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PASS THROUGH TRUST AGREEMENT
Dated October 5, 2000
between
US AIRWAYS, INC.
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
as Trustee
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TABLE OF CONTENTS
Page
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 TRUST PROPERTY.......................................16
Section 2.01. Amount Unlimited; Issuable in Series...............16
Section 2.02. Acquisition of Equipment Notes.....................19
Section 2.03. Acceptance by Trustee..............................21
Section 2.04. Limitation of Powers...............................21
ARTICLE III
THE CERTIFICATES....................................................21
Section 3.01. Form, Denomination and
Execution of Certificates..........................21
Section 3.02. Authentication of Certificates.....................22
Section 3.03. Temporary Certificates.............................22
Section 3.04. Transfer and Exchange..............................23
Section 3.05. Book-Entry and Definitive Certificates.............24
Section 3.06. Mutilated, Destroyed, Lost or Stolen Certificates..26
Section 3.07. Persons Deemed Owners..............................26
Section 3.08. Cancellation.......................................27
Section 3.09. Limitation of Liability for Payments...............27
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS..................................................27
Section 4.01. Certificate Account and
Special Payments Account...........................27
Section 4.02. Distributions from Certificate
Account and Special Payments Account...............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.........................32
ARTICLE VI
DEFAULT.............................................................33
Section 6.01. Indenture Events of Default
and Triggering Events..............................33
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
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
Section 6.09. Undertaking for Costs..............................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...........................41
Section 7.05. May Hold Certificates..............................41
Section 7.06. Money Held in Trust................................41
Section 7.07. Compensation and Reimbursement.....................41
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.............44
Section 7.11. Merger, Conversion, Consolidation or
Succession to Business.............................45
Section 7.12. Maintenance of Agencies............................46
Section 7.13. Money for Certificate Payments
to Be Held in Trust................................47
Section 7.14. Registration of Equipment
Notes in Trustee's Name............................47
Section 7.15. Representations and Warranties of Trustee..........48
Section 7.16. Withholding Taxes; Information Reporting...........49
Section 7.17. Trustee's Liens....................................49
Section 7.18. Preferential Collection of Claims..................49
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE....................50
Section 8.01. The Company to Furnish Trustee with Names and
Addresses of Certificateh..........................50
Section 8.02. Preservation of Information,
Communications to Certificateholders...............50
Section 8.03. Reports by Trustee.................................50
Section 8.04. Reports by the Company.............................50
ARTICLE IX
SUPPLEMENTAL AGREEMENTS...........................................51
Section 9.01. Supplemental Agreements Without
Consent of Certificateholders......................51
Section 9.02. Supplemental Agreements with
Consent of Certificateholders......................53
Section 9.03. Documents Affecting Immunity or Indemnity..........54
Section 9.04. Execution of Supplemental Agreements...............54
Section 9.05. Effect of Supplemental Agreements..................55
Section 9.06. Conformity with Trust Indenture Act................55
Section 9.07. Reference in Certificates to
Supplemental Agreements............................55
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS..........................55
Section 10.01. Amendments and Supplements to
Indenture and Other Note Documents................55
ARTICLE XI
TERMINATION OF TRUSTS...............................................56
Section 11.01. Termination of the Trusts.........................56
ARTICLE XII
MISCELLANEOUS PROVISIONS............................................57
Section 12.01. Limitation on Rights of Certificateholders........58
Section 12.02. Liabilities of Certificateholders.................58
Section 12.03. Registration of Equipment Notes in Name of
Subordination Agent...............................................58
Section 12.04. Notices...........................................58
Section 12.05. Governing Law.....................................59
Section 12.06. Severability of Provisions........................60
Section 12.07. Trust Indenture Act Controls......................60
Section 12.08. Effect of Headings and Table of Contents..........60
Section 12.09. Successors and Assigns............................60
Section 12.10. Benefits of Agreement.............................60
Section 12.11. Legal Holidays....................................60
Section 12.12. Counterparts......................................60
Section 12.13. Communication by Certificateholders with Other
Certificateholders................................................61
Section 12.14. Intention of Parties..............................61
EXHIBIT A
FORM OF CERTIFICATE................................................A-1
Reconciliation and tie between US Airways Pass Through Trust Agreement,
dated October 5, 2000 and the Trust Indenture Act of 1939. This
reconciliation does not constitute part of the Pass Through Trust
Agreement.
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
------------------ ------------------
310(a)(1) 7.08
(a)(2) 7.08
312(a) 3.05; 8.01; 8.02
313(a) 8.03
314(a)(1)-(3) 8.04(a)-(c)
(a)(4) 8.04(d)
(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(d)
317(a)(1) 6.03
(b) 7.13
318(a) 12.07
PASS THROUGH TRUST AGREEMENT
This PASS THROUGH TRUST AGREEMENT, dated as of October 5, 2000
(the "Basic Agreement"), between US AIRWAYS, INC., a Delaware corporation
(the "Company"), and STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, a national banking association, as Trustee, is made
with respect to the formation from time to time of separate US Airways Pass
Through Trusts, and the issuance from time to time of separate series of
Pass Through Certificates representing fractional undivided interests in
the respective Trusts.
W I T N E S S E T H:
WHEREAS, from time to time, the Company, and the Trustee may enter
into a Trust Supplement (this and certain other defined terms used herein
are defined in Section 1.01) pursuant to which the Trustee shall declare
the creation of a separate Trust for the benefit of the Holders of the
series of Certificates to be issued in respect of such Trust, and the
initial Holders of the Certificates of such series, as the grantors of such
Trust, by their respective acceptances of the Certificates of such series,
shall join in the creation of such Trust with the Trustee;
WHEREAS, all Certificates to be issued in respect of each separate
Trust will be issued as a separate series pursuant to this Agreement, will
evidence fractional undivided interests in such Trust and will have no
rights, benefits or interests in respect of any other separate Trust or the
property held therein, subject, however, to the provisions of any
Intercreditor Agreement to which one or more Trusts may be a party;
WHEREAS, from time to time, pursuant to the terms and conditions of
this Agreement with respect to each separate Trust formed under this
Agreement, the Trustee on behalf of such Trust shall purchase one or more
issues of Equipment Notes having the same interest rate as, and final
maturity dates not later than the final Regular Distribution Date of, the
series of Certificates issued in respect of such Trust and, subject to the
terms of any related Intercreditor Agreement, shall hold such Equipment
Notes in trust for the benefit of the Certificateholders of such Trust;
WHEREAS, to facilitate the sale of Equipment Notes to, and the
purchase of Equipment Notes by, the Trustee on behalf of each Trust created
from time to time pursuant to this Agreement, the Company as the "issuer",
as such term is defined in and solely for purposes of the Securities Act of
1933, as amended, of the Certificates to be issued in respect of each Trust
and as the "obligor", as such term is defined in and solely for purposes of
the Trust Indenture Act has duly authorized the execution and delivery of
this Basic Agreement and each Trust Supplement with respect to all such
Certificates and is undertaking to perform certain administrative and
ministerial duties under this Agreement and is also undertaking to pay the
fees and expenses of the Trustee; and
WHEREAS, this Basic Agreement, as supplemented from time to time,
is subject to the provisions of the Trust Indenture Act 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 Basic
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms used herein that are defined in this Article I
have the meanings assigned to them in this Article I, 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 Basic Agreement to designated
"Articles", "Sections", "Subsections" and other subdivisions are to
the designated Articles, Sections, Subsections and other
subdivisions of this Basic Agreement;
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Basic Agreement as a whole
and not to any particular Article, Section, Subsection or other
subdivision;
(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";
and
(6) the term "this Agreement" (as distinguished from "this
Basic Agreement") refers, unless the context otherwise requires, to
this Basic Agreement as supplemented by the Trust Supplement
creating a particular Trust and establishing the series of
Certificates issued or to be issued in respect thereof, with
reference to such Trust and such series of Certificates, as this
Basic Agreement as so supplemented may be further supplemented with
respect to such Trust and such series of Certificates.
Act: Has the meaning, with respect to any Certificateholder,
specified in Section 1.04(a).
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", when used with respect to
any specified Person, 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.
Aircraft: Means one or more aircraft, including engines
therefor, owned by or leased to the Company and securing one or
more Equipment Notes.
Authorized Agent: Means, with respect to the Certificates of
any series, any Paying Agent or Registrar for the Certificates of
such series.
Basic Agreement: Means this Pass Through Trust Agreement, as
the same may from time to time be supplemented, amended or
modified, but does not include any Trust Supplement.
Book-Entry Certificates: Means, with respect to the
Certificates of any series, a beneficial interest in the
Certificates of such series, ownership and transfers of which shall
be made through book entries as described in Section 3.05.
Business Day: Means, with respect to the Certificates of any
series, any day other than a Saturday, a Sunday or a day on which
commercial banks are required or authorized to close in New York,
New York, or, so long as any Certificate of such series is
outstanding, the city and state in which the Trustee or any related
Loan Trustee maintains its Corporate Trust Office or receives and
disburses funds.
Certificate: Means any one of the certificates executed and
authenticated by the Trustee, substantially in the form of Exhibit
A hereto.
Certificate Account: Means, with respect to the Certificates
of any series, the account or accounts created and maintained for
such series pursuant to Section 4.01(a) and the related Trust
Supplement.
Certificateholder or Holder: Means, with respect to the
Certificates of any series, the Person in whose name a Certificate
of such series is registered in the Register for Certificates of
such series.
Certificate Owner: Means, with respect to the Certificates
of any series, for purposes of Section 3.05, the Person who owns a
Book-Entry Certificate of such series.
Clearing Agency: Means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended.
Clearing Agency Participant: Means a broker, dealer, bank,
other financial institution or other Person for whom from time to
time a Clearing Agency effects, directly or indirectly, book-entry
transfers and pledges of securities deposited with the Clearing
Agency.
Company: Means US Airways, Inc., a Delaware corporation, or
its successor in interest pursuant to Section 5.02, or (only in the
context of provisions hereof, if any, when 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 of any series.
Controlling Party: Means the Person entitled to act as such
pursuant to the terms of any Intercreditor Agreement.
Corporate Trust Office: Means, with respect to the Trustee
or any Loan Trustee, 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, with respect to the Certificates of any
series, the date designated as such in the Trust Supplement
establishing such series.
Definitive Certificates: Has the meaning, with respect to
the Certificates of any series, specified in Section 3.05.
Direction: Has the meaning specified in Section 1.04(a).
Equipment Notes: Means, with respect to the Certificates of
any series, all of the equipment notes issued under the Indentures
related to such series of Certificates.
ERISA: Means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor federal
statute.
Escrow Account: Has the meaning, with respect to the
Certificates of any series, specified in Section 2.02(b).
Escrowed Funds: Has the meaning, with respect to any Trust,
specified in Section 2.02(b).
Event of Default: Means, in respect of any Trust, an
Indenture Event of Default under any Indenture pursuant to which
Equipment Notes held by such Trust were issued.
Fractional Undivided Interest: Means the fractional
undivided interest in a Trust that is evidenced by a Certificate
relating to such Trust.
Indenture: Means, with respect to any Trust, each of the one
or more separate trust indenture and security agreements or trust
indenture and mortgages or similar documents described in, or on a
schedule attached to, the Trust Supplement and an indenture having
substantially the same terms and conditions which relates to a
Substitute Aircraft, as each such indenture may be amended or
supplemented in accordance with its respective terms; and
"Indentures" means all of such agreements.
Indenture Event of Default: Means, with respect to any
Indenture, any Indenture Event of Default (as such term is defined
in such Indenture).
Initial Regular Distribution Date: Means, with respect to
the Certificates of any series, the first Regular Distribution Date
on which a Scheduled Payment is to be made.
Insurance Policy: Means, with respect to the Certificates of
any series, any financial guarantee or certificate guarantee
insurance policy or similar policy relating to the Certificates of
such series issued by an insurance company or other financial
institution, as amended, replaced, supplemented or otherwise
modified from time to time in accordance with its terms and the
terms of any Intercreditor Agreement.
Intercreditor Agreement: Means any agreement by and among
the Trustee, as trustee hereunder with respect to one or more
Trusts, one or more Liquidity Providers, Policy Provider and a
Subordination Agent providing, among other things, for the
distribution of payments made in respect of Equipment Notes held by
such Trusts.
Issuance Date: Means, with respect to the Certificates of
any series, the date of the issuance of such Certificates.
Lease: Means any lease between an Owner Trustee, as the
lessor, and the Company, as the lessee, referred to in the related
Indenture, as such lease may be amended, supplemented or otherwise
modified in accordance with its terms; and "Leases" means all such
Leases.
Letter of Representations: Means, with respect to the
Certificates of any series, an agreement among the Company, the
Trustee and the initial Clearing Agency substantially in the form
attached as an Exhibit to the related Trust Supplement.
Liquidity Facility: Means, with respect to the Certificates
of any series, any revolving credit agreement, letter of credit or
similar facility relating to the Certificates of such series
between a bank or other financial institution and a Subordination
Agent, as amended, replaced, supplemented or otherwise modified
from time to time in accordance with its terms and the terms of any
Intercreditor Agreement.
Liquidity Provider: Means, with respect to the Certificates
of any series, a bank or other financial institution that agrees to
provide a Liquidity Facility for the benefit of the holders of
Certificates of such series.
