0000914121-01-500683.txt : 20011019
0000914121-01-500683.hdr.sgml : 20011019
ACCESSION NUMBER: 0000914121-01-500683
CONFORMED SUBMISSION TYPE: 8-K
PUBLIC DOCUMENT COUNT: 15
CONFORMED PERIOD OF REPORT: 20010917
ITEM INFORMATION: Other events
ITEM INFORMATION: Financial statements and exhibits
FILED AS OF DATE: 20011016
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: DELTA AIR LINES INC /DE/
CENTRAL INDEX KEY: 0000027904
STANDARD INDUSTRIAL CLASSIFICATION: AIR TRANSPORTATION, SCHEDULED [4512]
IRS NUMBER: 580218548
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 8-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-05424
FILM NUMBER: 1760165
BUSINESS ADDRESS:
STREET 1: HARTSFIELD ATLANTA INTL AIRPORT
STREET 2: 1030 DELTA BLVD
CITY: ATLANTA
STATE: GA
ZIP: 30320-6001
BUSINESS PHONE: 4047152600
MAIL ADDRESS:
STREET 1: 1030 DELTA BLVD
STREET 2: DEPT 971
CITY: ATLANTA
STATE: GA
ZIP: 30320-6001
FORMER COMPANY:
FORMER CONFORMED NAME: DELTA AIR CORP
DATE OF NAME CHANGE: 19660908
8-K
1
de600102-8k.txt
CURRENT REPORT
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): September 17, 2001
Delta Air Lines, Inc.
--------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 1-5424 58-0218548
--------------------------------------------------------------------------------
(State of incorporation) (Commission File Number) (I.R.S. Employer
Identification No.)
Hartsfield Atlanta International Airport, Atlanta, Georgia 30320
--------------------------------------------------------------------------------
(Address of principal executive officers) (Zip Code)
Registrant's telephone number, including area code: (404) 715-2600
--------------------------------------------------------------------------------
Not Applicable
--------------------------------------------------------------------------------
(Former name or former address, if changed since last report)
ITEM 5. OTHER EVENTS
------------
Delta Air Lines, Inc. (the "Company") is filing with the Securities
and Exchange Commission certain items that are to be incorporated by reference
into its Registration Statement on Form S-3 (File No. 333-65218).
ITEM 7. EXHIBITS
--------
The following documents are filed as Exhibits in connection with,
and incorporated by reference into, the Company's Registration Statement on Form
S-3 (File No. 333-65218). The Registration Statement and the Supplement dated
September 17, 2001 and the Supplement dated September 14, 2001 to the Prospectus
Supplement dated September 6, 2001 to the Prospectus date July 23, 2001 related
to the offering by the Company of Pass Through Trust Certificates, Series
2001-1.
EXHIBIT NUMBER DESCRIPTION
-------------- -----------
1(a) Underwriting Agreement dated as of September
6, 2001, by and among the Company, Salomon
Smith Barney Inc. and J.P. Morgan Securities
Inc.
1(b) Amendment to Underwriting Agreement dated as
of September 17, 2001, by and among the
Company, Salomon Smith Barney Inc. and J.P.
Morgan Securities Inc.
4(a)(1) Trust Supplement No. 2001-1A-1 dated as of
September 17, 2001, by and between the
Company and State Street Bank and Trust
Company of Connecticut, National
Association, as Trustee (the "Pass Through
Trustee").
4(a)(2) Form of 6.619% Delta Air Lines Pass Through
Certificate, Series 2001-1A-1 (included in
Exhibit 4(a)(1)).
4(a)(3) Trust Supplement No. 2001-1A-2 dated as of
September 17, 2001, by and between the
Company and the Pass Through Trustee.
4(a)(4) Form of 7.111% Delta Air Lines Pass Through
Certificate, Series 2001-1A-2 (included in
Exhibit 4(a)(3)).
4(a)(5) Trust Supplement No. 2001-1B dated as of
September 17, 2001, by and between the
Company and the Pass Through Trustee.
4(a)(6) Form of 7.711% Delta Air Lines Pass Through
Certificate, Series 2001-1B (included in
Exhibit 4(a)(5)).
4(a)(7) Trust Supplement No. 2001-1C dated as of
September 17, 2001, by and between the
Company and the Pass Through Trustee.
4(a)(8) Form of 7.299% Delta Air Lines Pass Through
Certificate, Series 2001-1C (included in
Exhibit 4(a)(7)).
4(b)(1) Intercreditor Agreement dated as of
September 17, 2001, by and among the Pass
Through Trustee, Landesbank Hessen-Thuringen
Girozentrale (the "Liquidity Provider") and
State Street Bank and Trust Company of
Connecticut, National Association, as
Subordination Agent (the "Subordination
Agent").
4(c)(1) Revolving Credit Agreement (2001-1A-1) dated
as of September 17, 2001, by and between the
Subordination Agent and the Liquidity
Provider.
4(c)(2) Revolving Credit Agreement (2001-1A-2) dated
as of September 17, 2001, by and between the
Subordination Agent and the Liquidity
Provider.
4(c)(3) Revolving Credit Agreement (2001-1B) dated
as of September 17, 2001, by and between the
Subordination Agent and the Liquidity
Provider.
4(c)(4) Revolving Credit Agreement (2001-1C) dated
as of September 17, 2001, by and between the
Subordination Agent and the Liquidity
Provider.
4(d)(1) Participation Agreement (N3731T) dated as of
September 17, 2001, by and among the
Company, the Pass Through Trustee, the
Subordination Agent and State Street Bank
and Trust Company of Connecticut, National
Association, as loan trustee (the "Loan
Trustee"), and State Street Bank and Trust
Company of Connecticut, National
Association, in its individual capacity as
set forth therein.
4(d)(2) Indenture and Security Agreement (N3731T)
dated as of September 17, 2001, by and
between the Company and the Loan Trustee.
4(d)(3) Form of Series 2001-1 Equipment Notes
issued in connection with the Boeing
aircraft bearing U.S. registration number
N3731T (included in Exhibit 4(d)(2)).
99 Schedule I.*
* Pursuant to Instruction 2 to Item 601 of Regulation S-K, Exhibit
99(a) filed herewith contains a list of other documents applicable to the
Boeing aircraft that relate to the offering of the Company's Pass Through
Certificates, Series 2001-1, which documents are substantially identical
to those applicable to the Boeing 737 aircraft bearing United States
registration numbers. Exhibit 99 sets forth the details by which such
other documents differ from the corresponding documents filed in respect
of the aircraft bearing United States registrations number N3731T.
The Exhibit Index commencing on page 6 is hereby incorporated herein
by reference.
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
DELTA AIR LINES, INC.
October 16, 2001
By: /s/ Leslie P. Klemperer
-----------------------------------
Leslie P. Klemperer
Vice President - Asssociate General
Counsel
EXHIBIT INDEX
-------------
EXHIBIT NUMBER DESCRIPTION
--------------- ------------
1(a) Underwriting Agreement dated as of September
6, 2001, by and among the Company, Salomon
Smith Barney Inc. and J.P. Morgan Securities
Inc.
1(b) Amendment to Underwriting Agreement dated as
of September 17, 2001, by and among the
Company, Salomon Smith Barney Inc. and J.P.
Morgan Securities Inc.
4(a)(1) Trust Supplement No. 2001-1A-1 dated as of
September 17, 2001, by and between the
Company and State Street Bank and Trust
Company of Connecticut, National
Association, as Trustee (the "Pass Through
Trustee").
4(a)(2) Form of 6.619% Delta Air Lines Pass Through
Certificate, Series 2001-1A-1 (included in
Exhibit 4(a)(1)).
4(a)(3) Trust Supplement No. 2001-1A-2 dated as of
September 17, 2001, by and between the
Company and the Pass Through Trustee.
4(a)(4) Form of 7.111% Delta Air Lines Pass Through
Certificate, Series 2001-1A-2 (included in
Exhibit 4(a)(3)).
4(a)(5) Trust Supplement No. 2001-1B dated as of
September 17, 2001, by and between the
Company and the Pass Through Trustee.
4(a)(6) Form of 7.711% Delta Air Lines Pass Through
Certificate, Series 2001-1B (included in
Exhibit 4(a)(5)).
4(a)(7) Trust Supplement No. 2001-1C dated as of
September 17, 2001, by and between the
Company and the Pass Through Trustee.
4(a)(8) Form of 7.299% Delta Air Lines Pass Through
Certificate, Series 2001-1C (included in
Exhibit 4(a)(7)).
4(b)(1) Intercreditor Agreement dated as of
September 17, 2001, by and among the Pass
Through Trustee, Landesbank Hessen-Thuringen
Girozentrale (the "Liquidity Provider") and
State Street Bank and Trust Company of
Connecticut, National Association, as
Subordination Agent (the "Subordination
Agent").
4(c)(1) Revolving Credit Agreement (2001-1A-1) dated
as of September 17, 2001, by and between the
Subordination Agent and the Liquidity
Provider.
4(c)(2) Revolving Credit Agreement (2001-1A-2) dated
as of September 17, 2001, by and between the
Subordination Agent and the Liquidity
Provider.
4(c)(3) Revolving Credit Agreement (2001-1B) dated
as of September 17, 2001, by and between the
Subordination Agent and the Liquidity
Provider.
4(c)(4) Revolving Credit Agreement (2001-1C) dated
as of September 17, 2001, by and between the
Subordination Agent and the Liquidity
Provider.
4(d)(1) Participation Agreement (N3731T) dated as of
September 17, 2001, by and among the
Company, the Pass Through Trustee, the
Subordination Agent and State Street Bank
and Trust Company of Connecticut, National
Association, as loan trustee (the "Loan
Trustee"), and State Street Bank and Trust
Company of Connecticut, National
Association, in its individual capacity as
set forth therein.
4(d)(2) Indenture and Security Agreement (N3731T)
dated as of September 17, 2001, by and
between the Company and the Loan Trustee.
4(d)(3) Form of Series 2001-1 Equipment Notes issued
in connection with the Boeing aircraft
bearing U.S. registration number N3731T
(included in Exhibit 4(d)(2)).
99 Schedule I.*
EX-1.(A)
3
de600102-ex1a.txt
UNDERWRITING AGREEMENT
EXHIBIT 1(a)
DELTA AIR LINES, INC.
Pass Through Certificates, Series 2001-1
UNDERWRITING AGREEMENT
Dated: September 6, 2001
DELTA AIR LINES, INC.
Enhanced Pass Through Certificates, Series 2001-1
UNDERWRITING AGREEMENT
September 6, 2001
Salomon Smith Barney Inc.
J.P. Morgan Securities Inc.
Commerzbank Capital Markets Corp.
Mizuho International plc
SunTrust Capital Markets Inc.
Tokyo-Mitsubishi International plc
Credit Lyonnais Securities (USA) Inc.
KBC Financial Products USA Inc.
c/o Salomon Smith Barney Inc.
390 Greenwich Street
4th Floor
New York, NY 10013
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, NY 10017
Ladies and Gentlemen:
Delta Air Lines, Inc., a Delaware corporation (the "COMPANY"),
proposes that State Street Bank and Trust Company of Connecticut, National
Association ("State Street"), acting not in its individual capacity but solely
as pass through trustee (the "TRUSTEE") under the amended and restated Pass
Through Trust Agreement dated as of November 16, 2000 (the "BASIC AGREEMENT"),
as supplemented for each class of pass through certificates (the "OFFERED PASS
THROUGH CERTIFICATES") to be purchased hereunder (each, an "OFFERED CLASS") by a
Trust Supplement (each, an "OFFERED TRUST SUPPLEMENT"), in each case between the
Company and the Trustee, issue and sell to the Underwriters named in Schedule I
hereto its Offered Pass Through Certificates in the aggregate amounts and with
the applicable interest rates and final expected distribution dates set forth on
Schedule A hereto (the "OFFERED CERTIFICATES") on the terms and conditions
stated herein. The Offered Trust Supplements relate to the creation and
administration of Delta Air Lines Pass Through Trust, Series 2001-1A-1 (the
"CLASS A-1 TRUST"), Series 2001-1A-2 (the "CLASS A-2 TRUST"), Series 2001-1B
(the "CLASS B TRUST") and Series 2001-1C (the "CLASS C TRUST" and, together with
the Class A-1 Trust, Class A-2 Trust and Class B Trust, the "OFFERED TRUSTS").
The Company will also cause State Street, as pass through trustee
under Delta Air Lines Pass Through Trust, Series 2001-1D (the "CLASS D TRUST"
and, together with the Offered Trusts, the "Trusts"), to issue and privately
place its pass through certificates (the "CLASS D CERTIFICATES" and, together
with the Offered Certificates, the "CERTIFICATES"). The Class D Certificates
will be issued pursuant to the Basic Agreement, as supplemented by a Trust
Supplement for the Class D Trust (the "CLASS D TRUST SUPPLEMENT" and, together
with the Offered Trust Supplements, the "Trust Supplements") (the Basic
Agreement, as supplemented by the related Trust Supplement being referred to
herein individually as a "DESIGNATED AGREEMENT"). Concurrently with the issuance
and sale of the Offered Certificates pursuant hereto, all of the Class D
Certificates shall be privately placed with a newly organized Delaware business
trust (the "INITIAL CLASS D HOLDER"), all of the beneficial interests in which
will be initially owned by the Company and/or its affiliates. The Initial Class
D Holder will be established pursuant to a trust agreement to be entered into
between the Company (and/or its affiliates) and Wilmington Trust Company, as
Owner Trustee, as of the Closing Time or prior thereto (the "BUSINESS TRUST
AGREEMENT").
Each Class of the Certificates will represent interests in the
related Trust established pursuant to the related Designated Agreement to fund
the purchase of equipment notes (the "EQUIPMENT NOTES") to be issued by the
Company in connection with the financing of 36 Aircraft. The Equipment Notes
will be issued under 36 separate Indenture and Security Agreements between State
Street, as Loan Trustee (the "LOAN TRUSTEE"), and the Company (each, including
any Supplements thereto, an "INDENTURE" and, collectively, the "INDENTURES").
The holders of each Class of the Offered Certificates will be
entitled to the benefits of separate liquidity facilities with respect to
certain amounts of interest payable thereon. Landesbank Hessen-Thuringen
Girozentrale (the "LIQUIDITY PROVIDER") will enter into a separate revolving
credit agreement with respect to each Offered Trust (each, a "LIQUIDITY
FACILITY"), to be dated as of the date on which the Closing Time (as defined
below) occurs, for the benefit of the holders of the respective Class of Offered
Certificates. The Liquidity Provider and the holders of the Certificates will be
entitled to the benefits of an Intercreditor Agreement to be dated as of the
date on which the Closing Time occurs (the "INTERCREDITOR AGREEMENT") among
State Street as Trustee of each Trust, the Liquidity Provider and State Street,
as Subordination Agent (the "SUBORDINATION AGENT").
As used herein, unless the context otherwise requires, the term
"UNDERWRITERS" shall mean the firms named as Underwriters in Schedule I and the
term "you" shall mean Salomon Smith Barney Inc. ("SALOMON") and J.P. Morgan
Securities Inc. ("J.P. MORGAN").
Capitalized terms used but not otherwise defined in this Agreement
shall have the meanings specified in or pursuant to the Designated Agreements or
the Intercreditor Agreement; provided that as used in this Agreement, the term
"OPERATIVE DOCUMENTS" shall mean the Intercreditor Agreement, the Liquidity
Facilities, the Designated Agreements, the Participation Agreements, the
Indentures and the Business Trust Agreement.
The Company has prepared and filed on Form S-3 with the Securities
and Exchange Commission (the "COMMISSION") a shelf registration statement (File
No. 333-65218) (the "REGISTRATION STATEMENT", as amended at the date hereof,
including the exhibits thereto and the documents incorporated by reference
therein, the "REGISTRATION STATEMENT") relating to among others, certain pass
through certificates (including the Offered Certificates) and the offering
thereof from time to time in accordance with Rule 415 under the Securities Act
of 1933, as amended (the "SECURITIES ACT"). The Registration Statement has been
declared effective by the Commission. As provided in Section 3(a), a prospectus
supplement reflecting the terms of the Offered Certificates, the terms of the
offering thereof and the other matters set forth therein has been prepared and
will be filed together with the base prospectus referred to below pursuant to
Rule 424 under the Securities Act (such prospectus supplement, in the form first
filed on or after the date hereof pursuant to Rule 424, is herein referred to as
the "PROSPECTUS SUPPLEMENT"). The base prospectus dated July 23, 2001 included
in the Registration Statement and relating to all offerings of pass through
certificates as supplemented by the Prospectus Supplement, is herein called the
"Prospectus", except that, if such base prospectus is amended on or prior to the
date on which the Prospectus Supplement is first filed pursuant to Rule 424, the
term "PROSPECTUS" shall refer to such base prospectus as so amended and as
supplemented by the Prospectus Supplement, in either case including the
documents filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), that are incorporated by
reference therein. The term "preliminary prospectus" means a preliminary
prospectus supplement specifically relating to the Offered Certificates,
together with the base prospectus and including the documents filed by the
Company with the Commission pursuant to the Exchange Act that are incorporated
by reference therein. Any reference herein to the terms "AMENDMENT" or
"SUPPLEMENT" with respect to the Registration Statement, the Prospectus, or any
preliminary prospectus shall be deemed to refer to and include any documents
filed by the Company with the Commission under the Exchange Act after the date
hereof, the date the Prospectus is filed with the Commission, or the date of
such preliminary prospectus, as the case may be, and incorporated therein by
reference pursuant to Item 12 of Form S-3 under the Securities Act.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act.
(b) The Registration Statement has been declared effective by the
Commission. On the original effective date of the Registration Statement,
on the effective date of any post-effective amendment thereto, and on the
date of the filing by the Company of any Annual Report on Form 10-K after
the original filing of the Registration Statement, the Registration
Statement complied in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission thereunder (the "SECURITIES ACT REGULATIONS"), and the Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), and the
applicable rules and regulations of the Commission thereunder (the "TRUST
INDENTURE ACT REGULATIONS") and did not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; the
Registration Statement and any amendments thereof, on the date hereof, and
the Prospectus, and any amendments thereof and supplements thereto, as of
their respective filing or issue dates and at the Closing Time, comply and
will comply in all material respects with the requirements of the
Securities Act, the Securities Act Regulations, the Trust Indenture Act
and the Trust Indenture Act Regulations, and neither the Prospectus nor
any amendments thereof or supplements thereto, as of any such respective
dates, includes or will include an untrue statement of a material fact or
omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; except that this representation and warranty
does not apply to statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished in
writing to the Company in connection with the Registration Statement or
the Prospectus or any amendment thereof or supplement thereto by or on
behalf of such Underwriter through either of you expressly for use in the
Prospectus and any amendments thereof or supplements thereto, or to
statements or omissions in that part of the Registration Statement which
constitutes the Statement of Eligibility under the Trust Indenture Act
(Form T-1) of the Trustee.
(c) The consolidated financial statements incorporated by reference
in the Prospectus and any amendments thereof or supplements thereto
present fairly the consolidated financial position of the Company and its
subsidiaries as of the dates indicated and the consolidated results of
their operations and cash flows for the periods specified and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved, except as
indicated therein, and the supporting schedules incorporated by reference
in the Registration Statement present fairly the information required to
be stated therein.
(d) The documents incorporated by reference in the Prospectus and
any amendments thereof or supplements thereto, at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act and the rules
and regulations thereunder.
(e) Since the date of the latest audited financial statements
incorporated by reference in the Registration Statement and Prospectus,
there has been no material adverse change in, or any development known to
the Company which would have a material adverse effect on, the
consolidated financial condition or operations of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth or contemplated in
the Registration Statement and Prospectus.
(f) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as it is now being conducted except where the failure
to have such power or authority would not individually or in the aggregate
have a material adverse effect on the consolidated financial condition or
operations of the Company and its subsidiaries, taken as a whole.
(g) The Company (i) is an "air carrier" within the meaning of 49
U.S.C. Section 40102(a), (ii) holds an air carrier operating certificate
issued by the Secretary of Transportation 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, (iii) is a "citizen of the
United States" as defined in 49 U.S.C. Section 40102 and (iv) is duly
qualified as a foreign corporation for the transaction of business and in
good standing under the laws of each jurisdiction (other than the State of
Delaware) in which the Company has intrastate routes, or has a principal
office or major overhaul facility and where the failure to so qualify
would have a material adverse effect on the financial condition or
operations of the Company and its subsidiaries, taken as a whole; and each
material subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation.
(h) The execution and delivery by the Company of this Agreement, the
Equipment Notes and the Operative Documents to which the Company is, or is
to be, a party, the consummation by the Company of the transactions herein
and therein contemplated, and the compliance by the Company with the terms
hereof and thereof do not and will not conflict with, or result in a
breach or violation of, any of the terms or provisions of, or constitute a
default under, the Certificate of Incorporation or By-Laws, as amended, of
the Company or any of its subsidiaries or any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or by which any of the property or assets
of the Company or any of its subsidiaries is subject (except for such
conflicts, breaches, violations and defaults as would not have a material
adverse effect on the financial condition or operations of the Company and
its subsidiaries, taken as a whole, and that would not affect the validity
of the Equipment Notes or the Certificates), nor will such action result
in any violation of the provisions of the Certificate of Incorporation or
By-laws of the Company, or any statute or any order, rule or regulation of
any court or governmental agency or body, having jurisdiction over the
Company or any of its subsidiaries or any of their respective properties;
and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body, is
required for the valid authorization, issuance and delivery of the
Certificates and the Equipment Notes, the valid authorization, execution,
delivery and performance by the Company of this Agreement, the Equipment
Notes and the Operative Documents to which the Company is, or is to be, a
party, or the consummation by the Company of the transactions contemplated
by this Agreement, the Equipment Notes and the Operative Documents to
which the Company is, or is to be, a party, except (i) such as are
required under the Securities Act, the Trust Indenture Act and the
securities or Blue Sky laws of the various states and, (ii) filings or
recordings with the Federal Aviation Administration ("FAA") and under the
Uniform Commercial Code as in effect in Delaware, which filings or
recordings shall have been made or duly presented for filing on or prior
to the Closing Time.
(i) This Agreement, the Equipment Notes and the Operative Documents
to which the Company is, or is to be, a party, have each been duly
authorized by the Company, and this Agreement and each Operative Document
to which the Company is, or is to be, a party, have been or will be at or
prior to the Closing Time, duly executed and delivered by the Company. The
Equipment Notes will be duly executed and delivered by the Company at or
prior to the Closing Time. The Equipment Notes and the Operative Documents
to which the Company is or is to be, a party, when duly executed and
delivered by the Company, assuming in the case of the Operative Documents
that such documents constitute the legal, valid and binding obligation of
each other party thereto, constitute or will constitute valid and binding
obligations of the Company. The form of the Basic Agreement filed as an
exhibit to the Company's shelf registration statement (File No. 333-58647)
has been duly qualified under the Trust Indenture Act. The Certificates,
the Equipment Notes, and the Operative Documents will conform in all
material respects to the descriptions thereof in the Prospectus and any
amendments thereof or supplements thereto.
(j) Arthur Andersen LLP, who reported on the annual consolidated
financial statements of the Company incorporated by reference in the
Registration Statement and the Prospectus and any amendments thereof or
supplements thereto, are independent accountants as required by the
Securities Act and the Securities Act Regulations.
(k) When duly executed, authenticated and delivered by the Trustee
in accordance with the terms of the related Designated Agreements and sold
and paid for as provided in (i) this Agreement in the case of the Offered
Certificates and (ii) the Class D Trust Supplement and the Business Trust
Agreement, in the case of the Class D Certificates, the Certificates will
be validly issued pursuant to the related Designated Agreements and will
constitute valid and binding obligations of the related Trustees
enforceable against the Trustees in accordance with their terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting enforcement of creditors' rights generally
and by general principles of equity; and the holders thereof will be
entitled to the benefits of the related Designated Agreements.
(l) The Equipment Notes, when duly executed and delivered by the
Company and when duly authenticated by the Loan Trustee in accordance with
the terms of the related Indentures, will be duly issued under such
Indentures and will constitute valid and binding obligations of the
Company; and the holders thereof will be entitled to the benefits of the
related Indentures, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and by general principles of equity.
(m) The statements set forth in the Registration Statement and
Prospectus under the headings "CERTAIN UNITED STATES FEDERAL INCOME TAX
CONSEQUENCES", "ERISA CONSIDERATIONS", "CERTAIN FEDERAL INCOME TAX
CONSEQUENCES" and "CERTAIN ERISA CONSIDERATIONS", insofar as such
statements purport to summarize certain legal matters, referred to
therein, constitute accurate summaries thereof in all material respects.
(n) Other than as set forth in the Registration Statement and
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject which,
in the reasonable judgment of the Company, individually or in the
aggregate are likely to have a material adverse effect on the consolidated
financial condition or operations of the Company and its subsidiaries
taken as a whole; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(o) The Company has authorized capital stock as set forth in the
Registration Statement and Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; and all of the issued shares
of capital stock of each material subsidiary (except for Aero Assurance
Ltd. for which the Company owns approximately a 90% equity interest) of
the Company have been fully and validly authorized and issued, are fully
paid and non-assessable and (except for directors' qualifying shares) are
owned directly or indirectly by the Company.
(p) Neither the Company nor any of its affiliates, nor any person
acting on their behalf, nor to the Company's knowledge any Trust has
offered, sold or solicited an offer to buy, any Class D Certificates or
any interest therein to any person or entity other than the Initial Class
D Holder. The Company has not entered and will not enter into any
contractual arrangement with respect to the issuance and initial sale of
the Class D Certificates except as contemplated by the Operative
Documents.
(q) At the Closing Time, the Initial Class D Holder will be duly
formed and be validly existing in good standing as a business trust under
the Delaware Business Trust Act (the "DBTA") and have the power and
authority under the Business Trust Agreement and the DBTA to own and hold
its property. At the Closing Time, the Company or one of its affiliates
will directly or indirectly own all of the beneficial interests in the
Initial Class D Holder free and clear of any lien, encumbrance, security
interest or similar claim or interests.
(r) The issuance and sale of the Class D Certificates and the
related Equipment Notes, as contemplated by the Operative Documents, will
not be subject to the registration requirements of the Securities Act, and
the Designated Agreement for the Class D Certificates will not be required
to be qualified under the Trust Indenture Act.
2. Purchase and Sale. (a) On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein and
therein set forth, the Company agrees to cause the Trustee to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Trustee, at a purchase price of 100% of the principal amount thereof,
the aggregate principal amount of each Class of Offered Certificates set forth
opposite the name of such Underwriter in Schedule I.
(b) Payment of the purchase price for, and delivery of, the Offered
Certificates shall be made at the offices of Cadwalader, Wickersham & Taft, 100
Maiden Lane, New York, New York 10038 at 10:00am on September 17, 2001, or at
such other date, time or location or locations as shall be agreed upon by the
Company and you, or as shall otherwise be provided in Section 7 (such date and
time being herein called the "CLOSING TIME"). Payment shall be made to or upon
the order of the Trustees by federal funds wire transfer or other immediately
available funds against delivery to the account of Salomon Smith Barney Inc. at
The Depository Trust Company for the respective accounts of the several
Underwriters of the Offered Certificates. Such Offered Certificates shall be
registered in the name of Cede & Co. or in such other names, and in such
authorized denominations as you may request in writing at least two full
business days before the Closing Time. Certificates for such Offered
Certificates, which may be in temporary form, will be made available for
examination and packaging by you at the location or locations at which they are
to be delivered at the Closing Time not later than 9:30 A.M., New York City
time, on the business day prior to the Closing Time.
