
Whenever any notice in writing is required to be given by any Trustee, Liquidity
Provider, Policy 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 unless received outside of business hours, in which case on
the open of business on the next Business Day. A copy of any notice given by the
Trustee, the Liquidity Provider or the Subordination Agent shall be given to the
Policy Provider; provided that the failure to do so shall not impair the
validity of any such notice or the Policy Provider's obligations hereunder and
under the Policy. 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. In addition, the America West Provisions shall inure to the benefit of
America West and its successors and assigns, and (without limitation of the
foregoing) America West is hereby constituted, and agreed to be, an express
third party beneficiary of the America West Provisions. Upon the occurrence of
the Transfers contemplated by the Assignment and Assumption Agreements, the
Trustee of each Class shall (without any further act) be deemed to have
transferred all of its rights, title and interest in and to this Agreement to
the trustee of the Successor Trust of the same Class and, thereafter, the
trustee of each Successor Trust shall be deemed to be the "Trustee" of such
Successor Trust with the rights and obligations of a "Trustee" hereunder and
under the other
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Operative Agreements and each reference to a Trust of any Class herein shall be
deemed a reference to the Successor Trust of such Class.
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 and the Policy Provider, on the one hand, and the Trustees and the
Certificateholders, on the other hand, and as among the Trustees, 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 (i) Liquidity Providers of all Liquidity
Obligations then due and payable and (ii) Policy Provider of all Policy Provider
Obligations then due and payable, any party hereto shall have received any
payment or distribution in respect of Equipment Notes 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 Trustee, any Liquidity Provider, the Policy
Provider or the Subordination Agent receives any payment in respect of any
obligations owing hereunder (or, in the case of the Liquidity Providers or the
Policy Provider, in respect of the Liquidity Obligations or the Policy Provider
Obligations, as the case may be), 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 or the Policy Provider, such Liquidity
Obligations or Policy Provider Obligations, as the case may be) intended to be
satisfied shall be revived and continue in full force and effect as if such
payment had not been received.
(d) The Trustees (on behalf of themselves and the holders of
Certificates), the Liquidity Providers, the Policy Provider 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 Trustees and the holders of Certificates are secured
by certain assets and the Liquidity Obligations and Policy Provider Obligations
may not be so secured. The Trustees expressly agree (on behalf of themselves and
the holders of Certificates) not to assert priority over the holders of
Liquidity Obligations or Policy Provider Obligations (except as specifically set
forth in Sections 2.4, 3.2 or 3.3) due to their status as secured creditors in
any bankruptcy, insolvency or other legal proceeding.
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(e) Each of the Trustees (on behalf of themselves and the
holders of Certificates), the Liquidity Providers, the Policy Provider 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 and the Policy Provider, the Liquidity Obligations or the
Policy Provider Obligations, as the case may be,
(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 and the Policy Provider, any of
the Liquidity Obligations or the Policy Provider Obligations, as the
case may be,
(iii) renew, extend, increase, alter or exchange any amounts
owing to it hereunder, including, in the case of the Liquidity
Providers and the Policy Provider, any of the Liquidity Obligations or
the Policy Provider Obligations, as the case may be, 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 Trustees,
the Liquidity Providers, the Policy Provider 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 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;
61
<PAGE> 65
(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 of 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.
62
<PAGE> 66
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.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Trustee
for each of the Trusts
By /s/ James P. Lawler
-----------------------------------------
Name: James P. Lawler
Title: Vice President
MORGAN STANLEY CAPITAL
SERVICES, INC., as Class
G Liquidity Provider and
Class C Liquidity
Provider
By /s/ Elinor L. Hoover
-----------------------------------------
Name: Elinor L. Hoover
Title: Vice President
AMBAC ASSURANCE CORPORATION,
as Policy Provider
By /s/ David B. Nemschoff
-----------------------------------------
Name: David B. Nemschoff
Title: Vice President Financial Institutions
WILMINGTON TRUST COMPANY, not in its
individual capacity except as expressly
set forth herein but solely as
Subordination Agent and trustee
By /s/ James P. Lawler
-----------------------------------------
Name: James P. Lawler
Title: Vice President
<PAGE> 1
EXHIBIT 4.10
Exchange and Registration Rights Agreement
Dated as of September 21, 1999
among
America West Airlines, Inc.,
Wilmington Trust Company,
not in its individual capacity but solely
as Trustee under
America West Airlines
Pass Through Trust, Series 1999-1G-O
America West Airlines
Pass Through Trust, Series 1999-1C-O
and
Morgan Stanley & Co. Incorporated,
Donaldson, Lufkin & Jenrette
Securities Corporation,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
and
Salomon Smith Barney Inc.
<PAGE> 2
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT (the
"Agreement") is made and entered into as of September 21,1999, among America
West Airlines, Inc., a Delaware corporation (the "Company"), Wilmington Trust
Company, not in its individual capacity but solely as trustee under each of the
Original Trusts (as defined below), Morgan Stanley & Co. Incorporated,
Donaldson, Lufkin & Jenrette Securities Corporation, Merrill Lynch, Pierce,
Fenner & Smith Incorporated, and Salomon Smith Barney Inc. (collectively, the
"Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement
dated September 14, 1999 among the Company and the Initial Purchasers (the
"Purchase Agreement"), which provides that the Trustee will issue and sell
$233,668,000 principal amount of the pass through certificates of the Class G
Trust (as defined below) and $20,158,000 principal amount of the pass through
certificates of the Class C Trust (as defined below) (the Class G Trust and
Class C Trust together, the "Original Trusts" and such pass through certificates
of the Original Trusts, together, the "Initial Certificates"), in each case with
Escrow Receipts (as defined below) attached thereto. On the Transfer Date (as
defined below), and after satisfaction of the conditions set forth in the Pass
Through Trust Agreements (as defined below), each of the Original Trusts will
transfer and assign all of its assets and rights to a newly-created successor
trust with substantially identical terms (together, the "Successor Trusts") and
the Initial Certificates will be deemed for all purposes of the Original Trusts
and the Successor Trusts to be certificates representing fractional undivided
interests in the Successor Trusts and their respective trust properties. In
order to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide to the Initial Purchasers and their direct and
indirect transferees the exchange and registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. The definitions set forth in this Agreement
shall apply equally to both singular and plural forms of the terms defined. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended
from time to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Agreement" shall have the meaning set forth in the preamble
of this Agreement.
"Business Day" shall mean any day on which the New York Stock
Exchange, Inc. is open for trading and banks in The City of New York
are open for business; references to "day" shall mean a calendar day.
"Class G Trust" shall mean the America West Airlines Pass
Through Trust, Series 1999-1G-O.
<PAGE> 3
2
"Class C Trust" shall mean the America West Airlines Pass
Through Trust, Series 1999-1C-O.
"Closing Date" shall mean the Closing Date as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble of
this Agreement and shall include the Company's successors.
"Depositary Agreement" shall have the meaning set forth in the
Purchase Agreement.
"DTC" shall mean the Depository Trust Company or any other
depositary appointed by the Company; provided, however, that any such
depositary must have an address in the Borough of Manhattan, in The
City of New York.
"Equipment Notes" shall mean the equipment notes that are the
property of the Trusts.
"Escrow Receipts" shall have the meaning set forth in the
Purchase Agreement.
"Exchange Certificates" shall mean the pass through
certificates issued under the Pass Through Trust Agreements or the
Successor Pass Through Trust Agreements, as the case may be, and
otherwise containing terms identical in all material respects to the
Initial Certificates (except that, with respect to the Exchange
Certificates of each Trust, (i) interest thereon shall accrue as set
forth in Section 2(a) hereof, (ii) the transfer restrictions thereon
shall be eliminated, (iii) certain provisions relating to an increase
in the stated rate of interest thereon shall be eliminated and (iv)
such Exchange Certificates shall initially be available only in
book-entry form) to be offered to Holders of Initial Certificates in
exchange for Initial Certificates pursuant to the Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the Company
of Exchange Certificates for Registrable Certificates pursuant to
Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under
the 1933 Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean a
Registration Statement on Form S-4 (or, if applicable, on another
appropriate form) filed with the SEC pursuant to Section 2(a) of this
Agreement, and all amendments and supplements to such Registration
Statement, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
<PAGE> 4
3
"Holders" shall mean each of the Initial Purchasers, for so
long as they own any Registrable Certificates, and each of their
successors, assigns and direct and indirect transferees who become
registered owners of Registrable Certificates.
"Initial Certificates" has the meaning set forth in the
preamble of this Agreement.
"Initial Purchasers" shall have the meaning set forth in the
preamble of this Agreement.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Certificates;
provided that whenever the consent or approval of Holders of a
specified percentage of Registrable Certificates is required hereunder,
Registrable Certificates held by the Company or any of its "affiliates"
(as such term is defined in Rule 405 under the 1933 Act) (other than
the Initial Purchasers or subsequent holders of Registrable
Certificates if such subsequent holders are deemed to be affiliates
solely by reason of their holding of such Registrable Certificates)
shall be disregarded in determining whether such consent or approval
was given by the Holders of such required percentage or amount.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Original Trusts" shall have the meaning set forth in the
preamble of this Agreement.
"Participating Broker-Dealer" shall have the meaning set forth
in Section 3(f) of this Agreement.
"Pass Through Trust Agreements" shall mean each of the Pass
Through Trust Agreements relating to the Initial Certificates between
the Company and each Trustee, as may be amended from time to time in
accordance with the terms thereof.
"Person" shall mean an individual, partnership, corporation,
trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Certificates covered
by a Shelf Registration Statement, and by all other amendments and
supplements to a prospectus, including post-effective amendments, and
in each case including all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble of this Agreement.
<PAGE> 5
4
"Registrable Certificates" shall mean the Initial
Certificates; provided, however, that the Initial Certificates shall
cease to be Registrable Certificates when (i) a Shelf Registration
Statement with respect to such Initial Certificates shall have been
declared effective under the 1933 Act and such Initial Certificates
shall have been disposed of pursuant to such Shelf Registration
Statement, (ii) such Initial Certificates shall have been sold to the
public pursuant to Rule 144 (or any similar provision then in force,
but not Rule 144A) under the 1933 Act or may then be sold to the public
pursuant to paragraph (k) of said Rule 144 (or any similar provision
then in force) by Holders other than "affiliates" or former
"affiliates" (as such term is defined in paragraph (a) of Rule 144) of
the Company, (iii) such Initial Certificates shall have ceased to be
outstanding or (iv) such Initial Certificates have been exchanged for
Exchange Certificates upon consummation of the Exchange Offer.
"Registration Default" shall have the meaning set forth in
Section 2(b) of this Agreement.
"Registration Event" shall mean the declaration of the
effectiveness by the SEC of an Exchange Offer Registration Statement or
a Shelf Registration Statement.
"Registration Expenses" shall mean any and all reasonable
expenses incident to performance of or compliance by the Company and
the Trustees with this Agreement, including without limitation: (i) all
SEC, stock exchange or NASD registration and filing fees, (ii) all fees
and expenses incurred in connection with compliance with state or other
securities or blue sky laws and compliance with the rules of the NASD
(including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with state or other securities or
blue sky qualification of any of the Exchange Certificates or
Registrable Certificates), (iii) all expenses incurred by the Company
in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any amendments
or supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, (v) all
fees and expenses incurred in connection with the listing, if any, of
any of the Registrable Certificates on any securities exchange or
exchanges, (vi) all fees and disbursements relating to the
qualification of the Pass Through Trust Agreements and the Successor
Pass Through Trust Agreements under applicable securities laws, (vii)
the fees and disbursements of counsel for the Company and of the
independent public accountants of the Company, including the expenses
of any special audits or "cold comfort" letters required by or incident
to such performance and compliance, (viii) the reasonable fees and
expenses of the Trustees, including their counsel, and any escrow agent
or custodian, (ix) in the case of a Shelf Registration Statement, the
fees and disbursements of one counsel for the Holders (which counsel
shall be selected by the Majority Holders and which counsel may also be
counsel for the Initial Purchasers) and (x) any reasonable fees and
disbursements of the underwriters, if any, in connection with any Shelf
Registration Statement, and the reasonable fees and expenses of any
special experts retained by the Company in connection with any
Registration Statement, in each case as are customarily
<PAGE> 6
5
required to be paid by issuers, but excluding (with respect to clauses
(iii) through (x) above) fees of counsel to the underwriters (other
than fees and expenses set forth in clause (ii) above) or the Holders
and underwriting discounts and commissions and transfer taxes, if any
relating to the sale or disposition of Registrable Certificates by a
Holder.
"Registration Statement" shall mean any registration statement
of the Company which covers any of the Exchange Certificates or
Registrable Certificates pursuant to the provisions of this Agreement,
and all amendments and supplements to any such Registration Statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission, as
from time to time constituted or created under the United States
Securities Exchange Act of 1934, as amended, or, if at any time after
the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the TIA, then the body
performing such duties on such date.
"Shelf Registration" shall mean a registration under the 1933
Act effected pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the provisions of
Section 2(b) of this Agreement which covers some or all of the
Registrable Certificates (but no other securities unless approved by
the Holders whose Registrable Certificates are covered by such Shelf
Registration Statement) on an appropriate form under Rule 415 under the
1933 Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Staff" shall mean the Staff of the Division of Corporation
Finance of the SEC.
"Successor Pass Through Trust Agreements" shall mean each of
the Successor Pass Through Trust Agreements entered into on the date
hereof between the Company and each Trustee forming the Successor
Trusts, as may be amended from time to time in accordance with the
terms thereof.
"Successor Trusts" shall have the meaning set forth in the
preamble of this Agreement.
"TIA" shall have the meaning set forth in Section 3(l) of this
Agreement.
"Transfer Date" shall have the meaning set forth in the
Purchase Agreement.
<PAGE> 7
6
"Trustees" shall mean the trustees under the Pass Through
Trust Agreements or the Successor Pass Through Trust Agreements, as the
case may be.
"Trusts" shall mean the Class G Trust and the Class C Trust,
or the Successor Trusts, as the case may be.
2. Registration under the 1933 Act. (a) Exchange Offer
Registration. To the extent not prohibited by any applicable law or applicable
interpretation of the Staff, the Company shall use its best efforts (A) to file
with the SEC within 120 days after the Closing Date an Exchange Offer
Registration Statement covering the offer by the Company to the Holders to
exchange all of the Registrable Certificates for Exchange Certificates, (B) to
cause such Exchange Offer Registration Statement to be declared effective by the
SEC within 180 days after the Closing Date, (C) to cause such Registration
Statement to remain effective until the closing of the Exchange Offer and (D) to
consummate the Exchange Offer within 210 days after the Closing Date. Upon the
effectiveness of the Exchange Offer Registration Statement, the Company shall
promptly commence the Exchange Offer, it being the objective of such Exchange
Offer to enable each Holder (other than Participating Broker-Dealers) eligible
and electing to exchange Registrable Certificates for Exchange Certificates
(assuming that such Holder is not an affiliate of the Company within the meaning
of Rule 405 under the 1933 Act, acquires the Exchange Certificates in the
ordinary course of such Holder's business and has no arrangements or
understandings with any person to participate in the Exchange Offer for the
purpose of distributing the Exchange Certificates) to trade such Exchange
Certificates from and after their receipt without any limitations or
restrictions under the 1933 Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United
States.
In connection with the Exchange Offer, the Company shall or
shall direct the Trustees to and the Trustee shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 30 days
after the date notice thereof is mailed to the Holders (or longer if
required by applicable law);
(iii) use the services of DTC for the Exchange Offer with
respect to Initial Certificates evidenced by global certificates;
(iv) permit Holders to withdraw tendered Registrable
Certificates at any time prior to the close of business, New York City
time, on the last Business Day on which the Exchange Offer shall remain
open, by delivering to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable Certificates
delivered for exchange, and a statement
<PAGE> 8
7
that such Holder is withdrawing its election to have such Registrable
Certificates exchanged;
(v) use its best efforts to ensure that (i) any Exchange Offer
Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any supplement thereto complies in all
material respects with the 1933 Act and the rules and regulations
thereunder, (ii) any Exchange Offer Registration Statement and any
amendment thereto does not, when it becomes effective, 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 and (iii) any Prospectus forming part of any
Exchange Offer Registration Statement, and any supplement to such
Prospectus (as amended or supplemented from time to time), does not,
prior to the consummation of the Exchange Offer, include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements, in light of the circumstances under
which they were made, not misleading; and
(vi) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer,
the Company shall or shall direct the Trustees to and the Trustees
shall:
(i) accept for exchange Registrable Certificates duly tendered
and not validly withdrawn pursuant to the Exchange Offer in accordance
with the terms of the Exchange Offer Registration Statement and the
letter of transmittal which is an exhibit thereto;
(ii) cancel or cause to be canceled all Registrable
Certificates so accepted for exchange by the Company; and
(iii) promptly cause to be authenticated and delivered
Exchange Certificates to each Holder of Registrable Certificates equal
in amount to the Registrable Certificates of such Holder so accepted
for exchange.
Interest on each Exchange Certificate will accrue from the
last date on which interest was paid on the Registrable Certificates surrendered
in exchange therefor or, if no interest has been paid on the Registrable
Certificates, from the Closing Date. The Exchange Offer shall not be subject to
any conditions, other than that the Exchange Offer, or the making of any
exchange by a Holder, does not violate applicable law or any applicable
interpretation of the Staff. Each Holder of Registrable Certificates (other than
Participating Broker-Dealers) who wishes to exchange such Registrable
Certificates for Exchange Certificates in the Exchange Offer shall represent
that (i) it is not an "affiliate" of the Company or the Trustee within the
meaning of Rule 405 under the 1933 Act, (ii) any Exchange Certificates to be
received by it were acquired in the ordinary course of business and (iii) it has
no arrangement with any Person to participate in the distribution (within the
meaning of the 1933 Act) of the Exchange Certificates.
<PAGE> 9
8
(b) Shelf Registration. (i) If, because of any change in law
or applicable interpretations thereof by the Staff, the Company is not permitted
to effect the Exchange Offer as contemplated by Section 2(a) hereof, or (ii) if
for any other reason the Exchange Offer is not consummated within 210 days after
the Closing Date (a "Registration Default"), or (iii) if any Holder (other than
an Initial Purchaser) is not eligible to participate in the Exchange Offer or
(iv) upon the request of any Initial Purchaser (with respect to any Registrable
Certificates which it acquired directly from the Company) following the
consummation of the Exchange Offer if such Initial Purchaser shall hold
Registrable Certificates which it acquired directly from the Company and if such
Initial Purchaser is not permitted, in the opinion of counsel to such Initial
Purchaser, pursuant to applicable law or applicable interpretation of the Staff
to participate in the Exchange Offer, the Company shall, at its cost:
(A) as promptly as practicable, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the
Registrable Certificates by the Holders from time to time in accordance
with the methods of distribution elected by the Majority Holders of
such Registrable Certificates and set forth in such Shelf Registration
Statement, and use its best efforts to cause such Shelf Registration
Statement to be declared effective by the SEC by the 180th day after
the Closing Date in the event that the Company is not permitted to
effect the Exchange Offer as contemplated by Section 2(a) hereof (or
promptly if the Exchange Offer is not consummated within 210 days after
the Closing Date or in the event of a request by any Holder pursuant to
clause (iii) above or any Initial Purchaser pursuant to clause (iv)
above). In the event that the Company is required to file a Shelf
Registration Statement upon the request of any Holder (other than an
Initial Purchaser) not eligible to participate in the Exchange Offer
pursuant to clause (iii) above or upon the request of any Initial
Purchaser pursuant to clause (iv) above, the Company shall file and use
its best efforts to have declared effective by the SEC both an Exchange
Offer Registration Statement pursuant to Section 2(a) with respect to
all Registrable Certificates and a Shelf Registration Statement (which
may be a combined Registration Statement with the Exchange Offer
Registration Statement) with respect to offers and sales of Registrable
Certificates held by such Holder or such Initial Purchaser after
completion of the Exchange Offer. If the Company files a Shelf
Registration Statement pursuant to Section 2(b)(i) or (ii) hereof, the
Company will no longer be required to effect the Exchange Offer;
(B) use its best efforts to keep the Shelf Registration
Statement continuously effective, in order to permit the Prospectus
forming part thereof to be usable by Holders, until the end of the
period referred to in Rule 144(k) or any successor provision thereof
(or one year from the Closing Date if such Shelf Registration Statement
is filed upon the request of any Initial Purchaser pursuant to clause
(iv) above) or such shorter period as shall end when all of the
Registrable Certificates covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement or cease to
be outstanding; and
(C) notwithstanding any other provisions hereof, use its best
efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus
<PAGE> 10
9
forming part thereof and any supplement thereto complies in all
material respects with the 1933 Act and the rules and regulations
thereunder, (ii) any Shelf Registration Statement and any amendment
thereto (in either case, other than with respect to information
included therein in reliance upon or in conformity with information
furnished to the Company by or on behalf of a Holder specifically for
use therein (the "Holders' Information")) does not, when it becomes
effective, 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 and (iii) during the period
in which the Shelf Registration Statement is effective any Prospectus
forming part of any Shelf Registration Statement, and any supplement to
such Prospectus (as amended or supplemented from time to time) (in any
case, other than with respect to Holders' Information), does not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements, in light of
the circumstances under which they were made, not misleading.
The Company further agrees, if necessary, to supplement or
amend the Shelf Registration Statement if reasonably requested by the Majority
Holders with respect to Holders' Information and otherwise as required by
Section 3(b) below, to use all reasonable efforts to cause any such amendment to
become effective and such Shelf Registration Statement to become usable as soon
as practicable thereafter and to furnish to the Holders of Registrable
Certificates included in the Shelf Registration Statement copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
The Company shall be allowed a period of five days, beginning
on the first day a Registration Default occurs, to cure such Registration
Default before the Company will be required to comply with the requirements of
Section 2(b).
(c) Expenses. The Company shall pay all Registration Expenses
in connection with the registration pursuant to Section 2(a) or 2(b) and, in the
case of any Shelf Registration Statement, will reimburse the Holders or Initial
Purchasers for the reasonable fees and disbursements of one firm or counsel
designated in writing by the Majority Holders to act as counsel for the Holders
of the Registrable Certificates in connection therewith. Each Holder shall pay
all expenses of its counsel, other than as set forth in the preceding sentence,
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Registrable Certificates pursuant to
the Shelf Registration Statement.
(d) Effective Registration Statement. (i) The Company will be
deemed not to have used its best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
to become, or to remain, effective during the requisite period if the Company
voluntarily takes any action that would result in any such Registration
Statement not being declared effective or in the Holders of Registrable
Certificates covered thereby not being able to exchange or offer and sell such
Registrable Certificates during that period unless (A) such action is required
by applicable law or (B) such action is taken by the Company in good faith and
for valid business reasons (not including avoidance of the
<PAGE> 11
10
Company's obligations hereunder), including, without limitation, the acquisition
or divestiture of assets, so long as the Company promptly complies with the
requirements of Section 3(j) hereof, if applicable.
(ii) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b)
hereof will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been declared
effective, the offering of Registrable Certificates pursuant to a Registration
Statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have been effective during the
period of such interference, until the offering of Registrable Certificates
pursuant to such Registration Statement may legally resume.
(e) Increase in Interest Rate. In the event that no
Registration Event has occurred on or prior to the 210th day after the Closing
Date, the interest rate per annum payable in respect of the Initial Certificates
shall be increased by 0.50%, effective from and including such 210th day, to but
excluding the earlier of (i) the date on which a Registration Event occurs and
(ii) the date on which there cease to be any Registrable Certificates, which
additional interest shall be paid through a combination of an increase in the
interest rate per annum borne by the Equipment Notes of 0.50% and, if
applicable, an increase in the interest rate per annum payable on the Deposits
of 0.50% pursuant to the Depositary Agreements. In the event that the Shelf
Registration Statement ceases to be effective at any time during the period
specified by Section 2(b)(B) hereof for more than 60 days, whether or not
consecutive, during any 12-month period, the interest rate payable in respect of
the Initial Certificates shall be increased by 0.50% per annum from the 61st day
of the applicable 12-month period such Shelf Registration Statement ceases to be
effective until such time as the Shelf Registration Statement again becomes
effective (or, if earlier, the end of the period specified by Section 2(b)(B)
hereof), which additional interest shall be paid through a combination of an
increase in the interest rate per annum borne by the Equipment Notes of 0.50%
and, if applicable, an increase in the interest rate per annum payable on the
Deposits of 0.50% pursuant to the Depositary Agreements.
(f) Specific Performance. Without limiting the remedies
available to the Initial Purchasers and the Holders, the Company acknowledges
that any failure by the Company to comply with its obligations under Section
2(a) and Section 2(b) hereof may result in material irreparable injury to the
Initial Purchasers or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, each Initial Purchaser or any Holder may
obtain such relief as may be required to specifically enforce the Company's
obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations
of the Company with respect to the Registration Statements pursuant to Sections
2(a) and 2(b) hereof, the Company shall:
<PAGE> 12
11
(a) prepare and file with the SEC a Registration Statement,
within the time period specified in Section 2, on the appropriate form
under the 1933 Act, which form (i) shall be selected by the Company,
(ii) shall, in the case of a Shelf Registration, be available for the
sale of the Registrable Certificates by the selling Holders thereof and
(iii) shall comply as to form in all material respects with the
requirements of the applicable form;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period; cause each Prospectus to be
supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the 1933 Act;
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Certificates when a Shelf Registration Statement
with respect to the Registrable Certificates has been filed and advise
such Holders that the distribution of Registrable Certificates will be
made in accordance with the method elected by the Majority Holders;
(ii) furnish to each Holder of Registrable Certificates included within
the coverage of the Shelf Registration Statement at least one copy of
such Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the
Holder so requests in writing, all reports, other documents and
exhibits filed with the SEC (including those incorporated by reference)
at the expense of the Company, (iii) furnish to each Holder of
Registrable Certificates included within the coverage of the Shelf
Registration Statement, to counsel for the Holders and to each
underwriter of an underwritten offering of Registrable Certificates, if
any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto as such
Holder or underwriter may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Certificates; and
(iv) subject to the last paragraph of Section 3, consent to the use of
the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Registrable Certificates included in the Shelf
Registration Statement in connection with the offering and sale of the
Registrable Certificates covered by the Prospectus or any amendment or
supplement thereto;
(d) use its best efforts to register or qualify the
Registrable Certificates or cooperate with the Holders of Registrable
Certificates and their counsel in the registration or qualification of
such Registrable Certificates under all applicable state securities or
"blue sky" laws of such jurisdictions as any Holder of Registrable
Certificates covered by a Registration Statement and each underwriter
of an underwritten offering of Registrable Certificates shall
reasonably request in writing, to cooperate with the Holders in
connection with any filings required to be made with the NASD, and do
any and all other acts and things which may be reasonably necessary or
advisable to enable such Holders to consummate the disposition in each
such jurisdiction of such Registrable Certificates owned by such
Holders; provided, however, that in no event shall the Company be
required to (i) qualify as a foreign corporation or as a dealer in
securities in any
<PAGE> 13
12
jurisdiction where it would not otherwise be required to qualify but
for this Section 3(d) or (ii) take any action which would subject it to
general service of process or taxation in any such jurisdiction if it
is not then so subject;
(e) in the case of a Shelf Registration or in the case of an
Exchange Registration, if the Company has received from a Participating
Broker-Dealer the notice specified in Section 3(f)(A)(ii), notify each
Holder of Registrable Certificates included in such Shelf Registration
or such Exchange Registration and such Participating Broker-Dealer
promptly and, if requested by such Holder, Participating Broker-Dealer
or their counsel, confirm such advice in writing promptly (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any
request by the SEC or any state securities authority for post-effective
amendments and supplements to a Registration Statement and Prospectus
or for additional information after the Registration Statement has
become effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of
a Registration Statement or the initiation of any proceedings for that
purpose, (iv) in the case of a Shelf Registration at the closing of any
sale of Registrable Certificates if, between the effective date of a
Shelf Registration Statement and such closing, the representations and
warranties of the Company contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating
to such offering cease to be true and correct in all material respects,
(v) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Registrable Certificates for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (vi) of the happening of any material
event or the discovery of any material facts during the period a
Registration Statement is effective which makes any statement made in
such Registration Statement or the related Prospectus untrue or which
requires the making of any changes in such Registration Statement or
Prospectus in order to make the statements therein (in the case of the
Prospectus in light of the circumstances under which they were made)
not misleading and (vii) of any determination by the Company that a
post-effective amendment to a Registration Statement would be
appropriate;
(f) (A) in the case of the Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution"
section covering the use of the Prospectus included in the
Exchange Offer Registration Statement by broker-dealers who
have exchanged their Registrable Certificates for Exchange
Certificates for the resale of such Exchange Certificates,
(ii) furnish to each broker-dealer who has delivered to the
Company a notice that they will be utilizing the Prospectus
contained in the Exchange Offer Registration Statement to sell
Exchange Certificates and is required to deliver a Prospectus
and who agrees to be bound by the applicable terms of this
Agreement, without charge, as many copies of each Prospectus
included in the Exchange Offer Registration Statement,
including any preliminary prospectus, and any amendment or
supplement thereto, as such broker-dealer may reasonably
request, (iii) include in the Exchange Offer Registration
Statement a statement that any broker-dealer
<PAGE> 14
13
who holds Registrable Certificates acquired for its own
account as a result of market-making activities or other
trading activities (a "Participating Broker-Dealer"), and who
receives Exchange Certificates for Registrable Certificates
pursuant to the Exchange Offer, may be a statutory underwriter
and must deliver a prospectus meeting the requirements of the
1933 Act in connection with any resale of such Exchange
Certificates, (iv) subject to the last paragraph of Section 3,
hereby consent to the use of the Prospectus forming part of
the Exchange Offer Registration Statement or any amendment or
supplement thereto, by any broker-dealer who has delivered the
notice specified in clause (ii) above in connection with the
sale or transfer of the Exchange Certificates covered by the
Prospectus or any amendment or supplement thereto, and (v)
include in the transmittal letter or similar documentation to
be executed by an exchange offeree in order to participate in
the Exchange Offer the following provision:
"If the undersigned is not a broker-dealer, the
undersigned represents that it is not engaged in, and
does not intend to engage in, a distribution of
Exchange Certificates. If the undersigned is a
broker-dealer that will receive Exchange Certificates
for its own account in exchange for Registrable
Certificates, it represents that the Registrable
Certificates to be exchanged for Exchange
Certificates were acquired by it as a result of
market-making activities or other trading activities
and acknowledges that it will deliver a prospectus
meeting the requirements of the 1933 Act in
connection with any resale of such Exchange
Certificates pursuant to the Exchange Offer; however,
by so acknowledging and by delivering a prospectus,
the undersigned will not be deemed to admit that it
is an "underwriter" within the meaning of the 1933
Act";
(B) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, use its best efforts to
cause to be delivered at the request of an entity representing
the Participating Broker-Dealers (which entity shall be Morgan
Stanley & Co. Incorporated, unless it elects not to act as
such representative) only one, if any, "cold comfort" letter
with respect to the Prospectus in the form existing on the
last date for which exchanges are accepted pursuant to the
Exchange Offer and with respect to each subsequent amendment
or supplement, if any, effected during the period specified in
clause (C) below;
(C) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, use its best efforts to
maintain the effectiveness of the Exchange Offer Registration
Statement for such period of time as any Participating
Broker-Dealer must comply with the prospectus delivery
requirements of the 1933 Act; provided, however, that such
period shall not exceed the 180-day period specified in clause
(D) below; and
<PAGE> 15
14
(D) not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration
Statement as would otherwise be contemplated by Section 3(b),
or take any other action as a result of this Section 3(f), for
a period exceeding 180 days after the last date for which
exchanges are accepted pursuant to the Exchange Offer (as such
period may be extended by the Company) and Participating
Broker-Dealers shall not be authorized by the Company to, and
shall not, deliver such Prospectus after such period in
connection with resales contemplated by this Section 3;
(g) (A) in the case of an Exchange Offer, furnish counsel for
the Initial Purchasers and (B) in the case of a Shelf Registration,
furnish counsel for the Holders of Registrable Certificates copies of
any request by the SEC or any state securities authority for amendments
or supplements to a Registration Statement and Prospectus or for
additional information;
(h) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement as
soon as practicable;
(i) unless any Registrable Certificates are in book entry form
only, in the case of a Shelf Registration, cause the Trustees to
cooperate with the selling Holders of Registrable Certificates to
facilitate the timely preparation and delivery of certificates
representing Registrable Certificates to be sold free from any
restrictive legends; and cause such Registrable Certificates to be in
such denominations (consistent with the provisions of the Pass Through
Trust Agreements or the Successor Pass Through Trust Agreements, as the
case may be) and registered in such names as the selling Holders or the
underwriters, if any, may reasonably request at least two Business Days
prior to the closing of any sale of Registrable Certificates;
(j) in the case of a Shelf Registration, upon the occurrence
of any event or the discovery of any facts, each as contemplated by
Sections 2(d)(i)(B) or 3(e)(ii)-(vi) hereof, use its best efforts to
prepare a post-effective amendment to a Registration Statement or an
amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to the Initial
Purchasers of the Registrable Certificates, such Prospectus will not
contain at the time of such delivery any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The Company agrees to notify each Holder to suspend use of
the Prospectus as promptly as practicable after the occurrence of such
an event, and each Holder hereby agrees to suspend use of the
Prospectus as promptly as practicable upon receipt of such notice until
the Company has amended or supplemented the Prospectus to correct such
misstatement or omission or until notified that use of the Prospectus
may be resumed, provided that the Company shall use all reasonable
efforts to cause such suspension not to last more than 30 days per
occurrence or more than 60 days in aggregate in a calendar year. At
such time as such public disclosure is otherwise made or the Company
determines that such disclosure is not necessary, in each case to
correct any misstatement
<PAGE> 16
15
of a material fact or to include any omitted material fact, the Company
agrees promptly to notify each Holder of such determination and to
furnish each Holder such numbers of copies of the Prospectus, as
amended or supplemented, as such Holder may reasonably request;
(k) obtain a CUSIP number for all Exchange Certificates, or
Registrable Certificates, as the case may be, of each Trust not later
than the effective date of an Exchange Offer Registration Statement or
Shelf Registration Statement, as the case may be, and provide the
Trustees with certificates evidencing the Exchange Certificates or the
Registrable Certificates, as the case may be, held in book entry form,
in a form eligible for deposit with DTC;
(l) (i) cause the Pass Through Trust Agreements or Successor
Pass Through Trust Agreements, as the case may be, to be qualified
under the Trust Indenture Act of 1939, as amended (the "TIA"), in
connection with the registration of the Exchange Certificates, or
Registrable Certificates, as the case may be, (ii) cooperate with the
Trustees and the Holders to effect such changes to the Pass Through
Trust Agreements or Successor Pass Through Trust Agreements as may be
required for the Pass Through Trust Agreements or Successor Pass
Through Trust Agreements, as the case may be, to be so qualified in
accordance with the terms of the TIA and (iii) execute, and use its
best efforts to cause the Trustees to execute, all documents as may be
required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable the Pass Through Trust
Agreements or Successor Pass Through Trust Agreements, as the case may
be, to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such
customary agreements (including underwriting agreements in customary
form) and take all other customary and appropriate actions (including
those reasonably requested by the Holders of a majority in principal
amount of Registrable Certificates being sold) in order to expedite or
facilitate the disposition of such Registrable Certificates and in such
connection whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration:
(i) make such representations and warranties to the
Holders of such Registrable Certificates and the underwriters,
if any, in form, substance and scope as are customarily made
by the Company to underwriters in similar underwritten
offerings as may be reasonably requested by them;
(ii) obtain opinions of counsel to the Company (who
may be the general counsel of the Company) and updates thereof
(which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters,
if any, or if there are no such managing underwriters, to the
Holders of a majority in principal amount of the Registrable
Certificates being sold) addressed to each selling Holder and
the underwriters, if any, covering the matters
<PAGE> 17
16
customarily covered in opinions requested in sales of
securities or underwritten offerings;
(iii) obtain a "cold comfort" letter and updates
thereof from the Company's independent certified public
accountants addressed to the underwriters, if any, such letter
to be in customary form and covering such matters of the type
customarily covered in "cold comfort" letters in connection
with similar underwritten offerings as the managing
underwriters shall reasonably request;
(iv) enter into a securities sales agreement with the
Holders and an agent of the Holders providing for, among other
things, the appointment of such agent for the selling Holders
for the purpose of soliciting purchases of Registrable
Certificates, which agreement shall be in form, substance and
scope customary for similar offerings;
(v) if an underwriting agreement is entered into,
cause the same to set forth indemnification provisions and
procedures substantially equivalent to the indemnification
provisions and procedures set forth in Section 5 hereof (or
such other provisions and procedures acceptable to Holders of
a majority in principal amount of Registrable Certificates
being sold and the managing underwriters) with respect to all
parties to be indemnified pursuant to said Section; and
(vi) deliver such other documents and certificates as
may be reasonably requested by Holders of a majority in
principal amount of Registrable Certificates being sold, and
as are customarily delivered in similar offerings.
The above shall be done at (i) the effectiveness of such Registration
Statement (and, if appropriate, each post-effective amendment thereto)
if appropriate in connection with any particular disposition of
Registrable Certificates and (ii) each closing under any underwriting
or similar agreement as and to the extent required thereunder. In the
case of any underwritten offering, the Company shall provide written
notice to the Holders of all Registrable Certificates of such
underwritten offering at least 30 days prior to the filing of the
prospectus supplement in connection with such underwritten offering.
Such notice shall (x) offer each such Holder the right to participate
in such underwritten offering, (y) specify a date, which shall be no
earlier than 10 days following the date of such notice, by which such
Holder must inform the Company of its intent to participate in such
underwritten offering and (z) include the instructions such Holder must
follow in order to participate in such underwritten offering;
(n) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Registrable
Certificates and any underwriters participating in any disposition
pursuant to a Shelf Registration Statement and any counsel or
accountant retained by such Holders or underwriters, all financial and
other records, pertinent corporate documents and properties of the
Company reasonably
<PAGE> 18
17
requested by it, and cause the respective officers, directors,
employees, and any other agents of the Company to make reasonably
available all relevant information reasonably requested by any such
representative, underwriter, counsel or accountant in connection with a
Registration Statement, in each case as is customary for similar due
diligence examinations; provided, however, that any information that is
designated in writing by the Company, in good faith, as confidential at
the time of delivery of such information shall be kept confidential by
such representatives, underwriters, counsel or accountant, unless such
disclosure is made in connection with a court proceeding or required by
law, or such information becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality; and provided further that the foregoing inspection and
information gathering shall, to the extent reasonably possible, be
coordinated on behalf of the Holders and the other parties entitled
thereto by one counsel designated by and on behalf of such Holders and
other parties; and provided further that each person performing such
inspection and information gathering will be required to execute a
confidentiality agreement containing customary terms and provisions and
to agree that upon learning that disclosure of such information is
sought in connection with a court proceeding or required by law, it
will give notice to the Company and allow the Company at its expense to
undertake appropriate action to prevent disclosure of such confidential
information;
(o) (i) a reasonable time prior to the filing of any Exchange
Offer Registration Statement, any Prospectus forming a part thereof,
any amendment to an Exchange Offer Registration Statement or amendment
or supplement to a Prospectus, provide copies of such document to the
Initial Purchasers, and use its best efforts to reflect in any such
document when filed such comments as any of the Initial Purchasers or
their counsel may reasonably request; (ii) in the case of a Shelf
Registration, a reasonable time prior to filing any Shelf Registration
Statement, any Prospectus forming a part thereof, any amendment to such
Shelf Registration Statement or amendment or supplement to such
Prospectus (unless such supplement is being filed in response to a
request by a Holder to amend any Holder's Information with respect to
such Holder), provide copies of such document to the Holders of
Registrable Certificates participating in a disposition thereunder, to
the Initial Purchasers, to counsel on behalf of the Holders and to the
underwriter or underwriters of an underwritten offering of Registrable
Certificates, if any, and use its best efforts to reflect such comments
in any such document when filed as such Holders of Registrable
Certificates, their counsel and any underwriter may reasonably request;
and (iii) cause the representatives of the Company to be available for
discussion of such document as shall be reasonably requested by such
Holders of Registrable Certificates, the Initial Purchasers on behalf
of such Holders or any underwriter and shall not at any time make any
filing of any such document of which such Holders, the Initial
Purchasers on behalf of such Holders, their counsel or any underwriter
shall not have previously been advised and furnished a copy or to which
such Holders, the Initial Purchasers on behalf of such Holders, their
counsel or any underwriter shall reasonably object;
<PAGE> 19
18
(p) use its best efforts to cause the Exchange Certificates or
Registrable Certificates, as the case may be, to be rated with two
nationally recognized statistical rating organizations (as such term is
defined in Rule 436(g)(12) under the 1933 Act);
(q) in the case of a Shelf Registration, use its best efforts
to cause all Registrable Certificates to be listed on any securities
exchange or any automated quotation system on which similar securities
issued by the Company are then listed if requested by the Majority
Holders, to the extent such Registrable Certificates satisfy applicable
listing requirements; and
(r) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC and make generally
available to its security holders, as soon as reasonably practicable
after the effective date of a Registration Statement, an earnings
statement which shall satisfy the provisions of Section 11(a) of the
1933 Act and Rule 158 thereunder.
In the case of a Shelf Registration Statement, the Company may
(as a condition to such Holder's participation in the Shelf Registration)
require each Holder of Registrable Certificates to agree to be bound by the
applicable terms of this Agreement and to furnish to the Company such
information regarding such Holder and the proposed distribution by such Holder
of such Registrable Certificates as the Company may from time to time reasonably
request and the Company may exclude from such registration the Registrable
Certificates of any Holder that fails to furnish such information within a
reasonable time after receiving such request. Each Holder as to which any Shelf
Registration is being effected hereby agrees to furnish to the Company all
information with respect to such Holder necessary to make the information
previously furnished to the Company by such Holder not materially misleading.
Each Holder agrees that, upon receipt of any notice from the
Company of the happening of any event or the discovery of any facts, each of the
kind described in Sections 2(d)(i)(B) or 3(e)(ii)-(vi) hereof, such Holder will
forthwith discontinue disposition of Registrable Certificates pursuant to such
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(j) hereof or it is
advised in writing by the Company that the use of the applicable Prospectus may
be resumed, and, if so directed by the Company, such Holder will deliver to the
Company (at the Company's expense) all copies in its possession other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Certificates current at the time of receipt of such
notice. If the Company shall give any such notice to suspend the disposition of
Registrable Certificates pursuant to a Registration Statement as a result of the
happening of any event or the discovery of any facts, each of the kind described
in Sections 2(d)(i)(B) or 3(e)(ii)-(vi) hereof, the Company shall be deemed to
have used its best efforts to keep the Registration Statement effective during
such period of suspension provided that the Company shall use its best efforts
to file and have declared effective (if an amendment) as soon as practicable an
amendment or supplement to the Registration Statement and shall extend the
period during which the Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days during the period from and
including the date of the giving of such notice to and
<PAGE> 20
19
including the date when the Holders shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions or it
is advised in writing by the Company that the use of the applicable Prospectus
may be resumed.
4. Underwritten Offering. The Holders of Registrable
Certificates covered by a Shelf Registration Statement who desire to do so may
sell such Registrable Certificates in an underwritten offering. In any such
underwritten offering, the investment banker or bankers and manager or managers
that will administer the offering will be selected by, and the underwriting
arrangements with respect thereto will be approved by, the Holders of a majority
of the Registrable Securities to be included in such offering; provided,
however, that (i) such investment bankers and managers and underwriting
arrangements must be reasonably satisfactory to the Company and (ii) the Company
shall not be obligated to arrange for more than one underwritten offering during
the period such Shelf Registration Statement is required to be effective
pursuant to Section 2(b)(B) hereof. No Holder may participate in any
underwritten offering contemplated hereby unless such Holder (a) agrees to sell
such Holder's Registrable Certificates in accordance with any approved
underwriting arrangements, (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms of such approved
underwriting arrangements and (c) at least 20% of the outstanding Registrable
Certificates are included in such underwritten offering. The Holders
participating in any underwritten offering shall be responsible for any expenses
customarily borne by selling securityholders, including underwriting discounts
and commissions and fees and expenses of counsel to the selling securityholders.
5. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless, each Initial Purchaser, each Holder and each
person, if any, who controls any Initial Purchaser or any Holder within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, from
and against all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred by any Initial
Purchaser, any Holder or any such controlling person in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to which Exchange
Certificates or Registrable Certificates were registered under the 1933 Act,
including all documents incorporated therein by reference, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact necessary to make the
statements therein in light of the circumstances under which they were made not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to the Initial Purchasers or any Holder
furnished to the Company in writing by the Initial Purchasers or any selling
Holder expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary Prospectus shall not inure
to the benefit of any Person
<PAGE> 21
20
from whom the Person asserting any such losses, claims, damages or liabilities
purchased Registrable Certificates, or any person controlling such seller, if a
copy of the final 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 seller to such purchaser with or prior to the
written confirmation of the sale of the Registrable Certificates to such Person,
and if the final Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such losses, claims, damages or liabilities. In connection
with any underwritten offering permitted by Section 4, the Company will also
indemnify the underwriters participating in the distribution, their officers and
directors and each Person who controls such Persons (within the meaning of the
1933 Act and the 1934 Act) to the same extent as provided above with respect to
the indemnification of the Holders, if requested in connection with any
Registration Statement.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, each Initial Purchaser, the other
selling Holders, and each of their respective directors, officers who sign the
Registration Statement and each Person, if any, who controls the Company, any
Initial Purchaser and any other selling Holder within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same extent as
the foregoing indemnity from the Company to the Initial Purchasers and the
Holders, but only with reference to information relating to such Holder
furnished to the Company in writing by such Holder expressly for use in any
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or paragraph (b) above,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, may elect to or upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties and that such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing (i) by the
Initial Purchasers in the case of the Initial Purchasers and related parties
indemnified pursuant to paragraph (a) above, (ii) by the Majority Holders in the
case of the Holders and related parties indemnified pursuant to paragraph (a)
above, and (iii) by the Company in the case of parties indemnified pursuant to
paragraph (b) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but, if
settled
<PAGE> 22
21
with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which such
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 5 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of the indemnifying party or parties on the one hand and of the indemnified
party or parties on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of the
Company and the Holders shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Holders and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Holders' respective obligations to contribute
pursuant to this Section 5(d) are several in proportion to the respective
aggregate principal amount of Registrable Certificates of such Holder that were
registered pursuant to a Registration Statement.
(e) The Company and each Holder agree that it would not be
just or equitable if contribution pursuant to this Section 5 were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, no Holder shall be required to indemnify or
contribute any amount in excess of the amount by which the total price at which
Registrable Certificates were sold by such Holder exceeds the amount of any
damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. 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. The remedies provided for in this
Section 5 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement,
<PAGE> 23
22
(ii) any investigation made by or on behalf of the Initial Purchasers, any
Holder or any person controlling any Initial Purchaser or any Holder, or by or
on behalf of the Company, its officers or directors or any person controlling
the Company, (iii) acceptance of any of the Exchange Certificates and (iv) any
sale of Registrable Certificates pursuant to a Shelf Registration Statement.
6. Miscellaneous. (a) Rule 144 and Rule 144A. For so long as
the Company is subject to the reporting requirements of Section 13 or 15 of the
1934 Act, the Company covenants that it will file the reports required to be
filed by it under Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder, that if it ceases to be so required
to file such reports, it will upon the request of any Holder of Registrable
Certificates (i) make publicly available such information as is necessary to
permit sales pursuant to Rule 144 under the 1933 Act, (ii) deliver such
information to a prospective purchaser as is necessary to permit sales pursuant
to Rule 144A under the 1933 Act, and (iii) take such further action that is
reasonable in the circumstances, in each case, to the extent required from time
to time to enable such Holder to sell its Registrable Certificates without
registration under the 1933 Act within the limitation of the exemptions provided
by (x) Rule 144 under the 1933 Act, as such Rule may be amended from time to
time, (y) Rule 144A under the 1933 Act, as such Rule may be amended from time to
time, or (z) any similar rules or regulations hereafter adopted by the SEC. Upon
the reasonable request of any Holder of Registrable Certificates, the Company
will deliver to such Holder a written statement as to whether it has complied
with such requirements.
(b) Purchase and Sale of Certificates. The Company shall not,
and the Company shall use its best efforts to cause its affiliates (as defined
in Rule 405 under the 1933 Act) not to, purchase and then resell or otherwise
transfer any Initial Certificates.
(c) Trustees. The Trustees shall take such action as may be
reasonably requested by the Company in connection with the Company satisfying
its obligations arising under this Agreement; provided that the Company shall
provide to the Trustee (as Trustee and in its individual capacity) such
indemnity in connection therewith as the Trustee may reasonably request, subject
to any separate fee arrangement between the Company and the Trustee.
(d) No Inconsistent Agreements. The Company has not entered
into nor will the Company on or after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Certificates in this Agreement or otherwise conflicts with the
provisions hereof.
(e) Amendments and Waivers. Except as otherwise expressly
permitted in the Pass Through Trust Agreements or the Successor Pass Through
Trust Agreements, the provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given unless the
Company has obtained the written consent of Holders of at least a majority in
aggregate principal amount of the outstanding Registrable Certificates affected
by such amendment, modification, supplement, waiver or departure; provided,
however, that no amendment, modification, supplement or waiver or consent to any
departure from the provisions
<PAGE> 24
23
of Section 5 hereof shall be effective as against any Holder of Registrable
Certificates unless consented to in writing by such Holder.
(f) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 6(f), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; and (ii) if to the
Company, initially at the Company's address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 6(f).
All such notices and communications shall be deemed to have
been duly given when received or, if made by facsimile or telecommunication
transmission, when received unless received outside of business hours, in which
case on the next open of business on a Business Day.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the person giving the same to the Trustees,
at the address specified in the Pass Through Trust Agreements or the Successor
Pass Through Trust Agreements, as the case may be.
(g) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Certificates in violation of the terms hereof or of the Purchase Agreement or
the Pass Through Trust Agreements or Successor Pass Through Trust Agreements. If
any transferee of any Holder shall acquire Registrable Certificates, in any
manner, whether by operation of law or otherwise, such Registrable Certificates
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Certificates, such Person shall be conclusively deemed
to have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement
and, if applicable, the Purchase Agreement, and such Person shall be entitled to
receive the benefits hereof. Upon the occurrence of the transfers contemplated
by the Assignment and Assumption Agreements (as defined in the Pass Through
Trust Agreements), the trustee of each Original Trust shall (without any further
act) be deemed to have transferred all of its rights, title and interest in and
to this Agreement to the trustee of the corresponding Successor Trust and,
thereafter, the trustee of each Successor Trust shall be deemed to be the
"Trustee" of such Successor Trust with the rights and obligations of a "Trustee"
hereunder. The Initial Purchasers (in their capacity as Initial Purchasers)
shall have no liability or obligation to the Company with respect to any failure
by any other Holder to comply with, or any breach by any other Holder of, any of
the obligations of such other Holder under this Registration Rights Agreement.
<PAGE> 25
24
(h) Third Party Beneficiaries. The Holders shall be third
party beneficiaries to the agreements made hereunder and to the obligations of
the Company hereunder and shall have the right to enforce such agreements and
obligations directly to the extent any such Holder deems such enforcement
necessary or advisable to protect the rights expressed to be for its benefit
hereunder.
(i) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(j) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(k) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(l) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
<PAGE> 26
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
AMERICA WEST AIRLINES, INC.
By: /s/ W. DOUGLAS PARKER
--------------------------
Name: W. DOUGLAS PARKER
Title: Executive Vice President
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Trustee under
each of the Original Trusts
By: /s/ JAMES P. LAWLER
--------------------------
Name: JAMES P. LAWLER
Title: Vice President
Confirmed and accepted as of the date first above written:
MORGAN STANLEY & CO. INCORPORATED
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
SALOMON SMITH BARNEY INC.
By: MORGAN STANLEY & CO. INCORPORATED
By: /s/ BRUCE PAINE
--------------------------
Name: BRUCE PAINE
Title: Vice President
<PAGE> 1
Exhibit 4.11
DEPOSIT AGREEMENT
(Class C)
Dated as of September 21, 1999
between
WILMINGTON TRUST COMPANY
as Escrow Agent
and
ABN AMRO BANK N.V.,
Chicago Branch
as Depositary
<PAGE> 2
DEPOSIT AGREEMENT (Class C) dated as of September 21, 1999 (as amended,
modified or supplemented from time to time, this "Agreement") between WILMINGTON
TRUST COMPANY, a Delaware banking corporation, as Escrow Agent under the Escrow
and Paying Agent Agreement referred to below (in such capacity, together with
its successors in such capacity, the "Escrow Agent"), and ABN AMRO BANK N.V., a
bank organized under the laws of the Netherlands, acting through its Chicago
branch, as depositary bank (the "Depositary").