Loan Trustee: Means, with respect to any Equipment Note or
the Indenture applicable thereto, the bank or trust company
designated as loan or indenture trustee under such Indenture, and
any successor to such Loan Trustee as such trustee; and "Loan
Trustees" means all of the Loan Trustees under the Indentures.
Note Documents: Means, with respect to the Certificates of
any series, the Note Purchase Agreement and the Equipment Notes
with respect to such Certificates and, with respect to such
Equipment Notes, the related Participation Agreement, Indenture,
Purchase Agreement Assignment, French Pledge Agreement and, if the
Aircraft is leased to the Company, the Lease and the Trust
Agreement relating to such Aircraft.
Note Purchase Agreement: Means, with respect to the
Certificates of any series, any note purchase, refunding,
participation or similar agreement providing for, among other
things, the purchase of Equipment Notes by the Trustee on behalf of
the relevant Trust; and "Note Purchase Agreements" means all such
agreements.
Officer's Certificate: Means a certificate signed, (a) in
the case of the Company by (i) the Chairman or Vice Chairman of the
Board of Directors, the President, any Executive Vice President,
any Senior Vice President or the Treasurer of the Company signing
alone, or (ii) any Vice President of the Company signing together
with the Secretary, the Assistant Secretary, the Treasurer or any
Assistant Treasurer of the Company or (b) in the case of the
Trustee or an Owner Trustee or a Loan Trustee, a Responsible
Officer of the Trustee or 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) a senior
attorney of the Company one of whose principal duties is furnishing
advice as to legal matters, (ii) Skadden, Arps, Slate, Meagher &
Flom LLP (and any affiliate thereof) or (iii) such other counsel
designated by the Company and reasonably acceptable to the Trustee
and (b) in the case of any Owner Trustee or any Loan Trustee, may
be such counsel as may be designated by any of them whether or not
such counsel is an employee of any of them, and who shall be
reasonably acceptable to the Trustee.
Other Agreements: Has the meaning specified in Section 6.01(b).
Outstanding: When used with respect to Certificates of any
series, means, as of the date of determination, all Certificates of
such series theretofore authenticated and delivered under this
Agreement, except:
(i) Certificates of such series theretofore cancelled
by the Registrar or delivered to the Trustee or the
Registrar for cancellation;
(ii) All of the Certificates of such series if money
in the full amount required to make the final distribution
with respect to such series pursuant to Section 11.01 hereof
has been theretofore deposited with the Trustee in trust for
the Holders of the Certificates of such series as provided
in Section 4.01, pending distribution of such money to such
Certificateholders pursuant to payment of such final
distribution payment; and
(iii) Certificates of such series in exchange for or
in lieu of which other Certificates of such series have been
authenticated and delivered pursuant to this Agreement.
Owner Participant: Means, with respect to any Equipment
Note, the "Owner Participant", if any, as referred to in the
Indenture pursuant to which such Equipment Note is issued and any
permitted successor or assign of such
Owner Participant; and "Owner Participants" at any time of
determination means all of the Owner Participants thus referred to
in the Indentures.
Owner Trustee: Means, with respect to any Equipment Note,
the "Owner Trustee", if any, as referred to in the Indenture
pursuant to which such Equipment Note is issued, not in its
individual capacity but solely as trustee; and "Owner Trustees"
means all of the Owner Trustees party to any of the related
Indentures.
Paying Agent: Means, with respect to the Certificates of any
series, the paying agent maintained and appointed for the
Certificates of such series 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 Provider: Means, with respect to the Certificates of
any series, an insurance company or other financial institution
that agrees to provide an Insurance Policy for the benefit of the
Holders of Certificates of such series.
Pool Balance: Means, with respect to the Certificates of any
series as of any date, (i) the original aggregate face amount of
the Certificates of any series less (ii) the aggregate amount of
all payments made in respect of such Certificates other than
payments made in respect of interest or premium thereon or
reimbursement of any costs or expenses incurred in connection
therewith. The Pool Balance as of any Distribution Date shall be
computed after giving effect to the payment of principal, if any,
on the Equipment Notes or other Trust Property held in the Trust
and the distribution thereof to be made on such Distribution Date.
Pool Factor: Means, with respect to any series of
Certificates as of any date, the quotient (rounded to the seventh
decimal place) computed by dividing (i) the Pool Balance of such
series as at such date by (ii) the original aggregate face amount
of the Certificates of such series. The Pool Factor as of any
Distribution Date shall be computed after giving effect to the
payment of principal, if any, on the Equipment Notes or other Trust
Property held in the Trust and the distribution thereof to be made
on such Distribution Date.
Postponed Notes: Means, with respect to any Trust or the
related series of Certificates, the Equipment Notes to be held in
such Trust as to which a Postponement Notice shall have been
delivered pursuant to Section 2.02(b).
Postponement Notice: Means, with respect to any Trust or the
related series of Certificates, an Officer's Certificate of the
Company signed by an officer of the Company (1) requesting that the
Trustee temporarily postpone purchase of the related Equipment
Notes to a date later than the Issuance Date of such series of
Certificates, (2) identifying the amount of the purchase price of
each such Equipment Note and the aggregate purchase price for all
such Equipment Notes, (3) setting forth the reasons for such
postponement and (4) with respect to each such Equipment Note,
either (a) setting or resetting a new Transfer Date (which shall be
on or prior to the applicable Cut-off Date) for payment by the
Trustee of such purchase price and issuance of the related
Equipment Note (subject to subsequent change from time to time in
accordance with the relevant Note Purchase Agreement), or (b)
indicating that such new Transfer Date (which shall be on or prior
to the applicable Cut-off Date) will be set by subsequent written
notice not less than one Business Day prior to such new Transfer
Date (subject to subsequent change from time to time in accordance
with the relevant Note Purchase Agreement).
Potential Purchaser: Has the meaning, with respect to any
Certificateholder, specified in Section 6.01(b).
PTC Event of Default: Means, with respect to the
Certificates of any series, any failure to pay within ten Business
Days of the due date thereof: (i) the outstanding Pool Balance of
such series of Certificates on the date specified in any Trust
Supplement for such payment or (ii) interest due on the
Certificates of such series on any Distribution Date (unless the
related Subordination Agent shall have made an Interest Drawing or
Drawings (as defined in the related Intercreditor Agreement), or a
withdrawal or withdrawals pursuant to a cash collateral account
under such Intercreditor Agreement, with respect thereto in an
aggregate amount sufficient to pay such interest and shall have
distributed such amount to the Trustee).
Purchase Agreement Assignment: Has the meaning, with respect
to the Certificates of any series, specified therefor in the
related Participation Agreement.
Purchasing Certificateholder: Has the meaning, with respect
to any Certificateholder, specified in Section 6.01(b).
Record Date: Means, with respect to any Trust or the related
series of Certificates, (i) for Scheduled Payments to be
distributed on any Regular Distribution Date, other than the final
distribution with respect to such series, the 15th day (whether or
not a Business Day) preceding such Regular Distribution Date and
(ii) for Special Payments to be distributed on any Special
Distribution Date, other than the final distribution with respect
to such series, the 15th day (whether or not a Business Day)
preceding such Special Distribution Date.
Register and Registrar: Means, each with respect to the
Certificates of any series, the register maintained and the
registrar appointed pursuant to Sections 3.04 and 7.12.
Regular Distribution Date: Means, with respect to
distributions of Scheduled Payments in respect of any series of
Certificates, each date designated as such in this Agreement, until
payment of all the Scheduled Payments to be made under the
Equipment Notes held in the Trust have been made.
Request: Means a request by the Company setting forth the
subject matter of the request accompanied by an Officer's
Certificate and an Opinion of Counsel as provided in Section 1.02
of this Basic Agreement.
Responsible Officer: Means, with respect to any Trustee, any
Loan Trustee and any Owner Trustee, any officer in the Corporate
Trust Department 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.
Responsible Party: Means, with respect to the Certificates
of any series, the person designated as such in the related Trust
Supplement.
Scheduled Payment: Means, with respect to any Equipment
Note, (i) any payment of principal or interest on such Equipment
Note (other than any such payment which is not in fact received by
the Trustee or any Subordination Agent within five days of the date
on which such payment is scheduled to be made) or (ii) any payment
of interest on the Certificates of any series with funds drawn
under the Liquidity Facility or Insurance Policy for such series
(other than any such payment which is not in fact received by the
Trustee or any Subordination Agent within five days of the date
upon which payment is scheduled to be made), which payment in the
case of clauses (i) or clause (ii) represents the installment of
principal on such Equipment Note at the stated maturity of such
installment, the payment of regularly scheduled interest accrued on
the unpaid principal amount of such Equipment Note, or both;
provided, however, that any payment of principal, premium, if any,
or interest resulting from the redemption or purchase of any
Equipment Note shall not constitute a Scheduled Payment.
SEC: Means the Securities and Exchange Commission, as from
time to time constituted or created under the Securities Exchange
Act of 1934, 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.
Selling Certificateholder: Has the meaning, with respect to
any Certificateholder, specified in Section 6.01(b).
Special Distribution Date: Means, with respect to the
Certificates of any series, each date on which a Special Payment is
to be distributed as specified in this Agreement.
Special Payment: Means (i) any payment (other than a
Scheduled Payment) in respect of, or any proceeds of, any Equipment
Note or Trust Indenture Estate (as defined in each Indenture), (ii)
the amounts required to be distributed pursuant to the last
paragraph of Section 2.02(b) or (iii) the amounts required to be
distributed pursuant to the penultimate paragraph of Section
2.02(b).
Special Payments Account: Means, with respect to the
Certificates of any series, the account or accounts created and
maintained for such series pursuant to Section 4.01(b) and the
related Trust Supplement.
Specified Investments: Means, with respect to any Trust,
unless otherwise specified in the related Trust Supplement, (i)
obligations of, or guaranteed by, the United States Government or
agencies thereof, (ii) open market commercial paper of any
corporation incorporated under the laws of the United States of
America or any state thereof rated at least P-2 or its equivalent
by Moody's Investors Service, Inc. or at least A-2 or its
equivalent by Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., (iii) certificates of deposit issued
by commercial banks organized under the laws of the United States
or of any political subdivision thereof having a combined capital
and surplus in excess of $100,000,000 which banks or their holding
companies have a rating of A or its equivalent by Moody's Investors
Service, Inc. or Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc.; provided, however, that the
aggregate amount at any one time so invested in certificates of
deposit issued by any one bank shall not exceed 5% of such bank's
capital and surplus, (iv) U.S. dollar-denominated offshore
certificates of deposit issued by, or offshore time deposits with,
any commercial bank described in clause (iii) above or any
subsidiary thereof and (v) repurchase agreements with any financial
institution having combined capital and surplus of at least
$100,000,000 with any of the obligations described in clauses (i)
through (iv) above as collateral; provided further, that if all of
the above investments are unavailable, the entire amounts to be
invested may be used to purchase federal funds from an entity
described in clause (iii) above.
Subordination Agent: Has the meaning specified therefor in
any Intercreditor Agreement.
Substitute Aircraft: Means, with respect to any Trust, any
Aircraft of a type specified in this Agreement and, at the election
of the Company, substituted prior to the applicable Cut-off Date,
if any, pursuant to the terms of this Agreement.
Transfer Date: Has the meaning assigned to that term or any
of the terms "Delivery Date", "Funding Date" or "Closing Date" in a
Note Purchase Agreement, and in any event refers to any such date
as it may be changed from time to time in accordance with the terms
of such Note Purchase Agreement.
Triggering Event: Has the meaning specified therefor in any
Intercreditor Agreement.
Trust: Means, with respect to the Certificates of any
series, the trust under this Agreement.
Trustee: Means State Street Bank and Trust Company of
Connecticut, National Association, a national banking association,
or its successor in interest, and any successor or other trustee
appointed as provided herein.
Trust Indenture Act: Means, with respect to any particular
Trust, the Trust Indenture Act of 1939, as in force at the date as
of which the related Trust Supplement was executed.
Trust Property: Means, with respect to any Trust, (i)
subject to any related Intercreditor Agreement, the Equipment Notes
held as the property of such Trust, all monies at any time paid
thereon and all monies due and to become due thereunder, (ii) funds
from time to time deposited in the related Escrow Account, the
related Certificate Account and the related Special Payments
Account and, subject to the related Intercreditor Agreement, any
proceeds from the sale by the Trustee pursuant to Article VI hereof
of any such Equipment Note, (iii) all rights of such Trust and the
Trustee, on behalf of the Trust, under any Intercreditor Agreement,
including, without limitation, all monies receivable in respect of
such rights, and (iv) all monies receivable under any Liquidity
Facility or Insurance Policy for such Trust.
Trust Supplement: Means an agreement supplemental hereto
pursuant to which (i) a separate Trust is created for the benefit
of the holders of the Certificates of a series, (ii) the issuance
of the Certificates of such series representing fractional
undivided interests in such Trust is authorized and (iii) the terms
of the Certificates of such series are established.
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 Basic Agreement or, in respect
of the Certificates of any series, 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 Basic
Agreement or 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 Basic Agreement or this Agreement relating to such
particular application or request, no additional certificate or opinion
need be furnished.