(c) The Company will pay to Salomon Smith Barney Inc. at the Closing
Time for the accounts of the Underwriters the sum of $8,112,000. Such payment
will be made by federal funds wire transfer or other immediately available
funds.
3. Agreements. The Company covenants with each Underwriter as
follows:
(a) Immediately following the execution of this Agreement, the
Company will prepare a final Prospectus Supplement in a form reasonably
approved by you, that complies with the Securities Act and the Securities
Act Regulations and which sets forth the principal amount of the Offered
Certificates and their terms not otherwise specified in the base
prospectus relating to all offerings of pass through certificates under
the Registration Statement, the name of each Underwriter participating in
the offering and the principal amount of the Offered Certificates that
each severally has agreed to purchase, the price at which the Offered
Certificates are to be purchased by the Underwriters from the Trustee, any
initial public offering price, any selling concession and reallowance, and
such other information as you and the Company deem appropriate in
connection with the offering of the Offered Certificates. The Company will
promptly transmit copies of the Prospectus and any amendments thereof or
any supplement thereto to the Commission for filing pursuant to Rule 424
under the Securities Act and will furnish to the Underwriters as many
copies of the Prospectus as you shall reasonably request.
(b) During the period when a prospectus relating to the Offered
Certificates is required to be delivered under the Securities Act, the
Company will promptly advise you of (i) the effectiveness of any amendment
to the Registration Statement, (ii) the transmittal to the Commission for
filing of any supplement to the Prospectus or any document that would as a
result thereof be incorporated by reference in the Prospectus, (iii) any
request by the Commission for any amendment of the Registration Statement
or any amendment or supplement to the Prospectus or for any additional
information relating thereto or to any document incorporated by reference
therein, (iv) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, and (v) the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Offered Certificates for sale in any jurisdiction or
the institution or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(c) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Securities Act, any
event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
or if it shall be necessary to amend or supplement the Prospectus to
comply with the Securities Act or the Securities Act Regulations, the
Company promptly will prepare and file with the Commission, subject to
paragraph (d) of this Section 3, an amendment or supplement which will
correct such statement or omission or an amendment or supplement which
will effect such compliance. Neither your consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 4.
(d) At any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Securities Act or the
Securities Act Regulations, the Company will give you notice of its
intention to file any amendment to the Registration Statement or any
amendment or supplement to the Prospectus, whether pursuant to the
Exchange Act, the Securities Act or otherwise, will furnish you with
copies of any such amendment or supplement or other documents proposed to
be filed within a reasonable time in advance of filing, and will not file
any such amendment or supplement or other documents in a form to which you
shall reasonably object.
(e) The Company has furnished or will furnish to you and your
counsel, without charge, conformed copies of the Registration Statement as
originally filed and of all amendments thereto, whether filed before or
after the Registration Statement originally became effective (including
exhibits thereto and the documents incorporated therein by reference) and,
so long as delivery of a prospectus by an Underwriter or dealer may be
required by the Securities Act, as many copies of each preliminary
prospectus, the Prospectus and any amendments thereof and supplements
thereto as you may reasonably request.
(f) The Company will promptly take such actions as you may request
to qualify the Offered Certificates for sale under the laws of such
jurisdictions as you may reasonably request and will maintain such
qualifications in effect so long as required for the distribution of such
Offered Certificates. The Company, however, shall not be obligated to
qualify as a foreign corporation or file any general consent to service of
process under the laws of any such jurisdiction or subject itself to
taxation as doing business in any such jurisdiction.
(g) The Company, during the period when a prospectus relating to the
Offered Certificates is required to be delivered under the Securities Act
and the Securities Act Regulations, will file promptly all documents
required to be filed with the Commission pursuant to Section 13 or 14 of
the Exchange Act.
(h) The Company will make generally available to its security
holders, in each case as soon as practicable, but not later than 45 days
after the close of the period covered thereby (90 days in case the period
covered corresponds to a fiscal year of the Company), earnings statements
of the Company, which will comply as to form with the provisions of Rule
158 under the Securities Act.
(i) Between the date of this Agreement and the Closing Time, the
Company will not, without your prior consent, offer, sell or enter into
any agreement to sell any public debt securities registered under the
Securities Act (other than the Offered Certificates) or any debt
securities which may be sold in a transaction exempt from the registration
requirements of the Securities Act in reliance on Rule 144A under the
Securities Act and which are marketed through the use of a disclosure
document containing substantially the same information as a prospectus for
similar debt securities registered under the Securities Act, provided,
however, that the Company will not require such consent to offer, sell or
enter into any agreement to sell up to $150,000,000 of debt securities if
such debt securities are not substantially similar to the Offered
Certificates.
4. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Offered Certificates
pursuant to this Agreement shall be subject in their discretion to the accuracy
of and compliance with the representations and warranties of the Company
contained herein as of the date hereof and the Closing Time, to the accuracy of
the statements of the Company's officers made in any certificates furnished
pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder and to the following additional
conditions:
(a) At the Closing Time, no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the Securities
Act and no proceedings therefor shall have been instituted or threatened
by the Commission.
(b) At the Closing Time, you shall have received:
(1) An opinion, dated the Closing Time, from Leslie P.
Klemperer, Vice President-Associate General Counsel of the Company,
in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority
(corporate and other) to own its properties and to conduct its
business as it is now being conducted; except where the
failure to have such power or authority would not individually
or in the aggregate have a material adverse effect on the
financial condition or operations of the Company and its
subsidiaries, taken as a whole;
(ii) The Company is an "air carrier" within the meaning
of the 49 U.S.C. Section 40102(a), as amended, and has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each
jurisdiction in the United States of America other than that
of its incorporation in which it has intrastate routes or has
a principal office or major overhaul facility and where the
failure to so qualify would have a material adverse effect on
the financial condition or operations of the Company and its
subsidiaries, taken as a whole (such counsel being entitled to
rely in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon
certificates of officers of the Company, provided that such
counsel shall state that such counsel believes that the
Underwriters and such counsel are justified in relying upon
such opinions and certificates). The Company holds an air
carrier operating certificate issued by the Secretary of
Transportation pursuant to Chapter 447 of Title 49 of the
United States Code pursuant to which the Company is authorized
to operate the Aircraft and the Company is a "citizen of the
United States" as defined in 49 U.S.C. Section 40102;
(iii) The Company has an authorized capital stock as set
forth in the Registration Statement and Prospectus and all of
the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable;
(iv) Each material subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation; and all of the issued shares of capital stock
of each such subsidiary (except for directors' qualifying
shares) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims;
(such counsel being entitled to rely in respect of the opinion
in this clause (iv) upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of
the Company or its subsidiaries, provided that such counsel
shall state that they believe that both the Underwriters and
such counsel are justified in relying upon such opinions and
certificates);
(v) The Company has the corporate power and authority
under Delaware law to perform its obligations hereunder and
under the Equipment Notes and the Operative Documents to which
the Company is, or is to be, a party;
(vi) The Registration Statement has become effective
under the Securities Act, the Basic Agreement has been duly
qualified under the Trust Indenture Act and, to the best
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
threatened;
(vii) The Registration Statement, the Prospectus and
each amendment thereof or supplement thereto (except in each
case for the financial statements and related schedules and
other financial data included or incorporated by reference
therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Securities Act and the Securities Act
Regulations when they became effective or were filed with the
Commission; the Basic Agreement and the Statement of
Eligibility of the Trustee on Form T-1 filed with the
Commission as part of the Registration Statement comply as to
form in all material respects with the requirements of the
Trust Indenture Act and the rules and regulations thereunder;
and each document filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except in each
case for the financial statements and related schedules and
other financial data included or incorporated by reference
therein, as to which counsel need express no opinion) appeared
on its face, as of its respective filing date, to comply as to
form in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder;
(viii) This Agreement has been duly authorized, validly
executed and delivered by the Company;
(ix) Each of the Operative Documents to which the
Company is, or is to be, a party has been duly authorized,
executed and delivered by the Company;
(x) The execution and delivery by the Company of this
Agreement, the Equipment Notes and the Operative Documents to
which the Company is, or is to be, a party, the consummation
by the Company of the transactions herein and therein
contemplated and in the manner herein and therein contemplated
and compliance by the Company with the terms hereof and
thereof, do not and will not conflict with, or result in a
breach or violation of, any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which the Company or any of its
subsidiaries is a party or to which the Company or any of its
subsidiaries is bound or by which any of the property or
assets of the Company or any of its subsidiaries is subject
(except for such conflicts, breaches, violations and defaults
that would not have a material adverse effect on the financial
condition or operations of the Company and its subsidiaries,
taken as a whole, and that would not affect the validity of
the Equipment Notes or the Certificates), nor will such
actions result in any violation of the provisions of the
Certificate of Incorporation, as amended, or By-Laws of the
Company, or any statute or rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their respective properties;
(xi) To the best of such counsel's knowledge after
reasonable investigation, no consent, approval, authorization,
order, registration or qualification of or with any such court
or governmental agency or body is required for the valid
authorization, issuance, sale and delivery of the Certificates
or the Equipment Notes, the valid authorization, execution,
delivery and performance by the Company of this Agreement and
the Operative Documents to which the Company is, or is to be,
a party, or the consummation by the Company of the other
transactions contemplated by this Agreement and the other
Operative Documents to which the Company is, or is to be, a
party, except such as have been obtained under the Securities
Act and the Trust Indenture Act, and such as may be required
under the securities or Blue Sky laws of the various states in
connection with the purchase and distribution of the
Certificates and Equipment Notes, and except for the filing of
Uniform Commercial Code financing statements (or amendments to
any such financing statements) and the filing of continuation
statements with respect thereto required to be filed at
periodic intervals under the Uniform Commercial Code and any
filings or recordings with the Federal Aviation
Administration, as to which such counsel need express no
opinion;
(xii) Such counsel has no reason to believe that the
statements in the Registration Statement and the Prospectus
with respect to statutes, administrative orders and
regulations and legal and governmental proceedings do not
fairly and accurately present in all material respects the
information required to be set forth therein; except that such
counsel need express no opinion as to the matters to be
addressed in clauses (ii), (iii) and (iv) of the opinion
referred to in Section 4(b)(2) hereof and paragraphs 6, 7, and
9 of the form of opinion of Bingham Dana LLP set forth in
Exhibit A hereto; and there are, to the best of such counsel's
knowledge, no statutes, administrative orders or regulations
or legal or governmental proceedings required to be described
in the Registration Statement or the Prospectus which are not
described as required, nor any contracts or documents of a
character required to be described in the Registration
Statement or the Prospectus, or to be filed as exhibits to the
Registration Statement, that are not so described or filed as
required;
(xiii) There are various legal or governmental
proceedings pending to which the Company or certain of its
subsidiaries is a party or to which property of the Company or
certain of its subsidiaries is the subject. Although the
ultimate outcome of these proceedings cannot be predicted with
certainty, to the best of counsel's knowledge, after
reasonable investigation, there are no such legal or
governmental proceedings pending which, individually or in the
aggregate, are likely to have a material adverse effect on the
consolidated financial condition, results of operations or
liquidity of the Company and its subsidiaries taken as a
whole; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(xiv) The statements in the Prospectus as to the route
system which the Company presently operates or is authorized
to operate are correct in all material respects and no
authorization of the Company to operate any such route is the
subject of any "show cause" or other order of, or any
proceeding before, or any investigation by, the Department of
Transportation (other than proceedings for the granting or
renewal of temporary certificates or exemption rights) which
in the opinion of such counsel is reasonably likely to result
in a final order impairing the validity of such certificates
or exemption orders; and
(xv) The issuance, sale and delivery of the Class D
Certificates, as contemplated by the Operative Documents, are
not subject to the registration requirements of the Securities
Act, and the Designated Agreement relating to the Class D
Certificates is not required to be qualified under the Trust
Indenture Act.
Such counsel shall also state that no facts have come to the
attention of such counsel which have caused such counsel to believe
(A) that the Registration Statement or any amendments thereto, on
the original effective date thereof, or on the effective date of any
post-effective amendments thereto, or on the date of the filing by
the Company with the Commission of its most recent Annual Report on
Form 10-K after the filing of the Registration Statement (except, in
each case, for the financial statements and related schedules and
other financial data included or incorporated by reference therein,
and except for the Statement of Eligibility on Form T-1 of the
Trustee under the Basic Agreement, as to which such counsel need
express no belief), contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (B) that
the Prospectus at the time the Prospectus Supplement was issued or
the Prospectus, together with any amendment or supplement thereto,
at the time any such amended or supplemental Prospectus was issued,
or at the Closing Time (except, in each case, for the financial
statements and related schedules and other financial data included
or incorporated by reference therein, as to which such counsel need
express no belief), contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In giving
such opinion, such counsel may state that such opinion is limited to
the laws of the State of Georgia, the General Corporation Law of the
State of Delaware and the Federal laws of the United States, except
that such counsel expresses no opinion as to the securities laws of
any state. In rendering the opinions set forth above, such counsel
may rely upon certificates of officers of the Company and of public
officials as to matters of fact.
(2) An opinion, dated the Closing Time, of Cadwalader,
Wickersham & Taft, as counsel for the Company, in form reasonably
satisfactory to you and your counsel, to the effect that:
(i) The Certificates have been issued and delivered by
the Trustee pursuant to the related Designated Agreements and
constitute valid and binding obligations of the Trustee
enforceable against the Trustee in accordance with their
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
enforcement of creditors' rights generally and by general
principles of equity; and the holders of the Certificates are
entitled to the benefits of the related Designated Agreements;
(ii) The statements in the Registration Statement and
Prospectus under the headings "CERTAIN UNITED STATES FEDERAL
INCOME TAX CONSEQUENCES", "ERISA CONSIDERATIONS", "CERTAIN
FEDERAL INCOME TAX CONSEQUENCES" and "CERTAIN ERISA
Considerations", insofar as such statements purport to
summarize certain legal matters referred to therein,
constitute accurate summaries thereof in all material
respects;
(iii) The Trusts created by the Designated Agreements
should not be classified as associations (or as publicly
traded partnerships) taxable as corporations for federal
income tax purposes, but rather, based on an interpretation of
analogous authorities under existing law, each Trust should be
classified as a grantor trust under subpart E, Part I of
Subchapter J of Chapter 1 of subtitle A of the Internal
Revenue Code of 1986, as amended, and each of the Certificate
Owners should be treated as the owner of a pro rata undivided
interest in each of the related Equipment Notes and any other
property held in the related Trust;
(iv) Section 1110 of the Bankruptcy Code ("SECTION
1110") conforms in all material respects to the description
thereof contained in "Description of the Equipment Notes -
Remedies" in the Prospectus;
(v) The Trusts are not required to be registered under
the Investment Company Act of 1940, as amended;
(vi) Assuming due authorization, execution and delivery
by each of the parties to the Operative Documents, each such
agreement (other than the Business Trust Agreement)
constitutes the valid and binding obligation of each
respective party, enforceable in accordance with its terms,
except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
enforcement of creditors' rights generally and by general
principles of equity;
(vii) The Certificates, the Equipment Notes and the
Operative Documents conform in all material respects to the
descriptions thereof contained in the Prospectus and such
descriptions conform in all material respects to the rights
set forth in the instruments defining the same; and
(viii) The Equipment Notes, when duly authorized,
executed and delivered by the Company and duly authenticated
by the related Loan Trustee, will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting enforcement of creditors' rights
generally and by general principles of equity and the holders
of the Equipment Notes will be entitled to the benefits of the
respective Indentures.
The opinions of such counsel expressed in the immediately preceding
clause (vi) shall be limited to the laws of the State of New York
governing the enforceability of contracts as such and in giving such
opinion, such counsel may rely as to certain matters acceptable to
you upon the opinions referred to in Section 4(b)(1) and Section
4(b)(3) hereof, in which case the opinion shall state that such
counsel believes that it and the Underwriters are entitled to so
rely. In rendering the opinions set forth above, such counsel may
rely upon certificates of officers of the Company and of public
officials as to matters of fact.
Such counsel shall also state that no facts have come to the
attention of such counsel which have caused such counsel to believe
that (other than with regard to facts or information regarding the
Company and its operations which are contained in the Prospectus
Supplement or incorporated by reference therein, to which such
counsel need express no belief) the Prospectus at the time the
Prospectus Supplement was issued or the Prospectus, together with
any amendment or supplement thereto, at the time any such amended or
supplemental Prospectus was issued, or at the Closing Time (except,
in each case, for the financial statements and related schedules and
other financial data included or incorporated by reference therein,
as to which such counsel need express no belief), contained or
contains any untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. In giving such opinion, such counsel may state
that such opinion is limited to the laws of the States of New York,
the General Corporation Law of the State of Delaware and the Federal
laws of the United States, except that such counsel expresses no
opinion as to the securities laws of any state. In rendering the
opinions set forth above, such counsel may rely upon certificates of
officers of the Company and of public officials as to matters of
fact.
(3) An opinion, dated the Closing Time, of Bingham Dana,
counsel for State Street, individually, as Subordination Agent,
Trustee and Loan Trustee, in form and substance reasonably
satisfactory to you and your counsel and substantially to the effect
set forth in Exhibit A hereto.
(4) An opinion, dated the Closing Time, from in-house counsel
for the Liquidity Provider, in form and substance satisfactory to
you and your counsel and substantially to the effect set forth in
Exhibit B hereto.
(5) An opinion, dated the Closing Time, from Pillsbury
Winthrop, counsel for the Liquidity Provider, in form and substance
satisfactory to you and your counsel and substantially to the effect
set forth in Exhibit D hereto.
(6) An opinion, dated the Closing Time, from Richards, Layton
& Finger, PA, special Delaware counsel to the Initial Class D
Holder, in form and substance satisfactory to you and your counsel
and substantially to the effect set forth in Exhibit C hereto.
(7) An opinion, dated the Closing Time, from Shearman &
Sterling, counsel for the Underwriters, to the effect that the
opinions delivered pursuant to subsections (b)(1) through (b)(4) of
this Section 4 appear on their face to be appropriately responsive
to the requirements of this Agreement except, specifying the same,
to the extent waived by you and with respect to the issuance and
sale of the Offered Certificates, the Registration Statement, the
Prospectus and other related matters as you may reasonably require.
(c) On or after the date hereof, there shall not have been (i) any
change or decrease, specified in the letter or letters referred to in
paragraph (d) of this Section 4 or (ii) any change, or any development
involving a prospective change, in or affecting the business or properties
of the Company and its subsidiaries, taken as a whole, the effect of
which, in any case referred to in clause (i) or (ii) above, is, in your
reasonable judgment, so material and adverse as to make it impractical or
inadvisable to proceed with the public offering or the delivery of the
Offered Certificates as contemplated by the Prospectus as amended or
supplemented; and you shall have received a certificate of the President,
an Executive Vice President, a Senior Vice President or a Vice President
of the Company, dated as of the Closing Time, to the effect that (i) there
has been no such material adverse change, (ii) that the representations
and warranties in Section 1 hereof and also the representations and
warranties of the Company contained in the Operative Documents are true
and correct with the same force and effect as though made at such Closing
Time, and as to such other matters as you may reasonably request.
(d) At the time of the execution of this Agreement and also at the
Closing Time, Arthur Andersen LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, together with signed or reproduced copies
of such letter or letters for each of the other Underwriters containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement
and the Prospectus and any amendments thereof or supplements thereto.
(e) The Company shall have furnished to you and your counsel, in
form and substance satisfactory to them, such other documents,
certificates and opinions as such counsel may reasonably request for the
purpose of enabling such counsel to pass upon the matters referred to in
subsection (b)(6) of this Section 4 and in order to evidence the accuracy
and completeness of any of the representations, warranties or statements,
the performance of any covenant by the Company theretofore to be
performed, or the compliance with any of the conditions herein contained.
(f) Each of the Appraisers shall have furnished to the Underwriters
a letter from such Appraiser, addressed to the Company and dated the
Closing Time, confirming that such Appraiser and each of its directors and
officers (i) is not an affiliate of the Company or any of its affiliates,
(ii) does not have any substantial interest, direct or indirect, in the
Company or any of its affiliates and (iii) is not connected with the
Company or any of its affiliates as an officer, employee, promoter,
Underwriter, trustee, partner, director or person performing similar
functions.
(g) At the Closing Time, the Offered Certificates shall be rated
AAA, in the case of the Offered Certificates of the Class A-1 Trust, AAA,
in the case of the Offered Certificates of the Class A-2 Trust, AA-, in
the case of the Offered Certificates of the Class B Trust and A+, in the
case of the Offered Certificates of the Class C Trust, by Standard &
Poor's Ratings Services; and Aa2, in the case of the Offered Certificates
of the Class A-1 Trust, Aa2, in the case of the Offered Certificates of
the Class A-2 Trust, Aa3, in the case of the Offered Certificates of the
Class B Trust and A2, in the case of the Offered Certificates of the Class
C Trust, by Moody's Investors Service, Inc.
(h) At the Closing Time, all conditions precedent specified in each
Participation Agreement with respect to the funding of the related
Equipment Notes, shall have been satisfied; each of the Equipment Notes
and Operative Documents shall have been executed and delivered by each
party thereto; (i) the representations and warranties of the Trustee, the
Subordination Agent and the Loan Trustee contained in each of the
Participation Agreements and (ii) the representations and warranties of
the Owner Trustee contained in the Business Trust Agreement shall be
accurate as of the Closing Time (except to the extent that they relate
solely to an earlier date in which case they shall be accurate as of such
earlier date) and you shall have received certificates of the Company and
appropriate officers of the Subordination Agent, Pass Through Trustees,
Loan Trustees and Owner Trustee, dated as of the Closing Time, to such
effect; and you shall have received a copy of each opinion required to be
delivered under each of the Participation Agreements dated as of the
Closing Time, and addressed to you, and of such other documents furnished
in connection with the fulfillment of such conditions as you may
reasonably request.
(i) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's unsecured debt securities by
any "nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the Act,
and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's unsecured debt securities; and
(j) At the Closing Time, simultaneously with the issuance and sale
of the Offered Certificates in accordance with this Agreement, the Class D
Certificates shall have been issued, sold and delivered to the Initial
Class D Holder.
All such opinions, certificates, letters and documents shall be
deemed to be in compliance with the provisions hereof only if they are in all
respects reasonably satisfactory to you and your counsel.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, other than by reason of any
default by any Underwriter, such failure to fulfill a condition may be waived by
you, or this Agreement may be terminated by you by notice to the Company at any
time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in Sections 5, 6
and 9 hereof, which provisions shall remain in effect notwithstanding such
termination.
5. Payment of Expenses. The Company will pay or cause to be paid all
expenses incident to the performance of the obligations of the Company under
this Agreement, including (i) expenses relating to the preparation, printing,
filing and distribution of any preliminary prospectus supplements, the
Prospectus and any amendments thereof or supplements thereto, the Registration
Statement and any amendments thereof or supplements thereto, (ii) expenses
relating to the preparation, printing and distribution of any agreement among
Underwriters, this Agreement, the Certificates, the Equipment Notes, the
Operative Documents, any Underwriter's Questionnaire, the Blue Sky Survey and
any Legal Investment Survey by the Underwriter's counsel, (iii) expenses
relating to the issuance and delivery of the Offered Certificates to the
Underwriters, (iv) the fees and disbursements of the Company's counsel and
accountants, (v) expenses of qualifying the Offered Certificates under state
securities laws in accordance with Section 3(f), including filing fees and fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the Blue Sky Survey and any Legal Investment Survey, (vi) the
fees and expenses of the Trustee, the Subordination Agent, the Loan Trustees,
the Owner Trustee and the Liquidity Provider and the fees and disbursements of
their respective counsel, (vii) any fees charged by rating agencies for rating
the Offered Certificates, and (viii) certain fees and expenses of counsel for
the Underwriters as heretofore agreed. The Company will also cause to be paid
all expenses incident to the performance of its obligations under the Operative
Documents and each of the other agreements and instruments referred to therein
which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Sections 6
and 10 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Offered Certificates by them, and any advertising expenses connected with any
offers they may make.
6. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter, and each person who controls such
Underwriter within the meaning of either the Securities Act or the Exchange Act,
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in any preliminary prospectus
relating to the Offered Certificates or in the Prospectus, or in any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, (i) that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon, and in conformity
with, written information furnished to the Company by any Underwriter through
either of you specifically for use in connection with the preparation thereof or
made in the part of the Registration Statement constituting the Statement of
Eligibility under the Trust Indenture Act of the Trustee on Form T-1, (ii) such
indemnity with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter or any person controlling such Underwriter as to whom
it shall be established that such Underwriter did not send or deliver to the
person asserting any such loss, claim, damage or liability and who purchased
Offered Certificates which are the subject thereof a copy of the Prospectus as
amended or supplemented (other than the documents incorporated by reference
therein) at or prior to the written confirmation of the sale of such Offered
Certificates in any case where such delivery is required by the Securities Act
and the untrue statement or omission of a material fact contained in such
preliminary prospectus was corrected in the Prospectus as amended or
supplemented and the Company had previously furnished copies thereof to such
Underwriter, and (iii) the Company will not be liable for any such loss, claim,
damage or liability in connection with any settlement of any pending or
threatened litigation or any pending or threatened governmental agency
investigation or proceeding if that settlement is effected without the prior
written consent of the Company, which consent shall not be unreasonably
withheld. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the
Registration Statement, and each person who controls the Company within the
meaning of either the Securities Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any loss, claim, damage, liability or action, but only with reference
to written information furnished to the Company by such Underwriter specifically
for inclusion in the Registration Statement or in any amendment thereto or the
Prospectus or any amendment or supplement thereto. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action or proceeding (including
any governmental investigation), such indemnified party will, if a claim for
indemnification in respect thereof is to be made against the indemnifying party
under Section 6(a) or (b) hereof, notify the indemnifying party in writing of
the commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under Section 6(a) or (b) hereof, and then only to the
extent that the indemnifying party is prejudiced thereby. In case any such
action or proceeding is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein (jointly with any other indemnifying party
similarly notified), and to the extent that it may elect, by written notice,
delivered to such indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; provided, however, that if
the defendants (including any impleaded parties) in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to appoint counsel to defend such
action and approval by the indemnified party of such counsel, the indemnifying
party will not be liable to such indemnified party under this Section 6 for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall have
employed separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expense of more than one separate counsel, approved by the
Underwriters in the case of paragraph (a) of this Section 6, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice or commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) or (b)
of this Section 6 is due in accordance with its terms but is for any reason
unavailable on grounds of policy or otherwise, the Company and the Underwriters
shall contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigation or defending same) to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Offered Certificates to which such loss,
claim, damage, or liability (or action in respect thereof) relates. If the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable to such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other hand in connection
with the offering of the Offered Certificates pursuant to this Agreement shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Offered Certificates pursuant to this Agreement (net of
compensation paid to the Underwriters but before deducting expenses) received by
the Company and the total underwriting discounts and commissions received by the
Underwriters in each case as set forth on the cover of the Prospectus, bears to
the aggregate initial public offering price of the Offered Certificates as set
forth on such cover. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or such Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which (i) the total
price at which the Offered Certificates underwritten by it and distributed to
the public were offered to the public exceeds (ii) the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section 6,
each person who controls any Underwriter within the meaning of either the
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as any Underwriter, and each person who controls
the Company within the meaning of either the Securities Act or the Exchange Act,
each officer of the Company and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the provisions of
this paragraph (d). The obligations of the Underwriters of Offered Certificates
in this subsection (d) to contribute are several in proportion to their
respective purchase obligations with respect to such Offered Certificates and
not joint.