W I T N E S S E T H
WHEREAS, America West Airlines, Inc. ("America West") and Wilmington
Trust Company, not in its individual capacity except as otherwise expressly
provided therein, but solely as trustee (in such capacity, together with its
successors in such capacity, the "Pass Through Trustee") have entered into a
Pass Through Trust Agreement dated as of September 21, 1999 (as amended,
modified or supplemented from time to time in accordance with the terms thereof,
the "Pass Through Trust Agreement") relating to America West Airlines Pass
Through Trust 1999-1C-O pursuant to which the America West Airlines Pass Through
Trust, Series 1999-1C-O Certificates referred to therein (the "Certificates")
are being issued;
WHEREAS, America West and Morgan Stanley & Co. Incorporated, Donaldson,
Lufkin & Jenrette Securities Corporation, Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Salomon Smith Barney Inc. (collectively, the "Initial
Purchasers" and, together with their respective transferees and assigns as
registered owners of the Certificates, the "Investors") have entered into a
Purchase Agreement dated as of September 14, 1999 pursuant to which the Pass
Through Trustee will issue and sell the Certificates to the Initial Purchasers
(the net proceeds of such sale being herein referred to as the "Net Proceeds");
WHEREAS, America West, the Pass Through Trustee, certain other pass
through trustees and certain other persons concurrently herewith are entering
into the Note Purchase Agreement, dated as of the date hereof (the "Note
Purchase Agreement"), pursuant to which the Pass Through Trustee has agreed to
acquire from time to time on or prior to the Delivery Period Termination Date
(as defined in the Note Purchase Agreement) equipment notes (the "Equipment
Notes") issued to finance or refinance the acquisition of aircraft by America
West, as lessee or as owner, utilizing a portion of the Net Proceeds;
WHEREAS, the Escrow Agent, the Initial Purchasers, the Pass Through
Trustee and Wilmington Trust Company, as paying agent for the Escrow Agent (in
such capacity, together with its successors in such capacity, the "Paying
Agent") concurrently herewith are entering into an Escrow and Paying Agent
Agreement, dated as of the date hereof (as amended, modified or supplemented
from time to time in accordance with the terms thereof, the "Escrow and Paying
Agent Agreement"); and
WHEREAS, the Initial Purchasers and the Pass Through Trustee intend
that the Net Proceeds be held in escrow by the Escrow Agent on behalf of the
Investors pursuant to the Escrow and Paying Agent Agreement, subject to
withdrawal upon request of and proper
<PAGE> 3
certification by the Pass Through Trustee for the purpose of purchasing
Equipment Notes, and that pending such withdrawal the Net Proceeds be deposited
by the Escrow Agent with the Depositary pursuant to this Agreement, which
provides for the Depositary to pay interest for distribution to the Investors
and to establish accounts from which the Escrow Agent shall make withdrawals
upon request of and proper certification by the Pass Through Trustee.
NOW, THEREFORE, in consideration of the obligations contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1.1 Acceptance of Depositary. The Depositary hereby agrees to
act as depositary bank as provided herein and in connection therewith to accept
all amounts to be delivered to or held by the Depositary pursuant to the terms
of this Agreement. The Depositary further agrees to hold, maintain and safeguard
the Deposits and the Accounts (as defined below) during the term of this
Agreement in accordance with the provisions of this Agreement. The Escrow Agent
shall not have any right to withdraw, assign or otherwise transfer moneys held
in the Accounts except as permitted by this Agreement.
SECTION 1.2 Establishment of Accounts. The Escrow Agent hereby
instructs the Depositary, and the Depositary agrees, to establish the separate
deposit accounts listed on Schedule I hereto and to establish such additional
separate deposit accounts as may be required in connection with the deposits
contemplated by Section 1.6 hereof (each, an "Account" and collectively, the
"Accounts"), each in the name of the Escrow Agent and all on the terms and
conditions set forth in this Agreement.
SECTION 1.3 Deposits. The Escrow Agent shall direct the Initial
Purchasers to deposit with the Depositary on the date of this Agreement (the
"Deposit Date") in Federal (same day) funds by wire transfer to: Federal Reserve
Bank, New York, ABN NY ABA #026009580, Account: Chicago Treasury, Reference:
America West Deposit, and the Depositary shall accept from the Initial
Purchasers, on behalf of the Escrow Agent, the sum of US$20,158,000. Upon
acceptance of such sum, the Depositary shall (i) establish each of the deposits
specified in Schedule I hereto maturing on the respective dates set forth
therein (including any deposit made pursuant to Section 1.6 hereof,
individually, a "Deposit" and, collectively, the "Deposits") and (ii) credit
each Deposit to the related Account as set forth therein. No amount shall be
deposited in any Account other than the related Deposit.
SECTION 1.4 Interest. (a) Each Deposit shall bear interest from and
including the date of deposit to but excluding the date of withdrawal at the
rate of 8.54% per annum (computed on the basis of a year of twelve 30-day
months) payable to the Paying Agent on behalf of the Escrow Agent semi-annually
in arrears on each January 2 and July 2 commencing on January 2, 2000 (each, an
"Interest Payment Date") and, as provided in Section 1.5(b) hereof, on the date
of the Final Withdrawal (as defined below), all in accordance with the terms of
this Agreement (whether or not any such Deposit is withdrawn on an Interest
Payment Date). Interest accrued on any Deposit that is withdrawn pursuant to a
Notice of Purchase Withdrawal (as defined below) shall be paid on the next
Interest Payment Date, notwithstanding any intervening Final
2
<PAGE> 4
Withdrawal (as defined below) of all of the remaining Deposits (any such
Deposits consisting of unpaid interest only and remaining after a Final
Withdrawal may be referred to as the "Carryover Deposits"). In addition,
interest accrued on any Deposit that is withdrawn pursuant to a Notice of
Replacement Withdrawal (as defined below) but not paid on the date of the Final
Withdrawal shall be paid on the next Interest Payment Date.
(b) The parties hereto further acknowledge and agree that upon
any increase in the rate of interest on the Certificates (such increase referred
to as a "Rate Increase") pursuant to the terms of the Registration Rights
Agreement, the rate of interest borne by each Deposit in accordance with Section
1.4(a) above shall increase by the amount of such Rate Increase, and upon any
subsequent decrease in the rate of interest on the Equipment Notes (such
decrease referred to as a "Rate Decrease") pursuant to the terms of the
Registration Rights Agreement, the rate of interest borne by such Deposit shall
decrease by the amount of such Rate Decrease. For the purposes of this Section
1.4(b), "Registration Rights Agreement" means the Exchange and Registration
Rights Agreement dated the date hereof among America West, the Pass Through
Trustee, certain other pass through trustees and the Initial Purchasers.
SECTION 1.5 Withdrawals. (a) On and after the date seven days after the
establishment of any Deposit, the Escrow Agent may, by providing at least one
Business Day's prior notice of withdrawal to the Depositary in the form of
Exhibit A hereto (a "Notice of Purchase Withdrawal"), withdraw not less than the
entire principal balance of such Deposit, except that at any time prior to the
actual withdrawal of such Deposit, the Escrow Agent or the Pass Through Trustee
may, by notice to the Depositary, cancel such withdrawal (including on the
scheduled date therefor), and thereafter such Deposit shall continue to be
maintained by the Depositary in accordance with the original terms thereof.
Following such withdrawal the balance in the related Account shall be zero and
the Depositary shall, subject to the Depositary's payment obligation pursuant to
the last sentence of Section 1.4(a) hereof, close such Account. As used herein,
"Business Day" means any day, other than a Saturday, Sunday or other day on
which commercial banks are authorized or required by law to close in New York,
New York, Chicago, Illinois, Phoenix, Arizona or Wilmington, Delaware.
Notwithstanding the foregoing, in the event the date of issuance of the
Certificates coincides with the scheduled delivery date of any Aircraft to be
financed pursuant to the terms of the Note Purchase Agreement, the Notice of
Purchase Withdrawal may be delivered to the Depositary on such scheduled
delivery date for withdrawals on that day. The Depositary reserves the right,
upon at least 14 days' prior written notice to America West, the Escrow Agent
and the Pass Through Trustee, to require seven days' notice for any withdrawal.
(b) (i) The Escrow Agent may, subject to Section 1.02(d) of
the Escrow and Paying Agent Agreement, by providing at least 15 days' prior
notice of withdrawal to the Depositary in the form of Exhibit B hereto (a
"Notice of Final Withdrawal"), withdraw the entire amount of all of the
remaining Deposits together with the payment by the Depositary of all accrued
and unpaid interest on such Deposits to but excluding the specified date of
withdrawal (a "Final Withdrawal"), on such date as shall be specified in such
Notice of Final Withdrawal. If a Notice of Final Withdrawal has not been given
to the Depositary on or before September 6, 2000
3
<PAGE> 5
and there are unwithdrawn Deposits on such date, the Depositary shall pay the
amount of the Final Withdrawal to the Paying Agent on September 27, 2000.
(ii) The Escrow Agent may, by providing at least 15 days'
prior notice of withdrawal to the Depositary in the form of Exhibit C hereto (a
"Notice of Replacement Withdrawal"), withdraw the entire amount of all Deposits
then held by the Depositary together with, if specified in such Notice of
Replacement Withdrawal, the payment by the Depositary of all accrued and unpaid
interest on such Deposits to but excluding the specified date of withdrawal (a
"Replacement Withdrawal"), on such date as shall be specified in such Notice of
Replacement Withdrawal.
(c) If the Depositary receives a duly completed Notice of
Purchase Withdrawal or Notice of Final Withdrawal or Notice of Replacement
Withdrawal (each, a "Withdrawal Notice") complying with the provisions of this
Agreement, it shall make the payments specified therein in accordance with the
provisions of this Agreement. If such complying Withdrawal Notice is received by
the Depositary no later than 3:00 p.m. on a Business Day, the Depositary shall
make the payments requested in such Withdrawal Notice no later than 11:00 a.m.
on the next succeeding Business Day or such later day specified in such
Withdrawal Notice, and if such complying Withdrawal Notice is received by the
Depositary after 3:00 p.m. on a Business Day, the Depositary shall make the
payments requested in such Withdrawal Notice no later than 11:00 a.m. on the
second Business Day next following such Business Day.
SECTION 1.6 Other Accounts. On the date of withdrawal of any Deposit
pursuant to a Notice of Purchase Withdrawal, the Escrow Agent, or the Pass
Through Trustee on behalf of the Escrow Agent, shall be entitled to re-deposit
with the Depositary any portion thereof and the Depositary shall accept the same
for deposit hereunder. Any sums so received for deposit shall be established as
a new Deposit and credited to a new Account, all as more fully provided in
Section 1.3 hereof, and thereafter the provisions of this Agreement shall apply
thereto as fully and with the same force and effect as if such Deposit had been
established on the Deposit Date except that (i) such Deposit may not be
withdrawn prior to the date seven days after the establishment thereof and (ii)
such Deposit shall mature on September 27, 2000 and bear interest as provided in
Section 1.4. The Depositary shall promptly give notice to the Escrow Agent of
receipt of each such re-deposit and the account number assigned thereto.
SECTION 2. Termination. This Agreement shall terminate on the fifth
Business Day after the later of the date on which (i) all of the Deposits shall
have been withdrawn and paid as provided herein without any re-deposit and (ii)
all accrued and unpaid interest on the Deposits shall have been paid as provided
herein, but in no event prior to the date on which the Depositary shall have
performed in full its obligations hereunder. For the avoidance of doubt, the
obligations of the Depositary under the last two sentences of Section 1.4(a)
hereof shall remain in full force and effect notwithstanding the execution and
delivery of a replacement Deposit Agreement in accordance with Section 4(a)(vii)
of the Note Purchase Agreement.
SECTION 3. Payments. All payments (including, without limitation, those
payments made in respect of Taxes (as defined and provided for below)) made by
the Depositary hereunder
4
<PAGE> 6
shall be paid in United States Dollars and immediately available funds by wire
transfer (i) in the case of accrued interest on the Deposits payable under
Section 1.4 hereof or any Final Withdrawal, directly to the Paying Agent at
Wilmington Trust Company, Wilmington, Delaware, ABA# 031-100-092, for credit to
the account of America West 1999-1, Account No. 49193-0, Attention: Rosemary
Pantano, Telephone No. (302) 427-4805, Reference: America West 1999-1C, or to
such other account as the Paying Agent may direct from time to time in writing
to the Depositary and the Escrow Agent and (ii) in the case of any withdrawal of
one or more Deposits pursuant to a Notice of Purchase Withdrawal or Notice of
Replacement Withdrawal, directly to or as directed by the Pass Through Trustee
as specified and in the manner provided in such Notice of Purchase Withdrawal or
Notice of Replacement Withdrawal. The Depositary hereby waives any and all
rights of set-off, combination of accounts, right of retention or similar right
(whether arising under applicable law, contract or otherwise) it may have
against the Deposits howsoever arising. All payments on or in respect of each
Deposit shall be made free and clear of and without reduction for or on account
of any and all taxes, levies or other impositions or charges (collectively,
"Taxes"). However, if the Depositary or the Paying Agent (pursuant to Section
2.04 of the Escrow and Paying Agent Agreement) shall be required by law to
deduct or withhold any Taxes from or in respect of any sum payable hereunder,
the Depositary shall (i) make such deductions or withholding, (ii) pay the full
amount deducted or withheld (including in respect of such additional amounts) to
the competent taxation authority and (iii) if the Taxes required to be deducted
or withheld are imposed by the Netherlands or any political subdivision thereof,
pay such additional amounts as may be necessary in order that the actual amount
received by the designated recipient of such sum under this Agreement or the
Escrow and Paying Agent Agreement after such deduction or withholding equals the
sum it would have received had no such deduction or withholding been required.
If the date on which any payment due on any Deposit would otherwise fall on a
day which is not a Business Day, such payment shall be made on the next
succeeding Business Day, and no additional interest shall accrue in respect of
such extension.
SECTION 4. Representation and Warranties. The Depositary hereby
represents and warrants to America West, the Escrow Agent, the Pass Through
Trustee, the Initial Purchasers and the Paying Agent that:
(1) it is a bank duly organized and validly existing in good
standing under the laws of its jurisdiction of organization and is duly
qualified to conduct banking business in the State of Illinois through its
Chicago branch;
(2) it has full power, authority and legal right to conduct
its business and operations as currently conducted and to enter into and perform
its obligations under this Agreement;
(3) the execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action on the part of it
and do not require any stockholder approval, or approval or consent of any
trustee or holder of any indebtedness or obligations of it, and such document
has been duly executed and delivered by it and constitutes its legal, valid and
binding obligations enforceable against it in accordance with the terms hereof;
5
<PAGE> 7
(4) 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 is required for the execution,
delivery or performance by it of this Agreement;
(5) neither the execution, delivery or performance by it of
this Agreement, nor compliance with the terms and provisions hereof, 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 it or any similar instrument
binding on it or any order, writ, injunction or decree of any court or
governmental authority against it or by which it or any of its properties is
bound or any indenture, mortgage or contract or other agreement or instrument to
which it 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; and
(6) there are no pending or, to its knowledge, threatened
actions, suits, investigations or proceedings (whether or not purportedly on
behalf of it) against or affecting it or any of its property before or by any
court or administrative agency which, if adversely determined, (i) would
adversely affect the ability of it to perform its obligations under this
Agreement or (ii) would call into question or challenge the validity of this
Agreement or the enforceability hereof in accordance with the terms hereof, nor
is the Depositary in default with respect to any order of any court,
governmental authority, arbitration board or administrative agency so as to
adversely affect its ability to perform its obligations under this Agreement.
SECTION 5. Transfer. Neither party hereto shall be entitled to assign
or otherwise transfer this Agreement (or any interest herein) other than (in the
case of the Escrow Agent) to a successor escrow agent under the Escrow and
Paying Agent Agreement, and any purported assignment in violation thereof shall
be void. This Agreement shall be binding upon the parties hereto and their
respective successors and (in the case of the Escrow Agent) permitted assigns.
Upon the occurrence of the Transfer (as defined below) contemplated by the
Assignment and Assumption Agreement (as defined below), the Pass Through Trustee
shall (without further act) be deemed to have transferred all of its right,
title and interest in and to this Agreement to the trustee of the Successor
Trust (as defined below) and, thereafter, the trustee of the Successor Trust
shall be deemed to be the "Pass Through Trustee" hereunder with the rights of
the "Pass Through Trustee" hereunder, and each reference herein to "America West
Airlines Pass Through Trust 1999-1C-O" shall be deemed to be a reference to
"America West Airlines Pass Through Trust 1999-1C-S". The Escrow Agent and the
Depositary hereby acknowledge and consent to the Transfer contemplated by the
Assignment and Assumption Agreement. For the purposes of this Section 6,
"Transfer" means the transfer contemplated by the Assignment and Assumption
Agreement; "Assignment and Assumption Agreement" means the Assignment and
Assumption Agreement to be entered into between the Pass Through Trustee and the
trustee of the Successor Trust, substantially in the form of Exhibit D to the
Pass Through Trust Agreement; and "Successor Trust" means the America West
Airlines Pass Through Trust 1999-1C-S.
6
<PAGE> 8
SECTION 6. Amendment, Etc. This Agreement may not be amended, waived or
otherwise modified except by an instrument in writing signed by the party
against whom the amendment, waiver or other modification is sought to be
enforced and by the Pass Through Trustee.
SECTION 7. Notices. Unless otherwise expressly provided herein, any
notice or other communication under this Agreement shall be in writing
(including by facsimile) and shall be deemed to be given and effective upon
receipt thereof (or, if received after normal business hours, the next open of
business on a Business Day). All notices shall be sent to (x) in the case of the
Depositary, ABN AMRO BANK N.V., 135 South LaSalle Street, Chicago, Illinois
60603, Attention: Vice President - Aerospace (Telecopier: 312-606-8428), with a
copy to ABN AMRO Bank N.V., Chicago Branch, 181 W. Madison Street, Chicago,
Illinois 60602, Attention: Money Market Desk (Telecopier: 312-904-9107) or (y)
in the case of the Escrow Agent, Wilmington Trust Company, 1100 North Market
Street, Wilmington, Delaware 19890, Attention: Corporate Trust Administration
(Telecopier: (302) 651-8882), in each case, with a copy to the Pass Through
Trustee, Wilmington Trust Company, 1100 North Market Street, Wilmington,
Delaware 19890, Attention: Corporate Trust Administration (Telecopier: (302)
651-8882) and to America West, America West Airlines, Inc., 4000 East Sky Harbor
Boulevard, Phoenix, Arizona 95043, Attention: Senior Vice President-Legal
Affairs (Telecopier: (602) 693-5904) (or at such other address as any such party
may specify from time to time in a written notice to the parties hereto). On or
prior to the execution of this Agreement, the Escrow Agent has delivered to the
Depositary a certificate containing specimen signatures of the representatives
of the Escrow Agent who are authorized to give notices and instructions with
respect to this Agreement. The Depositary may conclusively rely on such
certificate until the Depositary receives written notice from the Escrow Agent
to the contrary.
SECTION 8. Obligations Unconditional. The Depositary hereby
acknowledges and agrees that its obligation to repay each Deposit together with
interest thereon as provided herein is absolute, irrevocable and unconditional
and constitutes a full recourse obligation of the Depositary enforceable against
it to the full extent of all of its assets and properties.
SECTION 9. Entire Agreement. This Agreement (including all attachments
hereto) sets forth all of the promises, covenants, agreements, conditions and
understandings between the Depositary and the Escrow Agent with respect to the
subject matter hereof and supersedes all prior and contemporaneous agreements
and undertakings, inducements or conditions, express or implied, oral or
written.
SECTION 10. Governing Law. This Agreement, and the rights and
obligations of the Depositary and the Escrow Agent with respect to the Deposits,
shall be governed by, and construed in accordance with, the law of the State of
New York.
SECTION 11. Waiver of Jury Trial Right. EACH OF THE DEPOSITARY AND THE
ESCROW AGENT ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS
RIGHT TO A TRIAL BY JURY.
7
<PAGE> 9
SECTION 12. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument.
SECTION 13. Head Office Obligation. ABN AMRO Bank N.V. hereby agrees
that the obligations of the Depositary hereunder are also the obligations of ABN
AMRO Bank N.V.'s Head Office in the Netherlands. Accordingly, any beneficiary of
this Agreement will be able to proceed directly against ABN AMRO Bank N.V.'s
Head Office in the Netherlands if ABN AMRO Bank N.V.'s Chicago branch defaults
in its obligation to such beneficiary under this Agreement.
SECTION 14. Special Deposits. Notwithstanding anything to the contrary
in this Agreement, (i) the first Deposit listed on Schedule I hereto and the
second Deposit listed on Schedule I hereto (collectively, the "Special
Deposits") shall not bear interest, but otherwise shall be treated as Deposits
for all purposes of this Agreement and (ii) the Escrow Agent shall withdraw both
Special Deposits on the date hereof and may re-deposit all or any portion of
each such Special Deposit on the date hereof in accordance with Section 1.6
hereof, and, for the avoidance of doubt, any such re-deposited sum shall no
longer constitute a "Special Deposit" hereunder but shall be treated as a new
Deposit for all purposes hereunder and shall bear interest as provided in
Section 1.4 hereof.
* * *
8
<PAGE> 10
IN WITNESS WHEREOF, the Escrow Agent and the Depositary have
caused this Deposit Agreement to be duly executed as of the day and year first
above written.
WILMINGTON TRUST COMPANY,
as Escrow Agent
By: /s/ James P. Lawler
-------------------------------------
Name: James P. Lawler
Title: Vice President
ABN AMRO BANK N.V., CHICAGO BRANCH, as
Depositary
By: /s/ Claudia C. Heldring
-------------------------------------
Name: Claudia C. Heldring
Title: Vice President
By: /s/ Carla S. Waggoner
-------------------------------------
Name: Carla S. Waggoner
Title: Assistant Vice President
<PAGE> 11
Schedule I
Schedule of Deposits
(Class C)
<TABLE>
<CAPTION>
Date Deposit Amount Account No. Maturity Date
- ---- -------------- ----------- -------------
<S> <C> <C> <C>
9/21/99 1,691,065.20 00454176-807C September 27, 2000
9/21/99 2,318,119.10 00454176-654C September 27, 2000
9/21/99 1,870,333.54 616044 September 27, 2000
9/21/99 2,300,251.48 616076 September 27, 2000
9/21/99 1,879,000.00 616080 September 27, 2000
9/21/99 2,253,531.73 616082 September 27, 2000
9/21/99 2,253,531.73 616110 September 27, 2000
9/21/99 1,881,333.54 616114 September 27, 2000
9/21/99 1,124,354.33 616158 September 27, 2000
9/21/99 2,586,479.35 616171 September 27, 2000
</TABLE>
<PAGE> 12
EXHIBIT A
NOTICE OF PURCHASE WITHDRAWAL
ABN AMRO BANK N.V.
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Lukas van der Hoef
Telecopier: (312) 606-8428
Gentlemen:
Reference is made to the Deposit Agreement (Class C) dated as of
September 21, 1999 (the "Deposit Agreement") between Wilmington Trust Company,
as Escrow Agent, and ABN AMRO Bank N.V., Chicago Branch, as Depositary (the
"Depositary").
In accordance with Section 1.5(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the Deposit,
$_______, Account No. ____________.
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposit to [________________, Account No. _____, Reference: _________] on
_________ __, 199_, upon the telephonic request of a representative of the Pass
Through Trustee.
WILMINGTON TRUST COMPANY,
as Escrow Agent
By:
______________________________________
Name:
_________________________________
Title:
________________________________
Dated: _________, 199_
<PAGE> 13
EXHIBIT B
NOTICE OF FINAL WITHDRAWAL
ABN AMRO BANK N.V.
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Lukas van der Hoef
Telecopier: (312) 606-8428
Gentlemen:
Reference is made to the Deposit Agreement (Class C) dated as of
September 21, 1999 (the "Deposit Agreement") between Wilmington Trust Company,
as Escrow Agent, and ABN AMRO Bank N.V., Chicago Branch, as Depositary (the
"Depositary").
In accordance with Section 1.5(b) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of all Deposits
for payment on _______________, 199__.
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposits [and accrued interest thereon] to the Paying Agent at
__________________________, ABA# _____________, Account No. _____________,
Reference: America West 1999-1.
WILMINGTON TRUST COMPANY,
as Escrow Agent
By:
_____________________________________
Name:
________________________________
Title:
_______________________________
Dated: _________, 199_
<PAGE> 14
EXHIBIT C
NOTICE OF REPLACEMENT WITHDRAWAL
ABN AMRO BANK N.V.
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Lukas van der Hoef
Telecopier: (312) 606-8428
Gentlemen:
Reference is made to the Deposit Agreement (Class C) dated as of
September 21, 1999 (the "Deposit Agreement") between Wilmington Trust Company,
as Escrow Agent, and ABN AMRO Bank N.V., Chicago Branch, as Depositary (the
"Depositary").
In accordance with Section 1.5(b)(ii) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of all Deposits
for payment on _______________, 199__.
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposits to [________________] at __________________________, ABA#
_____________, Account No. _____________, Reference: America West 1999-1 [and to
pay accrued interest thereon to the Paying Agent at ___________, ABA
#___________, Acct. No. ___________, Reference: America West ___ 1999-1]1. [The
undersigned further directs the Depositary to pay the accrued interest on the
Deposits to the Paying Agent on _______, __ (the next Interest Payment Date) at
ABA # ___________, Account No. __________, Reference: America West 1999-1.]2
WILMINGTON TRUST COMPANY,
as Escrow Agent
By:
_____________________________________
Name:
________________________________
Title:
_______________________________
Dated: _________, 199_
________
1 To be deleted in the case of a Replacement Withdrawal scheduled for a date
which is not an Interest Payment Date (as defined in the Escrow and Paying Agent
Agreement).
2 To be inserted only in the case of a Replacement Withdrawal scheduled for a
date which is not an Interest Payment Date (as defined in the Escrow and Paying
Agent Agreement).
<PAGE> 1
Exhibit 4.12
DEPOSIT AGREEMENT
(Class G)
Dated as of September 21, 1999
between
WILMINGTON TRUST COMPANY
as Escrow Agent
and
ABN AMRO BANK N.V.,
Chicago Branch
as Depositary
<PAGE> 2
DEPOSIT AGREEMENT (Class G) dated as of September 21, 1999 (as amended,
modified or supplemented from time to time, this "Agreement") between WILMINGTON
TRUST COMPANY, a Delaware banking corporation, as Escrow Agent under the Escrow
and Paying Agent Agreement referred to below (in such capacity, together with
its successors in such capacity, the "Escrow Agent"), and ABN AMRO BANK N.V., a
bank organized under the laws of the Netherlands, acting through its Chicago
branch, as depositary bank (the "Depositary").
W I T N E S S E T H
WHEREAS, America West Airlines, Inc. ("America West") and Wilmington
Trust Company, not in its individual capacity except as otherwise expressly
provided therein, but solely as trustee (in such capacity, together with its
successors in such capacity, the "Pass Through Trustee") have entered into a
Pass Through Trust Agreement dated as of September 21, 1999 (as amended,
modified or supplemented from time to time in accordance with the terms thereof,
the "Pass Through Trust Agreement") relating to America West Airlines Pass
Through Trust 1999-1G-O pursuant to which the America West Airlines Pass Through
Trust, Series 1999-1G-O Certificates referred to therein (the "Certificates")
are being issued;
WHEREAS, America West and Morgan Stanley & Co. Incorporated, Donaldson,
Lufkin & Jenrette Securities Corporation, Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Salomon Smith Barney Inc. (collectively, the "Initial
Purchasers" and, together with their respective transferees and assigns as
registered owners of the Certificates, the "Investors") have entered into a
Purchase Agreement dated as of September 14, 1999 pursuant to which the Pass
Through Trustee will issue and sell the Certificates to the Initial Purchasers
(the net proceeds of such sale being herein referred to as the "Net Proceeds");
WHEREAS, America West, the Pass Through Trustee, certain other pass
through trustees and certain other persons concurrently herewith are entering
into the Note Purchase Agreement, dated as of the date hereof (the "Note
Purchase Agreement"), pursuant to which the Pass Through Trustee has agreed to
acquire from time to time on or prior to the Delivery Period Termination Date
(as defined in the Note Purchase Agreement) equipment notes (the "Equipment
Notes") issued to finance or refinance the acquisition of aircraft by America
West, as lessee or as owner, utilizing a portion of the Net Proceeds;
WHEREAS, the Escrow Agent, the Initial Purchasers, the Pass Through
Trustee and Wilmington Trust Company, as paying agent for the Escrow Agent (in
such capacity, together with its successors in such capacity, the "Paying
Agent") concurrently herewith are entering into an Escrow and Paying Agent
Agreement, dated as of the date hereof (as amended, modified or supplemented
from time to time in accordance with the terms thereof, the "Escrow and Paying
Agent Agreement"); and
WHEREAS, the Initial Purchasers and the Pass Through Trustee intend
that the Net Proceeds be held in escrow by the Escrow Agent on behalf of the
Investors pursuant to the Escrow and Paying Agent Agreement, subject to
withdrawal upon request of and proper
<PAGE> 3
certification by the Pass Through Trustee for the purpose of purchasing
Equipment Notes, and that pending such withdrawal the Net Proceeds be deposited
by the Escrow Agent with the Depositary pursuant to this Agreement, which
provides for the Depositary to pay interest for distribution to the Investors
and to establish accounts from which the Escrow Agent shall make withdrawals
upon request of and proper certification by the Pass Through Trustee.
NOW, THEREFORE, in consideration of the obligations contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1.1 Acceptance of Depositary. The Depositary hereby agrees to
act as depositary bank as provided herein and in connection therewith to accept
all amounts to be delivered to or held by the Depositary pursuant to the terms
of this Agreement. The Depositary further agrees to hold, maintain and safeguard
the Deposits and the Accounts (as defined below) during the term of this
Agreement in accordance with the provisions of this Agreement. The Escrow Agent
shall not have any right to withdraw, assign or otherwise transfer moneys held
in the Accounts except as permitted by this Agreement.
SECTION 1.2 Establishment of Accounts. The Escrow Agent hereby
instructs the Depositary, and the Depositary agrees, to establish the separate
deposit accounts listed on Schedule I hereto and to establish such additional
separate deposit accounts as may be required in connection with the deposits
contemplated by Section 1.6 hereof (each, an "Account" and collectively, the
"Accounts"), each in the name of the Escrow Agent and all on the terms and
conditions set forth in this Agreement.
SECTION 1.3 Deposits. The Escrow Agent shall direct the Initial
Purchasers to deposit with the Depositary on the date of this Agreement (the
"Deposit Date") in Federal (same day) funds by wire transfer to: Federal Reserve
Bank, New York, ABN NY ABA #026009580, Account: Chicago Treasury, Reference:
America West Deposit, and the Depositary shall accept from the Initial
Purchasers, on behalf of the Escrow Agent, the sum of US$233,668,000. Upon
acceptance of such sum, the Depositary shall (i) establish each of the deposits
specified in Schedule I hereto maturing on the respective dates set forth
therein (including any deposit made pursuant to Section 1.6 hereof,
individually, a "Deposit" and, collectively, the "Deposits") and (ii) credit
each Deposit to the related Account as set forth therein. No amount shall be
deposited in any Account other than the related Deposit.
SECTION 1.4 Interest. (a) Each Deposit shall bear interest from and
including the date of deposit to but excluding the date of withdrawal at the
rate of 7.93% per annum (computed on the basis of a year of twelve 30-day
months) payable to the Paying Agent on behalf of the Escrow Agent semi-annually
in arrears on each January 2 and July 2 commencing on January 2, 2000 (each, an
"Interest Payment Date") and, as provided in Section 1.5(b) hereof, on the date
of the Final Withdrawal (as defined below), all in accordance with the terms of
this Agreement (whether or not any such Deposit is withdrawn on an Interest
Payment Date). Interest accrued on any Deposit that is withdrawn pursuant to a
Notice of Purchase Withdrawal (as defined below) shall be paid on the next
Interest Payment Date, notwithstanding any intervening Final
2
<PAGE> 4
Withdrawal (as defined below) of all of the remaining Deposits (any such
Deposits consisting of unpaid interest only and remaining after a Final
Withdrawal may be referred to as the "Carryover Deposits"). In addition,
interest accrued on any Deposit that is withdrawn pursuant to a Notice of
Replacement Withdrawal (as defined below) but not paid on the date of the Final
Withdrawal shall be paid on the next Interest Payment Date.
(b) The parties hereto further acknowledge and agree that upon
any increase in the rate of interest on the Certificates (such increase referred
to as a "Rate Increase") pursuant to the terms of the Registration Rights
Agreement, the rate of interest borne by each Deposit in accordance with Section
1.4(a) above shall increase by the amount of such Rate Increase, and upon any
subsequent decrease in the rate of interest on the Equipment Notes (such
decrease referred to as a "Rate Decrease") pursuant to the terms of the
Registration Rights Agreement, the rate of interest borne by such Deposit shall
decrease by the amount of such Rate Decrease. For the purposes of this Section
1.4(b), "Registration Rights Agreement" means the Exchange and Registration
Rights Agreement dated the date hereof among America West, the Pass Through
Trustee, certain other pass through trustees and the Initial Purchasers.
SECTION 1.5 Withdrawals. (a) On and after the date seven days after the
establishment of any Deposit, the Escrow Agent may, by providing at least one
Business Day's prior notice of withdrawal to the Depositary in the form of
Exhibit A hereto (a "Notice of Purchase Withdrawal"), withdraw not less than the
entire principal balance of such Deposit, except that at any time prior to the
actual withdrawal of such Deposit, the Escrow Agent or the Pass Through Trustee
may, by notice to the Depositary, cancel such withdrawal (including on the
scheduled date therefor), and thereafter such Deposit shall continue to be
maintained by the Depositary in accordance with the original terms thereof.
Following such withdrawal the balance in the related Account shall be zero and
the Depositary shall, subject to the Depositary's payment obligation pursuant to
the last sentence of Section 1.4(a) hereof, close such Account. As used herein,
"Business Day" means any day, other than a Saturday, Sunday or other day on
which commercial banks are authorized or required by law to close in New York,
New York, Chicago, Illinois, Phoenix, Arizona or Wilmington, Delaware.
Notwithstanding the foregoing, in the event the date of issuance of the
Certificates coincides with the scheduled delivery date of any Aircraft to be
financed pursuant to the terms of the Note Purchase Agreement, the Notice of
Purchase Withdrawal may be delivered to the Depositary on such scheduled
delivery date for withdrawals on that day. The Depositary reserves the right,
upon at least 14 days' prior written notice to America West, the Escrow Agent
and the Pass Through Trustee, to require seven days' notice for any withdrawal.
(b) (i) The Escrow Agent may, subject to Section 1.02(d) of
the Escrow and Paying Agent Agreement, by providing at least 15 days' prior
notice of withdrawal to the Depositary in the form of Exhibit B hereto (a
"Notice of Final Withdrawal"), withdraw the entire amount of all of the
remaining Deposits together with the payment by the Depositary of all accrued
and unpaid interest on such Deposits to but excluding the specified date of
withdrawal (a "Final Withdrawal"), on such date as shall be specified in such
Notice of Final Withdrawal. If a Notice of Final Withdrawal has not been given
to the Depositary on or before September 6, 2000
3
<PAGE> 5
and there are unwithdrawn Deposits on such date, the Depositary shall pay the
amount of the Final Withdrawal to the Paying Agent on September 27, 2000.
(ii) The Escrow Agent may, by providing at least 15 days'
prior notice of withdrawal to the Depositary in the form of Exhibit C hereto (a
"Notice of Replacement Withdrawal"), withdraw the entire amount of all Deposits
then held by the Depositary together with, if specified in such Notice of
Replacement Withdrawal, the payment by the Depositary of all accrued and unpaid
interest on such Deposits to but excluding the specified date of withdrawal (a
"Replacement Withdrawal"), on such date as shall be specified in such Notice of
Replacement Withdrawal.
(c) If the Depositary receives a duly completed Notice of
Purchase Withdrawal or Notice of Final Withdrawal or Notice of Replacement
Withdrawal (each, a "Withdrawal Notice") complying with the provisions of this
Agreement, it shall make the payments specified therein in accordance with the
provisions of this Agreement. If such complying Withdrawal Notice is received by
the Depositary no later than 3:00 p.m. on a Business Day, the Depositary shall
make the payments requested in such Withdrawal Notice no later than 11:00 a.m.
on the next succeeding Business Day or such later day specified in such
Withdrawal Notice, and if such complying Withdrawal Notice is received by the
Depositary after 3:00 p.m. on a Business Day, the Depositary shall make the
payments requested in such Withdrawal Notice no later than 11:00 a.m. on the
second Business Day next following such Business Day.
SECTION 1.6 Other Accounts. On the date of withdrawal of any Deposit
pursuant to a Notice of Purchase Withdrawal, the Escrow Agent, or the Pass
Through Trustee on behalf of the Escrow Agent, shall be entitled to re-deposit
with the Depositary any portion thereof and the Depositary shall accept the same
for deposit hereunder. Any sums so received for deposit shall be established as
a new Deposit and credited to a new Account, all as more fully provided in
Section 1.3 hereof, and thereafter the provisions of this Agreement shall apply
thereto as fully and with the same force and effect as if such Deposit had been
established on the Deposit Date except that (i) such Deposit may not be
withdrawn prior to the date seven days after the establishment thereof and (ii)
such Deposit shall mature on September 27, 2000 and bear interest as provided in
Section 1.4. The Depositary shall promptly give notice to the Escrow Agent of
receipt of each such re-deposit and the account number assigned thereto.
SECTION 2. Termination. This Agreement shall terminate on the fifth
Business Day after the later of the date on which (i) all of the Deposits shall
have been withdrawn and paid as provided herein without any re-deposit and (ii)
all accrued and unpaid interest on the Deposits shall have been paid as provided
herein, but in no event prior to the date on which the Depositary shall have
performed in full its obligations hereunder. For the avoidance of doubt, the
obligations of the Depositary under the last two sentences of Section 1.4(a)
hereof shall remain in full force and effect notwithstanding the execution and
delivery of a replacement Deposit Agreement in accordance with Section 4(a)(vii)
of the Note Purchase Agreement.
SECTION 3. Payments. All payments (including, without limitation, those
payments made in respect of Taxes (as defined and provided for below)) made by
the Depositary hereunder
4
<PAGE> 6
shall be paid in United States Dollars and immediately available funds by wire
transfer (i) in the case of accrued interest on the Deposits payable under
Section 1.4 hereof or any Final Withdrawal, directly to the Paying Agent at
Wilmington Trust Company, Wilmington, Delaware, ABA# 031-100-092, for credit to
the account of America West 1999-1, Account No. 49184-0, Attention: Rosemary
Pantano, Telephone No. (302) 427-4805, Reference: America West 1999-1G, or to
such other account as the Paying Agent may direct from time to time in writing
to the Depositary and the Escrow Agent and (ii) in the case of any withdrawal of
one or more Deposits pursuant to a Notice of Purchase Withdrawal or Notice of
Replacement Withdrawal, directly to or as directed by the Pass Through Trustee
as specified and in the manner provided in such Notice of Purchase Withdrawal or
Notice of Replacement Withdrawal. The Depositary hereby waives any and all
rights of set-off, combination of accounts, right of retention or similar right
(whether arising under applicable law, contract or otherwise) it may have
against the Deposits howsoever arising. All payments on or in respect of each
Deposit shall be made free and clear of and without reduction for or on account
of any and all taxes, levies or other impositions or charges (collectively,
"Taxes"). However, if the Depositary or the Paying Agent (pursuant to Section
2.04 of the Escrow and Paying Agent Agreement) shall be required by law to
deduct or withhold any Taxes from or in respect of any sum payable hereunder,
the Depositary shall (i) make such deductions or withholding, (ii) pay the full
amount deducted or withheld (including in respect of such additional amounts) to
the competent taxation authority and (iii) if the Taxes required to be deducted
or withheld are imposed by the Netherlands or any political subdivision thereof,
pay such additional amounts as may be necessary in order that the actual amount
received by the designated recipient of such sum under this Agreement or the
Escrow and Paying Agent Agreement after such deduction or withholding equals the
sum it would have received had no such deduction or withholding been required.
If the date on which any payment due on any Deposit would otherwise fall on a
day which is not a Business Day, such payment shall be made on the next
succeeding Business Day, and no additional interest shall accrue in respect of
such extension.
SECTION 4. Representation and Warranties. The Depositary hereby
represents and warrants to America West, the Escrow Agent, the Pass Through
Trustee, the Initial Purchasers and the Paying Agent that:
(1) it is a bank duly organized and validly existing in good
standing under the laws of its jurisdiction of organization and is duly
qualified to conduct banking business in the State of Illinois through its
Chicago branch;
(2) it has full power, authority and legal right to conduct
its business and operations as currently conducted and to enter into and perform
its obligations under this Agreement;
(3) the execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action on the part of it
and do not require any stockholder approval, or approval or consent of any
trustee or holder of any indebtedness or obligations of it, and such document
has been duly executed and delivered by it and constitutes its legal, valid and
binding obligations enforceable against it in accordance with the terms hereof;
5
<PAGE> 7
(4) 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 is required for the execution,
delivery or performance by it of this Agreement;
(5) neither the execution, delivery or performance by it of
this Agreement, nor compliance with the terms and provisions hereof, 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 it or any similar instrument
binding on it or any order, writ, injunction or decree of any court or
governmental authority against it or by which it or any of its properties is
bound or any indenture, mortgage or contract or other agreement or instrument to
which it 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; and
(6) there are no pending or, to its knowledge, threatened
actions, suits, investigations or proceedings (whether or not purportedly on
behalf of it) against or affecting it or any of its property before or by any
court or administrative agency which, if adversely determined, (i) would
adversely affect the ability of it to perform its obligations under this
Agreement or (ii) would call into question or challenge the validity of this
Agreement or the enforceability hereof in accordance with the terms hereof, nor
is the Depositary in default with respect to any order of any court,
governmental authority, arbitration board or administrative agency so as to
adversely affect its ability to perform its obligations under this Agreement.
SECTION 5. Transfer. Neither party hereto shall be entitled to assign
or otherwise transfer this Agreement (or any interest herein) other than (in the
case of the Escrow Agent) to a successor escrow agent under the Escrow and
Paying Agent Agreement, and any purported assignment in violation thereof shall
be void. This Agreement shall be binding upon the parties hereto and their
respective successors and (in the case of the Escrow Agent) permitted assigns.
Upon the occurrence of the Transfer (as defined below) contemplated by the
Assignment and Assumption Agreement (as defined below), the Pass Through Trustee
shall (without further act) be deemed to have transferred all of its right,
title and interest in and to this Agreement to the trustee of the Successor
Trust (as defined below) and, thereafter, the trustee of the Successor Trust
shall be deemed to be the "Pass Through Trustee" hereunder with the rights of
the "Pass Through Trustee" hereunder, and each reference herein to "America West
Airlines Pass Through Trust 1999-1G-O" shall be deemed to be a reference to
"America West Airlines Pass Through Trust 1999-1G-S". The Escrow Agent and the
Depositary hereby acknowledge and consent to the Transfer contemplated by the
Assignment and Assumption Agreement. For the purposes of this Section 6,
"Transfer" means the transfer contemplated by the Assignment and Assumption
Agreement; "Assignment and Assumption Agreement" means the Assignment and
Assumption Agreement to be entered into between the Pass Through Trustee and the
trustee of the Successor Trust, substantially in the form of Exhibit D to the
Pass Through Trust Agreement; and "Successor Trust" means the America West
Airlines Pass Through Trust 1999-1G-S.
6
<PAGE> 8
SECTION 6. Amendment, Etc. This Agreement may not be amended, waived or
otherwise modified except by an instrument in writing signed by the party
against whom the amendment, waiver or other modification is sought to be
enforced and by the Pass Through Trustee.
SECTION 7. Notices. Unless otherwise expressly provided herein, any
notice or other communication under this Agreement shall be in writing
(including by facsimile) and shall be deemed to be given and effective upon
receipt thereof (or, if received after normal business hours, the next open of
business on a Business Day). All notices shall be sent to (x) in the case of the
Depositary, ABN AMRO BANK N.V., 135 South LaSalle Street, Chicago, Illinois
60603, Attention: Vice President - Aerospace (Telecopier: 312-606-8428), with a
copy to ABN AMRO Bank N.V., Chicago Branch, 181 W. Madison Street, Chicago,
Illinois 60602, Attention: Money Market Desk (Telecopier: 312-904-9107) or (y)
in the case of the Escrow Agent, Wilmington Trust Company, 1100 North Market
Street, Wilmington, Delaware 19890, Attention: Corporate Trust Administration
(Telecopier: (302) 651-8882), in each case, with a copy to the Pass Through
Trustee, Wilmington Trust Company, 1100 North Market Street, Wilmington,
Delaware 19890, Attention: Corporate Trust Administration (Telecopier: (302)
651-8882) and to America West, America West Airlines, Inc., 4000 East Sky Harbor
Boulevard, Phoenix, Arizona 95043, Attention: Senior Vice President-Legal
Affairs (Telecopier: (602) 693-5904) (or at such other address as any such party
may specify from time to time in a written notice to the parties hereto). On or
prior to the execution of this Agreement, the Escrow Agent has delivered to the
Depositary a certificate containing specimen signatures of the representatives
of the Escrow Agent who are authorized to give notices and instructions with
respect to this Agreement. The Depositary may conclusively rely on such
certificate until the Depositary receives written notice from the Escrow Agent
to the contrary.
SECTION 8. Obligations Unconditional. The Depositary hereby
acknowledges and agrees that its obligation to repay each Deposit together with
interest thereon as provided herein is absolute, irrevocable and unconditional
and constitutes a full recourse obligation of the Depositary enforceable against
it to the full extent of all of its assets and properties.
SECTION 9. Entire Agreement. This Agreement (including all attachments
hereto) sets forth all of the promises, covenants, agreements, conditions and
understandings between the Depositary and the Escrow Agent with respect to the
subject matter hereof and supersedes all prior and contemporaneous agreements
and undertakings, inducements or conditions, express or implied, oral or
written.
SECTION 10. Governing Law. This Agreement, and the rights and
obligations of the Depositary and the Escrow Agent with respect to the Deposits,
shall be governed by, and construed in accordance with, the law of the State of
New York.
SECTION 11. Waiver of Jury Trial Right. EACH OF THE DEPOSITARY AND THE
ESCROW AGENT ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS
RIGHT TO A TRIAL BY JURY.
7
<PAGE> 9
SECTION 12. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument.
SECTION 13. Head Office Obligation. ABN AMRO Bank N.V. hereby agrees
that the obligations of the Depositary hereunder are also the obligations of ABN
AMRO Bank N.V.'s Head Office in the Netherlands. Accordingly, any beneficiary of
this Agreement will be able to proceed directly against ABN AMRO Bank N.V.'s
Head Office in the Netherlands if ABN AMRO Bank N.V.'s Chicago branch defaults
in its obligation to such beneficiary under this Agreement.
SECTION 14. Special Deposits. Notwithstanding anything to the contrary
in this Agreement, (i) the first Deposit listed on Schedule I hereto and the
second Deposit listed on Schedule I hereto (collectively, the "Special
Deposits") shall not bear interest, but otherwise shall be treated as Deposits
for all purposes of this Agreement and (ii) the Escrow Agent shall withdraw both
Special Deposits on the date hereof and may re-deposit all or any portion of
each such Special Deposit on the date hereof in accordance with Section 1.6
hereof, and, for the avoidance of doubt, any such re-deposited sum shall no
longer constitute a "Special Deposit" hereunder but shall be treated as a new
Deposit for all purposes hereunder and shall bear interest as provided in
Section 1.4 hereof.
* * *
8
<PAGE> 10
IN WITNESS WHEREOF, the Escrow Agent and the Depositary have
caused this Deposit Agreement to be duly executed as of the day and year first
above written.
WILMINGTON TRUST COMPANY,
as Escrow Agent
By: /s/ James P. Lawler
-------------------------------------
Name: James P. Lawler
--------------------------------
Title: Vice President
--------------------------------
ABN AMRO BANK N.V., CHICAGO BRANCH, as
Depositary
By: /s/ Claudia C. Heldring
-------------------------------------
Name: Claudia C. Heldring
--------------------------------
Title: Vice President
-------------------------------
By: /s/ Carla S. Waggoner
-------------------------------------
Name: Carla S. Waggoner
--------------------------------
Title: Assistant Vice President
-------------------------------
<PAGE> 11
Schedule I
Schedule of Deposits
(Class G)
<TABLE>
<CAPTION>
Date Deposit Amount Account No. Maturity Date
- ---- -------------- ----------- -------------
<S> <C> <C> <C>
9/21/99 21,295,200.00 00454176-807G September 27, 2000
9/21/99 25,183,014.44 00454176-654G September 27, 2000
9/21/99 21,321,800.00 616044 September 27, 2000
9/21/99 25,238,082.06 616070 September 27, 2000
9/21/99 21,420,600.00 616079 September 27, 2000
9/21/99 25,427,401.81 616081 September 27, 2000
9/21/99 25,427.401.81 616108 September 27, 2000
9/21/99 21,447,200.00 616112 September 27, 2000
9/21/99 21,422,245.69 616153 September 27, 2000
9/21/99 25,485,054.19 616161 September 27, 2000
</TABLE>
<PAGE> 12
EXHIBIT A
NOTICE OF PURCHASE WITHDRAWAL
ABN AMRO BANK N.V.
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Lukas van der Hoef
Telecopier: (312) 606-8428
Gentlemen:
Reference is made to the Deposit Agreement (Class G) dated as of
September 21, 1999 (the "Deposit Agreement") between Wilmington Trust Company,
as Escrow Agent, and ABN AMRO Bank N.V., Chicago Branch, as Depositary (the
"Depositary").
In accordance with Section 1.5(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the Deposit,
$_______, Account No. ____________.
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposit to [________________, Account No. _____, Reference: _________] on
_________ __, 199_, upon the telephonic request of a representative of the Pass
Through Trustee.
WILMINGTON TRUST COMPANY,
as Escrow Agent
By:_____________________________________
Name:________________________________
Title:_______________________________
Dated: _________, 199_
<PAGE> 13
EXHIBIT B
NOTICE OF FINAL WITHDRAWAL
ABN AMRO BANK N.V.
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Lukas van der Hoef
Telecopier: (312) 606-8428
Gentlemen:
Reference is made to the Deposit Agreement (Class G) dated as of
September 21, 1999 (the "Deposit Agreement") between Wilmington Trust Company,
as Escrow Agent, and ABN AMRO Bank N.V., Chicago Branch, as Depositary (the
"Depositary").
In accordance with Section 1.5(b) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of all Deposits
for payment on _______________, 199__.
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposits [and accrued interest thereon] to the Paying Agent at
__________________________, ABA# _____________, Account No. _____________,
Reference: America West 1999-1.
WILMINGTON TRUST COMPANY,
as Escrow Agent
By:_____________________________________
Name:________________________________
Title:_____________________________
Dated: _________, 199_
<PAGE> 14
EXHIBIT C
NOTICE OF REPLACEMENT WITHDRAWAL
ABN AMRO BANK N.V.
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Lukas van der Hoef
Telecopier: (312) 606-8428
Gentlemen:
Reference is made to the Deposit Agreement (Class G) dated as of
September 21, 1999 (the "Deposit Agreement") between Wilmington Trust Company,
as Escrow Agent, and ABN AMRO Bank N.V., Chicago Branch, as Depositary (the
"Depositary").
In accordance with Section 1.5(b)(ii) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of all Deposits
for payment on _______________, 199__.
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposits to [________________] at __________________________, ABA#
_____________, Account No. _____________, Reference: America West 1999-1 [and to
pay accrued interest thereon to the Paying Agent at ___________, ABA
#___________, Acct. No. ___________, Reference: America West ___ 1999-1]1. [The
undersigned further directs the Depositary to pay the accrued interest on the
Deposits to the Paying Agent on _______, __ (the next Interest Payment Date) at
ABA # ___________, Account No. __________, Reference: America West 1999-1.]2
WILMINGTON TRUST COMPANY,
as Escrow Agent
By:_____________________________________
Name:________________________________
Title:_______________________________
Dated: _________, 199_
- --------
1 To be deleted in the case of a Replacement Withdrawal scheduled for a date
which is not an Interest Payment Date (as defined in the Escrow and Paying Agent
Agreement).
