Exhibit 4.1
EXECUTION COPY
PASS THROUGH TRUST AGREEMENT
(SPARE PARTS)
dated as of November 14, 2006
between
JETBLUE AIRWAYS CORPORATION
and
WILMINGTON TRUST COMPANY,
as Trustee
JetBlue Airways (Spare Parts) G-1 Pass Through Trust
Reconciliation and tie between JetBlue Airways Pass Through Trust
Agreement, Class G-1 Certificates dated as of November 14, 2006 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)
7.06; 8.03
314 (a)
8.04(a), (c) & (d)
(a)(4)
8.04(e)
(c)(1)
1.02
(c)(2)
1.02
(d)(1)
7.13; 11.01
(d)(2)
7.13; 11.01
(d)(3)
2.01
(e)
1.02
315 (b)
7.02
316 (a)(last sentence)
1.04(c)
(a)(1)(A)
6.04
(a)(1)(B)
6.05
(b)
6.06
(c)
1.04(e)
317 (a)(1)
6.03
(b)
7.13
318 (a)
12.06
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS.............................................................................................1
SECTION 1.01
DEFINITIONS..................................................................................1
SECTION 1.02
COMPLIANCE CERTIFICATES AND
OPINIONS.........................................................7
SECTION 1.03
FORM OF DOCUMENTS DELIVERED TO
TRUSTEE.......................................................8
SECTION 1.04
DIRECTIONS OF
CERTIFICATEHOLDERS.............................................................8
ARTICLE II ORIGINAL ISSUANCE OF CERTIFICATES ACQUISITION OF
EQUIPMENT NOTE........................................9
SECTION 2.01
ISSUANCE OF CERTIFICATES; ACQUISITION OF EQUIPMENT
NOTE......................................9
SECTION 2.02
ADDITIONAL
CERTIFICATES......................................................................9
SECTION 2.03
ACCEPTANCE BY
TRUSTEE........................................................................9
SECTION 2.04
LIMITATION OF
POWERS.........................................................................9
ARTICLE III THE
CERTIFICATES.....................................................................................10
SECTION 3.01
TITLE, FORM, DENOMINATION AND EXECUTION OF
CERTIFICATES.....................................10
SECTION 3.02
RESTRICTIVE
LEGENDS.........................................................................10
SECTION 3.03
AUTHENTICATION OF
CERTIFICATES..............................................................10
SECTION 3.04
TRANSFER AND
EXCHANGE.......................................................................11
SECTION 3.05
GLOBAL, BOOK-ENTRY AND DEFINITIVE
CERTIFICATES..............................................11
SECTION 3.06
[INTENTIONALLY
OMITTED].....................................................................13
SECTION 3.07
MUTILATED, DESTROYED, LOST OR STOLEN
CERTIFICATES...........................................13
SECTION 3.08
PERSONS DEEMED
OWNERS.......................................................................13
SECTION 3.09
CANCELLATION................................................................................13
SECTION 3.10
TEMPORARY
CERTIFICATES......................................................................13
SECTION 3.11
LIMITATION OF LIABILITY FOR
PAYMENTS........................................................14
SECTION 3.12
ERISA
LEGEND................................................................................14
ARTICLE IV DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS.......................................................14
SECTION 4.01
CERTIFICATE ACCOUNT AND SPECIAL PAYMENTS
ACCOUNT............................................14
SECTION 4.02
DISTRIBUTIONS FROM CERTIFICATE ACCOUNT AND SPECIAL PAYMENTS
ACCOUNT.........................15
SECTION 4.03
STATEMENTS TO
CERTIFICATEHOLDERS............................................................16
SECTION 4.04
INVESTMENT OF SPECIAL PAYMENT
MONEYS........................................................16
ARTICLE V THE
COMPANY............................................................................................17
SECTION 5.01
MAINTENANCE OF CORPORATE
EXISTENCE..........................................................17
SECTION 5.02
CONSOLIDATION, MERGER,
ETC..................................................................17
ARTICLE VI
DEFAULT...............................................................................................17
SECTION 6.01
EVENTS OF
DEFAULT...........................................................................17
i
SECTION 6.02
INCIDENTS OF SALE OF EQUIPMENT
NOTE.........................................................20
SECTION 6.03
JUDICIAL PROCEEDINGS INSTITUTED BY TRUSTEE; TRUSTEE MAY BRING
SUIT..........................20
SECTION 6.04
CONTROL BY
CERTIFICATEHOLDERS...............................................................21
SECTION 6.05
WAIVER OF PAST
DEFAULTS.....................................................................21
SECTION 6.06
RIGHT OF CERTIFICATEHOLDERS TO RECEIVE PAYMENTS NOT TO BE
IMPAIRED..........................21
SECTION 6.07
CERTIFICATEHOLDERS MAY NOT BRING SUIT EXCEPT UNDER CERTAIN
CONDITIONS.......................21
SECTION 6.08
REMEDIES
CUMULATIVE.........................................................................22
ARTICLE VII THE
TRUSTEE..........................................................................................22
SECTION 7.01
CERTAIN DUTIES AND
RESPONSIBILITIES.........................................................22
SECTION 7.02
NOTICE OF
DEFAULTS..........................................................................22
SECTION 7.03
CERTAIN RIGHTS OF
TRUSTEE...................................................................23
SECTION 7.04
NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
CERTIFICATES....................................23
SECTION 7.05
MAY HOLD
CERTIFICATES.......................................................................24
SECTION 7.06
MONEY HELD IN
TRUST.........................................................................24
SECTION 7.07
COMPENSATION AND REIMBURSEMENT.