Every Officer's Certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Basic
Agreement or, in respect of the Certificates of any series, this Agreement
(other than a certificate provided pursuant to Section 8.04(d)) or any
Trust Supplement shall include:
(1) a statement that (x) each individual signing such
certificate or (y) each firm or person executing such Opinion of
Counsel has read such covenant or condition and the definitions in
this Basic Agreement or this Agreement relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such individual
or firm, he or it has made such examination or investigation as is
necessary to enable him or it 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 or firm, 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 Basic Agreement or, in respect of the
Certificates of any series, this Agreement, they may, but need not, be
consolidated and form one instrument.
Section 1.04. Directions of Certificateholders. (a) Any direction,
consent, request, demand, authorization, notice, waiver or other action
provided by this Agreement in respect of the Certificates of any series 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, when it is hereby expressly required pursuant
to this Agreement, to the Company or any Loan Trustee. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Certificateholders signing
such instrument or instruments. Proof of execution of any such instrument
or of a writing appointing any such agent or proxy shall be sufficient for
any purpose of this Trust Agreement and conclusive in favor of the Trustee,
the Company and the related Loan Trustee, if made in the manner provided in
this Section 1.04.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the certificate of any notary
public or other officer of any jurisdiction authorized to take
acknowledgments of deeds or administer oaths that the Person executing such
instrument acknowledged to him the execution thereof, or by an affidavit of
a witness to such execution sworn to before any such notary or such other
officer, and where such execution is by an officer of a corporation or
association or a member of a partnership, on behalf of such corporation,
association or partnership, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other reasonable manner which
the Trustee deems sufficient.
(c) In determining whether the Certificateholders of the
requisite Fractional Undivided Interests of Certificates of any series
Outstanding have given any Direction 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 of any series Outstanding, such Certificates
shall not be so disregarded, and (ii) if any amount of Certificates of any
series 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) The Company may, at its option, by delivery of an
Officer's Certificate to the Trustee, set a record date to determine the
Certificateholders in respect of the Certificates of any series, entitled
to give any 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 of the applicable series 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 of the applicable series at the close of business on such record
date shall be deemed to be Certificateholders for the purposes of
determining whether Certificateholders of the requisite proportion of
Outstanding Certificates of such series have authorized or agreed or
consented to such Direction, and for that purpose the Outstanding
Certificates shall be computed as of such record date; provided, however,
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.
(e) 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.
(f) Except as otherwise provided in Section 1.04(c),
Certificates of any series owned by or pledged to any Person shall have an
equal and proportionate benefit under the provisions of this Agreement,
without preference, priority or distinction as among all of the
Certificates of such series.
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES:
ACQUISITION OF TRUST PROPERTY
Section 2.01. Amount Unlimited; Issuable in Series. (a) The
aggregate principal amount of Certificates which may be authenticated and
delivered under this Basic Agreement is unlimited. The Certificates may be
issued from time to time in one or more series and shall be designated
generally as the "Pass Through Certificates", with such further
designations added or incorporated in such title for the Certificates of
each series as specified in the related Trust Supplement. Each Certificate
shall bear upon its face the designation so selected for the series to
which it belongs. All Certificates of the same series shall be
substantially identical except that the Certificates of a series may differ
as to denomination and as may otherwise be provided in the Trust Supplement
establishing the Certificates of such series. Each series of Certificates
issued pursuant to this Agreement will evidence fractional undivided
interests in the related Trust and, except as may be contained in any
Intercreditor Agreement, will have no rights, benefits or interests in
respect of any other Trust or the Trust Property held therein. All
Certificates of the same series shall be in all respects equally and
ratably entitled to the benefits of this Agreement without preference,
priority or distinction on account of the actual time or times of
authentication and delivery, all in accordance with the terms and
provisions of this Agreement.
(b) The following matters shall be established with respect
to the Certificates of each series issued under this Agreement by a Trust
Supplement executed and delivered by and between the Company and the
Trustee:
(1) the formation of the Trust as to which the Certificates
of such series represent fractional undivided interests and its
designation (which designation shall distinguish such Trust from
each other Trust created under this Basic Agreement and a Trust
Supplement);
(2) the specific title of the Certificates of such series
(which title shall distinguish the Certificates of such series from
each other series of Certificates created under this Basic
Agreement and a Trust Supplement);
(3) any limit upon the aggregate principal amount of the
Certificates of such series which may be authenticated and
delivered (which limit shall not pertain to Certificates
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Certificates of the series
pursuant to Sections 3.03, 3.04 and 3.06);
(4) the Cut-off Date with respect to the Certificates of
such series;
(5) the Regular Distribution Dates applicable to the
Certificates of such series;
(6) the Special Distribution Dates applicable to the
Certificates of such series;
(7) if other than as provided in Section 7.12(b), the
Registrar or the Paying Agent for the Certificates of such series,
including any Co-Registrar or additional Paying Agent;
(8) if other than as provided in Section 3.01, the
denominations in which the Certificates of such series shall be
issuable;
(9) if other than United States dollars, the currency or
currencies (including currency units) in which the Certificates of
such series shall be denominated;
(10) the specific form of the Certificates of such series
(including the interest rate applicable thereto) and whether or not
Certificates of such series are to be issued as Book-Entry
Certificates and, if such Certificates are to be Book-Entry
Certificates, the form of Letter of Representations, if any (or, in
the case of any Certificates denominated in a currency other than
United States dollars and if other than as provided in Section
3.05, whether and the circumstances under which beneficial owners
of interests in such Certificates in permanent global form may
exchange such interests for Certificates of such series and of like
tenor of any authorized form and denomination);
(11) a description of the Equipment Notes to be acquired and
held in the related Trust and of the related Aircraft and Note
Documents;
(12) provisions with respect to the terms for which the
definitions set forth in Article I hereof or the terms of Section
11.01 hereof permit or require further specification in the related
Trust Supplement;
(13) any restrictions (including legends) in respect of ERISA;
(14) whether such series will be subject to an Intercreditor
Agreement and, if so, the specific designation of such
Intercreditor Agreement and the rights of Potential Purchasers upon
the occurrence of a Triggering Event;
(15) whether such series will have the benefit of a
Liquidity Facility, Insurance Policy or other form of credit
enhancement and, if so, any terms appropriate thereto;
(16) whether there will be a deposit agreement or other
arrangement prior to the delivery of one or more Aircraft and, if
so, any terms appropriate thereto;
(17) the "Responsible Party" for purposes of directing the
Trustee to make Specified Investments; and
(18) any other terms of the Certificates of such series
(which terms shall not be inconsistent with the provisions of the
Trust Indenture Act), including any terms of the Certificates of
such series which may be required or advisable under United States
laws or regulations or advisable in connection with the marketing
of Certificates of the series.
(c) At any time and from time to time after the execution
and delivery of this Basic Agreement and a Trust Supplement forming a Trust
and establishing the terms of Certificates of a series, Certificates of
such series shall be executed, authenticated and delivered by the Trustee
to the Person or Persons specified by the Company upon request of the
Company and upon satisfaction or waiver of any conditions precedent set
forth in such Trust Supplement or in any other document to which a Trustee
is a party relating to the issuance of the Certificates of such series.
Section 2.02. Acquisition of Equipment Notes. (a) Unless otherwise
specified in the related Trust Supplement, on or prior to the Issuance Date
of the Certificates of a series, the Trustee shall execute and deliver the
related Note Purchase Agreements in the form delivered to the Trustee by
the Company and shall, subject to the respective terms thereof, perform its
obligations under such Note Purchase Agreements. The Trustee shall issue
and sell such Certificates, in authorized denominations and in such
Fractional Undivided Interests, so as to result in the receipt of
consideration in an amount equal to the aggregate purchase price of the
Equipment Notes contemplated to be purchased by the Trustee under the
related Note Purchase Agreements and, the Trustee shall purchase, pursuant
to the terms and conditions of the Note Purchase Agreements, such Equipment
Notes at a purchase price equal to the amount of such consideration so
received. Except as provided in Sections 3.03, 3.04 and 3.06 hereof, the
Trustee shall not execute, authenticate or deliver Certificates of such
series in excess of the aggregate amount specified in this paragraph. The
provisions of this Subsection (a) are subject to the provisions of
Subsection (b) below.
(b) If on or prior to the Issuance Date with respect to a
series of Certificates the Company shall deliver to the Trustee a
Postponement Notice relating to one or more Postponed Notes, the Trustee
shall postpone the purchase of such Postponed Notes and shall deposit into
an escrow account (as to such Trust, the "Escrow Account") to be maintained
as part of the related Trust an amount equal to the purchase price of such
Postponed Notes (the "Escrowed Funds"). The portion of the Escrowed Funds
so deposited with respect to any particular Postponed Notes shall be
invested by the Trustee at the written direction and risk of, and for the
benefit of, the Responsible Party in Specified Investments (i) maturing no
later than any scheduled Transfer Date relating to such Postponed Notes, or
(ii) if no such Transfer Date has been scheduled, maturing on the next
Business Day, or (iii) if the Company has given notice to the Trustee that
such Postponed Notes will not be issued, maturing on the next applicable
Special Distribution Date, if such investments are reasonably available for
purchase. The Trustee shall make withdrawals from the Escrow Account only
as provided in this Agreement. Upon request of the Company on one or more
occasions and the satisfaction or waiver of the closing conditions
specified in the applicable Note Purchase Agreements on or prior to the
related Cut-off Date, the Trustee shall purchase the applicable Postponed
Notes with the Escrowed Funds withdrawn from the Escrow Account. The
purchase price shall equal the principal amount of such Postponed Notes.
The Trustee shall hold all Specified Investments until the maturity
thereof and will not sell or otherwise transfer Specified Investments. If
Specified Investments held in an Escrow Account mature prior to any
applicable Transfer Date, any proceeds received on the maturity of such
Specified Investments (other than any earnings thereon) shall be reinvested
by the Trustee at the written direction and risk of, and for the benefit
of, the Responsible Party in Specified Investments maturing as provided in
the preceding paragraph.
Any earnings on Specified Investments received from time to time by
the Trustee shall be promptly distributed to the Responsible Party. The
Responsible Party shall pay to the Trustee for deposit to the relevant
Escrow Account an amount equal to any losses on such Specified Investments
as incurred. On the Initial Regular Distribution Date in respect of the
Certificates of any series, the Responsible Party will pay (in immediately
available funds) to the Trustee an amount equal to the interest that would
have accrued on any Postponed Notes with respect to such Certificates, if
any, purchased after the Issuance Date if such Postponed Notes had been
purchased on the Issuance Date, from the Issuance Date to, but not
including, the date of the purchase of such Postponed Notes by the Trustee.
If, in respect of the Certificates of any series, the
Company notifies the Trustee prior to the Cut-off Date that any Postponed
Notes will not be issued on or prior to the Cut-off Date for any reason, on
the next Special Distribution Date for such Certificates occurring not less
than 15 days following the date of such notice, (i) the Responsible Party
shall pay to the Trustee for deposit in the related Special Payments
Account, in immediately available funds, an amount equal to the interest
that would have accrued on the Postponed Notes designated in such notice at
a rate equal to the interest rate applicable to such Certificates from the
Issuance Date to, but not including, such Special Distribution Date and
(ii) the Trustee shall transfer an amount equal to that amount of Escrowed
Funds that would have been used to purchase the Postponed Notes designated
in such notice and the amount paid by the Responsible Party pursuant to the
immediately preceding clause (i) to the related Special Payments Account
for distribution as a Special Payment in accordance with the provisions
hereof.
If, on such Cut-off Date, an amount equal to less than all of the
Escrowed Funds (other than Escrowed Funds referred to in the immediately
preceding paragraph) has been used to purchase Postponed Notes, on the next
such Special Distribution Date occurring not less than 15 days following
such Cut-off Date (i) the Responsible Party shall pay to the Trustee for
deposit in such Special Payments Account, in immediately available funds,
an amount equal to the interest that would have accrued on such Postponed
Notes contemplated to be purchased with such unused Escrowed Funds (other
than Escrowed Funds referred to in the immediately preceding paragraph) but
not so purchased at a rate equal to the interest rate applicable to such
Certificates from the Issuance Date to, but not including, such Special
Distribution Date and (ii) the Trustee shall transfer such unused Escrowed
Funds and the amount paid by the Responsible Party pursuant to the
immediately preceding clause (i) to such Special Payments Account for
distribution as a Special Payment in accordance with the provisions hereof.
Section 2.03. Acceptance by Trustee. The Trustee, upon the
execution and delivery of a Trust Supplement creating a Trust and
establishing a series of Certificates, shall acknowledge its acceptance of
all right, title and interest in and to the Trust Property to be acquired
pursuant to Section 2.02 hereof and the related Note Purchase Agreements
and shall declare that the Trustee holds and will hold such right, title
and interest for the benefit of all then present and future
Certificateholders of such series, upon the trusts herein and in such Trust
Supplement set forth. By the acceptance of each Certificate of such series
issued to it under this Agreement, each initial Holder of such series as
grantor of such Trust shall thereby join in the creation and declaration of
such Trust.
Section 2.04. Limitation of Powers. Each Trust shall be constituted
solely for the purpose of making the investment in the Equipment Notes
provided for in the related Trust Supplement, and, except as set forth in
this Agreement, the Trustee shall not be authorized or empowered to acquire
any other investments or engage in any other activities and, in particular,
the Trustee shall not be authorized or empowered to do anything that would
cause such Trust to fail to qualify as a "grantor trust" for federal income
tax purposes (including, as subject to this restriction, acquiring any
Aircraft (as defined in the related Indentures) by bidding such Equipment
Notes or otherwise, or taking any action with respect to any such Aircraft
once acquired).