2 To be inserted only in the case of a Replacement Withdrawal scheduled for a
date which is not an Interest Payment Date (as defined in the Escrow and Paying
Agent Agreement).
<PAGE> 1
EXHIBIT 4.13
ESCROW AND PAYING AGENT AGREEMENT
(Class C)
Dated as of September 21, 1999
among
WILMINGTON TRUST COMPANY
as Escrow Agent
MORGAN STANLEY & CO. INCORPORATED,
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
and
SALOMON SMITH BARNEY INC.
as Initial Purchasers
WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Pass Through Trustee
for and on behalf of
America West Airlines Pass Through Trust 1999-1C-O
as Pass Through Trustee
and
WILMINGTON TRUST COMPANY
as Paying Agent
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1. Escrow Agent...................................................................... 2
Section 1.01. Appointment of Escrow Agent....................................................... 2
Section 1.02. Instruction; Etc.................................................................. 3
Section 1.03. Initial Escrow Amount; Issuance of Escrow Receipts................................ 4
Section 1.04. Payments to Receiptholders........................................................ 4
Section 1.05. Mutilated, Destroyed, Lost or Stolen Escrow Receipt............................... 4
Section 1.06. Additional Escrow Amounts......................................................... 5
Section 1.07. Resignation or Removal of Escrow Agent............................................ 5
Section 1.08. Persons Deemed Owners............................................................. 6
Section 1.09. Further Assurances................................................................ 6
SECTION 2. Paying Agent...................................................................... 6
Section 2.01. Appointment of Paying Agent....................................................... 6
Section 2.02. Establishment of Paying Agent Account............................................. 6
Section 2.03. Payments from Paying Agent Account................................................ 6
Section 2.04. Withholding Taxes................................................................. 7
Section 2.05. Resignation or Removal of Paying Agent............................................ 8
Section 2.06. Notice of Final Withdrawal........................................................ 8
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 3. Payments.......................................................................... 9
SECTION 4. Other Actions..................................................................... 9
SECTION 5. Representations and Warranties of the Escrow Agent................................ 9
SECTION 6. Representations and Warranties of the Paying Agent................................ 10
SECTION 7. Indemnification................................................................... 11
SECTION 8. Amendment, Etc.................................................................... 12
SECTION 9. Notices. ......................................................................... 12
SECTION 10. Transfer.......................................................................... 13
SECTION 11. Entire Agreement.................................................................. 13
SECTION 12. Governing Law..................................................................... 13
SECTION 13. Waiver of Jury Trial Right........................................................ 13
SECTION 14. Counterparts...................................................................... 14
Exhibit A Escrow Receipt
Exhibit B Withdrawal Certificate
</TABLE>
ii
<PAGE> 4
ESCROW AND PAYING AGENT AGREEMENT (Class C) dated as of
September 21, 1999 (as amended, modified or supplemented from time to time, this
"Agreement") among WILMINGTON TRUST COMPANY, a Delaware banking corporation, as
Escrow Agent (in such capacity, together with its successors in such capacity,
the "Escrow Agent"); MORGAN STANLEY & CO. INCORPORATED, DONALDSON, LUFKIN &
JENRETTE SECURITIES CORPORATION, MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED and SALOMON SMITH BARNEY INC., as Initial Purchasers of the
Certificates referred to below (the "Initial Purchasers" and together with their
respective transferees and assigns as registered owners of the Certificates, the
"Investors") under the Purchase Agreement referred to below; Wilmington Trust
Company, a Delaware banking corporation, not in its individual capacity except
as otherwise expressly provided herein, but solely as trustee (in such capacity,
together with its successors in such capacity, the "Pass Through Trustee") under
the Pass Through Trust Agreement referred to below; and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as paying agent hereunder (in such
capacity, together with its successors in such capacity, the "Paying Agent").
W I T N E S S E T H
WHEREAS, America West Airlines, Inc. ("America West") and the
Pass Through Trustee have entered into a Pass Through Trust Agreement, dated as
of September 21, 1999 (together, as amended, modified or supplemented from time
to time in accordance with the terms thereof, the "Pass Through Trust
Agreement") relating to America West Airlines Pass Through Trust 1999-1C-O (the
"Pass Through Trust") pursuant to which the America West Airlines Pass Through
Trust, Series 1999-1C-O Certificates referred to therein (the "Certificates")
are being issued;
WHEREAS, America West and the Initial Purchasers have entered
into a Purchase Agreement dated as of September 14, 1999 (as amended, modified
or supplemented from time to time in accordance with the terms thereof, the
"Purchase Agreement") pursuant to which the Pass Through Trustee will issue and
sell the Certificates to the Initial Purchasers (the net proceeds of such sale
being herein referred to as the "Net Proceeds");
WHEREAS, America West, the Pass Through Trustee, certain other
pass through trustees and certain other persons concurrently herewith are
entering into the Note Purchase Agreement, dated as of the date hereof (the
"Note Purchase Agreement"), pursuant to which the Pass Through Trustee has
agreed to acquire from time to time on or prior to the Delivery Period
Termination Date (as defined in the Note Purchase Agreement) equipment notes
(the "Equipment Notes") issued to finance or refinance the acquisition of
aircraft by America West, as lessee or as owner, utilizing a portion of the Net
Proceeds;
WHEREAS, the Initial Purchasers and the Pass Through Trustee
intend that the Net Proceeds be held in escrow by the Escrow Agent on behalf of
the Investors, subject to withdrawal upon request by the Pass Through Trustee
and satisfaction of the conditions set forth in the Note Purchase Agreement for
the purpose of purchasing Equipment Notes, and that pending such withdrawal the
Net Proceeds be deposited on behalf of the Escrow Agent with ABN AMRO Bank N.V.,
acting through its Chicago branch, as Depositary (the "Depositary"
<PAGE> 5
2
which shall also be deemed to refer to any Replacement Depositary (as defined in
the Note Purchase Agreement) from and after the date on which the Deposits are
transferred to such Replacement Depositary) under the Deposit Agreement, dated
as of the date hereof between the Depositary and the Escrow Agent relating to
the Pass Through Trust (as amended, modified, supplemented or replaced from time
to time in accordance with the terms thereof, the "Deposit Agreement" which
shall also be deemed to refer to any Replacement Deposit Agreement (as defined
in the Note Purchase Agreement) to which the Escrow Agent becomes a party
pursuant to Section 1.02(a) hereof from and after the transfer of the Deposits
from the Depositary to the Replacement Depositary) pursuant to which, among
other things, the Depositary will pay interest for distribution to the Investors
and establish accounts from which the Escrow Agent shall make withdrawals upon
request of and proper certification by the Pass Through Trustee;
WHEREAS, the Escrow Agent wishes to appoint the Paying Agent
to pay amounts required to be distributed to the Investors in accordance with
this Agreement; and
WHEREAS, capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in the Pass Through Trust Agreement.
NOW, THEREFORE, in consideration of the obligations contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. Escrow Agent.
Section 1.01. Appointment of Escrow Agent. Each of the Initial
Purchasers, for and on behalf of each of the Investors, hereby irrevocably
appoints, authorizes and directs the Escrow Agent to act as escrow agent and
fiduciary hereunder and under the Deposit Agreement for such specific purposes
and with such powers as are specifically delegated to the Escrow Agent by the
terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Any and all money received and held by the Escrow Agent
under this Agreement or the Deposit Agreement shall be held in escrow by the
Escrow Agent in accordance with the terms of this Agreement. This Agreement is
irrevocable and the Investors' rights with respect to any monies received and
held in escrow by the Escrow Agent under this Agreement or the Deposit Agreement
shall only be as provided under the terms and conditions of this Agreement and
the Deposit Agreement. The Escrow Agent (which term as used in this sentence
shall include reference to its affiliates and its own and its affiliates'
officers, directors, employees and agents): (a) shall have no duties or
responsibilities except those expressly set forth in this Agreement; (b) shall
not be responsible to the Pass Through Trustee or the Investors for any
recitals, statements, representations or warranties of any person other then
itself contained in this Agreement or the Deposit Agreement or for the failure
by the Pass Through Trustee, the Investors or any other person or entity (other
than the Escrow Agent) to perform any of its obligations hereunder (whether or
not the Escrow Agent shall have any knowledge thereof); and (c) shall not be
responsible for any action taken or omitted to be taken by it hereunder or
provided for herein or in connection herewith, except for its own willful
misconduct or gross
<PAGE> 6
3
negligence (or simple negligence in connection with the handling of funds) or
breach of its obligations hereunder.
Section 1.02. Instruction; Etc. The Initial Purchasers, for
and on behalf of each of the Investors, hereby irrevocably instruct the Escrow
Agent, and the Escrow Agent agrees, (a) to enter into the Deposit Agreement and,
if requested by the Company pursuant to Section 4(a)(vii) of the Note Purchase
Agreement, to enter into a Replacement Deposit Agreement with the Replacement
Depositary specified by the Company, (b) to appoint the Paying Agent as provided
in this Agreement, (c) upon receipt at any time and from time to time prior to
the Termination Date (as defined below) of a certificate substantially in the
form of Exhibit B hereto (a "Withdrawal Certificate") executed by the Pass
Through Trustee, together with an attached Notice of Purchase Withdrawal in
substantially the form of Exhibit A to the Deposit Agreement duly completed by
the Pass Through Trustee (the "Applicable Notice of Purchase Withdrawal" and the
withdrawal to which it relates, a "Purchase Withdrawal"), immediately to execute
the Applicable Notice of Purchase Withdrawal as Escrow Agent and transmit it to
the Depositary by facsimile transmission in accordance with the Deposit
Agreement; provided that, upon the request of the Pass Through Trustee after
such transmission, the Escrow Agent shall cancel such Applicable Notice of
Purchase Withdrawal, (d) upon receipt of a Withdrawal Certificate executed by
the Pass Through Trustee, together with an attached Notice of Replacement
Withdrawal in substantially the form of Exhibit C to the Deposit Agreement duly
completed by the Pass Through Trustee, to (X) give such Notice of Replacement
Withdrawal to the Depositary requesting a withdrawal, on the date specified in
such notice, which shall not be less than 15 days after such notice is given
(the "Replacement Withdrawal Date"), of all Deposits then held by the Depositary
together with, if the Replacement Withdrawal Date occurs on a Regular
Distribution Date, all accrued and unpaid interest on such Deposits to but
excluding the Replacement Withdrawal Date, and (Y) direct the Depositary to
transfer such Deposits on behalf of the Escrow Agent to the Replacement
Depositary in accordance with the Replacement Deposit Agreement, and (e) if
there are any undrawn Deposits (as defined in the Deposit Agreement) on the
"Termination Date", which shall mean the earlier of (i) August 31, 2000 and (ii)
the day on which the Escrow Agent receives notice from the Pass Through Trustee
that the Pass Through Trustee's obligation to purchase Equipment Notes under the
Note Purchase Agreement has terminated, to give notice to the Depositary (with a
copy to the Paying Agent) substantially in the form of Exhibit B to the Deposit
Agreement requesting a withdrawal of all of the remaining Deposits, together
with accrued and unpaid interest on such Deposits to the date of withdrawal, on
the 35th day after the date that such notice of withdrawal is given to the
Depositary (or, if not a Business Day, on the next succeeding Business Day) (a
"Final Withdrawal"), provided that if the day scheduled for the Final Withdrawal
in accordance with the foregoing is within 10 days before or after a Regular
Distribution Date, then the Escrow Agent shall request that such requested Final
Withdrawal be made on such Regular Distribution Date (the date of such requested
withdrawal, the "Final Withdrawal Date"). If for any reason the Escrow Agent
shall have failed to give the Final Withdrawal Notice to the Depositary on or
before September 6, 2000, and there are unwithdrawn Deposits on such date, the
Final Withdrawal Date shall be deemed to be September 27, 2000.
<PAGE> 7
4
Section 1.03. Initial Escrow Amount; Issuance of Escrow
Receipts. The Escrow Agent hereby directs the Initial Purchasers to, and the
Initial Purchasers hereby acknowledge that on the date hereof they shall,
irrevocably deliver to the Depositary on behalf of the Escrow Agent, an amount
in U.S. dollars ("Dollars") and immediately available funds equal to $20,158,000
for deposit on behalf of the Escrow Agent with the Depositary in accordance with
Section 2.1 of the Deposit Agreement. The Initial Purchasers hereby instruct the
Escrow Agent, upon receipt of such sum from the Initial Purchasers, to confirm
such receipt by executing and delivering to the Pass Through Trustee an Escrow
Receipt in the form of Exhibit A hereto (an "Escrow Receipt"), (a) to be affixed
by the Pass Through Trustee to each Certificate and (b) to evidence the same
percentage interest (the "Escrow Interest") in the Account Amounts (as defined
below) as the Fractional Undivided Interest in the Pass Through Trust evidenced
by the Certificate to which it is to be affixed. The Escrow Agent shall provide
to the Pass Through Trustee for attachment to each Certificate newly issued
under and in accordance with the Pass Through Trust Agreement an executed Escrow
Receipt as the Pass Through Trustee may from time to time request of the Escrow
Agent. Each Escrow Receipt shall be registered by the Escrow Agent in a register
(the "Register") maintained by the Escrow Agent in the same name and same manner
as the Certificate to which it is attached and may not thereafter be detached
from such Certificate to which it is to be affixed prior to the distribution of
the Final Withdrawal (the "Final Distribution"). After the Final Distribution,
no additional Escrow Receipts shall be issued and the Pass Through Trustee shall
request the return to the Escrow Agent for cancellation of all outstanding
Escrow Receipts.
Section 1.04. Payments to Receiptholders. All payments and
distributions made to holders of an Escrow Receipt (collectively
"Receiptholders") in respect of the Escrow Receipt shall be made only from
amounts deposited in the Paying Agent Account (as defined below) ("Account
Amounts"). Each Receiptholder, by its acceptance of an Escrow Receipt, agrees
that (a) it will look solely to the Account Amounts for any payment or
distribution due to such Receiptholder pursuant to the terms of the Escrow
Receipt and this Agreement and (b) it will have no recourse to America West, the
Pass Through Trustee, the Paying Agent, the Escrow Agent or Wilmington Trust
Company, except as expressly provided herein or in the Pass Through Trust
Agreement. No Receiptholder shall have any right to vote or in any manner
otherwise control the operation and management of the Paying Agent Account or
the obligations of the parties hereto, nor shall anything set forth herein, or
contained in the terms of the Escrow Receipt, be construed so as to constitute
the Receiptholders from time to time as partners or members of an association.
Section 1.05. Mutilated, Destroyed, Lost or Stolen Escrow
Receipt. If (a) any mutilated Escrow Receipt is surrendered to the Escrow Agent
or the Escrow Agent receives evidence to its satisfaction of the destruction,
loss or theft of any Escrow Receipt and (b) there is delivered to the Escrow
Agent and the Pass Through Trustee such security, indemnity or bond, as may be
required by them to hold each of them harmless, then, absent notice to the
Escrow Agent or the Pass Through Trustee that such destroyed, lost or stolen
Escrow Receipt has been acquired by a bona fide purchaser, and provided that the
requirements of Section 8-405 of the Uniform Commercial Code in effect in any
applicable jurisdiction are met, the Escrow Agent shall execute, authenticate
and deliver, in exchange for or in lieu of any such mutilated,
<PAGE> 8
5
destroyed, lost or stolen Escrow Receipt, a new Escrow Receipt or Escrow
Receipts and of like Escrow Interest in the Account Amounts and bearing a number
not contemporaneously outstanding.
In connection with the issuance of any new Escrow Receipt
under this Section 1.05, the Escrow Agent may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Pass Through Trustee and the Escrow Agent) connected therewith.
Any duplicate Escrow Receipt issued pursuant to this Section
1.05 shall constitute conclusive evidence of the appropriate Escrow Interest in
the Account Amounts, as if originally issued, whether or not the lost, stolen or
destroyed Escrow Receipt shall be found at any time.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Escrow
Receipts.
Section 1.06. Additional Escrow Amounts. On the date of any
Purchase Withdrawal, the Pass Through Trustee may re-deposit with the Depositary
some or all of the amounts so withdrawn in accordance with Section 1.6 of the
Deposit Agreement.
Section 1.07. Resignation or Removal of Escrow Agent. Subject
to the appointment and acceptance of a successor Escrow Agent as provided below,
the Escrow Agent may resign at any time by giving 30 days' prior written notice
thereof to the Investors, but may not otherwise be removed except for cause by
the written consent of the Investors with respect to Investors representing
Escrow Interests aggregating not less than a majority in interest in the Account
Amounts (an "Action of Investors"). Upon any such resignation or removal, the
Investors, by an Action of Investors, shall have the right to appoint a
successor Escrow Agent. If no successor Escrow Agent shall have been so
appointed and shall have accepted such appointment within 30 days after the
retiring Escrow Agent's giving of notice of resignation or the removal of the
retiring Escrow Agent, then the retiring Escrow Agent may appoint a successor
Escrow Agent. Any successor Escrow Agent shall be a bank which has an office in
the United States with a combined capital and surplus of at least $100,000,000.
Upon the acceptance of any appointment as Escrow Agent hereunder by a successor
Escrow Agent, such successor Escrow Agent shall enter into such documents as the
Pass Through Trustee shall require and shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Escrow
Agent, and the retiring Escrow Agent shall be discharged from its duties and
obligations hereunder. No resignation or removal of the Escrow Agent shall be
effective unless a written confirmation shall have been obtained from each of
Moody's Investors Service, Inc. and Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., that the replacement of the Escrow
Agent with the successor Escrow Agent will not result in (a) a reduction of the
rating for the Certificates below the then current rating for the Certificates
or (b) a withdrawal or suspension of the rating of the Certificates.
<PAGE> 9
6
Section 1.08. Persons Deemed Owners. Prior to due presentment
of a Certificate for registration of transfer, the Escrow Agent and the Paying
Agent may treat the Person in whose name any Escrow Receipt is registered (as of
the day of determination) as the owner of such Escrow Receipt for the purpose of
receiving distributions pursuant to this Agreement and for all other purposes
whatsoever, and neither the Escrow Agent nor the Paying Agent shall be affected
by any notice to the contrary.
Section 1.09. Further Assurances. The Escrow Agent agrees to
take such actions, and execute such other documents, as may be reasonably
requested by the Pass Through Trustee in order to effectuate the purposes of
this Agreement and the performance by the Escrow Agent of its obligations
hereunder.
SECTION 2. Paying Agent.
Section 2.01. Appointment of Paying Agent. The Escrow Agent
hereby irrevocably appoints and authorizes the Paying Agent to act as its paying
agent hereunder, for the benefit of the Investors, for such specific purposes
and with such powers as are specifically delegated to the Paying Agent by the
terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Any and all money received and held by the Paying Agent
under this Agreement or the Deposit Agreement shall be held in the Paying Agent
Account for the benefit of the Investors. The Paying Agent (which term as used
in this sentence shall include reference to its affiliates and its own and its
affiliates' officers, directors, employees and agents): (a) shall have no duties
or responsibilities except those expressly set forth in this Agreement, and
shall not by reason of this Agreement be a trustee for the Escrow Agent; (b)
shall not be responsible to the Escrow Agent for any recitals, statements,
representations or warranties of any person other then itself contained in this
Agreement or for the failure by the Escrow Agent or any other person or entity
(other than the Paying Agent) to perform any of its obligations hereunder
(whether or not the Paying Agent shall have any knowledge thereof); and (c)
except in respect of its express obligations hereunder, shall not be responsible
for any action taken or omitted to be taken by it hereunder or provided for
herein or in connection herewith, except for its own willful misconduct or gross
negligence (or simple negligence in connection with the handling of funds).
Section 2.02. Establishment of Paying Agent Account. The
Paying Agent shall establish a deposit account (the "Paying Agent Account") at
Wilmington Trust Company in the name of the Escrow Agent. It is expressly
understood by the parties hereto that the Paying Agent is acting as the paying
agent of the Escrow Agent hereunder and that no amounts on deposit in the Paying
Agent Account constitute part of the Trust Property.
Section 2.03. Payments from Paying Agent Account. The Escrow
Agent hereby irrevocably instructs the Paying Agent, and the Paying Agent agrees
to act, as follows:
(a) On each Interest Payment Date (as defined in the Deposit
Agreement) or as soon thereafter as the Paying Agent has confirmed
receipt in the Paying Agent Account from the Depositary of any amount
in respect of accrued interest on the
<PAGE> 10
7
Deposits, the Paying Agent shall distribute out of the Paying Agent
Account the entire amount deposited therein by the Depositary. There
shall be so distributed to each Receiptholder of record on the 15th day
(whether or not a Business Day) preceding such Interest Payment Date by
check mailed to such Receiptholder, at the address appearing in the
Register, such Receiptholder's pro rata share (based on the Escrow
Interest in the Account Amounts held by such Receiptholder) of the
total amount of interest deposited by the Depositary in the Paying
Agent Account on such date, except that, with respect to Escrow
Receipts registered on the Record Date in the name of DTC, such
distribution shall be made by wire transfer in immediately available
funds to the account designated by DTC.
(b) Upon the confirmation by the Paying Agent of receipt in
the Paying Agent Account from the Depositary of any amount in respect
of the Final Withdrawal, the Paying Agent shall forthwith distribute
the entire amount of the Final Withdrawal deposited therein by the
Depositary. There shall be so distributed to each Receiptholder of
record on the 15th day (whether or not a Business Day) preceding the
Final Withdrawal Date by check mailed to such Receiptholder, at the
address appearing in the Register, such Receiptholder's pro rata share
(based on the Escrow Interest in the Account Amounts held by such
Receiptholder) of the total amount in the Paying Agent Account on
account of such Final Withdrawal, except that, with respect to Escrow
Receipts registered on the Record Date in the name of DTC, such
distribution shall be made by wire transfer in immediately available
funds to the account designated by DTC.
(c) If any payment of interest or principal in respect of the
Final Withdrawal is not received by the Paying Agent within five days
of the applicable date when due, then it shall be distributed to
Receiptholders after actual receipt by the Paying Agent on the same
basis as a Special Payment is distributed under the Pass Through Trust
Agreement.
(d) The Paying Agent shall include with any check mailed
pursuant to this Section any notice required to be distributed under
the Pass Through Trust Agreement that is furnished to the Paying Agent
by the Pass Through Trustee.
Section 2.04. Withholding Taxes. The Paying Agent shall
exclude and withhold from each distribution of accrued interest on the Deposits
(as defined in the Deposit Agreement) and any amount in respect of the Final
Withdrawal any and all withholding taxes applicable thereto as required by law.
The Paying Agent agrees to act as such withholding agent and, in connection
therewith, whenever any present or future taxes or similar charges are required
to be withheld with respect to any amounts payable in respect of the Deposits
(as defined in the Deposit Agreement) or the escrow amounts, to withhold such
amounts and timely pay the same to the appropriate authority in the name of and
on behalf of the Receiptholders, that it will file any necessary withholding tax
returns or statements when due, and that, as promptly as possible after the
payment thereof, it will deliver to each such Receiptholder appropriate
documentation showing the payment thereof, together with such additional
documentary evidence as such
<PAGE> 11
8
Receiptholder may reasonably request from time to time. The Paying Agent agrees
to file any other information reports as it may be required to file under United
States law.
Section 2.05. Resignation or Removal of Paying Agent. Subject
to the appointment and acceptance of a successor Paying Agent as provided below,
the Paying Agent may resign at any time by giving 30 days' prior written notice
thereof to the Escrow Agent, but may not otherwise be removed except for cause
by the Escrow Agent. Upon any such resignation or removal, the Escrow Agent
shall have the right to appoint a successor Paying Agent. If no successor Paying
Agent shall have been so appointed and shall have accepted such appointment
within 30 days after the retiring Paying Agent's giving of notice of resignation
or the removal of the retiring Paying Agent, then the retiring Paying Agent may
appoint a successor Paying Agent. Any Successor Paying Agent shall be a bank
which has an office in the United States with a combined capital and surplus of
at least $100,000,000. Upon the acceptance of any appointment as Paying Agent
hereunder by a successor Paying Agent, such successor Paying Agent shall enter
into such documents as the Escrow Agent shall require and shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Paying Agent, and the retiring Paying Agent shall be discharged
from its duties and obligations hereunder.
Section 2.06. Notice of Final Withdrawal. Promptly after
receipt by the Paying Agent of notice that the Escrow Agent has requested a
Final Withdrawal or that a Final Withdrawal will be made, the Paying Agent shall
cause notice of the distribution of such Final Withdrawal to be mailed to each
of the Receiptholders at its address as it appears in the Register. Such notice
shall be mailed not less than 15 days prior to the Final Withdrawal Date. Such
notice shall set forth:
(i) the Final Withdrawal Date and the date for determining
Receiptholders of record who shall be entitled to receive distributions
in respect of such Final Withdrawal,
(ii) the amount of the payment in respect of such Final
Withdrawal for each $1,000 face amount Certificate (based on
information provided by the Pass Through Trustee) and the amount
thereof constituting unused Deposits (as defined in the Deposit
Agreement) and interest thereon, and
(iii) if the Final Withdrawal Date is the same date as a
Regular Distribution Date, the total amount to be received on such date
for each $1,000 face amount Certificate (based on information provided
by the Pass Through Trustee).
Such mailing may include any notice required to be given to
Certificateholders in connection with such distribution pursuant to the Pass
Through Trust Agreement.
SECTION 3. Payments. If, notwithstanding the instructions in
Section 3 of the Deposit Agreement that all amounts payable to the Escrow Agent
under the Deposit Agreement
<PAGE> 12
9
be paid by the Depositary directly to the Paying Agent or the Pass Through
Trustee or a Replacement Depositary (depending on the circumstances), the Escrow
Agent receives any payment thereunder, then the Escrow Agent shall forthwith pay
such amount in Dollars and in immediately available funds by wire transfer to
(a) in the case of a payment of accrued interest on the Deposits (as defined in
the Deposit Agreement) or any Final Withdrawal, directly to the Paying Agent
Account and (b) in the case of any Purchase Withdrawal, directly to the Pass
Through Trustee or its designee as specified and in the manner provided in the
Applicable Notice of Purchase Withdrawal and (c) in the case of any Replacement
Withdrawal (other than accrued interest), to the Replacement Depositary as
provided in the Replacement Depositary Agreement. The Escrow Agent hereby waives
any and all rights of set-off, combination of accounts, right of retention or
similar right (whether arising under applicable law, contract or otherwise) it
may have against amounts payable to the Paying Agent howsoever arising.
SECTION 4. Other Actions. The Escrow Agent shall take such
other actions under or in respect of the Deposit Agreement (including, without
limitation, the enforcement of the obligations of the Depositary thereunder) as
the Investors, by an Action of Investors, may from time to time request.
SECTION 5. Representations and Warranties of the Escrow Agent.
The Escrow Agent represents and warrants to America West, the Investors, the
Paying Agent and the Pass Through Trustee as follows:
(i) it is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware;
(ii) it has full power, authority and legal right to conduct
its business and operations as currently conducted and to enter into
and perform its obligations under this Agreement, the Deposit Agreement
and any Replacement Deposit Agreement;
(iii) the execution, delivery and performance of each of this
Agreement, the Deposit Agreement and any Replacement Deposit Agreement
have been duly authorized by all necessary corporate action on the part
of it and do not require any stockholder approval, or approval or
consent of any trustee or holder of any indebtedness or obligations of
it, and each such document has been duly executed and delivered by it
and constitutes its legal, valid and binding obligations enforceable
against it in accordance with the terms hereof or 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 such enforceability
is considered in a proceeding in equity or at law);
(iv) 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
<PAGE> 13
10
or regulatory body is required for the execution, delivery or
performance by it of this Agreement or the Deposit Agreement or any
Replacement Deposit Agreement;
(v) neither the execution, delivery or performance by it of
this Agreement or the Deposit Agreement or any Replacement Deposit
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 or the charter documents, as amended, or bylaws, as
amended, of it or any similar instrument binding on it or any order,
writ, injunction or decree of any court or governmental authority
against it or by which it or any of its properties is bound or any
indenture, mortgage or contract or other agreement or instrument to
which it 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;
and
(vi) there are no pending or, to its knowledge, threatened
actions, suits, investigations or proceedings (whether or not
purportedly on behalf of it) against or affecting it or any of its
property before or by any court or administrative agency which, if
adversely determined, (A) would adversely affect the ability of it to
perform its obligations under this Agreement or the Deposit Agreement
or any Replacement Deposit Agreement (B) would call into question or
challenge the validity of this Agreement or the Deposit Agreement or
the enforceability hereof or thereof in accordance with the terms
hereof or thereof, nor is the Escrow Agent in default with respect to
any order of any court, governmental authority, arbitration board or
administrative agency so as to adversely affect its ability to perform
its obligations under this Agreement or the Deposit Agreement.
SECTION 6. Representations and Warranties of the Paying Agent.
The Paying Agent represents and warrants to America West, the Investors, the
Escrow Agent and the Pass Through Trustee as follows:
(i) it is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware;
(ii) it has full power, authority and legal right to conduct
its business and operations as currently conducted and to enter into
and perform its obligations under this Agreement;
(iii) the execution, delivery and performance of this
Agreement has been duly authorized by all necessary corporate action on
the part of it and does not require any stockholder approval, or
approval or consent of any trustee or holder of any indebtedness or
obligations of it, and such document has been duly executed and
delivered by it and constitutes its legal, valid and binding
<PAGE> 14
11
obligations enforceable against it in accordance with the terms hereof
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 such enforceability
is considered in a proceeding in equity or at law);
(iv) 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 is required for the
execution, delivery or performance by it of this Agreement;
(v) neither the execution, delivery or performance by it of
this Agreement, nor compliance with the terms and provisions hereof,
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 it or any similar instrument binding on it or any order, writ,
injunction or decree of any court or governmental authority against it
or by which it or any of its properties is bound or any indenture,
mortgage or contract or other agreement or instrument to which it 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; and
(vi) there are no pending or, to its knowledge, threatened
actions, suits, investigations or proceedings (whether or not
purportedly on behalf of it) against or affecting it or any of its
property before or by any court or administrative agency which, if
adversely determined, (A) would adversely affect the ability of it to
perform its obligations under this Agreement or (B) would call into
question or challenge the validity of this Agreement or the
enforceability hereof in accordance with the terms hereof, nor is the
Paying Agent in default with respect to any order of any court,
governmental authority, arbitration board or administrative agency so
as to adversely affect its ability to perform its obligations under
this Agreement.
SECTION 7. Indemnification. Except for actions expressly
required of the Escrow Agent or the Paying Agent hereunder, each of the Escrow
Agent and the Paying Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall have been indemnified (both in such
capacities and individually) by the party requesting such action in a manner
reasonably satisfactory to it against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
In the event America West requests any amendment to any Operative Agreement (as
defined in the Note Purchase Agreement), the Pass Through Trustee agrees to pay
all reasonable fees and expenses (including, without limitation, fees and
disbursements of counsel) of the Escrow Agent and the Paying Agent in connection
therewith.
<PAGE> 15
12
SECTION 8. Amendment, Etc. Upon request of the Pass Through
Trustee and approval by an Action of Investors, the Escrow Agent shall enter
into an amendment to this Agreement, so long as such amendment does not
adversely affect the rights or obligations of the Escrow Agent or the Paying
Agent, provided that upon request of the Pass Through Trustee and without any
consent of the Investors, the Escrow Agent shall enter into an amendment to this
Agreement for any of the following purposes:
(1) to correct or supplement any provision in this Agreement
which may be defective or inconsistent with any other provision herein
or to cure any ambiguity or correct any mistake or to modify any other
provision with respect to matters or questions arising under this
Agreement, provided that any such action shall not materially adversely
affect the interests of the Investors; or
(2) to comply with any requirement of the SEC, applicable law,
rules or regulations of any exchange or quotation system on which the
Certificates are listed or any regulatory body or the Registration
Rights Agreement to effectuate the Exchange Offer; or
(3) to evidence and provide for the acceptance of appointment
under this Agreement of a successor Escrow Agent, successor Paying
Agent or successor Pass Through Trustee.
SECTION 9. Notices. Unless otherwise expressly provided
herein, any notice or other communication under this Agreement shall be in
writing (including by facsimile) and shall be deemed to be given and effective
upon receipt thereof (or, if received outside of business hours, on the next
open of business on a Business Day). All notices shall be sent to (a) in the
case of the Investors, as their respective addresses shall appear in the
Register, (b) in the case of the Escrow Agent, Wilmington Trust Company, 1100
North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust
Administration (Telecopier: 302-651-8882), (c) in the case of the Pass Through
Trustee, Wilmington Trust Company, 1100 North Market Street, Wilmington,
Delaware 19890, Attention: Corporate Trust Administration (Telecopier:
302-651-8882), or (d) in the case of the Paying Agent, Wilmington Trust Company,
1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust
Administration (Telecopier: 302-651-8882), in each case with a copy to America
West, America West Airlines, Inc., 4000 East Sky Harbor Boulevard, Phoenix,
Arizona 95043, Attention: Vice President - Treasurer (Telecopier: (602)
693-5886) (or at such other address as any such party may specify from time to
time in a written notice to the other parties). On or prior to the execution of
this Agreement, the Pass Through Trustee has delivered to the Escrow Agent a
certificate containing specimen signatures of the representatives of the Pass
Through Trustee who are authorized to give notices and instructions with respect
to this Agreement. The Escrow Agent may conclusively rely on such certificate
until the Escrow Agent receives written notice from the Pass Through Trustee to
the contrary.
SECTION 10. Transfer. No party hereto shall be entitled to
assign or otherwise transfer this Agreement (or any interest herein) other than
(in the case of the Escrow Agent) to a
<PAGE> 16
13
successor escrow agent under Section 1.06 hereof or (in the case of the Paying
Agent) to a successor paying agent under Section 2.04 hereof, and any purported
assignment in violation thereof shall be void. This Agreement shall be binding
upon the parties hereto and their respective successors and (in the case of the
Escrow Agent and the Paying Agent) their respective permitted assigns. Upon the
occurrence of the Transfer (as defined below) contemplated by the Assignment and
Assumption Agreement (as defined below), the Pass Through Trustee shall (without
further act) be deemed to have transferred all of its right, title and interest
in and to this Agreement to the trustee of the Successor Trust (as defined
below) and, thereafter, the trustee of the Successor Trust shall be deemed to be
the "Pass Through Trustee" hereunder with the rights and obligations of the
"Pass Through Trustee" hereunder and each reference herein to "America West
Airlines Pass Through Trust "1999-1C-O" shall be deemed to be a reference to
"America West Airlines Pass Through Trust 1999-1C-S". The parties hereto hereby
acknowledge and consent to the Transfer contemplated by the Assignment and
Assumption Agreement. As used herein, "Transfer" means the transfers of the
assets to the Successor Trust contemplated by the Assignment and Assumption
Agreement; "Assignment and Assumption Agreement" means the Assignment and
Assumption Agreement to be entered into between the Pass Through Trustee and the
trustee of the Successor Trust, substantially in the form of Exhibit D to the
Pass Through Trust Agreement; "Successor Trust" means the America West Airlines
Pass Through Trust 1999-1C-S.
SECTION 11. Entire Agreement. This Agreement sets forth all of
the promises, covenants, agreements, conditions and understandings among the
Escrow Agent, the Paying Agent, the Initial Purchasers and the Pass Through
Trustee with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and undertakings, inducements or conditions, express
or implied, oral or written.
SECTION 12. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the law of the State of New York.
SECTION 13. Waiver of Jury Trial Right. EACH OF THE ESCROW
AGENT, THE PAYING AGENT, THE INVESTORS AND THE PASS THROUGH TRUSTEE ACKNOWLEDGES
AND ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.
SECTION 14. Counterparts. This Agreement may be executed in
one or more counterparts, all of which taken together shall constitute one
instrument.
<PAGE> 17
IN WITNESS WHEREOF, the Escrow Agent, the Paying Agent, the
Initial Purchasers and the Pass Through Trustee have caused this Escrow and
Paying Agent Agreement (Class C) to be duly executed as of the day and year
first above written.
WILMINGTON TRUST COMPANY, as Escrow Agent
By /s/ James P. Lawler
--------------------------
Name: James P. Lawler
Title: Vice President
MORGAN STANLEY & CO. INCORPORATED,
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED, and SALOMON SMITH
BARNEY INC.,
as Initial Purchasers
By: MORGAN STANLEY & CO.
INCORPORATED
By /s/ Bruce Paine
--------------------------
Name: Bruce Paine
Title: Vice President
WILMINGTON TRUST COMPANY,
not in its individual
capacity, but solely as
Pass Through Trustee for
and on behalf of America
West Airlines Pass Through
Trust 1999-1C-O
By /s/ James P. Lawler
--------------------------
Name: James P. Lawler
Title: Vice President
<PAGE> 18
WILMINGTON TRUST COMPANY,
as Paying Agent
By /s/ James P. Lawler
--------------------------
Name: James P. Lawler
Title: Vice President
<PAGE> 19
EXHIBIT A
AMERICA WEST AIRLINES 1999-1C ESCROW RECEIPT
No. __
This Escrow Receipt evidences a fractional undivided interest
in amounts ("Account Amounts") from time to time deposited into a certain paying
agent account (the "Paying Agent Account") described in the Escrow and Paying
Agent Agreement (Class C) dated as of September 21, 1999 (as amended, modified
or supplemented from time to time, the "Escrow and Paying Agent Agreement")
among Wilmington Trust Company, as Escrow Agent (in such capacity, together with
its successors in such capacity, the "Escrow Agent"), Morgan Stanley & Co.
Incorporated, Donaldson, Lufkin & Jenrette Securities Corporation , Merrill
Lynch, Pierce, Fenner & Smith Incorporated, and Salomon Smith Barney Inc., as
Initial Purchasers, Wilmington Trust Company, as Pass Through Trustee (in such
capacity, together with its successors in such capacity, the "Pass Through
Trustee") and Wilmington Trust Company, as paying agent (in such capacity,
together with its successors in such capacity, the "Paying Agent"). Capitalized
terms not defined herein shall have the meanings assigned to them in the Escrow
and Paying Agent Agreement.
This Escrow Receipt is issued under and is subject to the
terms, provisions and conditions of the Escrow and Paying Agent Agreement. By
virtue of its acceptance hereof the holder of this Escrow Receipt assents and
agrees to be bound by the provisions of the Escrow and Paying Agent Agreement
and this Escrow Receipt.
This Escrow Receipt represents a fractional undivided interest
in amounts deposited from time to time in the Paying Agent Account, and grants
or represents no rights, benefits or interests of any kind in respect of any
assets or property other than such amounts. This Escrow Receipt evidences the
same percentage interest in the Account Amounts as the Fractional Undivided
Interest in the Pass Through Trust evidenced by the Certificate to which this
Escrow Receipt is affixed.
All payments and distributions made to Receiptholders in
respect of the Escrow Receipt shall be made only from Account Amounts deposited
in the Paying Agent Account. The holder of this Escrow Receipt, by its
acceptance of this Escrow Receipt, agrees that it will look solely to the
Account Amounts for any payment or distribution due to it pursuant to this
Escrow Receipt and that it will not have any recourse to America West, the Pass
Through Trustee, the Paying Agent or the Escrow Agent, except as expressly
provided herein or in the Pass Through Trust Agreement. No Receiptholder of this
Escrow Receipt shall have any right to vote or in any manner otherwise control
the operation and management of the Paying Agent Account, nor shall anything set
forth herein, or contained in the terms of this Escrow Receipt, be construed so
as to constitute the Receiptholders from time to time as partners or members of
an association.
This Escrow Receipt may not be assigned or transferred except
in connection with the assignment or transfer of the Certificate to which this
Escrow Receipt is affixed. After payment to the holder hereof of its Escrow
Interest in the Final Distribution, upon the request of
<PAGE> 20
2
the Pass Through Trustee, the holder hereof will return this Escrow Receipt to
the Pass Through Trustee.
The Paying Agent may treat the person in whose name the
Certificate to which this Escrow Receipt is attached as the owner hereof for all
purposes, and the Paying Agent shall not be affected by any notice to the
contrary.
THIS ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Escrow Agent has caused this Escrow
Receipt to be duly executed.
Dated: ______________, 199_
WILMINGTON TRUST COMPANY,
as Escrow Agent
By
--------------------------
Name:
Title:
<PAGE> 21
EXHIBIT B
WITHDRAWAL CERTIFICATE
(Class C)
WILMINGTON TRUST COMPANY,
as Escrow Agent
Dear Sirs:
Reference is made to the Escrow and Paying Agent Agreement,
dated as of September 21, 1999 (the "Agreement"). [We hereby certify to you that
the conditions to the obligations of the undersigned to execute a Participation
Agreement pursuant to the Note Purchase Agreement have been satisfied] [We
hereby notify you that the Depositary is being replaced in accordance with
Section 4(a)(vii) of the Note Purchase Agreement]. Pursuant to Section 1.02(c)
of the Agreement, please execute the attached Notice of Withdrawal and
immediately transmit by facsimile to the Depositary, at (312) 606-8428,
Attention: Vice President - Aerospace.
Very truly yours,
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Pass Through Trustee
By __________________________
Name:
Title:
Dated: ____________, 199_
<PAGE> 1
Exhibit 4.14
ESCROW AND PAYING AGENT AGREEMENT
(Class G)
Dated as of September 21, 1999
among
WILMINGTON TRUST COMPANY
as Escrow Agent
MORGAN STANLEY & CO. INCORPORATED,
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
and
SALOMON SMITH BARNEY INC.
as Initial Purchasers
WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Pass Through Trustee
for and on behalf of
America West Airlines Pass Through Trust 1999-1G-O
as Pass Through Trustee
and
WILMINGTON TRUST COMPANY
as Paying Agent
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
SECTION 1. Escrow Agent....................................................................... 2
Section 1.01. Appointment of Escrow Agent........................................................ 2
Section 1.02. Instruction; Etc................................................................... 3
Section 1.03. Initial Escrow Amount; Issuance of Escrow Receipts................................. 4
Section 1.04. Payments to Receiptholders......................................................... 4
Section 1.05. Mutilated, Destroyed, Lost or Stolen Escrow Receipt................................ 4
Section 1.06. Additional Escrow Amounts.......................................................... 5
Section 1.07. Resignation or Removal of Escrow Agent............................................. 5
Section 1.08. Persons Deemed Owners.............................................................. 6
Section 1.09. Further Assurances................................................................. 6
SECTION 2. Paying Agent....................................................................... 6
Section 2.01. Appointment of Paying Agent........................................................ 6
Section 2.02. Establishment of Paying Agent Account.............................................. 6
Section 2.03. Payments from Paying Agent Account................................................. 6
Section 2.04. Withholding Taxes.................................................................. 7
Section 2.05. Resignation or Removal of Paying Agent............................................. 8
Section 2.06. Notice of Final Withdrawal......................................................... 8
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 3. Payments.............................................. 9
SECTION 4. Other Actions......................................... 9
SECTION 5. Representations and Warranties of the Escrow Agent.... 9
SECTION 6. Representations and Warranties of the Paying Agent.... 10
SECTION 7. Indemnification....................................... 11
SECTION 8. Amendment, Etc........................................ 12
SECTION 9. Notices............................................... 12
SECTION 10. Transfer.............................................. 13
SECTION 11. Entire Agreement...................................... 13
SECTION 12. Governing Law......................................... 13
SECTION 13. Waiver of Jury Trial Right............................ 13
SECTION 14. Counterparts.......................................... 14
</TABLE>
Exhibit A Escrow Receipt
Exhibit B Withdrawal Certificate
ii
<PAGE> 4
ESCROW AND PAYING AGENT AGREEMENT (Class G) dated as of
September 21, 1999 (as amended, modified or supplemented from time to time, this
"Agreement") among WILMINGTON TRUST COMPANY, a Delaware banking corporation, as
Escrow Agent (in such capacity, together with its successors in such capacity,
the "Escrow Agent"); MORGAN STANLEY & CO. INCORPORATED, DONALDSON, LUFKIN &
JENRETTE SECURITIES CORPORATION, MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED and SALOMON SMITH BARNEY INC., as Initial Purchasers of the
Certificates referred to below (the "Initial Purchasers" and together with their
respective transferees and assigns as registered owners of the Certificates, the
"Investors") under the Purchase Agreement referred to below; Wilmington Trust
Company, a Delaware banking corporation, not in its individual capacity except
as otherwise expressly provided herein, but solely as trustee (in such capacity,
together with its successors in such capacity, the "Pass Through Trustee") under
the Pass Through Trust Agreement referred to below; and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as paying agent hereunder (in such
capacity, together with its successors in such capacity, the "Paying Agent").
W I T N E S S E T H
WHEREAS, America West Airlines, Inc. ("America West") and the
Pass Through Trustee have entered into a Pass Through Trust Agreement, dated as
of September 21, 1999 (together, as amended, modified or supplemented from time
to time in accordance with the terms thereof, the "Pass Through Trust
Agreement") relating to America West Airlines Pass Through Trust 1999-1G-O (the
"Pass Through Trust") pursuant to which the America West Airlines Pass Through
Trust, Series 1999-1G-O Certificates referred to therein (the "Certificates")
are being issued;
WHEREAS, America West and the Initial Purchasers have entered
into a Purchase Agreement dated as of September 14, 1999 (as amended, modified
or supplemented from time to time in accordance with the terms thereof, the
"Purchase Agreement") pursuant to which the Pass Through Trustee will issue and
sell the Certificates to the Initial Purchasers (the net proceeds of such sale
being herein referred to as the "Net Proceeds");
WHEREAS, America West, the Pass Through Trustee, certain other
pass through trustees and certain other persons concurrently herewith are
entering into the Note Purchase Agreement, dated as of the date hereof (the
"Note Purchase Agreement"), pursuant to which the Pass Through Trustee has
agreed to acquire from time to time on or prior to the Delivery Period
Termination Date (as defined in the Note Purchase Agreement) equipment notes
(the "Equipment Notes") issued to finance or refinance the acquisition of
aircraft by America West, as lessee or as owner, utilizing a portion of the Net
Proceeds;
WHEREAS, the Initial Purchasers and the Pass Through Trustee
intend that the Net Proceeds be held in escrow by the Escrow Agent on behalf of
the Investors, subject to withdrawal upon request by the Pass Through Trustee
and satisfaction of the conditions set forth in the Note Purchase Agreement for
the purpose of purchasing Equipment Notes, and that pending such withdrawal the
Net Proceeds be deposited on behalf of the Escrow Agent with ABN AMRO Bank N.V.,
acting through its Chicago branch, as Depositary (the "Depositary"
<PAGE> 5
2
which shall also be deemed to refer to any Replacement Depositary (as defined in
the Note Purchase Agreement) from and after the date on which the Deposits are
transferred to such Replacement Depositary) under the Deposit Agreement, dated
as of the date hereof between the Depositary and the Escrow Agent relating to
the Pass Through Trust (as amended, modified, supplemented or replaced from time
to time in accordance with the terms thereof, the "Deposit Agreement" which
shall also be deemed to refer to any Replacement Deposit Agreement (as defined
in the Note Purchase Agreement) to which the Escrow Agent becomes a party
pursuant to Section 1.02(a) hereof from and after the transfer of the Deposits
from the Depositary to the Replacement Depositary) pursuant to which, among
other things, the Depositary will pay interest for distribution to the Investors
and establish accounts from which the Escrow Agent shall make withdrawals upon
request of and proper certification by the Pass Through Trustee;
WHEREAS, the Escrow Agent wishes to appoint the Paying Agent
to pay amounts required to be distributed to the Investors in accordance with
this Agreement; and
WHEREAS, capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in the Pass Through Trust Agreement.
NOW, THEREFORE, in consideration of the obligations contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. Escrow Agent.
Section 1.01. Appointment of Escrow Agent. Each of the Initial
Purchasers, for and on behalf of each of the Investors, hereby irrevocably
appoints, authorizes and directs the Escrow Agent to act as escrow agent and
fiduciary hereunder and under the Deposit Agreement for such specific purposes
and with such powers as are specifically delegated to the Escrow Agent by the
terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Any and all money received and held by the Escrow Agent
under this Agreement or the Deposit Agreement shall be held in escrow by the
Escrow Agent in accordance with the terms of this Agreement. This Agreement is
irrevocable and the Investors' rights with respect to any monies received and
held in escrow by the Escrow Agent under this Agreement or the Deposit Agreement
shall only be as provided under the terms and conditions of this Agreement and
the Deposit Agreement. The Escrow Agent (which term as used in this sentence
shall include reference to its affiliates and its own and its affiliates'
officers, directors, employees and agents): (a) shall have no duties or
responsibilities except those expressly set forth in this Agreement; (b) shall
not be responsible to the Pass Through Trustee or the Investors for any
recitals, statements, representations or warranties of any person other then
itself contained in this Agreement or the Deposit Agreement or for the failure
by the Pass Through Trustee, the Investors or any other person or entity (other
than the Escrow Agent) to perform any of its obligations hereunder (whether or
not the Escrow Agent shall have any knowledge thereof); and (c) shall not be
responsible for any action taken or omitted to be taken by it hereunder or
provided for herein or in connection herewith, except for its own willful
misconduct or gross
<PAGE> 6
3
negligence (or simple negligence in connection with the handling of funds) or
breach of its obligations hereunder.
Section 1.02. Instruction; Etc. The Initial Purchasers, for
and on behalf of each of the Investors, hereby irrevocably instruct the Escrow
Agent, and the Escrow Agent agrees, (a) to enter into the Deposit Agreement and,
if requested by the Company pursuant to Section 4(a)(vii) of the Note Purchase
Agreement, to enter into a Replacement Deposit Agreement with the Replacement
Depositary specified by the Company, (b) to appoint the Paying Agent as provided
in this Agreement, (c) upon receipt at any time and from time to time prior to
the Termination Date (as defined below) of a certificate substantially in the
form of Exhibit B hereto (a "Withdrawal Certificate") executed by the Pass
Through Trustee, together with an attached Notice of Purchase Withdrawal in
substantially the form of Exhibit A to the Deposit Agreement duly completed by
the Pass Through Trustee (the "Applicable Notice of Purchase Withdrawal" and the
withdrawal to which it relates, a "Purchase Withdrawal"), immediately to execute
the Applicable Notice of Purchase Withdrawal as Escrow Agent and transmit it to
the Depositary by facsimile transmission in accordance with the Deposit
Agreement; provided that, upon the request of the Pass Through Trustee after
such transmission, the Escrow Agent shall cancel such Applicable Notice of
Purchase Withdrawal, (d) upon receipt of a Withdrawal Certificate executed by
the Pass Through Trustee, together with an attached Notice of Replacement
Withdrawal in substantially the form of Exhibit C to the Deposit Agreement duly
completed by the Pass Through Trustee, to (X) give such Notice of Replacement
Withdrawal to the Depositary requesting a withdrawal, on the date specified in
such notice, which shall not be less than 15 days after such notice is given
(the "Replacement Withdrawal Date"), of all Deposits then held by the Depositary
together with, if the Replacement Withdrawal Date occurs on a Regular
Distribution Date, all accrued and unpaid interest on such Deposits to but
excluding the Replacement Withdrawal Date, and (Y) direct the Depositary to
transfer such Deposits on behalf of the Escrow Agent to the Replacement
Depositary in accordance with the Replacement Deposit Agreement, and (e) if
there are any undrawn Deposits (as defined in the Deposit Agreement) on the
"Termination Date", which shall mean the earlier of (i) August 31, 2000 and (ii)
the day on which the Escrow Agent receives notice from the Pass Through Trustee
that the Pass Through Trustee's obligation to purchase Equipment Notes under the
Note Purchase Agreement has terminated, to give notice to the Depositary (with a
copy to the Paying Agent) substantially in the form of Exhibit B to the Deposit
Agreement requesting a withdrawal of all of the remaining Deposits, together
with accrued and unpaid interest on such Deposits to the date of withdrawal, on
the 35th day after the date that such notice of withdrawal is given to the
Depositary (or, if not a Business Day, on the next succeeding Business Day) (a
"Final Withdrawal"), provided that if the day scheduled for the Final Withdrawal
in accordance with the foregoing is within 10 days before or after a Regular
Distribution Date, then the Escrow Agent shall request that such requested Final
Withdrawal be made on such Regular Distribution Date (the date of such requested
withdrawal, the "Final Withdrawal Date"). If for any reason the Escrow Agent
shall have failed to give the Final Withdrawal Notice to the Depositary on or
before September 6, 2000, and there are unwithdrawn Deposits on such date, the
Final Withdrawal Date shall be deemed to be September 27, 2000.