THE COMPANY AGREES:........................................24
SECTION 7.08
CORPORATE TRUSTEE REQUIRED;
ELIGIBILITY.....................................................24
SECTION 7.09
RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR...........................................24
SECTION 7.10
ACCEPTANCE OF APPOINTMENT BY
SUCCESSOR......................................................25
SECTION 7.11
MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.................................26
SECTION 7.12
MAINTENANCE OF
AGENCIES.....................................................................26
SECTION 7.13
MONEY FOR CERTIFICATE PAYMENTS TO BE HELD IN
TRUST..........................................27
SECTION 7.14
REGISTRATION OF EQUIPMENT NOTE IN NAME OF SUBORDINATION
AGENT...............................27
SECTION 7.15
REPRESENTATIONS AND WARRANTIES OF
TRUSTEE...................................................27
SECTION 7.16
WITHHOLDING TAXES INFORMATION
REPORTING.....................................................28
SECTION 7.17
TRUSTEE'S
LIENS.............................................................................28
SECTION 7.18
PREFERENTIAL COLLECTION OF
CLAIMS...........................................................28
SECTION 7.19
TAXPAYER IDENTIFICATION
NUMBER..............................................................28
ARTICLE VIII CERTIFICATEHOLDERS' LISTS AND REPORTS BY
TRUSTEE....................................................29
SECTION 8.01
THE COMPANY TO FURNISH TRUSTEE WITH NAMES AND ADDRESSES OF
CERTIFICATEHOLDERS...............29
SECTION 8.02
PRESERVATION OF INFORMATION COMMUNICATIONS TO
CERTIFICATEHOLDERS............................29
SECTION 8.03
REPORTS BY
TRUSTEE..........................................................................29
SECTION 8.04
REPORTS BY THE
COMPANY......................................................................29
ARTICLE IX SUPPLEMENTAL
AGREEMENTS...............................................................................30
SECTION 9.01
SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF
CERTIFICATEHOLDERS...............................30
SECTION 9.02
SUPPLEMENTAL AGREEMENTS WITH CONSENT OF
CERTIFICATEHOLDERS..................................30
SECTION 9.03
DOCUMENTS AFFECTING IMMUNITY OR
INDEMNITY...................................................31
SECTION 9.04
EXECUTION OF SUPPLEMENTAL
AGREEMENTS........................................................31
ii
SECTION 9.05
EFFECT OF SUPPLEMENTAL
AGREEMENTS...........................................................31
SECTION 9.06
CONFORMITY WITH TRUST INDENTURE
ACT.........................................................32
SECTION 9.07
REFERENCE IN CERTIFICATES TO SUPPLEMENTAL
AGREEMENTS........................................32
ARTICLE X AMENDMENTS TO INDENTURES AND FINANCING
DOCUMENTS.......................................................32
SECTION 10.01
AMENDMENTS AND SUPPLEMENTS TO INDENTURES AND FINANCING
DOCUMENTS.........................32
ARTICLE XI TERMINATION OF
TRUST..................................................................................32
SECTION 11.01
TERMINATION OF THE
TRUST.................................................................32
ARTICLE XII MISCELLANEOUS
PROVISIONS.............................................................................33
SECTION 12.01
LIMITATION ON RIGHTS OF
CERTIFICATEHOLDERS...............................................33
SECTION 12.02
CERTIFICATES NONASSESSABLE AND FULLY
PAID................................................33
SECTION 12.03
NOTICES..................................................................................33
SECTION 12.04
GOVERNING
LAW............................................................................34
SECTION 12.05
SEVERABILITY OF
PROVISIONS...............................................................34
SECTION 12.06
TRUST INDENTURE ACT
CONTROLS.............................................................35
SECTION 12.07
EFFECT OF HEADINGS AND TABLE OF
CONTENTS.................................................35
SECTION 12.08
SUCCESSORS AND
ASSIGNS...................................................................35
SECTION 12.09
BENEFITS OF
AGREEMENT....................................................................35
SECTION 12.10
LEGAL
HOLIDAYS...........................................................................35
SECTION 12.11
COUNTERPARTS.............................................................................35
SECTION 12.12
INTENTION OF
PARTIES.....................................................................35
iii
PASS THROUGH TRUST AGREEMENT (SPARE PARTS)
PASS THROUGH TRUST AGREEMENT (SPARE PARTS), dated as of November
14, 2006
(the "AGREEMENT"), between JETBLUE AIRWAYS CORPORATION, a Delaware
corporation,
and WILMINGTON TRUST COMPANY, as Trustee.
WITNESSETH:
WHEREAS, all of the conditions and requirements necessary to make
this
Agreement, when duly executed and delivered, a valid, binding and
legal
instrument, enforceable in accordance with its terms and for the
purposes herein
expressed, have been done, performed and fulfilled, and the
execution and
delivery of this Agreement in the form and with the terms hereof
have been in
all respects duly authorized; and
WHEREAS, this Agreement, as amended or supplemented from time to
time,
will be subject to the provisions of the Trust Indenture Act of
1939, and shall,
to the extent applicable, be governed by such provisions;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration the receipt
and adequacy
of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01
Definitions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise
requires:
(1)
the terms used in this Agreement, including in the
recitals to this Agreement, that are defined in this Article have
the
meanings assigned to them in this Article, and include the plural
as well
as the singular;
(2)
all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, or by
the
rules promulgated under the Trust Indenture Act, have the meanings
assigned to them therein;
(3)
all references in this Agreement to designated
"Articles", "Sections", "Subsections" and other subdivisions are to
the
designated Articles, Sections, Subsections and other subdivisions
of this
Agreement;
(4)
the words "herein", "hereof' and "hereunder" and
other words of similar import refer to this Agreement as a whole
and not
to any particular Article, Section, Subsection or other
subdivision; and
(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".
"ABOVE-CAP LIQUIDITY FACILITY" means, initially, the ISDA Master
Agreement, dated as of November 14, 2006, between the Subordination
Agent, as
agent and trustee for the Trust, and the initial Above-Cap
Liquidity Provider,
together with the Schedule and Confirmation attached thereto,
relating to the
Certificates, and, from and after replacement of such ISDA Master
Agreement
pursuant to the Intercreditor Agreement, the Replacement Above-Cap
Liquidity
Facility (as defined in the Intercreditor Agreement) therefor, if
any, in each
case as amended, supplemented or otherwise modified from time to
time in
accordance with its terms.
"ABOVE-CAP LIQUIDITY PROVIDER" means Morgan Stanley Capital
Services Inc.
or any Replacement Above-Cap Liquidity Provider which has issued a
Replacement
Above-Cap Liquidity Facility (each as defined in the Intercreditor
Agreement) to
replace the Above-Cap Liquidity Facility pursuant to Section
3.5(c)(iv) of the
Intercreditor Agreement.
"ADDITIONAL ABOVE-CAP LIQUIDITY FACILITY", "ADDITIONAL
CERTIFICATES",
"ADDITIONAL EQUIPMENT NOTES", "ADDITIONAL LIQUIDITY FACILITY",
"ADDITIONAL
LIQUIDITY FACILITY PROVIDER", "ADDITIONAL POLICY", "ADDITIONAL
POLICY PROVIDER"
, "ADDITIONAL PRIMARY LIQUIDITY FACILITY", "JUNIOR ADDITIONAL
CERTIFICATES",
"JUNIOR ADDITIONAL EQUIPMENT NOTES", "SENIOR ADDITIONAL
CERTIFICATES" AND
"SENIOR ADDITIONAL EQUIPMENT NOTES" have the meanings ascribed in
Section 10.1
of the Intercreditor Agreement.
"AFFILIATE" means, with respect to any specified Person, any other
Person
directly or indirectly controlling or controlled by or under direct
or indirect
common control with such Person. For the purposes of this
definition, "control"
means the power, directly or indirectly, to direct the management
and policies
of such Person, whether through the ownership of voting securities
or by
contract or otherwise, and the terms "controlling" and "controlled"
have
meanings correlative to the foregoing.
"AGENT MEMBERS" means members of, or participants in, DTC.
"AGREEMENT" has the meaning specified in the initial paragraph
hereto.
"AUTHORIZED AGENT" means any Paying Agent or Registrar for the
Certificates.
"AUTHORIZED DENOMINATIONS" is defined in Section 3.01(b).
"AVOIDABLE TAX" means a state or local tax (i) upon (w) the Trust,
(x) the
Trust Property, (y) Certificateholders or (z) the Trustee for which
the Trustee
is entitled to seek reimbursement from the Trust Property, and (ii)
which would
be avoided if the Trustee were located in another state, or
jurisdiction within
a state, within the United States. A tax shall not be an Avoidable
Tax if the
Company shall agree to pay, and shall pay, such tax.