7. Default. (a) If any Underwriter shall default in its obligation
to purchase the Offered Certificates of any Class which it has agreed to
purchase hereunder, you may in your discretion arrange for you or another party
or other parties to purchase such Offered Certificates on the terms contained
herein. If within thirty-six hours after such default by any Underwriter you do
not arrange for the purchase of such Offered Certificates, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to you to purchase such
Offered Certificates on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Offered Certificates, or the Company notifies you that it has
so arranged for the purchase of such Offered Certificates, you or the Company
shall have the right to postpone the Closing Time for a period of not more than
seven days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement and Prospectus, or in any other documents or
arrangements, and the Company agrees to prepare promptly any amendments to the
Registration Statement and Prospectus which in your reasonable opinion may
thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Offered Certificates.
(b) If, after giving effect to any arrangements for the purchase of
the Offered Certificates of a defaulting Underwriter or Underwriters by you and
the Company as provided in subsection (a) above, the aggregate principal amount
of Offered Certificates of any Class which remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of all the Offered Certificates
of such Class, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Offered
Certificates of such Class which such Underwriter agreed to purchase hereunder
and, in addition, to require each non-defaulting Underwriter to purchase its pro
rata share (based on the principal amount of Offered Certificates of such Class
which such Underwriter agreed to purchase hereunder) of the Offered Certificates
of such Class of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Offered Certificates of a defaulting Underwriter or Underwriters by you and
the Company as provided in subsection (a) above, the aggregate principal amount
of Offered Certificates of any Class which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of all the Offered Certificates
of such Class, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase Offered
Certificates of a defaulting Underwriter or Underwriters, then this Agreement
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 5 hereof and the indemnity and
contribution agreements in Section 6 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
8. Termination. This Agreement shall be subject to termination in
your discretion, by notice given to the Company prior to Closing Time, if prior
to such time (i) trading in the Company's common stock shall have been suspended
by the Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or materially
limited or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any material outbreak or material
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in your reasonable
judgment, impracticable to market such Offered Certificates.
9. Representations, Warranties, Indemnities and Agreements to
Survive Delivery. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Offered Certificates.
10. Liability upon Termination. If this Agreement shall be
terminated pursuant to Section 7 hereof, the Company shall not then be under any
liability to any Underwriter except as provided in Sections 5 and 6 hereof; but,
if for any other reason, the Offered Certificates are not delivered by or on
behalf of the Company as provided herein, because the Company fails to satisfy
any of the conditions set forth in Section 4 hereof (other than the condition in
Section 4(i)(ii) or because of any refusal, inability or failure of the Company
to perform any agreement herein or to comply with any provision hereof, other
than by reason of a default by the Underwriters), the Company will reimburse the
Underwriters through Salomon Smith Barney Inc. for all out-of-pocket expenses
approved in writing by Salomon Smith Barney Inc., including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Offered Certificates,
but the Company shall then be under no further liability to any Underwriter with
respect to such Offered Certificates except as provided in Section 5 and Section
6 hereof.
11. Notices. In all dealings hereunder, you shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by you jointly or by Salomon or J.P. Morgan on behalf
of you as the representatives. It is understood and agreed that Salomon and J.P.
Morgan are joint book runners for the offering and any determinations or other
actions to be made under this Agreement by you shall require the concurrence of
both Salomon and J.P. Morgan.
All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to you as the representatives in care of Salomon Smith
Barney Inc., 388 Greenwich Street, 34th Floor, New York, NY 10013, Attention:
General Counsel's Office and in care of J.P. Morgan Securities Inc., 270 Park
Avenue, New York, NY 10017, Attention: Transaction Execution Group; and if to
the Company shall be delivered or sent by mail, telex or facsimile transmission
to the address of the Company set forth in the Registration Statement,
Attention: Chief Financial Officer (with a copy to the General Counsel);
provided, however, that any notice to an Underwriter pursuant to Section 6(c)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
12. Parties. This Agreement shall be binding upon, and inure solely
to the benefit of, the Underwriters, the Company and, to the extent provided in
Sections 6 and 9 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Offered Certificates from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
13. Time of the Essence. Time shall be of the essence of this
Agreement.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. Counterparts. This Agreement may be executed by any one or more
of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please
sign and return one to each of Salomon Smith Barney Inc. and J.P. Morgan
Securities Inc., plus one for our counsel a counterpart hereof, whereupon this
letter shall constitute a binding agreement between each of the Underwriters and
the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
Delta Air Lines, Inc.
By:
--------------------------------
Name: Edward H. Bastian
Title: Senior Vice President - Finance
and Controller
Accepted as of the date hereof:
Salomon Smith Barney Inc.
By:
--------------------------------
Name:
Title:
J.P. Morgan Securities Inc.
By:
--------------------------------
Name:
Title:
SCHEDULE A
TO
UNDERWRITING
AGREEMENT
Final Expected
Class of Aggregate Regular
Pass Through Principal Distribution
Certificates Amount Interest Rate Date
-------------------- ------------------ ------------------ --------------------
2001-1, Class A-1 $300,000,000 5.869% March 18, 2011
2001-1, Class A-2 $571,148,000 6.361% September 18, 2011
2001-1, Class B $207,070,000 6.711% September 18, 2011
2001-1, Class C $169,782,000 6.299% September 18, 2006
SCHEDULE I
TO
UNDERWRITING
AGREEMENT
PRINCIPAL PRINCIPAL PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF AMOUNT OF AMOUNT OF
CLASS A-1 CLASS A-2 CLASS B CLASS C
UNDERWRITER CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES
----------- ------------------- ------------------- ------------------- -------------------
Salomon Smith Barney Inc......................... 37,500,000.00 71,395,000.00 25,886,000.00 21,225,000.00
J.P. Morgan Securities Inc....................... 37,500,000.00 71,395,000.00 25,886,000.00 21,225,000.00
Commerzbank Capital Markets Corp. ............... 37,500,000.00 71,393,000.00 25,883,000.00 21,222,000.00
Mizuho International plc ........................ 37,500,000.00 71,393,000.00 25,883,000.00 21,222,000.00
SunTrust Capital Markets Inc. ................... 37,500,000.00 71,393,000.00 25,883,000.00 21,222,000.00
Tokyo-Mitsubishi International plc............... 37,500,000.00 71,393,000.00 25,883,000.00 21,222,000.00
Credit Lyonnais Securities (USA) Inc. ........... 37,500,000.00 71,393,000.00 25,883,000.00 21,222,000.00
KBC Financial Products USA Inc. ................. 37,500,000.00 71,393,000.00 25,883,000.00 21,222,000.00
Total ........................................... 300,000,000.00 571,148,000.00 207,070,000.00 169,782,000.00
EXHIBIT A
TO
UNDERWRITING
AGREEMENT
Opinion of Bingham Dana LLP]
September 17, 2001
TO THE PARTIES SET FORTH
IN SCHEDULE A HERETO
RE: Delta Air Lines, Inc. 2001-1 Pass Through Trusts
Pass Through Trust Certificates, Series 2001-1
(Underwriting Agreement Opinion)
[Ladies and Gentlemen:
We have acted as special counsel for State Street Bank and Trust
Company of Connecticut, National Association, in its individual capacity ("State
Street") and as (i) Pass Through Trustee (the "Pass Through Trustee") under the
Pass Through Trust Agreement dated as of November 16, 2000, between Delta Air
Lines, Inc. ("Delta") and State Street (the "Basic Agreement"), as supplemented
by Trust Supplement No. 2001-lA-1, Trust Supplement No. 2001-1A-2, Trust
Supplement No. 2001-1B and Trust Supplement No. 2001-1C, each dated as of
September 17, 2001 and each between Delta and State Street (collectively, the
"Offered Trust Supplements") in connection with the transactions contemplated by
the Underwriting Agreement dated September 6, 2001 (the "Underwriting
Agreement") by and among Delta, Salomon Smith Barney Inc. and J.P. Morgan
Securities Inc. (the "Underwriters"); (ii) Pass Through Trustee under the Basic
Agreement as supplemented by Trust Supplement No. 2001-1D, dated as of September
17, 2001, between Delta and State Street (the "Class D Trust Supplement", and
the Basic Agreement, as supplemented by a Trust Supplement or Class D Trust
Supplement, a "Designated Agreement"); (iii) Loan Trustee under the Indentures
and Participation Agreements; and (iv) Subordination Agent under the
Intercreditor Agreement, the Liquidity Facilities and the Participation
Agreements. Capitalized terms not otherwise defined herein shall have the
meanings specified in or referenced in the Underwriting Agreement. This opinion
is being delivered pursuant to Section 4(b)(3) of the Underwriting Agreement.
Our representation of State Street in its individual capacity and as
Pass Through Trustee, Subordination Agent, Loan Trustee and Paying Agent has
been as special counsel for the limited purposes stated above. As to all matters
of fact (including factual conclusions and characterizations and descriptions of
purpose, intention or other state of mind), we have relied, with your
permission, entirely upon (i) the representations and warranties of the parties
set forth in the Operative Documents (defined below) and (ii) certificates
delivered to us by the management of State Street and have assumed, without
independent inquiry, the accuracy of those representations, warranties and
certificates.
We have examined the Designated Agreements, the Liquidity
Facilities, the Intercreditor Agreement, the Participation Agreements, the
Indentures and the Business Trust Agreement, each of which (other than the Basic
Agreement) is dated the date hereof (all such agreements, collectively, the
"Operative Documents"), the Certificates, the Certificate of the Comptroller of
the Currency relating to State Street and originals, or copies certified or
otherwise identified to our satisfaction, of such other records, documents,
certificates, or other instruments as we have deemed necessary or advisable for
the purposes of this opinion. For purposes of our opinion rendered in paragraph
1 below, with respect to the authority of State Street to operate as a national
banking association and exercise trust powers, our opinion relies upon and is
limited by such Certificate of the Comptroller of the Currency.
We have assumed the genuineness of all signatures (other than those
on behalf of State Street, the Pass Through Trustee, the Subordination Agent,
the Loan Trustee and the Paying Agent), the conformity to the originals of all
documents reviewed by us as copies, and the authenticity and completeness of all
original documents reviewed by us in original or copy form and the legal
competence of each individual executing any document (other than those
individuals executing documents on behalf of State Street, the Pass Through
Trustee, the Subordination Agent, the Loan Trustee and the Paying Agent).
When an opinion set forth below is given to the best of our
knowledge, or to our knowledge, or with reference to matters of which we are
aware or which are known to us, or with another similar qualification, the
relevant knowledge or awareness is limited to the actual knowledge or awareness
of the individual lawyers in the firm who have participated directly and
substantively in the specific transactions to which this opinion relates and
without any special or additional investigation undertaken for the purposes of
this opinion.
Subject to the limitations set forth below, we have made such
examination of law as we have deemed necessary for the purposes of this opinion.
The opinions set forth below are limited solely to the internal substantive laws
of the State of Connecticut as applied by courts located in Connecticut without
regard to choice of law and the federal laws of the United States, and we
express no opinion as to the laws of any other jurisdiction. No opinion is given
herein as to the choice of law or internal substantive rules of law that any
court or other tribunal may apply to the transactions contemplated by the
Operative Documents. Without limitation of the generality of the foregoing, no
opinion is expressed herein as to the application or effect of federal
securities laws or as to the securities or so-called "Blue Sky" laws of any
state or other Jurisdiction. In addition, other than our opinion expressed in
paragraph 1 below with respect to the citizenship of State Street, no opinion is
expressed as to matters governed by any law, statute, rule or regulation of the
United States relating to the acquisition, ownership, registration, use,
operation, maintenance, repair, replacement or sale of or the nature of the
Aircraft. We express no opinion as to the accuracy or completeness of any
exhibits or schedules to the Operative Documents.
To the extent to which this opinion deals with matters governed by
or relating to the laws of the State of New York (by which the Operative
Documents are stated to be governed), or other jurisdiction other than the State
of Connecticut, we have assumed, with your permission that the Operative
Documents are governed by the internal substantive laws of the State of
Connecticut.
Our opinion is further subject to the following exceptions,
qualifications and assumptions:
(a) We have assumed without any independent investigation that (i)
each party to the Operative Documents, other than State Street, in its
individual capacity or as Pass Through Trustee, Subordination Agent, Loan
Trustee or Paying Agent, as applicable, at all times relevant thereto, is
validly existing and in good standing, under the laws of the jurisdiction in
which it is organized, and is qualified to do business and in good standing,
under the laws of each Jurisdiction where such qualification is required
generally or necessary in order for such party to enforce its rights under such
Operative Documents, and (ii) each party to the Operative Documents, at all
times relevant thereto, had and has the full power, authority and legal right
under its certificate of incorporation, partnership agreement, by-laws, and
other governing organizational documents, and the applicable corporate,
partnership, or other enterprise legislation and other applicable laws, as the
case may be (other than State Street, the Pass Through Trustee, Subordination
Agent, Loan Trustee or Paying Agent with respect to the laws of the United
States of America and the internal substantive laws of the State of Connecticut,
but only in each case to the limited extent the same may be applicable to State
Street, the Pass Through Trustee, Subordination Agent, Loan Trustee or Paying
Agent, and relevant to our opinions expressed below) to execute, and to perform
its obligations under, the Operative Documents, and (iii) each party to the
Operative Documents (other than State Street, the Pass Through Trustee,
Subordination Agent, Loan Trustee or Paying Agent, as applicable) has duly
executed and delivered each of such agreements and instruments to which it is a
party and that (other than with respect to State Street, the Pass Through
Trustee, Subordination Agent, Loan Trustee or Paying Agent, as applicable) the
execution and delivery of such Operative Documents and the transactions
contemplated thereby have been duly authorized by proper corporate or other
organizational proceedings as to such party.
(b) We have assumed without any independent investigation that each
of the Operative Documents is a valid, binding and enforceable obligation of
each party thereto other than State Street, the Pass Through Trustee,
Subordination Agent, Loan Trustee or Paying Agent, as applicable.
(c) The enforcement of any obligations of State Street, the Pass
Through Trustee, Subordination Agent, Loan Trustee or Paying Agent, as
applicable, under any of the Operative Documents may be limited by the
receivership, conservatorship and supervisory powers of bank regulatory agencies
generally, as well as by bankruptcy, insolvency, reorganization, moratorium,
marshaling or other laws and rules of law affecting the enforcement, generally
of creditors' rights and remedies (including such as may deny giving effect to
waivers of debtors' or guarantors' rights); and we express no opinion as to the
status under any fraudulent conveyance laws or fraudulent transfer laws of any
of the obligations of State Street, the Pass Through Trustee, Subordination
Agent, Loan Trustee or Paying Agent, as applicable, under any of the Operative
Documents.
(d) We express no opinion as to the availability of any specific or
equitable relief of any kind.
(e) The enforcement of any of your rights may in all cases be
subject to an implied duty of good faith and fair dealing and to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding at law or in equity) and, as to any of your rights to collateral
security, will be subject to a duty to, act in a commercially reasonable manner.
(f) We express no opinion as to the enforceability of any particular
provision of any of the Operative Documents relating to (i) waivers of rights to
object to jurisdiction or venue, or consents to jurisdiction or venue, (ii)
waivers of rights to (or methods of) service of process, or rights to trial by
jury, or other rights or benefits bestowed by operation of law, (iii) waivers of
any applicable defenses, setoffs, recoupments, or counterclaims, (iv) the grant
of powers of attorney to any person or entity, (v) exculpation or exoneration
clauses, indemnity clauses, and clauses relating to releases or waivers of
unmatured claims or rights, (vi) the imposition or collection of interest on
overdue interest or providing for a penalty rate of interest or late charges on
overdue or defaulted obligations, or the payment of any premium, liquidated
damages, or other amount which may be held by any court to be a penalty" or a
"forfeiture," or (vii) so-called "usury savings clauses" purporting to specify
methods of (or otherwise assure) compliance with usury laws or other similar
laws of any jurisdiction.
(g) We express no opinion as to the effect of events occurring,
circumstances arising, or changes of law becoming effective or occurring, after
the date hereof on the matters addressed in this opinion letter, and we assume
no responsibility to inform you of additional or changed facts, or changes in
law, of which we may become aware.
(h) No opinion is given herein as to the effect of usury laws (or
other similar laws) of any jurisdiction with respect to the Operative Documents.
In rendering the opinion set forth below in paragraph 6 as to
certain Connecticut tax matters, we have assumed that, for federal income tax
purposes, none of the Pass Through Trusts will be taxable as a corporation, but,
rather, each will be classified as a grantor trust under subpart E, Part I of
Subchapter J of Chapter I of Subtitle A of the Internal Revenue Code of 1986, as
amended, or as a partnership.
This opinion is rendered solely for the benefit of those
institutions listed on Schedule I hereto and their successors and assigns in
connection with the transactions contemplated by the Operative Documents and may
not be used or relied upon by any other person or for any other purpose.
Based upon the foregoing and subject to the limitations and
qualifications set forth herein, we are of the opinion that:
1. State Street is a national banking association, validly formed
and existing and authorized to operate as a national banking association under
the laws of the United States of America is a "citizen of the United States"
within the meaning of Section 40102(a)(15) of Title 49 of the United States
Code, and, in its individual capacity or as Pass Through Trustee, Subordination
Agent, Loan Trustee or Paying Agent as the case may be, has the requisite
corporate and trust power and authority to execute, deliver and perform its
obligations under the Operative Documents and in its capacity as Pass Through
Trustee, to issue, execute, deliver and authenticate the Offered Certificates
delivered on the date herewith.
2. State Street, in its individual capacity or as Pass Through
Trustee, Subordination Agent, Loan Trustee or Paying Agent, as the case may be,
has duly authorized by all necessary corporate or trust action the Operative
Documents and has duly executed and delivered the Operative Documents, and the
Operative Documents constitute valid and binding obligations of State Street, in
its individual capacity or as Pass Through Trustee, Subordination Agent, Loan
Trustee or Paying Agent, as the case may be, enforceable against State Street,
in its individual capacity or as Pass Through Trustee, Subordination Agent, Loan
Trustee or Paying Agent, as the case may be, in accordance with their respective
terms.
3. The Certificates issued and dated on the date hereof have been
duly authorized and validly executed, issued, authenticated and delivered by
State Street as Pass Through Trustee pursuant to the terms of the Operative
Documents and are valid and binding obligations of the Pass Through Trustee,
enforceable against the Pass Through Trustee in accordance with their terms, and
the holders of the Certificates are entitled to the benefits of the applicable
Designated Agreements.
4. The authorization, execution, delivery and performance by State
Street, in its individual capacity or as Pass Through Trustee, Subordination
Agent, Loan Trustee or Paying Agent, as the case may be, of the Operative
Documents and the consummation of the transactions therein contemplated and
compliance with the terms thereof' and the issuance of the Certificates
thereunder do not and will not result in the violation of the provisions of the
charter documents or by-laws of State Street and, to the best of our knowledge,
do not conflict with, or result in a breach of any terms or provisions of, or
constitute a default under, or result in the creation or the imposition of any
lien, charge or encumbrance upon any property or assets of State Street in its
individual capacity or as Pass Through Trustee, Subordination Agent, Loan
Trustee or Paying Agent under any indenture, mortgage or other agreement or
instrument, in each case known to us, to which State Street in its individual
capacity or as Pass Through Trustee, Subordination Agent, Loan Trustee or Paying
Agent is a party or by which it or any of its properties is bound, or violate
any applicable Connecticut or federal law, rule or regulation governing State
Street's banking or trust powers, or, to the best of our knowledge, of any
judgment, license, registration, permit, order or decree, in each case known to
us, applicable to State Street in its individual capacity, or as Pass Through
Trustee, Subordination Agent, Loan Trustee or Paying Agent of any court,
regulatory body, administrative agency, government or Governmental body having
jurisdiction over State Street in its individual capacity or as Pass Through
Trustee, Subordination Agent, Loan Trustee or Paying Agent.
5. No authorization, approval, consent, license or order of, giving
of notice to, registration with, or taking of any other action in respect of,
any federal or state governmental authority or agency pursuant to any federal or
Connecticut law governing the banking or trust powers of State Street is
required for the authorization, execution, delivery and performance by State
Street, in its individual capacity or as Pass Through Trustee, Subordination
Agent, Loan Trustee or Paying Agent, as the case may be, of the Operative
Documents, the issuance of the Certificates or the consummation of any of the
transactions by State Street, in its individual capacity or as Pass Through
Trustee, Subordination Agent, Loan Trustee or Paying Agent, as the case may be,
contemplated thereby (except as shall have been duly obtained, given or taken);
and such authorization, execution, delivery, performance, consummation and
issuance do not conflict with or result in a breach of the provisions of any
such law.
6. There are no taxes, fees or other governmental charges ("Taxes")
payable under the laws of the State of Connecticut or any political subdivision
or taxing authority thereof with respect to the execution or delivery by State
Street, in its individual capacity or as Pass Through Trustee, as the case may
be, of any of the Operative Documents or the issuance, execution and delivery of
the Certificates by the Pass Through Trustee pursuant to the Designated
Agreements, or the purchase of the relevant Equipment Notes by the Pass Through
Trusts and (i) neither the Pass Through Trusts, nor the trust properties
thereof, nor the Pass Through Trustee (in its capacity as trustee) will be
subject to any Tax (including without limitation, net or gross income, tangible
or intangible property, net worth, capital, franchise or doing business tax),
imposed by the State of Connecticut or any political subdivision or taxing
authority thereof, and (ii) Certificate Owners (as defined in the Basic
Agreement) that are not residents of or otherwise subject to tax in Connecticut
will not be subject to any Tax (including, without limitation, net or gross
income, tangible or intangible property, net worth, capital, franchise or doing
business tax), imposed by the State of Connecticut or any political subdivision
or taxing authority thereof as a result of purchasing, owning (including
receiving payments with respect to) or selling a Certificate.
7. There are no Taxes payable under the laws of the State of
Connecticut, or any political subdivision of either such State with respect to
the execution and delivery by State Street, in its individual capacity or as
Subordination Agent or Loan Trustee, as the case may be, of the Operative
Documents or in connection with the issuance, authentication or delivery of the
Equipment Notes. There are no applicable Taxes under the laws of the State of
Connecticut or any political subdivision of such State or Commonwealth (other
than taxes imposed on the fees received by State Street for acting as Pass
Through Trustee, Loan Trustee under the Indentures or as Subordination Agent)
upon or with respect to (a) the construction, mortgaging, financing,
refinancing, purchase, acquisition, acceptance, rejection, delivery,
nondelivery, transport, location, ownership, insurance, control, registration,
reregistration, deregistration, assembly, possession, repossession, operation,
use, condition, maintenance, repair, sale, return, abandonment, replacement,
preparation, installation, storage, redelivery, manufacture, leasing,
subleasing, modification, rebuilding, importation, transfer of title, transfer
of registration, exportation or other application or disposition of the
Aircraft, any Engine or any Part or any interest in any thereof, (b) any amount
paid or payable pursuant to any Operative Document, (c) the Aircraft, any Engine
or any Part or any interest therein, (d) any or all of the Operative Documents,
any or all of the Equipment Notes or any interest in any or all thereof or the
offering, registration, reregistration, issuance, acquisition, modification,
assumption, reissuance, refinancing or refunding of any or all thereof, and any
other documents contemplated hereby or thereby and amendments and supplements
hereto and thereto, (e) the payment of the principal of, or interest or premium
on, or other amounts payable with respect to, any or all of the Equipment Notes,
whether as originally issued or pursuant to any refinancing, refunding,
assumption, modification or reissuance, or any other obligation evidencing any
loan in replacement of the loan evidenced by any or all of the Equipment Notes,
(f) the property, or the income, earnings, receipts or other proceeds received
with respect to the property, held by the Loan Trustee under the Indenture or by
the Subordination Agent under the Intercreditor Agreement, or (g) otherwise with
respect to or in connection with the transactions contemplated by the Operative
Documents, which would not have been imposed if neither the Loan Trustee nor the
Subordination Agent had its principal place of business in, had performed any or
all of its administrative duties under the Operative Documents in, and had
engaged in any activities unrelated to the transactions contemplated by the
Operative Documents in, the State of Connecticut.
8. To our knowledge, but without having investigated any
governmental records or court dockets, and without having made any other
independent investigation, there are no proceedings pending or overtly
threatened in writing against or affecting State Street in any court or before
any governmental authority, agency, arbitration board or tribunal which, if
adversely determined, individually or in the aggregate, could reasonably be
expected to affect materially and adversely the Pass Through Trusts or affect
the right, power and authority of State Street, in its individual capacity or as
Pass Through Trustee, Subordination Agent, Loan Trustee or Paying Agent, as the
case may be, to enter into or perform its obligations under the Operative
Documents or to issue the Certificates.
9. The statements in the Registration Statement and Prospectus under
the caption "Certain Connecticut Taxes", to the extent that they constitute
matters of law or legal conclusions with respect thereto, have been reviewed by
us and are correct in all material respects.
Very truly yours,
BINGHAM DANA LLP
SCHEDULE A
State Street Bank and Trust Company of
Connecticut, National Association
Delta Air Lines, Inc.
Standard & Poor's Ratings Services
Moody's Investors Service, Inc.
Salomon Smith Barney Inc.
J.P. Morgan Securities Inc.
Commerzbank Capital Markets Corp.
Mizuho International plc
SunTrust Capital Markets Inc.
Tokyo-Mitsubishi International plc
Credit Lyonnais Securities (USA) Inc.
KBC Financial Products USA Inc.
Cadwalader, Wickersham & Taft
EXHIBIT B
TO
UNDERWRITING
AGREEMENT
[Form of opinion of liquidity provider]
EXHIBIT C
TO
UNDERWRITING
AGREEMENT
[OPINION OF RICHARDS, LAYTON & FINGER, PA]
September 17, 2001
To The Parties Listed On
Schedule A Attached Hereto
Re: Delta Air Lines, Inc. Class D Certificate Trust
-----------------------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel to Delta Air Lines, Inc.
Class D Certificate Trust (the "Trust"), a Delaware business trust existing
pursuant to the Trust Agreement, dated as of September 17, 2001 (the "Trust
Agreement"), between Delta Air Lines, Inc. ("Delta") and [Wilmington Trust
Company], as trustee (the "Trustee"). This opinion is being delivered pursuant
to Section 4(b)(5) of the Underwriting Agreement dated September 6, 2001 between
Delta and certain underwriters named therein. Capitalized terms used herein and
not otherwise defined are used as defined in, or by reference in, the Trust
Agreement, except that reference herein to any document shall mean such document
as in effect on the date hereof.