ARTICLE III
THE CERTIFICATES
Section 3.01. Form, Denomination and Execution of Certificates. The
Certificates of each series shall be issued in fully registered form
without coupons and shall be substantially in the form attached hereto as
Exhibit A with such omissions, variations and insertions as are permitted
by this Agreement, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange on which such
Certificates may be listed or to conform to any usage in respect thereof,
or as may, consistently with this Agreement, be determined by the Trustee
or the officers executing such Certificates, as evidenced by the Trustee's
or respective officers' execution of the Certificates.
Except as provided in Section 3.05, the definitive Certificates of
such series shall be typed, printed, lithographed or engraved or produced
by any combination of these methods or may be produced in any other manner
permitted by the rules of any securities exchange on which the Certificates
may be listed, all as determined by the officers executing such
Certificates, as evidenced by their execution of such Certificates.
Except as otherwise provided in the related Trust Supplement, the
Certificates of each series shall be issued in minimum denominations of
$1,000 or integral multiples thereof except that one Certificate of such
series may be issued in a different denomination.
The Certificates of such series shall be executed on behalf of the
Trustee by manual or facsimile signature of a Responsible Officer of the
Trustee. Certificates of any series bearing the manual or facsimile
signature of an individual who was, at the time when such signature was
affixed, authorized to sign on behalf of the Trustee shall be valid and
binding obligations of the Trustee, notwithstanding that such individual
has ceased to be so authorized prior to the authentication and delivery of
such Certificates or did not hold such office at the date of such
Certificates.
Section 3.02. Authentication of Certificates. (a) On the Issuance
Date, the Trustee shall duly execute, authenticate and deliver Certificates
of each series in authorized denominations equaling in the aggregate the
aggregate principal amount of the Equipment Notes that may be purchased by
the Trustee pursuant to the related Note Purchase Agreements, and
evidencing the entire ownership of the related Trust. Thereafter, the
Trustee shall duly execute, authenticate and deliver the Certificates of
such series as provided in this Agreement.
(b) No Certificate of any series shall be entitled to any
benefit under this Agreement, or be valid for any purpose, unless there
appears on such Certificate a certificate of authentication substantially
in the form set forth in Exhibit A executed by the Trustee by manual
signature, and such certificate of authentication upon any Certificate
shall be conclusive evidence, and the only evidence, that such Certificate
has been duly authenticated and delivered hereunder. All Certificates of
any series shall be dated the date of their authentication.
Section 3.03. Temporary Certificates. Until definitive Certificates
are ready for delivery, the Trustee shall execute, authenticate and deliver
temporary Certificates of each series. Temporary Certificates of each
series shall be substantially in the form of definitive Certificates of
such series but may have insertions, substitutions, omissions and other
variations determined to be appropriate by the officers executing the
temporary Certificates of such series, as evidenced by their execution of
such temporary Certificates. If temporary Certificates of any series are
issued, the Trustee will cause definitive Certificates of such series to be
prepared without unreasonable delay. After the preparation of definitive
Certificates of such series, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of such temporary
Certificates at the 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 like series, in authorized
denominations and of a like Fractional Undivided Interest. Until so
exchanged, such temporary Certificates shall be entitled to the same
benefits under this Agreement as definitive 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") for each series of
Certificates in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall provide for the registration of Certificates
of such series and of transfers and exchanges of such Certificates as
herein provided. The Trustee shall initially be the registrar (the
"Registrar") for the purpose of registering such Certificates of each
series and transfers and exchanges of such Certificates as herein provided.
All Certificates issued upon any registration of transfer or
exchange of Certificates of any series shall be valid obligations of the
applicable Trust, evidencing the same interest therein, and entitled to the
same benefits under this Agreement, as the Certificates of such series
surrendered upon such registration of transfer or exchange.
Upon surrender for registration of transfer of any Certificate at
the Corporate Trust Office or such other office or agency, the Trustee
shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of like series, in
authorized denominations of a like aggregate Fractional Undivided Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of like series, in authorized denominations and of a
like aggregate Fractional Undivided Interest, upon surrender of the
Certificates to be exchanged at any such office or agency. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate and deliver the Certificates that the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be duly endorsed
or accompanied by a written instrument of transfer in form satisfactory to
the Trustee and the Registrar duly executed by the Certificateholder
thereof or its attorney duly authorized in writing.
No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Certificates, but the Trustee shall
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of
Certificates. All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Trustee.
Section 3.05. Book-Entry and Definitive Certificates. (a) The
Certificates of any series may be issued in the form of one or more
typewritten Certificates representing the Book-Entry Certificates of such
series, to be delivered to The Depository Trust Company, the initial
Clearing Agency, by, or on behalf of, the Company. In such case, the
Certificates of such series delivered to The Depository Trust Company shall
initially be registered on the Register in the name of CEDE & Co., the
nominee of the initial Clearing Agency, and no Certificate Owner will
receive a definitive certificate representing such Certificate Owner's
interest in the Certificates of such series, except as provided above and
in Subsection (d) below. As to the Certificates of any series, unless and
until definitive, fully registered Certificates (the "Definitive
Certificates") have been issued pursuant to Subsection (d) below:
(i) the provisions of this Section 3.05 shall be in
full force and effect;
(ii) the Company, the Paying Agent, the Registrar and
the Trustee may deal with the Clearing Agency Participants
for all purposes (including the making of distributions on
the Certificates) as the authorized representatives of the
Certificate Owners;
(iii) to the extent that the provisions of this
Section 3.05 conflict with any other provisions of this
Agreement (other than the provisions of any Trust Supplement
expressly amending this Section 3.05 as permitted by this
Basic Agreement), the provisions of this Section 3.05 shall
control;
(iv) the rights of Certificate Owners shall be
exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between
such Certificate Owners and the Clearing Agency
Participants; and until Definitive Certificates are issued
pursuant to Subsection (d) below, the Clearing Agency will
make book-entry transfers among the Clearing Agency
Participants and receive and transmit distributions of
principal, interest and premium, if any, on the Certificates
to such Clearing Agency Participants; and
(v) whenever this Agreement requires or permits
actions to be taken based upon instructions or directions of
Certificateholders of such series holding Certificates of
such series evidencing a specified percentage of the
Fractional Undivided Interests in the related Trust, the
Clearing Agency shall be deemed to represent such percentage
only to the extent that it has received instructions to such
effect from Clearing Agency Participants owning or
representing, respectively, such required percentage of the
beneficial interest in Certificates of such series and has
delivered such instructions to the Trustee. The Trustee
shall have no obligation to determine whether the Clearing
Agency has in fact received any such instructions.
(b) Whenever notice or other communication to the
Certificateholders of such series is required under this Agreement, unless
and until Definitive Certificates shall have been issued pursuant to
Subsection (d) below, the Trustee shall give all such notices and
communications specified in this Agreement to be given to
Certificateholders of such series to the Clearing Agency.
(c) Unless and until Definitive Certificates of a series are
issued pursuant to Subsection (d) below, on the Record Date prior to each
applicable Regular Distribution Date and Special Distribution Date, the
Trustee will request from the Clearing Agency a securities position listing
setting forth the names of all Clearing Agency Participants reflected on
the Clearing Agency's books as holding interests in the Certificates on
such Record Date.
(d) If with respect to the Certificates of any series (i)
the Company advises the Trustee in writing that the Clearing Agency is no
longer willing or able to discharge properly its responsibilities and the
Trustee or the Company is unable to locate a qualified successor, (ii) the
Company, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after
the occurrence of an Event of Default, Certificate Owners of Book-Entry
Certificates of such series evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in the related Trust, by
Act of such Certificate Owners delivered to the Company and the Trustee,
advise the Company, the Trustee and the Clearing Agency through the
Clearing Agency Participants in writing that the continuation of a
book-entry system through the Clearing Agency Participants is no longer in
the best interests of the Certificate Owners of such series, then the
Trustee shall notify all Certificate Owners of such series, through the
Clearing Agency, of the occurrence of any such event and of the
availability of Definitive Certificates. Upon surrender to the Trustee of
all the Certificates of such series held by the Clearing Agency,
accompanied by registration instructions from the Clearing Agency
Participants for registration of Definitive Certificates in the names of
Certificate Owners of such series, the Trustee shall issue and deliver the
Definitive Certificates of such series in accordance with the instructions
of the Clearing Agency. None of the Company, the Registrar, the Paying
Agent or the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in
relying on, such registration instructions. Upon the issuance of Definitive
Certificates of such series, the Trustee shall recognize the Person in
whose name the Definitive Certificates are registered in the Register as
Certificateholders under this Agreement. 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) Except as otherwise provided in the related Trust
Supplement, the Trustee shall enter into the applicable Letter of
Representations with respect to such series of Certificates and fulfill its
responsibilities thereunder.
(f) The provisions of this Section 3.05 may be made
inapplicable to any series or may be amended with respect to any series in
the related Trust Supplement.
Section 3.06. 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 bona fide purchaser, and provided, however, 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 of
like series, 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 3.06, the Trustee shall require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee and the Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section 3.06
shall constitute conclusive evidence of the appropriate Fractional
Undivided Interest in the related Trust, as if originally issued, whether
or not the lost, stolen or destroyed Certificate shall be found at any
time.
The provisions of this Section 3.06 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 3.07. 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 3.08. 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 cancelled by it. No
Certificates shall be authenticated in lieu of or in exchange for any
Certificates cancelled as provided in this Section 3.08, except as
expressly permitted by this Agreement. All cancelled Certificates held by
the Registrar shall be destroyed and a certification of their destruction
delivered to the Trustee.
Section 3.09. Limitation of Liability for Payments. All payments
and distributions made to Certificateholders of any series in respect of
the Certificates of such series shall be made only from the Trust Property
of the related Trust and only to the extent that the Trustee shall have
sufficient income or proceeds from such Trust Property to make such
payments in accordance with the terms of Article IV of this Agreement. Each
Certificateholder, by its acceptance of a Certificate, agrees that it will
look solely to the income and proceeds from the Trust Property of the
related Trust 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 Owner Trustees
or the Owner Participants, except as otherwise expressly provided in this
Agreement or in the related Intercreditor Agreement.
The Company is a party to this Agreement solely for purposes of
meeting the requirements of the Trust Indenture Act, and therefore the
Company 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 of each series a Certificate Account as one or more
non-interest-bearing accounts. The Trustee shall hold such Certificate
Account in trust for the benefit of the Certificateholders of such series,
and shall make or permit withdrawals therefrom only as provided in this
Agreement. On each day when a Scheduled Payment is made to the Trustee
(under an Intercreditor Agreement, if applicable) with respect to the
Certificates of such series, the Trustee, upon receipt thereof, shall
immediately deposit the aggregate amount of such Scheduled Payment in such
Certificate Account.
(b) The Trustee shall establish and maintain on behalf of
the Certificateholders of each series a Special Payments Account as one or
more accounts, which shall be non-interest bearing except as provided in
Section 4.04. The Trustee shall hold the Special Payments Account in trust
for the benefit of the Certificateholders of such series and shall make or
permit withdrawals therefrom only as provided in this Agreement. On each
day when one or more Special Payments are made to the Trustee (under an
Intercreditor Agreement, if applicable) with respect to the Certificates of
such series, the Trustee, upon receipt thereof, shall immediately deposit
the aggregate amount of such Special Payments in such Special Payments
Account.
(c) The Trustee shall present (or, if applicable, 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 with respect to a
series of Certificates or as soon thereafter as the Trustee has confirmed
receipt of the payment of all or any part of the Scheduled Payments due on
the Equipment Notes held (subject to the Intercreditor Agreement) in the
related Trust on such date, the Trustee shall distribute out of the
applicable Certificate Account the entire amount deposited therein pursuant
to Section 4.01(a). There shall be so distributed to each Certificateholder
of record of such series on the Record Date with respect to such Regular
Distribution Date (other than as provided in Section 11.01 concerning the
final distribution) by check mailed to such Certificateholder, at the
address appearing in the Register, such Certificateholder's pro rata share
(based on the Fractional Undivided Interest in the Trust held by such
Certificateholder) of the total amount in the applicable Certificate
Account, except that, with respect to Certificates registered on the Record
Date in the name of a Clearing Agency (or its nominee), such distribution
shall be made by wire transfer in immediately available funds to the
account designated by such Clearing Agency (or such nominee).
(b) On each Special Distribution Date with respect to any
Special Payment with respect to a series of Certificates or as soon
thereafter as the Trustee has confirmed receipt of any Special Payments due
on the Equipment Notes held (subject to the Intercreditor Agreement) in the
related Trust or realized upon the sale of such Equipment Notes, the
Trustee shall distribute out of the applicable Special Payments Account the
entire amount of such applicable Special Payment deposited therein pursuant
to Section 4.01(b). There shall be so distributed to each Certificateholder
of record of such series on the Record Date with respect to such Special
Distribution Date (other than as provided in Section 11.01 concerning the
final distribution) by check mailed to such Certificateholder, at the
address appearing in the Register, such Certificateholder's pro rata share
(based on the Fractional Undivided Interest in the related Trust held by
such Certificateholder) of the total amount in the applicable Special
Payments Account on account of such Special Payment, except that, with
respect to Certificates registered on the Record Date in the name of a
Clearing Agency (or its nominee), such distribution shall be made by wire
transfer in immediately available funds to the account designated by such
Clearing Agency (or such nominee).