"BOOK-ENTRY CERTIFICATE" means, with respect to the Global
Certificate, a
beneficial interest in the Global Certificate, ownership and
transfers of which
shall be made through book entries as described in Section 3.05.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a
day on
which commercial banks are required or authorized to close in New
York, New
York, Wilmington, Delaware or, so long as any Certificate is
outstanding, the
city and state in which the Trustee or any Loan Trustee maintains
its Corporate
Trust Office or receives and disburses funds.
"CERTIFICATE" means any one of the certificates executed and
authenticated
by the Trustee, substantially in the form of Exhibit A hereto.
"CERTIFICATE ACCOUNT" means the account or accounts created and
maintained
pursuant to Section 4.01(a).
"CERTIFICATE OWNER" means, with respect to the Certificates, for
purposes
of Section 3.05, a Person who owns a Book-Entry Certificate.
"CERTIFICATEHOLDER OR HOLDER" means the Person in whose name a
Certificate
is registered in the Register.
"CLASS" is defined in the Intercreditor Agreement.
"CLASS B-1 CERTIFICATES" means the pass through certificates issued
by the
Other Trust.
"CLEARING AGENCY" means an organization registered as a "clearing
agency"
pursuant to Section 17A of the Exchange Act.
2
"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.
"CODE" means the Internal Revenue Code of 1986, as amended from
time to
time, and the Treasury Regulations promulgated thereunder.
"COMPANY" means JetBlue Airways Corporation, a Delaware
corporation, or
its successor in interest pursuant to Section 5.02, or (only in the
context of
provisions hereof, if any, where such reference is required for
purposes of
compliance with the Trust Indenture Act) any other "obligor"
(within the meaning
of the Trust Indenture Act) with respect to the Certificates.
"CONTROLLING PARTY" has the meaning specified in the Intercreditor
Agreement.
"CORPORATE TRUST OFFICE" with respect to the Trustee or any Loan
Trustee,
means the office of such trustee in the city at which at any
particular time its
corporate trust business shall be principally administered.
"DEFINITIVE CERTIFICATES" has the meaning specified in Section
3.05.
"DIRECTION" has the meaning specified in Section 1.04(a).
"DISTRIBUTION DATE" means any Regular Distribution Date or Special
Distribution Date as the context requires.
"DTC" means The Depository Trust Company, its nominees and their
respective successors.
"EQUIPMENT NOTE" means the Series G-1 Equipment Note delivered
pursuant to
the Indenture to the Trustee hereunder.
"ERISA" means Employee Retirement Income Security Act of 1974, as
amended
from time to time.
"EVENT OF DEFAULT" means an Indenture Default under any Indenture
pursuant
to which Equipment Note held by the Trust were issued.
"EXCESS REIMBURSEMENT OBLIGATIONS" has the meaning specified in the
Intercreditor Agreement.
"EXCHANGE ACT" means the United States Securities Exchange Act of
1934, as
amended from time to time, or any successor thereto.
"FINAL LEGAL DISTRIBUTION DATE" means January 2, 2016.
"FINANCING DOCUMENTS" means, in respect of each Certificate and
Additional
Certificate, the Indenture and the Note Purchase Agreement
applicable thereto.
"FRACTIONAL UNDIVIDED INTEREST" means the fractional undivided
interest in
the Trust that is evidenced by a Certificate relating to such
Trust.
"GLOBAL CERTIFICATES" means certificates representing the
Book-Entry
Certificate delivered to and held by a Clearing Agency or its
nominee.
"INDENTURE" means the Trust Indenture and Mortgage, dated as of
November
14, 2006, from the Company to the Loan Trustee as the same may be
amended,
supplemented or otherwise modified from time to time in accordance
with its
terms.
3
"INDENTURE DEFAULT" with respect to the Indenture, means any Event
of
Default (as such term is defined in such Indenture).
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement dated
as of
November 14, 2006 among the Trustee, the Other Trustee, the Primary
Liquidity
Provider, the Above-Cap Liquidity Provider, the Policy Provider,
Wilmington
Trust Company, as Subordination Agent and as trustee thereunder,
and the
Additional Above-Cap Liquidity Providers, Additional Liquidity
Providers and
Additional Policy Providers (if any executing joinder agreements
with respect
thereto) as amended, supplemented or otherwise modified from time
to time in
accordance with its terms.
"INVESTORS" means the Underwriters together with all subsequent
beneficial
owners of the Certificates.
"ISSUANCE DATE" means the date of the original issuance of the
Certificates.
"LETTER OF REPRESENTATIONS" means, with respect to the
Certificates, an
agreement between the Company, the Trustee and the initial Clearing
Agency
substantially in the form attached as an exhibit hereto, as such
letter may be
modified or supplemented, or any successor letter thereto.
"LIQUIDITY FACILITIES" means the Primary Liquidity Facility and the
Above-Cap Liquidity Facility.
"LIQUIDITY OBLIGATIONS" has the meaning specified in the
Intercreditor
Agreement as applicable to the Primary Liquidity Facility or
Additional Primary
Liquidity Facility.
"LIQUIDITY PROVIDERS" means the Primary Liquidity Provider and the
Above-Cap Liquidity Provider.
"LOAN TRUSTEE" with respect to the Equipment Note or the Indenture,
means
the bank or trust company designated as trustee under such
Indenture, together
with any successor to such trustee appointed pursuant thereto.
"NOTE PURCHASE AGREEMENT" means the Note Purchase Agreement dated
as of
November 14, 2006 among the Trustee, the Other Trustee, the Company
and the
Subordination Agent, as the same may be amended, supplemented or
otherwise
modified from time to time, in accordance with its terms.
"OFFICER'S CERTIFICATE" means a certificate signed (a) in the case
of the
Company, by any Vice President or more senior officer of the
Company or, (b) in
the case of a Loan Trustee, a Responsible Officer of such Loan
Trustee, as the
case may be.
"OPINION OF COUNSEL" means a written opinion of legal counsel who
(a) in
the case of counsel for the Company may be (i) the General Counsel
of the
Company, (ii) Holland & Knight LLP or (iii) such other counsel
designated by the
Company and reasonably acceptable to the Trustee and (b) in the
case of counsel
for any Loan Trustee may be such counsel as may be designated by
any of them
whether or not such counsel is an employee of any of them, and who
shall be
reasonably acceptable to the Trustee.
"OTHER PASS THROUGH TRUST AGREEMENT" means the JetBlue Airways Pass
Through Trust Agreement (Spare Parts) relating to the Class B-1
Certificates
dated the date hereof.
"OTHER TRUSTEE" means the trustee under the Other Pass Through
Trust
Agreement, and any successor or other trustee appointed as provided
therein.
"OTHER TRUST" means the JetBlue Airways Pass Through Trust, Class
B-1,
created on the date hereof.