<PAGE> 7
4
Section 1.03. Initial Escrow Amount; Issuance of Escrow
Receipts. The Escrow Agent hereby directs the Initial Purchasers to, and the
Initial Purchasers hereby acknowledge that on the date hereof they shall,
irrevocably deliver to the Depositary on behalf of the Escrow Agent, an amount
in U.S. dollars ("Dollars") and immediately available funds equal to
$233,668,000 for deposit on behalf of the Escrow Agent with the Depositary in
accordance with Section 2.1 of the Deposit Agreement. The Initial Purchasers
hereby instruct the Escrow Agent, upon receipt of such sum from the Initial
Purchasers, to confirm such receipt by executing and delivering to the Pass
Through Trustee an Escrow Receipt in the form of Exhibit A hereto (an "Escrow
Receipt"), (a) to be affixed by the Pass Through Trustee to each Certificate and
(b) to evidence the same percentage interest (the "Escrow Interest") in the
Account Amounts (as defined below) as the Fractional Undivided Interest in the
Pass Through Trust evidenced by the Certificate to which it is to be affixed.
The Escrow Agent shall provide to the Pass Through Trustee for attachment to
each Certificate newly issued under and in accordance with the Pass Through
Trust Agreement an executed Escrow Receipt as the Pass Through Trustee may from
time to time request of the Escrow Agent. Each Escrow Receipt shall be
registered by the Escrow Agent in a register (the "Register") maintained by the
Escrow Agent in the same name and same manner as the Certificate to which it is
attached and may not thereafter be detached from such Certificate to which it is
to be affixed prior to the distribution of the Final Withdrawal (the "Final
Distribution"). After the Final Distribution, no additional Escrow Receipts
shall be issued and the Pass Through Trustee shall request the return to the
Escrow Agent for cancellation of all outstanding Escrow Receipts.
Section 1.04. Payments to Receiptholders. All payments and
distributions made to holders of an Escrow Receipt (collectively
"Receiptholders") in respect of the Escrow Receipt shall be made only from
amounts deposited in the Paying Agent Account (as defined below) ("Account
Amounts"). Each Receiptholder, by its acceptance of an Escrow Receipt, agrees
that (a) it will look solely to the Account Amounts for any payment or
distribution due to such Receiptholder pursuant to the terms of the Escrow
Receipt and this Agreement and (b) it will have no recourse to America West, the
Pass Through Trustee, the Paying Agent, the Escrow Agent or Wilmington Trust
Company, except as expressly provided herein or in the Pass Through Trust
Agreement. No Receiptholder shall have any right to vote or in any manner
otherwise control the operation and management of the Paying Agent Account or
the obligations of the parties hereto, nor shall anything set forth herein, or
contained in the terms of the Escrow Receipt, be construed so as to constitute
the Receiptholders from time to time as partners or members of an association.
Section 1.05. Mutilated, Destroyed, Lost or Stolen Escrow
Receipt. If (a) any mutilated Escrow Receipt is surrendered to the Escrow Agent
or the Escrow Agent receives evidence to its satisfaction of the destruction,
loss or theft of any Escrow Receipt and (b) there is delivered to the Escrow
Agent and the Pass Through Trustee such security, indemnity or bond, as may be
required by them to hold each of them harmless, then, absent notice to the
Escrow Agent or the Pass Through Trustee that such destroyed, lost or stolen
Escrow Receipt has been acquired by a bona fide purchaser, and provided that the
requirements of Section 8-405 of the Uniform Commercial Code in effect in any
applicable jurisdiction are met, the Escrow Agent shall execute, authenticate
and deliver, in exchange for or in lieu of any such mutilated,
<PAGE> 8
5
destroyed, lost or stolen Escrow Receipt, a new Escrow Receipt or Escrow
Receipts and of like Escrow Interest in the Account Amounts and bearing a number
not contemporaneously outstanding.
In connection with the issuance of any new Escrow Receipt
under this Section 1.05, the Escrow Agent may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Pass Through Trustee and the Escrow Agent) connected therewith.
Any duplicate Escrow Receipt issued pursuant to this Section
1.05 shall constitute conclusive evidence of the appropriate Escrow Interest in
the Account Amounts, as if originally issued, whether or not the lost, stolen or
destroyed Escrow Receipt shall be found at any time.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Escrow
Receipts.
Section 1.06. Additional Escrow Amounts. On the date of any
Purchase Withdrawal, the Pass Through Trustee may re-deposit with the Depositary
some or all of the amounts so withdrawn in accordance with Section 1.6 of the
Deposit Agreement.
Section 1.07. Resignation or Removal of Escrow Agent. Subject
to the appointment and acceptance of a successor Escrow Agent as provided below,
the Escrow Agent may resign at any time by giving 30 days' prior written notice
thereof to the Investors, but may not otherwise be removed except for cause by
the written consent of the Investors with respect to Investors representing
Escrow Interests aggregating not less than a majority in interest in the Account
Amounts (an "Action of Investors"). Upon any such resignation or removal, the
Investors, by an Action of Investors, shall have the right to appoint a
successor Escrow Agent. If no successor Escrow Agent shall have been so
appointed and shall have accepted such appointment within 30 days after the
retiring Escrow Agent's giving of notice of resignation or the removal of the
retiring Escrow Agent, then the retiring Escrow Agent may appoint a successor
Escrow Agent. Any successor Escrow Agent shall be a bank which has an office in
the United States with a combined capital and surplus of at least $100,000,000.
Upon the acceptance of any appointment as Escrow Agent hereunder by a successor
Escrow Agent, such successor Escrow Agent shall enter into such documents as the
Pass Through Trustee shall require and shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Escrow
Agent, and the retiring Escrow Agent shall be discharged from its duties and
obligations hereunder. No resignation or removal of the Escrow Agent shall be
effective unless a written confirmation shall have been obtained from each of
Moody's Investors Service, Inc. and Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., that the replacement of the Escrow
Agent with the successor Escrow Agent will not result in (a) a reduction of the
rating for the Certificates below the then current rating for the Certificates
or (b) a withdrawal or suspension of the rating of the Certificates.
<PAGE> 9
6
Section 1.08. Persons Deemed Owners. Prior to due presentment
of a Certificate for registration of transfer, the Escrow Agent and the Paying
Agent may treat the Person in whose name any Escrow Receipt is registered (as of
the day of determination) as the owner of such Escrow Receipt for the purpose of
receiving distributions pursuant to this Agreement and for all other purposes
whatsoever, and neither the Escrow Agent nor the Paying Agent shall be affected
by any notice to the contrary.
Section 1.09. Further Assurances. The Escrow Agent agrees to
take such actions, and execute such other documents, as may be reasonably
requested by the Pass Through Trustee in order to effectuate the purposes of
this Agreement and the performance by the Escrow Agent of its obligations
hereunder.
SECTION 2. Paying Agent.
Section 2.01. Appointment of Paying Agent. The Escrow Agent
hereby irrevocably appoints and authorizes the Paying Agent to act as its paying
agent hereunder, for the benefit of the Investors, for such specific purposes
and with such powers as are specifically delegated to the Paying Agent by the
terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Any and all money received and held by the Paying Agent
under this Agreement or the Deposit Agreement shall be held in the Paying Agent
Account for the benefit of the Investors. The Paying Agent (which term as used
in this sentence shall include reference to its affiliates and its own and its
affiliates' officers, directors, employees and agents): (a) shall have no duties
or responsibilities except those expressly set forth in this Agreement, and
shall not by reason of this Agreement be a trustee for the Escrow Agent; (b)
shall not be responsible to the Escrow Agent for any recitals, statements,
representations or warranties of any person other then itself contained in this
Agreement or for the failure by the Escrow Agent or any other person or entity
(other than the Paying Agent) to perform any of its obligations hereunder
(whether or not the Paying Agent shall have any knowledge thereof); and (c)
except in respect of its express obligations hereunder, shall not be responsible
for any action taken or omitted to be taken by it hereunder or provided for
herein or in connection herewith, except for its own willful misconduct or gross
negligence (or simple negligence in connection with the handling of funds).
Section 2.02. Establishment of Paying Agent Account. The
Paying Agent shall establish a deposit account (the "Paying Agent Account") at
Wilmington Trust Company in the name of the Escrow Agent. It is expressly
understood by the parties hereto that the Paying Agent is acting as the paying
agent of the Escrow Agent hereunder and that no amounts on deposit in the Paying
Agent Account constitute part of the Trust Property.
Section 2.03. Payments from Paying Agent Account. The Escrow
Agent hereby irrevocably instructs the Paying Agent, and the Paying Agent agrees
to act, as follows:
(a) On each Interest Payment Date (as defined in the Deposit
Agreement) or as soon thereafter as the Paying Agent has confirmed
receipt in the Paying Agent Account from the Depositary of any amount
in respect of accrued interest on the
<PAGE> 10
7
Deposits, the Paying Agent shall distribute out of the Paying Agent
Account the entire amount deposited therein by the Depositary. There
shall be so distributed to each Receiptholder of record on the 15th day
(whether or not a Business Day) preceding such Interest Payment Date by
check mailed to such Receiptholder, at the address appearing in the
Register, such Receiptholder's pro rata share (based on the Escrow
Interest in the Account Amounts held by such Receiptholder) of the
total amount of interest deposited by the Depositary in the Paying
Agent Account on such date, except that, with respect to Escrow
Receipts registered on the Record Date in the name of DTC, such
distribution shall be made by wire transfer in immediately available
funds to the account designated by DTC.
(b) Upon the confirmation by the Paying Agent of receipt in
the Paying Agent Account from the Depositary of any amount in respect
of the Final Withdrawal, the Paying Agent shall forthwith distribute
the entire amount of the Final Withdrawal deposited therein by the
Depositary. There shall be so distributed to each Receiptholder of
record on the 15th day (whether or not a Business Day) preceding the
Final Withdrawal Date by check mailed to such Receiptholder, at the
address appearing in the Register, such Receiptholder's pro rata share
(based on the Escrow Interest in the Account Amounts held by such
Receiptholder) of the total amount in the Paying Agent Account on
account of such Final Withdrawal, except that, with respect to Escrow
Receipts registered on the Record Date in the name of DTC, such
distribution shall be made by wire transfer in immediately available
funds to the account designated by DTC.
(c) If any payment of interest or principal in respect of the
Final Withdrawal is not received by the Paying Agent within five days
of the applicable date when due, then it shall be distributed to
Receiptholders after actual receipt by the Paying Agent on the same
basis as a Special Payment is distributed under the Pass Through Trust
Agreement.
(d) The Paying Agent shall include with any check mailed
pursuant to this Section any notice required to be distributed under
the Pass Through Trust Agreement that is furnished to the Paying Agent
by the Pass Through Trustee.
Section 2.04. Withholding Taxes. The Paying Agent shall
exclude and withhold from each distribution of accrued interest on the Deposits
(as defined in the Deposit Agreement) and any amount in respect of the Final
Withdrawal any and all withholding taxes applicable thereto as required by law.
The Paying Agent agrees to act as such withholding agent and, in connection
therewith, whenever any present or future taxes or similar charges are required
to be withheld with respect to any amounts payable in respect of the Deposits
(as defined in the Deposit Agreement) or the escrow amounts, to withhold such
amounts and timely pay the same to the appropriate authority in the name of and
on behalf of the Receiptholders, that it will file any necessary withholding tax
returns or statements when due, and that, as promptly as possible after the
payment thereof, it will deliver to each such Receiptholder appropriate
documentation showing the payment thereof, together with such additional
documentary evidence as such
<PAGE> 11
8
Receiptholder may reasonably request from time to time. The Paying Agent agrees
to file any other information reports as it may be required to file under United
States law.
Section 2.05. Resignation or Removal of Paying Agent. Subject
to the appointment and acceptance of a successor Paying Agent as provided below,
the Paying Agent may resign at any time by giving 30 days' prior written notice
thereof to the Escrow Agent, but may not otherwise be removed except for cause
by the Escrow Agent. Upon any such resignation or removal, the Escrow Agent
shall have the right to appoint a successor Paying Agent. If no successor Paying
Agent shall have been so appointed and shall have accepted such appointment
within 30 days after the retiring Paying Agent's giving of notice of resignation
or the removal of the retiring Paying Agent, then the retiring Paying Agent may
appoint a successor Paying Agent. Any Successor Paying Agent shall be a bank
which has an office in the United States with a combined capital and surplus of
at least $100,000,000. Upon the acceptance of any appointment as Paying Agent
hereunder by a successor Paying Agent, such successor Paying Agent shall enter
into such documents as the Escrow Agent shall require and shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Paying Agent, and the retiring Paying Agent shall be discharged
from its duties and obligations hereunder.
Section 2.06. Notice of Final Withdrawal. Promptly after
receipt by the Paying Agent of notice that the Escrow Agent has requested a
Final Withdrawal or that a Final Withdrawal will be made, the Paying Agent shall
cause notice of the distribution of such Final Withdrawal to be mailed to each
of the Receiptholders at its address as it appears in the Register. Such notice
shall be mailed not less than 15 days prior to the Final Withdrawal Date. Such
notice shall set forth:
(i) the Final Withdrawal Date and the date for determining
Receiptholders of record who shall be entitled to receive distributions
in respect of such Final Withdrawal,
(ii) the amount of the payment in respect of such Final
Withdrawal for each $1,000 face amount Certificate (based on
information provided by the Pass Through Trustee) and the amount
thereof constituting unused Deposits (as defined in the Deposit
Agreement) and interest thereon, and
(iii) if the Final Withdrawal Date is the same date as a
Regular Distribution Date, the total amount to be received on such date
for each $1,000 face amount Certificate (based on information provided
by the Pass Through Trustee).
Such mailing may include any notice required to be given to
Certificateholders in connection with such distribution pursuant to the Pass
Through Trust Agreement.
SECTION 3. Payments. If, notwithstanding the instructions in
Section 3 of the Deposit Agreement that all amounts payable to the Escrow Agent
under the Deposit Agreement
<PAGE> 12
9
be paid by the Depositary directly to the Paying Agent or the Pass Through
Trustee or a Replacement Depositary (depending on the circumstances), the Escrow
Agent receives any payment thereunder, then the Escrow Agent shall forthwith pay
such amount in Dollars and in immediately available funds by wire transfer to
(a) in the case of a payment of accrued interest on the Deposits (as defined in
the Deposit Agreement) or any Final Withdrawal, directly to the Paying Agent
Account and (b) in the case of any Purchase Withdrawal, directly to the Pass
Through Trustee or its designee as specified and in the manner provided in the
Applicable Notice of Purchase Withdrawal and (c) in the case of any Replacement
Withdrawal (other than accrued interest), to the Replacement Depositary as
provided in the Replacement Depositary Agreement. The Escrow Agent hereby waives
any and all rights of set-off, combination of accounts, right of retention or
similar right (whether arising under applicable law, contract or otherwise) it
may have against amounts payable to the Paying Agent howsoever arising.
SECTION 4. Other Actions. The Escrow Agent shall take such
other actions under or in respect of the Deposit Agreement (including, without
limitation, the enforcement of the obligations of the Depositary thereunder) as
the Investors, by an Action of Investors, may from time to time request.
SECTION 5. Representations and Warranties of the Escrow Agent.
The Escrow Agent represents and warrants to America West, the Investors, the
Paying Agent and the Pass Through Trustee as follows:
(i) it is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware;
(ii) it has full power, authority and legal right to conduct
its business and operations as currently conducted and to enter into
and perform its obligations under this Agreement, the Deposit Agreement
and any Replacement Deposit Agreement;
(iii) the execution, delivery and performance of each of this
Agreement, the Deposit Agreement and any Replacement Deposit Agreement
have been duly authorized by all necessary corporate action on the part
of it and do not require any stockholder approval, or approval or
consent of any trustee or holder of any indebtedness or obligations of
it, and each such document has been duly executed and delivered by it
and constitutes its legal, valid and binding obligations enforceable
against it in accordance with the terms hereof or 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 such enforceability
is considered in a proceeding in equity or at law);
(iv) 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
<PAGE> 13
10
or regulatory body is required for the execution, delivery or
performance by it of this Agreement or the Deposit Agreement or any
Replacement Deposit Agreement;
(v) neither the execution, delivery or performance by it of
this Agreement or the Deposit Agreement or any Replacement Deposit
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 or the charter documents, as amended, or bylaws, as
amended, of it or any similar instrument binding on it or any order,
writ, injunction or decree of any court or governmental authority
against it or by which it or any of its properties is bound or any
indenture, mortgage or contract or other agreement or instrument to
which it 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;
and
(vi) there are no pending or, to its knowledge, threatened
actions, suits, investigations or proceedings (whether or not
purportedly on behalf of it) against or affecting it or any of its
property before or by any court or administrative agency which, if
adversely determined, (A) would adversely affect the ability of it to
perform its obligations under this Agreement or the Deposit Agreement
or any Replacement Deposit Agreement (B) would call into question or
challenge the validity of this Agreement or the Deposit Agreement or
the enforceability hereof or thereof in accordance with the terms
hereof or thereof, nor is the Escrow Agent in default with respect to
any order of any court, governmental authority, arbitration board or
administrative agency so as to adversely affect its ability to perform
its obligations under this Agreement or the Deposit Agreement.
SECTION 6. Representations and Warranties of the Paying Agent.
The Paying Agent represents and warrants to America West, the Investors, the
Escrow Agent and the Pass Through Trustee as follows:
(i) it is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware;
(ii) it has full power, authority and legal right to conduct
its business and operations as currently conducted and to enter into
and perform its obligations under this Agreement;
(iii) the execution, delivery and performance of this
Agreement has been duly authorized by all necessary corporate action on
the part of it and does not require any stockholder approval, or
approval or consent of any trustee or holder of any indebtedness or
obligations of it, and such document has been duly executed and
delivered by it and constitutes its legal, valid and binding
<PAGE> 14
11
obligations enforceable against it in accordance with the terms hereof
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 such enforceability
is considered in a proceeding in equity or at law);
(iv) 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 is required for the
execution, delivery or performance by it of this Agreement;
(v) neither the execution, delivery or performance by it of
this Agreement, nor compliance with the terms and provisions hereof,
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 it or any similar instrument binding on it or any order, writ,
injunction or decree of any court or governmental authority against it
or by which it or any of its properties is bound or any indenture,
mortgage or contract or other agreement or instrument to which it 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; and
(vi) there are no pending or, to its knowledge, threatened
actions, suits, investigations or proceedings (whether or not
purportedly on behalf of it) against or affecting it or any of its
property before or by any court or administrative agency which, if
adversely determined, (A) would adversely affect the ability of it to
perform its obligations under this Agreement or (B) would call into
question or challenge the validity of this Agreement or the
enforceability hereof in accordance with the terms hereof, nor is the
Paying Agent in default with respect to any order of any court,
governmental authority, arbitration board or administrative agency so
as to adversely affect its ability to perform its obligations under
this Agreement.
SECTION 7. Indemnification. Except for actions expressly
required of the Escrow Agent or the Paying Agent hereunder, each of the Escrow
Agent and the Paying Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall have been indemnified (both in such
capacities and individually) by the party requesting such action in a manner
reasonably satisfactory to it against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
In the event America West requests any amendment to any Operative Agreement (as
defined in the Note Purchase Agreement), the Pass Through Trustee agrees to pay
all reasonable fees and expenses (including, without limitation, fees and
disbursements of counsel) of the Escrow Agent and the Paying Agent in connection
therewith.
<PAGE> 15
12
SECTION 8. Amendment, Etc. Upon request of the Pass Through
Trustee and approval by an Action of Investors, the Escrow Agent shall enter
into an amendment to this Agreement, so long as such amendment does not
adversely affect the rights or obligations of the Escrow Agent or the Paying
Agent, provided that upon request of the Pass Through Trustee and without any
consent of the Investors, the Escrow Agent shall enter into an amendment to this
Agreement for any of the following purposes:
(1) to correct or supplement any provision in this Agreement
which may be defective or inconsistent with any other provision herein
or to cure any ambiguity or correct any mistake or to modify any other
provision with respect to matters or questions arising under this
Agreement, provided that any such action shall not materially adversely
affect the interests of the Investors; or
(2) to comply with any requirement of the SEC, applicable law,
rules or regulations of any exchange or quotation system on which the
Certificates are listed or any regulatory body or the Registration
Rights Agreement to effectuate the Exchange Offer; or
(3) to evidence and provide for the acceptance of appointment
under this Agreement of a successor Escrow Agent, successor Paying
Agent or successor Pass Through Trustee.
SECTION 9. Notices. Unless otherwise expressly provided
herein, any notice or other communication under this Agreement shall be in
writing (including by facsimile) and shall be deemed to be given and effective
upon receipt thereof (or, if received outside of business hours, on the next
open of business on a Business Day). All notices shall be sent to (a) in the
case of the Investors, as their respective addresses shall appear in the
Register, (b) in the case of the Escrow Agent, Wilmington Trust Company, 1100
North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust
Administration (Telecopier: 302-651-8882), (c) in the case of the Pass Through
Trustee, Wilmington Trust Company, 1100 North Market Street, Wilmington,
Delaware 19890, Attention: Corporate Trust Administration (Telecopier:
302-651-8882), or (d) in the case of the Paying Agent, Wilmington Trust Company,
1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust
Administration (Telecopier: 302-651-8882), in each case with a copy to America
West, America West Airlines, Inc., 4000 East Sky Harbor Boulevard, Phoenix,
Arizona 95043, Attention: Vice President - Treasurer (Telecopier: (602)
693-5886) (or at such other address as any such party may specify from time to
time in a written notice to the other parties). On or prior to the execution of
this Agreement, the Pass Through Trustee has delivered to the Escrow Agent a
certificate containing specimen signatures of the representatives of the Pass
Through Trustee who are authorized to give notices and instructions with respect
to this Agreement. The Escrow Agent may conclusively rely on such certificate
until the Escrow Agent receives written notice from the Pass Through Trustee to
the contrary.
SECTION 10. Transfer. No party hereto shall be entitled to
assign or otherwise transfer this Agreement (or any interest herein) other than
(in the case of the Escrow Agent) to a
<PAGE> 16
13
successor escrow agent under Section 1.06 hereof or (in the case of the Paying
Agent) to a successor paying agent under Section 2.04 hereof, and any purported
assignment in violation thereof shall be void. This Agreement shall be binding
upon the parties hereto and their respective successors and (in the case of the
Escrow Agent and the Paying Agent) their respective permitted assigns. Upon the
occurrence of the Transfer (as defined below) contemplated by the Assignment and
Assumption Agreement (as defined below), the Pass Through Trustee shall (without
further act) be deemed to have transferred all of its right, title and interest
in and to this Agreement to the trustee of the Successor Trust (as defined
below) and, thereafter, the trustee of the Successor Trust shall be deemed to be
the "Pass Through Trustee" hereunder with the rights and obligations of the
"Pass Through Trustee" hereunder and each reference herein to "America West
Airlines Pass Through Trust "1999-1G-O" shall be deemed to be a reference to
"America West Airlines Pass Through Trust 1999-1G-S". The parties hereto hereby
acknowledge and consent to the Transfer contemplated by the Assignment and
Assumption Agreement. As used herein, "Transfer" means the transfers of the
assets to the Successor Trust contemplated by the Assignment and Assumption
Agreement; "Assignment and Assumption Agreement" means the Assignment and
Assumption Agreement to be entered into between the Pass Through Trustee and the
trustee of the Successor Trust, substantially in the form of Exhibit D to the
Pass Through Trust Agreement; "Successor Trust" means the America West Airlines
Pass Through Trust 1999-1G-S.
SECTION 11. Entire Agreement. This Agreement sets forth all of
the promises, covenants, agreements, conditions and understandings among the
Escrow Agent, the Paying Agent, the Initial Purchasers and the Pass Through
Trustee with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and undertakings, inducements or conditions, express
or implied, oral or written.
SECTION 12. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the law of the State of New York.
SECTION 13. Waiver of Jury Trial Right. EACH OF THE ESCROW
AGENT, THE PAYING AGENT, THE INVESTORS AND THE PASS THROUGH TRUSTEE ACKNOWLEDGES
AND ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.
SECTION 14. Counterparts. This Agreement may be executed in
one or more counterparts, all of which taken together shall constitute one
instrument.
<PAGE> 17
IN WITNESS WHEREOF, the Escrow Agent, the Paying Agent, the
Initial Purchasers and the Pass Through Trustee have caused this Escrow and
Paying Agent Agreement (Class G) to be duly executed as of the day and year
first above written.
WILMINGTON TRUST COMPANY, as Escrow Agent
By /s/ James P. Lawler
-----------------------------
Name: James P. Lawler
Title: Vice President
MORGAN STANLEY & CO. INCORPORATED,
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED, and
SALOMON SMITH BARNEY INC.,
as Initial Purchasers
By: MORGAN STANLEY & CO.
INCORPORATED
By /s/ Bruce Paine
-----------------------------
Name: Bruce Paine
Title: Vice President
WILMINGTON TRUST COMPANY,
not in its individual
capacity, but solely as
Pass Through Trustee for
and on behalf of America
West Airlines Pass Through
Trust 1999-1G-O
By /s/ James P. Lawler
-----------------------------
Name: James P. Lawler
Title: Vice President
<PAGE> 18
WILMINGTON TRUST COMPANY,
as Paying Agent
By /s/ James P. Lawler
-----------------------------
Name: James P. Lawler
Title: Vice President
<PAGE> 19
EXHIBIT A
AMERICA WEST AIRLINES 1999-1G ESCROW RECEIPT
No. __
This Escrow Receipt evidences a fractional undivided interest
in amounts ("Account Amounts") from time to time deposited into a certain paying
agent account (the "Paying Agent Account") described in the Escrow and Paying
Agent Agreement (Class G) dated as of September 21, 1999 (as amended, modified
or supplemented from time to time, the "Escrow and Paying Agent Agreement")
among Wilmington Trust Company, as Escrow Agent (in such capacity, together with
its successors in such capacity, the "Escrow Agent"), Morgan Stanley & Co.
Incorporated, Donaldson, Lufkin & Jenrette Securities Corporation , Merrill
Lynch, Pierce, Fenner & Smith Incorporated, and Salomon Smith Barney Inc., as
Initial Purchasers, Wilmington Trust Company, as Pass Through Trustee (in such
capacity, together with its successors in such capacity, the "Pass Through
Trustee") and Wilmington Trust Company, as paying agent (in such capacity,
together with its successors in such capacity, the "Paying Agent"). Capitalized
terms not defined herein shall have the meanings assigned to them in the Escrow
and Paying Agent Agreement.
This Escrow Receipt is issued under and is subject to the
terms, provisions and conditions of the Escrow and Paying Agent Agreement. By
virtue of its acceptance hereof the holder of this Escrow Receipt assents and
agrees to be bound by the provisions of the Escrow and Paying Agent Agreement
and this Escrow Receipt.
This Escrow Receipt represents a fractional undivided interest
in amounts deposited from time to time in the Paying Agent Account, and grants
or represents no rights, benefits or interests of any kind in respect of any
assets or property other than such amounts. This Escrow Receipt evidences the
same percentage interest in the Account Amounts as the Fractional Undivided
Interest in the Pass Through Trust evidenced by the Certificate to which this
Escrow Receipt is affixed.
All payments and distributions made to Receiptholders in
respect of the Escrow Receipt shall be made only from Account Amounts deposited
in the Paying Agent Account. The holder of this Escrow Receipt, by its
acceptance of this Escrow Receipt, agrees that it will look solely to the
Account Amounts for any payment or distribution due to it pursuant to this
Escrow Receipt and that it will not have any recourse to America West, the Pass
Through Trustee, the Paying Agent or the Escrow Agent, except as expressly
provided herein or in the Pass Through Trust Agreement. No Receiptholder of this
Escrow Receipt shall have any right to vote or in any manner otherwise control
the operation and management of the Paying Agent Account, nor shall anything set
forth herein, or contained in the terms of this Escrow Receipt, be construed so
as to constitute the Receiptholders from time to time as partners or members of
an association.
This Escrow Receipt may not be assigned or transferred except
in connection with the assignment or transfer of the Certificate to which this
Escrow Receipt is affixed. After payment to the holder hereof of its Escrow
Interest in the Final Distribution, upon the request of
<PAGE> 20
2
the Pass Through Trustee, the holder hereof will return this Escrow Receipt to
the Pass Through Trustee.
The Paying Agent may treat the person in whose name the
Certificate to which this Escrow Receipt is attached as the owner hereof for all
purposes, and the Paying Agent shall not be affected by any notice to the
contrary.
THIS ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Escrow Agent has caused this Escrow
Receipt to be duly executed.
Dated: ______________, 199_
WILMINGTON TRUST COMPANY,
as Escrow Agent
By __________________________
Name:
Title:
<PAGE> 21
EXHIBIT B
WITHDRAWAL CERTIFICATE
(Class G)
WILMINGTON TRUST COMPANY,
as Escrow Agent
Dear Sirs:
Reference is made to the Escrow and Paying Agent Agreement,
dated as of September 21, 1999 (the "Agreement"). [We hereby certify to you that
the conditions to the obligations of the undersigned to execute a Participation
Agreement pursuant to the Note Purchase Agreement have been satisfied] [We
hereby notify you that the Depositary is being replaced in accordance with
Section 4(a)(vii) of the Note Purchase Agreement]. Pursuant to Section 1.02(c)
of the Agreement, please execute the attached Notice of Withdrawal and
immediately transmit by facsimile to the Depositary, at (312) 606-8428,
Attention: Vice President - Aerospace.
Very truly yours,
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Pass Through Trustee
By __________________________
Name:
Title:
Dated: ____________, 199_
<PAGE> 1
EXECUTION COPY
EXHIBIT 4.15
AMBAC ASSURANCE CORPORATION,
as Policy Provider,
AMERICA WEST AIRLINES, INC.
and
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent and trustee to the Trustee under the
America West Airlines Pass Through Trust 1999-1G
INSURANCE AND INDEMNITY AGREEMENT
AMERICA WEST AIRLINES, INC.
PASS THROUGH CERTIFICATES,
SERIES 1999-1G-O
Dated as of September 21, 1999
<PAGE> 2
(This Table of Contents is for convenience of reference only
and shall not be deemed to be part of this Agreement. All capitalized terms used
in this Agreement and not otherwise defined shall have the meanings set forth in
Article I of this Agreement.)
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms..................................................... 2
Section 1.02 Other Definitional Provisions..................................... 6
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.01 Representations and Warranties of America West.................... 7
Section 2.02 Covenants of America West......................................... 10
Section 2.03 Covenants of WTC and Subordination Agent.......................... 12
Section 2.04 Representations, Warranties and Covenants of the Policy Provider.. 12
ARTICLE III
THE POLICY; REIMBURSEMENT; iNDEMNIFICATION
Section 3.01 Issuance of the Policy............................................ 14
Section 3.02 Payment of Fees and Premium....................................... 16
Section 3.03 Reimbursement Obligation.......................................... 16
Section 3.04 Indemnification................................................... 17
Section 3.05 Procedure for Payment of Fees and Premiums........................ 18
ARTICLE IV
FURTHER AGREEMENTS
Section 4.01 Effective Date; Term of the Insurance Agreement................... 18
Section 4.02 Further Assurances and Corrective Instruments..................... 18
Section 4.03 Obligations Absolute.............................................. 18
Section 4.04 Assignments; Reinsurance; Third-Party Rights...................... 20
Section 4.05 Liability of the Policy Provider.................................. 20
</TABLE>
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<PAGE> 3
<TABLE>
<S> <C>
ARTICLE V
MISCELLANEOUS
Section 5.01 Amendments, Etc................................................... 21
Section 5.02 Notices........................................................... 21
Section 5.03 Severability...................................................... 22
Section 5.04 Governing Law..................................................... 22
Section 5.05 Consent to Jurisdiction........................................... 22
Section 5.06 Consent of the Policy Provider.................................... 23
Section 5.07 Counterparts...................................................... 23
Section 5.08 Headings.......................................................... 23
Section 5.09 Trial by Jury Waived.............................................. 23
Section 5.10 Limited Liability................................................. 24
Section 5.11 Entire Agreement.................................................. 24
</TABLE>
-ii-
<PAGE> 4
INSURANCE AND INDEMNITY AGREEMENT (as may be amended, modified
or supplemented from time to time, this "Insurance Agreement"), dated as of
September 21, 1999, by and among AMBAC ASSURANCE CORPORATION, as Policy
Provider, AMERICA WEST AIRLINES, INC. ("America West") and WILMINGTON TRUST
COMPANY, not in its individual capacity but solely as Subordination Agent and
trustee to the Class G Trustee (the "Subordination Agent").
W I T N E S S E T H :
WHEREAS, America West intends to finance (or refinance) the
acquisition of ten Aircraft either (i) through separate leveraged lease
Transactions in which America West will lease the Leased Aircraft or (ii)
through separate secured loan Transactions in which America West will own the
Owned Aircraft;
WHEREAS, in the case of each Leased Aircraft, the Owner
Trustee acting on behalf of a corresponding Owner Participant, will issue
pursuant to an Indenture, on a non-recourse basis, two or more series of
Equipment Notes in order to finance a portion of its purchase price of such
Leased Aircraft;
WHEREAS, in the case of each Owned Aircraft, America West will
issue pursuant to an Indenture, on a recourse basis, two or more series of
Equipment Notes to finance a portion of the purchase price of such Owned
Aircraft;
WHEREAS, WTC, not in its individual capacity but as Trustee
under each of the Trust Agreements, will create the Trusts, which will acquire
the Equipment Notes under the Note Purchase Agreement;
WHEREAS, (i) Morgan Stanley Capital Services, Inc., as
Liquidity Provider, has entered into two Liquidity Facilities, one for the
benefit of the Class G Certificateholders and one for the benefit of the Class C
Certificateholders, with WTC, as agent for each Trustee on behalf of each Trust
and (ii) the Trustee of each Trust, the Liquidity Provider, the Policy Provider
and the Subordination Agent have entered into the Intercreditor Agreement;
WHEREAS, pursuant to each Trust Agreement, a separate Trust
has been created to facilitate the sale of the Certificates;
WHEREAS, the Policy Provider has issued the Policy in respect
of the Class G Certificates, pursuant to which it has agreed to guarantee the
payment of interest to the Subordination Agent for the benefit of the Class G
Trustee and Class G Certificateholders, and the payment of principal of the
Class G Certificates on the Final Distribution Date for the Class G Certificates
and as otherwise provided herein;
-1-
<PAGE> 5
WHEREAS, the Policy Provider shall be paid the Premium as set
forth herein; and
WHEREAS, each of America West, WTC and the Subordination Agent
has agreed to undertake certain obligations in consideration for the Policy
Provider's issuance of the Policy;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms. Unless the context clearly
requires otherwise, all capitalized terms used but not defined herein shall have
the respective meanings assigned to them in the Intercreditor Agreement or, if
not defined therein, in the Policy described below. For purposes of this
Insurance Agreement, the following terms shall have the following meanings:
"Act" means Part A of subtitle VII of title 49, United States
Code.
"Aircraft" means any aircraft which is or will be part of the
Collateral.
"Airframe" means any airframe which is or will be part of the
Collateral.
"Bankruptcy Code" means the United States Bankruptcy Code, 11
U.S.C. Section 101 et seq.
"Citizen of the United States" is defined in Section
40102(a)(15) of the Act and in the FAA Regulations.
"Collateral" means the "Collateral" as defined or to be
defined in any Indenture with respect to an Owned Aircraft, and the "Trust
Indenture Estate" as defined or to be defined in any Indenture with respect to a
Leased Aircraft.
"Delivery Date" means with respect to each Participation
Agreement, the "Closing Date" as defined or to be defined in each such
Participation Agreement.
"Engine" means any engine which is or will be part of the
Collateral.
"Exchange Offer Registration Statement" has the meaning given
such term in the Trust Agreement.
"Expenses" means any and all liabilities, obligations, losses,
damages, settlements, penalties, claims, actions, suits, costs, expenses and
disbursements (including, without limitation, reasonable fees and disbursements
of legal counsel, accountants, appraisers, inspectors or other professionals,
and costs of investigation).
-2-
<PAGE> 6
"Event of Loss" means any Event of Loss defined or to be
defined in any Participation Agreement.
"FAA" means the Federal Aviation Administration of the United
States of America or any Government Entity succeeding to the functions of such
Federal Aviation Administration.
"FAA Filed Documents" with respect to each Aircraft, has the
meaning given such term in the related Participation Agreement.
"Final Dissolution Date" means following the occurrence of a
Triggering Event, the Distribution Date next succeeding the date of receipt by
the Subordination Agent of the proceeds of the sale of the last Aircraft (or the
related Equipment Notes) then subject to the Lien of any Indenture.
"Final Distribution Date" means the date which is the earlier
of the (i) the Final Legal Distribution Date or (ii) the Final Dissolution Date.
"Final Legal Distribution Date" means the Regular Distribution
Date in July, 2020.
"Financing Statements" means collectively, UCC-1 (and, where
appropriate, UCC-3) financing statements covering (A) in respect of each Owned
Aircraft, the related Collateral, executed by Owner, as debtor, showing
Mortgagee as secured party, for filing in Arizona and each other jurisdiction in
which such filing is made on or before the related Delivery Date and (B) with
respect to each Leased Aircraft (a) the related Trust Indenture Estate, by the
related Owner Trustee as debtor, showing Mortgagee as secured party, for filing
in Trust Company Jurisdiction (as defined in Schedule 3 to the related
Participation Agreement) and each other jurisdiction that, in the opinion of
Mortgagee, is necessary to perfect its Lien on the related Trust Indenture
Estate and (b) the related Lease and the Aircraft, as a precautionary matter, by
Lessee, as lessee, showing Owner Trustee as lessor and Mortgagee as assignee of
Owner Trustee, for filing in Arizona.
"GAAP" means generally accepted accounting principles as set
forth in the statements of financial accounting standards issued by the
Financial Accounting Standards Board of the American Institute of Certified
Public Accountants, as such principles may at any time or from time to time be
varied by any applicable financial accounting rules or regulations issued by the
SEC and, with respect to any Person, shall mean such principles applied on a
basis consistent with prior periods except as may be disclosed in such Person's
financial statements.
"Government Entity" means (a) any federal, state, provincial
or similar government, and any body, board, department, commission, court,
tribunal, authority, agency or other instrumentality of any such government or
otherwise exercising any executive, legislative, judicial, administrative or
regulatory functions of such government or (b) any other government entity
having jurisdiction over any matter contemplated by the Operative Agreements or
relating to the observance or performance of the obligations of any of the
parties to the Operative Agreements.
-3-
<PAGE> 7
"Holder" has the meaning given such term in the Policy.
"Initial Purchasers" means Morgan Stanley & Co. Incorporated,
Donaldson, Lufkin & Jenrette Securities Corporation, Merrill Lynch, Pierce,
Fenner & Smith Incorporated, and Salomon Smith Barney Inc.
"Insurance Agreement" has the meaning given such term in the
initial paragraph hereof.
"Intercreditor Agreement" means the Intercreditor Agreement
(1999-1), dated as the date hereof by and among WTC, as Trustee under each of
the Class G Trust and Class C Trust, the Liquidity Provider, the Policy Provider
and the Subordination Agent.
"Investment Company Act" means the Investment Company Act of
1940, including, unless the context otherwise requires, the rules and
regulations thereunder, as amended from time to time.
"Lease Default" means, with respect to any Lease, any Event of
Default (as such term is defined in the Lease).
"Lien" means any mortgage, pledge, lien, charge, encumbrance
or security interest affecting the title to or any interest in property.
"Material Adverse Change" means, in respect of any Person as
at any date, a material adverse change in the ability of such Person to perform
its obligations under any of the Operative Agreements to which it is a party as
of such date, including any material adverse change in the business, financial
condition, results of operations or properties of such Person on a consolidated
basis with its subsidiaries which might have such effect.
"Moody's" means Moody's Investors Service, Inc., and any
successor thereto.
"Mortgagee" with respect to each Aircraft means WTC in its
capacity as Loan Trustee under the related Indentures.
"Offering Document" means the Offering Memorandum dated
September 14, 1999, any supplemental Offering Memorandum relating to the Class G
Certificates, the Exchange Offer Registration Statement and any amendment or
supplement to any of the foregoing.
"Operative Agreements" (i) means this Insurance Agreement, the
Intercreditor Agreement, each Participation Agreement, the Note Purchase
Agreement, each Indenture, the Series G Equipment Notes, the Class G
Certificates, the Liquidity Facilities, the Class G Trust Agreement, the
Purchase Agreement, the Leases and the Policy Fee Letter, together with all
exhibits and schedules included with any of the foregoing.
"Owner" means with respect to a Leased Aircraft, the related
Owner Trustee and with respect to an Owned Aircraft, America West.
-4-
<PAGE> 8
"Person" means an individual, joint stock company, trust,
unincorporated association, joint venture, corporation, business or owner trust,
partnership or other organization or entity (whether governmental or private).
"Policy" means the Certificate Guaranty Insurance Policy No.
AB0292BE, together with all endorsements thereto, issued by the Policy Provider
in favor of the Subordination Agent, for the benefit of the Class G
Certificateholders as the same may be amended from time to time in accordance
with the terms of the Intercreditor Agreement.
"Policy Fee Letter" means the fee letter, dated as of
September 21, 1999 from the Policy Provider to America West setting forth the
Premium and certain other amounts payable in respect of the Policy.
"Policy Provider" means Ambac Assurance Corporation, or any
successor thereto, as issuer of the Policy.
"Policy Provider Information" means the information set forth
under the caption "Description of the Policy Provider" in the Offering Document.
"Pool Balance" means with respect to the Class G Trust or the
Class G Certificates, as of any date, (i) the original aggregate face amount of
the Class G Certificates less (ii) the aggregate amount of all payments made in
respect of the Class G Certificates or in respect of Class G Deposits 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 the Class G
Trust or the Class G Certificates as of any Distribution Date shall be computed
after giving effect to any special distribution with respect to unused Class G
Deposits, payment of principal of the Equipment Notes or payment with respect to
other Trust Property held in such Trust and the distribution thereof to be made
on that date.
"Premium" means the premium payable in respect of the Policy
on the Closing Date and on each Distribution Date thereafter in an amount equal
to 1/2 of the product of (i) the Premium Percentage and (ii) with respect to the
payment to be made on the Closing Date, the Pool Balance of the Class G
Certificates on the Closing Date, or with respect to the payments to be made on
each Distribution Date, the Pool Balance of the Class G Certificates on such
Distribution Date after giving effect to any distributions to be made on such
Distribution Date; provided, however, the fee payable on the Closing Date shall
be pro rated from the Closing Date to the first Distribution Date (based upon a
360 day year of twelve 30 day months).
"Premium Percentage" shall have the meaning set forth in the
Policy Fee Letter.
"Purchase Agreement" means the Purchase Agreement, dated
September 14, 1999, among Morgan Stanley & Co. Incorporated, Donaldson, Lufkin &
Jenrette Securities Corporation, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, and Salomon Smith Barney Inc. with respect to the Certificates, as
may be amended, modified or supplemented from time to time.
"Registration Rights Agreement" has the meaning given such
term in the Purchase Agreement.
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<PAGE> 9
"S&P" means Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc., and any successor thereto.
"SEC" means the Securities and Exchange Commission of the
United States of America, or any successor thereto.
"Section 1110" means 11 U.S.C. Section 1110 of the Bankruptcy
Code or any successor or analogous section of the federal bankruptcy law in
effect from time to time.
"Securities Act" means the Securities Act of 1933, including,
unless the context otherwise requires, the rules and regulations thereunder, as
amended from time to time.
"Security" means a "Security" as defined in Section 2(1) of
the Securities Act.
"Series G Equipment Notes" means the 7.93% Series G Equipment
Notes issued pursuant to any Indenture by the related Owner Trustee or America
West, as the case may be, and authenticated by the Loan Trustee thereunder, and
any Equipment Notes issued in exchange therefor or replacement thereof pursuant
to the terms of such Indenture.
"Transactions" means the Transactions contemplated by the
Operative Agreements, including the Transactions described in the Offering
Document.
"UCC" means the Uniform Commercial Code as in effect in any
applicable jurisdiction.
"U.S. Air Carrier" means any United States air carrier that is
a Citizen of the United States holding an air carrier operating certificate
issued by the Secretary of Transportation pursuant to the Act for aircraft
capable of carrying 10 or more individuals or 6000 pounds or more of cargo, and
as to which there is in force an air carrier operating certificate issued
pursuant to Part 121 of the FAA Regulations, or which may operate as an air
carrier by certification or otherwise under any successor or substitute
provisions therefor or in the absence thereof.
"WTC" means Wilmington Trust Company, a Delaware banking
corporation.
SECTION 1.02 Other Definitional Provisions. The words
"hereof," "herein" and "hereunder" and words of similar import when used in this
Insurance Agreement shall refer to this Insurance Agreement as a whole and not
to any particular provision of this Insurance Agreement, and Section,
subsection, Schedule and Exhibit references are to this Insurance Agreement
unless otherwise specified. The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms. The
words "include" and "including" shall be deemed to be followed by the phrase
"without limitation."
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<PAGE> 10
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 2.01 Representations and Warranties of America West.
America West represents and warrants as of the Closing Date and as of each
Delivery Date as follows:
(a) Organization; Qualification. America West is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware and has the corporate power and authority to conduct its
business in which it is currently engaged and to own or hold under lease its
properties and to enter into and perform its obligations under the Operative
Agreements to which it is a party as of such date. America West is duly
qualified to do business as a foreign corporation in good standing in each
jurisdiction in which the nature and extent of the business conducted by it, or
the ownership of its properties, requires such qualification, except where the
failure to be so qualified would not give rise to a Material Adverse Change to
America West.
(b) Corporate Authorization. America West has taken, or caused
to be taken, all necessary corporate action (including, without limitation, the
obtaining of any consent or approval of stockholders required by its certificate
of incorporation or by-laws) to authorize the execution and delivery of each of
the Operative Agreements to which it is a party as of such date, and the
performance of its obligations thereunder.
(c) No Violation. The execution and delivery by America West
of the Operative Agreements to which it is a party as of such date, the
performance by America West of its obligations thereunder and the consummation
by America West of the Transactions contemplated thereby, do not and will not
(a) violate any provision of the certificate of incorporation or by-laws of
America West, (b) violate any law, regulation, rule or order applicable to or
binding on America West or (c) violate or constitute any default under (other
than any violation or default that would not result in a Material Adverse Change
to America West), or result in the creation of any Lien (other than as permitted
under the related Lease or as created by the related Indenture) upon the
Aircraft under, any indenture, mortgage, chattel mortgage, deed of trust,
conditional sales contract, lease, loan or other material agreement, instrument
or document to which America West is a party or by which it or any of its
properties is bound.
(d) Approvals. The execution and delivery by America West of
the Operative Agreements to which it is a party as of such date, the performance
by America West of its obligations thereunder and the consummation by America
West of the Transactions contemplated thereby do not and will not require the
consent or approval of, or the giving of notice to, or the registration with, or
the recording or filing of any documents with, or the taking of any other action
in respect of, (a) any trustee or other creditor of America West and (b) any
Government Entity, other than the filing of (w) the FAA Filed Documents and the
Financing Statements (and continuation statements periodically), (x) filings,
recordings, notices or other ministerial actions pursuant to any routine
recording, contractual or regulatory requirements applicable to it, (y) filings,
recordings, notices or other actions contemplated by the Operative Agreements in
connection with the subleasing or reregistration of the Aircraft and (z)
filings,
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<PAGE> 11
recordings, notices or other actions relating to the Securities Act as
contemplated by the Registration Rights Agreement.
(e) Valid and Binding Agreements. The Operative Agreements
executed and delivered by America West on or prior to such date have been duly
executed and delivered by America West and, assuming the due authorization,
execution and delivery thereof by the other party or parties thereto, constitute
the legal, valid and binding obligations of America West and are enforceable
against America West in accordance with the respective terms thereof, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting the rights of
creditors generally and general principles of equity, whether considered in a
proceeding at law or in equity and subject to principles of public policy
limiting the right to enforce the indemnification provisions contained herein,
insofar as such provisions relate to indemnification for liabilities arising
under federal securities laws.
(f) Litigation. Except as set forth in America West's most
recent Annual Report on form 10-K, as amended, filed by America West with the
SEC on or prior to the Closing Date or such Delivery Date, as the case may be,
or in any Quarterly Report on Form 10-Q or Current Report on Form 8-K filed by
America West with the SEC subsequent to such Form 10-K, no action, claim or
proceeding is now pending or, to the actual knowledge of America West,
threatened, against America West, before any court, governmental body,
arbitration board, tribunal or administrative agency, which is reasonably likely
to be determined adversely to America West and if determined adversely to
America West is reasonably likely to result in a Material Adverse Change.
(g) Financial Condition. The audited consolidated balance
sheet of America West with respect to America West's most recent fiscal year
included in America West's most recent Annual Report on Form 10-K, as amended,
filed by America West with the SEC, and the related consolidated statements of
operations and cash flows for the period then ended have been prepared in
conformity with GAAP and present fairly in all material respects the financial
condition of America West and its consolidated subsidiaries as of such date and
the results of its operations and cash flows for such period, and since the date
of such balance sheet, there has been no material adverse change in such
financial condition or operations of America West, except for matters disclosed
in (a) the financial statements referred to above or (b) any subsequent
Quarterly Report on Form 10-Q or Current Report on Form 8-K filed by America
West with the SEC on or prior to the Closing Date or such Delivery Date, as the
case may be.
(h) Registration and Recordation. Except for (a) the
registration of the Aircraft with the FAA pursuant to the Act in the name of
Owner Trustee in respect of a Leased Aircraft and America West in respect of a
Owned Aircraft, (b) the filing for recordation (and recordation) of the FAA
Filed Documents, (c) the filing of the Financing Statements (and continuation
statements relating thereto at periodic intervals), (d) the taking of possession
and retention by Mortgagee of the original counterparts of the related Lease
with respect to the Leased Aircraft (e) the affixation of the nameplates
referred to in Section 7.1.3 of the Lease in respect of a Leased Aircraft, and
Section 4.02(f) of the related Indenture, with respect to Owned Aircraft, at the
Delivery Date with respect to each Aircraft no further action, including any
filing or recording of any document (including any financing statement in
respect thereof under Article 9
-8-
<PAGE> 12
of the UCC) is necessary in order to establish and perfect (i) in respect of a
Leased Aircraft, the right, title or interest of Owner Trustee, and the
Mortgagee's first priority perfected security interest in such Aircraft and in
the related Lease (subject only to Permitted Liens as defined in the related
Indenture), and (ii) in respect of an Owned Aircraft, the Mortgagee's first
priority perfected security interest in such Aircraft (subject only to Permitted
Liens as defined in the related Indenture), as against America West and any
other Person, in each case, in any applicable jurisdictions in the United
States.
(i) Chief Executive Office. The chief executive office (as
such term is defined in Article 9 of the UCC) of America West is located at 4000
E. Sky Harbour Boulevard, Phoenix, Arizona 85034.
(j) No Default. On such Delivery Date, no event which in
respect of a Leased Aircraft delivered on such date, constitutes a Lease Default
or Lease Event of Default (as defined in the Lease for such Aircraft) and with
respect to an Owned Aircraft delivered on such date, no event which would
constitute an Event of Default (as defined in the Indenture for such Aircraft)
and no event or condition that with the giving of notice or the lapse of time or
both would become such a Lease Event of Default or Event of Default has occurred
and is continuing.
(k) No Event of Loss. With respect to such Delivery Date no
Event of Loss has occurred with respect to the Airframe or any Engine which is
Collateral under the Indenture executed as of such Delivery Date, and to the
actual knowledge of America West, no circumstance, condition, act or event has
occurred that, with the giving of notice or lapse of time or both gives rise to
or constitutes an Event of Loss with respect to such Airframe or any such
Engine.
(l) Compliance with Laws.
(a) America West is a Citizen of the United States
and a U.S. Air Carrier.
(b) America West holds all licenses, permits and
franchises from the appropriate Government Entities necessary
to authorize America West to lawfully engage in air
transportation and to carry on scheduled commercial passenger
service as currently conducted, except where the failure to so
hold any such license, permit or franchise would not give rise
to a Material Adverse Change to America West.