(c) The Trustee shall, at the expense of the Company, cause
notice of each Special Payment with respect to a series of Certificates to
be mailed to each Certificateholder of such series at his address as it
appears in the Register. In the event of redemption or purchase of
Equipment Notes held in the related Trust, such notice shall be mailed not
less than 15 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 that the Trustee receives a notice from the Company that Postponed
Notes will not be purchased by the Trustee pursuant to Section 2.02, such
notice of Special Payment shall be mailed as soon as practicable after
receipt of such notice from the Company and shall state the Special
Distribution Date for such Special Payment, which shall occur 15 days after
the date of such notice of Special Payment or (if such 15th day is not
practicable) as soon as practicable thereafter. In the event that any
Special Payment is to be made pursuant to the last paragraph of Section
2.02(b) hereof, there shall be mailed on the Cut-off Date (or, if such
mailing on the Cut-off Date is not practicable, as soon as practicable
after the Cut-off Date), notice of such Special Payment stating the Special
Distribution Date for such Special Payment, which shall occur 15 days after
the date of such notice of such Special Payment (or, if such 15th day is
not practicable, as soon as practicable thereafter). 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 15 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 (taking into
account any payment to be made by the Company pursuant to
Section 2.02(b)) for each $1,000 face amount Certificate and
the amount thereof constituting principal, premium, if any,
and interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same
date as a Regular Distribution Date for the Certificates of
such series, the total amount to be received on such date
for each $1,000 face amount Certificate.
If the amount of premium, if any, payable upon the redemption or purchase
of an Equipment Note has not been calculated at the 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 any Trust is
cancelled, the Trustee, as soon as possible after learning thereof, shall
cause notice thereof to be mailed to each Certificateholder of the related
series at its address as it appears on the Register.
Section 4.03. Statements to Certificateholders. (a) On each Regular
Distribution Date and Special Distribution Date, the Trustee will include
with each distribution of a Scheduled Payment or Special Payment, as the
case may be, to Certificateholders of the related series a statement
setting forth the information provided below. Such statement shall set
forth (per $1,000 aggregate principal amount of Certificate as to (i) and
(ii) below) the following information:
(i) the amount of such distribution under this
Agreement allocable to principal and the amount allocable to
premium, if any;
(ii) the amount of such distribution under this
Agreement allocable to interest; and
(iii) the Pool Balance and the Pool Factor of the
related Trust.
With respect to the Certificates registered in the name of a
Clearing Agency or its nominee, on the Record Date prior to each
Distribution Date, the Trustee will request from the Clearing Agency a
securities position listing setting forth the names of all the Clearing
Agency Participants reflected on the Clearing Agency's books as holding
interests in the Certificates on such Record Date. On each Distribution
Date, the applicable Trustee will mail to each such Clearing Agency
Participant the statement described above and will make available
additional copies as requested by such Clearing Agency Participant for
forwarding to holders of interests in the Certificates.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the
Trustee shall furnish to each Person who at any time during such calendar
year was a Certificateholder of record a statement containing the sum of
the amounts determined pursuant to clauses (a)(i) and (a)(ii) above with
respect to the related Trust for such calendar year or, in the event such
Person was a Certificateholder of record during a portion of such calendar
year, for the applicable portion of such year, and such other items as are
readily available to the Trustee and which a Certificateholder shall
reasonably request as necessary for the purpose of such Certificateholder's
preparation of its federal income tax returns. With respect to Certificates
registered in the name of a Clearing Agency or its nominee, such statement
and such other items shall be prepared on the basis of information supplied
to the Trustee by the Clearing Agency Participants and shall be delivered
by the Trustee to such Clearing Agency Participants to be available for
forwarding by such Clearing Agency Participants to the holders of interests
in the Certificates in the manner described in Section 4.03(a).
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 by the Trustee in Permitted Investments selected
by the Company in written instructions to the Trustee pending distribution
of such Special Payment pursuant to Section 4.02. Absent receipt of such
instructions from the Company, such Special Payment shall remain uninvested
by the Trustee pending receipt of written investment instructions. Any
investment made pursuant to this Section 4.04 shall be in such Permitted
Investments having maturities not later than the date that such moneys are
required to be used to make the payment required under Section 4.02 on the
applicable Special Distribution Date and the Trustee shall hold any such
Permitted Investments until maturity. The Trustee shall have no liability
with respect to any investment made pursuant to this Section 4.04, other
than by reason of the willful misconduct or negligence of the Trustee. All
income and earnings from such investments shall be distributed on such
Special Distribution Date as part of such Special Payment.
ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence. The Company, at
its own cost and expense, will do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence,
rights and franchises, except as otherwise specifically permitted in
Section 5.02; provided, however, that the Company shall not be required to
preserve any right or franchise if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Company.
Section 5.02. Consolidation, Merger, Etc. The Company shall not
consolidate with or merge into any other corporation or convey, transfer or
lease substantially all of its assets as an entirety to any Person unless:
(a) the corporation formed by such consolidation or
into which the Company is merged or the Person that acquires by
conveyance, transfer or lease substantially all of the assets of
the Company as an entirety shall (i) be organized and validly
existing under the laws of the United States of America or any
state thereof or the District of Columbia, (ii) be a "citizen of
the United States" as defined in 49 U.S.C. ss.ss. 40102(a)(15), as
amended, and (iii) hold an air carrier operating certificate issued
pursuant to Chapter 447 of Title 49 of the United States Code for
aircraft capable of carrying 10 or more individuals or 6,000 pounds
or more of cargo, 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. ss.ss. 1110), with
respect to the Leases or the Aircraft owned by the Company;
(b) the corporation formed by such consolidation or
into which the Company is merged or the Person which acquires by
conveyance, transfer or lease substantially all of the assets of
the Company as an entirety shall execute and deliver to the Trustee
applicable to the Certificates of each series a duly authorized,
valid, binding and enforceable agreement in form and substance
reasonably satisfactory to the Trustee containing an assumption by
such successor corporation or Person of the due and punctual
performance and observance of each covenant and condition of the
Note Documents and of this Agreement applicable to the Certificates
of each series 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 and an Opinion of Counsel
of the Company (that may be the Company's General Counsel, Deputy
General Counsel, Associate General Counsel or other senior attorney
of the Company) reasonably satisfactory to the Trustee, each
stating that such consolidation, merger, conveyance, transfer or
lease and the assumption agreement mentioned in clause (b) above
comply with this Section 5.02 and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
Upon any consolidation or merger, or any conveyance, transfer or
lease of substantially all of the assets of the Company as an entirety in
accordance with this Section 5.02, the successor corporation or Person
formed by such consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company
under this Agreement applicable to the Certificates of each series with the
same effect as if such successor corporation or Person had been named as
the Company herein. No such conveyance, transfer or lease of substantially
all of the assets of the Company as an entirety shall have the effect of
releasing 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 Note Document applicable to the Certificates of
such series to which it is a party.
ARTICLE VI
DEFAULT
Section 6.01. Indenture Events of Default and Triggering Events.
(a) Upon the occurrence and during the continuation of any Indenture Event
of Default under any Indenture, the Trustee may (i) to the extent it is the
Controlling Party at such time (as determined pursuant to the related
Intercreditor Agreement), direct the exercise of remedies as provided in
such related Intercreditor Agreement and (ii) if there is no related
Intercreditor Agreement, direct the exercise of remedies or take other
action as provided in the relevant Indenture to the extent that it may do
so as the holder of the Equipment Notes issued under such Indenture and
held in the related Trust.
(b) By acceptance of its Certificate, each Certificateholder
agrees that at any time after the occurrence and during the continuation of
a Triggering Event, each Certificateholder of Certificates of certain
series (each, a "Potential Purchaser" and, collectively, the "Potential
Purchasers") will have certain rights to purchase the Certificates of one
or more other series, all as set forth in the Trust Supplement applicable
to the Certificates held by such Potential Purchaser. The purchase price
with respect to the Certificates of any series shall be equal to the Pool
Balance of the Certificates of such series, together with accrued and
unpaid interest thereon to the date of such purchase, without premium, but
including any other amounts then due and payable to the Certificateholders
of such series under this Agreement, any related Intercreditor Agreement or
any other Note Document or on or in respect of the Certificates of such
series; provided, however, that if such purchase occurs after a Record
Date, such purchase price shall be reduced by the amount to be distributed
under this Agreement 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 of such series shall be effective unless the
purchasing Certificateholder (each, a "Purchasing Certificateholder" and,
collectively, the "Purchasing Certificateholders") shall certify to the
Trustee that contemporaneously with such purchase, one or more Purchasing
Certificateholders are purchasing, pursuant to the terms of this Agreement
and the other Agreements, if any, relating to the Certificates of a series
that are subject to the same Intercreditor Agreement (such other
Agreements, the "Other Agreements"), the Certificates of each such series
that the Trust Supplement applicable to the Certificates held by the
Purchasing Certificateholder specifies may be purchased by such Purchasing
Certificateholder. Each payment of the purchase price of the Certificates
of any series shall be made to an account or accounts designated by the
Trustee and each such purchase shall be subject to the terms of this
Section 6.01. By acceptance of its Certificate, each Certificateholder
(each, a "Selling Certificateholder" and, collectively, the "Selling
Certificateholders") of a series that is subject to purchase by Potential
Purchasers, all as set forth in the Trust Supplement applicable to the
Certificates held by the Selling Certificateholders, agrees that, at any
time after the occurrence and during the continuance of a Triggering Event,
it will, upon payment of the purchase price specified in this Agreement by
one or more Purchasing Certificateholders, forthwith sell, assign, transfer
and convey to such Purchasing Certificateholder (without recourse,
representation or warranty of any kind except for its own acts), all of the
right, title, interest and obligation of such Selling Certificateholder in
this Agreement, any related Intercreditor Agreement, the related Liquidity
Facility, the related Insurance Policy, the related Note Documents and all
Certificates of such series held by such Selling 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 Purchasing Certificateholder shall
assume all of such Selling Certificateholder's obligations under this
Agreement, any related Intercreditor Agreement, the related Liquidity
Facility, the related Insurance Policy and the related Note Documents. The
Certificates of such series will be deemed to be purchased on the date
payment of the purchase price is made notwithstanding the failure of any
Selling Certificateholder to deliver any Certificates of such series and,
upon such a purchase, (i) the only rights of the Selling Certificateholders
will be to deliver the Certificates to the Purchasing Certificateholder and
receive the purchase price for such Certificates of such series and (ii) if
the Purchasing Certificateholder shall so request, such Selling
Certificateholder will comply with all of the provisions of Section 3.04
hereof to enable new Certificates of such series to be issued to the
Purchasing Certificateholder 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 Purchasing Certificateholder.
Section 6.02. Incidents of Sale of Equipment Notes. Upon any sale
of all or any part of the Equipment Notes held in the Trust 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 held in the Trust, 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 held in
the related Trust, 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 any related Intercreditor Agreement and any related Note Documents
(subject to 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 any related Intercreditor Agreement, the Certificateholders
holding Certificates of a series evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in the related Trust shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee with respect to such
Trust or pursuant to the terms of such Intercreditor Agreement, or
exercising any trust or power conferred on the Trustee under this Agreement
or such Intercreditor Agreement, including any right of the Trustee as
Controlling Party under such Intercreditor Agreement or as holder of the
Equipment Notes held in the related Trust; provided, however, that
(1) such Direction shall not in the opinion of the Trustee
be in conflict with any rule of law or with this Agreement and
would not involve the Trustee in personal liability or expense,
(2) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Certificateholders of
such series not taking part in such Direction, and
(3) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such Direction.
Section 6.05. Waiver of Past Defaults. Subject to any related
Intercreditor Agreement, the Certificateholders holding Certificates of a
series evidencing Fractional Undivided Interests aggregating not less than
a majority in interest in the Trust (i) may on behalf of all of the
Certificateholders waive any past Event of Default under this Agreement 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 Event of Default under any related 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 of a series, or
(2) in the payment of the principal of (premium, if any) or
interest on the Equipment Notes held in the related Trust, or
(3) in respect of a covenant or provision hereof which under
Article IX hereof cannot be modified or amended without the consent
of each Certificateholder holding an Outstanding Certificate of a
series affected thereby.
Upon any such waiver, such default shall cease to exist with respect to the
Certificates of such series and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose and any direction
given by the Trustee on behalf of the Certificateholders of such series to
the relevant 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 Event of Default.
Section 6.06. Right of Certificateholders to Receive Payments Not
to Be Impaired. Anything in this Agreement to the contrary notwithstanding,
including, without limitation, Section 6.07 hereof, but subject to any
related Intercreditor Agreement, the right of any Certificateholder to
receive distributions of payments required pursuant to Section 4.02 hereof
on the applicable Certificates when due, or to institute suit for the
enforcement of any such payment on or after the applicable Regular
Distribution Date or Special Distribution Date, shall not be impaired or
affected without the consent of such Certificateholder.