"OUTSTANDING" when used with respect to Certificates, means, as of
the
date of determination, all Certificates theretofore authenticated
and delivered
under this Agreement, except:
(i)
Certificates theretofore canceled by the Registrar
or delivered to the Trustee or the Registrar for cancellation;
4
(ii)
Certificates for which money in the full amount
required to make the final distribution with respect to such
Certificates
pursuant to Section 11.01 hereof has been theretofore deposited
with the
Trustee in trust for the Holders of such Certificates as provided
in
Section 4.01 pending distribution of such money to such
Certificateholders
pursuant to payment of such final distribution; and
(iii)
Certificates in exchange for or in lieu of which
other Certificates have been authenticated and delivered pursuant
to this
Agreement.
"PAYING AGENT" means the paying agent maintained and appointed for
the
Certificates pursuant to Section 7.12.
"PERMITTED INVESTMENTS" means obligations of the United States of
America
or agencies or instrumentalities thereof for the payment of which
the full faith
and credit of the United States of America is pledged, maturing in
not more than
60 days after the date of acquisition thereof or such lesser time
as is required
for the distribution of any Special Payments on a Special
Distribution Date.
"PERSON" means any person, including any individual, corporation,
limited
liability company, partnership, joint venture, association,
joint-stock company,
trust, trustee, unincorporated organization, or government or any
agency or
political subdivision thereof.
"PLAN" means any employee benefit plan within the meaning of
Section 3(3)
of ERISA, or any plan within the meaning of Section 4975(e)(1) of
the Code.
"POLICY" means the Initial Policy as defined in the Intercreditor
Agreement.
"POLICY PROVIDER" means the provider of the Policy.
"POLICY PROVIDER AGREEMENT" means the Policy Provider Agreement (as
defined in the Intercreditor Agreement) applicable to the Policy.
"POLICY PROVIDER AMOUNTS" means the Policy Provider Amounts (as
defined in
the Intercreditor Agreement) applicable to the Policy Provider.
"POLICY PROVIDER DEFAULT" means a Policy Provider Default (as
defined in
the Intercreditor Agreement) applicable to the Policy Provider.
"POOL BALANCE" means, as of any date, (i) the original aggregate
face
amount of the Certificates less (ii) the aggregate amount of all
payments made
in respect of such Certificates other than payments made in respect
of interest,
Break Amount 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 Note, the Policy or other Trust Property held in such
Trust and
the distribution thereof to be made on such Distribution Date.
"POOL BALANCE", when used with respect to any Junior Additional
Certificate or Senior Additional Certificate, shall have a
correlative meaning.
"POOL FACTOR" means, as of any date, the quotient (rounded to the
seventh
decimal place) computed by dividing (i) the Pool Balance as at such
date by (ii)
the original aggregate face amount of the Certificates. The Pool
Factor as of
any Distribution Date shall be computed after giving effect to the
payment of
principal, if any, on the Equipment Note, the Policy or other Trust
Property and
the distribution thereof to be made on such Distribution Date.
"PRIMARY LIQUIDITY FACILITY" means, initially, the Revolving Credit
Agreement dated as of November 14, 2006 relating to the
Certificates, between
the Primary Liquidity Provider and the Subordination Agent, as
agent and trustee
for the Trustee, and, from and after the replacement of such
Agreement pursuant
to the Intercreditor
5
Agreement, the Replacement Primary Liquidity Facility (as defined
in the
Intercreditor Agreement) therefor, if any, in each case as amended,
supplemented
or otherwise modified from time to time in accordance with their
respective
terms.
"PRIMARY LIQUIDITY PROVIDER" means, initially, Landesbank Hessen
Thueringen Girozentrale, New York Branch, or any Replacement
Primary Liquidity
Provider which has issued a Replacement Primary Liquidity Facility
(each as
defined in the Intercreditor Agreement) to replace the Primary
Liquidity
Facility pursuant to the Intercreditor Agreement.
"PROSPECTUS" means the prospectus dated June 30, 2006, as
supplemented by
the prospectus supplement dated November 7, 2006, relating to the
offer and sale
of the Certificates and the Class B-1 Certificates.
"PTC EVENT OF DEFAULT" has the meaning ascribed in the
Intercreditor
Agreement as applicable to the Class G-1 Certificates.
"RECORD DATE" means (i) for Scheduled Payments to be distributed on
any
Regular Distribution Date, other than the final distribution, the
15th day
(whether or not a Business Day) immediately preceding such Regular
Distribution
Date, and (ii) for Special Payments to be distributed on any
Special
Distribution Date, other than the final distribution, the 15th day
(whether or
not a Business Day) preceding such Special Distribution Date.
"REFERENCE AGENCY AGREEMENT" has the meaning specified in the Note
Purchase Agreement.
"REGISTER AND REGISTRAR" mean the register maintained and the
registrar
appointed pursuant to Sections 3.04 and 7.12.
"REGULAR DISTRIBUTION DATE" with respect to distributions of
Scheduled
Payments in respect of the Certificates, means each date designated
as a Regular
Distribution Date on the Certificates, until payment of all the
Scheduled
Payments to be made under the Equipment Note held in the Trust have
been made;
provided, however, that, if any such day shall not be a Business
Day, the
related distribution shall be made on the next succeeding Business
Day.
"RESPONSIBLE OFFICER" with respect to the Trustee and any Loan
Trustee,
means any officer in the Corporate Trust Office of the Trustee,
Loan Trustee or
any other officer customarily performing functions similar to those
performed by
the persons who at the time shall be such officers, respectively,
or to whom any
corporate trust matter is referred because of his knowledge of and
familiarity
with a particular subject.
"SCHEDULED PAYMENT" with respect to the Equipment Note, means (i)
any
payment of principal or interest on or in respect of the Equipment
Note (other
than any such payment which is not in fact received by the
Subordination Agent
within five days of the date on which such payment is scheduled to
be made) due
from the obligor thereon or (ii) any payment of interest on the
Certificates
with funds drawn under any Liquidity Facility or any payment of
interest on or
principal of the Certificates with funds drawn under the Policy,
which payment
in any such case represents the installment of principal at the
stated maturity
of such installment of principal on the Equipment Note, the payment
of regularly
scheduled interest accrued on the unpaid principal amount of the
Equipment Note,
or both; provided that any payment of principal, premium, if any,
or interest
resulting from the redemption or purchase of the Equipment Note
shall not
constitute a Scheduled Payment
"SEC" means the Securities and Exchange Commission, as from time to
time
constituted or created under the United States Securities Exchange
Act of 1934,
as amended, or, if at any time after the execution of this
instrument such
Commission is not existing and performing the duties now assigned
to it under
the Trust Indenture Act, then the body performing such duties on
such date.
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended from time to time, or any successor thereto.
6
"SERIES B-1 EQUIPMENT NOTE" means the SeriesB-1 Equipment Note
issued and
delivered pursuant to the Indenture to the Other Trustee under the
Other Trust.
"SPECIAL DISTRIBUTION DATE" means each date on which a Special
Payment is
to be distributed as specified in this Agreement; provided,
however, that, if
any such day shall not be a Business Day, the related distribution
shall be made
on the next succeeding Business Day.