We have examined originals or copies of the following documents:
(a) The Trust Agreement;
(b) A certified copy of the certificate of trust (the "Certificate
of Trust") of the Trust, which was filed with the Secretary of
State of the State of Delaware (the "Secretary of State") on
September 17, 2001; and
(c) A certificate of good standing, dated September 17, 2001,
obtained from the Secretary of State with respect to the
Trust.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (c) above. In
particular, we have not reviewed any document (other than the documents listed
in paragraphs (a) through (c) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent with
the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i)
the authenticity of all documents submitted to us as authentic originals, (ii)
the conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation, and termination of the Trust, and that the Trust Agreement and the
Certificate of Trust have not been amended, (ii) except to the extent provided
in paragraph 1 below, the due creation, due formation or due organization, as
the case may be, and valid existence in good standing of each party to the
documents examined by us under the laws of the jurisdiction governing its
creation, formation or organization, (iii) the legal capacity of each natural
person who is a party to the documents examined by us, (iv) except to the extent
provided in paragraphs 1 and 2 below, that each of the parties to the documents
examined by us has the power and authority to execute and deliver, and to
perform its obligations under, such documents, (v) that each of the parties to
the documents examined by us has duly authorized, executed and delivered such
documents, (vi) that the Trust derives no income from or connected with sources
within the State of Delaware and has no assets, activities (other than having a
trustee as required by the Delaware Business Trust Act, 12 Del. C. ss. 3801 et
seq. (the "Act") and filing documents with the Secretary of State) or employees
in the State of Delaware and (vii) that the execution, delivery and performance
of the documents examined by us by each of the parties thereto does not and will
not violate or require any consent or approval of, the withholding of objection
on the part of, the giving of notice to, the filing, registration or
qualification with, or the taking of any other action under, any agreement,
indenture or instrument to which it is a party or by which it is bound or any
provision of any law, rule, regulation, judgment, order, writ, injunction or
decree of any court or governmental authority applicable to it or any of its
property.
Based upon and subject to the foregoing and subject to the
assumptions, qualifications and limitations set forth herein, it is our opinion
that:
1. The Trust has been duly formed and is validly existing in good
standing as a business trust under the Act, and has the power and authority
under the Trust Agreement and the Act to own or hold its property.
2. The Trust Agreement constitutes a legal, valid and binding
agreement of Delta and the Trustee, enforceable against Delta and the Trustee,
in accordance with its terms.
3. Under ss. 3803(a) of the Act, Delta, in its capacity as a
beneficial owner of the Trust, is entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the general corporation law of the State of Delaware, except to the extent
otherwise provided in the Trust Agreement.
4. No creditor of Delta, in its capacity as a beneficial owner of
the Trust, or any other beneficial owner of the Trust shall have any right to
obtain possession of, or otherwise exercise legal or equitable remedies with
respect to, the property of the Trust, except in accordance with the terms of
the Trust Agreement, and such persons may not acquire any greater rights than
Delta or any other beneficial owner might have with respect to the Trust
Agreement.
5. Neither a Delaware court nor a federal court sitting in Delaware
and applying federal law or Delaware law, if properly presented with the issue
and after having properly considered such issue, would permit Delta to terminate
the Trust Agreement, except in accordance with its terms or with the consent of
the Class D Trustee and the Other Trustee.
6. The Trust is a separate legal entity and, insofar as the
substantive law of the State of Delaware is applicable, the Trust rather than
any beneficial owner of the Trust will hold whatever title to such property as
may be conveyed to it from time to time pursuant to the Trust Agreement or
otherwise, except to the extent that the Trust has taken action to dispose of or
otherwise transfer or encumber any such property.
7. Under the Act and the Trust Agreement, no beneficial owner of the
Trust (including, without limitation, Delta) will have a severable ownership
interest in any individual asset of the Trust or any right of partition or
possession thereof.
The foregoing opinions may be subject to the following assumptions,
exceptions and qualifications:
A. The foregoing opinions are limited to the laws of the State of
Delaware and, in the case of paragraph 5 above, Title 11 of the United States
Code entitled "Bankruptcy" (the "Bankruptcy Code") that are currently in effect.
We express no opinion with respect to (i) other federal laws, including, without
limitation, the Securities Act of 1933, as amended, the Trust Indenture Act of
1939, as amended, the Investment Company Act of 1940, as amended, or the Federal
Aviation Act of 1958, as amended, (ii) state securities or blue sky laws or
(iii) laws relating to the particular nature of the Trust assets.
B. The foregoing opinions regarding enforceability and the opinions
in paragraphs 3, 4, 6 and 7 are subject to (i) applicable bankruptcy,
insolvency, moratorium, reorganization, receivership, fraudulent transfer and
similar laws affecting the rights and remedies of creditors generally, (ii)
general principles of equity including applicable law relating to fiduciary
duties (regardless of whether considered in a proceeding in equity or at law),
and (iii) the effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
C. The opinion set forth in paragraph 5 is subject to, and we
express no opinion with respect to, (i) applicable avoidance actions, e.g.,
fraudulent conveyance and preference laws (including ss. 547 and ss. 548 of the
Bankruptcy Code) or (ii) principles of equity (regardless of whether considered
and applied in a proceeding in equity or at law).
D. We have not participated in the preparation of any offering
materials with respect to assets to be held by the Trust and assume no
responsibility for their contents.
E. The opinion in paragraph 5 should be interpreted in accordance
with the Special Report by The TriBar Opinion Committee, Opinions in the
Bankruptcy Context: Rating Agency, Structured Financing and Chapter 11
Transactions, 46 Bus. Law. 717 (1991).
This opinion may be relied upon by you in connection with the
matters set forth herein, subject to the understanding that this opinion is
given on the date hereof and only with respect to laws currently in effect.
Otherwise, without our prior written consent, this opinion may not be furnished
or quoted to, or relied upon by, any other person or entity for any purpose.
Very truly yours,
EXHIBIT D
[OPINION OF PILLSBURY WINTHROP]
SCHEDULE A
Delta Air Lines, Inc.
State Street Bank and Trust Company
of Connecticut, National Association
Standard & Poor's Ratings Services
Moody's Investors Service, Inc.
Salomon Smith Barney Inc.
J.P. Morgan Securities, Inc.
Commerzbank Capital Markets Corp.
Mizuho International plc
SunTrust Capital Markets Inc.
Tokyo-Mitsubishi International plc
Credit Lyonnais Securities (USA) Inc.
KBC Financial Products USA Inc.
EX-1.(B)
4
de600102-ex1b.txt
AMENDMENT TO UNDERWRITING AGREEMENT
EXHIBIT 1(b)
DELTA AIR LINES, INC.
Pass Through Certificates, Series 2001-1
AMENDMENT TO
UNDERWRITING AGREEMENT
September 17, 2001
Salomon Smith Barney Inc.
J.P. Morgan Securities Inc.
Commerzbank Capital Markets Corp.
Mizuho International plc
SunTrust Capital Markets Inc.
Tokyo-Mitsubishi International plc
Credit Lyonnais Securities (USA) Inc.
KBC Financial Products USA Inc.
c/o Salomon Smith Barney Inc.
390 Greenwich Street
4th Floor
New York, NY 10013
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, NY 10017
Ladies and Gentlemen:
1. Reference is made to the Underwriting Agreement between us dated
September 6, 2001 (the "Original Agreement"; capitalized terms used herein,
unless defined herein, are being used herein as defined therein). Delta Air
Lines, Inc. hereby proposes to amend the Original Agreement by substituting for
Schedule A thereto the Revised Schedule A attached to this Amendment.
2. In all respects not inconsistent with the terms and provisions of
this Amendment, the Original Agreement shall continue to be in full force and
effect in accordance with the terms and conditions thereof. From and after the
date hereof, each reference to the Original Agreement in any other instrument or
document shall be deemed a reference to the Original Agreement as amended
hereby, unless the context otherwise requires.
If the foregoing is in accordance with your understanding, please
sign and return a counterpart hereof to the Company, plus a counterpart hereof
for the Company's counsel, whereupon this letter shall constitute a binding
agreement between each of the Underwriters and the Company. It is understood
that your acceptance of this letter on behalf of each of the Underwriters is
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Company for examination upon
request, but without warranty on your part as to the authority of the signers
thereof.
Very truly yours,
DELTA AIR LINES, INC.
By:
--------------------------------
Name:
Title:
Accepted as of the date hereof:
SALOMON SMITH BARNEY INC.
By:
--------------------------------
Name:
Title:
J.P. MORGAN SECURITIES INC.
By:
--------------------------------
Name:
Title:
REVISED SCHEDULE A
TO
UNDERWRITING
AGREEMENT
Class of Aggregate Final Expected
Pass Through Principal Regular Distribution
Certificates Amount Interest Rate Date
2001-1, Class A-1 $300,000,000 6.619% March 18, 2011
2001-1, Class A-2 $571,148,000 7.111% September 18, 2011
2001-1, Class B $207,070,000 7.711% September 18, 2011
2001-1, Class C $169,782,000 7.299% September 18, 2006
EX-4.(A)(1)
5
de600102-ex4a1.txt
TRUST SUPPLEMENT NO. 2001-1A-1
EXHIBIT 4(a)(1)
EXECUTION COPY
TRUST SUPPLEMENT NO. 2001-1A-1
Dated as of September 17, 2001
between
DELTA AIR LINES, INC.
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Trustee,
To
PASS THROUGH TRUST AGREEMENT
Dated as of November 16, 2000
Delta Air Lines, Inc. Pass Through Trust 2001-1A-1
6.619% Delta Air Lines
Pass Through Certificates,
Series 2001-1A-1
TRUST SUPPLEMENT NO. 2001-1A-1
This TRUST SUPPLEMENT NO. 2001-1A-1, dated as of September 17, 2001
(the "Trust Supplement"), between DELTA AIR LINES, INC., a Delaware corporation,
and STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a
national banking association, as Trustee, to the Pass Through Trust Agreement,
dated as of November 16, 2000, between the Company (such term and other
capitalized terms used herein without definition being defined as provided in
Section 1.01) and the Trustee (the "Basic Agreement").
W I T N E S S E T H:
WHEREAS, the Basic Agreement, which is unlimited as to the aggregate
face amount of Certificates that may be issued and authenticated thereunder, has
heretofore or concurrently herewith been executed and delivered;
WHEREAS, the Company is the Owner of 36 aircraft described in
Schedule III (collectively, the "Aircraft");
WHEREAS, pursuant to each Indenture, the Company will issue the
Equipment Notes, which Equipment Notes are to be secured by a security interest
in all right, title and interest of the Company in and to the Aircraft and
certain other property described therein;
WHEREAS, the Trustee shall hereby declare the creation of the Class
A-1 Trust (as defined below) for the benefit of Holders of the Class A-1
Certificates (as defined below) to be issued in respect of such Class A-1 Trust,
and the initial Holders of the Class A-1 Certificates, as grantors of such Class
A-1 Trust, by their respective acceptances of the Class A-1 Certificates, shall
join in the creation of the Class A-1 Trust with the Trustee;
WHEREAS, all Certificates to be issued by the Class A-1 Trust will
evidence Fractional Undivided Interests in the Class A-1 Trust and will have no
rights, benefits or interests in respect of any other separate Trust or the
property held therein;
WHEREAS, pursuant to the terms and conditions of the Basic
Agreement, as supplemented by this Trust Supplement and the Participation
Agreements, the Trustee on behalf of the Class A-1 Trust shall purchase the
Equipment Notes issued by the Company pursuant to the Indentures relating to the
Aircraft having the identical interest rate as, and final maturity dates not
later than the final Regular Distribution Date of, the Class A-1 Certificates
issued hereunder and shall hold such Equipment Notes in trust for the benefit of
the Class A-1 Certificateholders;
WHEREAS, pursuant to the terms and conditions of the Intercreditor
Agreement referred to in Section 3.01(h) hereof (the "Intercreditor Agreement"),
the Trustee and the other parties thereto will agree to the terms of
subordination set forth therein;
WHEREAS, all of the conditions and requirements necessary to make
this Trust Supplement, when duly executed and delivered, a valid, binding and
legal instrument in accordance with its terms and for the purposes herein
expressed, have been done, performed and fulfilled, and the execution and
delivery of this Trust Supplement in the form and with the terms hereof have
been in all respects duly authorized;
WHEREAS, this Trust Supplement 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. Unless otherwise specified herein or the
context otherwise requires, capitalized terms used but not defined herein shall
have the respective meanings set forth, and shall be construed and interpreted
in the manner described, in the Basic Agreement or, to the extent not defined
therein, in the Intercreditor Agreement.
ARTICLE II
DECLARATION OF TRUST
Section 2.01 Declaration of Trust. The Trustee hereby declares the
creation of a Trust, designated the "Delta Air Lines Pass Through Trust
2001-1A-1" (the "Class A-1 Trust"), for the benefit of the Holders of the Class
A-1 Certificates to be issued in respect of such Class A-1 Trust, and the
initial Holders of the Class A-1 Certificates, as grantors of such Class A-1
Trust, by their respective acceptances of the Class A-1 Certificates, join in
the creation of such Class A-1 Trust with the Trustee. The Trustee, by the
execution and delivery of this Trust Supplement, acknowledges its acceptance of
all right, title and interest in and to the Trust Property to be acquired
pursuant to Section 2.02 of the Basic Agreement and the Participation Agreements
and the Trustee will hold such right, title and interest for the benefit of all
present and future Holders of the Class A-1 Certificates, upon the trusts set
forth in the Basic Agreement and this Trust Supplement.
ARTICLE III
THE CERTIFICATES
Section 3.01 The Certificates. There is hereby created a series of
Certificates to be issued under this Agreement designated as "6.619% Delta Air
Lines Pass Through Certificates, Series 2001-1A-1" (the "Class A-1
Certificates"). Each Class A-1 Certificate represents a Fractional Undivided
Interest in the Class A-1 Trust created hereby. The Class A-1 Certificates shall
be the only instruments evidencing a Fractional Undivided Interest in the Class
A-1 Trust.
The terms and conditions applicable to the Class A-1 Certificates
and the Class A-1 Trust are as follows:
(a) The aggregate face amount of the Class A-1 Certificates that may
be authenticated and delivered under this Agreement (except for Class A-1
Certificates authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Class A-1 Certificates pursuant
to Sections 3.03, 3.04, 3.05 and 3.06 of the Basic Agreement) is
$300,000,000.
(b) The Cut-off Date is October 19, 2001.
(c) The Regular Distribution Dates with respect to any payment of
Scheduled Payments means March 18 and September 18 of each year,
commencing on March 18, 2002, until payment of all of the Scheduled
Payments to be made under the Equipment Notes has been made. The principal
amount of the Equipment Notes to be held by the Class A-1 Trust is
scheduled for payment on March 18 and September 18 in certain years,
beginning on March 18, 2002 and ending on March 18, 2011, as set out in
Schedules I-A and I-B.
(d) The Special Distribution Dates with respect to the Class A-1
Certificates means any Business Day on which a Special Payment is to be
distributed pursuant to this Agreement.
(e) The Class A-1 Certificates shall be in the form attached hereto
as Exhibit A, shall be Book-Entry Certificates and shall be subject to the
conditions set forth in the Letter of Representations between the Company
and The Depository Trust Company, as initial Clearing Agency, attached
hereto as Exhibit B.
(f) The proceeds of the Class A-1 Certificates issued by the Class
A-1 Trust shall be used to acquire the Equipment Notes described in
Schedule II, such Equipment Notes to relate to the Aircraft described in
Schedule III and the Note Documents described in Schedule IV.
(g) Any Person acquiring or accepting a Class A-1 Certificate or an
interest therein will, by such acquisition or acceptance, be deemed to
represent and warrant to the Company, the Loan Trustees and the Trustee
that either (i) no assets of an employee benefit plan subject to Title I
of ERISA, or of an employee benefit plan or an individual retirement
account subject to Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code"), or any trust established under such plan or account,
have been used to purchase Class A-1 Certificates or an interest therein
or (ii) the purchase and holding of Class A-1 Certificates or interests
therein by such Person is exempt from the prohibited transaction
restrictions of ERISA and the Code pursuant to one or more prohibited
transaction statutory or administrative exemptions.
(h) The Class A-1 Certificates will be subject to the following
Intercreditor Agreement (and to the extent the terms thereof (including
the definitions of defined terms) are inconsistent with the terms of this
Agreement, such Intercreditor Agreement shall control): that certain
Intercreditor Agreement, dated as of the date hereof, among State Street
Bank and Trust Company of Connecticut, National Association, as Trustee
under each Trust (as defined therein), Landesbank Hessen-Thuringen
Girozentrale, as Class A-1 Liquidity Provider, Class A-2 Liquidity
Provider, Class B Liquidity Provider and Class C Liquidity Provider, and
State Street Bank and Trust Company of Connecticut, National Association,
as Subordination Agent thereunder. Potential Purchasers shall have the
rights upon the occurrence of a Triggering Event set forth in Article IV
hereof. The Trustee and, by acceptance of any Class A-1 Certificate, each
Certificateholder thereof, agrees to be bound by all of the provisions of
the Intercreditor Agreement, including the subordination provisions of
Section 9.09 thereof.
(i) The Class A-1 Certificates will have the benefit of the
following Liquidity Facility: that certain Revolving Credit Agreement,
dated as of the date hereof, between State Street Bank and Trust Company
of Connecticut, National Association, as Subordination Agent under the
Intercreditor Agreement, as agent and trustee for the Class A-1 Trust, and
Landesbank Hessen-Thuringen Girozentrale.
(j) Subject to Section 2.02(b) of the Basic Agreement, there will
not be any deposit agreement, escrow agreement or other similar
arrangement prior to delivery of the Aircraft.
(k) The Company may at any time purchase any of the Class A-1
Certificates at any price in the open market and may hold such Class A-1
Certificates to maturity.
(l) The Responsible Party is the Company.
Section 3.02 Delivery of Documents. The Trustee is hereby directed
(i) to execute and deliver the Intercreditor Agreement referred to in Section
3.01(h) of this Trust Supplement in the form delivered to the Trustee by the
Company and (ii) subject to the respective terms thereof, to perform its
obligations thereunder.
ARTICLE IV
DEFAULT
Section 4.01 Purchase Rights of Certificateholders. (a) By
acceptance of its Class A-1 Certificate, each Class A-1 Certificateholder agrees
that at any time after the occurrence and during the continuation of a
Triggering Event,
(i) if the Class A-2 Trustee is then the Controlling Party, each
Class A-1 Certificateholder shall have the right to purchase, for the
purchase price set forth in the Class A-2 Trust Agreement, all, but not
less than all, of the Class A-2 Certificates upon ten days' prior written
notice to the Class A-2 Trustee and each other Class A-1
Certificateholder, provided that (A) if prior to the end of such ten-day
period any other Class A-1 Certificateholder notifies such purchasing
Class A-1 Certificateholder that such other Class A-1 Certificateholder
wants to participate in such purchase, then such other Class A-1
Certificateholder may join with the purchasing Class A-1 Certificateholder
to purchase all, but not less than all, of the Class A-2 Certificates pro
rata based on the Fractional Undivided Interest in the Class A-1 Trust
held by each such Class A-1 Certificateholder and (B) if prior to the end
of such ten-day period any other Class A-1 Certificateholder fails to
notify the purchasing Class A-1 Certificateholder of such other Class A-1
Certificateholder's desire to participate in such a purchase, then such
other Class A-1 Certificateholder shall lose its right to purchase the
Class A-2 Certificates pursuant to this Section 4.01(a)(i); and
(ii) if the Trustee is then the Controlling Party, each Class A-2
Certificateholder shall have the right to purchase all, but not less than
all, of the Class A-1 Certificates upon ten days' prior written notice to
the Trustee and each other Class A-2 Certificateholder, provided that (A)
if prior to the end of such ten-day period any other Class A-2
Certificateholder notifies such purchasing Class A-2 Certificateholder
that such other Class A-2 Certificateholder wants to participate in such
purchase, then such other Class A-2 Certificateholder may join with the
purchasing Class A-2 Certificateholder to purchase all, but not less than
all, of the Class A-1 Certificates pro rata based on the Fractional
Undivided Interest in the Class A-2 Trust held by each such Class A-2
Certificateholder and (B) if prior to the end of such ten-day period any
other Class A-2 Certificateholder fails to notify the purchasing Class A-2
Certificateholder of such other Class A-2 Certificateholder's desire to
participate in such a purchase, then such other Class A-2
Certificateholder shall lose its right to purchase the Class A-1
Certificates pursuant to this Section 4.01(a)(ii); and
(iii) each Class B Certificateholder shall have the right (which
shall not expire upon any purchase of the Class A-1 Certificates or the
Class A-2 Certificates pursuant to clause (i) or (ii) above) to purchase
all, but not less than all, of the Class A-1 Certificates and the Class
A-2 Certificates upon ten days' prior written notice to the Trustee, the
Class A-2 Trustee and each other Class B Certificateholder, provided that
(A) if prior to the end of such ten-day period any other Class B
Certificateholder notifies such purchasing Class B Certificateholder that
such other Class B Certificateholder wants to participate in such
purchase, then such other Class B Certificateholder may join with the
purchasing Class B Certificateholder to purchase all, but not less than
all, of the Class A-1 Certificates and the Class A-2 Certificates pro rata
based on the Fractional Undivided Interest in the Class B Trust held by
each such Class B Certificateholder and (B) if prior to the end of such
ten-day period any other Class B Certificateholder fails to notify the
purchasing Class B Certificateholder of such other Class B
Certificateholder's desire to participate in such a purchase, then such
other Class B Certificateholder shall lose its right to purchase the Class
A-1 Certificates and the Class A-2 Certificates pursuant to this Section
4.01(a)(iii); and
(iv) each Class C Certificateholder shall have the right (which
shall not expire upon any purchase of the Class A-1 Certificates or the
Class A-2 Certificates pursuant to clause (i), (ii) or (iii) above) to
purchase all, but not less than all, of the Class A-1 Certificates, the
Class A-2 Certificates and the Class B Certificates upon ten days' prior
written notice to the Trustee, the Class A-2 Trustee, the Class B Trustee
and each other Class C Certificateholder, provided that (A) if prior to
the end of such ten-day period any other Class C Certificateholder
notifies such purchasing Class C Certificateholder that such other Class C
Certificateholder wants to participate in such purchase, then such other
Class C Certificateholder may join with the purchasing Class C
Certificateholder to purchase all, but not less than all, of the Class A-1
Certificates, the Class A-2 Certificates and the Class B Certificates pro
rata based on the Fractional Undivided Interest in the Class C Trust held
by each such Class C Certificateholder and (B) if prior to the end of such
ten-day period any other Class C Certificateholder fails to notify the
purchasing Class C Certificateholder of such other Class C
Certificateholder's desire to participate in such a purchase, then such
other Class C Certificateholder shall lose its right to purchase the Class
A-1 Certificates, the Class A-2 Certificates and the Class B Certificates
pursuant to this Section 4.01(a)(iv); and
(v) each Class D Certificateholder (other than the Company or any of
its Affiliates) shall have the right (which shall not expire upon any
purchase of the Class A-1 Certificates, the Class A-2 Certificates or the
Class B Certificates pursuant to clause (i), (ii), (iii) or (iv) above) to
purchase all, but not less than all, of the Class A-1 Certificates, the
Class A-2 Certificates, the Class B Certificates and the Class C
Certificates upon ten days' prior written notice to the Trustee, the Class
A-2 Trustee, the Class B Trustee, the Class C Trustee and each other Class
D Certificateholder, provided that (A) if prior to the end of such ten-day
period any other Class D Certificateholder (other than the Company or any
of its Affiliates) notifies such purchasing Class D Certificateholder that
such other Class D Certificateholder wants to participate in such
purchase, then such other Class D Certificateholder may join with the
purchasing Class D Certificateholder to purchase all, but not less than
all, of the Class A-1 Certificates, the Class A-2 Certificates, the Class
B Certificates and the Class C Certificates pro rata based on the
Fractional Undivided Interest in the Class D Trust held by each such Class
D Certificateholder and (B) if prior to the end of such ten-day period any
other Class D Certificateholder fails to notify the purchasing Class D
Certificateholder of such other Class D Certificateholder's desire to
participate in such a purchase, then such other Class D Certificateholder
shall lose its right to purchase the Class A-1 Certificates, the Class A-2
Certificates, the Class B Certificates and the Class C Certificates
pursuant to this Section 4.01(a)(v).
The purchase price with respect to the Class A-1 Certificates shall
be equal to the Pool Balance of the Class A-1 Certificates, together with
accrued and unpaid interest in respect thereof to the date of such purchase,
without premium, but including any other amounts then due and payable to the
Class A-1 Certificateholders under this Agreement, the Intercreditor Agreement
or any Note Document or on or in respect of the Class A-1 Certificates;
provided, however, that if such purchase occurs after the Record Date relating
to any Distribution Date, such purchase price shall be reduced by the amount to
be distributed hereunder on such related Distribution Date (which deducted
amounts shall remain distributable to, and may be retained by, the Class A-1
Certificateholders as of such Record Date); provided, further that no such
purchase of Class A-1 Certificates pursuant to clause (iii), (iv) or (v) above
shall be effective unless the purchaser(s) shall certify to the Trustee that
contemporaneously with such purchase, such purchaser(s) is purchasing, pursuant
to the terms of this Agreement and the Intercreditor Agreement, all of the Class
A-1 Certificates, the Class A-2 Certificates, the Class B Certificates and the
Class C Certificates that are senior to the securities held by such
purchaser(s). Each payment of the purchase price of the Class A-1 Certificates
referred to in the first sentence hereof shall be made to an account or accounts
designated by the Trustee and each such purchase shall be subject to the terms
of this Section 4.01(a). Each Class A-1 Certificateholder agrees by its
acceptance of its Certificate that it will, upon payment from such Class A-2
Certificateholder(s), Class B Certificateholder(s), Class C Certificateholder(s)
or Class D Certificateholder(s), as the case may be, of the purchase price set
forth in the first sentence of this paragraph, forthwith sell, assign, transfer
and convey to the purchaser(s) thereof (without recourse, representation or
warranty of any kind except as to its own acts) all of the right, title,
interest and obligation of such Class A-1 Certificateholder in this Agreement,
the Intercreditor Agreement, the Liquidity Facility, the Note Documents and all
Class A-1 Certificates held by such Class A-1 Certificateholder (excluding all
right, title and interest under any of the foregoing to the extent such right,
title or interest is with respect to an obligation not then due and payable as
respects any action or inaction or state of affairs occurring prior to such
sale) and the purchaser(s) shall assume all of such Class A-1
Certificateholder's obligations under this Agreement, the Intercreditor
Agreement, the Liquidity Facility, the Note Documents and all such Class A-1
Certificates. The Class A-1 Certificates will be deemed to be purchased on the
date payment of the purchase price is made notwithstanding the failure of any
Class A-1 Certificateholder to deliver any Class A-1 Certificate and, upon such
a purchase, (i) the only rights of the Class A-1 Certificateholders will be to
deliver the Class A-1 Certificates and (ii) if the purchaser(s) shall so
request, each such Class A-1 Certificateholder will comply with all the
provisions of Section 3.04 of the Basic Agreement to enable new Class A-1
Certificates to be issued to the purchaser(s) in such denominations as it shall
request. All charges and expenses in connection with the issuance of any such
new Class A-1 Certificates shall be borne by the purchaser(s) thereof.
As used in this Section 4.01(a), the terms "Class A-1
Certificateholder", "Class A-2 Certificate", "Class A-2 Certificateholder",
"Class A-2 Trust", "Class A-2 Trust Agreement", "Class A-2 Trustee", "Class B
Certificate", "Class B Certificateholder", "Class B Trust", "Class B Trustee",
"Class C Certificate", "Class C Certificateholder", "Class C Trust", "Class C
Trustee", "Class D Certificate", "Class D Certificateholder", "Class D Trust"
and "Class D Trustee" shall have the respective meanings assigned to such terms
in the Intercreditor Agreement.