(c) America West is not an "investment company" or a
company controlled by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(m) Securities Laws. Neither America West nor any person
authorized to act on its behalf has directly or indirectly offered any
beneficial interest or Security relating to the ownership of the Aircraft or any
Lease or any interest in any Trust Property and Trust Agreement, or any of the
Equipment Notes or any other interest in or security under any Indenture, for
sale, to, or solicited any offer to acquire any such interest or security from,
or has sold any such interest or security to, any Person in violation of the
Securities Act.
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<PAGE> 13
(n) Section 1110. With respect to each Leased Aircraft
delivered on such Delivery Date, the Owner Trustee, as lessor under the related
Lease and the Mortgagee, as assignee under the related Indenture, and with
respect to each Owned Aircraft delivered on such Delivery Date, the related
Mortgagee, is entitled to the benefits of Section 1110 (as in effect on such
date) in the event of a case under Chapter 11 of the Bankruptcy Code in which
America West is a debtor.
(o) Accuracy of Information. Neither the Operative Agreements
to which it is a party as of such date nor other material information relating
to the Aircraft or the operations or financial condition of America West
furnished to the Policy Provider contain any statement of a material fact which
was untrue or misleading in any material respect when made. America West has no
knowledge of any circumstances that could reasonably be expected to cause a
Material Adverse Change with respect to America West.
SECTION 2.02 Covenants of America West. America West covenants
and agrees with the Policy Provider as follows:
(a) Without the prior written consent of the Policy Provider
(which may be granted or withheld in its sole discretion), each Participation
Agreement and the other Financing Agreements (as defined in the Note Purchase
Agreement) to be entered into pursuant to such Participation Agreement, will not
vary the Mandatory Economic Terms and will contain the Mandatory Document Terms
in the form attached to the Note Purchase Agreement without modification in any
adverse respect (without regard to the materiality thereof) as regards the
interests, rights and remedies of the Policy Provider, notwithstanding the
provisions in the Note Purchase Agreement permitting such modifications to be
made if the effect thereof is not materially adverse to certain parties.
(b) With respect to the Mandatory Document Terms referred to
in the Note Purchase Agreement that relate to certain maintenance standards but
which are not required to be included in the Leases related to Participation
Agreements to which General Electric Capital Corporation (or any Affiliate
thereof) is the owner participant, America West shall adhere to such standards
as if they were contained in such Leases.
(c) It shall not, and shall not suffer any of its Affiliates
to, purchase or otherwise acquire any of the Class G Certificates. The Policy
Provider hereby appoints and designates the Subordination Agent as collateral
agent for the Policy Provider hereunder and hereby authorizes and instructs the
Subordination Agent to perform such acts required of the collateral agent, on
its behalf as set forth herein. The Subordination Agent hereby accepts such
appointment and designation. America West hereby acknowledges the Policy
Provider's appointment of the Subordination Agent as collateral agent and the
powers granted thereto under this Insurance Agreement. America West pledges,
assigns and grants a continuing security interest in all of its right, title and
interest in and to the following property (collectively, the "Certificate
Collateral") to the Subordination Agent for the benefit of the Policy Provider:
(i) all Certificates in which America West or any of its
Affiliates has a legal or beneficial interest;
(ii) all payments of principal and interest and other amounts
payable on, and all rights with respect to, such Certificates;
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<PAGE> 14
(iii) all proceeds of any of the foregoing.
This Section 2.02(d) of this Insurance Agreement shall constitute a pledge
agreement and shall secure the payment in full of all obligations of America
West under this Insurance Agreement or under any of the Operative Agreements.
The security interest granted hereby shall be perfected by (A) delivery to the
Subordination Agent accompanied by duly executed instruments of transfer or
assignment in blank or, (B) if delivery is not possible, by a written
entitlement order, delivered by America West to the applicable securities
intermediaries on whose records ownership of such Certificates is reflected,
directing such securities intermediaries to (x) credit all such Certificates to
an account in the name of the Subordination Agent maintained with such
securities intermediaries, and (y) to deliver to the Subordination Agent a
written confirmation of each such credit simultaneously with each acquisition of
a legal or beneficial interest in Certificates by America West or any of its
Affiliates. With respect to any Certificates described in clause (A) above,
America West shall hold in trust for the benefit of the Subordination Agent,
segregated from the other property or funds of America West, any interest, Pool
Balance reduction, premium, redemption price or other payment thereon and shall
immediately deliver to the Subordination Agent all such amounts received. The
Subordination Agent shall promptly notify the Policy Provider of the amounts
received in respect of Certificates described in clause (B) above and amounts
delivered to the Subordination Agent pursuant to the preceding sentence. The
Policy Provider shall promptly notify the Subordination Agent of the amount, if
any, due to the Policy Provider in respect of this Insurance Agreement or the
Operative Agreements. If any amounts are so due, the Subordination Agent will
pay to the Policy Provider the amounts received up to the amounts due. If no
amounts are due, the Subordination Agent shall pay amounts received to America
West.
(d) Anything in the Note Purchase Agreement to the contrary
notwithstanding, without the consent of the Policy Provider, America West agrees
not to utilize lease economics or debt for the Aircraft to be financed under the
Note Purchase Agreement that exceed the maximum unpaid principal amount of Class
G Equipment Notes as of the last day of each semi-annual period expressed as a
percentage of Closing Date Aircraft Value set forth in the following schedule:
<TABLE>
<CAPTION>
SEMI-ANNUAL PERIOD SCHEDULE A SCHEDULE B
<S> <C> <C>
Closing Date 57.0% 57.0%
1 56.0% 57.0%
2 55.7% 57.0%
3 54.0% 55.3%
4 54.0% 55.3%
5 52.3% 53.6%
6 52.3% 53.6%
7 50.5% 51.9%
8 50.5% 51.9%
9 48.3% 50.2%
10 48.2% 50.2%
11 45.2% 48.5%
12 45.2% 48.5%
</TABLE>
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<PAGE> 15
<TABLE>
<S> <C> <C>
13 42.1% 46.5%
14 42.1% 46.5%
15 38.7% 44.0%
16 38.7% 44.0%
17 37.3% 42.0%
18 36.2% 42.0%
19 34.9% 40.0%
20 34.1% 40.0%
21 33.8% 38.0%
22 32.3% 38.0%
23 32.0% 35.0%
24 30.0% 35.0%
25 30.0% 33.0%
26 28.0% 33.0%
27 27.0% 30.0%
28 24.7% 30.0%
29 22.0% 27.0%
30 20.1% 27.0%
31 18.7% 23.0%
32 17.4% 23.0%
33 13.9% 19.0%
34 13.1% 19.0%
35 11.8% 18.0%
36 10.0% 13.7%
37 4.9% 7.0%
38 4.6% 7.6%
</TABLE>
Schedule A applies in the case of (i) each Leased Aircraft owned by an owner
participant other than General Electric Capital Corporation or its Affiliates in
excess of two such Aircraft, (ii) each Owned Aircraft and (iii) the aggregate of
all Aircraft, after not less than 8 Aircraft are funded under the Operative
Documents.
Schedule B applies to each Leased Aircraft owned by an owner participant other
than General Electric Capital Corporation or its Affiliates but in no event
shall Schedule B apply to more than two Aircraft.
SECTION 2.03 Covenants of WTC and Subordination Agent. WTC and
Subordination Agent shall perform and observe, in all material respects, all of
its covenants, obligations and agreements in any Operative Agreement to which it
is a party to be observed or performed by it.
SECTION 2.04 Representations, Warranties and Covenants of the
Policy Provider. The Policy Provider represents, warrants and covenants to
America West and the Subordination Agent as follows:
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<PAGE> 16
(a) Organization and Licensing. The Policy Provider is duly
organized, validly existing and in good standing as a Wisconsin-domiciled stock
insurance company duly qualified to conduct an insurance business in every
jurisdiction where qualification may be necessary to accomplish the
Transactions.
(b) Corporate Power. The Policy Provider has the corporate
power and authority to issue the Policy, to execute and deliver this Insurance
Agreement and the other Operative Agreements to which it is a party and to
perform all of its obligations hereunder and thereunder.
(c) Authorization; Approvals. Proceedings legally required for
the issuance and execution of the Policy and the execution, delivery and
performance of this Insurance Agreement have been taken and licenses, orders,
consents or other authorizations or approvals of any governmental boards or
bodies legally required for the enforceability of the Policy have been obtained;
any proceedings not taken and any licenses, authorizations or approvals not
obtained are not material to the enforceability of the Policy.
(d) Enforceability. This Insurance Agreement constitutes, and
the Policy, when issued, will constitute, a legal, valid and binding obligation
of the Policy Provider, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium, receivership and other
similar laws affecting creditors' rights generally and to general principles of
equity and subject to principles of public policy limiting the right to enforce
the indemnification provisions contained herein, insofar as such provisions
relate to indemnification for liabilities arising under federal securities laws.
(e) Financial Information. The balance sheet of the Policy
Provider as of December 31, 1998 and the related statements of income,
stockholder's equity and cash flows for the three fiscal years ended December
31, 1998, and the accompanying footnotes, together with an opinion thereon dated
January 27, 1999 of KPMG LLP, independent certified public accountants, a copy
of which is incorporated by reference into the Offering Document, fairly present
in all material respects the financial condition of the Policy Provider as of
such dates and for the periods covered by such statements in accordance with
generally accepted accounting principles consistently applied. The balance sheet
of the Policy Provider as of March 31, 1999 and the related statements of
operations, stockholder's equity and cash flows for the three-month period ended
March 31, 1999 and the accompanying footnotes, a copy of which is incorporated
by reference into the Offering Document, present fairly in all material respects
the financial condition of the Policy Provider as of such date and for such
three-month period in accordance with generally accepted accounting principles
consistently applied. Since March 31, 1999, there has been no material change in
such financial condition of the Policy Provider that would materially and
adversely affect its ability to perform its obligations under the Policy.
(f) Policy Provider Information. The Policy Provider
Information is true and correct in all material respects and does not contain
any untrue statement of a material fact.
(g) No Litigation. There are no actions, suits, proceedings or
investigations pending or, to the best of the Policy Provider's knowledge,
threatened against it at law or in equity or before or by any court,
governmental agency, board or commission or any arbitrator
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<PAGE> 17
which, if decided adversely, would materially and adversely affect its ability
to perform its obligations under the Policy or this Insurance Agreement.
(h) Compliance with Law, Etc. No practice, procedure or policy
employed, or proposed to be employed, by the Policy Provider in the conduct of
its business violates any law, regulation, judgment, agreement, order or decree
applicable to the Policy Provider that, if enforced, could result in a Material
Adverse Change with respect to the Policy Provider.
ARTICLE III
THE POLICY; REIMBURSEMENT; INDEMNIFICATION
SECTION 3.01 Issuance of the Policy. The Policy Provider
agrees to issue the Policy on the Closing Date subject to satisfaction of the
conditions precedent set forth below on or prior to the Closing Date:
(a) Operative Agreements. The Policy Provider shall have
received a copy of (i) each of the Operative Agreements to be executed and
delivered on or prior to the Closing Date, in form and substance reasonably
satisfactory to the Policy Provider, duly authorized, executed and delivered by
each party thereto and (ii) a copy of the Offering Memorandum;
(b) Certified Documents and Resolutions. The Policy Provider
shall have received (i) a copy of the applicable organizational documents of
America West and (ii) a certificate of the Secretary or Assistant Secretary of
America West dated the Closing Date stating that attached thereto is a true,
complete and correct copy of resolutions duly adopted by the Board of Directors
of America West authorizing the execution, delivery and performance by America
West of the Operative Agreements to which it is a party and the consummation of
the Transactions and that such applicable organizational documents and
resolutions are in full force and effect without amendment or modification on
the Closing Date;
(c) Incumbency Certificate. The Policy Provider shall have
received a certificate of the Secretary or an Assistant Secretary of each of
America West and the Subordination Agent certifying the names and signatures of
the officers of America West and the Subordination Agent authorized to execute
and deliver the Operative Agreements to which it is a party on or prior to
Closing Date and that, with respect to America West, shareholder consent to the
execution and delivery of such documents by America West, is not necessary or
has been obtained;
(d) Representations and Warranties. The representations and
warranties of America West and the Subordination Agent dated the Closing Date
set forth or incorporated by reference in this Insurance Agreement shall be true
and correct on and as of the Closing Date;
(e) Documentation. The Policy Provider shall have received a
copy of each document, instrument, certificate and opinion delivered on or
before the Closing Date pursuant to the Operative Agreement, including each
opinion of counsel addressed to any of Moody's, S&P, the Trustee, America West,
the Subordination Agent and the Initial Purchasers (except for the opinion of
counsel to the Initial Purchasers addressed to only to the Initial Purchasers),
in respect of America West and the Subordination Agent or any of the other
parties to the Operative
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<PAGE> 18
Agreements and the Transactions dated the Closing Date in form and substance
reasonably satisfactory to the Policy Provider, addressed to the Policy Provider
(or accompanied by a letter from the counsel rendering such opinion to the
effect that the Policy Provider is entitled to rely on such opinion as of its
date as if it were addressed to the Policy Provider) and addressing such matters
as the Policy Provider may reasonably request, and the counsel providing each
such opinion shall have been instructed by its client to deliver such opinion to
the addressees thereof;
(f) Approvals, Etc. The Policy Provider shall have received
true and correct copies of all approvals, licenses and consents, if any,
including any required approval of the shareholders of America West, required in
connection with the Transactions;
(g) No Litigation, Etc. No suit, action or other proceeding,
investigation or injunction, or final judgment relating thereto, shall be
pending or threatened before any court, governmental or administrative agency or
arbitrator in which it is sought to restrain or prohibit or to obtain damages or
other relief in connection with any of the Operative Agreements or the
consummation of the Transactions;
(h) Legality. No statute, rule, regulation or order shall have
been enacted, entered or deemed applicable by any government or governmental or
administrative agency or court that would make the Transactions illegal or
otherwise prevent the consummation thereof;
(i) Issuance of Ratings. The Policy Provider shall have
received confirmation that the risk secured by the Policy is rated no lower than
"A-" by S&P and "Baa2" by Moody's, the Class G Certificates, when issued, will
be rated "AAA" by S&P and "Aaa" by Moody's and that the Class C Certificates,
when issued, will be rated "BBB" by S&P and "Baa3" by Moody's, and shall have
received the confirmation from S&P of a capital charge acceptable to the Policy
Provider;
(j) Satisfactory Documentation. The Policy Provider and its
counsel shall have reasonably determined that all documents, certificates and
opinions to be delivered in connection with the Certificates conform to the
terms of the related Trust Agreement, the Offering Document, this Insurance
Agreement and the Intercreditor Agreement.
(k) Filings. The Policy Provider shall have received evidence
that there shall have been made and shall be in full force and effect, all
filings, recordings and registrations, and there shall have been given or taken
any notice or similar action as is necessary in order to establish, perfect,
protect and preserve the right, title and interest of the Policy Provider
created by the Operative Agreements executed and delivered on or prior to the
Closing Date;
(l) Conditions Precedent. All conditions precedent to the
issuance of the Certificates under the Trust Agreements shall have been
satisfied or waived (with the consent of the Policy Provider). All conditions
precedent to the effectiveness of the Liquidity Facilities shall have been
satisfied or waived and all conditions precedent to the purchases of the
Certificates by the Initial Purchasers under the Purchase Agreement shall have
been satisfied or waived by the Initial Purchasers; and
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<PAGE> 19
(m) Expenses. The Policy Provider shall have received payment
in full of all amounts required to be paid to or for account of the Policy
Provider on or prior to the Closing Date.
SECTION 3.02 Payment of Fees and Premium.
(a) Legal Fees. On the Closing Date, America West shall pay or
cause to be paid to, or as directed by, the Policy Provider, legal fees,
disbursements and charges incurred by the Policy Provider in connection with the
issuance of the Policy and this Agreement in accordance with the Policy Fee
Letter. Any additional fees of the Policy Provider's counsel or auditors payable
in respect of any amendment or supplement to the Offering Document or the
preparation of the Exchange Offering Registration Statement requested by America
West and incurred after the Closing Date shall be paid by America West promptly
following receipt of documentation thereof.
(b) Rating Agency Fees. America West shall promptly pay the
initial fees of S&P and Moody's with respect to the Certificates and the
Transactions following receipt of a statement with respect thereto. All periodic
and subsequent fees of S&P or Moody's with respect to, and directly allocable
to, the Certificates shall be for the account of, and shall be billed to,
America West. The fees for any other rating agency shall be paid by the party
requesting such other agency's rating unless such other agency is a substitute
for S&P or Moody's in the event that S&P or Moody's is no longer rating the
Certificates, in which case the fees for such agency shall be paid by America
West.
(c) Appraisal Fees. America West shall pay to, or as directed
by the Policy Provider on the Closing Date the cost of appraisals of the
Aircraft performed by Morten Beyer and Agnew, Inc. for the Policy Provider, not
to exceed $3,500.
(d) Premium.
(i) In consideration of the issuance by the Policy Provider of
the Policy, America West shall pay or cause to be paid to the Policy
Provider, the Premium, provided, however, such requirement shall not be
duplicative of any payments in respect of Premiums made in accordance
with Section 6(b) of the Note Purchase Agreement and the provisions of
each Lease and each Owned Aircraft Indenture. America West shall also
pay such additional amounts, as and when due, in accordance with the
Policy Fee Letter.
(ii) No portion of the Premium paid shall be refundable
without regard to whether the Policy Provider makes any payment under
the Policy or any other circumstances relating to the Class G
Certificates or provision being made for payment of the Class G
Certificates prior to maturity.
SECTION 3.03 Reimbursement Obligation.
(a) As and when due in accordance with and from the funds
specified in Sections 2.4(b), 3.2 and 3.3 of the Intercreditor Agreement, the
Policy Provider shall be entitled to reimbursement for any payment made by the
Policy Provider under the Policy or to the Liquidity
-16-
<PAGE> 20
Provider under Section 2.6(c) of the Intercreditor Agreement, which
reimbursement shall be due and payable on the date provided in such Sections, in
an amount equal to the amount to be so paid and all amounts previously paid that
remain unreimbursed. In addition, to the extent that any such payment by the
Policy Provider shall have been made as a result of a default by a Liquidity
Provider in its obligation to make an Advance, as provided in the Intercreditor
Agreement, the Policy Provider shall be entitled to the payment of interest on
such amounts to the extent, at the time and in the priority that the Liquidity
Provider would have been paid pursuant to the Intercreditor Agreement had the
Liquidity Provider made such Advance.
(b) After the distribution to the Policy Provider of all
amounts distributable to it under the Intercreditor Agreement, America West
agrees to reimburse the Policy Provider immediately, upon demand, to the extent
of any payment made under the Policy or to the Liquidity Provider under Section
2.6(c) of the Intercreditor Agreement, less any amount in respect of such
payment paid to and received by the Policy Provider pursuant to the Operative
Agreements.
(c) America West agrees to pay to the Policy Provider any and
all charges, fees, costs and expenses that the Policy Provider may reasonably
pay or incur, including reasonable attorneys' and accountants' fees and expenses
(without duplication of amounts paid to the Policy Provider in respect of the
Operative Agreements), in connection with (i) the enforcement, defense or
preservation of any rights in respect of any of this Insurance Agreement,
including defending, monitoring or participating in any litigation or proceeding
and (ii) any amendment, waiver or other action requested by America West with
respect to, or related to, any Operative Agreements or to any form document
attached to any Operative Agreement as exhibit, schedule or annex thereto,
whether or not executed or completed. Provided that three Business Days written
notice of the intended payment or incurrence shall have been given to America
West by the Policy Provider, such reimbursement shall be due on the dates on
which such charges, fees, costs or expenses are paid or incurred by the Policy
Provider.
SECTION 3.04 Indemnification. America West agrees (i) that the
Policy Provider is hereby entitled to the full benefit of the General Indemnity
contained in, and the General Tax Indemnity contained in Annex A to, the forms
of Participation Agreement attached to the Note Purchase Agreement as if such
provisions were set forth in full herein, the Policy Provider were an Indemnitee
thereunder and the Operative Agreements referred to therein include this
Insurance Agreement and the Note Purchase Agreement and (ii) that it shall name
the Policy Provider as an Indemnitee in each Participation Agreement and that
the Policy Provider shall be entitled to the full benefit of the General
Indemnity and the General Tax Indemnity provisions set forth in or incorporated
by reference in each Participation Agreement; provided, however, any exclusion
contained in any Participation Agreement or form thereof related to any
representation or warranty by any Indemnitee other than the Policy Provider, the
failure by any Indemnitee other than the Policy Provider to perform or observe
any agreement, covenant or condition in any of the Operative Documents, the acts
or omissions involving the willful misconduct or gross negligence of any
Indemnitee other than the Policy Provider or any other action or omission of any
other Person other than the Policy Provider shall not apply to the
indemnification obligations of America West to the Policy Provider.
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<PAGE> 21
SECTION 3.05 Procedure for Payment of Fees and Premiums. All
payments to be made to the Policy Provider under this Insurance Agreement shall
be made to the Policy Provider in lawful currency of the United States of
America in immediately available funds at the notice address for the Policy
Provider as specified in the Intercreditor Agreement on the date when due or as
the Policy Provider shall otherwise direct by written notice to the other
parties hereto. In the event that the date of any payment to the Policy Provider
or the expiration of any time period hereunder occurs on a day that is not a
Business Day, then such payment or expiration of time period shall be made or
occur on the next succeeding Business Day with the same force and effect as if
such payment was made or time period expired on the scheduled date of payment or
expiration date.
ARTICLE IV
FURTHER AGREEMENTS
SECTION 4.01 Effective Date; Term of the Insurance Agreement.
This Insurance Agreement shall take effect on the Closing Date and shall remain
in effect until the later of (a) such time as the Policy Provider is no longer
subject to a claim under the Policy and the Policy shall have been surrendered
to the Policy Provider for cancellation and (b) all amounts payable to the
Policy Provider by America West or the Subordination Agent hereunder or from any
other source hereunder or under the Operative Agreements and all amounts payable
under the Class G Certificates have been paid in full; provided, however, that
the provisions of Section 3.04 hereof shall survive any termination of this
Insurance Agreement.
SECTION 4.02 Further Assurances and Corrective Instruments.
(a) Neither America West nor the Subordination Agent shall
grant any waiver of rights or agree to any amendment or modification to any of
the Operative Agreements to which either of them is a party which waiver,
amendment, or modification would have an adverse effect on the rights or
remedies of the Policy Provider without the prior written consent of the Policy
Provider so long as the Policy Provider shall be the Controlling Party, and any
such waiver without prior written consent of the Policy Provider shall be null
and void and of no force or effect.
(b) To the extent permitted by law, each of America West and
the Subordination Agent agrees that it will, from time to time, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
such supplements hereto and such further instruments as the Policy Provider may
reasonably request and as may be required in the Policy Provider's reasonable
judgment to effectuate the intention of or facilitate the performance of this
Insurance Agreement.
SECTION 4.03 Obligations Absolute.
(a) So long as no Policy Provider Default shall have occurred
and be continuing beyond any grace period applicable thereto, the obligations of
America West hereunder shall be absolute and unconditional and shall be paid or
performed strictly in accordance with this Insurance Agreement under all
circumstances irrespective of:
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<PAGE> 22
(i) any lack of validity or enforceability of, or any
amendment or other modifications of, or waiver, with respect to any of
the Operative Agreements or the Certificates;
(ii) any exchange or release of any other obligations
hereunder;
(iii) the existence of any claim, setoff, defense, reduction,
abatement or other right that America West may have at any time against
the Policy Provider or any other Person;
(iv) any document presented in connection with the Policy
proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(v) any payment by the Policy Provider under the Policy
against presentation of a certificate or other document that does not
strictly comply with terms of the Policy;
(vi) any failure of America West to receive the proceeds from
the sale of the Certificates; and
(vii) any other circumstances, other than payment in full,
that might otherwise constitute a defense available to, or discharge
of, America West in respect of any Operative Agreements.
(b) So long as no Policy Provider Default shall have occurred
and be continuing beyond any period of cure applicable thereto and except as
expressly provided herein or in any Operative Agreement, America West renounces
the right to assert as a defense to the performance of their respective
obligations each of the following: (i) to the extent permitted by law, any and
all redemption and exemption rights and the benefit of all valuation and
appraisement privileges against the indebtedness and obligations evidenced by
any Operative Agreements or by any extension or renewal thereof; (ii)
presentment and demand for payment, notices of nonpayment and of dishonor,
protest of dishonor and notice of protest; (iii) all notices in connection with
the delivery and acceptance hereof and all other notices in connection with the
performance, default or enforcement of any payment hereunder, except as required
by the Operative Agreements; and (iv) all rights of abatement, diminution,
postponement or deduction, or to any defense other than payment, or to any right
of setoff or recoupment arising out of any breach under any of the Operative
Agreements, by any party thereto or any beneficiary thereof, or out of any
obligation at any time owing to America West.
(c) America West (i) agrees that any consent, waiver or
forbearance hereunder with respect to an event shall operate only for such event
and not for any subsequent event; (ii) consents to any and all extensions of
time that may be granted by the Policy Provider with respect to any payment
hereunder or other provisions hereof and to the release of any security at any
time given for any payment hereunder, or any part thereof, with or without
substitution, and to the release of any Person or entity liable for any such
payment; and (iii) consents to the addition of any and all other makers,
endorsers, guarantors and other obligors for any payment hereunder, and to the
acceptance of any and all other security for any payment hereunder, and
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<PAGE> 23
agree that the addition of any such obligors or security shall not affect the
liability of America West for any payment hereunder.
(d) No failure by the Policy Provider to exercise, and no
delay by the Policy Provider in exercising, any right hereunder shall operate as
a waiver thereof. The exercise by the Policy Provider of any right hereunder
shall not preclude the exercise of any other right, and the remedies provided
herein to the Policy Provider are declared in every case to be cumulative and
not exclusive of any remedies provided by law or equity.
(e) Nothing herein shall be construed as prohibiting America
West from pursuing any rights or remedies it may have against any Person in a
separate legal proceeding.
SECTION 4.04 Assignments; Reinsurance; Third-Party Rights.
(a) This Insurance Agreement shall be a continuing obligation
of the parties hereto and shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. The
Subordination Agent, and except for any transaction expressly permitted by
Section 5.02 of the Class G Trust Agreement, America West, may not assign their
respective rights under this Insurance Agreement, or delegate any of their
duties hereunder, without the prior written consent of the other parties hereto.
Any assignments made in violation of this Insurance Agreement shall be null and
void.
(b) The Policy Provider shall have the right to grant
participations in its rights under this Insurance Agreement and to enter into
contracts of reinsurance with respect to the Policy upon such terms and
conditions as the Policy Provider may in its discretion determine; provided,
however, that no such participation or reinsurance agreement or arrangement
shall relieve the Policy Provider of any of its obligations hereunder or under
the Policy or grant to any participant or reinsurer any rights hereunder or
under any Operative Agreement.
(c) Except as provided herein with respect to participants and
reinsurers, nothing in this Insurance Agreement shall confer any right, remedy
or claim, express or implied, upon any Person, including, particularly, any
Holder, other than the Policy Provider against America West, or America West
against the Policy Provider, and all the terms, covenants, conditions, promises
and agreements contained herein shall be for the sole and exclusive benefit of
the parties hereto and their successors and permitted assigns. Neither the
Trustee nor any Holder shall have any right to payment from the Premium paid or
payable hereunder or from any amounts paid by America West pursuant to Sections
3.02 or 3.03.
SECTION 4.05 Liability of the Policy Provider. Neither the
Policy Provider nor any of its officers, directors or employees shall be liable
or responsible for: (a) the use that may be made of the Policy by the Trustee or
for any acts or omissions of the Trustee in connection therewith; or (b) the
validity, sufficiency, accuracy or genuineness of documents delivered to the
Policy Provider in connection with any claim under the Policy, or of any
signatures thereon, even if such documents or signatures should in fact prove to
be in any or all respects invalid, insufficient, fraudulent or forged (unless
the Policy Provider shall have actual knowledge thereof). In furtherance and not
in limitation of the foregoing, the Policy Provider may accept
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<PAGE> 24
documents that appear on their face to be in order, without responsibility for
further investigation.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 Amendments, Etc. This Insurance Agreement may be
amended, modified, supplemented or terminated only by written instrument or
written instruments signed by the parties hereto; provided that if such
amendment, modification, supplement or termination would have a material adverse
affect on the interests of the Subordination Agent, a Pass Through Trustee or
any Certificateholder, Ratings Confirmation shall also be obtained prior to such
amendment, modification, supplement or termination being effective. America West
agrees to provide a copy of any amendment to this Insurance Agreement promptly
to the Subordination Agent and the rating agencies maintaining a rating on the
Class G Certificates. No act or course of dealing shall be deemed to constitute
an amendment, modification, supplement or termination hereof.
SECTION 5.02 Notices. All demands, notices and other
communications to be given hereunder shall be in writing (except as otherwise
specifically provided herein) and shall be mailed by registered mail or
personally delivered and telecopied to the recipient as follows:
(a) To the Policy Provider:
Ambac Assurance Corporation
One State Street Plaza
New York, New York 10004
Attention: Surveillance Department
Facsimile: (212) 363-1459
Confirmation: (212) 668-0340
(in each case in which notice or other communication to the Policy
Provider refers to an event of default under any
Operative Agreement, a claim on the Policy or with
respect to which failure on the part of the Policy
Provider to respond shall be deemed to constitute
consent or acceptance, then a copy of such notice or
other communication should also be sent to the
attention of the general counsel of each of America
West and the Trustee and, in all cases, both any
original and all copies shall be marked to indicate
"URGENT MATERIAL ENCLOSED.")
(b) To America West:
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<PAGE> 25
America West Airlines, Inc.
4000 E. Sky Harbour Blvd.
Phoenix, AZ 85034
Attention: Vice President and Treasurer
Facsimile: (602) 693-5886
Confirmation:
(c) To the Subordination Agent:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Attention: Corporate Trust Department
Facsimile: 302-651-8882.
A party may specify an additional or different address or addresses by
writing mailed or delivered to the other parties as aforesaid. All such notices
and other communications shall be effective upon receipt unless received after
business hours on any day, in which case on the opening of business on the next
Business Day.
SECTION 5.03 Severability. In the event that any provision of
this Insurance Agreement shall be held invalid or unenforceable by any court of
competent jurisdiction, the parties hereto agree that such holding shall not
invalidate or render unenforceable any other provision hereof. The parties
hereto further agree that the holding by any court of competent jurisdiction
that any remedy pursued by any party hereto is unavailable or unenforceable
shall not affect in any way the ability of such party to pursue any other remedy
available to it.
SECTION 5.04 Governing Law. This Insurance Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
including all matters of construction, validity and performance. This Agreement
is being delivered in New York.
SECTION 5.05 Consent to Jurisdiction.
(a) The parties hereto hereby irrevocably submit to the
non-exclusive jurisdiction of the United States District Court for the Southern
District of New York and any court in the State of New York located in the City
and County of New York, and any appellate court from any thereof, in any action,
suit or proceeding brought against it and to or in connection with any of the
Operative Agreements or the Transactions or for recognition or enforcement of
any judgment, and the parties hereto hereby irrevocably and unconditionally
agree that all claims in respect of any such action or proceeding may be heard
or determined in such New York state court or, to the extent permitted by law,
in such federal court. The parties hereto agree that a final unappealable
judgment in any such action, suit 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. To the extent permitted by applicable law, the parties hereto
hereby waive and agree not to assert by way of motion, as a defense or otherwise
in any such suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of such courts, that the suit, action or
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<PAGE> 26
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper or that the related documents or the subject
matter thereof may not be litigated in or by such courts.
(b) To the extent permitted by applicable law, the parties
hereto shall not seek and hereby waive the right to any review of the judgment
of any such court by any court of any other nation or jurisdiction which may be
called upon to grant an enforcement of such judgment.
(c) Service on America West may be made by mailing or
delivering copies of the summons and complaint and other process which may be
served in any suit, action or proceeding to the America West addressed as
follows: c/o Vedder, Price, Kaufman, Kammholz & Day, 805 Third Avenue, New York,
NY 10022, attention: Ron Scheinberg. Such address may be changed by the
applicable party or parties by written notice to the other parties hereto. The
provision of notice to change the address set forth in Section 6.02 shall
constitute notice for purposes of the preceding sentence, unless such notice
shall expressly state to the contrary.
(d) Nothing contained in this Insurance Agreement shall limit
or affect any party's right to serve process in any other manner permitted by
law or to start legal proceedings relating to any of the Operative Agreements
against any other party or its properties in the courts of any jurisdiction.
SECTION 5.06 Consent of the Policy Provider. No disclosure
relating to the Policy or the Policy Provider contained in the Exchange Offer
Registration Statement, which disclosure modifies, alters, changes, amends or
supplements the disclosure relating to the Policy or the Policy Provider
contained in the Offering Memorandum, shall be made without the Policy
Provider's prior written consent. In the event that the consent of the Policy
Provider is required under any of the Operative Agreements, the determination
whether to grant or withhold such consent shall be made by the Policy Provider
in its sole discretion without any implied duty towards any other Person, except
as otherwise expressly provided therein.
SECTION 5.07 Counterparts. This Insurance Agreement may be
executed in counterparts by the parties hereto, and all such counterparts shall
constitute one and the same instrument.
SECTION 5.08 Headings. The headings of Articles and Sections
and the Table of Contents contained in this Insurance Agreement are provided for
convenience only. They form no part of this Insurance Agreement and shall not
affect its construction or interpretation.
SECTION 5.09 Trial by Jury Waived. Each party hereby waives,
to the fullest extent permitted by law, any right to a trial by jury in respect
of any litigation arising directly or indirectly out of, under or in connection
with this Insurance Agreement or any of the other Operative Agreements or any of
the Transactions contemplated hereunder or thereunder. Each party hereto (A)
certifies that no representative, agent or attorney of any party hereto has
represented, expressly or otherwise, that it would not, in the event of
litigation, seek to enforce the foregoing waiver and (B) acknowledges that it
has been induced to enter into the Operative Agreements to which it is a party
by, among other things, this waiver.
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<PAGE> 27
SECTION 5.10 Limited Liability. No recourse under any
Operative Agreement shall be had against, and no personal liability shall attach
to, any officer, employee, director, affiliate or shareholder of any party
hereto, as such, by the enforcement of any assessment or by any legal or
equitable proceeding, by virtue of any statute or otherwise in respect of any of
the Operative Agreements, the Certificates or the Policy, it being expressly
agreed and understood that each Operative Agreement is solely a corporate
obligation of each party hereto, and that any and all personal liability, either
at common law or in equity, or by statute or constitution, of every such
officer, employee, director, affiliate or shareholder for breaches of any party
hereto of any obligations under any Operative Agreement is hereby expressly
waived as a condition of and in consideration for the execution and delivery of
this Insurance Agreement.
SECTION 5.11 Entire Agreement. This Insurance Agreement, the
Policy, the Policy Fee letter and the other Operative Agreements set forth the
entire agreement between the parties with respect to the subject matter hereof
and thereof, and supersede and replace any agreement or understanding that may
have existed between the parties prior to the date hereof in respect of such
subject matter.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE> 28
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, all as of
the day and year first above mentioned.
AMBAC ASSURANCE CORPORATION,
as Policy Provider
By: /s/ David B. Nemschoff
----------------------------------------
Name: David B. Nemschoff
Title: First Vice President
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Subordination Agent
By: /s/ James P. Lawler
----------------------------------------
Name: James P. Lawler
Title: Vice President
AMERICA WEST AIRLINES, INC.
By: /s/ W. Douglas Parker
----------------------------------------
Name: W. Douglas Parker
Title: Executive Vice President
<PAGE> 1
Exhibit 4.16
NOTE PURCHASE AGREEMENT
Dated as of September 21, 1999
Among
AMERICA WEST AIRLINES, INC.,
WILMINGTON TRUST COMPANY,
as Pass Through Trustee under each of the
Pass Through Trust Agreements
WILMINGTON TRUST COMPANY,
as Subordination Agent
WILMINGTON TRUST COMPANY,
as Escrow Agent
and
WILMINGTON TRUST COMPANY,
as Paying Agent
<PAGE> 2
INDEX TO NOTE PURCHASE AGREEMENT
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1. Financing of Aircraft.................................................................................2
SECTION 2. Conditions Precedent..................................................................................8
SECTION 3. Representations and Warranties........................................................................8
SECTION 4. Covenants ...........................................................................................12
SECTION 5. Notices .............................................................................................14
SECTION 6. Expenses ............................................................................................15
SECTION 7. Further Assurances...................................................................................16
SECTION 8. Miscellaneous........................................................................................16
SECTION 9. Governing Law........................................................................................17
</TABLE>
<TABLE>
<CAPTION>
Schedules
<S> <C>
Schedule I Aircraft and Scheduled Delivery Months
Schedule II Pass Through Trust Agreements
Schedule III Deposit Agreements
Schedule IV Escrow and Paying Agent Agreements
Schedule V Mandatory Document Terms
Schedule VI Mandatory Economic Terms
Schedule VII Aggregate Amortization Schedule
Annex
Annex A Definitions
Exhibits
Exhibit A-1 Form of Leased Aircraft Participation Agreement
Exhibit A-2 Form of Lease
Exhibit A-3 Form of Leased Aircraft Indenture
Exhibit A-4 Form of Aircraft Purchase Agreement Assignment
Exhibit A-5 Form of Leased Aircraft Trust Agreement
Exhibit B Form of Delivery Notice
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C>
Exhibit C-1 Form of Owned Aircraft Participation Agreement
Exhibit C-2 Form of Owned Aircraft Indenture
Exhibit D Additional Subordination Provision for Series D Equipment Notes
</TABLE>
-ii-
<PAGE> 4
NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT, dated as of September 21, 1999,
among (i) AMERICA WEST AIRLINES, INC., a Delaware corporation (the "Company"),
(ii) WILMINGTON TRUST COMPANY ("WTC"), a Delaware banking corporation, not in
its individual capacity except as otherwise expressly provided herein, but
solely as trustee (in such capacity together with its successors in such
capacity, the "Pass Through Trustee") under each of the three separate Pass
Through Trust Agreements (as defined below), (iii) WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as subordination agent and trustee (in such
capacity together with its successors in such capacity, the "Subordination
Agent") under the Intercreditor Agreement (as defined below), (iv) WILMINGTON
TRUST COMPANY, a Delaware banking corporation, as Escrow Agent (in such capacity
together with its successors in such capacity, the "Escrow Agent"), under each
of the Escrow and Paying Agent Agreements (as defined below) and (v) WILMINGTON
TRUST COMPANY, a Delaware banking corporation, as Paying Agent (in such capacity
together with its successors in such capacity, the "Paying Agent") under each of
the Escrow and Paying Agent Agreements.
W I T N E S S E T H:
WHEREAS, capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in Annex A hereto;
WHEREAS, the Company has obtained commitments from the
Manufacturer pursuant to the Aircraft Purchase Agreement for the delivery of the
ten aircraft listed on Schedule I hereto (together with any aircraft substituted
therefor in accordance with the Aircraft Purchase Agreement prior to the
delivery thereof, the "Aircraft");
WHEREAS, pursuant to each of the Pass Through Trust Agreements
set forth in Schedule II hereto, and concurrently with the execution and
delivery of this Agreement, separate grantor trusts (collectively, the "Pass
Through Trusts" and, individually, a "Pass Through Trust") have been created to
facilitate certain of the transactions contemplated hereby, including, without
limitation, the issuance and sale of pass through certificates pursuant thereto
(collectively, the "Certificates") to provide for a portion of the financing of
the Aircraft;
WHEREAS, the Company has entered into the Purchase Agreement
dated as of September 14, 1999 (the "Purchase Agreement") with the several
initial purchasers (the "Initial Purchasers") named therein, which provides that
the Company will cause each Pass Through Trustee to issue and sell the
Certificates to the Initial Purchasers;
WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) the Escrow Agents and the Depositary entered into the Deposit
Agreements set forth in Schedule III hereto (the "Initial Deposit Agreements")
whereby the applicable Escrow Agent agreed to direct the Initial Purchasers to
make certain deposits referred to therein on the Issuance Date (the "Initial
Deposits") and to permit the applicable Pass Through Trustee to make additional
deposits from time to time thereafter (the Initial Deposits together with such
additional deposits are collectively referred to as the "Deposits") and (ii) the
Pass Through Trustees, the Initial Purchasers, the Paying Agents and the Escrow
Agents entered into the Escrow and Paying Agent
<PAGE> 5
2
Agreements set forth in Schedule IV hereto (the "Escrow and Paying Agent
Agreements") whereby, among other things, (a) the Initial Purchasers agreed to
deliver an amount equal to the amount of the Initial Deposits to the Depositary
on behalf of the applicable Escrow Agent and (b) the applicable Escrow Agent,
upon the Depositary receiving such amount, has agreed to deliver escrow receipts
to be affixed to each Certificate;
WHEREAS, prior to (or, in the case of the utilization of
bridge financing, after) the delivery of each Aircraft from the Manufacturer,
the Company will determine whether to enter into a leveraged lease transaction
as lessee with respect to such Aircraft (a "Leased Aircraft") or to purchase as
owner such Aircraft (an "Owned Aircraft") and will give to the Pass Through
Trustee a Delivery Notice (as defined below) specifying its election;
WHEREAS, upon receipt of a Delivery Notice with respect to an
Aircraft, subject to the terms and conditions of this Agreement, the applicable
Pass Through Trustees will enter into the applicable Financing Agreements
relating to such Aircraft;
WHEREAS, upon the delivery of each Aircraft, each Pass Through
Trustee will fund its purchase of Equipment Notes with the proceeds of one or
more Deposits withdrawn by the applicable Escrow Agent under the related Deposit
Agreement bearing the same interest rate as the Certificates issued by such Pass
Through Trust;
WHEREAS, concurrently with the execution and delivery of this
Agreement, (i) Morgan Stanley Capital Services, Inc., a Delaware corporation
(the "Liquidity Provider"), has entered into two revolving credit agreements
(each, a "Liquidity Facility"), one each for the benefit of the
Certificateholders of each Pass Through Trust, 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, the Liquidity Provider, the Policy Provider (as
defined below) and the Subordination Agent have entered into the Intercreditor
Agreement, dated as of the date hereof (the "Intercreditor Agreement"); and
WHEREAS, concurrently with the execution and delivery of this
Agreement Ambac Assurance Corporation (the "Policy Provider") has entered into
the Insurance and Indemnity Agreement (the "Policy Provider Agreement"), with
the Company and the Subordination Agent, as agent and trustee for the Pass
Through Trustee of the Class G Trust on behalf of the Class G Trust, and the
Policy Provider has issued the certificate guaranty insurance policy (the
"Policy") provided for therein for the benefit of the Class G
Certificateholders.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual agreements herein contained and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. Financing of Aircraft. (a) The Company confirms
that it has entered into the Aircraft Purchase Agreement with the Manufacturer
pursuant to which the Company has agreed to purchase, and the Manufacturer has
agreed to deliver, the Aircraft in the months specified in Schedule I hereto,
all on and subject to terms and conditions specified in the Aircraft Purchase
Agreement. The Company agrees to finance the Aircraft in the manner
<PAGE> 6
3
provided herein, all on and subject to the terms and conditions hereof and of
the relevant Financing Agreements.
(b) In furtherance of the foregoing, the Company agrees to
give the parties hereto, the Depositary, the Policy Provider and each of the
Rating Agencies not less than two Business Days' prior written notice in the
form of the notice set out in Exhibit B hereto (a "Delivery Notice") of the
scheduled delivery date (the "Scheduled Delivery Date") (or, in the case of a
substitute Delivery Notice under Section 1(e) or (f) hereof, one Business Day's
prior notice) in respect of each Aircraft under the Aircraft Purchase Agreement,
or in the case of the utilization of bridge financing as contemplated by Section
1(e) hereof in respect of any Aircraft, one Business Day's prior notice of the
date of the financing of such Aircraft pursuant to the relevant Financing
Agreements, which notice shall:
(i) specify whether the Company has elected to treat such
Aircraft as a Leased Aircraft or an Owned Aircraft;
(ii) specify the Scheduled Delivery Date of such Aircraft
(which shall be a Business Day before the Cut-off Date and, except as
provided in Section 1(f) hereof, the date (the "Funding Date") on which
the financing therefor in the manner provided herein shall be
consummated);
(iii) instruct the Pass Through Trustee to execute and deliver
to the relevant Escrow Agent a withdrawal certificate in the form of
Exhibit B to the Escrow Agent so as to provide a Notice of Purchase
Withdrawal to the Depositary with respect to the Equipment Notes to be
issued in connection with the financing of such Aircraft;
(iv) instruct the Pass Through Trustee to enter into the
Participation Agreement included in the Financing Agreements with
respect to such Aircraft in such form and at such a time on or before
the Funding Date specified in such Delivery Notice and to perform its
obligations thereunder;
(v) specify the aggregate principal amount of each series of
Equipment Notes to be issued, and purchased by the Pass Through
Trustees, in connection with the financing of such Aircraft scheduled
to be delivered on such Funding Date (which shall in all respects
comply with the Mandatory Economic Terms); and
(vi) if such Aircraft is to be a Leased Aircraft, certify that
the related Owner Participant (A) is not an Affiliate of the Company
and (B) based on the representations of such Owner Participant, is
either (1) a Qualified Owner Participant or (2) any other person the
obligations of which under the Owner Participant Agreements (as defined
in the applicable Participation Agreement) are guaranteed by a
Qualified Owner Participant.
Notwithstanding the foregoing, (i) in the event the date of issuance of the
Certificates coincides with the Scheduled Delivery Date of any Aircraft to be
financed pursuant to the terms hereof, the Delivery Notice therefor may be
delivered to the parties hereto on such Scheduled Delivery Date and (ii) the
Delivery Notice shall be modified in the case of a Special Structure as
described in Section 1(c) below.
<PAGE> 7
4
(c) Upon receipt of a Delivery Notice, the Pass Through
Trustees shall, and shall cause the Subordination Agent to, enter into and
perform their obligations under the Participation Agreement and other
instructions specified in such Delivery Notice, provided that such Participation
Agreement and the other Lease Financing Agreements or Owner Financing Agreements
to be entered into pursuant to such Participation Agreement shall be in the
forms thereof annexed hereto in all material respects with such changes therein
as shall have been requested by the related Owner Participant (in the case of
Lease Financing Agreements) or by the initial purchasers of the Series D
Equipment Notes or Class D Certificates (as defined in the Intercreditor
Agreement), agreed to by the Company and, if modified in any material respect,
as to which prior written consent of the Policy Provider shall have been
obtained and as to which Rating Agency Confirmation shall have been obtained
from each Rating Agency by the Company (to be delivered by the Company to the
applicable Pass Through Trustee on or before the relevant Delivery Date, it
being understood that if Policy Provider consent and Rating Agency Confirmation
shall have been received with respect to any Financing Agreements and such
Financing Agreements are utilized for subsequent Aircraft (or Substitute
Aircraft) without material modifications, no additional Policy Provider consent
or Rating Agency Confirmation shall be required); provided, however, that the
relevant Financing Agreements as executed and delivered shall not vary the
Mandatory Economic Terms and shall contain the Mandatory Document Terms.
Notwithstanding the foregoing, (i) if the Company elects to structure the
financing of a New Aircraft in a way other than contemplated by the forms of
Financing Agreements annexed to this Agreement (a "Special Structure"), it shall
specify in the Delivery Notice that the forms of financing agreements to be
entered into by the Applicable Pass Through Trustees and Subordination Agent
shall be furnished by the Company on the Funding Date, provided that (x) such
financing agreements shall not vary the Mandatory Economic Terms, (y) the
Company shall furnish to each applicable Pass Through Trustee a Rating Agency
Confirmation from each Rating Agency on or prior to the relevant Funding Date
and (z) the Company shall have obtained the prior written consent of the Policy
Provider to such Special Structure, and (ii) an Indenture may be modified to the
extent required pursuant to Section 4(a)(vi) of this Agreement. The Company
shall pay the reasonable costs and expenses of the Rating Agencies in connection
with obtaining any such Rating Agency Confirmation. With respect to each
Aircraft (except in the case of a Special Structure), the Company shall cause
WTC (or such other person that meets the eligibility requirements to act as
mortgagee under the Leased Aircraft Indenture or Owned Aircraft Indenture) shall
execute as Loan Trustee the Financing Agreements relating to such Aircraft to
which such Loan Trustee is intended to be a party, and the Company shall
concurrently therewith execute such Financing Agreements to which the Company is
intended to be a party and perform its respective obligations thereunder. Upon
the request of the Policy Provider or of either Rating Agency, the Company shall
deliver or cause to be delivered to such Rating Agency a true and complete copy
of each Financing Agreement (or, in the case of a Special Structure, each
financing agreement) relating to the financing of each Aircraft together with a
true and complete set of the closing documentation (including legal opinions)
delivered to the related Loan Trustee, Subordination Agent and Pass Through
Trustee under the related Participation Agreement.
(d) If after giving any Delivery Notice, there shall be a
delay in the delivery of an Aircraft, or if on the Scheduled Delivery Date of an
Aircraft the financing thereof in the manner contemplated hereby shall not be
consummated for whatever reason, the Company shall give the parties hereto and
the Policy Provider prompt notice thereof. Concurrently with the
<PAGE> 8
5
giving of such notice of postponement or subsequently, the Company shall give
the parties hereto and the Policy Provider a substitute Delivery Notice
specifying the date to which such delivery and related financing shall have been
re-scheduled (which shall be a Business Day before the Cut-off Date on which the
Escrow Agents shall be entitled to withdraw one or more Deposits under each of
the applicable Deposit Agreements to enable each applicable Pass Through Trustee
to fund its purchase of the related Equipment Notes). Upon receipt of any such
notice of postponement, each applicable Pass Through Trustee shall comply with
its obligations under Section 7.01 of each of the Pass Through Trust Agreements
and thereafter the financing of the relevant Aircraft shall take place on the
re-scheduled Delivery Date therefor (all on and subject to the terms and
conditions of the relevant Financing Agreements or other financing agreements in
the case of a Special Structure) unless further postponed as provided herein.
(e) Anything in this Section 1 to the contrary
notwithstanding, the Company shall have the right at any time on or before the
Scheduled Delivery Date of any Aircraft, and subsequent to its giving a Delivery
Notice therefor, to postpone the Scheduled Delivery Date of such Aircraft so as
to enable the Company to change its election to treat such Aircraft as a Leased
Aircraft or an Owned Aircraft by written notice of such postponement to the
other parties hereto. The Company shall subsequently give the parties hereto a
substitute Delivery Notice complying with the provisions of Section 1(b) hereof
and specifying the new Funding Date for such postponed Aircraft (which shall be
a Business Day occurring before the Cut-off Date and on which the Escrow Agents
shall be entitled to withdraw Deposits under each of the applicable Deposit
Agreements sufficient to enable each applicable Pass Through Trustee to fund its
purchase of the related Equipment Notes). In addition, the Company shall have
the further right, anything in this Section 1 to the contrary notwithstanding,
to accept delivery of an Aircraft under the Aircraft Purchase Agreement on the
Delivery Date thereof by utilization of bridge financing of such Aircraft and
promptly thereafter give the parties hereto a Delivery Notice specifying a
Funding Date not later than 90 days after the Delivery Date of such Aircraft and
no later than the Cut-off Date and otherwise complying with the provisions of
Section 1(b) hereof. All other terms and conditions of this Note Purchase
Agreement shall apply to the financing of any such Aircraft on the re-scheduled
Funding Date therefor except (i) the re-scheduled Funding Date shall be deemed
the Delivery Date of such Aircraft for all purposes of this Section 1, (ii) the
related Financing Agreements (or other financing agreements in the case of a
Special Structure) shall be amended to reflect the original delivery of such
Aircraft to the Company and (iii) the related Financing Agreements shall be
amended to reflect the seller of such Aircraft, and the recipient of payment of
the purchase price therefor, as the Company and (iv) in the case of a Leased
Aircraft, the Aircraft Purchase Agreement Assignment shall be modified to cover
only an assignment of the relevant warranties.