Section 6.07. Certificateholders May Not Bring Suit Except Under
Certain Conditions. A Certificateholder of any series shall not have the
right to institute any suit, action or proceeding at law or in equity or
otherwise with respect to this Agreement, for the appointment of a receiver
or for the enforcement of any other remedy under this Agreement, unless:
(1) such Certificateholder previously shall have given
written notice to the Trustee of a continuing Event of Default;
(2) Certificateholders holding Certificates of such series
evidencing Fractional Undivided Interests aggregating not less than
25% of the related Trust shall have requested the Trustee in
writing to institute such action, suit or proceeding and shall have
offered to the Trustee indemnity as provided in Section 7.03(e);
(3) the Trustee shall have refused or neglected to institute
any such action, suit or proceeding for 60 days after receipt of
such notice, request and offer of indemnity; and
(4) no direction inconsistent with such written request
shall have been given to the Trustee during such 60-day period by
Certificateholders holding Certificates of such series evidencing
Fractional Undivided Interests aggregating not less than a majority
in interest in the related Trust.
It is understood and intended that no one or more of the
Certificateholders of any series shall have any right in any manner
whatsoever hereunder or under the related Trust Supplement or under the
Certificates of such series to (i) surrender, impair, waive, affect,
disturb or prejudice any property in the Trust Property of the related
Trust, or the lien of any related Indenture on any property subject
thereto, or the rights of the Certificateholders of such series or the
holders of the related Equipment Notes, (ii) obtain or seek to obtain
priority over or preference with respect to any other such
Certificateholder of such series or (iii) enforce any right under this
Agreement, except in the manner provided in this Agreement and for the
equal, ratable and common benefit of all the Certificateholders of such
series subject to the provisions of this Agreement.
Section 6.08. Remedies Cumulative. Every remedy given under this
Agreement to the Trustee or to any of the Certificateholders of any series
shall not be exclusive of any other remedy or remedies, and every such
remedy shall be cumulative and in addition to every other remedy given
under this Agreement or now or hereafter given by statute, law, equity or
otherwise.
Section 6.09. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Agreement, or in any suit
against the Trustee for any action taken, suffered or omitted by it as
Trustee, a court may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess costs against any
such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, however, that neither this Section 6.09 nor the
Trust Indenture Act shall be deemed to authorize any court to require such
an undertaking or to make such an assessment in any suit instituted by the
Company.
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities. (a) Except
during the continuance of an Event of Default in respect of a Trust, the
Trustee undertakes to perform such duties in respect of such Trust 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 in respect of a Trust has
occurred and is continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Agreement in respect of such Trust, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(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 7.01; 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 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 7.01.
Section 7.02. Notice of Defaults. (a) As promptly as practicable
after, and in any event within 90 days after, the occurrence of any default
(as such term is defined below) hereunder known to the Trustee, the Trustee
shall transmit by mail to the Company, any related Owner Trustees, any
related Owner Participants, the related Loan Trustees and the
Certificateholders holding Certificates of the related series in accordance
with Section 313(c) of the Trust Indenture Act, notice of such default
hereunder known to the Trustee, unless such default shall have been cured
or waived; provided, however, that, except in the case of a default in the
payment of the principal, premium, if any, or interest on any Equipment
Note, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good
faith shall determine that the withholding of such notice is in the
interests of the Certificateholders of the related series. For the purpose
of this Section 7.02 in respect of any Trust, the term "Default" means any
event that is, or after notice or lapse of time or both would become, an
Event of Default in respect of that Trust.
(b) The Trustee shall not be deemed to have knowledge of any
Default unless a Responsible Officer of the Trustee shall have received
written notice of such Default; provided, however, that the Trustee shall
be deemed to have notice of any failure to receive Scheduled Payments under
this Agreement.
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 Request;
(c) whenever in the administration of this Agreement
or any Intercreditor Agreement, the Trustee shall deem it desirable
that a matter be proved or established prior to 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 related Owner Trustee or any related Loan Trustee;
(d) the Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement
or any Intercreditor Agreement at the Direction of any of the
Certificateholders pursuant to this Agreement or any Intercreditor
Agreement, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the cost, expenses
and liabilities which might be incurred by it in compliance with
such 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 any Intercreditor Agreement or
perform any duties under this Agreement or any Intercreditor
Agreement either directly or by or through agents or attorneys, and
the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due
care by it under this Agreement or any Intercreditor Agreement;
(h) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the Direction of the Certificateholders holding
Certificates of any series evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the
related Trust relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under
this Agreement or any Intercreditor Agreement; 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 of each
series, except the certificates of authentication, shall not be taken as
the statements of the Trustee, and the Trustee assumes no responsibility
for their correctness. Subject to Section 7.15, the Trustee makes no
representations as to the validity or sufficiency of this Basic Agreement,
any Equipment Notes, any Intercreditor Agreement, the Certificates of any
series, any Trust Supplement or any Note Documents, except that the Trustee
hereby represents and warrants that this Basic Agreement has been, and each
Trust Supplement, each Certificate, each Note Purchase Agreement and each
Intercreditor Agreement of, or relating to, each series will be executed
and delivered by one of its officers who is duly authorized to execute and
deliver such document on its behalf.
Section 7.05. 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,
any 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 under this Agreement need not be segregated from
other funds except to the extent required in this Agreement 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 in this Agreement.
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 under
this Agreement (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust); and
(2) except as otherwise expressly provided herein or in any
Trust Supplement, to reimburse, or cause to be reimbursed, the
Trustee upon its request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Basic Agreement, any Trust
Supplement or any Intercreditor Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may
be attributable to its negligence, willful misconduct or bad faith
or as may be incurred due to the Trustee's breach of its
representations and warranties set forth in Section 7.15; and
(3) to indemnify, or cause to be indemnified, the Trustee
with respect to the Certificates of any series, pursuant to the
particular sections of the Note Purchase Agreement specified in the
related Trust Supplement.
The Trustee shall be entitled to reimbursement from, and shall have
a lien prior to the Certificates of each series upon, all property and
funds held or collected by the Trustee in its capacity as Trustee with
respect to such series or the related Trust for any tax incurred without
negligence, bad faith or willful misconduct, on its part, arising out of or
in connection with the acceptance or administration of such Trust (other
than any tax attributable to the Trustee's compensation for serving as
such), including any costs and expenses incurred in contesting the
imposition of any such tax. The Trustee shall notify the Company of any
claim for any tax for which it may seek reimbursement. 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 amount of such
tax and the circumstances thereof to all Certificateholders of such series
as their names and addresses appear in the Register.
Section 7.08. Corporate Trustee Required; Eligibility. Each Trust
shall at all times have a Trustee which shall be eligible to act as a
trustee under Section 310(a) of the Trust Indenture Act and shall have a
combined capital and surplus of at least $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 of
any Trust, the Trustee shall resign immediately as Trustee of such Trust 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 of any Trust 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 of any or
all Trusts by giving prior written notice thereof to the Company, the
Authorized Agents, the related Owner Trustees and the related Loan
Trustees. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Company, the related Owner Trustees and the
Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Direction of
the Certificateholders of the related series holding Certificates
evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in such Trust delivered to the Trustee and to the
Company, the related Owner Trustees and the related Loan Trustees.
(d) If at any time in respect of any Trust:
(1) the Trustee shall fail to comply with Section 310 of the
Trust Indenture Act, 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 of the related series 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 of
such Trust.
(e) If a Responsible Officer of the Trustee shall obtain
actual knowledge of an Avoidable Tax (as defined below) in respect of any
Trust which has been or is likely to be asserted, the Trustee shall
promptly notify the Company and shall, within 30 days of such notification,
resign as Trustee of such Trust hereunder unless within such 30-day period
the Trustee shall have received notice that the Company has agreed to pay
such tax. The Company shall promptly appoint a successor Trustee of such
Trust in a jurisdiction where there are no Avoidable Taxes. As used herein,
an "Avoidable Tax" in respect of such Trust means a state or local tax: (i)
upon (w) such Trust, (x) such Trust Property, (y) Certificateholders of
such Trust or (z) the Trustee for which the Trustee is entitled to seek
reimbursement from the Trust Property of such Trust, and (ii) which would
be avoided if the Trustee were located in another state, or jurisdiction
within a state, within the United States of America. A tax shall not be an
Avoidable Tax in respect of any Trust if the Company or any Owner Trustee
shall agree to pay, and shall pay, such tax.
(f) If the Trustee shall resign, be removed or become
incapable of acting as Trustee of any Trust or if a vacancy shall occur in
the office of the Trustee of any Trust for any cause, the Company shall
promptly appoint a successor Trustee of such Trust. If, within one year
after such resignation, removal or incapability, or other occurrence of
such vacancy, a successor Trustee of such Trust shall be appointed by
Direction of the Certificateholders of the related series holding
Certificates of such series evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in such Trust delivered to
the Company, the related Owner Trustees, the related Loan Trustee and the
retiring Trustee, then the successor Trustee of such Trust so appointed
shall, with the approval of the Company of such appointment, which approval
shall not be unreasonably withheld, forthwith upon its acceptance of such
appointment, become the successor Trustee of such Trust and supersede the
successor Trustee of such Trust appointed as provided above. If no
successor Trustee shall have been so appointed as provided above and
accepted appointment in the manner hereinafter provided, the resigning
Trustee or any Certificateholder who has been a bona fide Certificateholder
of the related series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee of such Trust.
(g) The successor Trustee of a Trust shall give notice of
the resignation and removal of the Trustee and appointment of the successor
Trustee by mailing written notice of such event by first-class mail,
postage prepaid, to the Certificateholders of the related series as their
names and addresses appear in the Register. Each notice shall include the
name of such successor Trustee and the address of its Corporate Trust
Office.
Section 7.10. Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder shall execute and deliver to the
Company and to the retiring Trustee with respect to any or all Trusts an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee with respect to such Trusts shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall execute and deliver an
instrument transferring to such successor Trustee all such rights, powers
and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all Trust Property held by such retiring
Trustee in respect of such Trusts 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.
If a successor Trustee is appointed with respect to one or more
(but not all) Trusts, the Company, the predecessor Trustee and each
successor Trustee with respect to any Trust shall execute and deliver a
supplemental agreement hereto which shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the predecessor Trustee with respect to the Trusts as
to which the predecessor Trustee is not retiring shall continue to be
vested in the predecessor Trustee, and shall add to or change any of the
provisions of this Basic Agreement and the applicable Trust Supplements as
shall be necessary to provide for or facilitate the administration of the
Trusts under this Agreement by more than one Trustee, it being understood
that nothing herein or in such supplemental agreement shall constitute such
Trustees as co-Trustees of the same Trust and that each such Trustee shall
be Trustee of separate 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, however, that 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) With respect to each
series of Certificates, there shall at all times be maintained an office or
agency in the location set forth in Section 12.04 where Certificates of
such series may be presented or surrendered for registration of transfer or
for exchange, and for payment thereof, and where notices and demands, to or
upon the Trustee in respect of such Certificates or this Agreement may be
served; provided, however, that, if it shall be necessary that the Trustee
maintain an office or agency in another location with respect to the
Certificates of any series (e.g., the Certificates of such series 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, any Owner Trustees, the Loan Trustees
(in the case of any Owner Trustee or Loan Trustee, at its address specified
in the Note Documents or such other address as may be notified to the
Trustee) and the Certificateholders of such series. In the event that no
such office or agency shall be maintained or no such notice of location or
of change of location shall be given, presentations and demands may be made
and notices may be served at the Corporate Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a Paying
Agent hereunder with respect to the Certificates of each series. Each such
Authorized Agent shall be a bank or trust company, shall be a corporation
organized and doing business under the laws of the United States or any
state, with a combined capital and surplus of at least $75,000,000, or a
corporation having a combined capital and surplus in excess of $5,000,000,
the obligations of which are guaranteed by a corporation organized and
doing business under the laws of the United States or any state, with a
combined capital and surplus of at least $75,000,000, and shall be
authorized under such laws to exercise corporate trust powers, subject to
supervision by federal or state authorities. The Trustee shall initially be
the Paying Agent and, as provided in Section 3.04, Registrar hereunder with
respect to the Certificates of each series. Each Registrar shall furnish to
the Trustee, at stated intervals of not more than six months, and at such
other times as the Trustee may request in writing, a copy of the Register
maintained by such Registrar.
(c) Any corporation into which any Authorized Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, consolidation or conversion to which
any Authorized Agent shall be a party, or any corporation succeeding to the
corporate trust business of any Authorized Agent, shall be the successor of
such Authorized Agent, if such successor corporation is otherwise eligible
under this Section 7.12, without the execution or filing of any paper or
any further act on the part of the parties hereto or such Authorized Agent
or such successor corporation.
(d) Any Authorized Agent may at any time resign by giving
written notice of resignation to the Trustee, the Company, any related
Owner Trustees and the related 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 7.12 (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 7.12. The Company shall give written notice of
any such appointment made by it to the Trustee, any related Owner Trustees
and the related Loan Trustees; and in each case the Trustee shall mail
notice of such appointment to all Certificateholders of the related series
as their names and addresses appear on the Register for such series.
(e) The Company agrees to pay, or cause to be paid, from
time to time to each Authorized Agent reasonable compensation for its
services and to reimburse it for its reasonable expenses.
Section 7.13. 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 7.13. 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 Trustee's Name.