(b) This Section 4.01 supplements and, to the extent inconsistent
with any provision of Section 6.01(a) of the Basic Agreement, replaces the
provisions of Section 6.01(a) of the Basic Agreement. Notwithstanding anything
to the contrary set forth herein or in any Operative Agreement, the provisions
of this Section 4.01 may not be amended in any manner without the consent of
each Class A-1 Certificateholder, Class A-2 Certificateholder, Class B
Certificateholder, Class C Certificateholder or Class D Certificateholder (other
than the Company or any of its Affiliates) that would be adversely affected
thereby.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01 Final Termination Date. The respective obligations and
responsibilities of the Company and the Trustee created hereby and the Class A-1
Trust created hereby shall terminate upon the distribution to all
Certificateholders of Class A-1 Certificates and the Trustee of all amounts
required to be distributed to them pursuant to this Agreement and the
disposition of all property held as part of the Trust Property; provided,
however, that in no event shall the Trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
Joseph P. Kennedy, Sr., the father of John F. Kennedy, former President of the
United States, living on the date of this Trust Supplement.
Section 5.02 Basic Agreement Ratified. Except and so far as herein
expressly provided, all of the provisions, terms and conditions of the Basic
Agreement are in all respects ratified and confirmed; and the Basic Agreement
and this Trust Supplement shall be taken, read and construed as one and the same
instrument.
Section 5.03 Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN THE
STATE OF NEW YORK AND THIS AGREEMENT AND THE CLASS A-1 CERTIFICATES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER AND THEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 5.04 Counterparts. This Trust Supplement may be executed in
any number of counterparts (and each of the parties shall not be required to
execute the same counterpart). Each counterpart of this Trust Supplement
including a signature page or pages executed by each of the parties hereto shall
be an original counterpart of this Trust Supplement, but all of such
counterparts together shall constitute one instrument.
Section 5.05 Intention of Parties. The parties hereto intend that
the Class A-1 Trust be classified for United States federal income tax purposes
as a grantor trust under Part 1E of Chapter 1J of Subtitle A of the Internal
Revenue Code of 1986, as amended, and not as a trust or association taxable as a
corporation or as a partnership. Each Certificateholder of a Class A-1
Certificate, by its acceptance of its Class A-1 Certificate or a beneficial
interest therein, agrees to treat the Class A-1 Trust as a grantor trust for all
United States federal, state and local income tax purposes. The Trustee shall
not be authorized or empowered to do anything that would cause the Class A-1
Trust to fail to qualify as a grantor trust for such tax purposes (including as
subject to this restriction, acquiring any Aircraft by bidding the Equipment
Notes relating thereto or otherwise, or taking any action with respect to any
such Aircraft once acquired).
IN WITNESS WHEREOF, the parties have caused this Trust Supplement to
be duly executed by their respective officers thereto duly authorized as of the
date first written above.
DELTA AIR LINES, INC.
By:
-------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------
Name:
Title:
EXHIBIT A to
TRUST SUPPLEMENT NO. 2001-1A-1
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.
DELTA AIR LINES, INC. PASS THROUGH TRUST 2001-1A-1
6.619% DELTA AIR LINES PASS THROUGH CERTIFICATE, SERIES 2001-1A-1
Final Expected Regular Distribution Date: March 18, 2011
evidencing a fractional undivided interest
in a Trust, the property of which includes
or will include, among other things,
certain Equipment Notes each secured by an
Aircraft owned by Delta Air Lines, Inc.
Certificate No. ______ $____________ Fractional CUSIP No. 247367AS4
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 Delta
Air Lines Pass Through Trust, Series 2001-1A-1 (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
November 16, 2000 (the "Basic Agreement"), as supplemented by Trust Supplement
No. 2001-1A-1 thereto dated September __, 2001 (collectively, the "Agreement"),
between the Trustee and Delta Air Lines, Inc., a corporation incorporated under
Delaware law (the "Company"), a summary of certain of the pertinent provisions
of which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the
Agreement. This Certificate is one of the duly authorized Certificates
designated as "6.619% Delta Air Lines Pass Through Certificates, Series
2001-1A-1" (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 all of the provisions of the Agreement and
the Intercreditor Agreement, including the subordination provisions of Section
9.09 of the Intercreditor Agreement. The property of the Trust includes or will
include certain Equipment Notes and all rights of the Trust and the Trustee, on
behalf of the Trust, to receive any payments under the Intercreditor Agreement
or the Liquidity Facility (the "Trust Property"). Each issue of the Equipment
Notes is or will be secured by, among other things, a security interest in
certain Aircraft owned by the Company.
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* This legend to appear on Book-Entry Certificates to be deposited with The
Depository Trust Company.
The Certificates represent Fractional Undivided Interests in the
Trust and the Trust Property, and will 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 the
Intercreditor Agreement, from funds then available to the Trustee, there will be
distributed on each March 18 and September 18 (a "Regular Distribution Date"),
commencing on March 18, 2002, 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 the Intercreditor Agreement, in the event that Special Payments on
the Equipment Notes are received by the Trustee, from funds then available to
the Trustee, there shall be distributed on the applicable Special Distribution
Date, to the Person in whose name this Certificate is registered at the close of
business on the 15th day preceding the Special Distribution Date, an amount in
respect of such Special Payments on the Equipment Notes, the receipt of which
has been confirmed by the Trustee, equal to the product of the percentage
interest in the Trust evidenced by this Certificate and an amount equal to the
sum of such Special Payments so received. If a Regular Distribution Date or
Special Distribution Date is not a Business Day, distribution shall be made on
the immediately following Business Day with the same force and effect as if made
on such Regular Distribution Date or Special Distribution Date and no interest
shall accrue during the intervening period. The Trustee shall mail notice of
each Special Payment and the Special Distribution Date therefor to the
Certificateholder of this Certificate.
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 that
with respect to Certificates registered on the Record Date in the name of a
Clearing Agency (or its nominee), such distributions shall be made by wire
transfer. 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, the Trustee or any
Loan 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 any payment or distribution to such Certificateholder
pursuant to the terms of the Agreement and that it will not have any recourse to
the Company, the Trustee or the Loan Trustees except as otherwise expressly
provided in the Agreement, in any Note Document or in the Intercreditor
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 therein, 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 Company, the Trustee, the Registrar and any Paying Agent shall
deem and treat the person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Company, the Trustee, the
Registrar or 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.
Any Person acquiring or accepting this Certificate or an interest
herein will, by such acquisition or acceptance, be deemed to represent and
warrant to the Company, the Loan Trustees and the Trustee that either: (i) no
assets of an employee benefit plan subject to Title I of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or of an employee benefit
plan or an individual retirement account subject to Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), or any trust established under
such plan or account, have been used to purchase this Certificate or an interest
herein or (ii) the purchase and holding of this Certificate or interest herein
by such Person are exempt from the prohibited transaction restrictions of ERISA
and the Code pursuant to one or more prohibited transaction statutory or
administrative exemptions.
THIS CERTIFICATE AND THE AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, 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.
DELTA AIR LINES, INC. PASS THROUGH TRUST
2001-1A-1
By: STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL
ASSOCIATION,
as Trustee
By:
-------------------------------
Title:
Dated:
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:
-------------------------------
Authorized Officer
EXHIBIT B to
TRUST SUPPLEMENT NO. 2001-1A-1
[DTC Letter of Representations]
[Intentionally Omitted]
N687DL
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $976,339.79
September 18, 2002 0.00
March 18, 2003 976,707.23
September 18, 2003 0.00
March 18, 2004 976,707.23
September 18, 2004 0.00
March 18, 2005 976,707.23
September 18, 2005 0.00
March 18, 2006 976,707.23
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 0.00
March 18, 2008 32,422.66
September 18, 2008 0.00
March 18, 2009 881,852.51
September 18, 2009 0.00
March 18, 2010 881,852.50
September 18, 2010 0.00
March 18, 2011 1,399,897.92
September 18, 2011 0.00
N688DL
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $976,339.79
September 18, 2002 0.00
March 18, 2003 976,707.23
September 18, 2003 0.00
March 18, 2004 976,707.23
September 18, 2004 0.00
March 18, 2005 976,707.23
September 18, 2005 0.00
March 18, 2006 976,707.23
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 0.00
March 18, 2008 32,422.66
September 18, 2008 0.00
March 18, 2009 881,852.51
September 18, 2009 0.00
March 18, 2010 881,852.50
September 18, 2010 0.00
March 18, 2011 1,399,897.92
September 18, 2011 0.00
N689DL
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $978,730.67
September 18, 2002 0.00
March 18, 2003 979,099.00
September 18, 2003 0.00
March 18, 2004 979,099.00
September 18, 2004 0.00
March 18, 2005 979,099.00
September 18, 2005 0.00
March 18, 2006 979,099.00
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 0.00
March 18, 2008 32,502.07
September 18, 2008 0.00
March 18, 2009 884,011.99
September 18, 2009 0.00
March 18, 2010 884,012.00
September 18, 2010 0.00
March 18, 2011 1,403,326.00
September 18, 2011 0.00
N690DL
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $0.00
September 18, 2002 978,730.67
March 18, 2003 0.00
September 18, 2003 979,099.00
March 18, 2004 0.00
September 18, 2004 979,099.00
March 18, 2005 0.00
September 18, 2005 979,099.00
March 18, 2006 0.00
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 184,599.41
March 18, 2008 0.00
September 18, 2008 827,001.66
March 18, 2009 0.00
September 18, 2009 884,011.99
March 18, 2010 0.00
September 18, 2010 884,012.00
March 18, 2011 774,719.79
September 18, 2011 0.00
N692DL
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $0.00
September 18, 2002 986,235.35
March 18, 2003 0.00
September 18, 2003 986,606.52
March 18, 2004 0.00
September 18, 2004 986,606.51
March 18, 2005 0.00
September 18, 2005 986,606.51
March 18, 2006 0.00
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 186,014.88
March 18, 2008 0.00
September 18, 2008 833,342.92
March 18, 2009 0.00
September 18, 2009 890,790.40
March 18, 2010 0.00
September 18, 2010 890,790.40
March 18, 2011 780,660.17
September 18, 2011 0.00
N693DL
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $0.00
September 18, 2002 988,626.23
March 18, 2003 0.00
September 18, 2003 988,998.28
March 18, 2004 0.00
September 18, 2004 988,998.29
March 18, 2005 0.00
September 18, 2005 988,998.28
March 18, 2006 0.00
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 186,465.82
March 18, 2008 0.00
September 18, 2008 835,363.15
March 18, 2009 0.00
September 18, 2009 892,949.89
March 18, 2010 0.00
September 18, 2010 892,949.90
March 18, 2011 782,552.68
September 18, 2011 0.00
N694DL
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $0.00
September 18, 2002 991,349.17
March 18, 2003 0.00
September 18, 2003 991,722.25
March 18, 2004 0.00
September 18, 2004 991,722.25
March 18, 2005 0.00
September 18, 2005 991,722.25
March 18, 2006 0.00
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 186,979.40
March 18, 2008 0.00
September 18, 2008 837,663.95
March 18, 2009 0.00
September 18, 2009 895,409.32
March 18, 2010 0.00
September 18, 2010 895,409.31
March 18, 2011 784,708.04
September 18, 2011 0.00
N695DL
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $0.00
September 18, 2002 994,138.52
March 18, 2003 0.00
September 18, 2003 994,512.65
March 18, 2004 0.00
September 18, 2004 994,512.65
March 18, 2005 0.00
September 18, 2005 994,512.66
March 18, 2006 0.00
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 187,505.50
March 18, 2008 0.00
September 18, 2008 840,020.88
March 18, 2009 0.00
September 18, 2009 897,928.72
March 18, 2010 0.00
September 18, 2010 897,928.73
March 18, 2011 786,915.96
September 18, 2011 0.00
N6714Q
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $1,078,784.42
September 18, 2002 0.00
March 18, 2003 1,079,192.62
September 18, 2003 0.00
March 18, 2004 1,079,192.62
September 18, 2004 0.00
March 18, 2005 1,079,192.62
September 18, 2005 0.00
March 18, 2006 1,079,192.62
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 0.00
March 18, 2008 28,263.42
September 18, 2008 0.00
March 18, 2009 974,284.84
September 18, 2009 0.00
March 18, 2010 974,384.84
September 18, 2010 0.00
March 18, 2011 1,565,230.72
September 18, 2011 0.00
N6715C
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $1,089,901.98
September 18, 2002 0.00
March 18, 2003 1,090,315.50
September 18, 2003 0.00
March 18, 2004 1,090,315.50
September 18, 2004 0.00
March 18, 2005 1,090,315.50
September 18, 2005 0.00
March 18, 2006 1,090,315.50
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 0.00
March 18, 2008 24,735.08
September 18, 2008 0.00
March 18, 2009 984,427.50
September 18, 2009 0.00
March 18, 2010 984,427.50
September 18, 2010 0.00
March 18, 2011 1,590,679.18
September 18, 2011 0.00
N6716C
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $1,090,890.10
September 18, 2002 0.00
March 18, 2003 1,091,304.00
September 18, 2003 0.00
March 18, 2004 1,091,304.00
September 18, 2004 0.00
March 18, 2005 1,091,304.00
September 18, 2005 0.00
March 18, 2006 1,091,304.00
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 0.00
March 18, 2008 24,757.51
September 18, 2008 0.00
March 18, 2009 985,320.00
September 18, 2009 0.00
March 18, 2010 985,320.00
September 18, 2010 0.00
March 18, 2011 1,592,121.32
September 18, 2011 0.00
N169DZ
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $1,477,891.95
September 18, 2002 0.00
March 18, 2003 1,478,448.13
September 18, 2003 0.00
March 18, 2004 1,478,448.13
September 18, 2004 0.00
March 18, 2005 1,478,448.13
September 18, 2005 0.00
March 18, 2006 1,478,448.13
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 0.00
March 18, 2008 49,078.39
September 18, 2008 0.00
March 18, 2009 1,334,865.91
September 18, 2009 0.00
March 18, 2010 1,334,865.92
September 18, 2010 0.00
March 18, 2011 2,119,034.64
September 18, 2011 0.00
N171DZ
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $0.00
September 18, 2002 1,488,119.56
March 18, 2003 0.00
September 18, 2003 1,488,679.61
March 18, 2004 0.00
September 18, 2004 1,488,679.60
March 18, 2005 0.00
September 18, 2005 1,488,679.61
March 18, 2006 0.00
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 280,675.78
March 18, 2008 0.00
September 18, 2008 1,257,421.87
March 18, 2009 0.00
September 18, 2009 1,344,103.74
March 18, 2010 0.00
September 18, 2010 1,344,103.74
March 18, 2011 1,177,929.46
September 18, 2011 0.00
N172DZ
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $0.00
September 18, 2002 1,488,119.56
March 18, 2003 0.00
September 18, 2003 1,488,679.61
March 18, 2004 0.00
September 18, 2004 1,488,679.60
March 18, 2005 0.00
September 18, 2005 1,488,679.61
March 18, 2006 0.00
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 280,675.78
March 18, 2008 0.00
September 18, 2008 1,257,421.87
March 18, 2009 0.00
September 18, 2009 1,344,103.74
March 18, 2010 0.00
September 18, 2010 1,344,103.74
March 18, 2011 1,177,929.46
September 18, 2011 0.00
N173DZ
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $0.00
September 18, 2002 1,496,089.14
March 18, 2003 0.00
September 18, 2003 1,496,652.19
March 18, 2004 0.00
September 18, 2004 1,496,652.18
March 18, 2005 0.00
September 18, 2005 1,496,652.18
March 18, 2006 0.00
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 282,178.93
March 18, 2008 0.00
September 18, 2008 1,264,155.96
March 18, 2009 0.00
September 18, 2009 1,351,302.04
March 18, 2010 0.00
September 18, 2010 1,351,302.05
March 18, 2011 1,184,237.82
September 18, 2011 0.00
N1608
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $1,608,070.46
September 18, 2002 0.00
March 18, 2003 1,608,678.94
September 18, 2003 0.00
March 18, 2004 1,608,678.93
September 18, 2004 0.00
March 18, 2005 1,608,678.93
September 18, 2005 0.00
March 18, 2006 1,608,678.94
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 0.00
March 18, 2008 42,130.35
September 18, 2008 0.00
March 18, 2009 1,452,449.11
September 18, 2009 0.00
March 18, 2010 1,452,449.11
September 18, 2010 0.00
March 18, 2011 2,333,182.82
September 18, 2011 0.00
N1609
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $1,608,070.46
September 18, 2002 0.00
March 18, 2003 1,608,678.94
September 18, 2003 0.00
March 18, 2004 1,608,678.93
September 18, 2004 0.00
March 18, 2005 1,608,678.93
September 18, 2005 0.00
March 18, 2006 1,608,678.94
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 0.00
March 18, 2008 42,130.35
September 18, 2008 0.00
March 18, 2009 1,452,449.11
September 18, 2009 0.00
March 18, 2010 1,452,449.11
September 18, 2010 0.00
March 18, 2011 2,333,182.82
September 18, 2011 0.00
N1610D
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $1,608,070.46
September 18, 2002 0.00
March 18, 2003 1,608,678.94
September 18, 2003 0.00
March 18, 2004 1,608,678.93
September 18, 2004 0.00
March 18, 2005 1,608,678.93
September 18, 2005 0.00
March 18, 2006 1,608,678.94
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 0.00
March 18, 2008 42,130.35
September 18, 2008 0.00
March 18, 2009 1,452,449.11
September 18, 2009 0.00
March 18, 2010 1,452,449.11
September 18, 2010 0.00
March 18, 2011 2,333,182.82
September 18, 2011 0.00
N3731T
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $0.00
September 18, 2002 862,327.37
March 18, 2003 0.00
September 18, 2003 862,653.7
March 18, 2004 0.00
September 18, 2004 862,653.66
March 18, 2005 0.00
September 18, 2005 862,653.67
March 18, 2006 0.00
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 162,646.56
March 18, 2008 0.00
September 18, 2008 722,599.50
March 18, 2009 0.00
September 18, 2009 778,875.46
March 18, 2010 0.00
September 18, 2010 778,875.47
March 18, 2011 697,323.31
September 18, 2011 0.00
N3732J
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $0.00
September 18, 2002 864,573.19
March 18, 2003 0.00
September 18, 2003 864,900.33
March 18, 2004 0.00
September 18, 2004 864,900.33
March 18, 2005 0.00
September 18, 2005 864,900.33
March 18, 2006 0.00
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 163,070.15
March 18, 2008 0.00
September 18, 2008 724,481.41
March 18, 2009 0.00
September 18, 2009 780,903.95
March 18, 2010 0.00
September 18, 2010 780,903.94
March 18, 2011 699,139.39
September 18, 2011 0.00
N3733Z
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $0.00
September 18, 2002 864,573.19
March 18, 2003 0.00
September 18, 2003 864,900.33
March 18, 2004 0.00
September 18, 2004 864,900.33
March 18, 2005 0.00
September 18, 2005 864,900.33
March 18, 2006 0.00
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 163,070.15
March 18, 2008 0.00
September 18, 2008 724,481.41
March 18, 2009 0.00
September 18, 2009 780,903.95
March 18, 2010 0.00
September 18, 2010 780,903.94
March 18, 2011 699,139.39
September 18, 2011 0.00
N3734B
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $0.00
September 18, 2002 864,573.19
March 18, 2003 0.00
September 18, 2003 864,900.33
March 18, 2004 0.00
September 18, 2004 864,900.33
March 18, 2005 0.00
September 18, 2005 864,900.33
March 18, 2006 0.00
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 163,070.15
March 18, 2008 0.00
September 18, 2008 724,481.41
March 18, 2009 0.00
September 18, 2009 780,903.95
March 18, 2010 0.00
September 18, 2010 780,903.94
March 18, 2011 699,139.39
September 18, 2011 0.00
N3735D
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $0.00
September 18, 2002 865,563.99
March 18, 2003 0.00
September 18, 2003 865,891.50
March 18, 2004 0.00
September 18, 2004 865,891.51
March 18, 2005 0.00
September 18, 2005 865,891.51
March 18, 2006 0.00
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 163,257.03
March 18, 2008 0.00
September 18, 2008 725,311.67
March 18, 2009 0.00
September 18, 2009 781,798.86
March 18, 2010 0.00
September 18, 2010 781,798.85
March 18, 2011 699,940.62
September 18, 2011 0.00
N3736C
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $0.00
September 18, 2002 865,563.99
March 18, 2003 0.00
September 18, 2003 865,891.50
March 18, 2004 0.00
September 18, 2004 865,891.51
March 18, 2005 0.00
September 18, 2005 865,891.51
March 18, 2006 0.00
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 163,257.03
March 18, 2008 0.00
September 18, 2008 725,311.67
March 18, 2009 0.00
September 18, 2009 781,798.86
March 18, 2010 0.00
September 18, 2010 781,798.85
March 18, 2011 699,940.62
September 18, 2011 0.00
N3737C
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $0.00
September 18, 2002 865,563.99
March 18, 2003 0.00
September 18, 2003 865,891.50
March 18, 2004 0.00
September 18, 2004 865,891.51
March 18, 2005 0.00
September 18, 2005 865,891.51
March 18, 2006 0.00
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 163,257.03
March 18, 2008 0.00
September 18, 2008 725,311.67
March 18, 2009 0.00
September 18, 2009 781,798.86
March 18, 2010 0.00
September 18, 2010 781,798.85
March 18, 2011 699,940.62
September 18, 2011 0.00
N3738B
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $0.00
September 18, 2002 865,563.99
March 18, 2003 0.00
September 18, 2003 865,891.50
March 18, 2004 0.00
September 18, 2004 865,891.51
March 18, 2005 0.00
September 18, 2005 865,891.51
March 18, 2006 0.00
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 163,257.03
March 18, 2008 0.00
September 18, 2008 725,311.67
March 18, 2009 0.00
September 18, 2009 781,798.86
March 18, 2010 0.00
September 18, 2010 781,798.85
March 18, 2011 699,940.62
September 18, 2011 0.00
N3739P
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $0.00
September 18, 2002 865,563.99
March 18, 2003 0.00
September 18, 2003 865,891.50
March 18, 2004 0.00
September 18, 2004 865,891.51
March 18, 2005 0.00
September 18, 2005 865,891.51
March 18, 2006 0.00
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 163,257.03
March 18, 2008 0.00
September 18, 2008 725,311.67
March 18, 2009 0.00
September 18, 2009 781,798.86
March 18, 2010 0.00
September 18, 2010 781,798.85
March 18, 2011 699,940.62
September 18, 2011 0.00
N3740C
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $865,563.99
September 18, 2002 0.00
March 18, 2003 865,891.50
September 18, 2003 0.00
March 18, 2004 865,891.51
September 18, 2004 0.00
March 18, 2005 865,891.51
September 18, 2005 0.00
March 18, 2006 865,891.51
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 0.00
March 18, 2008 22,677.19
September 18, 2008 0.00
March 18, 2009 781,798.86
September 18, 2009 0.00
March 18, 2010 781,798.85
September 18, 2010 0.00
March 18, 2011 1,255,864.76
September 18, 2011 0.00
N3741S
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $888,126.83
September 18, 2002 0.00
March 18, 2003 888,463.80
September 18, 2003 0.00
March 18, 2004 888,463.80
September 18, 2004 .00
March 18, 2005 888,463.80
September 18, 2005 0.00
March 18, 2006 888,463.80
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 0.00
March 18, 2008 20,155.85
September 18, 2008 0.00
March 18, 2009 802,179.00
September 18, 2009 0.00
March 18, 2010 802,179.00
September 18, 2010 0.00
March 18, 2011 1,296,194.42
September 18, 2011 0.00
N3742C
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $890,423.46
September 18, 2002 0.00
March 18, 2003 890,770.30
September 18, 2003 0.00
March 18, 2004 890,770.30
September 18, 2004 0.00
March 18, 2005 890,770.30
September 18, 2005 0.00
March 18, 2006 890,770.30
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 0.00
March 18, 2008 20,208.16
September 18, 2008 0.00
March 18, 2009 804,261.50
September 18, 2009 0.00
March 18, 2010 804,261.50
September 18, 2010 0.00
March 18, 2011 1,299,559.42
September 18, 2011 0.00
N3743H
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $890,423.46
September 18, 2002 0.00
March 18, 2003 890,770.30
September 18, 2003 0.00
March 18, 2004 890,770.30
September 18, 2004 0.00
March 18, 2005 890,770.30
September 18, 2005 0.00
March 18, 2006 890,770.30
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 0.00
March 18, 2008 20,208.16
September 18, 2008 0.00
March 18, 2009 804,261.50
September 18, 2009 0.00
March 18, 2010 804,261.50
September 18, 2010 0.00
March 18, 2011 1,299,559.42
September 18, 2011 0.00
N3744F
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $896,690.58
September 18, 2002 0.00
March 18, 2003 897,030.80
September 18, 2003 0.00
March 18, 2004 897,030.80
September 18, 2004 0.00
March 18, 2005 897,030.80
September 18, 2005 0.00
March 18, 2006 897,030.80
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 0.00
March 18, 2008 20,350.20
September 18, 2008 0.00
March 18, 2009 809,914.00
September 18, 2009 0.00
March 18, 2010 809,914.00
September 18, 2010 0.00
March 18, 2011 1,308,692.96
September 18, 2011 0.00
N3745B
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $898,996.21
September 18, 2002 0.00
March 18, 2003 899,337.30
September 18, 2003 0.00
March 18, 2004 899,337.30
September 18, 2004 0.00
March 18, 2005 899,337.30
September 18, 2005 0.00
March 18, 2006 899,337.30
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 0.00
March 18, 2008 20,402.52
September 18, 2008 0.00
March 18, 2009 811,996.50
September 18, 2009 0.00
March 18, 2010 811,996.50
September 18, 2010 0.00
March 18, 2011 1,312,057.95
September 18, 2011 0.00
N3747D
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $896,690.58
September 18, 2002 0.00
March 18, 2003 897,030.80
September 18, 2003 0.00
March 18, 2004 897,030.80
September 18, 2004 0.00
March 18, 2005 897,030.80
September 18, 2005 0.00
March 18, 2006 897,030.80
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 0.00
March 18, 2008 20,350.20
September 18, 2008 0.00
March 18, 2009 809,914.00
September 18, 2009 0.00
March 18, 2010 809,914.00
September 18, 2010 0.00
March 18, 2011 1,308,692.96
September 18, 2011 0.00
N685DA
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $833,252.31
September 18, 2002 0.00
March 18, 2003 833,563.32
September 18, 2003 0.00
March 18, 2004 833,563.33
September 18, 2004 0.00
March 18, 2005 833,563.32
September 18, 2005 0.00
March 18, 2006 833,563.33
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 0.00
March 18, 2008 36,431.39
September 18, 2008 0.00
March 18, 2009 752,610.28
September 18, 2009 0.00
March 18, 2010 752,610.29
September 18, 2010 0.00
March 18, 2011 1,351,754.70
September 18, 2011 0.00
N686DA
----------
SCHEDULE 1-A to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTE
PRINCIPAL PAYMENTS
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENTS
------------------ -------------------
March 18, 2002 $0.00
September 18, 2002 856,353.56
March 18, 2003 0.00
September 18, 2003 856,673.20
March 18, 2004 0.00
September 18, 2004 856,673.21
March 18, 2005 0.00
September 18, 2005 856,673.20
March 18, 2006 0.00
September 18, 2006 0.00
March 18, 2007 0.00
September 18, 2007 161,514.61
March 18, 2008 0.00
September 18, 2008 732,600.03
March 18, 2009 0.00
September 18, 2009 773,475.80
March 18, 2010 0.00
September 18, 2010 773,475.81
March 18, 2011 655,890.00
September 18, 2011 0.00
SCHEDULE I-B to
TRUST SUPPLEMENT NO. 2001-1A-1
AGGREGATE EQUIPMENT NOTE PRINCIPAL PAYMENTS
PAYMENT DATE SCHEDULED PRINCIPAL PAYMENTS
------------ ----------------------------
March 18, 2002 $19,553,275.50
September 18, 2002 $18,051,628.65
March 18, 2003 $19,560,668.65
September 18, 2003 $18,058,435.47
March 18, 2004 $19,560,668.64
September 18, 2004 $18,058,435.49
March 18, 2005 $19,560,668.63
September 18, 2005 $18,058,435.51
March 18, 2006 $19,560,668.67
September 18, 2006 $ 0.00
March 18, 2007 $ 0.00
September 18, 2007 $ 3,404,752.27
March 18, 2008 $ 531,356.51
September 18, 2008 $15,207,594.37
March 18, 2009 $17,660.998.23
September 18, 2009 $16,304,657.25
March 18, 2010 $17,660,998.23
September 18, 2010 $16,304,657.22
March 18, 2011 $42,902,100.71
September 18, 2011 $ 0.00
SCHEDULE II to
TRUST SUPPLEMENT NO. 2001-1A-1
EQUIPMENT NOTES,
PRINCIPAL AMOUNTS AND MATURITIES
EQUIPMENT NOTES PRINCIPAL AMOUNT MATURITY
--------------- ---------------- --------
Series 2001-1 Equipment Note $6,590,608.67 March 18, 2011
(N3731T))
Series 2001-1 Equipment Note $6,607,773.02 March 18, 2011
(N3732J)
Series 2001-1 Equipment Note $6,607,773.02 March 18, 2011
(N3733Z)
Series 2001-1 Equipment Note $6,607,773.02 March 18, 2011
(N3734B)
Series 2001-1 Equipment Note $6,615,345.54 March 18, 2011
(N3735D)
Series 2001-1 Equipment Note $6,615,345.54 March 18, 2011
(N3736C)
Series 2001-1 Equipment Note $6,615,345.54 March 18, 2011
(N3737C)
Series 2001-1 Equipment Note $6,615,345.54 March 18, 2011
(N3738B)
Series 2001-1 Equipment Note $6,615,345.54 March 18, 2011
(N3739P)
Series 2001-1 Equipment Note $7,171,269.68 March 18, 2011
(N3740C)
Series 2001-1 Equipment Note $7,362,690.30 March 18, 2011
(N3741S)
Series 2001-1 Equipment Note $7,381,804.24 March 18, 2011
(N3742C)
Series 2001-1 Equipment Note $7,381,804.24 March 18, 2011
(N3743H)
Series 2001-1 Equipment Note $7,433,684.94 March 18, 2011
(N3744F)
Series 2001-1 Equipment Note $7,452,798.88 March 18, 2011
(N3745B)
Series 2001-1 Equipment Note $7,433,684.94 March 18, 2011
(N3747D)
Series 2001-1 Equipment Note $7,060,912.27 March 18, 2011
(N685DA)
Series 2001-1 Equipment Note $6,523,329.42 March 18, 2011
(N686DA)
Series 2001-1 Equipment Note $8,079,194.30 March 18, 2011
(N687DL)
Series 2001-1 Equipment Note $8,079,194.30 March 18, 2011
(N688DL)
Series 2001-1 Equipment Note $8,098,978.73 March 18, 2011
(N689DL)
Series 2001-1 Equipment Note $7,470,372.52 March 18, 2011
(N690DL)
Series 2001-1 Equipment Note $7,527,653.66 March 18, 2011
(N692DL)
Series 2001-1 Equipment Note $7,545,902.52 March 18, 2011
(N693DL)
Series 2001-1 Equipment Note $7,566,685.94 March 18, 2011
(N694DL)
Series 2001-1 Equipment Note $7,587,976.27 March 18, 2011
(N695DL)
Series 2001-1 Equipment Note $8,937,818.72 March 18, 2011
(N6714Q)
Series 2001-1 Equipment Note $9,035,433.24 March 18, 2011
(N6715C)
Series 2001-1 Equipment Note $9,043,624.93 March 18, 2011
(N6716C)
Series 2001-1 Equipment Note $12,229,529.33 March 18, 2011
(N169DZ)
Series 2001-1 Equipment Note $11,358,392.97 March 18, 2011
(N171DZ)
Series 2001-1 Equipment Note $11,358,392.97 March 18, 2011
(N172DZ)
Series 2001-1 Equipment Note $11,419,222.49 March 18, 2011
(N173DZ)
Series 2001-1 Equipment Note $13,322,997.59 March 18, 2011
(N1608)
Series 2001-1 Equipment Note $13,322,997.59 March 18, 2011
(N1609)
Series 2001-1 Equipment Note $13,322,997.59 March 18, 2011
(N1610D)
SCHEDULE III to
TRUST SUPPLEMENT NO. 2001-1A-1
AIRCRAFT
AIRCRAFT
REGISTRATION
AIRCRAFT NUMBER
---------------- ------
Boeing 737-832 N3731T
Boeing 737-832 N3732J
Boeing 737-832 N3733Z
Boeing 737-832 N3734B
Boeing 737-832 N3735D
Boeing 737-832 N3736C
Boeing 737-832 N3737C
Boeing 737-832 N3738B
Boeing 737-832 N3739P
Boeing 737-832 N3740C
Boeing 737-832 N3741S
Boeing 737-832 N3742C
Boeing 737-832 N3743H
Boeing 737-832 N3744F
Boeing 737-832 N3745B
Boeing 737-832 N3747D
Boeing 737-232 N685DA
Boeing 737-232 N686DA
Boeing 737-232 N687DL
Boeing 737-232 N688DL
Boeing 737-232 N689DL
Boeing 737-232 N690DL
Boeing 737-232 N692DL
Boeing 737-232 N693DL
Boeing 737-232 N694DL
Boeing 737-232 N695DL
Boeing 737-232 N6714Q
Boeing 737-232 N6715C
Boeing 737-232 N6716C
Boeing 767-332ER N169DZ
Boeing 767-332ER N171DZ
Boeing 767-332ER N172DZ
Boeing 767-332ER N173DZ
Boeing 767-332ER N1608
Boeing 767-332ER N1609
Boeing 767-332ER N1610D
SCHEDULE IV to
TRUST SUPPLEMENT NO. 2001-1A-1
NOTE DOCUMENTS
Participation Agreement
Indenture and Security Agreement
Series 2001-1 A-1 Equipment Note
Series 2001-1 A-2 Equipment Note
Series 2001-1B Equipment Note
Series 2001-1C Equipment Note
Series 2001-1D Equipment Note
For each of the following aircraft:
AIRCRAFT
REGISTRATION
AIRCRAFT NUMBER
---------------- ------
Boeing 737-832 N3731T
Boeing 737-832 N3732J
Boeing 737-832 N3733Z
Boeing 737-832 N3734B
Boeing 737-832 N3735D
Boeing 737-832 N3736C
Boeing 737-832 N3737C
Boeing 737-832 N3738B
Boeing 737-832 N3739P
Boeing 737-832 N3740C
Boeing 737-832 N3741S
Boeing 737-832 N3742C
Boeing 737-832 N3743H
Boeing 737-832 N3744F
Boeing 737-832 N3745B
Boeing 737-832 N3747D
Boeing 737-232 N685DA
Boeing 737-232 N686DA
Boeing 737-232 N687DL
Boeing 737-232 N688DL
Boeing 737-232 N689DL
Boeing 737-232 N690DL
Boeing 737-232 N692DL
Boeing 737-232 N693DL
Boeing 737-232 N694DL
Boeing 737-232 N695DL
Boeing 737-232 N6714Q
Boeing 737-232 N6715C
Boeing 737-232 N6716C
Boeing 767-332ER N169DZ
Boeing 767-332ER N171DZ
Boeing 767-332ER N172DZ
Boeing 767-332ER N173DZ
Boeing 767-332ER N1608
Boeing 767-332ER N1609
Boeing 767-332ER N1610D
EX-4.(A)(3)
6
de600102-ex4a3.txt
TRUST SUPPLEMENT NO. 2001-1A-2
EXHIBIT 4(a)(3)
EXECUTION COPY
TRUST SUPPLEMENT NO. 2001-1A-2
Dated as of September 17, 2001
between
DELTA AIR LINES, INC.