(f) If the Scheduled Delivery Date for any Aircraft is delayed
for any reason (including the casualty loss thereof) more than 30 days beyond
the last day of the month set forth opposite such Aircraft under the heading
"Scheduled Delivery Months" in Schedule I hereto, the Company may identify for
delivery a substitute aircraft therefor meeting the following conditions (a
"Substitute Aircraft"): (i) a Substitute Aircraft must be an Airbus A319-100 or
A320-200 aircraft manufactured after the date of this Agreement, (ii) one or
more Substitute Aircraft of the same or different types may be substituted for
one or more Aircraft of the same or different types so long as after giving
effect thereto such substitution does not vary the Mandatory Economic Terms and
(iii) the Company shall be obligated to obtain prior written consent of the
Policy
<PAGE> 9
6
Provider and to obtain Rating Agency Confirmation in respect of the replacement
of any Aircraft by Substitute Aircraft. Upon the satisfaction of the conditions
set forth above with respect to a Substitute Aircraft, the Aircraft to be
replaced shall cease to be subject to this Agreement and all rights and
obligations of the parties hereto concerning such Aircraft shall cease, and such
Substitute Aircraft shall become and thereafter be subject to the terms and
conditions of this Agreement to the same extent as such Aircraft.
(g) The Company shall have no liability for the failure of the
Pass Through Trustees to purchase Equipment Notes with respect to any Aircraft
or Substitute Aircraft, other than the Company's obligation, if any, to pay the
Deposit Make-Whole Premium pursuant to Section 4(a)(i) of this Agreement.
(h) The parties agree that if, in connection with the delivery
of an Aircraft or Substitute Aircraft, any Owner Participant who is to be a
party to any Lease Financing Agreement shall not be a "Citizen of the United
States" within the meaning of Section 40102(a)(15) of the Act, then the
applicable Lease Financing Agreements shall be modified, consistent with the
Mandatory Document Terms, (x) to require such Owner Participant to enter into a
voting trust, voting powers or similar arrangement satisfactory to the Company
that (A) enables such Aircraft or Substitute Aircraft to be registered in the
United States and (B) complies with the FAA regulations issued under the Act
applicable thereto and (y) to be otherwise consistent with such state of
affairs.
(i) Anything herein to the contrary notwithstanding, the
Company shall not have the right, and shall not be entitled, at any time to
request the issuance of Equipment Notes of any series to any Pass Through
Trustee in an aggregate principal amount in excess of the amount of the Deposits
then available for withdrawal by the Escrow Agent under and in accordance with
the provisions of the related Deposit Agreement.
(j) Notwithstanding the foregoing provisions of this Section
1, and anything herein to the contrary notwithstanding, upon not less than 30
days' prior written notice to the parties hereto, the Company shall have the
right, within 120 days after the date any Aircraft has been financed as an Owned
Aircraft, to sell such Owned Aircraft and transfer title to such Owned Aircraft
to an Owner Trustee for the benefit of an Owner Participant (which shall be a
Qualified Owner Participant) in a transaction in which such Owner Trustee
assumes all of the obligations of the Company under the relevant Equipment Notes
and the Owned Aircraft Indenture on a non-recourse basis (with the Company being
released from such obligations, except to the extent accrued prior thereto),
leases the Aircraft to the Company and assigns such lease to the Loan Trustee
pursuant to an amended and restated trust indenture (a "Sale/Leaseback
Transaction"). In connection with such Sale/Leaseback Transaction, the Company
and the relevant Note Holders will execute and deliver appropriate documentation
permitting the Owner Trustee to assume the obligations of the Company under the
relevant Equipment Notes and the Owned Aircraft Indenture on a non-recourse
basis, releasing the Company from all obligations in respect of such Equipment
Notes and the Owned Aircraft Indenture (except to the extent accrued prior
thereto), and take all other actions as are reasonably necessary to permit such
assumption by the Owner Trustee. In connection with any such Sale/Leaseback
Transaction, the parties hereto agree that (a) the documents to be utilized
shall be (i) an amended and restated participation agreement amending and
restating the Participation Agreement, such amended and
<PAGE> 10
7
restated participation agreement to be substantially in the form of the Leased
Aircraft Participation Agreement, among the Company, the relevant Note Holders,
the Owner Participant, the Owner Trustee, and the Loan Trustee , with (x) such
changes to such form to reflect the assumption of such Equipment Notes by the
Owner Trustee on a non-recourse basis rather than the issuance thereof by the
Owner Trustee and original purchase thereof by the Note Holders and also to
reflect the release of the Company from all obligations under such Equipment
Notes and the Owned Aircraft Indenture (except to the extent accrued prior
thereto) and (y) such other changes as may be permitted in accordance with the
provisions of Section 1(c) hereof applicable to a Leased Aircraft Participation
Agreement in connection with a leverage lease transaction, (ii) a lease
agreement, such lease agreement to be substantially in the form of the Lease
between the Company and the Owner Trustee with such changes as may be permitted
in accordance with the provisions of Section 1(c) hereof applicable to the Lease
in connection with a leveraged lease transaction, (iii) an amended and restated
trust indenture amending and restating the relevant Owned Aircraft Indenture,
such amended and restated trust indenture to be substantially in the form of a
Leased Aircraft Indenture, between the Owner Trustee and the Loan Trustee, with
(x) such changes to such form to reflect the assumption of all of the
obligations of the Owner Trustee under relevant Equipment Notes and the relevant
Owned Aircraft Indenture on a non-recourse basis and the release of the
obligations of the Company under such Equipment Notes and the relevant Owned
Aircraft Indenture and (y) such other changes as may be permitted in accordance
with the provisions of Section 1(c) hereof applicable to a Leased Aircraft
Indenture in connection with a leveraged lease transaction, (iv) a purchase
agreement assignment, such purchase agreement assignment to be substantially in
the form of the Aircraft Purchase Agreement Assignment between the Company and
the Owner Trustee with such changes as may be permitted in accordance with the
provisions of Section 1(c) hereof applicable to an Aircraft Purchase Agreement
Assignment in connection with a leveraged lease transaction, and (v) a trust
agreement, such trust agreement to be substantially in the form of a Trust
Agreement, between the Owner Trustee and the Owner Participant with such changes
as may be permitted in accordance with the provisions of Section 1(c) hereof
applicable to a Trust Agreement in connection with a leveraged lease transaction
and (b) the relevant Equipment Notes shall be delivered to the Loan Trustee for
cancellation in exchange for new equipment notes to be issued to the Note
Holders by the Owner Trustee upon the authentication thereof by the Loan
Trustee, such new equipment notes to be substantially in the form contained in
Section 2.01 of the Leased Aircraft Indenture. Such new equipment notes will
have the same payment terms except that in the event that the Company enters
into a Sale/Leaseback Transaction prior to the first Regular Distribution Date
occurring after the issuance of the Equipment Notes relating to that Aircraft,
the Company shall have the right to reoptimize the new equipment notes to be
issued to the Note Holders by the Owner Trustee in compliance with the Mandatory
Economic Terms.
Notwithstanding the foregoing, the Company shall not have the
right to enter into a Sale/Leaseback Transaction unless the Company (a) either
(i) causes to be delivered to the Loan Trustee an opinion of counsel to the
effect that the Certificateholders will not recognize income, gain or loss for
Federal income tax purposes as a result of such assumption and release and will
be subject to Federal income tax in the same amounts, in the same manner and at
the same time as would have been the case if such assumption and release had not
occurred and that the Pass Through Trusts will not be subject to Federal income
taxation as a result of such assumption and release or (ii) provides an
indemnification in favor of the holders of the Certificates in form and
substance reasonably satisfactory to the Pass Through Trustees and (b)
<PAGE> 11
8
obtains Policy Provider consent and a Rating Agency Confirmation with respect
thereto. In addition, the Company agrees to otherwise comply with the provisions
of Sections 1(c) and 2 hereof in connection with any Sale/Leaseback Transaction.
SECTION 2. Conditions Precedent. The obligation of the Pass
Through Trustees to enter into, and to cause the Subordination Agent to enter
into, any Participation Agreement or financing agreement relating to a Special
Structure as directed pursuant to a Delivery Notice and to perform its
obligations thereunder is subject to satisfaction of the following conditions:
(a) no Triggering Event shall have occurred;
(b) the Company shall have delivered a certificate to each
such Pass Through Trustee, the Policy Provider and each Liquidity
Provider stating that (i) such Participation Agreement and the other
Financing Agreements to be entered into pursuant to such Participation
Agreement or, in the case of a Special Structure, the financing
agreements to be entered into in connection with such Special Structure
do not vary the Mandatory Economic Terms and, except in the case of a
Special Structure, contain the Mandatory Document Terms, (ii) any
substantive modification of such Financing Agreements or financing
agreement relating to a Special Structure from the forms of Financing
Agreements attached to this Agreement do not materially and adversely
affect the Policy Provider or the Certificateholders and, in the case
of a Special Structure, do not expose the Policy Provider, the
Liquidity Provider or the Certificateholders to any material additional
risks beyond those to which such persons would have been exposed absent
such Special Structure, and such certification shall be true and
correct; and
(c) in the case of a Special Structure, a copy of the Rating
Agency Confirmations and the Policy Provider consent required under
Section 1(c) shall have been delivered to each such Pass Through
Trustee.
Anything herein to the contrary notwithstanding, the
obligation of each Pass Through Trustee to purchase Equipment Notes shall
terminate on the Cut-off Date.
SECTION 3. Representations and Warranties. (a) The Company
represents and warrants that:
(i) the Company is duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware and is a "citizen of the United States" as defined in
Section 40102 of the Act, and has the full corporate power,
authority and legal right under the laws of the State of
Delaware to execute and deliver this Agreement and each
Financing Agreement to which it will be a party and to carry
out the obligations of the Company under this Agreement and
each Financing Agreement to which it will be a party;
(ii) the execution and delivery by the Company of
this Agreement and the performance by the Company of its
obligations under this Agreement have been duly authorized by
the Company and will not violate its Certificate of
Incorporation or by-laws or (other than any violation that
would not result in a Material Adverse Change to the Company)
the provisions of any indenture,
<PAGE> 12
9
mortgage, contract or other agreement to which it is a party
or by which it is bound; and
(iii) assuming the due authorization, execution and
delivery hereof by the other parties hereto this Agreement
constitutes the legal, valid and binding obligation of the
Company, enforceable against it in accordance with its terms,
except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general
principles of equity, whether considered in a proceeding at
law or in equity.
(b) WTC represents and warrants that:
(i) WTC is duly incorporated, validly existing and in
good standing under the laws of the State of Delaware and is a
"citizen of the United States" as defined in Section 40102 of
the Act, and has the full corporate power, authority and legal
right under the laws of the State of Delaware and the United
States pertaining to its banking, trust and fiduciary powers
to execute and deliver this Agreement and each Financing
Agreement to which it will be a party and to carry out the
obligations of WTC, in its capacity as Subordination Agent,
Pass Through Trustee or Paying Agent, as the case may be,
under this Agreement and each Financing Agreement to which it
will be a party;
(ii) the execution and delivery by WTC, in its
capacity as Subordination Agent, Pass Through Trustee or
Paying Agent, as the case may be, of this Agreement and the
performance by WTC, in its capacity as Subordination Agent,
Pass Through Trustee or Paying Agent, as the case may be, of
its obligations under this Agreement have been duly authorized
by WTC, in its capacity as Subordination Agent, Pass Through
Trustee or Paying Agent, as the case may be, and will not
violate its articles of association or by-laws or the
provisions of any indenture, mortgage, contract or other
agreement to which it is a party or by which it is bound; and
(iii) this Agreement constitutes the legal, valid and
binding obligations of WTC, in its capacity as Subordination
Agent, Pass Through Trustee or Paying Agent, as the case may
be, enforceable against it in accordance with its terms,
except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general
principles of equity, whether considered in a proceeding at
law or in equity.
(c) The Pass Through Trustee hereby confirms to each of the
other parties hereto that its representations and warranties set forth in
Section 7.15 of each Pass Through Trust Agreement are true and correct as of the
date hereof.
(d) The Subordination Agent represents and warrants that:
<PAGE> 13
10
(i) the Subordination Agent is duly incorporated,
validly existing and in good standing under the laws of the
State of Delaware, and has the full corporate power, authority
and legal right under the laws of the State of Delaware and
the United States pertaining to its banking, trust and
fiduciary powers to execute and deliver this Agreement and
each Financing Agreement to which it is or will be a party and
to perform its obligations under this Agreement and each
Financing Agreement to which it is or will be a party;
(ii) this Agreement has been duly authorized,
executed and delivered by the Subordination Agent; this
Agreement constitutes the legal, valid and binding obligations
of the Subordination Agent enforceable against it in
accordance with its terms, except as the same may be limited
by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general principles of equity, whether
considered in a proceeding at law or in equity;
(iii) none of the execution, delivery and performance
by the Subordination Agent of this Agreement contravenes any
law, rule or regulation of the State of Delaware or any United
States governmental authority or agency regulating the
Subordination Agent's banking, trust or fiduciary powers or
any judgment or order applicable to or binding on the
Subordination Agent and do not contravene the Subordination
Agent's articles of association or by-laws or result in any
breach of, or constitute a default under, any agreement or
instrument to which the Subordination Agent is a party or by
which it or any of its properties may be bound;
(iv) neither the execution and delivery by the
Subordination Agent of this Agreement nor the consummation by
the Subordination Agent of any of the transactions
contemplated hereby requires the consent or approval of, the
giving of notice to, the registration with, or the taking of
any other action with respect to, any Delaware governmental
authority or agency or any federal governmental authority or
agency regulating the Subordination Agent's banking, trust or
fiduciary powers;
(v) there are no Taxes payable by the Subordination
Agent imposed by the State of Delaware or any political
subdivision or taxing authority thereof in connection with the
execution, delivery and performance by the Subordination Agent
of this 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
Delaware or any political subdivision thereof in connection
with the acquisition, possession or ownership by the
Subordination Agent of any of the Equipment Notes (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
<PAGE> 14
11
transactions contemplated by the Intercreditor Agreement or
any of the Liquidity Facilities); and
(vi) 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.
(e) The Escrow Agent represents and warrants that:
(i) the Escrow Agent is duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware and has the full corporate power, authority and legal
right under the laws of the State of Delaware pertaining to
its banking, trust and fiduciary powers to execute and deliver
this Agreement, each Deposit Agreement and each Escrow and
Paying Agent Agreement (collectively, the "Escrow Agent
Agreements") and to carry out the obligations of the Escrow
Agent under each of the Escrow Agent Agreements;
(ii) the execution and delivery by the Escrow Agent
of each of the Escrow Agent Agreements and the performance by
the Escrow Agent of its obligations hereunder and thereunder
have been duly authorized by the Escrow Agent and will not
violate its articles of association or by-laws or the
provisions of any indenture, mortgage, contract or other
agreement to which it is a party or by which it is bound; and
(iii) each of the Escrow Agent Agreements constitutes
the legal, valid and binding obligations of the Escrow Agent
enforceable against it in accordance with its terms, except as
the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
rights of creditors generally and by general principles of
equity, whether considered in a proceeding at law or in
equity.
(f) The Paying Agent represents and warrants that:
(i) the Paying Agent is duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware and has the full corporate power, authority and legal
right under the laws of the State of Delaware and the United
States pertaining to its banking, trust and fiduciary powers
to execute and deliver this Agreement and the Escrow and
Paying Agent Agreement (collectively, the "Paying Agent
Agreements") and to carry out the obligations of the Paying
Agent under each of the Paying Agent Agreements;
(ii) the execution and delivery by the Paying Agent
of each of the Paying Agent Agreements and the performance by
the Paying Agent of its obligations hereunder and thereunder
have been duly authorized by the Paying Agent and will not
violate its articles of association or by-laws or the
provisions
<PAGE> 15
12
of any indenture, mortgage, contract or other agreement to
which it is a party or by which it is bound; and
(iii) each of the Paying Agent Agreements constitutes
the legal, valid and binding obligations of the Paying Agent
enforceable against it in accordance with its terms, except as
the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
rights of creditors generally and by general principles of
equity, whether considered in a proceeding at law or in
equity.
SECTION 4. Covenants. (a) The Company covenants with each of
the other parties hereto that:
(i) on the date that the Depositary is obligated to pay the
amount of the Final Withdrawal to the Paying Agent pursuant to a
Deposit Agreement relating to any Trust, the Company shall pay to the
Pass Through Trustee of such Trust no later than 12:30 p.m. (New York
time) an amount equal to the Deposit Make-Whole Premium, if any,
required to be paid in respect of such Final Withdrawal amount;
(ii) subject to Section 4(a)(iv) of this Agreement, the
Company shall at all times maintain its corporate existence;
(iii) the Company shall at all times remain a U.S. Air Carrier
(as defined in the Financing Agreements) and shall at all times be
otherwise certificated and registered to the extent necessary to
entitle (i) in the case of Leased Aircraft, the Owner Trustee (and the
Loan Trustee as assignee of the Owner Trustee's rights under each
Lease) to the rights afforded to lessors of aircraft equipment under
Section 1110 and (ii) in the case of Owned Aircraft, the Loan Trustee
to the rights afforded to secured parties of aircraft equipment under
Section 1110;
(iv) Section 13.2.1 of each Lease is hereby incorporated by
reference herein;
(v) the Company agrees to provide written notice to each of
the parties hereto of the occurrence of the Cut-off Date no later than
one Business Day after the date thereof; such notice to refer
specifically to the Pass Through Trustee's obligation to assign,
transfer and deliver all of its right, title and interest to the Trust
Property (as defined in each Pass Through Trust Agreement) to the
trustee of the Related Trust (as defined in each Pass Through Trust
Agreement) in accordance with Section 11.01 of each of the Pass Through
Trust Agreements;
(vi) the Company shall not issue Series D Equipment Notes
pursuant to any Owned Aircraft Indenture or Leased Aircraft Indenture
unless it shall have obtained written confirmation from each Rating
Agency that the issuance of such Series D Equipment Notes will not
result in (i) a reduction of the rating for any Class of Certificates
below the then current rating for such Class of Certificates without
regard to the Policy or (ii) a withdrawal or suspension of the rating
of any Class of Certificates; if such conditions to the issuance of
Series D Equipment Notes are satisfied, the parties hereto agree to
enter into such amendments and modifications to the Intercreditor
<PAGE> 16
13
Agreement, each Pass Through Trust Agreement and the other Financing
Agreements as shall be reasonably requested by the Company to
facilitate the issuance of the same and any Series D Pass Through
Certificates. The Company will (i) cause the Indenture under which any
Series D Equipment Notes are issued to provide for the subordination of
the Series D Equipment Notes to the Series C Equipment Notes, the
Policy Obligations (as defined in the Intercreditor Agreement), the
Series G Equipment Notes and the Liquidity Obligations (as defined in
the Intercreditor Agreement) in the same manner as the Series C
Equipment Notes are subordinated to the Policy Obligations, the Series
G Equipment Notes and the Liquidity Obligations and (ii) if Series D
Equipment Notes are initially issued to other than the pass through
trustee for the Class D Certificates (as defined in the Intercreditor
Agreement), (A) cause such Series D Equipment Notes to be subject to
the provisions of the Intercreditor Agreement that allow for the
"Controlling Party" (as defined in the Intercreditor Agreement), during
the continuance of an "Indenture Default" (as defined in the
Intercreditor Agreement), to direct the Loan Trustee in taking action
under the applicable Indenture and (B) cause the Indenture under which
such Series D Equipment Notes are issued to include, in substance, the
provisions set forth in Exhibit D to this Agreement; and
(vii) If the Depositary's long-term unsecured debt rating
shall at any time fall below BBB+ from Standard & Poor's or Baa1 from
Moody's, the Company shall, within 45 days of such event occurring,
cause the Depositary to be replaced with a depository bank that has
short-term ratings of at least P-1 from Moody's and A-1 from Standard &
Poor's and long-term unsecured ratings of at least A2 from Moody's and
A from Standard & Poor's (a "Replacement Depositary") on the following
terms and preconditions:
(A) the Company shall obtain written confirmation from each
Rating Agency that such replacement will not cause a reduction of any
rating then in effect for any Class of Certificates by such Rating
Agency (without regard to any downgrading of any rating of the
Depositary being replaced and without regard to the Policy);
(B) the Company shall pay all fees, expenses and other amounts
then owing to the replaced Depositary; and
(C) the Company shall cause the Escrow Agent and the
Replacement Depositary to enter into a Replacement Deposit Agreement
for each Class of Certificates and shall cause the Replacement
Depositary to deliver to the Company, the Policy Provider and each
Rating Agency legal opinions and other closing documentation
substantially similar in scope and substance as those that were
delivered by the Depositary being replaced in connection with the
execution and delivery of the Deposit Agreement being replaced.
Upon satisfaction of the foregoing conditions, the Company
shall instruct each Pass Through Trustee, and each Pass Through Trustee
agrees, to execute and deliver to the Escrow Agent a duly completed
Withdrawal Certificate (as defined in the Escrow and Paying Agent
Agreements) together with a Notice of Replacement Withdrawal (as
defined in the Escrow and Paying Agent Agreements).
<PAGE> 17
14
Each of the parties hereto agrees, at the Company's request,
to enter into any amendments to this Agreement, the Escrow and Paying
Agent Agreements and any other Operative Agreements as may be necessary
or desirable to give effect to the replacement of the Depositary with
the Replacement Depositary and the replacement of the Deposit
Agreements with the Replacement Deposit Agreements.
Upon the execution and delivery of the Replacement Deposit
Agreements, the Replacement Depositary shall be deemed to be the
Depositary with all of the rights and obligations of the Depositary
hereunder and under the other Operative Agreements and the Replacement
Deposit Agreements shall be deemed to be the Deposit Agreements
hereunder and under the other Operative Agreements, except that the
obligations of the replaced Depositary under the last two sentences of
Section 1.4(a) of its Deposit Agreements shall remain in full force and
effect notwithstanding the execution and delivery of the Replacement
Deposit Agreements.
(b) WTC, in its individual capacity, covenants with each of
the other parties to this Agreement that it will, immediately upon obtaining
knowledge of any facts that would cast doubt upon its continuing status as a
"citizen of the United States" as defined in Section 40102 of the Act and
promptly upon public disclosure of negotiations in respect of any transaction
which would or might adversely affect such status, notify in writing all parties
hereto of all relevant matters in connection therewith. Upon WTC giving any such
notice, WTC shall, subject to Section 8.02 of any Indenture then entered into,
resign as Loan Trustee in respect of such Indenture.
(c) the Subordination Agent covenants with each of the other
parties hereto that it will not agree or consent to any amendment or
modification to any Liquidity Facility, the Policy Provider Agreement or the
Intercreditor Agreement without the Company's consent, if such amendment or
modification would adversely affect the interests of the Company.
(d) The Escrow Agent covenants with each of the other parties
hereto that it will not agree or consent to any amendment or modification to any
Deposit Agreement or Escrow and Paying Agent Agreement without the Company's
consent, if such amendment or modification would adversely affect the interests
of the Company.
SECTION 5. Notices. Unless otherwise expressly permitted by
the terms hereof, all notices, requests, demands, authorizations, directions,
consents, waivers and other communications required or permitted to be made,
given, furnished or filed hereunder shall be in writing (it being understood
that the specification of a writing in certain instances and not in others does
not imply an intention that a writing is not required as to the latter), shall
refer specifically to this Agreement, and shall be personally delivered, sent by
facsimile or telecommunication transmission (which in either case provides
written confirmation to the sender of its delivery), sent by registered mail or
certified mail, return receipt requested, postage prepaid, or sent by overnight
courier service, in each case to the respective address or facsimile number set
forth for such party below the signature of such party at the foot of this
Agreement, or to such other address, facsimile or other number as each party
hereto may hereafter specify by notice to the other parties hereto. Notice shall
be given to the Policy Provider at the address specified in the Policy Provider
Agreement. Each such notice, request, demand, authorization, direction,
<PAGE> 18
15
consent, waiver or other communication shall be effective when received or, if
made, given, furnished or filed by facsimile or telecommunication transmission,
when received unless received outside of business hours, in which case on the
next open of business on a Business day.
SECTION 6. Expenses. (a) The Company agrees to pay to the
Subordination Agent when due for application in accordance with the
Intercreditor Agreement an amount or amounts equal to the fees payable to the
Liquidity Provider under Section 2.03 of each Liquidity Facility and the related
Fee Letter (as defined in the Intercreditor Agreement) multiplied by a fraction
the numerator of which shall be the then outstanding aggregate amount of the
Deposits under the Deposit Agreements and the denominator of which shall be the
sum of (x) the then outstanding aggregate principal amount of the Series G
Equipment Notes and Series C Equipment Notes issued under all of the Indentures
and (y) the then outstanding aggregate amount of the Deposits under the Deposit
Agreements.
(b) The Company agrees to pay to the Subordination Agent when
due for application in accordance with the Intercreditor Agreement an amount or
amounts equal to the fees payable to the Policy Provider under Section 3.02 of
the Policy Provider Agreement multiplied by a fraction the numerator of which
shall be the then outstanding aggregate amount of the Deposits under the Deposit
Agreement pertaining to the Class G Trust and the denominator of which shall be
the sum of (x) the then outstanding aggregate principal amount of the Series A
Equipment Notes issued under all of the Indentures and (y) the then outstanding
aggregate amount of the Deposits under the Deposit Agreement pertaining to the
Class G Trust.
(c) So long as no Equipment Notes have been issued in respect
of any Aircraft, the Company agrees to pay (i) to the Subordination Agent when
due (A) the amount equal to interest on any Downgrade Advance (other than any
Applied Downgrade Advance) payable under Section 3.07 of each Liquidity Facility
minus Investment Earnings while such Downgrade Advance shall be outstanding, (B)
the amount equal to interest on any Non-Extension Advance (other than any
Applied Non-Extension Advance) payable under Section 3.07 of each Liquidity
Facility minus Investment Earnings while such Non-Extension Advance shall be
outstanding and (C) any other amounts owed to the Liquidity Provider by the
Subordination Agent as borrower under each Liquidity Facility (other than
amounts due as repayment of advances thereunder or as interest on such advances,
except to the extent payable pursuant to clause (A) or (B)), (ii) all
compensation and reimbursement of expenses, disbursements and advances payable
by the Company under the Pass Through Trust Agreements, (iii) all compensation
and reimbursement of expenses and disbursements payable to the Subordination
Agent under the Intercreditor Agreement (as may be modified by any separate
letter agreement) except with respect to any Unindemnified Taxes incurred by the
Subordination Agent in connection with the transactions contemplated by the
Intercreditor Agreement, (iv) all compensation and reimbursement of expenses and
disbursements payable to the Policy Provider under the Policy Provider
Agreement, and (v) in the event the Company requests any amendment to any
Operative Agreement, all reasonable fees and expenses (including, without
limitation, fees and disbursements of counsel) of the Escrow Agent, the Paying
Agent and/or the Policy Provider in connection therewith. For purposes of this
Section 6(b), the terms "Applied Downgrade Advance", "Applied Non-Extension
Advance", "Downgrade Advance", "Investment Earnings" and "Non-Extension Advance"
shall have the meanings specified in each Liquidity Facility.
<PAGE> 19
16
SECTION 7. Further Assurances. Each party hereto shall duly
execute, acknowledge and deliver, or shall cause to be executed, acknowledged
and delivered, all such further agreements, instruments, certificates or
documents, and shall do and cause to be done such further acts and things, in
any case, as any other party hereto shall reasonably request in connection with
its administration of, or to carry out more effectually the purposes of, or to
better assure and confirm unto it the rights and benefits to be provided under,
this Agreement.
SECTION 8. Miscellaneous. (a) Provided that the transactions
contemplated hereby have been consummated, and except as otherwise provided for
herein, the representations, warranties and agreements herein of the Company,
the Subordination Agent, the Escrow Agent and the Pass Through Trustee, and the
Company's, the Subordination Agent's, the Escrow Agent's and the Pass Through
Trustee's obligations under any and all thereof, shall survive the financing of
each Aircraft hereunder but shall terminate on the expiration or other
termination of this Agreement.
(b) This Agreement may be executed in any number of
counterparts (and each of the parties hereto shall not be required to execute
the same counterpart). Each counterpart of this Agreement, including a signature
page executed by each of the parties hereto, shall be an original counterpart of
this Agreement, but all of such counterparts together shall constitute one
instrument. Neither this Agreement nor any of the terms hereof 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. The index
preceding this Agreement and the headings of the various Sections of this
Agreement are for convenience of reference only and shall not modify, define,
expand or limit any of the terms or provisions hereof. The terms of this
Agreement shall be binding upon, and shall inure to the benefit of, the Company
and its successors and permitted assigns, the Pass Through Trustee and its
successors as Pass Through Trustee (and any additional trustee appointed) under
any of the Pass Through Trust Agreements, the Escrow Agent and its successors as
Escrow Agent under the Escrow and Paying Agent Agreements, the Paying Agent and
its successors as Paying Agent under the Escrow and Paying Agent Agreement and
the Subordination Agent and its successors as Subordination Agent under the
Intercreditor Agreement.
(c) This Agreement is not intended to, and shall not, provide
any person not a party hereto (other than the Initial Purchasers and each of the
beneficiaries of Section 6 hereof) with any rights of any nature whatsoever
against any of the parties hereto, and no person not a party hereto (other than
the Initial Purchasers and each of the beneficiaries of Section 6 hereof) shall
have any right, power or privilege in respect of, or have any benefit or
interest arising out of, this Agreement. To the extent that this Agreement
expressly confers upon, gives or grants any right, power, privilege, benefit,
interest, remedy or claim to any of the beneficiaries of Section 6 hereof
(including, but not limited to rights, powers, privileges, benefits, interests,
remedies and claims under Section 6) each such party is hereby recognized as a
third party beneficiary hereunder and may enforce any such right, power,
privilege, benefit, interest, remedy or claim.
<PAGE> 20
17
SECTION 9. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. THIS
AGREEMENT IS BEING DELIVERED IN THE STATE OF NEW YORK.
<PAGE> 21
18
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.
AMERICA WEST AIRLINES, INC.
By
--------------------------------------
Name:
Title:
Address: 4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: Vice President
- Treasurer
Facsimile: (602) 693-5886
WILMINGTON TRUST COMPANY,
not in its individual capacity, except as
otherwise provided herein, but solely as
Pass Through Trustee
By
--------------------------------------
Name:
Title:
Address: Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust
Administration
Facsimile: (302) 651-8882
<PAGE> 22
19
WILMINGTON TRUST COMPANY,
not in its individual capacity, except as
otherwise provided herein, but solely as
Subordination Agent
By
--------------------------------------
Name:
Title:
Address: Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust
Administration
Facsimile: (302) 651-8882
WILMINGTON TRUST COMPANY,
as Escrow Agent
By
--------------------------------------
Name:
Title:
Address: Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust
Administration
Facsimile: (302) 651-8882
WILMINGTON TRUST COMPANY,
as Paying Agent
By
--------------------------------------
Name:
Title:
Address: Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust
Administration
Facsimile: (302) 651-8882
<PAGE> 23
SCHEDULE I to
Note Purchase Agreement
AIRCRAFT AND SCHEDULED DELIVERY MONTHS
<TABLE>
<CAPTION>
Expected Expected
Registration Manufacturer's Scheduled
Aircraft Type Number Serial Number Delivery Month
------------- ------ ------------- --------------
<S> <C> <C> <C>
A319-132 N807AW 1064 August 1999
A319-132 N808AW 1088 September 1999
A319-132 N809AW 1111 October 1999
A319-132 N810AW 1116 November 1999
A319-132 N811AW 1178 February 2000
A320-232 N654AW 1050 August 1999
A320-232 N655AW 1075 September 1999
A320-232 N656AW 1079 October 1999
A320-232 N657AW 1083 October 1999
A320-232 N658AW 1166 February 2000
</TABLE>
<PAGE> 24
SCHEDULE II to
Note Purchase Agreement
PASS THROUGH TRUST AGREEMENTS
Pass Through Trust Agreement dated as of the Issuance Date between the Company
and the Pass Through Trustee in respect of America West Airlines Pass Through
Trust, Series 1999-1G-O.
Pass Through Trust Agreement dated as of the Issuance Date between the Company
and the Pass Through Trustee in respect of America West Airlines Pass Through
Trust, Series 1999-1C-O.
<PAGE> 25
SCHEDULE III to
Note Purchase Agreement
DEPOSIT AGREEMENTS
Deposit Agreement (Class G) dated as of the Issuance Date between the Depositary
and the Escrow Agent.
Deposit Agreement (Class C) dated as of the Issuance Date between the Depositary
and the Escrow Agent.
<PAGE> 26
SCHEDULE IV to
Note Purchase Agreement
ESCROW AND PAYING AGENT AGREEMENTS
Escrow and Paying Agent Agreement (Class G) dated as of the Issuance Date among
the Escrow Agent, the Initial Purchasers, the Pass Through Trustee and the
Paying Agent.
Escrow and Paying Agent Agreement (Class C) dated as of the Issuance Date among
the Escrow Agent, the Initial Purchasers, the Pass Through Trustee and the
Paying Agent.
<PAGE> 27
SCHEDULE V to
Note Purchase Agreement
MANDATORY DOCUMENT TERMS
(cross references to be confirmed)
The terms "Trust Indenture Form", "Lease Form" and "Participation Agreement
Form" shall have the respective meanings specified in Schedule VI to the Note
Purchase Agreement.
1. May not modify in any material adverse respect the Granting Clause of
the Trust Indenture Form so as to deprive the Note Holders of a
security interest in and mortgage lien on the Aircraft and, in the case
of a Leased Aircraft Indenture, the Lease or to eliminate any of the
"Secured Obligations" as defined therein or otherwise modify in any
material adverse respect as regards the interests of the Note Holders,
the Subordination Agent, the Liquidity Provider, the Policy Provider or
the Mortgagee the provisions of Article II or III or in the case of a
Leased Aircraft Indenture Section 4.02, 4.03, 4.04, 5.02, 5.06,
9.01(b), 10.04, 10.11 or 10.12 of the Trust Indenture Form or in the
case of an Owned Aircraft Indenture Article IV, Section 5.01, 5.02,
6.02, 10.01, 11.04, 11.11 or 11.12 of the Trust Indenture Form.
2. May not modify in any material adverse respect as regards the interests
of the Note Holders, the Subordination Agent, the Liquidity Provider,
the Policy Provider or the Mortgagee the provisions of Section
3.2.1(e), 3.3(c), 4.7, the final sentence of 7.1.1, 10.3.1(d)(ii),
13.3, 16, 17.3, 18.3 or 18.6(a) of the Lease Form or otherwise modify
the terms of the Lease Form so as to deprive the Mortgagee of rights
expressly granted to the "Mortgagee" therein.
3. May not modify in any material adverse respect as regards the interests
of the Note Holders, the Subordination Agent, the Liquidity Provider or
the Mortgagee the provisions of Section (Owned Aircraft Section
references shown in '[ ]') 5.1.9[3.1.7], 5.1.10[3.1.8], 5.1.11[3.1.9],
5.1.12[3.1.10], 7.5[5.3], 12[9], 15.7(a)[11.7(a)] or 15.9[11.9] of the
Participation Agreement Form or of the provisions of Section
5.1.2(xxiii)[3.1.2(xvi)] or 10.1.1(a)(iv) of the Participation
Agreement Form so as to eliminate the requirement to deliver to the
Loan Participant or the Mortgagee, as the case may be, 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 7.6.11(a)(ii)[5.4.5(a)(ii)] of the Participation
Agreement Form as regards the rights of the Mortgagee thereunder or of
the provisions of Section 5.1.16[3.1.14] of the Participation Agreement
Form so as to deprive the Note Holders of a first priority security
interest as provided therein in and mortgage lien on the Aircraft and
the Lease or otherwise modify the terms of the Participation Agreement
Form to deprive the Trustees, the Subordination Agent, the Liquidity
Providers or the Mortgagee of any indemnity or right of reimbursement
in its favor for Expenses or Taxes.
<PAGE> 28
2
4. May not modify, in any material adverse respect as regards the
interests of the Note Holders, the Subordination Agent, the Liquidity
Providers or the Mortgagee, the definition of "Make Whole Amount" in
Annex A to the Participation Agreement Form.
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 Note Holders, the Subordination
Agent, the Liquidity Providers, the Policy Provider, the Mortgagee or the
Certificateholders.
<PAGE> 29
SCHEDULE VI to
Note Purchase Agreement
MANDATORY ECONOMIC TERMS
<TABLE>
<CAPTION>
Equipment Notes
- ---------------
<S> <C>
Obligor: America West Airlines, Inc. or an Owner Trust
Maximum Principal Amount: the maximum principal amount of all
the Equipment Notes issued with
respect to an Aircraft may not exceed
the maximum principal amount of
Equipment Notes indicated for each
such Aircraft as set forth in
"Offering Memorandum Summary --
Equipment Notes and the Aircraft"
under the column "Maximum Principal
Amount of Equipment Notes";
Initial Average Life: the average life per aircraft of the
Series G Equipment Notes shall not be
less than 10.5 years or extend beyond
13.0 years and of the Series C
Equipment Notes shall not be less than
2.0 years or extend beyond 3.5 years,
in each case from the Issuance Date;
Average Life (in years): as of the first Regular Distribution
Date following the delivery of the
last Aircraft to be delivered, the
average life of the Class G
Certificates and the Class C
Certificates shall not extend beyond,
respectively, 11.5 years and 3.0 years
from the Issuance Date;
Loan to Aircraft Value: the loan to aircraft value ratio with
respect to each Aircraft at the time
of issuance of the related Equipment
Notes and on any Regular Distribution
Date thereafter shall not exceed the
percentages set forth in the following
table:
</TABLE>
<TABLE>
<CAPTION>
SERIES G SERIES C
AIRCRAFT TYPE EQUIPMENT NOTES EQUIPMENT NOTES
------------- --------------- ---------------
<S> <C> <C> <C>
A319-100 57% 62%
A320-200 57% 62%
</TABLE>
<TABLE>
<CAPTION>
<S> <C>
(in each case computed on the basis of an assumed
value of such Aircraft no greater than the value
for such Aircraft set forth under "Offering
Memorandum Summary -- Equipment Notes and the
Aircraft" under the column "Appraised Value" and
the Depreciation Assumption defined under
"Offering Memorandum Summary -- Loan to Aircraft
Value Ratios")
</TABLE>
<PAGE> 30
2
<TABLE>
<CAPTION>
<S> <C>
Final Maturity Date: the final maturity date of (a) the
Series G Equipment Notes may not be
extended beyond January 2, 2019 and
(b) the Series C Equipment Notes may
not be extended beyond January 2,
2006;
Principal Amount: the original aggregate principal
amount of all of the Equipment Notes
of each Series shall not exceed the
original aggregate face amount of the
Certificates issued by the
corresponding Trust and the original
aggregate principal amount of all
Equipment Notes for all Aircraft shall
not exceed the aggregate face value
amount of all Certificates;
Debt Rate: the interest rate applicable to each
Series of Equipment Notes must be
equal to the rate applicable to the
Certificates issued by the
corresponding Pass Through Trust;
Payment Due Rate: Debt Rate plus 1% per annum
Payment Dates: January 2 and July 2 commencing with
the first such date after the
applicable Equipment Notes are issued
Make-Whole Premiums: as provided in Article II of the form
of Trust Indenture marked as Exhibits
A-3 and C-2 of the Note Purchase
Agreement (the "Trust Indenture Form")
Redemption and Purchase: as provided in Article II of the Trust
Indenture Form
Lease
- -----
Term: The Base Lease Term shall expire by
its terms on or after final maturity
date of the related Series G or Series
C Equipment Notes
Lease Payment Dates: January 2 and July 2 commencing with
the first such date after the Lease is
entered into, to and including the
last such date in the Term
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 related Equipment Notes prior
to such Date), the aggregate principal
amount of scheduled installments due
on the related Equipment Notes
outstanding on such Payment Date
together with accrued and unpaid
interest thereon
</TABLE>
<PAGE> 31
3
<TABLE>
<CAPTION>
<S> <C>
Supplemental Rent: Sufficient to cover the sums described
in clauses (a) through (d) of such
term as defined in Annex A to the form
of Lease (the "Lease Form") marked as
Exhibit A-2 of the Note Purchase
Agreement
EBO Amount (if any): At all times equal to or greater than
the then outstanding principal amount
of the related Equipment Notes
together with accrued interest thereon
Stipulated Loss Value: At all times equal to or greater than
the then outstanding principal amount
of the related Equipment Notes
together with accrued interest thereon
Termination Value: At all times equal to or greater than
the then outstanding principal amount
of the related Equipment Notes
together with accrued interest thereon
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 Annex D of the form
of Lease marked as Exhibit A-2.
Minimum Liability Insurance Amount: as set forth in Schedule 1 to the form
of Lease marked as Exhibit A-2.
Payment Due Rate: as set forth in Annex A to the form of
Lease marked as Exhibit A-2.
SLV Rate: as set forth in Schedule 1 to the form
of Lease marked as Exhibit A-2.
</TABLE>
Participation Agreement
Mortgagee, Subordination Agent, Liquidity Providers, the Policy Provider, Pass
Through Trustees, and Escrow Agents indemnified against Expenses and Taxes to
the extent set forth in Section 9 of the form of the Participation Agreement
(the "Participation Agreement Form") marked as Exhibits A-1 and C-1 to the Note
Purchase Agreement
<PAGE> 32
SCHEDULE VII to
Note Purchase Agreement
AGGREGATE AMORTIZATION SCHEDULE
<TABLE>
<CAPTION>
1999-1G Trust Scheduled 1999-1C Trust Scheduled
Date Principal Payment Principal Payment
---- ----------------- -----------------
<S> <C> <C>
January 2, 2000 $ 5,387,382.98 $3,085,129.91
July 2, 2000 0.00 0.00
January 2, 2001 6,414,664.01 2,507,586.93
July 2, 2001 0.00 0.00
January 2, 2002 7,060,279.46 3,770,663.17
July 2, 2002 0.00 0.00
January 2, 2003 8,014,608.99 3,987,376.87
July 2, 2003 0.00 0.00
January 2, 2004 9,365,617.80 3,958,605.13
July 2, 2004 0.00 0.00
January 2, 2005 12,495,401.20 1,685,711.66
July 2, 2005 0.00 0.00
January 2, 2006 13,083,696.06 1,162,926.33
July 2, 2006 0.00 0.00
January 2, 2007 11,209,723.45 0.00
July 2, 2007 3,095,483.98 0.00
January 2, 2008 3,106,003.55 0.00
July 2, 2008 6,408,747.64 0.00
January 2, 2009 3,385,324.07 0.00
July 2, 2009 5,670,310.34 0.00
January 2, 2010 3,069,836.70 0.00
July 2, 2010 4,243,182.39 0.00
January 2, 2011 2,501,500.00 0.00
July 2, 2011 6,422,511.70 0.00
January 2, 2012 2,266,831.17 0.00
July 2, 2012 8,733,335.37 0.00
January 2, 2013 4,991,073.36 0.00
July 2, 2013 7,171,109.55 0.00
January 2, 2014 8,144,628.68 0.00
July 2, 2014 12,065,086.82 0.00
January 2, 2015 6,717,588.43 0.00
July 2, 2015 4,826,264.36 0.00
January 2, 2016 12,146,939.44 0.00
July 2, 2016 2,561,617.20 0.00
January 2, 2017 14,110,504.32 0.00
July 2, 2017 4,443,412.96 0.00
January 2, 2018 21,448,979.41 0.00
July 2, 2018 633,454.03 0.00
January 2, 2019 12,472,900.58 0.00
</TABLE>
<PAGE> 33
ANNEX A to
Note Purchase Agreement
DEFINITIONS
"Act" means 49 U.S.C. Sections 40101-46507.
"Adjusted Treasury Yield" means the Treasury Yield plus, in the case of a
distribution to holders of Class G Certificates, 225 basis points and, in the
case of a distribution to holders of Class C Certificates, 250 basis points.
"Affiliate" means, with respect to any person, any other person directly or
indirectly controlling, controlled by or under common control with such person.
For 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 "controlling," "controlled by" and "under common control with"
have correlative meanings.
"Aircraft" has the meaning set forth in the second recital to the Note Purchase
Agreement.
"Aircraft Purchase Agreement" means the Airbus A319/A320 Purchase Agreement,
dated as of September 12, 1997, between the Company and the Manufacturer
(including all exhibits thereto, together with all letter agreements entered
into that by their terms constitute part of any such Purchase Agreement).
"Aircraft Purchase Agreement Assignment" means an Assignment and Delegation
Agreement substantially in the form of Exhibit A-4 to the Note Purchase
Agreement.
"Assumed Amortization Schedule" means Schedule VII to the Note Purchase
Agreement.
"Average Life Date" means, for any Equipment Note, the date which follows the
time of determination by a period equal to the Remaining Weighted Average Life
of such Equipment Note.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 U.S.C. Sections
101 et seq.
"Business Day" means any day, other than a Saturday, Sunday or other day on
which commercial banks are authorized or required by law to close in New York,
New York, Phoenix, Arizona, Hartford, Connecticut or Wilmington, Delaware.
"Certificate" has the meaning set forth in the third recital to the Note
Purchase Agreement.
"Certificateholder" means the Person in whose name a Certificate is registered
in the Register.
"Class" means the class of Certificates issued by each Pass Through Trust.
"Class G Trust " has the meaning specified in the Intercreditor Agreement.
"Company" means America West Airlines, Inc., a Delaware corporation.
<PAGE> 34
2
"Corporate Trust Office" with respect to any Pass Through Trustee or any Loan
Trustee, means the office of such trustee in the city at which at any particular
time its corporate trust business shall be principally administered.
"Cut-off Date" means the earlier of (a) the day after the Delivery Period
Termination Date and (b) the date on which a Triggering Event occurs.
"Delivery Period Termination Date" means the earlier of (a) May 30, 2000, or, if
the Equipment Notes relating to all of the Aircraft (or Substitute Aircraft in
lieu thereof) have not been purchased by the Pass Through Trustees on or prior
to such date due to any reason beyond the control of the Company and not
occasioned by the Company's fault or negligence, August 31, 2000 and (b) the
date on which Equipment Notes issued with respect to all of the Aircraft (or
Substitute Aircraft in lieu thereof) have been purchased by the Pass Through
Trustees in accordance with the Note Purchase Agreement.
"Delivery Date" means the Business Day on which an Aircraft is delivered to and
accepted by the Company or otherwise becomes subject to any Financing Agreement.
"Deposit" has the meaning set forth in the fifth recital to the Note Purchase
Agreement.
"Deposit Agreement" shall mean the Initial Deposit Agreements set forth on
Schedule III hereto and, from and after the transfer of the Deposits to a
Replacement Depositary, shall refer to the corresponding Replacement Deposit
Agreements between the Escrow Agent and the Replacement Depositary.
"Deposit Make-Whole Premium" means, with respect to the distribution of unused
Deposits to holders of any Class of Certificates, as of any date of
determination, an amount equal to the excess, if any, of (a) the present value
of the excess of (i) the scheduled payment of principal and interest to maturity
of the Equipment Notes, assuming the maximum principal amount thereof (the
"Maximum Amount") minus any Non-Premium Amount applicable to such Class of
Certificates and, in the case of Class C Certificates only, the Par Redemption
Amount were issued, on each remaining Regular Distribution Date for such Class
under the Assumed Amortization Schedule over (ii) the scheduled payment of
principal and interest to maturity of the Equipment Notes actually acquired by
the Pass Through Trustee for such Class on each such Regular Distribution Date,
such present value computed by discounting such excess on a semiannual basis on
each Regular Distribution Date (assuming a 360-day year of twelve 30-day months)
using a discount rate equal to the Adjusted Treasury Yield over (b) the amount
of such unused Deposits to be distributed to the holders of such Certificates
minus any Non-Premium Amount applicable to such Class of Certificates and, in
the case of Class C Certificates only, the Par Redemption Amount (the remainder
of such subtraction, the "Net Deposits") plus accrued and unpaid interest on the
Net Deposits to but excluding such date of determination from and including the
preceding Regular Distribution Date (or if such date of determination precedes
the first Regular Distribution Date, the Issuance Date).
"Depositary" means ABN AMRO Bank N.V., a banking institution organized under the
laws of the Netherlands, acting through its Chicago branch and, from and after
the transfer of the Deposits to a Replacement Depositary, shall mean such
Replacement Depositary.
<PAGE> 35
3
"Equipment Notes" means and includes any equipment notes issued under any
Indenture in the form specified in Section 2.01 thereof (as such form may be
varied pursuant to the terms of such Indenture) and any Equipment Note issued
under any Indenture in exchange for or replacement of any other Equipment Note.
"Escrow Agent" has the meaning set forth in the first paragraph of the Note
Purchase Agreement.
"Escrow and Paying Agent Agreement" has the meaning set forth in the fifth
recital to the Note Purchase Agreement.
"FAA" means the Federal Aviation Administration of the United States.
"Final Withdrawal" with respect to each Escrow and Paying Agent Agreement, has
the meaning set forth in Section 1.02 thereof.
"Financing Agreements" means, collectively, the Lease Financing Agreements and
the Owner Financing Agreements.
"Government Entity" means (a) any federal, state, provincial or similar
government, and any body, board, department, commission, court, tribunal,
authority, agency or other instrumentality of any such government or otherwise
exercising any executive, legislative, judicial, administrative or regulatory
functions of such government or (b) any other government entity having
jurisdiction over any matter contemplated by the Operative Agreements or
relating to the observance or performance of the obligations of any of the
parties to the Operative Agreements.
"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.
"Indentures" means, collectively, the Leased Aircraft Indentures and the Owned
Aircraft Indentures.
"Initial Purchasers" has the meaning set forth in the fourth recital to the Note
Purchase Agreement.
"Intercreditor Agreement" has the meaning set forth in the ninth recital to the
Note Purchase Agreement.
"Issuance Date" means the date of the original issuance of the Certificates.
"Law" means (a) any constitution, treaty, statute, law, decree, regulation,
order, rule or directive of any Government Entity, and (b) any judicial or
administrative interpretation or application of, or decision under, any of the
foregoing.
"Lease" means a Lease Agreement substantially in the form of Exhibit A-2 to the
Note Purchase Agreement.
"Lease Financing Agreements" means, collectively, the Aircraft Purchase
Agreement Assignment, the Leased Aircraft Participation Agreement, the Lease,
the Leased Aircraft
<PAGE> 36
4
Indenture, the Equipment Notes issued thereunder and the Trust Agreement
relating to the financing of a Leased Aircraft.
"Leased Aircraft" means an Aircraft subject to a Lease.
"Leased Aircraft Indenture" means a Trust Indenture and Mortgage substantially
in the form of Exhibit A-3 to the Note Purchase Agreement.
"Leased Aircraft Participation Agreement" means a Participation Agreement
substantially in the form of Exhibit A-1 to the Note Purchase Agreement.
"Liquidity Facility" has the meaning set forth in the ninth recital to the Note
Purchase Agreement.
"Liquidity Provider" has the meaning set forth in the tenth recital to the Note
Purchase Agreement.
"Loan Trustee" means the "Mortgagee" as defined in the Financing Agreements.
"Mandatory Document Terms" means the terms set forth on Schedule V to the Note
Purchase Agreement.
"Mandatory Economic Terms" means the terms set forth on Schedule VI to the Note
Purchase Agreement.
"Manufacturer" means AVSA, S.A.R.L., solely in its capacity as manufacturer or
seller of Aircraft.
"Material Adverse Change" means, with respect to any Person, any event,
condition or circumstance that materially and adversely affects such Person 's
business or consolidated financial condition or its ability to observe or
perform its obligations, liabilities and agreements under the Operative
Agreements.
"Non-Premium Amount" means, with respect to any Class of Certificates, if any
Aircraft has not been delivered by the Manufacturer on or prior to the Delivery
Period Termination Date due to any reason not occasioned by the Company's fault
or negligence and no Substitute Aircraft has been provided in lieu of such
Aircraft, an amount equal to the maximum principal amount of Equipment Notes
with respect to such Aircraft that could have been issued and acquired by the
Pass Through Trust that issued such Class of Certificates in accordance with the
Mandatory Economic Terms.
"Note Holder" means at any time each registered holder of one or more Equipment
Notes.
"Note Purchase Agreement" means the Note Purchase Agreement to which this Annex
A is attached.
"Notice of Purchase Withdrawal" with respect to each Deposit Agreement, has the
meaning set forth in Section 2.3 thereof.
<PAGE> 37
5
"Operative Agreements" means, collectively, the Pass Through Trust Agreements,
the Escrow and Paying Agent Agreements, the Deposit Agreements, the Liquidity
Facilities, the Policy Provider Agreement, the Policy, the Intercreditor
Agreement, the Registration Rights Agreements, the Trust Agreements, the
Equipment Notes, the Certificates and the Financing Agreements.
"Owned Aircraft Indenture" means a Trust Indenture and Mortgage substantially in
the form of Exhibit C-2 to the Note Purchase Agreement.