Subject to the provisions of any Intercreditor Agreement, the Trustee
agrees that all Equipment Notes to be purchased by any Trust and Permitted
Investments, if any, shall be issued in the name of the Trustee as trustee
for the applicable Trust or its nominee and held by the Trustee in trust
for the benefit of the Certificateholders of such series, or, if not so
held, the Trustee or its nominee shall be reflected as the owner of such
Equipment Notes or Permitted Investments, as the case may be, in the
register of the issuer of such Equipment Notes or Permitted Investments, as
the case may be.
Section 7.15. Representations and Warranties of Trustee. The
Trustee hereby represents and warrants that:
(a) the Trustee is a national banking association
organized and validly existing in good standing under the laws of
the State of Connecticut.
(b) the Trustee has full power, authority and legal
right to execute, deliver and perform this Agreement, any
Intercreditor Agreement and the Note Purchase Agreements and has
taken all necessary action to authorize the execution, delivery and
performance by it of this Agreement, any Intercreditor Agreement
and the Note Purchase Agreements;
(c) the execution, delivery and performance by the
Trustee of this Agreement, any Intercreditor Agreement and the Note
Purchase Agreements (i) will not violate any provision of any
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 charter documents or by-laws of the Trustee, and (iii) will
not violate any provision of, or constitute, with or without notice
or lapse of time, a default under, or result in the creation or
imposition of any lien on any properties included in the Trust
Property pursuant to the provisions of any mortgage, indenture,
contract, agreement or other undertaking to which it is a party,
which violation, default or lien could reasonably be expected to
have an adverse effect on the Trustee's performance or ability to
perform its duties hereunder or thereunder or on the transactions
contemplated herein or therein;
(d) the execution, delivery and performance by the
Trustee of this Agreement, any Intercreditor Agreement and the Note
Purchase Agreements will not require the authorization, consent, or
approval of, the giving of notice to, the filing or registration
with, or the taking of any other action in respect of, any
governmental authority or agency of the United States or the state
of the United States where it is located regulating the banking and
corporate trust activities of the Trustee; and
(e) this Agreement, any Intercreditor Agreement and
the Note Purchase Agreements have been or will be duly executed and
delivered by the Trustee and upon such execution and delivery will
constitute the legal, valid and binding agreements of the Trustee,
enforceable against it in accordance with their respective terms;
provided, however, that enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and (ii)
general principles of equity.
Section 7.16. Withholding Taxes; Information Reporting. As to the
Certificates of any series, the Trustee, as trustee of the related grantor
trust created by this Agreement, shall exclude and withhold from each
distribution of principal, premium, if any, and interest and other amounts
due under this Agreement or under the Certificates of such series any and
all withholding taxes applicable thereto as required by law. The Trustee
agrees to act as such withholding agent and, in connection therewith,
whenever any present or future taxes or similar charges are required to be
withheld with respect to any amounts payable in respect of the Certificates
of such series, to withhold such amounts and timely pay the same to the
appropriate authority in the name of and on behalf of the
Certificateholders of such series, that it will file any necessary
withholding tax returns or statements when due, and that, as promptly as
possible after the payment thereof, it will deliver to each such
Certificateholder of such series 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.
Section 7.17. Trustee's Liens. The Trustee in its individual
capacity agrees that it will, in respect of each Trust created by this
Agreement, at its own cost and expense promptly take any action as may be
necessary to duly discharge and satisfy in full any mortgage, pledge, lien,
charge, encumbrance, security interest or claim ("Trustee's Liens") on or
with respect to the Trust Property of such Trust which is attributable to
the Trustee either (i) in its individual capacity and which is unrelated to
the transactions contemplated by this Agreement or the related Note
Documents or (ii) as Trustee under this Agreement or in its individual
capacity and which arises out of acts or omissions 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 of each series, in each case as of a date not more than
15 days prior to the time such list is furnished; provided, however, that
so long as the Trustee is the sole Registrar for such series, no such list
need be furnished; and provided further, however, that no such list need be
furnished for so long as a copy of the Register is being furnished to the
Trustee pursuant to Section 7.12.
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 of
each series 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 of each series received by the Trustee
in its capacity as Registrar, if so acting. The Trustee may destroy any
list furnished to it as provided in Section 7.12 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 any
series of Certificates, the Trustee shall transmit to the
Certificateholders of such series, as provided in Section 313(c) of the
Trust Indenture Act, a brief report dated as of May 15, if required by
Section 313(a) of the Trust Indenture Act.
Section 8.04. Reports by the Company. The Company shall:
(a) file with the Trustee, within 30 days after the
Company is required to file the same with the SEC, copies of the
annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the SEC may
from time to time by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934, as amended;
or, if the Company is not required to file information, documents
or reports pursuant to either of such sections, then to file with
the Trustee and the SEC, in accordance with rules and regulations
prescribed by the SEC, such of the supplementary and periodic
information, documents and reports which may be required pursuant
to section 13 of the Securities Exchange Act of 1934, as amended,
in respect of a security listed and registered on a national
securities exchange as may be prescribed in such rules and
regulations;
(b) file with the Trustee and the SEC, in accordance
with the rules and regulations prescribed by the SEC, such
additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of the
Company provided for in this Agreement, as may be required by such
rules and regulations, including, in the case of annual reports, if
required by such rules and regulations, certificates or opinions of
independent public accountants, conforming to the requirements of
Section 1.02;
(c) transmit to all Certificateholders, in the manner
and to the extent provided in Section 313(c) of the Trust Indenture
Act such summaries of any information, documents and reports
required to be filed by the Company pursuant to subsections (a) and
(b) of this Section 8.04 as may be required by rules and
regulations prescribed by the SEC; and
(d) furnish to the Trustee, not less often than
annually, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to
his knowledge of the Company's compliance with all conditions and
covenants under this Agreement (it being understood that for
purposes of this paragraph (d), such compliance shall be determined
without regard to any period of grace or requirement of notice
provided under this Agreement).
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 an Intercreditor Agreement, a Note Purchase Agreement, a
Liquidity Facility or an Insurance Policy, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to provide for the formation of a Trust, the issuance of
a series of Certificates and other matters contemplated by Section
2.01(b); or
(2) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants
of the Company herein contained or of the Company's obligations
under any Intercreditor Agreement, any Note Purchase Agreement, any
Liquidity Facility or any Insurance Policy; or
(3) to add to the covenants of the Company for the benefit
of the Certificateholders of any series, or to surrender any right
or power conferred upon the Company in this Agreement, any
Intercreditor Agreement, any Liquidity Facility or any Insurance
Policy; or
(4) to correct or supplement any provision in this
Agreement, any Intercreditor Agreement, any Note Purchase
Agreement, any Liquidity Facility or any Insurance Policy which may
be defective or inconsistent with any other provision herein or
therein or to cure any ambiguity or to modify any other provision
with respect to matters or questions arising under this Agreement,
any Intercreditor Agreement, any Note Purchase Agreement, any
Liquidity Facility or any Insurance Policy, provided, however, that
any such action shall not materially adversely affect the interests
of the Certificateholders of any series; to correct any mistake in
this Agreement, any Intercreditor Agreement, any Note Purchase
Agreement, any Liquidity Facility or any Insurance Policy; or, as
provided in any Intercreditor Agreement, to give effect to or
provide for a Replacement Liquidity Facility (as defined in such
Intercreditor Agreement); or
(5) to comply with any requirement of the SEC, any
applicable law, rules or regulations of any exchange or quotation
system on which the Certificates of any series are listed or of any
regulatory body; or
(6) to modify, eliminate or add to the provisions of this
Agreement, any Intercreditor Agreement, any Note Purchase
Agreement, any Liquidity Facility or Insurance Policy to such
extent as shall be necessary to continue the qualification of this
Agreement, any Intercreditor Agreement, any Note Purchase
Agreement, any Liquidity Facility or any Insurance Policy under the
Trust Indenture Act or under any similar Federal statute hereafter
enacted, and to add to this Agreement, any Intercreditor Agreement,
any Note Purchase Agreement, any Liquidity Facility or any
Insurance Policy 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 Basic Agreement was
executed or any corresponding provision in any similar Federal
statute hereafter enacted; or
(7) to evidence and provide for the acceptance of
appointment under this Agreement, any Intercreditor Agreement, any
Note Purchase Agreement, any Liquidity Facility or any Insurance
Policy by a successor Trustee with respect to one or more Trusts
and to add to or change any of the provisions of this Agreement,
any Intercreditor Agreement, any Liquidity Facility or any
Insurance Policy as shall be necessary to provide for or facilitate
the administration of the Trust, pursuant to the requirements of
Section 7.10; or
(8) to provide the information required under Section 7.12
and Section 12.04 as to the Trustee; or
(9) to add to or change any of the provisions of this
Agreement to such extent as shall be necessary to facilitate the
issuance of Certificates in bearer form or to facilitate or provide
for the issuance of Certificates in global form in addition to or
in place of Certificates in certificated form; or
(10) to provide for the delivery of agreements supplemental
to this Agreement or the Certificates of any series in or by any
means of any computerized, electronic or other medium, including
without limitation by computer diskette; or
(11) to make any other amendments or modifications hereto,
provided, however, that such amendments or modifications shall
apply to Certificates of any series to be thereafter issued;
provided, however, that no such supplemental agreement shall adversely
affect the status of any Trust as a grantor trust under Subpart E, Part I
of Subchapter J of Chapter 1 of Subtitle A of the Internal Revenue Code of
1986, as amended, for U.S. federal income tax purposes.
Section 9.02. Supplemental Agreements with Consent of
Certificateholders. With respect to each separate Trust and the series of
Certificates relating thereto, with the consent of the Certificateholders
holding Certificates of such series (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 such Trust, by Direction of said Certificateholders
delivered to the Company and the Trustee, the Company may, but shall not be
obligated to, and the Trustee (subject to Section 9.03) shall, enter into
an agreement or agreements supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement, any Intercreditor Agreement, any Liquidity
Facility or any Insurance Policy to the extent applicable to such
Certificateholders or of modifying in any manner the rights and obligations
of such Certificateholders under this Agreement, any Intercreditor
Agreement, any Liquidity Facility or any Insurance Policy; 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 of payments on the Equipment Notes
held in such Trust or distributions that are required to be made
herein on any Certificate of such series, or change any date of
payment on any Certificate of such series, or change the place of
payment where, or the coin or currency in which, any Certificate of
such series is 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 of such Trust except as permitted by this
Agreement, or otherwise deprive such Certificateholder of the
benefit of the ownership of the Equipment Notes in such Trust; or
(3) alter the priority of distributions specified in the
Intercreditor Agreement in a manner materially adverse to the
interests of the Certificateholders of any series; or
(4) reduce the specified percentage of the aggregate
Fractional Undivided Interests of such Trust that 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
(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 of such series affected thereby; or
(6) adversely affect the status of any Trust as a grantor
trust under Subpart E, Part I of Subchapter J of Chapter 1 of
Subtitle A of the Internal Revenue Code of 1986, as amended, for
U.S. federal income tax purposes.
It shall not be necessary for any Direction of such
Certificateholders under this Section 9.02 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 any interest, right, duty,
immunity or indemnity in favor of the Trustee under this Basic Agreement or
any Trust Supplement, the Trustee may in its discretion decline to execute
such document.
Section 9.04. Execution of Supplemental Agreements. In executing,
or accepting the additional trusts created by, any supplemental agreement
permitted by this Article or the modifications thereby of the trusts
created by this Agreement, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental agreement is authorized or
permitted by this Agreement.
Section 9.05. Effect of Supplemental Agreements. Upon the execution
of any agreement supplemental to this Agreement under this Article, this
Basic Agreement shall be modified in accordance therewith, and such
supplemental agreement shall form a part of this Basic Agreement for all
purposes; and every Certificateholder of each series theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby to
the extent applicable to such series.
Section 9.06. Conformity with Trust Indenture Act. Every
supplemental agreement executed pursuant to this Article shall conform to
the requirements of the Trust Indenture Act as then in effect.
Section 9.07. Reference in Certificates to Supplemental Agreements.
Certificates of each series authenticated and delivered after the execution
of any supplemental agreement applicable to such series pursuant to this
Article may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental agreement; and, in such case,
suitable notation may be made upon Outstanding Certificates of such series
after proper presentation and demand.
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS
Section 10.01. Amendments and Supplements to Indenture and Other
Note Documents. In the event that the Trustee, as holder (or beneficial
owner through the Subordination Agent) of any Equipment Notes (or as a
prospective purchaser of any Postponed Notes) in trust for the benefit of
the Certificateholders of any series or as Controlling Party under an
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, other Note Document
or any other related document, the Trustee shall forthwith send a notice of
such proposed amendment, modification, waiver or supplement to each
Certificateholder of such series registered on the Register as of the date
of such notice. The Trustee shall request from the Certificateholders of
such series 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 (or, with respect to Postponed Notes, a
prospective purchaser 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 (or, with respect to Postponed Notes, a
prospective purchaser of) such Equipment Note or a Controlling Party and
(c) how to vote (or direct the Subordination Agent to vote) any Equipment
Note (or, with respect to a Postponed Note, its commitment to acquire such
Postponed 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 (or Postponed 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 of
such series 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 one Business
Day before the Trustee directs such action or casts such vote or gives such
consent. Notwithstanding the foregoing, but subject to Section 6.04 and any
Intercreditor Agreement, the Trustee may, with respect to the Certificates
of any series, 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 any related
Indenture or any other related Note 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 of such series.