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Trustee,
To
PASS THROUGH TRUST AGREEMENT
Dated as of November 16, 2000
Delta Air Lines, Inc. Pass Through Trust 2001-1A-2
7.111% Delta Air Lines
Pass Through Certificates,
Series 2001-1A-2
TRUST SUPPLEMENT NO. 2001-1A-2
This TRUST SUPPLEMENT NO. 2001-1A-2, dated as of September 17, 2001
(the "Trust Supplement"), between DELTA AIR LINES, INC., a Delaware corporation,
and STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a
national banking association, as Trustee, to the Pass Through Trust Agreement,
dated as of November 16, 2000, between the Company (such term and other
capitalized terms used herein without definition being defined as provided in
Section 1.01) and the Trustee (the "Basic Agreement").
W I T N E S S E T H:
WHEREAS, the Basic Agreement, which is unlimited as to the aggregate
face amount of Certificates that may be issued and authenticated thereunder, has
heretofore or concurrently herewith been executed and delivered;
WHEREAS, the Company is the Owner of 36 aircraft described in
Schedule II (collectively, the "Aircraft");
WHEREAS, pursuant to each Indenture, the Company will issue the
Equipment Notes, which Equipment Notes are to be secured by a security interest
in all right, title and interest of the Company in and to the Aircraft and
certain other property described therein;
WHEREAS, the Trustee shall hereby declare the creation of the Class
A-2 Trust (as defined below) for the benefit of Holders of the Class A-2
Certificates (as defined below) to be issued in respect of such Class A-2 Trust,
and the initial Holders of the Class A-2 Certificates, as grantors of such Class
A-2 Trust, by their respective acceptances of the Class A-2 Certificates, shall
join in the creation of the Class A-2 Trust with the Trustee;
WHEREAS, all Certificates to be issued by the Class A-2 Trust will
evidence Fractional Undivided Interests in the Class A-2 Trust and will have no
rights, benefits or interests in respect of any other separate Trust or the
property held therein;
WHEREAS, pursuant to the terms and conditions of the Basic
Agreement, as supplemented by this Trust Supplement and the Participation
Agreements, the Trustee on behalf of the Class A-2 Trust shall purchase the
Equipment Notes issued by the Company pursuant to the Indentures relating to the
Aircraft having the identical interest rate as, and final maturity dates not
later than the final Regular Distribution Date of, the Class A-2 Certificates
issued hereunder and shall hold such Equipment Notes in trust for the benefit of
the Class A-2 Certificateholders;
WHEREAS, pursuant to the terms and conditions of the Intercreditor
Agreement referred to in Section 3.01(h) hereof (the "Intercreditor Agreement"),
the Trustee and the other parties thereto will agree to the terms of
subordination set forth therein;
WHEREAS, all of the conditions and requirements necessary to make
this Trust Supplement, when duly executed and delivered, a valid, binding and
legal instrument in accordance with its terms and for the purposes herein
expressed, have been done, performed and fulfilled, and the execution and
delivery of this Trust Supplement in the form and with the terms hereof have
been in all respects duly authorized;
WHEREAS, this Trust Supplement 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. Unless otherwise specified herein or the
context otherwise requires, capitalized terms used but not defined herein shall
have the respective meanings set forth, and shall be construed and interpreted
in the manner described, in the Basic Agreement or, to the extent not defined
therein, in the Intercreditor Agreement.
ARTICLE II
DECLARATION OF TRUST
Section 2.01 Declaration of Trust. The Trustee hereby declares the
creation of a Trust, designated the "Delta Air Lines Pass Through Trust
2001-1A-2" (the "Class A-2 Trust"), for the benefit of the Holders of the Class
A-2 Certificates to be issued in respect of such Class A-2 Trust, and the
initial Holders of the Class A-2 Certificates, as grantors of such Class A-2
Trust, by their respective acceptances of the Class A-2 Certificates, join in
the creation of such Class A-2 Trust with the Trustee. The Trustee, by the
execution and delivery of this Trust Supplement, acknowledges its acceptance of
all right, title and interest in and to the Trust Property to be acquired
pursuant to Section 2.02 of the Basic Agreement and the Participation Agreements
and the Trustee will hold such right, title and interest for the benefit of all
present and future Holders of the Class A-2 Certificates, upon the trusts set
forth in the Basic Agreement and this Trust Supplement.
ARTICLE III
THE CERTIFICATES
Section 3.01 The Certificates. There is hereby created a series of
Certificates to be issued under this Agreement designated as "7.111% Delta Air
Lines Pass Through Certificates, Series 2001-1A-2" (the "Class A-2
Certificates"). Each Class A-2 Certificate represents a Fractional Undivided
Interest in the Class A-2 Trust created hereby. The Class A-2 Certificates shall
be the only instruments evidencing a Fractional Undivided Interest in the Class
A-2 Trust.
The terms and conditions applicable to the Class A-2 Certificates
and the Class A-2 Trust are as follows:
(a) The aggregate face amount of the Class A-2 Certificates that may
be authenticated and delivered under this Agreement (except for Class A-2
Certificates authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Class A-2 Certificates pursuant
to Sections 3.03, 3.04, 3.05 and 3.06 of the Basic Agreement) is
$571,148,000.
(b) The Cut-off Date is October 19, 2001.
(c) The Regular Distribution Dates with respect to any payment of
Scheduled Payments means March 18 and September 18 of each year,
commencing on March 18, 2002, until payment of all of the Scheduled
Payments to be made under the Equipment Notes has been made. The entire
principal amount of the Equipment Notes to be held by the Class A-2 Trust
is scheduled for payment on September 18, 2011.
(d) The Special Distribution Dates with respect to the Class A-2
Certificates means any Business Day on which a Special Payment is to be
distributed pursuant to this Agreement.
(e) The Class A-2 Certificates shall be in the form attached hereto
as Exhibit A, shall be Book-Entry Certificates and shall be subject to the
conditions set forth in the Letter of Representations between the Company
and The Depository Trust Company, as initial Clearing Agency, attached
hereto as Exhibit B.
(f) The proceeds of the Class A-2 Certificates issued by the Class
A-2 Trust shall be used to acquire the Equipment Notes described in
Schedule I, such Equipment Notes to relate to the Aircraft described in
Schedule II and the Note Documents described in Schedule III.
(g) Any Person acquiring or accepting a Class A-2 Certificate or an
interest therein will, by such acquisition or acceptance, be deemed to
represent and warrant to the Company, the Loan Trustees and the Trustee
that either (i) no assets of an employee benefit plan subject to Title I
of ERISA, or of an employee benefit plan or an individual retirement
account subject to Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code"), or any trust established under such plan or account,
have been used to purchase Class A-2 Certificates or an interest therein
or (ii) the purchase and holding of Class A-2 Certificates or interests
therein by such Person is exempt from the prohibited transaction
restrictions of ERISA and the Code pursuant to one or more prohibited
transaction statutory or administrative exemptions.
(h) The Class A-2 Certificates will be subject to the following
Intercreditor Agreement (and to the extent the terms thereof (including
the definitions of defined terms) are inconsistent with the terms of this
Agreement, such Intercreditor Agreement shall control): that certain
Intercreditor Agreement, dated as of the date hereof, among State Street
Bank and Trust Company of Connecticut, National Association, as Trustee
under each Trust (as defined therein), Landesbank Hessen-Thuringen
Girozentrale, as Class A-2 Liquidity Provider, Class A-2 Liquidity
Provider, Class B Liquidity Provider and Class C Liquidity Provider, and
State Street Bank and Trust Company of Connecticut, National Association,
as Subordination Agent thereunder. Potential Purchasers shall have the
rights upon the occurrence of a Triggering Event set forth in Article IV
hereof. The Trustee and, by acceptance of any Class A-2 Certificate, each
Certificateholder thereof, agrees to be bound by all of the provisions of
the Intercreditor Agreement, including the subordination provisions of
Section 9.09 thereof.
(i) The Class A-2 Certificates will have the benefit of the
following Liquidity Facility: that certain Revolving Credit Agreement,
dated as of the date hereof, between State Street Bank and Trust Company
of Connecticut, National Association, as Subordination Agent under the
Intercreditor Agreement, as agent and trustee for the Class A-2 Trust, and
Landesbank Hessen-Thuringen Girozentrale.
(j) Subject to Section 2.02(b) of the Basic Agreement, there will
not be any deposit agreement, escrow agreement or other similar
arrangement prior to delivery of the Aircraft.
(k) The Company may at any time purchase any of the Class A-2
Certificates at any price in the open market and may hold such Class A-2
Certificates to maturity.
(l) The Responsible Party is the Company.
Section 3.02 Delivery of Documents. The Trustee is hereby directed
(i) to execute and deliver the Intercreditor Agreement referred to in Section
3.01(h) of this Trust Supplement in the form delivered to the Trustee by the
Company and (ii) subject to the respective terms thereof, to perform its
obligations thereunder.
ARTICLE IV
DEFAULT
Section 4.01 Purchase Rights of Certificateholders. (a) By
acceptance of its Class A-2 Certificate, each Class A-2 Certificateholder agrees
that at any time after the occurrence and during the continuation of a
Triggering Event,
(i) if the Trustee is then the Controlling Party, each Class A-1
Certificateholder shall have the right to purchase all, but not less than
all, of the Class A-2 Certificates upon ten days' prior written notice to
the Trustee and each other Class A-1 Certificateholder, provided that (A)
if prior to the end of such ten-day period any other Class A-1
Certificateholder notifies such purchasing Class A-1 Certificateholder
that such other Class A-1 Certificateholder wants to participate in such
purchase, then such other Class A-1 Certificateholder may join with the
purchasing Class A-1 Certificateholder to purchase all, but not less than
all, of the Class A-2 Certificates pro rata based on the Fractional
Undivided Interest in the Class A-1 Trust held by each such Class A-1
Certificateholder and (B) if prior to the end of such ten-day period any
other Class A-1 Certificateholder fails to notify the purchasing Class A-1
Certificateholder of such other Class A-1 Certificateholder's desire to
participate in such a purchase, then such other Class A-1
Certificateholder shall lose its right to purchase the Class A-2
Certificates pursuant to this Section 4.01(a)(i); and
(ii) if the Class A-1 Trustee is then the Controlling Party, each
Class A-2 Certificateholder shall have the right to purchase, for the
purchase price set forth in the Class A-1 Trust Agreement all, but not
less than all, of the Class A-1 Certificates upon ten days' prior written
notice to the Class A-1 Trustee and each other Class A-1
Certificateholder, provided that (A) if prior to the end of such ten-day
period any other Class A-2 Certificateholder notifies such purchasing
Class A-2 Certificateholder that such other Class A-2 Certificateholder
wants to participate in such purchase, then such other Class A-2
Certificateholder may join with the purchasing Class A-2 Certificateholder
to purchase all, but not less than all, of the Class A-1 Certificates pro
rata based on the Fractional Undivided Interest in the Class A-2 Trust
held by each such Class A-2 Certificateholder and (B) if prior to the end
of such ten-day period any other Class A-2 Certificateholder fails to
notify the purchasing Class A-2 Certificateholder of such other Class A-2
Certificateholder's desire to participate in such a purchase, then such
other Class A-2 Certificateholder shall lose its right to purchase the
Class A-1 Certificates pursuant to this Section 4.01(a)(ii); and
(iii) each Class B Certificateholder shall have the right (which
shall not expire upon any purchase of the Class A-1 Certificates or the
Class A-2 Certificates pursuant to clause (i) or (ii) above) to purchase
all, but not less than all, of the Class A-1 Certificates and the Class
A-2 Certificates upon ten days' prior written notice to the Trustee, the
Class A-1 Trustee and each other Class B Certificateholder, provided that
(A) if prior to the end of such ten-day period any other Class B
Certificateholder notifies such purchasing Class B Certificateholder that
such other Class B Certificateholder wants to participate in such
purchase, then such other Class B Certificateholder may join with the
purchasing Class B Certificateholder to purchase all, but not less than
all, of the Class A-1 Certificates and the Class A-2 Certificates pro rata
based on the Fractional Undivided Interest in the Class B Trust held by
each such Class B Certificateholder and (B) if prior to the end of such
ten-day period any other Class B Certificateholder fails to notify the
purchasing Class B Certificateholder of such other Class B
Certificateholder's desire to participate in such a purchase, then such
other Class B Certificateholder shall lose its right to purchase the Class
A-1 Certificates and the Class A-2 Certificates pursuant to this Section
4.01(a)(iii); and
(iv) each Class C Certificateholder shall have the right (which
shall not expire upon any purchase of the Class A-1 Certificates or the
Class A-2 Certificates pursuant to clause (i), (ii) or (iii) above) to
purchase all, but not less than all, of the Class A-1 Certificates, the
Class A-2 Certificates and the Class B Certificates upon ten days' prior
written notice to the Trustee, the Class A-1 Trustee, the Class B Trustee
and each other Class C Certificateholder, provided that (A) if prior to
the end of such ten-day period any other Class C Certificateholder
notifies such purchasing Class C Certificateholder that such other Class C
Certificateholder wants to participate in such purchase, then such other
Class C Certificateholder may join with the purchasing Class C
Certificateholder to purchase all, but not less than all, of the Class A-1
Certificates, the Class A-2 Certificates and the Class B Certificates pro
rata based on the Fractional Undivided Interest in the Class C Trust held
by each such Class C Certificateholder and (B) if prior to the end of such
ten-day period any other Class C Certificateholder fails to notify the
purchasing Class C Certificateholder of such other Class C
Certificateholder's desire to participate in such a purchase, then such
other Class C Certificateholder shall lose its right to purchase the Class
A-1 Certificates, the Class A-2 Certificates and the Class B Certificates
pursuant to this Section 4.01(a)(iv); and
(v) each Class D Certificateholder (other than the Company or any of
its Affiliates) shall have the right (which shall not expire upon any
purchase of the Class A-1 Certificates, the Class A-2 Certificates or the
Class B Certificates pursuant to clause (i), (ii), (iii) or (iv) above) to
purchase all, but not less than all, of the Class A-1 Certificates, the
Class A-2 Certificates, the Class B Certificates and the Class C
Certificates upon ten days' prior written notice to the Trustee, the Class
A-1 Trustee, the Class B Trustee, the Class C Trustee and each other Class
D Certificateholder, provided that (A) if prior to the end of such ten-day
period any other Class D Certificateholder (other than the Company or any
of its Affiliates) notifies such purchasing Class D Certificateholder that
such other Class D Certificateholder wants to participate in such
purchase, then such other Class D Certificateholder may join with the
purchasing Class D Certificateholder to purchase all, but not less than
all, of the Class A-1 Certificates, the Class A-2 Certificates, the Class
B Certificates and the Class C Certificates pro rata based on the
Fractional Undivided Interest in the Class D Trust held by each such Class
D Certificateholder and (B) if prior to the end of such ten-day period any
other Class D Certificateholder fails to notify the purchasing Class D
Certificateholder of such other Class D Certificateholder's desire to
participate in such a purchase, then such other Class D Certificateholder
shall lose its right to purchase the Class A-1 Certificates, the Class A-2
Certificates, the Class B Certificates and the Class C Certificates
pursuant to this Section 4.01(a)(v).
The purchase price with respect to the Class A-2 Certificates shall
be equal to the Pool Balance of the Class A-2 Certificates, together with
accrued and unpaid interest in respect thereof to the date of such purchase,
without premium, but including any other amounts then due and payable to the
Class A-2 Certificateholders under this Agreement, the Intercreditor Agreement
or any Note Document or on or in respect of the Class A-2 Certificates;
provided, however, that if such purchase occurs after the Record Date relating
to any Distribution Date, such purchase price shall be reduced by the amount to
be distributed hereunder on such related Distribution Date (which deducted
amounts shall remain distributable to, and may be retained by, the Class A-2
Certificateholders as of such Record Date); provided, further that no such
purchase of Class A-2 Certificates pursuant to clause (iii), (iv) or (v) above
shall be effective unless the purchaser(s) shall certify to the Trustee that
contemporaneously with such purchase, such purchaser(s) is purchasing, pursuant
to the terms of this Agreement and the Intercreditor Agreement, all of the Class
A-1 Certificates, the Class A-2 Certificates, the Class B Certificates and the
Class C Certificates that are senior to the securities held by such
purchaser(s). Each payment of the purchase price of the Class A-2 Certificates
referred to in the first sentence hereof shall be made to an account or accounts
designated by the Trustee and each such purchase shall be subject to the terms
of this Section 4.01(a). Each Class A-2 Certificateholder agrees by its
acceptance of its Certificate that it will, upon payment from such Class A-1
Certificateholder(s), Class B Certificateholder(s), Class C Certificateholder(s)
or Class D Certificateholder(s), as the case may be, of the purchase price set
forth in the first sentence of this paragraph, forthwith sell, assign, transfer
and convey to the purchaser(s) thereof (without recourse, representation or
warranty of any kind except as to its own acts) all of the right, title,
interest and obligation of such Class A-2 Certificateholder in this Agreement,
the Intercreditor Agreement, the Liquidity Facility, the Note Documents and all
Class A-2 Certificates held by such Class A-2 Certificateholder (excluding all
right, title and interest under any of the foregoing to the extent such right,
title or interest is with respect to an obligation not then due and payable as
respects any action or inaction or state of affairs occurring prior to such
sale) and the purchaser(s) shall assume all of such Class A-2
Certificateholder's obligations under this Agreement, the Intercreditor
Agreement, the Liquidity Facility, the Note Documents and all such Class A-2
Certificates. The Class A-2 Certificates will be deemed to be purchased on the
date payment of the purchase price is made notwithstanding the failure of any
Class A-2 Certificateholder to deliver any Class A-2 Certificate and, upon such
a purchase, (i) the only rights of the Class A-2 Certificateholders will be to
deliver the Class A-2 Certificates and (ii) if the purchaser(s) shall so
request, each such Class A-2 Certificateholder will comply with all the
provisions of Section 3.04 of the Basic Agreement to enable new Class A-2
Certificates to be issued to the purchaser(s) in such denominations as it shall
request. All charges and expenses in connection with the issuance of any such
new Class A-2 Certificates shall be borne by the purchaser(s) thereof.
As used in this Section 4.01(a), the terms "Class A-1 Certificate",
"Class A-1 Certificateholder", "Class A-1 Trust", "Class A-1 Trust Agreement",
"Class A-1 Trustee", "Class A-2 Certificateholder", "Class B Certificate",
"Class B Certificateholder", "Class B Trust", "Class B Trustee", "Class C
Certificate", "Class C Certificateholder", "Class C Trust", "Class C Trustee",
"Class D Certificate", "Class D Certificateholder", "Class D Trust" and "Class D
Trustee" shall have the respective meanings assigned to such terms in the
Intercreditor Agreement.
(b) This Section 4.01 supplements and, to the extent inconsistent
with any provision of Section 6.01(a) of the Basic Agreement, replaces the
provisions of Section 6.01(a) of the Basic Agreement. Notwithstanding anything
to the contrary set forth herein or in any Operative Agreement, the provisions
of this Section 4.01 may not be amended in any manner without the consent of
each Class A-1 Certificateholder, Class A-2 Certificateholder, Class B
Certificateholder, Class C Certificateholder or Class D Certificateholder (other
than the Company or any of its Affiliates) that would be adversely affected
thereby.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01 Final Termination Date. The respective obligations and
responsibilities of the Company and the Trustee created hereby and the Class A-2
Trust created hereby shall terminate upon the distribution to all
Certificateholders of Class A-2 Certificates and the Trustee of all amounts
required to be distributed to them pursuant to this Agreement and the
disposition of all property held as part of the Trust Property; provided,
however, that in no event shall the Trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
Joseph P. Kennedy, Sr., the father of John F. Kennedy, former President of the
United States, living on the date of this Trust Supplement.