"Owned Aircraft Participation Agreement" means a Participation Agreement
substantially in the form of Exhibit C-1 to the Note Purchase Agreement.
"Owner Financing Agreements" means, collectively, the Owned Aircraft
Participation Agreement, the Owned Aircraft Indenture and the Equipment Notes
issued thereunder.
"Owner Participant" means, with respect to any Leased Aircraft, the Person named
as the Owner Participant in the Participation Agreement with respect to such
Leased Aircraft.
"Owner Trust" means with respect to any Leased Aircraft, the trust created by
the "Trust Agreement" referred to in the Leased Aircraft Indenture related
thereto.
"Owner Trustee" means with respect to any Leased Aircraft, the "Owner Trustee"
party to the "Trust Agreement" referred to in the Leased Aircraft Indenture
related thereto.
"Par Redemption Amount" means $5,000,000.
"Participation Agreements" means, collectively, the Leased Aircraft
Participation Agreements and the Owned Aircraft Participation Agreements.
"Pass Through Trust" has the meaning set forth in the third recital to the Note
Purchase Agreement.
"Pass Through Trust Agreement" has the meaning set forth in the third recital to
the Note Purchase Agreement.
"Pass Through Trustee" has the meaning set forth in the first paragraph of the
Note Purchase Agreement.
"Paying Agent" has the meaning set forth in the first paragraph of the Note
Purchase Agreement.
"Person" means any individual, firm, partnership, joint venture, trust, trustee,
Government Entity, organization, association, corporation, government agency,
committee, department, authority and other body, corporate or incorporate,
whether having distinct legal status or not, or any member of any of the same.
"Policy " has the meaning set forth in the tenth recital to the Note Purchase
Agreement.
"Policy Obligations" has the meaning specified in the Intercreditor Agreement.
<PAGE> 38
6
"Policy Provider" has the meaning set forth in the tenth recital to the Note
Purchase Agreement.
"Policy Provider Agreement" has the meaning set forth in the tenth recital to
the Note Purchase Agreement.
"Qualified Owner Participant" means any bank, trust company, insurance company,
financial institution, limited liability company, partnership or corporation, in
each case with a combined capital and surplus or net worth of at least
$50,000,000.
"Rating Agencies" means, collectively, at any time, each nationally recognized
rating agency which shall have been requested to rate the Certificates and which
shall then be rating the Certificates. The initial Rating Agencies will be
Moody's Investors Service, Inc. and Standard & Poor's Rating Services, a
division of The McGraw-Hill Companies Inc.
"Rating Agency Confirmation" means, with respect to any Financing Agreement that
has been modified in any material respect from the forms thereof attached to the
Note Purchase Agreement, with respect to Substitute Aircraft or with respect to
a Special Structure, a written confirmation from each of the Rating Agencies
that the use of such Financing Agreement with such modifications or the
substituting of such Substitute Aircraft for an Aircraft or the utilization of
other financing agreements in connection with such Special Structure, whichever
of the foregoing shall in a particular case require Rating Agency Confirmation,
would not result in (i) a reduction of the rating for any Class of Certificates
below the then current rating for such Class of Certificates (without regard to
the Policy) or (ii) a withdrawal or suspension of the rating of any Class of
Certificates, in each case, without reference to the Policy.
"Register" means the register maintained pursuant to Sections 3.04 and 7.12 of
each Pass Through Trust Agreement.
"Registration Rights Agreement" means the Exchange and Registration Rights
Agreement dated as of the Issuance Date, among the Initial Purchasers, the Pass
Through Trustees and the Company, as amended, supplemented or otherwise modified
from time to time in accordance with its terms.
"Regular Distribution Dates" shall mean January 2 and July 2 of each year,
commencing January 2, 2000.
"Remaining Weighted Average Life" means, on a given date with respect to any
Equipment Note, the number of days equal to the quotient obtained by dividing
(a) the sum of each of the products obtained by multiplying (i) the amount of
each then remaining scheduled payment of principal of such Equipment Note by
(ii) the number of days from and including such determination date to but
excluding the date on which such payment of principal is scheduled to be made,
by (b) the then outstanding principal amount of such Equipment Note.
"Replacement Depositary" has the meaning set forth in Section 4(a)(vii) of the
Note Purchase Agreement.
"Replacement Deposit Agreement" means, for each Class of Certificates, a deposit
agreement substantially in the form of the replaced Deposit Agreement for such
Class of Certificates as
<PAGE> 39
7
shall permit the Rating Agencies to confirm in writing their respective ratings
then in effect for such Class of Certificates (before the downgrading of such
ratings, if any, as a result of the downgrading of the Depositary and without
regard to the Policy).
"Scheduled Delivery Date" has the meaning set forth in Section 1(b) hereof.
"Section 1110" means 11 U.S.C. Section 1110 of the Bankruptcy Code or any
successor or analogous Section of the federal bankruptcy Law in effect from time
to time.
"Series C Equipment Notes" means Equipment Notes issued under an Indenture and
designated as "Series C" thereunder.
"Series D Equipment Notes" means Equipment Notes issued under an Indenture and
designated as "Series C" thereunder, if any.
"Series G Equipment Notes" means Equipment Notes issued under an Indenture and
designated as "Series G" thereunder.
"Special Structure" has the meaning set forth in Section 1(c) of the Note
Purchase Agreement.
"Subordination Agent" has the meaning set forth in the first paragraph of the
Note Purchase Agreement.
"Substitute Aircraft" has the meaning set forth in Section 1(f) of the Note
Purchase Agreement.
"Taxes" means all license, recording, documentary, registration and other
similar fees and all taxes, levies, imposts, duties, charges, assessments or
withholdings of any nature whatsoever imposed by any Taxing Authority, together
with any penalties, additions to tax, fines or interest thereon or additions
thereto.
"Taxing Authority" means any federal, state or local government or other taxing
authority in the United States, any foreign government or any political
subdivision or taxing authority thereof, any international taxing authority or
any territory or possession of the United States or any taxing authority
thereof.
"Treasury Yield" means, as of any date of determination, with respect to any
Equipment Note (utilizing the Assumed Amortization Schedule applicable thereto),
the interest rate (expressed 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 (of such Equipment Note) 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 the public securities markets, (A)
one maturing as close as possible to, but earlier than, the Average Life Date
(of such Equipment Note) and (B) the other maturing as close as possible to, but
later than, the Average Life Date (of such Equipment Note), 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
Equipment Note) is reported on the most recent H.15(519), such weekly average
yield to maturity as published in such H.15(519).
<PAGE> 40
8
"Triggering Event" has the meaning assigned to such term in the Intercreditor
Agreement.
"Trust Agreement" means a Trust Agreement substantially in the form of Exhibit
A-5 to the Note Purchase Agreement.
"Unindemnified Taxes" has the meaning assigned to such term in the Intercreditor
Agreement.
"WTC" has the meaning set forth in the first paragraph of the Note Purchase
Agreement.
<PAGE> 41
EXHIBIT A-1 to
Note Purchase Agreement
FORM OF LEASED AIRCRAFT PARTICIPATION AGREEMENT
<PAGE> 42
EXHIBIT A-2 to
Note Purchase Agreement
FORM OF LEASE
<PAGE> 43
EXHIBIT A-3 to
Note Purchase Agreement
FORM OF LEASED AIRCRAFT INDENTURE
<PAGE> 44
EXHIBIT A-4 to
Note Purchase Agreement
FORM OF AIRCRAFT PURCHASE AGREEMENT ASSIGNMENT
<PAGE> 45
EXHIBIT A-5 to
Note Purchase Agreement
FORM OF LEASED AIRCRAFT TRUST AGREEMENT
<PAGE> 46
EXHIBIT B to
Note Purchase Agreement
FORM OF DELIVERY NOTICE
Dated as of __________ __, ____
To each of the addressees listed
in Schedule A hereto
Re: Delivery Notice in accordance with Note Purchase
Agreement referred to below
Gentlemen:
Reference is made to the Note Purchase Agreement dated as of September
21, 1999 among America West Airlines, Inc. (the "Company"), Wilmington Trust
Company, as Pass Through Trustee under each of the Pass Through Trust Agreements
(as defined therein) (the "Pass Through Trustee"), Wilmington Trust Company, as
Subordination Agent (the "Subordination Agent"), Wilmington Trust Company, as
Escrow Agent (the "Escrow Agent") and Wilmington Trust Company, as Paying Agent
(the "Paying Agent") (as in effect from time to time, the "Note Purchase
Agreement"). Unless otherwise defined herein, capitalized terms used herein
shall have the meanings set forth in the Note Purchase Agreement or, to the
extent not defined therein, the Intercreditor Agreement.
Pursuant to Section 1(b) of the Note Purchase Agreement, the
undersigned hereby notifies you, in respect of the Airbus ___ aircraft with
manufacturer's serial number _______ (the "Aircraft"), of the following:
(1) The Company has elected to treat the Aircraft as a
[Leased](1)/[Owned](2) Aircraft;
(2) The Scheduled Delivery Date of the Aircraft is __________ __, ____; and
(3) The aggregate amount of each series of Equipment Notes to be issued,
and purchased by the respective Pass Through Trustees, on the Scheduled
Delivery Date, in connection with the financing of such Aircraft is as
follows:
(a) the Class G Trustee shall purchase Series G Equipment Notes in
the amount of $__________; and
(b) the Class C Trustee shall purchase Series C Equipment Notes in
the amount of $__________.
- ------------------------
1 To be inserted in the case of a Leased Aircraft.
2 To be inserted in the case of an Owned Aircraft.
<PAGE> 47
2
The Company hereby instructs the Class G Trustee to (i) execute a
Withdrawal Certificate in the form of Annex A hereto dated _____ __, ____ [a
date which is no later than one Business Day prior to the Scheduled Delivery
Date] and attach thereto a Notice of Purchase Withdrawal dated such date
completed as set forth on Exhibit A hereto and (ii) deliver such Withdrawal
Certificate and Notice of Purchase Withdrawal to the applicable Escrow Agent.
The Company hereby instructs the Class C Trustee to (i) execute a
Withdrawal Certificate in the form of Annex A hereto dated _____ __, ____ [a
date which is no later than one Business Day prior to the Scheduled Delivery
Date] and attach thereto a Notice of Purchase Withdrawal dated such date
completed as set forth on Exhibit B hereto and (ii) deliver such Withdrawal
Certificate and Notice of Purchase Withdrawal to the applicable Escrow Agent.
The Company hereby instructs each Pass Through Trustee to (i) purchase
Equipment Notes of a series and in an amount set forth opposite such Pass
Through Trustee in clause (3) above with a portion of the proceeds of the
withdrawals of Deposits referred to in the applicable Notice of Purchase
Withdrawal referred to above and (ii) re-deposit with the Depositary the excess,
if any, of the amount so withdrawn over the purchase price of such Equipment
Notes.
The Company hereby instructs each Pass Through Trustee to (a) enter
into the Participation Agreement dated as of _____ __, ____ among the Company,
as [Lessee](3)/[Owner](4), the Subordination Agent, the Pass Through Trustee,
___________________, as Mortgagee [and Loan Participant, _____________________,
as Owner Trustee and _________, as Owner Participant](5), (b) perform its
obligations thereunder and (c) deliver such certificates, documents and legal
opinions relating to such Pass Through Trustee as required thereby.
[The Company hereby certifies that the Owner Participant with respect
to the Aircraft is (a) not an Affiliate of the Company and (b) a [Qualified
Owner Participant/person whose obligations under the Owner Participant
Agreements (as defined in the Participation Agreement) are guaranteed by a
Qualified Owner Participant].](6)
Yours faithfully,
America West Airlines, Inc.
By:
-------------------------------
Name:
Title:
- ------------------------
3 To be inserted in the case of a Leased Aircraft.
4 To be inserted in the case of an Owned Aircraft.
5 To be inserted in the case of a Leased Aircraft.
6 To be inserted in the case of a Leased Aircraft.
<PAGE> 48
SCHEDULE A
Wilmington Trust Company, as
Pass Through Trustee, Subordination
Agent, Escrow Agent and Paying Agent
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust
Administration
Facsimile: (302) 651-8882
Standard & Poor's Ratings Services
55 Water Street, 35th Floor
New York, New York 10041
Attention: Betsy R. Snyder
Facsimile: (212) 438-7811
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: Bob Jankowitz
Facsimile: (212) 553-4600
Ambac Assurance Corporation
One State Street Plaza
New York, New York 10004
Attention: David Nemschoff
Facsimile: (212) 208-3113
<PAGE> 49
ANNEX A
WITHDRAWAL CERTIFICATE
(Class __)(7)
Wilmington Trust Company,
as Escrow Agent
Dear Sirs:
Reference is made to the Escrow and Paying Agent Agreement,
dated as of September 21, 1999 (the "Agreement"). We hereby certify to you that
the conditions to the obligations of the undersigned to execute a Participation
Agreement pursuant to the Note Purchase Agreement have been satisfied. Pursuant
to Section 1.02(c) of the Agreement, please execute the attached Notice of
Withdrawal and immediately transmit by facsimile to the Depositary, at (312)
606-8428.
Very truly yours,
WILMINGTON TRUST COMPANY, not in its
individual capacity by solely as Pass
Through Trustee
By:_____________________________________
Name:
Title:
Dated: _______ __, ____
- ------------------------
7 Insert letter of appropriate class of Certificates.
<PAGE> 50
EXHIBIT A
NOTICE OF PURCHASE WITHDRAWAL
ABN AMRO BANK N.V.,
Chicago Branch
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Vice President - Aerospace
Telecopier: (312) 606-8428
Gentlemen:
Reference is made to (i) the Deposit Agreement (Class G) dated
as of September 21, 1999 (the "Deposit Agreement") between Wilmington Trust
Company, as Escrow Agent, and ABN AMRO Bank N.V., Chicago Branch, as Depositary
(the "Depositary").
In accordance with Section 2.3(a) of the Deposit Agreement,
the undersigned hereby requests the withdrawal of the entire amount of the
Deposit, $_______, Account No. ____________.
The undersigned hereby directs the Depositary to pay the
proceeds of the Deposit to [________________, Account No. _____, Reference:
_________] on _________ __, ____, upon the telephonic request of a
representative of the Pass Through Trustee.
WILMINGTON TRUST COMPANY,
as Escrow Agent
By:_____________________________________
Name:
Title:
Dated: _______ __, ____
<PAGE> 51
EXHIBIT B
NOTICE OF PURCHASE WITHDRAWAL
ABN AMRO BANK N.V.,
Chicago Branch
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Vice President - Aerospace
Telecopier: (312) 606-8428
Gentlemen:
Reference is made to (i) the Deposit Agreement (Class C) dated
as of September 21, 1999 (the "Deposit Agreement") between Wilmington Trust
Company, as Escrow Agent, and ABN AMRO Bank N.V., Chicago Branch, as Depositary
(the "Depositary").
In accordance with Section 2.3(a) of the Deposit Agreement,
the undersigned hereby requests the withdrawal of the entire amount of the
Deposit, $_______, Account No. ____________.
The undersigned hereby directs the Depositary to pay the
proceeds of the Deposit to [________________, Account No. _____, Reference:
_________] on _________ __, ____, upon the telephonic request of a
representative of the Pass Through Trustee.
WILMINGTON TRUST COMPANY,
as Escrow Agent
By:_____________________________________
Name:
Title:
Dated: _______ __, ____
<PAGE> 52
EXHIBIT C-1 to
Note Purchase Agreement
FORM OF OWNED AIRCRAFT PARTICIPATION AGREEMENT
<PAGE> 53
EXHIBIT C-2 to
Note Purchase Agreement
FORM OF OWNED AIRCRAFT INDENTURE
<PAGE> 54
EXHIBIT D to
Note Purchase Agreement
ADDITIONAL SUBORDINATION PROVISION FOR SERIES D EQUIPMENT NOTES
Subordination.
(a) As between the Note Holders, this Trust Indenture
shall be a subordination agreement for purposes of
Section 510 of the United States Bankruptcy Code, as
amended, from time to time.
(b) If any Note Holder receives any payment in respect of
any obligations owing hereunder, 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 intended to be satisfied
shall be revived and continue in full force and
effect as if such payment had not been received.
(c) Each of the Note Holders may take any of the
following actions without impairing its rights under
this Trust Indenture:
(i) obtain a Lien on any property to secure any
amounts owing to it hereunder,
(ii) obtain the primary or secondary obligation
of any other obligor with respect to any
amounts owing to it hereunder,
(iii) renew, extend, increase, alter or exchange
any amounts owing to it hereunder, 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 Note Holders shall not
prejudice the rights or adversely affect the
obligations of any other party under this Trust
Indenture.
<PAGE> 1
[Letterhead of Morris, James, Hitchens & Williams]
Exhibit 5.1
December 20, 1999
America West Airlines, Inc.
51 W. Third Street
Tempe, Arizona 85281
RE: AMERICA WEST AIRLINES PASS THROUGH CERTIFICATES, SERIES 1999-1 EETC
Ladies and Gentlemen:
You have asked us to provide you with an opinion in connection with the
filing of a registration statement on Form S-4 (the "Registration Statement")
with the Securities and Exchange Commission pursuant to the Securities Act of
1933, as amended (the "Securities Act"), in respect of the registration under
the Securities Act of the Pass Through Certificates, Series 1999-1C (the "New
Class C Certificates") and the Pass Through Certificates, Series 1999-1G (the
"New Class G Certificates" and, together with the New Class C Certificates, the
"New Certificates"), to be offered in exchange for all outstanding Pass Through
Certificates, Series 1999-1C and Series 1999-1G (collectively, the "Old
Certificates"). Each of the New Class C Certificates and the New Class G
Certificates represents or will represent a fractional undivided interest in or
of the following corresponding pass through trusts: the America West Airlines
Pass Through Trust, Series 1999-1C-O, the America West Airlines Pass Through
Trust, Series 1999-1C-S, the America West Airlines Pass Through Trust, Series
1999-1G-O and the America West Airlines Pass Through Trust, Series 1999-1G-S
(collectively, the "Trusts"). The Trusts were formed pursuant to four separate
pass through trust agreements, each dated as of September 21, 1999
(collectively, the "Pass Through Trust Agreements"), between America West
Airlines, Inc. ("America West" or the "Company") and Wilmington Trust Company,
as pass through trustee under each Trust (the "Trustee"). In its individual
capacity, Wilmington Trust Company is herein referred to as "Wilmington Trust".
In connection with this opinion letter, we have examined the
Registration Statement, including the Prospectus that forms a part of the
Registration Statement. We have also examined executed counterparts, forms or
copies otherwise identified to our satisfaction of the following documents: the
Pass Through Trust Agreements, the Exchange and Registration Rights Agreement,
dated September 21, 1999 (the "Registration Rights Agreement"), and the forms of
Old Certificates and New Certificates, each filed as an exhibit to the
Registration Statement (collectively, the "Documents").
<PAGE> 2
America West Airlines, Inc.
December 20, 1999
Page 2
We have also examined and relied on 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 the representations and warranties contained in the Documents.
Based on 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 herein, we advise you that, in our
opinion:
1. When issued in exchange for the Old Certificates pursuant to the
Registration Rights Agreement and authenticated pursuant to the Pass Through
Trust Agreements, the New Certificates will be duly authorized, legal, valid and
binding obligations of the Trusts, enforceable against the Trusts in accordance
with their terms and the terms of the Pass Through Trust Agreements and will be
entitled to the benefits of the Pass Through Trust Agreements.
The foregoing opinion is subject to the following assumptions,
exceptions and qualifications:
A. The foregoing opinion is limited to the laws of the State of Delaware
and the federal laws of the United States of America governing the banking and
trust powers of Wilmington Trust. In addition, we express no opinion with
respect to (i) federal securities laws, including without limitation the
Securities Act, the Securities Exchange Act of 1934, as amended, the Investment
Company Act of 1940, as amended, and the Trust Indenture Act of 1939, as
amended, (ii) Part A of Subtitle VII of Title 49 of the United States Code, as
amended, (iii) the Federal Communications Act of 1934, as amended, (iv) state
securities or blue sky laws, or (v) laws, rules and regulations applicable for
the particular nature of the equipment acquired by the Company. Insofar as the
foregoing opinions relate to the validity and enforceability of the Documents
which are expressed to be governed by the laws of any state other than the State
of Delaware, we have assumed that each such document is legal, valid, binding
and enforceable in accordance with its terms under such laws (as to which we
express no opinion).
B. The foregoing opinion regarding enforceability of any document are
subject to (i) applicable bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance, receivership and similar laws relating to or affecting
the rights and remedies of creditors generally, and (ii) general principles of
equity (regardless of whether such enforceability is considered and applied in a
proceeding in equity or at law).
C. We have assumed the due authorization, execution and delivery by each
of the parties
<PAGE> 3
America West Airlines, Inc.
December 20, 1999
Page 3
thereto (other than Wilmington Trust in its individual capacity, or as Trustee,
as the case may be) of the Documents to which each is a party and that each of
such parties has the full power, authority and legal right to execute, delivery
and perform each such document.
D. We have assumed that all signatures (other than those of Wilmington
Trust in its individual capacity, or as Trustee, as the case may be) 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 or specimens conform with the
originals, which facts we have not independently verified.
E. We have not participated in the preparation of the Registration
Statement or the Prospectus that forms a part of the Registration Statement and
assume no responsibility for their contents.
This opinion may be relied upon by you in connection with the matters
set forth herein. Without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other person or entity for any
purpose. Notwithstanding the foregoing, we hereby consent to the filing of this
opinion as an exhibit to the Registration Statement and to the reference to this
Firm under the headings "Legal Matters" in the Prospectus included in the
Registration Statement. In giving such consent, we do not thereby admit that we
are "experts" within the meaning of the Securities Act or the rules and
regulations of the Securities and Exchange Commission issued thereunder with
respect to any part of the Registration Statement, including this exhibit.
Very truly yours,
/s/ Morris, James, Hitchens & Williams LLP
NMP/fg
<PAGE> 1
EX: 12.1
AMERICA WEST AIRLINES, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS EXCEPT RATIO OF EARNINGS TO FIXED CHARGES)
<TABLE>
<CAPTION>
PREDECESSOR
REORGANIZED COMPANY COMPANY
----------------------------------------------------------------------------------- ----------------
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31, PERIOD FROM PERIOD FROM
------------------- ----------------------------------------- AUGUST 26 TO JANUARY 1 TO
1999 1998 1998 1997 1996 1995 DECEMBER 31, 1994 AUGUST 25, 1994
---- ---- ---- ---- ---- ---- ----------------- ---------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Computation of Earnings:
Income (loss) before income
taxes and extraordinary
item $154,832 $153,873 $184,557 $140,673 $ 34,493 $108,378 $19,736 $(201,209)
Add:
Interest expense including
amortization of debt
expense 24,094 26,826 34,924 39,620 49,678 59,418 22,827 34,038
Interest portion of rent
expense 89,381 81,383 110,125 102,805 93,539 83,680 26,879 51,538
-------- -------- -------- -------- -------- -------- ------- ---------
Income (loss), as adjusted $268,307 $262,082 $329,606 $283,098 $177,710 $251,476 $69,442 $(115,633)
======== ======== ======== ======== ======== ======== ======= =========
Computation of Fixed Charges:
Interest expense including
amortization of debt
expense $ 24,094 $ 26,826 $ 34,924 $ 39,620 $ 49,678 $ 59,418 $22,827 $ 34,038
Interest portion of rent
expense 89,381 81,383 110,125 102,805 93,539 83,680 26,879 51,538
Capitalized interest 4,422 3,324 4,852 553 -- 2,666 621 --
-------- -------- -------- -------- --------- -------- ------- ---------
Fixed charges $117,897 $111,533 $149,901 $142,978 $143,217 $145,764 $50,327 $ 85,576
======== ======== ======== ======== ======== ======== ======= =========
Ratio of earnings to fixed
charges 2.28 2.35 2.20 1.98 1.24 1.73 1.38 (*)
</TABLE>
(*) For the purpose of computing the ratio of earnings to
fixed charges, "earnings" consist of income (loss)
before income taxes and extraordinary item plus fixed
charges less capitalized interest. "Fixed charges"
consist of interest expense including amortization of
debt expense, one-third of rent expense, which is
deemed to be representative of an interest factor, and
capitalized interest. For the period ended August 25, 1994
earnings were insufficient to cover fixed charges by
$201.2 million.
<PAGE> 1
EXHIBIT 23.2
[KPMG Letterhead]
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
America West Airlines, Inc.:
We consent to the use of our reports incorporated herein by reference and to
the references to our firm under the headings "Selected Financial Data" and
"Experts" in the prospectus.
/s/ KPMG LLP
Phoenix, Arizona
December 22, 1999
<PAGE> 1
[DNV AVITAS LOGO] EXHIBIT 23.3
A DET NORSKE VERITAS COMPANY
December 22, 1999 [DNV LOGO]
America West Airlines, Inc.
4000 E. Sky Harbor Boulevard
Phoenix, Arizona 85034-3899
Re: America West Airlines, Inc.
Pass Through Certificates, Series 1999-1
Ladies and Gentlemen:
We consent to the reference to our name in the text under the headings
"Risk Factors -- Risk Factors Relating to the Certificates and the Exchange
Offer -- Possible Effects if Aircraft Appraisals do not Correspond to the
Realizable Value of Aircraft," "Description of the Aircraft and the Appraisals
- -- The Appraisals", "Experts" and "Appendix II -- Appraisals Letters" in the
Registration Statement on Form S-4 being filed with the Securities and Exchange
Commission. We also consent to the inclusion in the Registration Statement of
the report prepared by us with respect to the Aircraft referred to therein.
Sincerely,
/s/ Susanna Blackman
Susanna Blackman
Manager - Appraisal Operations
S-4
<PAGE> 1
EXHIBIT 23.4
[AVSOLUTIONS, INC. LOGO]
Aviation Solutions
December 22, 1999
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034-3899
Re: America West Airlines, Inc.
Pass Through Certificates, Series 1999-1
----------------------------------------
Ladies and Gentlemen:
We consent to the reference to our name in the text under the
headings "Risk Factors--Risk Factors Relating to the Certificates and the
Exchange Offer--Possible Effects if Aircraft Appraisals do not Correspond to
the Realizable Value of Aircraft", "Description of the Aircraft and the
Appraisals--The Appraisals", "Experts" and "Appendix II--Appraisal Letters" in
the Registration Statement on Form S-4 being filed with the Securities and
Exchange Commission. We also consent to the inclusion in the Registration
Statement of the report prepared by us with respect to the Aircraft referred to
therein.
Sincerely,
/s/ Bryant E. Lynch
Bryant E. Lynch
Manager, Commercial Appraisals
10687 Gaskins Way, Suite 200, Manassas, Virginia 20109-2371, USA
Telephone: 703-330-0461 Fax: 703-330-0581
Email: [email protected]
S-4
<PAGE> 1
Exhibit 23.5
[MORTEN BEYER & AGNEW LETTERHEAD]
December 22, 1999
America West Airlines, Inc.
4000 E. Sky Harbor Boulevard
Phoenix, Arizona 85034-3899
Re: America West Airlines, Inc.
Pass Through Certificates, Series 1999-1
Ladies and Gentlemen:
We Consent to the reference to our name in the text under the headings
"Risk Factors - Risk Factors Relating to the Certificates and the Exchange Offer
- - Possible Effects if Aircraft Appraisals do not Correspond to the Realizable
Value of Aircraft," "Description of the Aircraft and the Appraisals - The
Appraisals", "Experts" and "Appendix II - Appraisal Letters" in the Registration
Statement on Form S-4 being filed with the Securities and Exchange Commission.
We also consent to the inclusion in the Registration Statement of the report
prepared by us with respect to the Aircraft referred to therein.
Sincerely,
/s/ Teo Ozdener
Teo Ozdener
Vice President - Technical
S-4
<PAGE> 1
Exhibit 25.1
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) _______________
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
AMERICA WEST AIRLINES,INC.
(Exact name of obligor as specified in its charter)
Delaware 86-0418245
(State of incorporation) (I.R.S. employer identification no.)
4000 E. Sky Harbor Boulevard
Phoenix, Arizona 85034-3899
(Address of principal executive offices) (Zip Code)
Pass Through Certificates, Series 1999-1C
(Title of the indenture securities)
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the
obligor is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington
Trust Company to commence business and the authorization
of Wilmington Trust Company to exercise corporate trust
powers. Said Charter is incorporated herein by reference to
Registration No. 333-51491/Form S-4 Registration Statement to
Form T-1 filed by Wilmington Trust Company in May 7, 1998, with
respect to 10% Senior Notes Due 2005, Series B of PSINet Inc.
B. Copy of By-Laws of Wilmington Trust Company. Said By-Laws are
incorporated herein by reference to Registration No. 333-
51491/Form S-4 Registration Statement to Form T-1 filed by
Wilmington Trust Company in May 7, 1998, with respect to 10%
Senior Notes Due 2005, Series B of PSINet Inc.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Wilmington Trust Company, a corporation organized and existing under
the laws of Delaware, has duly caused this Statement of Eligibility to be
2
<PAGE> 3
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of Wilmington and State of Delaware on the 20th day of December, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Rosemary Pantano By: /s/ John M. Beeson, Jr.
---------------------- ----------------------------
Assistant Secretary Name: John M. Beeson, Jr.
Title: Vice President
3
<PAGE> 4
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: December 20, 1999 By: /s/John M. Beeson, Jr.
-----------------------
Name: John M. Beeson, Jr.
Title: Vice President
4
<PAGE> 5
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
5
<PAGE> 6
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington, County
of New Castle; the name of its resident agent is WILMINGTON TRUST
COMPANY whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains and
operates branch offices in the City of Newark, New Castle County,
Delaware, the Town of Newport, New Castle County, Delaware, at
Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New
Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation
are to do any or all of the things herein mentioned as fully and to
the same extent as natural persons might or could do and in any part
of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal
at pleasure, to hold, purchase, convey, mortgage or otherwise
deal in real and personal estate and property, and to appoint
such officers and agents as the business of the Corporation
shall
<PAGE> 7
require, to make by-laws not inconsistent with the Constitution
or laws of the United States or of this State, to discount
bills, notes or other evidences of debt, to receive deposits of
money, or securities for money, to buy gold and silver bullion
and foreign coins, to buy and sell bills of exchange, and
generally to use, exercise and enjoy all the powers, rights,
privileges and franchises incident to a corporation which are
proper or necessary for the transaction of the business of the
Corporation hereby created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of such
property, real or personal, against any claim or claims, adverse
to his interest therein, and to prepare and give certificates of
title for any lands or premises in the State of Delaware, or
elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every
description, and to carry on the business of conveyancing in all
its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property of
every sort and kind, from executors, administrators, guardians,
public officers, courts, receivers, assignees, trustees, and
from all fiduciaries, and from all other persons and
individuals, and from all corporations whether state, municipal,
corporate or private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or
underwriting the stock, bonds or other obligations of any
corporation, association, state or municipality, and may receive
and manage any sinking fund therefor on such terms as may be
agreed upon between the two parties, and in like manner may act
as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body
politic, corporation, association or person, either alone or in
conjunction with any other person or persons, corporation or
corporations.
(8) To guarantee the validity, performance or effect of any
contract or
2
<PAGE> 8
agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office,
duty, contract or agreement, either by itself or in conjunction
with any other person, or persons, corporation, or corporations,
or in like manner become surety upon any bond, recognizance,
obligation, judgment, suit, order, or decree to be entered in
any court of record within the State of Delaware or elsewhere,
or which may now or hereafter be required by any law, judge,
officer or court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity in the receiving, holding, managing, and
disposing of any and all estates and property, real, personal or
mixed, and to be appointed as such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so
appointed by any person, corporation, court, officer or
authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity, it shall not
be required to give bond with surety, but its capital stock
shall be taken and held as security for the performance of the
duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise
of any of its powers hereby given, or for the performance of any
of the duties which it may undertake or be called upon to
perform, or for the assumption of any responsibility the said
Corporation may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of
any foreign government or country; to receive, collect, receipt
for, and dispose of interest, dividends and income upon and from
any of the bonds, mortgages, debentures, notes, shares of
capital stock, securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property, any and
all the rights, powers and privileges of individual owners
thereof, including the right to vote thereon; to invest and deal
in and with any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and proper,
and from
3
<PAGE> 9
time to time to vary or realize such investments; to issue bonds
and secure the same by pledges or deeds of trust or mortgages of
or upon the whole or any part of the property held or owned by
the Corporation, and to sell and pledge such bonds, as and when
the Board of Directors shall determine, and in the promotion of
its said corporate business of investment and to the extent
authorized by law, to lease, purchase, hold, sell, assign,
transfer, pledge, mortgage and convey real and personal property
of any name and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred
by the laws of the State of Delaware, it is hereby expressly provided
that the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of
the world.
(2) To acquire the good will, rights, property and franchises
and to undertake the whole or any part of the assets and
liabilities of any person, firm, association or corporation, and
to pay for the same in cash, stock of this Corporation, bonds or
otherwise; to hold or in any manner to dispose of the whole or
any part of the property so purchased; to conduct in any lawful
manner the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and about the
conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and
to lease, sell, exchange, transfer, or in any manner whatever
dispose of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or corporation,
and, without limit as to amount, to draw, make, accept, endorse,
discount, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other negotiable or
transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same
extent as natural persons might or could do, to purchase or
otherwise acquire, to hold, own, to mortgage, sell, convey or
otherwise dispose of, real and personal property, of every class
and description, in any State, District, Territory or Colony of
the United States, and in any foreign country or place.
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited
or restricted by reference to or inference from the
4
<PAGE> 10
terms of any other clause of this or any other paragraph in this
charter, but that the objects, purposes and powers specified in
each of the clauses of this paragraph shall be regarded as
independent objects, purposes and powers.
FOURTH: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock");
and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares
of any one series of Preferred Stock shall be alike in every
particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative.
The voting powers and the preferences and relative, participating,
optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding;
and, subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article FOURTH, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or resolutions
adopted prior to the issuance of any shares of a particular series of
Preferred Stock, the voting powers and the designations, preferences
and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number
may be increased (except where otherwise provided by the Board
of Directors) or decreased (but not below the number of shares
thereof then outstanding) from time to time by like action of
the Board of Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series
shall be paid, the extent of the preference or relation, if any,
of such dividends to the dividends payable on any other class or
classes, or series of the same or other class of stock and
whether such dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares
of any other class or classes or of any series of the same or
any other class or classes of stock of the Corporation
5
<PAGE> 11
and the terms and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices and
the time or times at which, and the terms and conditions on
which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such
series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of
the foregoing include the right, voting as a series or by itself
or together with other series of Preferred Stock or all series
of Preferred Stock as a class, to elect one or more directors of
the Corporation if there shall have been a default in the
payment of dividends on any one or more series of Preferred
Stock or under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends
on the Preferred Stock (fixed in accordance with the provisions of
section (b) of this Article FOURTH), if any, shall have been met and
after the Corporation shall have complied with all the requirements,
if any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts (fixed in accordance with the
provisions of section (b) of this Article FOURTH), and subject further
to any conditions which may be fixed in accordance with the provisions
of section (b) of this Article FOURTH, then and not otherwise the
holders of Common Stock shall be entitled to receive such dividends as
may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if
any, (fixed in accordance with the provisions of section (b) of
this Article FOURTH), to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common Stock
shall be entitled to receive all of the remaining assets of the
Corporation, tangible and intangible, of whatever kind available
for distribution to stockholders ratably in proportion to the
number of shares of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be adopted
by the Board of Directors pursuant to section (b) of this
Article FOURTH, each holder of Common Stock shall have one
6
<PAGE> 12
vote in respect of each share of Common Stock held on all
matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or
of options, warrants or other rights to purchase shares of any class
or series of stock or of other securities of the Corporation shall
have any preemptive right to purchase or subscribe for any unissued
stock of any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or bonds,
certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any
class or series, or carrying any right to purchase stock of any class
or series, but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible into
or exchangeable for stock, or carrying any right to purchase stock,
may be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations,
whether such holders or others, and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case, be
as fixed from time to time by the Board of Directors in the resolution
or resolutions adopted pursuant to authority granted in section (b) of
this Article FOURTH and the consent, by class or series vote or
otherwise, of the holders of such of the series of Preferred Stock as
are from time to time outstanding shall not be required for the
issuance by the Board of Directors of any other series of Preferred
Stock whether or not the powers, preferences and rights of such other
series shall be fixed by the Board of Directors as senior to, or on a
parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors
may provide in the resolution or resolutions as to any series of
Preferred Stock adopted pursuant to section (b) of this Article FOURTH
that the consent of the holders of a majority (or such greater
proportion as shall be therein fixed) of the outstanding shares of
such series voting thereon shall be required for the issuance of any
or all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
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(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more
than twenty-five as fixed from time to time by vote of a majority of
the whole Board, provided, however, that the number of directors shall
not be reduced so as to shorten the term of any director at the time
in office, and provided further, that the number of directors
constituting the whole Board shall be twenty-four until otherwise
fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office for
a term expiring at the next succeeding annual meeting, directors of
the second class shall be elected to hold office for a term expiring
at the second succeeding annual meeting and directors of the third
class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors for
any reason, and any newly created directorships resulting from any
increase in the directors, may be filled by the Board of Directors,
acting by a majority of the directors then in office, although less
than a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the stockholders
shall elect a successor to such director to hold office until the next
election of the class for which such director shall have been chosen
and until his successor shall be elected and qualified. No decrease in
the number of directors shall shorten the term of any incumbent
director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the By-Laws of the Corporation),
any director or the entire Board of Directors of the Corporation may
be removed at any time without cause, but only by the affirmative vote
of the holders of two-thirds or more of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election
of directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage
prepaid, to the Secretary of the Corporation not less than 14 days nor
more
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than 50 days prior to any meeting of the stockholders called for the
election of directors; provided, however, that if less than 21 days'
notice of the meeting is given to stockholders, such written notice
shall be delivered or mailed, as prescribed, to the Secretary of the
Corporation not later than the close of the seventh day following the
day on which notice of the meeting was mailed to stockholders. Notice
of nominations which are proposed by the Board of Directors shall be
given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment
of such nominee and (iii) the number of shares of stock of the
Corporation which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
SIXTH: - The Directors shall choose such officers, agents and servants
as may be provided in the By-Laws as they may from time to time find
necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority of
the whole Board, may designate any of their number to constitute an
Executive Committee, which Committee, to the extent provided in said
resolution, or in the By-Laws of the Company, shall have and may
exercise all of the powers of the Board of Directors in the management
of the business and affairs of the Corporation, and shall have power
to authorize the seal of the Corporation to be affixed to all papers
which may require it.
ELEVENTH: - The private property of the stockholders shall not be
liable for the payment
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of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the
world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by
a vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may
be adopted only by the affirmative vote of the holders of two-thirds
or more of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered
for this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside of the
State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
FIFTEENTH: - (a) (1) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections (b) and
(c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation, would
be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of any
Interested Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate fair
market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the
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Corporation, or any merger or consolidation of the Corporation
with any of its Subsidiaries or any similar transaction (whether
or not with or into or otherwise involving an Interested
Stockholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of
any class of equity or convertible securities of the Corporation
or any Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
FIFTEENTH shall mean any transaction which is referred to in any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article FIFTEENTH
shall not be applicable to any particular business combination
and such business combination shall require only such
affirmative vote as is required by law and any other provisions
of the Charter or Act of Incorporation or By-Laws if such
business combination has been approved by a majority of the
whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual, firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary)
who or which as of the record date for the determination of
stockholders entitled to notice of and to vote on such business
combination, or immediately prior to the consummation of any such
transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within
two years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within
two years prior thereto
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beneficially owned by any Interested Stockholder, and such
assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates
(as hereafter defined) beneficially own, directly or indirectly,
or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of
its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect on December 31, 1981) is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Investment Stockholder set forth in paragraph (2) of
this section (c), the term "Subsidiary" shall mean only a corporation
of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article FIFTEENTH on the
basis of information known to them, (1) the number of Voting
Shares beneficially owned by any person (2) whether a person is
an Affiliate or Associate of another, (3) whether a person has
an
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agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4)
whether the assets subject to any business combination or the
consideration received for the issuance or transfer of
securities by the Corporation, or any Subsidiary has an
aggregate fair market value of $1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and in addition to
any other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of
at least two-thirds of the outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) shall be required
to amend, alter or repeal any provision of Articles FIFTH, THIRTEENTH,
FIFTEENTH or SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be
amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of
the Corporation existing hereunder with respect to any act or
omission occurring prior to the time of such repeal or
modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE> 20
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the Board
of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10) days before said meeting, at
his last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each share of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members, or at the
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call of the Chairman of the Board of Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or divisions of the Company as it may deem
advisable.
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
members
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who shall be selected by the Board of Directors from its own members and who
shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board
of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive
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Committee acting under this section that it shall be to the advantage of the
Company to resume the conduct and management of its affairs and business under
all of the other provisions of these By-Laws.
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Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept and
promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
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(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time
by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place
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of any such absent or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors or
the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors. In the absence of the Chairman of the
Board the President shall have the powers and duties of the Chairman of the
Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
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Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and responsible
for all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from time
to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
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Section 2. Certificates of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of stock
shall be issued only upon giving such security as may be satisfactory to the
Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
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ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors who
serve as members of committees, other than salaried employees of the Company,
shall be paid such reasonable honoraria or fees for services as members of
10
<PAGE> 30
committees as the Board of Directors shall from time to time determine and
directors and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time determine and
shall be paid for such special services so performed reasonable compensation as
may be determined by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a Director or officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under
this Article X is not paid in full within ninety days after a written claim
therefor has been received by the Corporation the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this Article X shall not
be exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these
By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
11
<PAGE> 31
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in whole
or in part, and any new By-Law or By-Laws adopted at any regular or special
meeting of the Board of Directors by a vote of the majority of all the members
of the Board of Directors then in office.
12
<PAGE> 32
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: By:
---------------- --------------------
Name:
Title: Vice President
<PAGE> 33
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ----------------------------------------------------------- ------------------
Name of Bank City
in the State of DELAWARE , at the close of business on September 30, 1999.
----------
ASSETS
<TABLE>
<CAPTION>
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins .... 182,666
Interest-bearing balances .............................. 0
Held-to-maturity securities .............................. 34,128
Available-for-sale securities ............................ 1,644,067
Federal funds sold and securities purchased under
agreements to resell ................................... 259,962
Loans and lease financing receivables:
Loans and leases, net of unearned income ............... 4,251,934
LESS: Allowance for loan and lease losses ............. 71,014
LESS: Allocated transfer risk reserve ................. 0
Loans and leases, net of unearned income, allowance,
and reserve .......................................... 4,180,920
Assets held in trading accounts .......................... 0
Premises and fixed assets (including capitalized
leases) ................................................ 138,196
Other real estate owned .................................. 976
Investments in unconsolidated subsidiaries and
associated companies ................................... 1,452
Customers' liability to this bank on acceptances
outstanding ............................................ 0
Intangible assets ........................................ 5,092
</TABLE>
<PAGE> 34
<TABLE>
<S> <C>
Other assets ............................................. 142,444
Total assets ............................................. 6,589,903
</TABLE>
CONTINUED ON NEXT PAGE
2
<PAGE> 35
LIABILITIES
<TABLE>
<S> <C>
Deposits:
In domestic offices ...................................... 4,886,770
Noninterest-bearing .................................... 1,084,581
Interest-bearing ....................................... 3,802,189
Federal funds purchased and Securities sold under
agreements to repurchase ............................... 387,343
Demand notes issued to the U.S. Treasury ................. 69,491
Trading liabilities (from Schedule RC-D) ................. 0
Other borrowed money: .................................... ///////
With original maturity of one year or less ............. 655,000
With original maturity of more than one year ........... 43,000
Bank's liability on acceptances executed and outstanding.. 0
Subordinated notes and debentures ........................ 0
Other liabilities (from Schedule RC-G) ................... 84,722
Total liabilities ........................................ 6,126,326
EQUITY CAPITAL
Perpetual preferred stock and related surplus ............ 0
Common Stock ............................................. 500
Surplus (exclude all surplus related to preferred stock) . 62,118
Undivided profits and capital reserves ................... 417,321
Net unrealized holding gains (losses) on
available-for-sale securities .......................... (16,362)
Total equity capital ..................................... 463,577
Total liabilities, limited-life preferred stock, and
equity capital ......................................... 6,589,903
</TABLE>
3
<PAGE> 1
EXHIBIT 25.2
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) _____________
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
AMERICA WEST AIRLINES,INC.
(Exact name of obligor as specified in its charter)
Delaware 86-0418245
(State of incorporation) (I.R.S. employer identification no.)
4000 E. Sky Harbor Boulevard
Phoenix, Arizona 85034-3899
(Address of principal executive offices) (Zip Code)
Pass Through Certificates, Series 1999-1G
(Title of the indenture securities)
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the
obligor is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust powers.
Said Charter is incorporated herein by reference to
Registration No. 333-51491/Form S-4 Registration Statement to
Form T-1 filed by Wilmington Trust Company in May 7, 1998,
with respect to 10% Senior Notes Due 2005, Series B of PSINet
Inc.
B. Copy of By-Laws of Wilmington Trust Company. Said By-Laws are
incorporated herein by reference to Registration No. 333-
51491/Form S-4 Registration Statement to Form T-1 filed by
Wilmington Trust Company in May 7, 1998, with respect to 10%
Senior Notes Due 2005, Series B of PSINet Inc.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Wilmington Trust Company, a corporation organized and existing under
the laws of Delaware, has duly caused this Statement of Eligibility to be
2
<PAGE> 3
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of Wilmington and State of Delaware on the 20th day of December, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/Rosemary Pantano By: /s/John M. Beeson, Jr.
------------------------ --------------------------------
Assistant Secretary Name: John M. Beeson, Jr.
Title: Vice President
3
<PAGE> 4
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: December 20, 1999 By: /s/John M. Beeson, Jr.
--------------------------------
Name: John M. Beeson, Jr.
Title: Vice President
<PAGE> 5
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
5
<PAGE> 6
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is WILMINGTON
TRUST COMPANY whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains
and operates branch offices in the City of Newark, New Castle
County, Delaware, the Town of Newport, New Castle County, Delaware,
at Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate
branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of
Wilmington, New Castle County, Delaware, and such other branch
offices or places of business as may be authorized from time to time
by the agency or agencies of the government of the State of Delaware
empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this
Corporation are to do any or all of the things herein mentioned as
fully and to the same extent as natural persons might or could do
and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of
law or equity and to make and use a common seal, and alter
the seal at pleasure, to hold, purchase, convey, mortgage or
otherwise deal in real and personal estate and property, and
to appoint such officers and agents as the business of the
Corporation shall
<PAGE> 7
require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State,
to discount bills, notes or other evidences of debt, to
receive deposits of money, or securities for money, to buy
gold and silver bullion and foreign coins, to buy and sell
bills of exchange, and generally to use, exercise and enjoy
all the powers, rights, privileges and franchises incident
to a corporation which are proper or necessary for the
transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of
such property, real or personal, against any claim or
claims, adverse to his interest therein, and to prepare and
give certificates of title for any lands or premises in the
State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management of
funds, and the purchase, sale, management and disposal of
property of all descriptions, and to prepare and execute all
papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property
of every sort and kind, from executors, administrators,
guardians, public officers, courts, receivers, assignees,
trustees, and from all fiduciaries, and from all other
persons and individuals, and from all corporations whether
state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two
parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state, municipality,
body politic, corporation, association or person, either
alone or in conjunction with any other person or persons,
corporation or corporations.
(8) To guarantee the validity, performance or effect of any
contract or
2
<PAGE> 8
agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person,
or persons, for the faithful performance of any trust,
office, duty, contract or agreement, either by itself or in
conjunction with any other person, or persons, corporation,
or corporations, or in like manner become surety upon any
bond, recognizance, obligation, judgment, suit, order, or
decree to be entered in any court of record within the
State of Delaware or elsewhere, or which may now or
hereafter be required by any law, judge, officer or court
in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian, bailee, or
in any other trust capacity in the receiving, holding,
managing, and disposing of any and all estates and property,
real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian or bailee
by any persons, corporations, court, officer, or authority,
in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other
trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon it
by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake or
be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of
any private, public or municipal corporation within and
without the State of Delaware, or of the Government of the
United States, or of any state, territory, colony, or
possession thereof, or of any foreign government or
country; to receive, collect, receipt for, and dispose of
interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and
to exercise in respect of all such bonds, mortgages,
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other
property, any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys
of the Corporation upon such securities and in such manner
as it may think fit and proper, and from
3
<PAGE> 9
time to time to vary or realize such investments; to issue
bonds and secure the same by pledges or deeds of trust or
mortgages of or upon the whole or any part of the property
held or owned by the Corporation, and to sell and pledge
such bonds, as and when the Board of Directors shall
determine, and in the promotion of its said corporate
business of investment and to the extent authorized by law,
to lease, purchase, hold, sell, assign, transfer, pledge,
mortgage and convey real and personal property of any name
and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to the
same extent as natural persons might or could do, and in any
part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association or
corporation, and to pay for the same in cash, stock of this
Corporation, bonds or otherwise; to hold or in any manner to
dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any
part of any business so acquired, and to exercise all the
powers necessary or convenient in and about the conduct and
management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien,
and to lease, sell, exchange, transfer, or in any manner
whatever dispose of property, real, personal or mixed,
wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw, make,
accept, endorse, discount, execute and issue promissory
notes, drafts, bills of exchange, warrants, bonds,
debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of
its operations and businesses, without restriction to the
same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and in
any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said paragraph)
be nowise limited or restricted by reference to or inference
from the
4
<PAGE> 10
terms of any other clause of this or any other paragraph in
this charter, but that the objects, purposes and powers
specified in each of the clauses of this paragraph shall be
regarded as independent objects, purposes and powers.
FOURTH: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one
million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par
value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par
value $1.00 per share (hereinafter referred to as "Common
Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board
of Directors each of said series to be distinctly designated. All
shares of any one series of Preferred Stock shall be alike in every
particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative.
The voting powers and the preferences and relative, participating,
optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time
outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article FOURTH, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by
resolution or resolutions adopted prior to the issuance of any
shares of a particular series of Preferred Stock, the voting powers
and the designations, preferences and relative, optional and other
special rights, and the qualifications, limitations and restrictions
of such series, including, but without limiting the generality of
the foregoing, the following:
(1) The distinctive designation of, and the number of shares
of Preferred Stock which shall constitute such series, which
number may be increased (except where otherwise provided by
the Board of Directors) or decreased (but not below the
number of shares thereof then outstanding) from time to time
by like action of the Board of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred Stock
of such series shall be paid, the extent of the preference
or relation, if any, of such dividends to the dividends
payable on any other class or classes, or series of the same
or other class of stock and whether such dividends shall be
cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of
such series to convert the same into or exchange the same
for, shares of any other class or classes or of any series
of the same or any other class or classes of stock of the
Corporation
5
<PAGE> 11
and the terms and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices
and the time or times at which, and the terms and conditions
on which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of
such series; and
(7) The voting powers, if any, of the holders of such series
of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as a
series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a class,
to elect one or more directors of the Corporation if there
shall have been a default in the payment of dividends on any
one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of
Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any, shall
have been met and after the Corporation shall have complied with all
the requirements, if any, with respect to the setting aside of sums
as sinking funds or redemption or purchase accounts (fixed in
accordance with the provisions of section (b) of this Article
FOURTH), and subject further to any conditions which may be fixed in
accordance with the provisions of section (b) of this Article
FOURTH, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to
time by the Board of Directors.