"SPECIAL PAYMENT" means any payment (other than a Scheduled
Payment) in
respect of, or any proceeds of, the Equipment Note or Collateral
(as defined in
each Indenture).
"SPECIAL PAYMENTS ACCOUNT" means the account or accounts created
and
maintained pursuant to Section 4.01(b).
"SUBORDINATION AGENT" has the meaning specified in the
Intercreditor
Agreement.
"TRIGGERING EVENT" has the meaning assigned to such term in the
Intercreditor Agreement.
"TRUST" means the trust created by this Agreement, the estate of
which
consists of the Trust Property.
"TRUST INDENTURE ACT" means the United States Trust Indenture Act
of 1939,
as amended from time to time, or any successor thereto.
"TRUST PROPERTY" means (i) the Equipment Note held as the property
of the
Trust and, subject to the Intercreditor Agreement, all monies at
any time paid
thereon and all monies due and to become due thereunder, (ii) funds
from time to
time deposited in the Certificate Account and the Special Payments
Account and,
subject to the Intercreditor Agreement, any proceeds from the sale
by the
Trustee pursuant to Article VI hereof of the Equipment Note and
(iii) all rights
of the Trust and the Trustee, on behalf of the Trust, under the
Intercreditor
Agreement, the Note Purchase Agreement, the Policy and the
Liquidity Facilities,
including, without limitation, all rights to receive certain
payments
thereunder, and all monies paid to the Trustee on behalf of the
Trust pursuant
to the Intercreditor Agreement, the Policy or the Liquidity
Facilities.
"TRUSTEE" means Wilmington Trust Company, or its successor in
interest,
and any successor or other trustee appointed as provided herein.
"TRUSTEE'S LIENS" has the meaning specified in Section 7.17.
"UNDERWRITERS" means the several underwriters listed as such in the
Underwriting Agreement.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement dated
November
7, 2006 among the Underwriters and the Company, as the same may be
amended,
supplemented or otherwise modified from time to time in accordance
with its
terms.
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 Loan Trustee to the Trustee to take any action under
any provision
of this Agreement, the Company, such Loan Trustee, as the case may
be, shall
furnish to the Trustee (i) an Officer's Certificate stating that,
in the opinion
of the signers, all conditions precedent, if any, provided for in
this Agreement
relating to the proposed action have been complied with and (ii) an
Opinion of
Counsel stating that in the opinion of such counsel all such
conditions
precedent, if any, have been complied with, except that in the case
of any such
application or request as to which the furnishing of such documents
is
specifically required by any provision of this Agreement relating
to such
particular application or request, no additional certificate or
opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition
or covenant provided for in this Agreement (other than a
certificate provided
pursuant to Section 8.04(d)) shall include:
7
(1)
a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions in this Agreement relating thereto;
(2)
a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3)
a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary
to enable him to express an informed opinion as to whether or not
such
covenant or condition has been complied with; and
(4)
a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 1.03
Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an
opinion of,
any specified Person, it is not necessary that all such matters be
certified by,
or covered by the opinion of, only one such Person, or that they be
so certified
or covered by only one document, but one such Person may certify or
give an
opinion with respect to some matters and one or more other such
Persons as to
other matters and any such Person may certify or give an opinion as
to such
matters in one or several documents.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements,
opinions or other
instruments under this Agreement or, in respect of the
Certificates, this
Agreement, they may, but need not, be consolidated and form one
instrument.
SECTION 1.04
Directions of Certificateholders. (a) (a) Any direction,
consent, request, demand, authorization, notice, waiver or other
action provided
by this Agreement to be given or taken by Certificateholders (a
"DIRECTION") may
be embodied in and evidenced by one or more instruments of
substantially similar
tenor signed by such Certificateholders in person or by an agent or
proxy duly
appointed in writing; and, except as herein otherwise expressly
provided, such
action shall become effective when such instrument or instruments
are delivered
to the Trustee and, where it is hereby expressly required pursuant
to this
Agreement, to the Company or any Loan Trustee. Proof of execution
of any such
instrument or of a writing appointing any such agent or proxy shall
be
sufficient for any purpose of this Agreement and conclusive in
favor of the
Trustee, the Company and any Loan Trustee, if made in the manner
provided in
this Section.
(b)
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any
notary public or
other officer of any jurisdiction authorized to take
acknowledgments of deeds or
administer oaths that the Person executing such instrument
acknowledged to him
the execution thereof, or by an affidavit of a witness to such
execution sworn
to before any such notary or such other officer and where such
execution is by
an officer of a corporation or association or a member of a
partnership, on
behalf of such corporation, association or partnership, such
certificate or
affidavit shall also constitute sufficient proof of his authority.
The fact and
date of the execution of any such instrument or writing, or the
authority of the
Person executing the same, may also be proved in any other
reasonable manner
which the Trustee deems sufficient.
(c)
In determining whether the Certificateholders of the
requisite Fractional Undivided Interests of Certificates
Outstanding have given
any Direction under this Agreement, Certificates owned by the
Company or any
Affiliate thereof shall be disregarded and deemed not to be
Outstanding for
purposes of any such determination. In determining whether the
Trustee shall be
protected in relying upon any such Direction, only Certificates
which the
Trustee knows to be so owned shall be so disregarded.
Notwithstanding the
foregoing, (i) if any such Person owns 100% of the Certificates
Outstanding,
such Certificates shall not be so disregarded, and (ii) if any
amount of
Certificates so owned by any such Person have been pledged in good
faith, such
Certificates shall not be disregarded if the pledgee establishes to
the
satisfaction of the Trustee the pledgee's right so to act with
respect to such
Certificates and that the pledgee is not the Company or any
Affiliate thereof.
(d)
For all purposes of this Agreement, all Certificates shall
vote and take all other actions of Certificateholders together as
one series of
Certificates.
8
(e)
The Company may at its option, by delivery of an Officer's
Certificate to the Trustee, set a record date to determine the
Certificateholders entitled to give any Direction. Notwithstanding
Section
316(c) of the Trust Indenture Act, such record date shall be the
record date
specified in such Officer's Certificate, which shall be a date not
more than 30
days prior to the first solicitation of Certificateholders in
connection
therewith. If such a record date is fixed, such Direction may be
given before or
after such record date, but only the Certificateholders of record
at the close
of business on such record date shall be deemed to be
Certificateholders for the
purposes of determining whether Certificateholders of the requisite
proportion
of Outstanding Certificates have authorized or agreed or consented
to such
Direction, and for that purpose the Outstanding Certificates shall
be computed
as of such record date; provided that no such Direction by the
Certificateholders on such record date shall be deemed effective
unless it shall
become effective pursuant to the provisions of this Agreement not
later than one
year after such record date.
(f)
Any Direction by the Holder of any Certificate shall bind
the Holder of every Certificate issued upon the transfer thereof or
in exchange
therefor or in lieu thereof, whether or not notation of such
Direction is made
upon such Certificate.
(g)
Except as otherwise provided in Section 1.04(c),
Certificates owned by or pledged to any Person shall have an equal
and
proportionate benefit under the provisions of this Agreement,
without
preference, priority or distinction as among all of the
Certificates.