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01. Termination of the Trusts. In respect of each Trust
created by the Basic Agreement as supplemented by a related Trust
Supplement, the respective obligations and responsibilities of the Company
and the Trustee with respect to such Trust shall terminate upon the
distribution to all Holders of Certificates of the series of such Trust and
the Trustee of all amounts required to be distributed to them pursuant to
this Agreement and the disposition of all property held as part of the
Trust Property of such Trust; provided, however, that in no event shall
such Trust continue beyond 21 years less one day following the death of the
last survivor of all descendants living on the date hereof of Joseph P.
Kennedy, Sr., unless applicable law shall permit a longer term, in which
case such longer term shall apply.
Notice of any termination of a Trust, specifying the applicable
Regular Distribution Date (or applicable Special Distribution Date, as the
case may be) upon which the Certificateholders of any series may surrender
their Certificates to the Trustee for payment of the final distribution and
cancellation, shall be mailed promptly by the Trustee to Certificateholders
of such series not earlier than the minimum number of days and not later
than the maximum number of days specified therefor in the related Trust
Supplement preceding such final distribution specifying (A) the Regular
Distribution Date (or Special Distribution Date, as the case may be) upon
which the proposed final payment of the Certificates of such series will be
made upon presentation and surrender of Certificates of such series at the
office or agency of the Trustee therein specified, (B) the amount of any
such proposed final payment, and (C) that the Record Date otherwise
applicable to such Regular Distribution Date (or Special Distribution Date,
as the case may be) is not applicable, payments being made only upon
presentation and surrender of the Certificates of such series at the office
or agency of the Trustee therein specified. The Trustee shall give such
notice to the Registrar at the time such notice is given to
Certificateholders of such series. Upon presentation and surrender of the
Certificates of such series in accordance with such notice, the Trustee
shall cause to be distributed to Certificateholders of such series amounts
distributable on such Regular Distribution Date (or Special Distribution
Date, as the case may be) pursuant to Section 4.02.
In the event that all of the Certificateholders of such series
shall not surrender their Certificates for cancellation within six months
after the date specified in the above-mentioned written notice, the
Trustee shall give a second written notice to the remaining
Certificateholders of such series to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. No
additional interest shall accrue on the Certificates of such series after
any Regular Distribution Date (or Special Distribution Date, as the case
may be) of such series, as specified in the first written notice. In the
event that any money held by the Trustee for the payment of distributions
on the Certificates of such series shall remain unclaimed for two years (or
such lesser time as the Trustee shall be satisfied, after 60 days' notice
from the Company, is one month prior to the escheat period provided under
applicable law) after the final distribution date with respect thereto, the
Trustee shall pay to each Loan Trustee the appropriate amount of money
relating to such Loan Trustee and shall give written notice thereof to the
related Owner Trustees and the Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders. The
death or incapacity of any Certificateholder of any series shall not
operate to terminate this Agreement or the related Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting
or to take any action or commence any proceeding in any court for a
partition or winding up of the Trust, nor otherwise affect the rights,
obligations, and liabilities of the parties hereto or any of them.
Section 12.02. Liabilities of Certificateholders. Neither the
existence of the Trust nor any provision in this Agreement is intended to
or shall limit the liability the Certificateholders would otherwise incur
if the Certificateholders owned Trust Property as co-owners, or incurred
any obligations of the Trust, directly rather than through the Trust.
Section 12.03. Registration of Equipment Notes in Name of
Subordination Agent. If a Trust is party to an Intercreditor Agreement, the
Trustee agrees that all Equipment Notes to be purchased by such Trust shall
be issued in the name of the Subordination Agent under such Intercreditor
Agreement or its nominee and held by such Subordination Agent in trust for
the benefit of the Certificateholders, or, if not so held, such
Subordination Agent or its nominee shall be reflected as the owner of such
Equipment Notes in the register of the issuer of such Equipment Notes.
Section 12.04. Notices. (a) Unless otherwise specifically provided
herein or in the applicable Trust Supplement with respect to any Trust, all
notices required under the terms and provisions of this Basic Agreement or
such Trust Supplement with respect to such Trust shall be in English and in
writing, and any such notice may be given by United States mail, courier
service or telecopy, and any such notice shall be effective when delivered
or received or, if mailed, three days after deposit in the United States
mail with proper postage for ordinary mail prepaid,
if to the Company:
US Airways, Inc.
2345 Crystal Drive
Arlington, VA 22227
Attention: Treasurer
Telephone: (703) 872-6441
Fax: (703) 872-5936
with a copy to the attention of the Company's Office
of the General Counsel at the same address:
Attention: Aircraft Counsel
Fax: (703) 872-5252
if to the Trustee:
State Street Bank and Trust Company of Connecticut,
National Association
225 Asylum Street
Hartford, CT 06103
Attention: Corporate/Muni Department
Facsimile: (617) 664-5151
Telephone: (617) 664-5340
with a copy to:
State Street Bank and Trust Company
2 Avenue de Lafayette, 6th Floor
Boston, MA 02111
Attention: Corporate Trust Department
Facsimile: (617) 662-1461
(b) The Company or the Trustee, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Certificateholders of any
series shall be mailed by first-class mail to the addresses for
Certificateholders of such series shown on the Register kept by the
Registrar and to addresses filed with the Trustee for Certificate Owners of
such series. Failure so to mail a notice or communication or any defect in
such notice or communication shall not affect its sufficiency with respect
to other Certificateholders or Certificate Owners of such series.
(d) If 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 of such series, it shall mail a copy to the Trustee and
to each Paying Agent for such series 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 12.05. Governing Law. THIS BASIC AGREEMENT, TOGETHER WITH
ALL TRUST SUPPLEMENTS AND CERTIFICATES, SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 12.06. 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 related Trust, or of the Certificates of such series
or the rights of the Certificateholders thereof.
Section 12.07. Trust Indenture Act Controls. This Agreement is
subject to the provisions of the Trust Indenture Act and shall, to the
extent applicable, be governed by such provisions. 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 12.08. 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 12.09. 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 12.10. Benefits of Agreement. Nothing in this Agreement or
in the Certificates of any series, express or implied, shall give to any
Person, other than the parties to this Agreement and their successors under
this Agreement, and the Certificateholders of each series, any benefit or
any legal or equitable right, remedy or claim under this Agreement.
Section 12.11. Legal Holidays. In any case where any Regular
Distribution Date or Special Distribution Date relating to any Certificate
of any series shall not be a Business Day with respect to such series, then
(notwithstanding any other provision of this Agreement) payment need not be
made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on such Regular Distribution Date or
Special Distribution Date, and no interest shall accrue during the
intervening period.
Section 12.12. 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 12.13. Communication by Certificateholders with Other
Certificateholders. Certificateholders of any series may communicate with
other Certificateholders of such series with respect to their rights under
this Basic Agreement, the related Trust Supplement or the Certificates of
such series pursuant to Section 312(b) of the Trust Indenture Act. The
Company, the Trustee and any and all other persons benefitted by this
Agreement shall have the protection afforded by Section 312(c) of the Trust
Indenture Act.
Section 12.14. Intention of Parties. The parties to this Agreement
intend that each 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. The powers granted and obligations
undertaken pursuant to this Agreement shall be so construed so as to
further such intent.
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.
US AIRWAYS, INC.
By: /s/ Jeffery A. McDougle
---------------------------------------
Name: Jeffery A. McDougle
Title: Vice President and Treasurer
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, as Trustee
By: /s/ John G. Correia
---------------------------------------
Name: John G. Correia
Title: Assistant Vice President
EXHIBIT A
FORM OF CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.*
---------------------------------
* This legend to appear on Book-Entry Certificates to be deposited
with The Depository Trust Company.
US AIRWAYS ____________ PASS THROUGH TRUST
Pass Through Certificate, Series __________
Final Regular Distribution Date: _____, ____
evidencing a fractional undivided interest in a
trust, the property of which includes certain
equipment notes each secured by Aircraft owned
by or leased to US Airways, Inc.
Certificate
No._________ $__________ Fractional Undivided Interest representing
._____% 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 US Airways Pass Through Trust, Series [___] (the "Trust")
created by State Street Bank and Trust Company of Connecticut, National
Association, as trustee (the "Trustee"), pursuant to a Pass Through Trust
Agreement dated as of October __, 2000 (the "Basic Agreement"), between the
Trustee and US Airways, Inc., a corporation incorporated under Delaware law
(the "Company"), as supplemented by Trust Supplement No. _______ thereto
dated __________, ____, between the Trustee and the Company, (collectively,
the "Agreement"), 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 "___% US Airways Pass Through Certificate, Series ____"
(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 any
related Intercreditor Agreement. The property of the Trust includes certain
Equipment Notes and all rights of the Trust to receive any payments under
any Intercreditor Agreement, Liquidity Facility or Insurance Policy (the
"Trust Property"). Each issue of the Equipment Notes is or will be secured
by, among other things, a security interest in aircraft leased to or owned
by the Company.
The Certificates represent fractional undivided interests in the
Trust and the Trust Property, and have no rights, benefits or interest in
respect of any other separate trust established pursuant to the terms of
the Basic Agreement for any other series of certificates issued pursuant
thereto.
Subject to and in accordance with the terms of the Agreement and
any related Intercreditor Agreement, from funds then available to the
Trustee, there will be distributed on each __________ and ___________ (a
"Regular Distribution Date"), commencing on _________, ____, to the Person
in whose name this Certificate is registered at the close of business on
the 15th day preceding the Regular Distribution Date, an amount in respect
of the Scheduled Payments on the Equipment Notes due on such Regular
Distribution Date, the receipt of which has been confirmed by the Trustee,
equal to the product of the percentage interest in the Trust evidenced by
this Certificate and an amount equal to the sum of such Scheduled Payments.
Subject to and in accordance with the terms of the Agreement and any
related Intercreditor Agreement, in the event that Special Payments on the
Equipment Notes are received by the Trustee, from funds then available to
the Trustee, there shall be distributed on the applicable Special
Distribution Date, to the Person in whose name this Certificate is
registered at the close of business on the 15th day preceding the Special
Distribution Date, an amount in respect of such Special Payments on the
Equipment Notes, the receipt of which has been confirmed by the Trustee,
equal to the product of the percentage interest in the Trust evidenced by
this Certificate and an amount equal to the sum of such Special Payments so
received. If a Regular Distribution Date or Special Distribution Date is
not a Business Day, distribution shall be made on the immediately following
Business Day with the same force and effect as if made on such Regular
Distribution Date or Special Distribution Date and no interest shall accrue
during the intervening period. The Trustee shall mail notice of each
Special Payment and the Special Distribution Date therefor to the
Certificateholder of this Certificate.
Distributions on this Certificate will be made by the Trustee by
check mailed to the Person entitled thereto, without the presentation or
surrender of this Certificate or the making of any notation hereon. Except
as otherwise provided in the Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after notice mailed by
the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency of the Trustee
specified in such notice.
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, the Company or the Trustee or
any affiliate thereof. The Certificates are limited in right of payment,
all as more specifically set forth on the face hereof and in the Agreement.
All payments or distributions made to Certificateholders under the
Agreement shall be made only from the Trust Property and only to the extent
that the Trustee shall have sufficient income or proceeds from the Trust
Property to make such payments in accordance with the terms of the
Agreement. Each Certificateholder of this Certificate, by its acceptance
hereof, agrees that it will look solely to the income and proceeds from the
Trust Property to the extent available for distribution to such
Certificateholder as provided in the Agreement. This Certificate does not
purport to summarize the Agreement and reference is made to the Agreement
for information with respect to the interests, rights, benefits,
obligations, proceeds, and duties evidenced hereby. A copy of the Agreement
may be examined during normal business hours at the principal office of the
Trustee, and at such other places, if any, designated by the Trustee, by
any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Certificateholders under the Agreement at
any time by the Company and the Trustee with the consent of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Trust.
Any such consent by the Certificateholder of this Certificate shall be
conclusive and binding on such Certificateholder and upon all future
Certificateholders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without
the consent of the Certificateholders of any of the Certificates.
As provided in the Agreement and subject to certain limitations set
forth, the transfer of this Certificate is registrable in the Register upon
surrender of this Certificate for registration of transfer at the offices
or agencies maintained by the Trustee in its capacity as Registrar, or by
any successor Registrar duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the
Registrar, duly executed by the Certificateholder hereof or such
Certificateholder's attorney duly authorized in writing, and thereupon one
or more new Certificates of authorized denominations evidencing the same
aggregate Fractional Undivided Interest in the Trust will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in minimum denominations of $1,000 Fractional Undivided
Interest and integral multiples thereof except that one Certificate may be
issued in a different denomination. As provided in the Agreement and
subject to certain limitations therein set forth, the Certificates are
exchangeable for new Certificates of authorized denominations evidencing
the same aggregate Fractional Undivided Interest in the Trust, as requested
by the Certificateholder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee shall require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Trustee, the
Registrar, nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Agreement and
the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them
pursuant to the Agreement and the disposition of all property held as part
of the Trust Property.
THIS CERTIFICATE AND THE AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES AND CERTIFICATEHOLDERS HEREUNDER AND THEREUNDER
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.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
US AIRWAYS PASS THROUGH TRUST
By: STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, as Trustee
By:
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Title:
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Dated:
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[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates referred to in the
within-mentioned Agreement.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, as Trustee
By:
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Authorized Officer