(2) After distribution in full of the preferential amount,
if any, (fixed in accordance with the provisions of section
(b) of this Article FOURTH), to be distributed to the
holders of Preferred Stock in the event of voluntary or
involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders
of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares
of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b) of
this Article FOURTH, each holder of Common Stock shall have
one
6
<PAGE> 12
vote in respect of each share of Common Stock held on all
matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock
or of options, warrants or other rights to purchase shares of any
class or series of stock or of other securities of the Corporation
shall have any preemptive right to purchase or subscribe for any
unissued stock of any class or series or any additional shares of
any class or series to be issued by reason of any increase of the
authorized capital stock of the Corporation of any class or series,
or bonds, certificates of indebtedness, debentures or other
securities convertible into or exchangeable for stock of the
Corporation of any class or series, or carrying any right to
purchase stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of
stock or securities convertible into or exchangeable for stock, or
carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons,
firms, corporations or associations, whether such holders or others,
and upon such terms as may be deemed advisable by the Board of
Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case,
be as fixed from time to time by the Board of Directors in the
resolution or resolutions adopted pursuant to authority granted in
section (b) of this Article FOURTH and the consent, by class or
series vote or otherwise, of the holders of such of the series of
Preferred Stock as are from time to time outstanding shall not be
required for the issuance by the Board of Directors of any other
series of Preferred Stock whether or not the powers, preferences and
rights of such other series shall be fixed by the Board of Directors
as senior to, or on a parity with, the powers, preferences and
rights of such outstanding series, or any of them; provided,
however, that the Board of Directors may provide in the resolution
or resolutions as to any series of Preferred Stock adopted pursuant
to section (b) of this Article FOURTH that the consent of the
holders of a majority (or such greater proportion as shall be
therein fixed) of the outstanding shares of such series voting
thereon shall be required for the issuance of any or all other
series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series
of Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and
for such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
7
<PAGE> 13
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a
majority of the stock of the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of
directors constituting the entire Board shall be not less than five
nor more than twenty-five as fixed from time to time by vote of a
majority of the whole Board, provided, however, that the number of
directors shall not be reduced so as to shorten the term of any
director at the time in office, and provided further, that the
number of directors constituting the whole Board shall be
twenty-four until otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office
for a term expiring at the next succeeding annual meeting, directors
of the second class shall be elected to hold office for a term
expiring at the second succeeding annual meeting and directors of
the third class shall be elected to hold office for a term expiring
at the third succeeding annual meeting. Any vacancies in the Board
of Directors for any reason, and any newly created directorships
resulting from any increase in the directors, may be filled by the
Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen
shall hold office until the next annual election of directors. At
such election, the stockholders shall elect a successor to such
director to hold office until the next election of the class for
which such director shall have been chosen and until his successor
shall be elected and qualified. No decrease in the number of
directors shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the ByLaws of the Corporation),
any director or the entire Board of Directors of the Corporation may
be removed at any time without cause, but only by the affirmative
vote of the holders of two-thirds or more of the outstanding shares
of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class)
cast at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice in
writing, delivered or mailed by first class United States mail,
postage prepaid, to the Secretary of the Corporation not less than
14 days nor more
8
<PAGE> 14
than 50 days prior to any meeting of the stockholders called for the
election of directors; provided, however, that if less than 21 days'
notice of the meeting is given to stockholders, such written notice
shall be delivered or mailed, as prescribed, to the Secretary of the
Corporation not later than the close of the seventh day following
the day on which notice of the meeting was mailed to stockholders.
Notice of nominations which are proposed by the Board of Directors
shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each
nominee proposed in such notice, (ii) the principal occupation or
employment of such nominee and (iii) the number of shares of stock
of the Corporation which are beneficially owned by each such
nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may be
taken without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
SIXTH: - The Directors shall choose such officers, agents and
servants as may be provided in the By-Laws as they may from time to
time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority
of the whole Board, may designate any of their number to constitute
an Executive Committee, which Committee, to the extent provided in
said resolution, or in the By-Laws of the Company, shall have and
may exercise all of the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and shall
have power to authorize the seal of the Corporation to be affixed to
all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be
liable for the payment
9
<PAGE> 15
of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the
world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation
by a vote of the majority of the entire Board. The stockholders may
make, alter or repeal any By-Law whether or not adopted by them,
provided however, that any such additional By-Laws, alterations or
repeal may be adopted only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be
from time to time designated by them.
FIFTEENTH: - (a)(1) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections (b) and
(c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair
market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
10
<PAGE> 16
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect,
directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or
convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested
Stockholder, or any Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
FIFTEENTH shall mean any transaction which is referred to in
any one or more of clauses (A) through (E) of paragraph 1 of
the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH
shall not be applicable to any particular business
combination and such business combination shall require only
such affirmative vote as is required by law and any other
provisions of the Charter or Act of Incorporation or By-Laws
if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual, firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any
Subsidiary) who or which as of the record date for the determination
of stockholders entitled to notice of and to vote on such business
combination, or immediately prior to the consummation of any such
transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at any
time within two years prior thereto
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<PAGE> 17
beneficially owned by any Interested Stockholder, and such
assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving a
public offering within the meaning of the Securities Act of
1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own, directly
or indirectly, or
(B) which such person or any of its Affiliates or Associates
has (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (ii) the right to vote
pursuant to any agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by
any other person with which such first mentioned person or
any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock
of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect on December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall mean
only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty
to determine for the purposes of this Article FIFTEENTH on
the basis of information known to them, (1) the number of
Voting Shares beneficially owned by any person (2) whether a
person is an Affiliate or Associate of another, (3) whether
a person has an
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<PAGE> 18
agreement, arrangement or understanding with another as to
the matters referred to in paragraph (3) of section (c), or
(4) whether the assets subject to any business combination
or the consideration received for the issuance or transfer
of securities by the Corporation, or any Subsidiary has an
aggregate fair market value of $1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or
Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this Charter
or Act of Incorporation by the By-Laws), the affirmative vote of the
holders of at least two-thirds of the outstanding shares of the
capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class)
shall be required to amend, alter or repeal any provision of
Articles FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter
or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable
to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a Director, except to the extent such
exemption from liability or limitation thereof is not permitted
under the Delaware General Corporation Laws as the same exists or
may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with respect
to any act or omission occurring prior to the time of such
repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE> 20
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the Board
of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10) days before said meeting, at
his last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each share of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members, or at the
<PAGE> 21
call of the Chairman of the Board of Directors or the President.
Section 6. Special meetings of the Board of Directors may be called
at any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall
be necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board of Directors,
although less than a quorum, shall have the right to elect the successor who
shall hold office for the remainder of the full term of the class of directors
in which the vacancy occurred, and until such director's successor shall have
been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or divisions of the Company as it may deem
advisable.
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than
nine members
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<PAGE> 22
who shall be selected by the Board of Directors from its own members and who
shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board
of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be
kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive
3
<PAGE> 23
Committee acting under this section that it shall be to the advantage of the
Company to resume the conduct and management of its affairs and business under
all of the other provisions of these By-Laws.
4
<PAGE> 24
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept
and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who
shall be selected by the Board of Directors from its own members, none of whom
shall be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
<PAGE> 25
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any
time by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place
6
<PAGE> 26
of any such absent or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at
all meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time confer
and direct. He shall also exercise such powers and perform such duties as may
from time to time be agreed upon between himself and the President of the
Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors or
the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors. In the absence of the Chairman of the
Board the President shall have the powers and duties of the Chairman of the
Board.
Section 4. The Chairman of the Board of Directors or the President
as designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
7
<PAGE> 27
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and responsible
for all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the Controller and
such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the Auditor and
such duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank
to all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices, subject
to the direction of the Board of Directors, the Executive Committee, Chairman of
the Board of Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of
the Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
8
<PAGE> 28
Section 2. Certificates of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of stock
shall be issued only upon giving such security as may be satisfactory to the
Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to
fix in advance a record date for the determination of the stockholders entitled
to notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
9
<PAGE> 29
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar
year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors who
serve as members of committees, other than salaried employees of the Company,
shall be paid such reasonable honoraria or fees for services as members of
10
<PAGE> 30
committees as the Board of Directors shall from time to time determine and
directors and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time determine and
shall be paid for such special services so performed reasonable compensation
as may be determined by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending
any proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a Director or officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under
this Article X is not paid in full within ninety days after a written claim
therefor has been received by the Corporation the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this Article X shall not
be exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these
By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
11
<PAGE> 31
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular or
special meeting of the Board of Directors by a vote of the majority of all the
members of the Board of Directors then in office.
12
<PAGE> 32
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: ________________ By: ________________________
Name:
Title: Vice President
<PAGE> 33
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ---------------------------------------------------------- -----------------
Name of Bank City
in the State of DELAWARE , at the close of business on September 30, 1999.
------------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............................................ 182,666
Interest-bearing balances...................................................................... 0
Held-to-maturity securities................................................................................ 34,128
Available-for-sale securities.............................................................................. 1,644,067
Federal funds sold and securities purchased under agreements to resell..................................... 259,962
Loans and lease financing receivables:
Loans and leases, net of unearned income ........................... 4,251,934
LESS: Allowance for loan and lease losses ......................... 71,014
LESS: Allocated transfer risk reserve ............................. 0
Loans and leases, net of unearned income, allowance, and reserve.............................. 4,180,920
Assets held in trading accounts........................................................................... 0
Premises and fixed assets (including capitalized leases).................................................. 138,196
Other real estate owned................................................................................... 976
Investments in unconsolidated subsidiaries and associated companies....................................... 1,452
Customers' liability to this bank on acceptances outstanding.............................................. 0
Intangible assets......................................................................................... 5,092
</TABLE>
<PAGE> 34
<TABLE>
<S> <C>
Other assets.............................................................................................. 142,444
Total assets.............................................................................................. 6,589,903
</TABLE>
CONTINUED ON NEXT PAGE
2
<PAGE> 35
<TABLE>
<S> <C> <C>
LIABILITIES
Deposits:
In domestic offices..................................................................................... 4,886,770
Noninterest-bearing .............................................. 1,084,581
Interest-bearing ................................................. 3,802,189
Federal funds purchased and Securities sold under agreements to repurchase.............................. 387,343
Demand notes issued to the U.S. Treasury................................................................ 69,491
Trading liabilities (from Schedule RC-D)................................................................ 0
Other borrowed money:................................................................................... ///////
With original maturity of one year or less.................................................. 655,000
With original maturity of more than one year................................................ 43,000
Bank's liability on acceptances executed and outstanding................................................ 0
Subordinated notes and debentures....................................................................... 0
Other liabilities (from Schedule RC-G).................................................................. 84,722
Total liabilities....................................................................................... 6,126,326
EQUITY CAPITAL
Perpetual preferred stock and related surplus........................................................... 0
Common Stock............................................................................................ 500
Surplus (exclude all surplus related to preferred stock)................................................ 62,118
Undivided profits and capital reserves.................................................................. 417,321
Net unrealized holding gains (losses) on available-for-sale securities.................................. (16,362)
Total equity capital.................................................................................... 463,577
Total liabilities, limited-life preferred stock, and equity capital..................................... 6,589,903
</TABLE>
3
<PAGE> 1
EXHIBIT 99.1
LETTER OF TRANSMITTAL
AMERICA WEST AIRLINES, INC.
OFFER TO EXCHANGE
PASS THROUGH CERTIFICATES, SERIES 1999-1,
WHICH HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
FOR ANY AND ALL OUTSTANDING
PASS THROUGH CERTIFICATES, SERIES 1999-1
PURSUANT TO THE PROSPECTUS, DATED , 1999.
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M. NEW YORK CITY TIME, ON
, 2000, UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERS MAY
BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON ,
2000.
WILMINGTON TRUST COMPANY
EXCHANGE AGENT
<TABLE>
<S> <C>
By Mail or Overnight Delivery: By Hand:
Wilmington Trust Company Wilmington Trust Company
1100 North Market Street 1105 North Market Street, 1st Floor
Wilmington, Delaware 19890-0001 Wilmington, Delaware 19890
Attention: Kristin Long Attention: Corporate Trust Operations
</TABLE>
Facsimile Transmission:
(302) 651-1079
Confirm by Telephone:
(302) 651-1562
Kristin Long
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR
TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL
NOT CONSTITUTE A VALID DELIVERY.
<PAGE> 2
The undersigned acknowledges receipt of the Prospectus, dated (the
"Prospectus"), of America West Airlines, Inc., a Delaware corporation (the
"Company" or "America West"), and this Letter of Transmittal (this "Letter"),
which together constitute the offer (the "Exchange Offer") to exchange an
aggregate principal amount of up to $253,826,000 of Pass Through Certificates,
Series 1999-1, which have been registered under the Securities Act of 1933, as
amended (the "New Certificates"), for an equal principal amount of the
outstanding Pass Through Certificates, Series 1999-1 (the "Old Certificates").
The Exchange Offer is being made in order to satisfy certain obligations of the
Company contained in the Exchange and Registration Rights Agreement, dated as of
September 21, 1999, between the Company and the Initial Purchasers named therein
(the "Registration Rights Agreement").
For each Old Certificate accepted for exchange, the holder of such Old
Certificate (the "Holder") will receive a New Certificate having a principal
amount equal to that of the surrendered Old Certificate. New Certificates will
accrue interest at the applicable per annum rate for such New Certificates as
set forth on the cover page of the Prospectus, from the date on which the Old
Certificates surrendered in exchange therefor were originally issued (the
"Issuance Date"). Interest on the New Certificates is payable on January 2 and
July 2 of each year, commencing January 2, 2000, subject to the terms of the
Intercreditor Agreement (as defined in the Prospectus).
In the event that neither the consummation of the Exchange Offer nor the
declaration by the Securities and Exchange Commission of a Shelf Registration
Statement relating to the sale of the Old Certificates to be effective (each a
"Registration Event") occurs on or prior to the 210th calendar day after the
Issuance Date, the interest rate per annum passed through to holders of Old
Certificates shall be increased by 0.50% from and including such 210th day to
but excluding the earlier of (i) the date on which a Registration Event occurs
and (ii) the date on which all of the Old Certificates otherwise become
transferable by Certificateholders (other than affiliates or former affiliates
of America West) without further registration under the Securities Act. In the
event that such Shelf Registration Statement ceases to be effective at any time
during the period specified by the Registration Rights Agreement for more than
60 days, whether or not consecutive, during any 12-month period, the interest
rate per annum passed through to the holders of Old Certificates shall be
increased by 0.50% from the 61st day of the applicable 12-month period such
Shelf Registration Statement ceases to be effective until such time as such
Shelf Registration Statement again becomes effective (or, if earlier, the end of
such period specified by the Registration Rights Agreement).
The Company reserves the right, at any time or from time to time, to extend
the Exchange Offer at its discretion, in which event the term "Expiration Date"
shall mean the latest time and date to which the Exchange Offer is extended. The
Company shall notify the holders of the Old Certificates of any extension by
means of a press release or other public announcement prior to 9:00 A.M., New
York City time, on the next business day after the previously scheduled
Expiration Date.
This Letter is to be completed by a holder of Old Certificates if Old
Certificates are to be forwarded herewith or if a tender of Old Certificates is
to be made by book-entry transfer through the Automated Tender Offer Program
("ATOP") at The Depository Trust Company (the "DTC") pursuant to the procedure
set forth in "The Exchange Offer -- Book-Entry Transfer" section of the
Prospectus.
Holders who are participants in DTC ("DTC Participants") tendering by
book-entry transfer must execute such tender through ATOP on or prior to the
Expiration Date. DTC will verify such acceptance, execute a book-entry transfer
of the tendered Old Certificates into the Exchange Agent's account at DTC and
then send to the Exchange Agent confirmation of such book-entry transfer
("Book-Entry Confirmation") including an agent's message ("Agent's Message")
confirming that DTC has received an express acknowledgment from such Holder that
such Holder has received and agrees to be bound by this Letter of Transmittal
and that the Trust and the Company may enforce this Letter of Transmittal
against such Holder. The book-entry confirmation must be received by the
Exchange Agent in order for the tender relating thereto to be effective.
Book-entry transfer to DTC in accordance with DTC's procedures does not
constitute delivery of the book-entry confirmation to the Exchange Agent.
If the tender is not made through ATOP, Old Certificates, as well as this
Letter of Transmittal (or facsimile hereof), properly completed and duly
executed, with any required signature guarantees, and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
at its address set forth herein on or prior to the Expiration Date in order for
such tender to be effective.
<PAGE> 3
Holders of Old Certificates whose certificates are not immediately
available, or who are unable to deliver their certificates or confirmation of
the book-entry tender of their Old Certificates and all other documents required
by this Letter to the Exchange Agent on or prior to the Expiration Date, must
tender their Old Certificates according to the guaranteed delivery procedures
set forth in "The Exchange Offer -- Guaranteed Delivery Procedures" section of
the Prospectus. See Instruction 1.
THE METHOD OF DELIVERY OF THE BOOK-ENTRY CONFIRMATION OR OLD CERTIFICATES,
THIS TRANSMITTAL LETTER, AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND
SOLE RISK OF THE TENDERING HOLDER, AND THE DELIVERY WILL BE DEEMED MADE ONLY
WHEN ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED
MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, OR OVERNIGHT DELIVERY
SERVICE IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
The undersigned has completed the appropriate boxes below and signed this
Letter to indicate the action the undersigned desires to take with respect to
the Exchange Offer.
List below the Old Certificates to which this Letter relates. If the space
provided below is inadequate, the certificate numbers and principal amount of
Old Certificates should be listed on a separate signed schedule affixed hereto.
<TABLE>
<S> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OLD CERTIFICATES
- ---------------------------------------------------------------------------------------------------------------------------------
(2)
(1) AGGREGATE PRINCIPAL (3)
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) CERTIFICATE AMOUNT OF OLD PRINCIPAL AMOUNT
(PLEASE FILL IN, IF BLANK) NUMBERS* CERTIFICATES TENDERED**
- ---------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
TOTAL:
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
* Need not be completed by Holders of Notes being tendered by book-entry
transfer (see below).
** Unless otherwise indicated, it will be assumed that all Notes represented by
certificates delivered to the Depositary are being tendered. See Instruction
1.
2
<PAGE> 4
[ ] CHECK HERE IF TENDERED OLD CERTIFICATES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE
BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
--------------------------------------------
Account Number: Transaction Code Number:
----------------- --------------
[ ] CHECK HERE IF TENDERED OLD CERTIFICATES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s): ------------------------------------------
Window Ticket Number (if any): --------------------------------------------
Date of Execution of Notice of Guaranteed Delivery: -----------------------
Name of Institution which guaranteed delivery:-----------------------------
IF DELIVERED BY BOOK-ENTRY TRANSFER, COMPLETE THE FOLLOWING:
Account Number: Transaction Code Number:
------------------ --------------
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name: ---------------------------------------------------------------------
Address: ------------------------------------------------------------------
3
<PAGE> 5
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the aggregate principal amount of Old
Certificates indicated above. Subject to, and effective upon, the acceptance for
exchange of the Old Certificates tendered hereby, the undersigned hereby sells,
assigns and transfers to, or upon the order of, the Company all right, title and
interest in and to such Old Certificates as are being tendered hereby.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Old
Certificates tendered hereby and that the Company will acquire good and
unencumbered title thereto, free and clear of all liens, restrictions, charges
and encumbrances and not subject to any adverse claim when the same are accepted
by the Company. The undersigned hereby further represents that any New
Certificates acquired in exchange for Old Certificates tendered hereby will have
been acquired in the ordinary course of business of the person receiving such
New Certificates, whether or not such person is the undersigned, that neither
the holder of such Old Certificates nor any such other person is engaged in, or
intends to engage in a distribution of such New Certificates, or has an
arrangement or understanding with any person to participate in the distribution
of such New Certificates, and that neither the holder of such Old Certificates
nor any such other person is an "affiliate," as defined in Rule 405 under the
Securities Act of 1933, as amended (the "Securities Act"), of the Company.
The undersigned also acknowledges that this Exchange Offer is being made
based upon the Company's understanding of an interpretation by the staff of the
Securities and Exchange Commission (the "Commission") as set forth in no-action
letters issued to third parties, including Exxon Capital Holdings Corporation,
SEC No-Action Letter (available May 13, 1988) (the "Exxon Capital Letter"),
Morgan Stanley & Co. Incorporated, SEC No-Action Letter (available June 5, 1991)
(the "Morgan Stanley Letter") and Shearman & Sterling, SEC No-Action Letter
(available July 2, 1993) (the "Shearman & Sterling Letter"), that the New
Certificates issued in exchange for the Old Certificates pursuant to the
Exchange Offer may be offered for resale, resold and otherwise transferred by
holders thereof (other than a broker-dealer who acquires such New Certificates
directly from the Company for resale pursuant to Rule 144A under the Securities
Act or any other available exemption under the Securities Act or any such holder
that is an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act), without compliance with the registration and prospectus
delivery provisions of the Securities Act, provided that such New Certificates
are acquired in the ordinary course of such holders' business and such holders
are not engaged in, and do not intend to engage in, a distribution of such New
Certificates and have no arrangement with any person to participate in the
distribution of such New Certificates.
If a holder of Old Certificates is engaged in or intends to engage in a
distribution of the New Certificates or has any arrangement or understanding
with respect to the distribution of the New Certificates to be acquired pursuant
to the Exchange Offer, such holder could not rely on the applicable
interpretations of the staff of the Commission and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any secondary resale transaction. If the undersigned is a
broker-dealer that will receive New Certificates for its own account in exchange
for Old Certificates, it represents that the Old Certificates to be exchanged
for the New Certificates were acquired by it as a result of market-making
activities or other trading activities and acknowledges that it will deliver a
prospectus in connection with any resale of such New Certificates; however, by
so acknowledging and by delivering a prospectus, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Old Certificates tendered hereby. All
authority conferred or agreed to be conferred in this Letter and every
obligation of the undersigned hereunder shall be binding upon the successors,
assigns, heirs, executors, administrators, trustees in bankruptcy and legal
representatives of the undersigned and shall not be affected by, and shall
survive, the death or incapacity of the undersigned. This tender may be
withdrawn only in accordance with the procedures set forth in "The Exchange
Offer -- Withdrawal of Tenders" section of the Prospectus.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, please deliver the New Certificates (and, if applicable,
substitute certificates representing Old Certificates for any Old Certificates
not exchanged) in the name of the undersigned or, in the case of a book-entry
delivery of Old Certificates, please credit the account indicated above
maintained at the Book-Entry Transfer Facility. Similarly, unless otherwise
indicated under the
4
<PAGE> 6
box entitled "Special Delivery Instructions" below, please send the New
Certificates (and, if applicable, substitute certificates representing Old
Certificates for any Old Certificates not exchanged) to the undersigned at the
address shown above in the box entitled "Description of Old Certificates."
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF OLD
CERTIFICATES" ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE TENDERED THE
OLD CERTIFICATES AS SET FORTH IN SUCH BOX ABOVE.
5
<PAGE> 7
- ------------------------------------------------------------
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4)
- ------------------------------------------------------------
To be completed ONLY if certificates for Old Certificates not exchanged
and/or New Certificates are to be issued in the name of and sent to someone
other than the person(s) whose signature(s) appear(s) on this Letter below, or
if Old Certificates delivered by book-entry transfer which are not accepted
for exchange are to be returned by credit to an account maintained at the
Book-Entry Transfer Facility other than the account indicated above.
Issue New Certificates and/or Old Certificates to:
Name(s):
-----------------------------------------------
(PLEASE TYPE OR PRINT)
-----------------------------------------------------------
Address(es):
--------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
(INCLUDING ZIP CODE)
-----------------------------------------------------------
SOCIAL SECURITY OR EMPLOYER IDENTIFICATION NUMBER
[ ] Credit unexchanged Old Certificates delivered by book-entry transfer to
the Book-Entry Transfer Facility account set forth below.
-----------------------------------------------------------
(BOOK-ENTRY TRANSFER FACILITY
ACCOUNT NUMBER, IF APPLICABLE)
- ------------------------------------------------------------
- ------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4)
- ------------------------------------------------------------
To be completed ONLY if certificates for Old Certificates not exchanged
and/or New Certificates are to be sent to someone other than the person(s)
whose signature(s) appear(s) on this letter below, or to the undersigned at an
address other than shown in the box entitled "Description of Old Certificates"
on this Letter above.
Mail New Certificates and/or Old Certificates to:
Name(s):
-----------------------------------------------
(PLEASE TYPE OR PRINT)
-----------------------------------------------------------
Address:
-------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
(INCLUDING ZIP CODE)
- ------------------------------------------------------------
IMPORTANT: THIS LETTER OR A FACSIMILE HEREOF (TOGETHER WITH THE CERTIFICATES
FOR OLD CERTIFICATES OR A BOOK-ENTRY CONFIRMATION AND ALL OTHER REQUIRED
DOCUMENTS OR THE NOTICE OF GUARANTEED DELIVERY) MUST BE RECEIVED BY THE EXCHANGE
AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
PLEASE READ THIS LETTER OF TRANSMITTAL CAREFULLY
BEFORE COMPLETING ANY BOX ABOVE.
6
<PAGE> 8
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)
(COMPLETE ACCOMPANYING SUBSTITUTE FORM W-9)
<TABLE>
<S> <C>
- -------------------------------------------------------- --------------------------------------------------------
(SIGNATURE(S) OF OWNER(S))
Date: Date:
Area Code and Telephone Number:
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
If a holder is tendering any Old Certificates, this Letter must be signed by the
registered holder(s) as the name(s) appear(s) on the certificate(s) for the Old
Certificates or by any person(s) authorized to become registered holder(s) by
endorsements and documents transmitted herewith. If signature is by a trustee,
executor, administrator, guardian, officer or other person acting in a fiduciary
or representative capacity, please set forth full title. See Instruction 3.
Name(s):
------------------------------------------------------------------------
(PLEASE TYPE OR PRINT)
Capacity:
------------------------------------------------------------------------
Address:
-------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(INCLUDING ZIP CODE)
SIGNATURE GUARANTEE
(IF REQUIRED BY INSTRUCTION 3)
Authorized Signature:
----------------------------------------------------------------
Title:
---------------------------------------------------------------------------
Name and Firm:
-------------------------------------------------------------------
Dated: ________________________
7
<PAGE> 9
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Offer to Exchange Pass
Through Certificates, Series 1999-1, which have been registered under the
Securities Act of 1933, as amended, for any and all outstanding Pass Through
Certificates, Series 1999-1.
1. DELIVERY OF THIS LETTER AND OLD CERTIFICATES; GUARANTEED DELIVERY
PROCEDURES.
This Letter is to be completed by holders of Old Certificates if
certificates are to be forwarded herewith or if tenders are to be made pursuant
to the procedures for delivery by book-entry transfer set forth in "The Exchange
Offer -- Book-Entry Transfer" section of the Prospectus. Certificates for all
physically tendered Old Certificates, or Book-Entry Confirmation, as the case
may be, as well as a properly completed and duly executed Letter of Transmittal
(or facsimile thereof) and any other documents required by this Letter, must be
received by the Exchange Agent at the address set forth herein on or prior to
the Expiration Date, or the tendering holder must comply with the guaranteed
delivery procedures set forth below. Old Certificates tendered hereby must be in
denominations of $1,000 and any integral multiple thereof.
Holders who are DTC Participants tendering by book-entry transfer must
execute such tender through DTC's ATOP system. A Holder using ATOP should
transmit its acceptance to DTC on or prior to the Expiration Date. DTC will
verify such acceptance, execute a book-entry transfer of the tendered Old
Certificates into the Exchange Agent's account at DTC and then send to the
Exchange Agent a Book-Entry Confirmation, including an Agent's Message
confirming that DTC has received an express acknowledgment from such Holder that
such Holder has received and agrees to be bound by this Letter of Transmittal
and that the Trust and the Company may enforce this Letter of Transmittal
against such Holder. The Book-Entry Confirmation must be received by the
Exchange Agent in order for the tender relating thereto to be effective.
Book-entry transfer to DTC in accordance with DTC's procedure does not
constitute delivery of the Book-Entry Confirmation to the Exchange Agent.
Holders of Old Certificates whose certificates for Old Certificates are not
immediately available or who cannot deliver their certificates and all other
required documents to the Exchange Agent on or prior to the Expiration Date, or
who cannot complete the procedure for book-entry transfer on a timely basis, may
tender their Old Certificates pursuant to the guaranteed delivery procedures set
forth in "The Exchange Offer -- Guaranteed Delivery Procedures" section of the
Prospectus. Pursuant to such procedures, (i) such tender must be made through an
Eligible Institution (as defined below), (ii) prior to the Expiration Date, the
Exchange Agent must receive from such Eligible Institution a properly completed
and duly executed Letter of Transmittal (or facsimile thereof) and Notice of
Guaranteed Delivery, substantially in the form provided by the Company (by
facsimile transmission, mail or hand delivery), setting forth the name and
address of the holder of Old Certificates and the amount of Old Certificates
tendered, stating that the tender is being made thereby and guaranteeing that
within three New York Stock Exchange ("NYSE") trading days after the date of
execution of the Notice of Guaranteed Delivery, the certificates for all
physically tendered Old Certificates, or a Book-Entry Confirmation, as the case
may be, and any other documents required by this Letter will be deposited by the
Eligible Institution with the Exchange Agent, and (iii) the certificates for all
physically tendered Old Certificates, in proper form for transfer, or Book-Entry
Confirmation, as the case may be, and all other documents required by this
Letter, are received by the Exchange Agent within three NYSE trading days after
the date of execution of the Notice of Guaranteed Delivery.
A Notice of Guaranteed Delivery may be delivered by hand or transmitted by
facsimile or mail to the Exchange Agent, and must include a guarantee by an
Eligible Institution in the form set forth in such Notice. For Old Certificates
to be properly tendered pursuant to the guaranteed delivery procedure, the
Exchange Agent must receive a Notice of Guaranteed Delivery on or prior to the
Expiration Date.
As used herein and in the Prospectus, "Eligible Institution" means a firm
or other entity identified in Rule 17Ad-15 under the Exchange Act as "an
eligible guarantor institution," including (as such terms are defined therein)
(i) a bank, (ii) a broker, dealer, municipal securities broker or dealer or
government securities broker or dealer, (iii) a credit union, (iv) a national
securities exchange, registered securities association or clearing agency, or
(iv) a savings association that is a participant in a Securities Transfer
Association.
8
<PAGE> 10
THE METHOD OF DELIVERY OF THIS LETTER, THE OLD CERTIFICATES AND ALL OTHER
REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE TENDERING HOLDERS, BUT THE
DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED OR CONFIRMED BY THE
EXCHANGE AGENT. IF OLD CERTIFICATES ARE SENT BY MAIL, IT IS SUGGESTED THAT THE
MAILING BE MADE SUFFICIENTLY IN ADVANCE OF THE EXPIRATION DATE TO PERMIT
DELIVERY TO THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE
EXPIRATION DATE.
See "The Exchange Offer" section of the Prospectus.
2. PARTIAL TENDERS (NOT APPLICABLE TO HOLDERS OF OLD CERTIFICATES WHO TENDER BY
BOOK-ENTRY TRANSFER).
If less than all of the Old Certificates evidenced by a submitted
certificate are to be tendered, the tendering holder(s) should fill in the
aggregate principal amount of Old Certificates to be tendered in the box above
entitled "Description of Old Certificates -- Principal Amount Tendered." A
reissued certificate representing the balance of nontendered Old Certificates
will be sent to such tendering holder, unless otherwise provided in the
appropriate box on this Letter, promptly after the Expiration Date. All of the
Old Certificates delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated.
3. SIGNATURES OF THIS LETTER; BOND POWERS AND ENDORSEMENTS; GUARANTEE OF
SIGNATURES.
If this Letter is signed by the registered holder of the Old Certificates
tendered hereby, the signature must correspond exactly with the name as written
on the face of the certificates without any change whatsoever.
If any tendered Old Certificates are owned of record by two or more joint
owners, all such owners must sign this Letter.
If any tendered Old Certificates are registered in different names on
several certificates, it will be necessary to complete, sign and submit as many
separate copies of this Letter as there are different registrations of
certificates.
When this Letter is signed by the registered holder of the Old Certificates
specified herein and tendered hereby, no endorsements of certificates or
separate bond powers are required. If, however, the New Certificates are to be
issued, or any untendered Old Certificates are to be reissued, to a person other
than the registered holder, then endorsements of any certificates transmitted
hereby or separate bond powers are required. Signatures on such certificates
must be guaranteed by an Eligible Institution.
If this Letter is signed by a person other than the registered holder of
any certificates specified herein, such certificates must be endorsed or
accompanied by appropriate bond powers, in either case signed exactly as the
name of the registered holder appears on the certificates and the signatures on
such certificates must be guaranteed by an Eligible Institution.
If this Letter or any certificates or bond powers are signed by trustees,
executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and, unless waived by the Company,
proper evidence satisfactory to the Company of their authority to so act must be
submitted.
Endorsements on certificates for Old Certificates or signatures on bond
powers required by this Instruction 3 must be guaranteed by an Eligible
Institution.
Signatures on this Letter need not be guaranteed by an Eligible
Institution, provided the Old Certificates are tendered: (i) by a registered
holder of Old Certificates (which term, for purposes of the Exchange Offer,
includes any participant in the Book-Entry Transfer Facility system whose name
appears on a security position listing as the holder of such Old Certificates)
tendered who has not completed the box entitled "Special Issuance Instructions"
or "Special Delivery Instructions" on this Letter, or (ii) for the account of an
Eligible Institution.
9
<PAGE> 11
4. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS.
Tendering holders of Old Certificates should indicate in the applicable box
the name and address to which New Certificates issued pursuant to the Exchange
Offer and/or substitute certificates evidencing Old Certificates not exchanged
are to be issued or sent, if different from the name or address of the person
signing this Letter. In the case of issuance in a different name, the employer
identification or social security number of the person named must also be
indicated. A holder of Old Certificates tendering Old Certificates by book-entry
transfer may request that Old Certificates not exchanged be credited to such
account maintained at the Book-Entry Transfer Facility as such holder of Old
Certificates may designate hereon. If no such instructions are given, such Old
Certificates not exchanged will be returned to the name or address of the person
signing this Letter.
5. TAX IDENTIFICATION NUMBER.
Federal income tax law generally requires that a tendering holder whose Old
Certificates are accepted for exchange must provide the Exchange Agent with such
Holder's correct Taxpayer Identification Number ("TIN") on Substitute Form W-9
below, which, in the case of a tendering holder who is an individual, is his or
her social security number. If a tendering holder does not provide the Exchange
Agent with its current TIN or an adequate basis for an exemption, such tendering
holder may be subject to backup withholding in an amount equal to 31% of all
reportable payments made after the exchange. If withholding results in an
overpayment of taxes, a refund may be obtained.
Exempt holders of Old Certificates (including, among others, all
corporations and certain foreign individuals) are not subject to these backup
withholding and reporting requirements. See the enclosed Guidelines of
Certification of Taxpayer Identification Number on Substitute Form W-9 (the "W-9
Guidelines") for additional instructions.
To prevent backup withholding, each tendering holder of Old Certificates
must provide its correct TIN by completing the "Substitute Form W-9" set forth
below, certifying that the TIN provided is correct (or that such holder is
awaiting a TIN) and that (i) the holder is exempt from backup withholding, (ii)
the holder has not been notified by the Internal Revenue Service that such
holder is subject to a backup withholding as a result of a failure to report all
interest or dividends or (iii) the Internal Revenue Service has notified the
holder that such holder is no longer subject to backup withholding. If the
tendering holder of Old Certificates is a nonresident alien or foreign entity
not subject to backup withholding, such holder must give the Exchange Agent a
completed Form W-8, Certificate of Foreign Status. These forms may be obtained
from the Exchange Agent. If the Old Certificates are in more than one name or
are not in the name of the actual owner, such holder should consult the W-9
Guidelines for information on which TIN to report. If such holder does not have
a TIN, such holder should consult the W-9 Guidelines for instructions on
applying for a TIN, check the box in Part 2 of the Substitute Form W-9 and write
"applied for" in lieu of its TIN. Note: checking this box and writing "applied
for" on the form means that such holder has already applied for a TIN or that
such holder intends to apply for one in the near future. If such holder does not
provide its TIN to the Exchange Agent within 60 days, backup withholding will
begin and continue until such holder furnishes its TIN to the Exchange Agent.
6. TRANSFER TAXES.
The Company will pay all transfer taxes, if any, applicable to the transfer
of Old Certificates to it or its order pursuant to the Exchange Offer. If,
however, New Certificates and/or substitute Old Certificates not exchanged are
to be delivered to, or are to be registered or issued in the name of, any person
other than the registered holder of the Old Certificates tendered hereby, or if
tendered Old Certificates are registered in the name of any person other than
the person signing this Letter, or if a transfer tax is imposed for any reason
other than the transfer of Old Certificates to the Company or its order pursuant
to the Exchange Offer, the amount of any such transfer taxes (whether imposed on
the registered holder or any other persons) will be payable by the tendering
holder. If satisfactory evidence of payment of such taxes or exemption therefrom
is not submitted herewith, the amount of such transfer taxes will be billed
directly to such tendering holder.
Except as provided in this Instruction 6, it is not necessary for transfer
tax stamps to be affixed to the Old Certificates specified in this Letter.
7. WAIVER OF CONDITIONS.
The Company reserves the absolute right to waive satisfaction of any or all
conditions enumerated in the Prospectus.
10
<PAGE> 12
8. NO CONDITIONAL TENDERS.
No alternative, conditional, irregular or contingent tenders will be
accepted. All tendering holders of Old Certificates, by execution of this
Letter, shall waive any right to receive notice of the acceptance of their Old
Certificates for exchange. Neither the Company, the Exchange Agent nor any other
person is obligated to give notice of any defect or irregularity with respect to
any tender of Old Certificates nor shall any of them incur any liability for
failure to give any such notice.
9. MUTILATED, LOST, STOLEN OR DESTROYED OLD CERTIFICATES.
Any holder whose Old Certificates have been mutilated, lost, stolen or
destroyed should contact the Exchange Agent at the address indicated above for
further instructions.
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES.
Questions relating to the procedure for tendering, as well as requests for
additional copies of the Prospectus and this Letter, may be directed to the
Exchange Agent, at the address and telephone number indicated above.
11
<PAGE> 13
TO BE COMPLETED BY ALL TENDERING HOLDERS
(SEE INSTRUCTION 5)
GIVE FORM TO THE REQUESTER. DO NOT SEND TO THE IRS
<TABLE>
<S> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------
SUBSTITUTE PART I -- TAXPAYER IDENTIFICATION NUMBER (TIN)
FORM W-9
-------------------------------------- ------------------------------------
LIST ACCOUNT NUMBERS HERE (OPTIONAL)
--------------------------------------
------------------------------------------------------------------------------------
(REV. DECEMBER 1996) PART II -- FOR PAYEE EXEMPT FROM BACKUP WITHHOLDING (SEE THE W-9 GUIDELINES)
DEPARTMENT OF THE
TREASURY INTERNAL SOCIAL SECURITY NUMBER
REVENUE SERVICE -------------------------------------------------------------------------
OR EMPLOYER IDENTIFICATION NUMBER
REQUEST FOR TAXPAYER -------------------------------------------------------------------------
IDENTIFICATION NUMBER
AND CERTIFICATION Enter your TIN in the appropriate box. For individuals, this is your social security
number (SSN). For sole proprietors or resident aliens, see the W-9 Guidelines. For
other entities, it is your employer identification number (EIN). If you do not have
a number, see the W-9 Guidelines. NOTE: If the account is in more than one name, see
the chart in the W-9 Guidelines for guidance on whose number to enter.
- ----------------------------------
PLEASE PRINT OR TYPE
-----------------------------------------------------------------------------------------------------------------------
NAME (IF A JOINT ACCOUNT OR YOU CHANGED YOUR NAME, SEE THE W-9 GUIDELINES)
-----------------------------------------------------------------------------------------------------------------------
BUSINESS NAME, IF DIFFERENT FROM ABOVE. (SEE THE W-9 GUIDELINES.)
PLEASE CHECK APPROPRIATE BOX: [ ] Individual/Sole Proprietor [ ] Partnership
[ ] Corporation [ ] Other
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
Address (number, street, and apt. or suite no.).
Requester's name and address (optional)
-----------------------------------------------------------------------------------------------------------------------
City, state, and ZIP Code
- ------------------------------------------------------------------------------------------------------------------------
PART III -- CERTIFICATION
Under penalties of perjury, I certify that;
1. The number shown on this form is my correct taxpayer identification (or I am waiting for a number to be issued to
me), and
2. I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been
notified by the Internal Revenue Service that I am subject to backup withholding as a result of a failure to report
all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding.
CERTIFICATION INSTRUCTIONS. You must cross out item 2 above if you have been notified by the IRS that you are currently
subject to backup withholding because you have failed to report all interest or dividends on your tax return. For real
estate transactions, item 2 does not apply. For mortgage interest paid, the acquisition or abandonment of secured
property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally payments
other than interest and dividends, you are not required to sign the Certification, but you must provide your correct
TIN. (Also, see the W-9 Guidelines.)
SIGN HERE:
------------------------------------------------------------------------------- ---------------------------------
SIGNATURE DATE
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
12
<PAGE> 1
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
FOR
AMERICA WEST AIRLINES, INC.
PASS THROUGH CERTIFICATES, SERIES 1999-1
This form or one substantially equivalent hereto must be used to accept the
Exchange Offer of America West Airlines, Inc. (the "Company") made pursuant to
the Prospectus, dated , 1999 (the "Prospectus"), and the enclosed
Letter of Transmittal (the "Letter of Transmittal") if certificates for Old
Certificates are not immediately available or if the procedure for book-entry
transfer cannot be completed on a timely basis or time will not permit all
required documents to reach Wilmington Trust Company (the "Exchange Agent")
prior to 5:00 P.M., New York City time, on the Expiration Date of the Exchange
Offer. Such form may be delivered or transmitted by facsimile transmission, mail
or hand delivery to the Exchange Agent as set forth below. In addition, in order
to utilize the guaranteed delivery procedure to tender Old Certificates pursuant
to the Exchange Offer, a completed, signed and dated Letter of Transmittal (or
facsimile thereof) must also be received by the Exchange Agent prior to 5:00
P.M., New York City time, on the Expiration Date. Capitalized terms not defined
herein are defined in the Prospectus.
DELIVERY TO: WILMINGTON TRUST COMPANY, EXCHANGE AGENT
<TABLE>
<S> <C>
By Mail or Overnight Delivery: By Hand:
Wilmington Trust Company Wilmington Trust Company
1100 North Market Street 1105 North Market Street, 1st Floor
Wilmington, Delaware 19890-0001 Wilmington, Delaware 19890
Attention: Kristin Long Attention: Corporate Trust Operations
</TABLE>
Facsimile Transmission:
(302) 651-1079
Confirm by Telephone:
(302) 651-1562
Kristin Long
Delivery of this instrument to an address other than as set forth above, or
transmission of instructions via facsimile other than as set forth above, will
not constitute a valid delivery.
<PAGE> 2
Ladies and Gentlemen:
Upon the terms and conditions set forth in the Prospectus and the
accompanying Letter of Transmittal, the undersigned hereby tenders to the
Company the principal amount of Old Certificates set forth below, pursuant to
the guaranteed delivery procedure described in "The Exchange Offer -- Guaranteed
Delivery Procedures" section of the Prospectus.
------------------------------------------------------------
Principal Amount of Old Certificates Tendered:
$
----------------------------------------------------------
Certificate Nos. (if available):
------------------------------------------------------------
------------------------------------------------------------
If Old Certificates will be delivered by book-entry transfer to The
Depository Trust Company, provide account number.
The Depository Trust Company
Account No.
---------------------------------------------
- ------------------------------------------------------------
------------------------------------------------------------
Name(s) of Record Holder(s):
------------------------------------------------------------
------------------------------------------------------------
Please Print or Type
Address(es):
------------------------------------------------------------
------------------------------------------------------------
Area Code and Telephone Number(s):
------------------------------------------------------------
Signature(s):
---------------------------------------------
------------------------------------------------------------
Dated:
----------------------------------------------------
- ------------------------------------------------------------
THE ACCOMPANYING GUARANTEE MUST BE COMPLETED.
2
<PAGE> 3
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm that is a member firm of a registered national
securities exchange or of the National Association of Securities Dealers, Inc.,
a commercial bank or trust company having an office or correspondent in the
United States or any "eligible guarantor" institution within the meaning of Rule
17Ad-15 of the Securities Exchange Act of 1934, as amended, hereby guarantees to
deliver to the Exchange Agent, at one of its addresses set forth above, the
certificates representing all tendered Old Certificates, in proper form for
transfer, or a Book-Entry Confirmation, together with a properly completed and
duly executed Letter of Transmittal (or facsimile thereof), with any required
signature guarantees, and any other documents required by the Letter of
Transmittal within three New York Stock Exchange, Inc. trading days after the
date of execution of this Notice of Guaranteed Delivery.
THE UNDERSIGNED ACKNOWLEDGES THAT IT MUST DELIVER THE LETTER OF TRANSMITTAL
TO THE EXCHANGE AGENT WITHIN THE TIME PERIOD SET FORTH THEREIN AND THAT FAILURE
TO DO SO COULD RESULT IN FINANCIAL LOSS TO THE UNDERSIGNED.
<TABLE>
<S> <C>
- -------------------------------------------------------- --------------------------------------------------------
NAME OF FIRM AUTHORIZED SIGNATURE
Address: ----------------------------------------------- Name: -------------------------------------------------
(PLEASE TYPE OR PRINT)
- -------------------------------------------------------- Title:
--------------------------------------------------
Area Code and
Telephone Number: ----------------------------------- Date: --------------------------------------------------
</TABLE>
3
<PAGE> 1
EXHIBIT 99.3
AMERICA WEST AIRLINES, INC.
OFFER TO EXCHANGE
PASS THROUGH CERTIFICATES, SERIES 1999-1,
WHICH HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
FOR ANY AND ALL OUTSTANDING
PASS THROUGH CERTIFICATES, SERIES 1999-1
To: Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees:
Upon and subject to the terms and conditions set forth in the Prospectus,
dated , 1999 (the "Prospectus"), and the enclosed Letter of
Transmittal (the "Letter of Transmittal"), an offer to exchange (the "Exchange
Offer") the registered Pass Through Certificates, Series 1999-1 (the "New
Certificates") for any and all outstanding Pass Through Certificates, Series
1999-1 (the "Old Certificates") is being made pursuant to such Prospectus. The
Exchange Offer is being made in order to satisfy certain obligations of America
West Airlines, Inc. (the "Company") contained in the Exchange and Registration
Rights Agreement dated as of September 21, 1999, between the Company and the
Initial Purchasers.
The CUSIP numbers for the Old Certificates are as follows: (1) 144A: Class
G (023654 AU 0), Class C (023654 AX 4); and (2) Regulation S: Class G (UO 3004
AD 7), Class C (UO 3004 AE 5).
We are requesting that you contact your clients for whom you hold Old
Certificates regarding the Exchange Offer. For your information and for
forwarding to your clients for whom you hold Old Certificates registered in your
name or in the name of your nominee, or who hold Old Certificates registered in
their own names, we are enclosing the following documents:
1. Prospectus dated , 1999;
2. The Letter of Transmittal for your use and for the information of
your clients;
3. A Notice of Guaranteed Delivery to be used to accept the Exchange
Offer if certificates for Old Certificates are not immediately available or
time will not permit all required documents to reach the Exchange Agent
prior to the Expiration Date (as defined below) or if the procedure for
book-entry transfer cannot be completed on a timely basis; and
4. A form of letter which may be sent to your clients for whose
account you hold Old Certificates registered in your name or the name of
your nominee, with space provided for obtaining such clients' instructions
with regard to the Exchange Offer.
Your prompt action is requested. The Exchange Offer will expire at 5:00
p.m., New York City time, on , 2000 (the "Expiration Date") (30
calendar days following the commencement of the Exchange Offer), unless extended
by the Company. The Old Certificates tendered pursuant to the Exchange Offer may
be withdrawn at any time before the Expiration Date.
To participate in the Exchange Offer, a duly executed and properly
completed Letter of Transmittal (or facsimile thereof), with any required
signature guarantees and any other required documents, should be sent to the
Exchange Agent and certificates representing the Old Certificates should be
delivered to the Exchange Agent, all in accordance with the instructions set
forth in the Letter of Transmittal and the Prospectus.
Please note that brokers, dealers, commercial banks, trust companies and
other nominees who hold Old Certificates through The Depository Trust Company
("DTC") must effect tenders by book-entry transfer through DTC's Automated
Tender Offer Program ("ATOP").
If holders of Old Certificates wish to tender, but it is impracticable for
them to forward their certificates for Old Certificates prior to the expiration
of the Exchange Offer or to comply with the book-entry transfer procedures on a
timely
<PAGE> 2
basis, a tender may be effected by following the guaranteed delivery procedures
described in the Prospectus under "The Exchange Offer -- Guaranteed Delivery
Procedures".
Additional copies of the enclosed material may be obtained from Wilmington
Trust Company, the Exchange Agent, at 1100 North Market Street, Wilmington,
Delaware 19890-0001, Attention: Kristin Long, phone (302) 651-1562 and facsimile
(302) 651-1079.
AMERICA WEST AIRLINES, INC.
2
<PAGE> 1
EXHIBIT 99.4
AMERICA WEST AIRLINES, INC.
OFFER TO EXCHANGE
PASS THROUGH CERTIFICATES, SERIES 1999-1,
WHICH HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
FOR ANY AND ALL OUTSTANDING
PASS THROUGH CERTIFICATES, SERIES 1999-1
To Our Clients:
Enclosed for your consideration is a Prospectus of America West Airlines,
Inc., a Delaware corporation (the "Company" or "America West"),
dated ____________, 1999 (the "Prospectus"), and the enclosed Letter of
Transmittal (the "Letter of Transmittal") relating to the offer to exchange (the
"Exchange Offer") the registered Pass Through Certificates, Series 1999-1 (the
"New Certificates") for any and all outstanding Pass Through Certificates,
Series 1999-1 (the "Old Certificates"), upon the terms and subject to the
conditions described in the Prospectus. The Exchange Offer is being made in
order to satisfy certain obligations of America West contained in the Exchange
and Registration Rights Agreement dated as of September 21, 1999, between the
Company and the Initial Purchasers.
The CUSIP numbers for the Old Certificates are as follows: (1) 144A: Class
G (023654 AU 0), Class C (023654 AX 4); and (2) Regulation S: Class G (UO 3004
AD 7), Class C (UO 3004 AE 5).
This material is being forwarded to you as the beneficial owner of the Old
Certificates carried by us in your account but not registered in your name. A
tender of such Old Certificates may only be made by us as the holder of record
and pursuant to your instructions.
Accordingly, we request instructions as to whether you wish us to tender on
your behalf the Old Certificates held by us for your account, pursuant to the
terms and conditions set forth in the enclosed Prospectus and Letter of
Transmittal.
Your instructions should be forwarded to us as promptly as possible in
order to permit us to tender the Old Certificates on your behalf in accordance
with the provisions of the Exchange Offer. The Exchange Offer will expire at
5:00 p.m., New York City time, on ____________, 2000 (the "Expiration Date") (30
calendar days following the commencement of the Exchange Offer), unless extended
by the Company. Any Old Certificates tendered pursuant to the Exchange Offer may
be withdrawn at any time before 5:00 p.m., New York City time on the Expiration
Date.
Your attention is directed to the following:
1. The Exchange Offer is for any and all Old Certificates.
2. The Exchange Offer is subject to certain conditions set forth in
the Prospectus in the section captioned "The Exchange Offer -- Conditions".
3. Any transfer taxes incident to the transfer of Old Certificates
from the holder to the Company will be paid by the Company, except as
otherwise provided in the Instructions in the Letter of Transmittal.
4. The Exchange Offer expires at 5:00 p.m., New York City time, on
the Expiration Date unless extended by the Company.
If you wish to have us tender your Old Certificates, please so instruct us
by executing and returning to us the instruction form set forth below. The
Letter of Transmittal is furnished to you for information only and may not be
used directly by you to tender Old Certificates.
INSTRUCTIONS WITH RESPECT TO THE EXCHANGE OFFER
The undersigned acknowledge(s) receipt of your letter enclosing the
Prospectus, dated ____________, 1999, of America West Airlines, Inc., a Delaware
corporation, and the related specimen Letter of Transmittal.
<PAGE> 2
This will instruct you to tender the number of Old Certificates indicated
below held by you for the account of the undersigned, pursuant to the terms and
conditions set forth in the Prospectus and the related Letter of Transmittal.
(Check one).
Box 1 [ ] Please tender my Old Certificates held by you for my account. If I do
not wish to tender all of the Old Certificates held by you, I have
identified on a signed schedule attached hereto the number of Old
Certificates I do not wish tendered.
Box 2 [ ] Please do not tender any Old Certificates held by you for my account.
<TABLE>
<S> <C>
Date ------------------------, 2000 Signature(s)
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
Please print name(s) here
-----------------------------------------------------------
Area Code and Telephone No.
</TABLE>
UNLESS A SPECIFIC CONTRARY INSTRUCTION IS GIVEN IN THE SPACE PROVIDED, YOUR
SIGNATURE(S) HEREON SHALL CONSTITUTE AN INSTRUCTION TO US TO TENDER ALL OLD
CERTIFICATES.
2