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES
ACQUISITION OF EQUIPMENT NOTE
SECTION 2.01
Issuance of Certificates; Acquisition of Equipment Note. (a)
(a) The Trustee is hereby directed (i) to execute and deliver the
Intercreditor
Agreement, the Policy Provider Agreement and the Note Purchase
Agreement on or
prior to the Issuance Date, each in the form delivered to the
Trustee by the
Company and (ii) subject to the respective terms thereof, to
perform its
obligations thereunder. Upon request of the Company and the
satisfaction or
waiver of the closing conditions specified in the Underwriting
Agreement, the
Trustee shall execute, deliver, authenticate, issue and sell
Certificates in
authorized denominations equaling in the aggregate the amount set
forth, with
respect to the Trust, in Schedule II to the Underwriting Agreement
evidencing
the entire ownership interest in the Trust, which amount equals the
maximum
aggregate principal amount of Equipment Note which may be purchased
by the
Trustee pursuant to the Note Purchase Agreement. Except as provided
in Sections
3.04, 3.05, 3.07 and 3.10 hereof, the Trustee shall not execute,
authenticate or
deliver Certificates in excess of the aggregate amount specified in
this
paragraph.
(b)
On the Issuance Date, the Trustee shall, subject to the
conditions set forth in Section 2 of the Note Purchase Agreement,
purchase the
Equipment Note with the proceeds from the sale of the Certificates.
The purchase
price for the Equipment Note shall equal the principal amount of
the Equipment
Note.
SECTION 2.02
OMITTED
SECTION 2.03
Acceptance by Trustee. The Trustee, upon the execution and
delivery of this Agreement, acknowledges its acceptance of all
right, title and
interest in and to the Trust Property and declares that the Trustee
holds and
will hold such right, title and interest for the benefit of all
then present and
future Certificateholders, upon the trusts herein set forth.
Subject to Section
7.14, the Trustee shall take all actions reasonably necessary to
effect the
registration of all such Equipment Note in the name of the
Subordination Agent.
By its payment for and acceptance of each Certificate issued to it
under this
Agreement, each Certificateholder as grantor of the Trust thereby
joins in the
creation and declaration of the Trust.
SECTION 2.04
Limitation of Powers. The Trust is constituted solely for
the purpose of making the investment in the Equipment Note, and,
except as set
forth herein, the Trustee shall not be authorized or empowered to
acquire any
other investments or engage in any other activities including
without limitation
purchasing the Equipment Note issued in connection with the
redemption of
outstanding Equipment Note under any Indenture and, in particular,
the Trustee
shall not be authorized or empowered to do anything that would
cause such Trust
to fail to
9
qualify as a "grantor trust" for federal income tax purposes
(including as
subject to this restriction, acquiring any Pledged Spare Parts
and/or Pledged
Spare Engines (as defined in the Indenture) by bidding such
Equipment Note or
otherwise, or taking any action with respect to any such Pledged
Spare Parts
and/or Pledged Spare Engines once acquired).
ARTICLE III
THE CERTIFICATES
SECTION 3.01
Title, Form, Denomination and Execution of Certificates. (a)
(a) Each Certificate will represent a Fractional Undivided Interest
in the
Trust, shall be issued in fully registered form without coupons and
shall be
substantially in the form set forth as Exhibit A hereto, with such
appropriate
insertions, omissions, substitutions and other variations as are
required or
permitted by this Agreement and may have such letters, numbers or
other marks of
identification and such legends or endorsements placed thereon as
may be
required to comply with the rules of any securities exchange or as
may,
consistently herewith, be determined by the Trustee or the officers
executing
such Certificates, as evidenced by the Trustee's or officer's
execution of the
Certificates (provided that such letters, numbers or other marks of
identification and such legends or endorsements are in a form
acceptable to the
Company). Any portion of the text of any Certificate may be set
forth on the
reverse thereof, with an appropriate reference thereto on the face
of the
Certificate.
(b)
The Certificates shall be issued only in fully registered
form without coupons and only in minimum denominations of $1,000
and integral
multiples of $1,000 (each, an "AUTHORIZED DENOMINATION") in excess
thereof,
except that one Certificate may be issued in a different
denomination. Each
Certificate shall be dated the date of its authentication. The
aggregate
Fractional Undivided Interest of Certificates shall not at any time
exceed
$74,128,000.
(c)
The Certificates shall be in registered form and shall be
typed, printed, lithographed or engraved or produced by any
combination of these
methods or may be produced in any other manner, all as determined
by the
officers executing such Certificates, as evidenced by their
execution of such
Certificates.
SECTION 3.02
Restrictive Legends. Each Global Certificate shall bear the
following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS
CERTIFICATE
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF
OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTION 3.05 OF THE PASS THROUGH
TRUST
AGREEMENT REFERRED TO HEREIN.
SECTION 3.03
Authentication of Certificates. (a) (a) On the Issuance
Date, the Trustee shall duly execute, authenticate and deliver
Certificates in
authorized denominations equaling in the aggregate the amount set
forth, with
respect to the Trust, in Schedule II to the Underwriting Agreement,
evidencing
the entire ownership of the
10
Trust, which amount equals the maximum aggregate principal amount
of Equipment
Note which may be purchased by the Trustee pursuant to the Note
Purchase
Agreement.
(b)
No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, unless there
appears on
such Certificate a certificate of authentication substantially in
the form
provided for herein executed by the Trustee by the manual signature
of one of
its authorized signatories, and such certificate upon any
Certificate shall be
conclusive evidence, and the only evidence, that such Certificate
has been duly
authenticated and delivered hereunder.
(c)
Certificates bearing the manual or facsimile signature of an
individual who was, at the time when such signature was affixed,
authorized to
sign on behalf of the Trustee shall be valid and binding
obligations of the
Trust notwithstanding that such individual has ceased to be so
authorized prior
to the authentication and delivery of such Certificates or did not
hold such
office on the date of such Certificates.
SECTION 3.04
Transfer and Exchange. The Trustee shall cause to be kept at
the office or agency to be maintained by it in accordance with the
provisions of
Section 7.12 a register (the "REGISTER") of the Certificates in
which, subject
to such reasonable regulations as it may prescribe, the Trustee
shall provide
for the registration of such Certificates and of transfers and
exchanges of such
Certificates as herein provided. The Trustee shall initially be the
registrar
(the "REGISTRAR") for the purpose of registering such Certificates
and transfers
and exchanges of such Certificates as herein provided. The Company,
upon notice
to the Trustee, may change the Registrar at any time.
All Certificates issued upon any registration of transfer or
exchange of
Certificates shall be valid obligations of the Trust, evidencing
the same
interest therein, and entitled to the same benefits under this
Trust Agreement,
as the Certificates surrendered upon such registration of transfer
or exchange.