Section 5.02 Basic Agreement Ratified. Except and so far as herein
expressly provided, all of the provisions, terms and conditions of the Basic
Agreement are in all respects ratified and confirmed; and the Basic Agreement
and this Trust Supplement shall be taken, read and construed as one and the same
instrument.
Section 5.03 Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN THE
STATE OF NEW YORK AND THIS AGREEMENT AND THE CLASS A-2 CERTIFICATES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER AND THEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 5.04 Counterparts. This Trust Supplement may be executed in
any number of counterparts (and each of the parties shall not be required to
execute the same counterpart). Each counterpart of this Trust Supplement
including a signature page or pages executed by each of the parties hereto shall
be an original counterpart of this Trust Supplement, but all of such
counterparts together shall constitute one instrument.
Section 5.05 Intention of Parties. The parties hereto intend that
the Class A-2 Trust be classified for United States federal income tax purposes
as a grantor trust under Part 1E of Chapter 1J of Subtitle A of the Internal
Revenue Code of 1986, as amended, and not as a trust or association taxable as a
corporation or as a partnership. Each Certificateholder of a Class A-2
Certificate, by its acceptance of its Class A-2 Certificate or a beneficial
interest therein, agrees to treat the Class A-2 Trust as a grantor trust for all
United States federal, state and local income tax purposes. The Trustee shall
not be authorized or empowered to do anything that would cause the Class A-2
Trust to fail to qualify as a grantor trust for such tax purposes (including as
subject to this restriction, acquiring any Aircraft by bidding the Equipment
Notes relating thereto or otherwise, or taking any action with respect to any
such Aircraft once acquired).
IN WITNESS WHEREOF, the parties have caused this Trust Supplement to
be duly executed by their respective officers thereto duly authorized as of the
date first written above.
DELTA AIR LINES, INC.
By:
-------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------
Name:
Title:
EXHIBIT A to
TRUST SUPPLEMENT NO. 2001-1A-2
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.
DELTA AIR LINES, INC. PASS THROUGH TRUST 2001-1A-2
7.111% DELTA AIR LINES PASS THROUGH CERTIFICATE, SERIES 2001-1A-2
Final Expected Regular Distribution Date: September 18, 2011
evidencing a fractional undivided interest in a Trust, the
property of which includes or will include, among other
things, certain Equipment Notes each secured by an Aircraft
owned by Delta Air Lines, Inc.
Certificate No. ______ $____________ Fractional CUSIP No. 247367AT2
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 Delta
Air Lines Pass Through Trust, Series 2001-1A-2 (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
November 16, 2000 (the "Basic Agreement"), as supplemented by Trust Supplement
No. 2001-1A-2 thereto dated September 17, 2001 (collectively, the "Agreement"),
between the Trustee and Delta Air Lines, Inc., a corporation incorporated under
Delaware law (the "Company"), a summary of certain of the pertinent provisions
of which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the
Agreement. This Certificate is one of the duly authorized Certificates
designated as "7.111% Delta Air Lines Pass Through Certificates, Series
2001-1A-2" (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 all of the provisions of the Agreement and
the Intercreditor Agreement, including the subordination provisions of Section
9.09 of the Intercreditor Agreement. The property of the Trust includes or will
include certain Equipment Notes and all rights of the Trust and the Trustee, on
behalf of the Trust, to receive any payments under the Intercreditor Agreement
or the Liquidity Facility (the "Trust Property"). Each issue of the Equipment
Notes is or will be secured by, among other things, a security interest in
certain Aircraft owned by the Company.
-----------------
* This legend to appear on Book-Entry Certificates to be deposited with The
Depository Trust Company.
The Certificates represent Fractional Undivided Interests in the
Trust and the Trust Property, and will 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 the
Intercreditor Agreement, from funds then available to the Trustee, there will be
distributed on each March 18 and September 18 (a "Regular Distribution Date"),
commencing on March 18, 2002, 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 the Intercreditor Agreement, in the event that Special Payments on
the Equipment Notes are received by the Trustee, from funds then available to
the Trustee, there shall be distributed on the applicable Special Distribution
Date, to the Person in whose name this Certificate is registered at the close of
business on the 15th day preceding the Special Distribution Date, an amount in
respect of such Special Payments on the Equipment Notes, the receipt of which
has been confirmed by the Trustee, equal to the product of the percentage
interest in the Trust evidenced by this Certificate and an amount equal to the
sum of such Special Payments so received. If a Regular Distribution Date or
Special Distribution Date is not a Business Day, distribution shall be made on
the immediately following Business Day with the same force and effect as if made
on such Regular Distribution Date or Special Distribution Date and no interest
shall accrue during the intervening period. The Trustee shall mail notice of
each Special Payment and the Special Distribution Date therefor to the
Certificateholder of this Certificate.
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 that
with respect to Certificates registered on the Record Date in the name of a
Clearing Agency (or its nominee), such distributions shall be made by wire
transfer. 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, the Trustee or any
Loan 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 any payment or distribution to such Certificateholder
pursuant to the terms of the Agreement and that it will not have any recourse to
the Company, the Trustee or the Loan Trustees except as otherwise expressly
provided in the Agreement, in any Note Document or in the Intercreditor
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 therein, 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 Company, the Trustee, the Registrar and any Paying Agent shall
deem and treat the person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Company, the Trustee, the
Registrar or 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.
Any Person acquiring or accepting this Certificate or an interest
herein will, by such acquisition or acceptance, be deemed to represent and
warrant to the Company, the Loan Trustees and the Trustee that either: (i) no
assets of an employee benefit plan subject to Title I of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or of an employee benefit
plan or an individual retirement account subject to Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), or any trust established under
such plan or account, have been used to purchase this Certificate or an interest
herein or (ii) the purchase and holding of this Certificate or interest herein
by such Person are exempt from the prohibited transaction restrictions of ERISA
and the Code pursuant to one or more prohibited transaction statutory or
administrative exemptions.
THIS CERTIFICATE AND THE AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, 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.
DELTA AIR LINES, INC. PASS THROUGH TRUST
2001-1A-2
By: STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL
ASSOCIATION,
as Trustee
By:
-------------------------------
Title:
Dated:
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:
-------------------------------
Authorized Officer
EXHIBIT B to
TRUST SUPPLEMENT NO. 2001-1A-2
[DTC Letter of Representations]
[Intentionally Omitted]
SCHEDULE I to
TRUST SUPPLEMENT NO. 2001-1A-2
EQUIPMENT NOTES,
PRINCIPAL AMOUNTS AND MATURITIES
EQUIPMENT NOTES PRINCIPAL AMOUNT MATURITY
--------------- ---------------- --------
N3731T $13,427,058.00 September 18, 2011
N3732J $13,462,026.98 September 18, 2011
N3733Z $13,462,026.98 September 18, 2011
N3734B $13,462,026.98 September 18, 2011
N3735D $13,477,454.46 September 18, 2011
N3736C $13,477,454.46 September 18, 2011
N3737C $13,477,454.46 September 18, 2011
N3738B $13,477,454.46 September 18, 2011
N3739P $13,477,454.46 September 18, 2011
N3740C $12,921,530.32 September 18, 2011
N3741S $13,309,709.70 September 18, 2011
N3742C $13,344,262.43 September 18, 2011
N3743H $13,344,262.43 September 18, 2011
N3744F $13,438,048.39 September 18, 2011
N3745B $13,472,601.12 September 18, 2011
N3747D $13,438,048.39 September 18, 2011
N685DA $12,019,887.73 September 18, 2011
N686DA $13,086,470.58 September 18, 2011
N687DL $14,462,339.03 September 18, 2011
N688DL $14,462,339.03 September 18, 2011
N689DL $14,497,754.60 September 18, 2011
N690DL $15,126,360.81 September 18, 2011
N692DL $15,242,346.34 September 18, 2011
N693DL $15,279,297.48 September 18, 2011
N694DL $15,321,380.73 September 18, 2011
N695DL $15,364,490.40 September 18, 2011
N6714Q $16,104,581.28 September 18, 2011
N6715C $16,333,566.76 September 18, 2011
N6716C $16,348,375.07 September 18, 2011
N169DZ $21,891,737.34 September 18, 2011
N171DZ $22,999,007.03 September 18, 2011
N172DZ $22,999,007.03 September 18, 2011
N173DZ $23,122,177.51 September 18, 2011
N1608 $24,006,002.41 September 18, 2011
N1609 $24,006,002.41 September 18, 2011
N1610D $24,006,002.41 September 18, 2011
SCHEDULE II to
TRUST SUPPLEMENT NO. 2001-1A-2
AIRCRAFT
AIRCRAFT
REGISTRATION
AIRCRAFT NUMBER
-------- ------------
Boeing 737-832 N3731T
Boeing 737-832 N3732J
Boeing 737-832 N3733Z
Boeing 737-832 N3734B
Boeing 737-832 N3735D
Boeing 737-832 N3736C
Boeing 737-832 N3737C
Boeing 737-832 N3738B
Boeing 737-832 N3739P
Boeing 737-832 N3740C
Boeing 737-832 N3741S
Boeing 737-832 N3742C
Boeing 737-832 N3743H
Boeing 737-832 N3744F
Boeing 737-832 N3745B
Boeing 737-832 N3747D
Boeing 737-232 N685DA
Boeing 737-232 N686DA
Boeing 737-232 N687DL
Boeing 737-232 N688DL
Boeing 737-232 N689DL
Boeing 737-232 N690DL
Boeing 737-232 N692DL
Boeing 737-232 N693DL
Boeing 737-232 N694DL
Boeing 737-232 N695DL
Boeing 737-232 N6714Q
Boeing 737-232 N6715C
Boeing 737-232 N6716C
Boeing 767-332ER N169DZ
Boeing 767-332ER N171DZ
Boeing 767-332ER N172DZ
Boeing 767-332ER N173DZ
Boeing 767-332ER N1608
Boeing 767-332ER N1609
Boeing 767-332ER N1610D
SCHEDULE III to
TRUST SUPPLEMENT NO. 2001-1A-2
NOTE DOCUMENTS
Participation Agreement
Indenture and Security Agreement
Series 2001-1 A-1 Equipment Note
Series 2001-1 A-2 Equipment Note
Series 2001-1B Equipment Note
Series 2001-1C Equipment Note
Series 2001-1D Equipment Note
For each of the following aircraft:
AIRCRAFT
REGISTRATION
AIRCRAFT NUMBER
-------- ------------
Boeing 737-832 N3731T
Boeing 737-832 N3732J
Boeing 737-832 N3733Z
Boeing 737-832 N3734B
Boeing 737-832 N3735D
Boeing 737-832 N3736C
Boeing 737-832 N3737C
Boeing 737-832 N3738B
Boeing 737-832 N3739P
Boeing 737-832 N3740C
Boeing 737-832 N3741S
Boeing 737-832 N3742C
Boeing 737-832 N3743H
Boeing 737-832 N3744F
Boeing 737-832 N3745B
Boeing 737-832 N3747D
Boeing 737-232 N685DA
Boeing 737-232 N686DA
Boeing 737-232 N687DL
Boeing 737-232 N688DL
Boeing 737-232 N689DL
Boeing 737-232 N690DL
Boeing 737-232 N692DL
Boeing 737-232 N693DL
Boeing 737-232 N694DL
Boeing 737-232 N695DL
Boeing 737-232 N6714Q
Boeing 737-232 N6715C
Boeing 737-232 N6716C
Boeing 767-332ER N169DZ
Boeing 767-332ER N171DZ
Boeing 767-332ER N172DZ
Boeing 767-332ER N173DZ
Boeing 767-332ER N1608
Boeing 767-332ER N1609
Boeing 767-332ER N1610D
EX-4.(A)(5)
7
de600102-ex4a5.txt
TRUST SUPPLEMENT NO. 2001-1B
EXHIBIT 4(a)(5)
EXECUTION COPY
TRUST SUPPLEMENT NO. 2001-1B
Dated as of September 17, 2001
between
DELTA AIR LINES, INC.
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Trustee,
To
PASS THROUGH TRUST AGREEMENT
Dated as of November 16, 2000
Delta Air Lines, Inc. Pass Through Trust 2001-1B
7.711% Delta Air Lines
Pass Through Certificates,
Series 2001-1B
TRUST SUPPLEMENT NO. 2001-1B
This TRUST SUPPLEMENT NO. 2001-1B, dated as of September 17, 2001
(the "Trust Supplement"), between DELTA AIR LINES, INC., a Delaware corporation,
and STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a
national banking association, as Trustee, to the Pass Through Trust Agreement,
dated as of November 16, 2000, between the Company (such term and other
capitalized terms used herein without definition being defined as provided in
Section 1.01) and the Trustee (the "Basic Agreement").
W I T N E S S E T H:
WHEREAS, the Basic Agreement, which is unlimited as to the aggregate
face amount of Certificates that may be issued and authenticated thereunder, has
heretofore or concurrently herewith been executed and delivered;
WHEREAS, the Company is the Owner of 36 aircraft described in
Schedule II (collectively, the "Aircraft");
WHEREAS, pursuant to each Indenture, the Company will issue the
Equipment Notes, which Equipment Notes are to be secured by a security interest
in all right, title and interest of the Company in and to the Aircraft and
certain other property described therein;
WHEREAS, the Trustee shall hereby declare the creation of the Class
B Trust (as defined below) for the benefit of Holders of the Class B
Certificates (as defined below) to be issued in respect of such Class B Trust,
and the initial Holders of the Class B Certificates, as grantors of such Class B
Trust, by their respective acceptances of the Class B Certificates, shall join
in the creation of the Class B Trust with the Trustee;
WHEREAS, all Certificates to be issued by the Class B Trust will
evidence Fractional Undivided Interests in the Class B Trust and will have no
rights, benefits or interests in respect of any other separate Trust or the
property held therein;
WHEREAS, pursuant to the terms and conditions of the Basic
Agreement, as supplemented by this Trust Supplement and the Participation
Agreements, the Trustee on behalf of the Class B Trust shall purchase the
Equipment Notes issued by the Company pursuant to the Indentures relating to the
Aircraft having the identical interest rate as, and final maturity dates not
later than the final Regular Distribution Date of, the Class B Certificates
issued hereunder and shall hold such Equipment Notes in trust for the benefit of
the Class B Certificateholders;
WHEREAS, pursuant to the terms and conditions of the Intercreditor
Agreement referred to in Section 3.01(h) hereof (the "Intercreditor Agreement"),
the Trustee and the other parties thereto will agree to the terms of
subordination set forth therein;
WHEREAS, all of the conditions and requirements necessary to make
this Trust Supplement, when duly executed and delivered, a valid, binding and
legal instrument in accordance with its terms and for the purposes herein
expressed, have been done, performed and fulfilled, and the execution and
delivery of this Trust Supplement in the form and with the terms hereof have
been in all respects duly authorized;
WHEREAS, this Trust Supplement 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. Unless otherwise specified herein or the
context otherwise requires, capitalized terms used but not defined herein shall
have the respective meanings set forth, and shall be construed and interpreted
in the manner described, in the Basic Agreement or, to the extent not defined
therein, in the Intercreditor Agreement.
ARTICLE II
DECLARATION OF TRUST
Section 2.01 Declaration of Trust. The Trustee hereby declares the
creation of a Trust, designated the "Delta Air Lines Pass Through Trust 2001-1B"
(the "Class B Trust"), for the benefit of the Holders of the Class B
Certificates to be issued in respect of such Class B Trust, and the initial
Holders of the Class B Certificates, as grantors of such Class B Trust, by their
respective acceptances of the Class B Certificates, join in the creation of such
Class B Trust with the Trustee. The Trustee, by the execution and delivery of
this Trust Supplement, acknowledges its acceptance of all right, title and
interest in and to the Trust Property to be acquired pursuant to Section 2.02 of
the Basic Agreement and the Participation Agreements and the Trustee will hold
such right, title and interest for the benefit of all present and future Holders
of the Class B Certificates, upon the trusts set forth in the Basic Agreement
and this Trust Supplement.
ARTICLE III
THE CERTIFICATES
Section 3.01 The Certificates. There is hereby created a series of
Certificates to be issued under this Agreement designated as "7.711% Delta Air
Lines Pass Through Certificates, Series 2001-1B" (the "Class B Certificates").
Each Class B Certificate represents a Fractional Undivided Interest in the Class
B Trust created hereby. The Class B Certificates shall be the only instruments
evidencing a Fractional Undivided Interest in the Class B Trust.
The terms and conditions applicable to the Class B Certificates and
the Class B Trust are as follows:
(a) The aggregate face amount of the Class B Certificates that may
be authenticated and delivered under this Agreement (except for Class B
Certificates authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Class B Certificates pursuant to
Sections 3.03, 3.04, 3.05 and 3.06 of the Basic Agreement) is
$207,070,000.
(b) The Cut-off Date is October 19, 2001.
(c) The Regular Distribution Dates with respect to any payment of
Scheduled Payments means March 18 and September 18 of each year,
commencing on March 18, 2002, until payment of all of the Scheduled
Payments to be made under the Equipment Notes has been made. The entire
principal amount of the Equipment Notes to be held by the Class B Trust is
scheduled for payment on September 18, 2011.
(d) The Special Distribution Dates with respect to the Class B
Certificates means any Business Day on which a Special Payment is to be
distributed pursuant to this Agreement.
(e) The Class B Certificates shall be in the form attached hereto as
Exhibit A, shall be Book-Entry Certificates and shall be subject to the
conditions set forth in the Letter of Representations between the Company
and The Depository Trust Company, as initial Clearing Agency, attached
hereto as Exhibit B.
(f) The proceeds of the Class B Certificates issued by the Class B
Trust shall be used to acquire the Equipment Notes described in Schedule
I, such Equipment Notes to relate to the Aircraft described in Schedule II
and the Note Documents described in Schedule III.
(g) Any Person acquiring or accepting a Class B Certificate or an
interest therein will, by such acquisition or acceptance, be deemed to
represent and warrant to the Company, the Loan Trustees and the Trustee
that either (i) no assets of an employee benefit plan subject to Title I
of ERISA, or of an employee benefit plan or an individual retirement
account subject to Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code"), or any trust established under such plan or account,
have been used to purchase Class B Certificates or an interest therein or
(ii) the purchase and holding of Class B Certificates or interests therein
by such Person is exempt from the prohibited transaction restrictions of
ERISA and the Code pursuant to one or more prohibited transaction
statutory or administrative exemptions.
(h) The Class B Certificates will be subject to the following
Intercreditor Agreement (and to the extent the terms thereof (including
the definitions of defined terms) are inconsistent with the terms of this
Agreement, such Intercreditor Agreement shall control): that certain
Intercreditor Agreement, dated as of the date hereof, among State Street
Bank and Trust Company of Connecticut, National Association, as Trustee
under each Trust (as defined therein), Landesbank Hessen-Thuringen
Girozentrale, as Class B Liquidity Provider, Class A-2 Liquidity Provider,
Class B Liquidity Provider and Class C Liquidity Provider, and State
Street Bank and Trust Company of Connecticut, National Association, as
Subordination Agent thereunder. Potential Purchasers shall have the rights
upon the occurrence of a Triggering Event set forth in Article IV hereof.
The Trustee and, by acceptance of any Class B Certificate, each
Certificateholder thereof, agrees to be bound by all of the provisions of
the Intercreditor Agreement, including the subordination provisions of
Section 9.09 thereof.
(i) The Class B Certificates will have the benefit of the following
Liquidity Facility: that certain Revolving Credit Agreement, dated as of
the date hereof, between State Street Bank and Trust Company of
Connecticut, National Association, as Subordination Agent under the
Intercreditor Agreement, as agent and trustee for the Class B Trust, and
Landesbank Hessen-Thuringen Girozentrale.
(j) Subject to Section 2.02(b) of the Basic Agreement, there will
not be any deposit agreement, escrow agreement or other similar
arrangement prior to delivery of the Aircraft.
(k) The Company may at any time purchase any of the Class B
Certificates at any price in the open market and may hold such Class B
Certificates to maturity.
(l) The Responsible Party is the Company.
Section 3.02 Delivery of Documents. The Trustee is hereby directed
(i) to execute and deliver the Intercreditor Agreement referred to in Section
3.01(h) of this Trust Supplement in the form delivered to the Trustee by the
Company and (ii) subject to the respective terms thereof, to perform its
obligations thereunder.
ARTICLE IV
DEFAULT
Section 4.01 Purchase Rights of Certificateholders. (a) By
acceptance of its Class B Certificate, each Class B Certificateholder agrees
that at any time after the occurrence and during the continuation of a
Triggering Event,
(i) each Class B Certificateholder shall have the right (which shall
not expire upon any purchase of the Class A-1 Certificates pursuant to the
Class A-2 Trust Agreement or the Class A-2 Certificates pursuant to the
Class A-1 Trust Agreement) to purchase, for the purchase price set forth
in the Class A-1 Trust Agreement and the Class A-2 Trust Agreement,
respectively, all, but not less than all, of the Class A-1 Certificates
and the Class A-2 Certificates upon ten days' prior written notice to the
Class A-1 Trustee, the Class A-2 Trustee and each other Class B
Certificateholder, provided that (A) if prior to the end of such ten-day
period any other Class B Certificateholder notifies such purchasing Class
B Certificateholder that such other Class B Certificateholder wants to
participate in such purchase, then such other Class B Certificateholder
may join with the purchasing Class B Certificateholder to purchase all,
but not less than all, of the Class A-1 Certificates and the Class A-2
Certificates pro rata based on the Fractional Undivided Interest in the
Class B Trust held by each such Class B Certificateholder and (B) if prior
to the end of such ten-day period any other Class B Certificateholder
fails to notify the purchasing Class B Certificateholder of such other
Class B Certificateholder's desire to participate in such a purchase, then
such other Class B Certificateholder shall lose its right to purchase the
Class A-1 Certificates and the Class A-2 Certificates pursuant to this
Section 4.01(a)(i); and
(ii) each Class C Certificateholder shall have the right (which
shall not expire upon any purchase of the Class A-1 Certificates pursuant
to the Class A-2 Trust Agreement or the Class A-2 Certificates pursuant to
the Class A-1 Agreement or the Class A-1 Certificates and Class A-2
Certificates pursuant to clause (i) above) to purchase all, but not less
than all, of the Class A-1 Certificates, the Class A-2 Certificates and
the Class B Certificates upon ten days' prior written notice to the Class
A-1 Trustee, the Class A-2 Trustee, the Trustee and each other Class C
Certificateholder, provided that (A) if prior to the end of such ten-day
period any other Class C Certificateholder notifies such purchasing Class
C Certificateholder that such other Class C Certificateholder wants to
participate in such purchase, then such other Class C Certificateholder
may join with the purchasing Class C Certificateholder to purchase all,
but not less than all, of the Class A-1 Certificates, the Class A-2
Certificates and the Class B Certificates pro rata based on the Fractional
Undivided Interest in the Class C Trust held by each such Class C
Certificateholder and (B) if prior to the end of such ten-day period any
other Class C Certificateholder fails to notify the purchasing Class C
Certificateholder of such other Class C Certificateholder's desire to
participate in such a purchase, then such other Class C Certificateholder
shall lose its right to purchase the Class A-1 Certificates, the Class A-2
Certificates and the Class B Certificates pursuant to this Section
4.01(a)(ii); and
(iii) each Class D Certificateholder (other than the Company or any
of its Affiliates) shall have the right (which shall not expire upon any
purchase of the Class A-1 Certificates pursuant to the Class A-2 Trust
Agreement, the Class A-2 Certificates pursuant to the Class A-1 Trust
Agreement or the Class A-1 Certificates, Class A-2 Certificates or Class B
Certificates pursuant to clause (i) or (ii) above) to purchase all, but
not less than all, of the Class A-1 Certificates, the Class A-2
Certificates, the Class B Certificates and the Class C Certificates upon
ten days' prior written notice to the Class A-1 Trustee, the Class A-2
Trustee, the Trustee, the Class C Trustee and each other Class D
Certificateholder, provided that (A) if prior to the end of such ten-day
period any other Class D Certificateholder (other than the Company or any
of its Affiliates) notifies such purchasing Class D Certificateholder that
such other Class D Certificateholder wants to participate in such
purchase, then such other Class D Certificateholder may join with the
purchasing Class D Certificateholder to purchase all, but not less than
all, of the Class A-1 Certificates, the Class A-2 Certificates, the Class
B Certificates and the Class C Certificates pro rata based on the
Fractional Undivided Interest in the Class D Trust held by each such Class
D Certificateholder and (B) if prior to the end of such ten-day period any
other Class D Certificateholder fails to notify the purchasing Class D
Certificateholder of such other Class D Certificateholder's desire to
participate in such a purchase, then such other Class D Certificateholder
shall lose its right to purchase the Class A-1 Certificates, the Class A-2
Certificates, the Class B Certificates and the Class C Certificates
pursuant to this Section 4.01(a)(iii).
The purchase price with respect to the Class B Certificates shall be
equal to the Pool Balance of the Class B Certificates, together with accrued and
unpaid interest in respect thereof to the date of such purchase, without
premium, but including any other amounts then due and payable to the Class B
Certificateholders under this Agreement, the Intercreditor Agreement or any Note
Document or on or in respect of the Class B Certificates; provided, however,
that if such purchase occurs after the Record Date relating to any Distribution
Date, such purchase price shall be reduced by the amount to be distributed
hereunder on such related Distribution Date (which deducted amounts shall remain
distributable to, and may be retained by, the Class B Certificateholders as of
such Record Date); provided, further that no such purchase of Class B
Certificates pursuant to this Section 4.01(a) shall be effective unless the
purchaser(s) shall certify to the Trustee that contemporaneously with such
purchase, such purchaser(s) is purchasing, pursuant to the terms of this
Agreement and the Intercreditor Agreement, all of the Class A-1 Certificates,
the Class A-2 Certificates, the Class B Certificates and the Class C
Certificates that are senior to the securities held by such purchaser(s). Each
payment of the purchase price of the Class B Certificates referred to in the
first sentence hereof shall be made to an account or accounts designated by the
Trustee and each such purchase shall be subject to the terms of this Section
4.01(a). Each Class B Certificateholder agrees by its acceptance of its
Certificate that it will, upon payment from such Class C Certificateholder(s) or
Class D Certificateholder(s), as the case may be, of the purchase price set
forth in the first sentence of this paragraph, forthwith sell, assign, transfer
and convey to the purchaser(s) thereof (without recourse, representation or
warranty of any kind except as to its own acts) all of the right, title,
interest and obligation of such Class B Certificateholder in this Agreement, the
Intercreditor Agreement, the Liquidity Facility, the Note Documents and all
Class B Certificates held by such Class B Certificateholder (excluding all
right, title and interest under any of the foregoing to the extent such right,
title or interest is with respect to an obligation not then due and payable as
respects any action or inaction or state of affairs occurring prior to such
sale) and the purchaser(s) shall assume all of such Class B Certificateholder's
obligations under this Agreement, the Intercreditor Agreement, the Liquidity
Facility, the Note Documents and all such Class B Certificates. The Class B
Certificates will be deemed to be purchased on the date payment of the purchase
price is made notwithstanding the failure of any Class B Certificateholder to
deliver any Class B Certificate and, upon such a purchase, (i) the only rights
of the Class B Certificateholders will be to deliver the Class B Certificates
and (ii) if the purchaser(s) shall so request, each such Class B
Certificateholder will comply with all the provisions of Section 3.04 of the
Basic Agreement to enable new Class B Certificates to be issued to the
purchaser(s) in such denominations as it shall request. All charges and expenses
in connection with the issuance of any such new Class B Certificates shall be
borne by the purchaser(s) thereof.