A Certificateholder may transfer a Certificate, or request that a
Certificate be exchanged for Certificates in an aggregate
Fractional Undivided
Interest equal to the Fractional Undivided Interest of such
Certificate
surrendered for exchange of other authorized denominations, by
surrender of such
Certificate to the Trustee with the form of transfer notice thereon
duly
completed and executed, and otherwise complying with the terms of
this
Agreement, including providing evidence of compliance with any
restrictions on
transfer, in form satisfactory to the Trustee and the Registrar. No
such
transfer shall be effected until, and such transferee shall succeed
to the
rights of a Certificateholder only upon, final acceptance and
registration of
the transfer by the Registrar in the Register. Prior to the
registration of any
transfer by a Certificateholder as provided herein, the Trustee
shall treat the
person in whose name the Certificate is registered as the owner
thereof for all
purposes, and the Trustee shall not be affected by notice to the
contrary.
Furthermore, DTC shall, by acceptance of a Global Certificate,
agree that
transfers of beneficial interests in such Global Certificate may be
effected
only through a book-entry system maintained by DTC (or its agent)
and that
ownership of a beneficial interest in the Certificate shall be
required to be
reflected in a book entry. When Certificates are presented to the
Registrar with
a request to register the transfer thereof or to exchange them for
other
authorized denominations of a Certificate in a Fractional Undivided
Interest
equal to the aggregate Fractional Undivided Interest of
Certificates surrendered
for exchange, the Registrar shall register the transfer or make the
exchange as
requested if its requirements for such transactions are met.
To permit registrations of transfers and exchanges in accordance
with the
terms, conditions and restrictions hereof, the Trustee shall
execute and
authenticate Certificates at the Registrar's request. No service
charge shall be
made to a Certificateholder for any registration of transfer or
exchange of
Certificates, but the Trustee shall require payment of a sum
sufficient to cover
any tax or governmental charge that may be imposed in connection
with any
transfer or exchange of Certificates. All Certificates surrendered
for
registration of transfer or exchange shall be canceled and
subsequently
destroyed by the Trustee.
SECTION 3.05
Global, Book-Entry and Definitive Certificates. (a) (a)
Except for one Certificate that may be issued in a denomination of
other than an
even multiple of $1,000, except as provided in the following
sentence, the
Certificates may be issued at the option of the Company in the form
of one or
more typewritten Global Certificates representing the Book-Entry
Certificates of
such class, to be delivered to DTC, the initial Clearing Agency, by
the Trustee
on behalf of the related Trust. In the case of the issuance of
Global
Certificates, such Global Certificates delivered to DTC shall
initially be
registered on the Register in the name of Cede & Co., the
nominee of
11
the initial Clearing Agency, and no Certificate Owner will receive
a definitive
certificate representing such Certificate Owner's interest in the
Certificates,
except as provided in Subsection (d) below. As to Global
Certificates, 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 for all purposes
(including the
making of distributions on the Global Certificates);
(iii)
to the extent that the provisions of this Section
3.05 conflict with any other provisions of this 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 and/or the Clearing Agency Participants; and until
Definitive
Certificates are issued pursuant to Subsection (d) below, the
Clearing
Agency will make book-entry transfers in respect of the Book-Entry
Certificates among the Clearing Agency Participants and receive and
transmit distributions of principal, interest and premium, if any,
on the
Global Certificates to such Clearing Agency Participants;
(v)
Global Certificates may be transferred in whole, but
not in part, and in the manner provided in Section 3.04, by the
Clearing
Agency holding such Global Certificates to a nominee of such
Clearing
Agency, or by such Clearing Agency to a successor Clearing Agency
that has
been selected or approved by the Company or to a nominee of such
successor
Clearing Agency; and
(vi)
whenever this Agreement requires or permits actions
to be taken based upon instructions or directions of
Certificateholders
evidencing a specified percentage of the Fractional Undivided
Interests in
the 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 Book-Entry
Certificates and
has delivered such instructions to the Trustee. Neither the Company
nor
the Trustee shall have any obligation to determine whether the
Clearing
Agency has in fact received any such instructions.
(b)
Whenever notice or other communication to the
Certificateholders 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
herein to be
given to Certificateholders to the Clearing Agency.
(c)
The Trustee shall enter into the applicable Letter of
Representations with respect to the Global Certificates and fulfill
its
responsibilities thereunder.
(d)
If with respect to the Global Certificates (i) the Company
advises the Trustee in writing that the Clearing Agency that holds
such Global
Certificates 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 evidencing Fractional Undivided Interests
aggregating
not less than a majority in interest in the 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, then
the Trustee
shall notify all Certificate Owners, 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 Global Certificates 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, the Trustee shall issue and deliver the
Definitive
Certificates in accordance with the instructions of the Clearing
Agency. Neither
the Company, the Registrar, the Paying Agent nor
12
the Trustee shall be liable for any delay in delivery of such
instructions and
may conclusively rely on, and shall be protected in relying on,
such
registration instructions. Upon the issuance of Definitive
Certificates, the
Trustee shall recognize the Persons in whose names the Definitive
Certificates
are registered in the Register as Certificateholders hereunder.
Neither the
Company nor the Trustee shall be liable if the Trustee or the
Company is unable
to locate a qualified successor Clearing Agency.
(e)
Until such time as no Certificates remain Outstanding, the
Registrar shall retain copies of all letters, notices and other
written
communications received pursuant to this Section 3.05. The Trustee,
if not the
Registrar at such time, shall have the right to inspect and make
copies of all
such letters, notices or other written communications at any
reasonable time
upon the giving of reasonable written notice to the Registrar.
SECTION 3.06
[Intentionally Omitted].
SECTION 3.07
Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate is surrendered to the Registrar or the
Registrar
receives evidence to its satisfaction of the destruction, loss or
theft of any
Certificate and (b) there is delivered to the Registrar and the
Trustee such
security, indemnity or bond, as may be required by them to save
each of them
harmless, then, in the absence of notice to the Registrar or the
Trustee that
such destroyed, lost or stolen Certificate has been acquired by a
protected
purchaser, and provided that the requirements of Section 8-405 of
the Uniform
Commercial Code in effect in any applicable jurisdiction are met,
the Trustee
shall execute, authenticate and deliver, in exchange for or in lieu
of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate
or
Certificates, in authorized denominations and of like Fractional
Undivided
Interest and bearing a number not contemporaneously outstanding.
In connection with the issuance of any new Certificate under this
Section
3.07, the Trustee may require the payment of a sum sufficient to
cover any tax
or other governmental charge that may be imposed in relation
thereto and any
other expenses (including the fees and expenses of the Trustee and
the
Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section 3.07
shall
constitute conclusive evidence of the appropriate Fractional
Undivided Interest
in the Trust, as if originally issued, whether or not the lost,
stolen or
destroyed Certificate shall be found at any time.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to
the
replacement or payment of mutilated, destroyed, lost or stolen
Certificates.
SECTION 3.08
Persons Deemed Owners. Prior to due presentment of a
Certificate for registration of transfer, the Trustee, the
Registrar and any
Paying Agent may treat the Person in whose name any Certificate is
registered
(as of the day of determination) as the owner of such Certificate
for the
purpose of receiving distributions pursuant to Article IV and for
all other
purposes whatsoever, and none of the Trustee, the Registrar or any
Paying Agent
shall be affected by any notice to the contrary.
SECTION 3.09
Cancellation. All Certificates surrendered for payment or
transfer or exchange shall, if surrendered to the Trustee or any
agent of the
Trustee other than the Registrar, be delivered to the Registrar for
cancellation
and shall promptly be canceled by it. No Certificates shall be
authenticated in
lieu of or in exchange for any Certificates canceled as provided in
this
Section, except as expressly permitted by this Agreement. All
canceled
Certificates held by the Registrar shall be destroyed and a
certification of
their destruction delivered to the Trustee.
SECTION 3.10
Temporary Certificates. Until Definitive Certificates are
ready for delivery, the Trustee shall authenticate temporary
Certificates.
Temporary Certificates shall be substantially in the form of
Definitive
Certificates but may have insertions, substitutions, omissions and
other
variations determined to be appropriate by the officers executing
the temporary
Certificates, as evidenced by their execution of such temporary
Certificates. If
temporary Certificates are issued, the Trustee will cause
Definitive
Certificates to be prepared without unreasonable delay. After the
preparation of
Definitive Certificates, the temporary Certificates shall be
exchangeable for
Definitive Certificates upon surrender of the temporary
Certificates at the
office or agency of the Trustee designated for such purpose
pursuant to Section
7.12, without charge to the Certificateholder. Upon surrender for
cancellation
of any one or more temporary Certificates, the Trustee shall
execute,
authenticate and deliver in exchange therefor a
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like face amount of Definitive Certificates of authorized
denominations. Until
so exchanged, the temporary Certificates shall be entitled to the
same benefits
under this Agreement as Definitive Certificates.
SECTION 3.11
Limitation of Liability for Payments. All payments and
distributions made to Certificateholders in respect of the
Certificates shall be
made only from the Trust Property and only to the extent that the
Trustee shall
have sufficient income or proceeds from the Trust Property to make
such payments
in accordance with the terms of Article IV of this Agreement. Each
Certificateholder, by its acceptance of a Certificate, agrees that
it will look
solely to the income and proceeds from the Trust Property for any
payment or
distribution due to such Certificateholder pursuant to the terms of
this
Agreement and that it will not have any recourse to the Company,
the Trustee,
the Loan Trustees, the Liquidity Providers or the Policy Provider,
except as
otherwise expressly provided herein or in the Intercreditor
Agreement.
The Company is a party to this Agreement solely for purposes of
meeting
the requirements of the Trust Indenture Act, and therefore shall
not have any
right, obligation or liability hereunder (except as otherwise
expressly provided
herein).
SECTION 3.12
ERISA Legend. All Certificates issued pursuant to this
Agreement shall bear a legend to the following effect (the "ERISA
LEGEND")
unless the Company and the Trustee determine otherwise consistent
with
applicable law:
"BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT (A) NO PLAN
ASSETS HAVE BEEN USED TO PURCHASE THIS CERTIFICATE OR AN INTEREST
HEREIN OR (B) THE PURCHASE AND HOLDING OF THIS CERTIFICATE OR AN
INTEREST HEREIN IS EXEMPT FROM THE PROHIBITED TRANSACTION
RESTRICTIONS OF ERISA AND THE CODE PURSUANT TO ONE OR MORE
PROHIBITED TRANSACTION STATUTORY OR ADMINISTRATIVE EXEMPTIONS. THE
PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN
VIOLATION OF THE FOREGOING RESTRICTIONS."
By acceptance of any Certificate bearing the ERISA Legend, each
Holder of
such a Certificate acknowledges the restrictions on transfer of
such Certificate
set forth in this Agreement and agrees that it will transfer such
Certificate
only as provided in this Agreement. The Trustee shall not register
a transfer of
any Certificate unless such transfer complies with the restrictions
on transfer,
if any, of such Certificate set forth in such legend.
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
SECTION 4.01
Certificate Account and Special Payments Account. (a) (a)
The Trustee shall establish and maintain on behalf of the
Certificateholders a
Certificate Account as one or more non-interest-bearing accounts.
The Trustee
shall hold the Certificate Account in trust for the benefit of the
Certificateholders, and shall make or permit withdrawals therefrom
only as
provided in this Agreement. On each day when a Scheduled Payment is
made to the
Trustee under the Intercreditor Agreement, the Trustee upon receipt
thereof
shall immediately deposit the aggregate amount of such Scheduled
Payment in the
Certificate Account.
(b)
The Trustee shall establish and maintain on behalf of the
Certificateholders a Special Payments Account as one or more
accounts, which
shall be non-interest bearing except as provided in Section 4.04.
The Trustee
shall hold the Special Payments Account in trust for the benefit of
the
Certificateholders and shall make or permit withdrawals therefrom
only as
provided in this Agreement. On each day when one or more Special
Payments are
made to the Trustee under the Intercreditor Agreement, the Trustee,
upon receipt
thereof, shall immediately deposit the aggregate amount of such
Special Payments
in the Special Payments Account.
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(c)
The Trustee shall cause the Subordination Agent to present
to the related Loan Trustee of each Equipment Note such Equipment
Note on the
date of its stated final maturity or, in the case of the 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) (a) On each Regular Distribution Date or as soon
thereafter as the
Trustee has confirmed receipt of the payment of all or any part of
the Scheduled
Payments due on such date, the Trustee shall distribute out of the
Certificate
Account the entire amount deposited therein pursuant to Section
4.01(a). There
shall be so distributed to each Certificateholder of record on the
Record Date
with respect to such Regular Distribution Date (other than as
provided in
Section 11.01 concerning the final distribution) by check mailed to
such
Certificateholder, at the address appearing in the Register, such
Certificateholder's pro rata share (based on the Fractional
Undivided Interest
in the Trust held by such Certificateholder) of the total amount in
the
Certificate Account, except that, with respect to Certificates
registered on the
Record Date in the name of Cede & Co., as nominee for DTC, such
distribution
shall be made by wire transfer in immediately available funds to
the account
designated by DTC.
(b)
On each Special Distribution Date with respect to any
Special Payment or as soon thereafter as the Trustee has confirmed
receipt of
any Special Payments due on the Equipment Note held in the related
Trust or
realized upon the sale of such Equipment Note, the Trustee shall
distribute out
of the Special Payments Account the entire amount of such Special
Payment
deposited therein pursuant to Section 4.01(b). There shall be so
distributed to
each Certificateholder of record on the Record Date with respect to
such Special
Distribution Date (other than as provided in Section 11.01
concerning the final
distribution) by check mailed to such Certificateholder, at the
address
appearing in the Register, such Certificateholder's pro rata share
(based on the
Fractional Undivided Interest in the Trust held by such
Certificateholder) of
the total amount in the Special Payments Account on account of such
Special
Payment, except that, with respect to Certificates registered on
the Record Date
in the name of Cede & Co., as nominee for DTC, such
distribution shall be made
by wire transfer in immediately available funds to the account
designated by
DTC.
(c)
The Trustee shall cause notice of each Special Payment to be
mailed to each Certificatehold