As used in this Section 4.01(a), the terms "Class A-1 Certificate",
"Class A-1 Certificateholder", " Class A-1 Trust", " Class A-1 Trust Agreement",
" Class A-1 Trustee", "Class A-2 Certificate", "Class A-2 Certificateholder",
"Class A-2 Trust", "Class A-2 Trust Agreement", "Class A-2 Trustee", "Class B
Certificateholder", "Class C Certificate", "Class C Certificateholder", "Class C
Trust", "Class C Trustee", "Class D Certificate", "Class D Certificateholder",
"Class D Trust" and "Class D Trustee" shall have the respective meanings
assigned to such terms in the Intercreditor Agreement.
(b) This Section 4.01 supplements and, to the extent inconsistent
with any provision of Section 6.01(a) of the Basic Agreement, replaces the
provisions of Section 6.01(a) of the Basic Agreement. Notwithstanding anything
to the contrary set forth herein or in any Operative Agreement, the provisions
of this Section 4.01 may not be amended in any manner without the consent of
each Class B Certificateholder, Class A-2 Certificateholder, Class B
Certificateholder, Class C Certificateholder or Class D Certificateholder (other
than the Company or any of its Affiliates) that would be adversely affected
thereby.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01 Final Termination Date. The respective obligations and
responsibilities of the Company and the Trustee created hereby and the Class B
Trust created hereby shall terminate upon the distribution to all
Certificateholders of Class B Certificates and the Trustee of all amounts
required to be distributed to them pursuant to this Agreement and the
disposition of all property held as part of the Trust Property; provided,
however, that in no event shall the Trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
Joseph P. Kennedy, Sr., the father of John F. Kennedy, former President of the
United States, living on the date of this Trust Supplement.
Section 5.02 Basic Agreement Ratified. Except and so far as herein
expressly provided, all of the provisions, terms and conditions of the Basic
Agreement are in all respects ratified and confirmed; and the Basic Agreement
and this Trust Supplement shall be taken, read and construed as one and the same
instrument.
Section 5.03 Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN THE
STATE OF NEW YORK AND THIS AGREEMENT AND THE CLASS B CERTIFICATES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER AND THEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 5.04 Counterparts. This Trust Supplement may be executed in
any number of counterparts (and each of the parties shall not be required to
execute the same counterpart). Each counterpart of this Trust Supplement
including a signature page or pages executed by each of the parties hereto shall
be an original counterpart of this Trust Supplement, but all of such
counterparts together shall constitute one instrument.
Section 5.05 Intention of Parties. The parties hereto intend that
the Class B Trust be classified for United States federal income tax purposes as
a grantor trust under Part 1E of Chapter 1J of Subtitle A of the Internal
Revenue Code of 1986, as amended, and not as a trust or association taxable as a
corporation or as a partnership. Each Certificateholder of a Class B
Certificate, by its acceptance of its Class B Certificate or a beneficial
interest therein, agrees to treat the Class B Trust as a grantor trust for all
United States federal, state and local income tax purposes. The Trustee shall
not be authorized or empowered to do anything that would cause the Class B Trust
to fail to qualify as a grantor trust for such tax purposes (including as
subject to this restriction, acquiring any Aircraft by bidding the Equipment
Notes relating thereto or otherwise, or taking any action with respect to any
such Aircraft once acquired).
IN WITNESS WHEREOF, the parties have caused this Trust Supplement to
be duly executed by their respective officers thereto duly authorized as of the
date first written above.
DELTA AIR LINES, INC.
By:
-------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------
Name:
Title:
EXHIBIT A to
TRUST SUPPLEMENT NO. 2001-1B
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.
DELTA AIR LINES, INC. PASS THROUGH TRUST 2001-1B
7.711% DELTA AIR LINES PASS THROUGH CERTIFICATE, SERIES 2001-1B
Final Expected Regular Distribution Date: September 18, 2011
evidencing a fractional undivided interest in a Trust, the
property of which includes or will include, among other
things, certain Equipment Notes each secured by an Aircraft
owned by Delta Air Lines, Inc.
Certificate No. ______ $____________ Fractional CUSIP No. 247367AU9
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 Delta
Air Lines Pass Through Trust, Series 2001-1B (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
November 16, 2000 (the "Basic Agreement"), as supplemented by Trust Supplement
No. 2001-1B thereto dated September 17, 2001 (collectively, the "Agreement"),
between the Trustee and Delta Air Lines, Inc., a corporation incorporated under
Delaware law (the "Company"), a summary of certain of the pertinent provisions
of which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the
Agreement. This Certificate is one of the duly authorized Certificates
designated as "7.711% Delta Air Lines Pass Through Certificates, Series 2001-1B"
(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 all of the provisions of the Agreement and the
Intercreditor Agreement, including the subordination provisions of Section 9.09
of the Intercreditor Agreement. The property of the Trust includes or will
include certain Equipment Notes and all rights of the Trust and the Trustee, on
behalf of the Trust, to receive any payments under the Intercreditor Agreement
or the Liquidity Facility (the "Trust Property"). Each issue of the Equipment
Notes is or will be secured by, among other things, a security interest in
certain Aircraft owned by the Company.
-----------------
* This legend to appear on Book-Entry Certificates to be deposited with The
Depository Trust Company.
The Certificates represent Fractional Undivided Interests in the
Trust and the Trust Property, and will 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 the
Intercreditor Agreement, from funds then available to the Trustee, there will be
distributed on each March 18 and September 18 (a "Regular Distribution Date"),
commencing on March 18, 2002, 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 the Intercreditor Agreement, in the event that Special Payments on
the Equipment Notes are received by the Trustee, from funds then available to
the Trustee, there shall be distributed on the applicable Special Distribution
Date, to the Person in whose name this Certificate is registered at the close of
business on the 15th day preceding the Special Distribution Date, an amount in
respect of such Special Payments on the Equipment Notes, the receipt of which
has been confirmed by the Trustee, equal to the product of the percentage
interest in the Trust evidenced by this Certificate and an amount equal to the
sum of such Special Payments so received. If a Regular Distribution Date or
Special Distribution Date is not a Business Day, distribution shall be made on
the immediately following Business Day with the same force and effect as if made
on such Regular Distribution Date or Special Distribution Date and no interest
shall accrue during the intervening period. The Trustee shall mail notice of
each Special Payment and the Special Distribution Date therefor to the
Certificateholder of this Certificate.
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 that
with respect to Certificates registered on the Record Date in the name of a
Clearing Agency (or its nominee), such distributions shall be made by wire
transfer. 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, the Trustee or any
Loan 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 any payment or distribution to such Certificateholder
pursuant to the terms of the Agreement and that it will not have any recourse to
the Company, the Trustee or the Loan Trustees except as otherwise expressly
provided in the Agreement, in any Note Document or in the Intercreditor
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 therein, 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 Company, the Trustee, the Registrar and any Paying Agent shall
deem and treat the person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Company, the Trustee, the
Registrar or 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.
Any Person acquiring or accepting this Certificate or an interest
herein will, by such acquisition or acceptance, be deemed to represent and
warrant to the Company, the Loan Trustees and the Trustee that either: (i) no
assets of an employee benefit plan subject to Title I of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or of an employee benefit
plan or an individual retirement account subject to Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), or any trust established under
such plan or account, have been used to purchase this Certificate or an interest
herein or (ii) the purchase and holding of this Certificate or interest herein
by such Person are exempt from the prohibited transaction restrictions of ERISA
and the Code pursuant to one or more prohibited transaction statutory or
administrative exemptions.
THIS CERTIFICATE AND THE AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, 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.
DELTA AIR LINES, INC. PASS THROUGH TRUST
2001-1B
By: STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL
ASSOCIATION,
as Trustee
By:
-------------------------------
Title:
Dated:
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:
-------------------------------
Authorized Officer
EXHIBIT B to
TRUST SUPPLEMENT NO. 2001-1B
[DTC Letter of Representations]
[Intentionally Omitted]
SCHEDULE I to
TRUST SUPPLEMENT NO. 2001-1B
EQUIPMENT NOTES,
PRINCIPAL AMOUNTS AND MATURITIES
EQUIPMENT NOTES PRINCIPAL AMOUNT MATURITY
--------------- ---------------- --------
N3731T $4,758,156.18 September 18, 2011
N3732J $4,770,548.16 September 18, 2011
N3733Z $4,770,548.16 September 18, 2011
N3734B $4,770,548.16 September 18, 2011
N3735D $4,776,015.21 September 18, 2011
N3736C $4,776,015.21 September 18, 2011
N3737C $4,776,015.21 September 18, 2011
N3738B $4,776,015.21 September 18, 2011
N3739P $4,776,015.21 September 18, 2011
N3740C $4,776,015.21 September 18, 2011
N3741S $4,913,784.88 September 18, 2011
N3742C $4,926,541.32 September 18, 2011
N3743H $4,926,541.32 September 18, 2011
N3744F $4,961,165.98 September 18, 2011
N3745B $4,973,922.43 September 18, 2011
N3747D $4,961,165.98 September 18, 2011
N685DA $4,535,464.99 September 18, 2011
N686DA $4,661,207.15 September 18, 2011
N687DL $5,358,073.84 September 18, 2011
N688DL $5,358,073.84 September 18, 2011
N689DL $5,371,194.76 September 18, 2011
N690DL $5,371,194.76 September 18, 2011
N692DL $5,412,379.87 September 18, 2011
N693DL $5,425,500.79 September 18, 2011
N694DL $5,440,444.06 September 18, 2011
N695DL $5,455,751.80 September 18, 2011
N6714Q $5,952,524.45 September 18, 2011
N6715C $6,030,156.36 September 18, 2011
N6716C $6,035,623.61 September 18, 2011
N169DZ $8,110,551.46 September 18, 2011
N171DZ $8,166,679.85 September 18, 2011
N172DZ $8,166,679.85 September 18, 2011
N173DZ $8,210,416.25 September 18, 2011
N1608 $8,873,022.76 September 18, 2011
N1609 $8,873,022.76 September 18, 2011
N1610D $8,873,022.76 September 18, 2011
SCHEDULE II to
TRUST SUPPLEMENT NO. 2001-1B
AIRCRAFT
AIRCRAFT
REGISTRATION
AIRCRAFT NUMBER
-------- ------------
Boeing 737-832 N3731T
Boeing 737-832 N3732J
Boeing 737-832 N3733Z
Boeing 737-832 N3734B
Boeing 737-832 N3735D
Boeing 737-832 N3736C
Boeing 737-832 N3737C
Boeing 737-832 N3738B
Boeing 737-832 N3739P
Boeing 737-832 N3740C
Boeing 737-832 N3741S
Boeing 737-832 N3742C
Boeing 737-832 N3743H
Boeing 737-832 N3744F
Boeing 737-832 N3745B
Boeing 737-832 N3747D
Boeing 737-232 N685DA
Boeing 737-232 N686DA
Boeing 737-232 N687DL
Boeing 737-232 N688DL
Boeing 737-232 N689DL
Boeing 737-232 N690DL
Boeing 737-232 N692DL
Boeing 737-232 N693DL
Boeing 737-232 N694DL
Boeing 737-232 N695DL
Boeing 737-232 N6714Q
Boeing 737-232 N6715C
Boeing 737-232 N6716C
Boeing 767-332ER N169DZ
Boeing 767-332ER N171DZ
Boeing 767-332ER N172DZ
Boeing 767-332ER N173DZ
Boeing 767-332ER N1608
Boeing 767-332ER N1609
Boeing 767-332ER N1610D
SCHEDULE III to
TRUST SUPPLEMENT NO. 2001-1B
NOTE DOCUMENTS
Participation Agreement
Indenture and Security Agreement
Series 2001-1 A-1 Equipment Note
Series 2001-1 A-2 Equipment Note
Series 2001-1B Equipment Note
Series 2001-1C Equipment Note
Series 2001-1D Equipment Note
For each of the following aircraft:
AIRCRAFT
REGISTRATION
AIRCRAFT NUMBER
-------- ------------
Boeing 737-832 N3731T
Boeing 737-832 N3732J
Boeing 737-832 N3733Z
Boeing 737-832 N3734B
Boeing 737-832 N3735D
Boeing 737-832 N3736C
Boeing 737-832 N3737C
Boeing 737-832 N3738B
Boeing 737-832 N3739P
Boeing 737-832 N3740C
Boeing 737-832 N3741S
Boeing 737-832 N3742C
Boeing 737-832 N3743H
Boeing 737-832 N3744F
Boeing 737-832 N3745B
Boeing 737-832 N3747D
Boeing 737-232 N685DA
Boeing 737-232 N686DA
Boeing 737-232 N687DL
Boeing 737-232 N688DL
Boeing 737-232 N689DL
Boeing 737-232 N690DL
Boeing 737-232 N692DL
Boeing 737-232 N693DL
Boeing 737-232 N694DL
Boeing 737-232 N695DL
Boeing 737-232 N6714Q
Boeing 737-232 N6715C
Boeing 737-232 N6716C
Boeing 767-332ER N169DZ
Boeing 767-332ER N171DZ
Boeing 767-332ER N172DZ
Boeing 767-332ER N173DZ
Boeing 767-332ER N1608
Boeing 767-332ER N1609
Boeing 767-332ER N1610D
EX-4.(A)(7)
8
de600102-ex4a7.txt
TRUST SUPPLEMENT NO. 2001-1C
EXHIBIT 4(a)(7)
EXECUTION COPY
TRUST SUPPLEMENT NO. 2001-1C
Dated as of September 17, 2001
between
DELTA AIR LINES, INC.
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Trustee,
To
PASS THROUGH TRUST AGREEMENT
Dated as of November 16, 2000
Delta Air Lines, Inc. Pass Through Trust 2001-1C
7.299% Delta Air Lines
Pass Through Certificates,
Series 2001-1C
TRUST SUPPLEMENT NO. 2001-1C
This TRUST SUPPLEMENT NO. 2001-1C, dated as of September 17, 2001
(the "Trust Supplement"), between DELTA AIR LINES, INC., a Delaware corporation,
and STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a
national banking association, as Trustee, to the Pass Through Trust Agreement,
dated as of November 16, 2000, between the Company (such term and other
capitalized terms used herein without definition being defined as provided in
Section 1.01) and the Trustee (the "Basic Agreement").
W I T N E S S E T H:
WHEREAS, the Basic Agreement, which is unlimited as to the aggregate
face amount of Certificates that may be issued and authenticated thereunder, has
heretofore or concurrently herewith been executed and delivered;
WHEREAS, the Company is the Owner of 36 aircraft described in
Schedule II (collectively, the "Aircraft");
WHEREAS, pursuant to each Indenture, the Company will issue the
Equipment Notes, which Equipment Notes are to be secured by a security interest
in all right, title and interest of the Company in and to the Aircraft and
certain other property described therein;
WHEREAS, the Trustee shall hereby declare the creation of the Class
C Trust (as defined below) for the benefit of Holders of the Class C
Certificates (as defined below) to be issued in respect of such Class C Trust,
and the initial Holders of the Class C Certificates, as grantors of such Class C
Trust, by their respective acceptances of the Class C Certificates, shall join
in the creation of the Class C Trust with the Trustee;
WHEREAS, all Certificates to be issued by the Class C Trust will
evidence Fractional Undivided Interests in the Class C Trust and will have no
rights, benefits or interests in respect of any other separate Trust or the
property held therein;
WHEREAS, pursuant to the terms and conditions of the Basic
Agreement, as supplemented by this Trust Supplement and the Participation
Agreements, the Trustee on behalf of the Class C Trust shall purchase the
Equipment Notes issued by the Company pursuant to the Indentures relating to the
Aircraft having the identical interest rate as, and final maturity dates not
later than the final Regular Distribution Date of, the Class C Certificates
issued hereunder and shall hold such Equipment Notes in trust for the benefit of
the Class C Certificateholders;
WHEREAS, pursuant to the terms and conditions of the Intercreditor
Agreement referred to in Section 3.01(h) hereof (the "Intercreditor Agreement"),
the Trustee and the other parties thereto will agree to the terms of
subordination set forth therein;
WHEREAS, all of the conditions and requirements necessary to make
this Trust Supplement, when duly executed and delivered, a valid, binding and
legal instrument in accordance with its terms and for the purposes herein
expressed, have been done, performed and fulfilled, and the execution and
delivery of this Trust Supplement in the form and with the terms hereof have
been in all respects duly authorized;
WHEREAS, this Trust Supplement 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. Unless otherwise specified herein or the
context otherwise requires, capitalized terms used but not defined herein shall
have the respective meanings set forth, and shall be construed and interpreted
in the manner described, in the Basic Agreement or, to the extent not defined
therein, in the Intercreditor Agreement.
ARTICLE II
DECLARATION OF TRUST
Section 2.01 Declaration of Trust. The Trustee hereby declares the
creation of a Trust, designated the "Delta Air Lines Pass Through Trust 2001-1C"
(the "Class C Trust"), for the benefit of the Holders of the Class C
Certificates to be issued in respect of such Class C Trust, and the initial
Holders of the Class C Certificates, as grantors of such Class C Trust, by their
respective acceptances of the Class C Certificates, join in the creation of such
Class C Trust with the Trustee. The Trustee, by the execution and delivery of
this Trust Supplement, acknowledges its acceptance of all right, title and
interest in and to the Trust Property to be acquired pursuant to Section 2.02 of
the Basic Agreement and the Participation Agreements and the Trustee will hold
such right, title and interest for the benefit of all present and future Holders
of the Class C Certificates, upon the trusts set forth in the Basic Agreement
and this Trust Supplement.
ARTICLE III
THE CERTIFICATES
Section 3.01 The Certificates. There is hereby created a series of
Certificates to be issued under this Agreement designated as "7.299% Delta Air
Lines Pass Through Certificates, Series 2001-1C" (the "Class C Certificates").
Each Class C Certificate represents a Fractional Undivided Interest in the Class
C Trust created hereby. The Class C Certificates shall be the only instruments
evidencing a Fractional Undivided Interest in the Class C Trust.
The terms and conditions applicable to the Class C Certificates and
the Class C Trust are as follows:
(a) The aggregate face amount of the Class C Certificates that may
be authenticated and delivered under this Agreement (except for Class C
Certificates authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Class C Certificates pursuant to
Sections 3.03, 3.04, 3.05 and 3.06 of the Basic Agreement) is
$169,782,000.
(b) The Cut-off Date is October 19, 2001.
(c) The Regular Distribution Dates with respect to any payment of
Scheduled Payments means March 18 and September 18 of each year,
commencing on March 18, 2002, until payment of all of the Scheduled
Payments to be made under the Equipment Notes has been made. The entire
principal amount of the Equipment Notes to be held by the Class C Trust is
scheduled for payment on September 18, 2006.
(d) The Special Distribution Dates with respect to the Class C
Certificates means any Business Day on which a Special Payment is to be
distributed pursuant to this Agreement.
(e) The Class C Certificates shall be in the form attached hereto as
Exhibit A, shall be Book-Entry Certificates and shall be subject to the
conditions set forth in the Letter of Representations between the Company
and The Depository Trust Company, as initial Clearing Agency, attached
hereto as Exhibit B.
(f) The proceeds of the Class C Certificates issued by the Class C
Trust shall be used to acquire the Equipment Notes described in Schedule
I, such Equipment Notes to relate to the Aircraft described in Schedule II
and the Note Documents described in Schedule III.
(g) Any Person acquiring or accepting a Class C Certificate or an
interest therein will, by such acquisition or acceptance, be deemed to
represent and warrant to the Company, the Loan Trustees and the Trustee
that either (i) no assets of an employee benefit plan subject to Title I
of ERISA, or of an employee benefit plan or an individual retirement
account subject to Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code"), or any trust established under such plan or account,
have been used to purchase Class C Certificates or an interest therein or
(ii) the purchase and holding of Class C Certificates or interests therein
by such Person is exempt from the prohibited transaction restrictions of
ERISA and the Code pursuant to one or more prohibited transaction
statutory or administrative exemptions.
(h) The Class C Certificates will be subject to the following
Intercreditor Agreement (and to the extent the terms thereof (including
the definitions of defined terms) are inconsistent with the terms of this
Agreement, such Intercreditor Agreement shall control): that certain
Intercreditor Agreement, dated as of the date hereof, among State Street
Bank and Trust Company of Connecticut, National Association, as Trustee
under each Trust (as defined therein), Landesbank Hessen-Thuringen
Girozentrale, as Class C Liquidity Provider, Class A-2 Liquidity Provider,
Class B Liquidity Provider and Class C Liquidity Provider, and State
Street Bank and Trust Company of Connecticut, National Association, as
Subordination Agent thereunder. Potential Purchasers shall have the rights
upon the occurrence of a Triggering Event set forth in Article IV hereof.
The Trustee and, by acceptance of any Class C Certificate, each
Certificateholder thereof, agrees to be bound by all of the provisions of
the Intercreditor Agreement, including the subordination provisions of
Section 9.09 thereof.
(i) The Class C Certificates will have the benefit of the following
Liquidity Facility: that certain Revolving Credit Agreement, dated as of
the date hereof, between State Street Bank and Trust Company of
Connecticut, National Association, as Subordination Agent under the
Intercreditor Agreement, as agent and trustee for the Class C Trust, and
Landesbank Hessen-Thuringen Girozentrale.
(j) Subject to Section 2.02(b) of the Basic Agreement, there will
not be any deposit agreement, escrow agreement or other similar
arrangement prior to delivery of the Aircraft.
(k) The Company may at any time purchase any of the Class C
Certificates at any price in the open market and may hold such Class C
Certificates to maturity.
(l) The Responsible Party is the Company.
Section 3.02 Delivery of Documents. The Trustee is hereby directed
(i) to execute and deliver the Intercreditor Agreement referred to in Section
3.01(h) of this Trust Supplement in the form delivered to the Trustee by the
Company and (ii) subject to the respective terms thereof, to perform its
obligations thereunder.
ARTICLE IV
DEFAULT
Section 4.01 Purchase Rights of Certificateholders. (a) By
acceptance of its Class C Certificate, each Class C Certificateholder agrees
that at any time after the occurrence and during the continuation of a
Triggering Event,
(i) each Class C Certificateholder shall have the right (which shall
not expire upon any purchase of the Class A-1 Certificates pursuant to the
Class A-2 Trust Agreement, the Class A-2 Certificates pursuant to the
Class A-1 Trust Agreement or the Class A-1 and Class A-2 Certificates
pursuant to the Class B Trust Agreement) to purchase, for the purchase
price set forth in the Class A-1 Trust Agreement, the Class A-2 Trust
Agreement and the Class B Trust Agreement, respectively, all, but not less
than all, of the Class A-1 Certificates, the Class A-2 Certificates and
the Class B Certificates upon ten days' prior written notice to the Class
A-1 Trustee, the Class A-2 Trustee, the Class B Trustee and each other
Class C Certificateholder, provided that (A) if prior to the end of such
ten-day period any other Class C Certificateholder notifies such
purchasing Class C Certificateholder that such other Class C
Certificateholder wants to participate in such purchase, then such other
Class C Certificateholder may join with the purchasing Class C
Certificateholder to purchase all, but not less than all, of the Class A-1
Certificates, the Class A-2 Certificates and the Class B Certificates pro
rata based on the Fractional Undivided Interest in the Class C Trust held
by each such Class C Certificateholder and (B) if prior to the end of such
ten-day period any other Class C Certificateholder fails to notify the
purchasing Class C Certificateholder of such other Class C
Certificateholder's desire to participate in such a purchase, then such
other Class C Certificateholder shall lose its right to purchase the Class
A-1 Certificates, the Class A-2 Certificates and the Class B Certificates
pursuant to this Section 4.01(a)(i); and
(ii) each Class D Certificateholder (other than the Company or any
of its Affiliates) shall have the right (which shall not expire upon any
purchase of the Class A-1 Certificates pursuant to the Class A-2 Trust
Agreement, the Class A-2 Certificates pursuant to the Class A-1 Trust
Agreement, the Class A-1 Certificates and the Class A-2 Certificates
pursuant to the Class B Trust Agreement or the Class A-1 Certificates, the
Class A-2 Certificates and the Class B Certificates pursuant to clause (i)
above) to purchase all, but not less than all, of the Class A-1
Certificates, the Class A-2 Certificates, the Class B Certificates and the
Class C Certificates upon ten days' prior written notice to the Class A-1
Trustee, the Class A-2 Trustee, the Class B Trustee, the Trustee and each
other Class D Certificateholder, provided that (A) if prior to the end of
such ten-day period any other Class D Certificateholder (other than the
Company or any of its Affiliates) notifies such purchasing Class D
Certificateholder that such other Class D Certificateholder wants to
participate in such purchase, then such other Class D Certificateholder
may join with the purchasing Class D Certificateholder to purchase all,
but not less than all, of the Class A-1 Certificates, the Class A-2
Certificates, the Class B Certificates and the Class C Certificates pro
rata based on the Fractional Undivided Interest in the Class D Trust held
by each such Class D Certificateholder and (B) if prior to the end of such
ten-day period any other Class D Certificateholder fails to notify the
purchasing Class D Certificateholder of such other Class D
Certificateholder's desire to participate in such a purchase, then such
other Class D Certificateholder shall lose its right to purchase the Class
A-1 Certificates, the Class A-2 Certificates, the Class B Certificates and
the Class C Certificates pursuant to this Section 4.01(a)(ii).
The purchase price with respect to the Class C Certificates shall be
equal to the Pool Balance of the Class C Certificates, together with accrued and
unpaid interest in respect thereof to the date of such purchase, without
premium, but including any other amounts then due and payable to the Class C
Certificateholders under this Agreement, the Intercreditor Agreement or any Note
Document or on or in respect of the Class C Certificates; provided, however,
that if such purchase occurs after the Record Date relating to any Distribution
Date, such purchase price shall be reduced by the amount to be distributed
hereunder on such related Distribution Date (which deducted amounts shall remain
distributable to, and may be retained by, the Class C Certificateholders as of
such Record Date); provided, further that no such purchase of Class C
Certificates pursuant to this Section 4.01(a) shall be effective unless the
purchaser(s) shall certify to the Trustee that contemporaneously with such
purchase, such purchaser(s) is purchasing, pursuant to the terms of this
Agreement and the Intercreditor Agreement, all of the Class A-1 Certificates,
the Class A-2 Certificates, the Class B Certificates and the Class C
Certificates that are senior to the securities held by such purchaser(s). Each
payment of the purchase price of the Class C Certificates referred to in the
first sentence hereof shall be made to an account or accounts designated by the
Trustee and each such purchase shall be subject to the terms of this Section
4.01(a). Each Class C Certificateholder agrees by its acceptance of its
Certificate that it will, upon payment from such Class D Certificateholder(s) of
the purchase price set forth in the first sentence of this paragraph, forthwith
sell, assign, transfer and convey to the purchaser(s) thereof (without recourse,
representation or warranty of any kind except as to its own acts) all of the
right, title, interest and obligation of such Class C Certificateholder in this
Agreement, the Intercreditor Agreement, the Liquidity Facility, the Note
Documents and all Class C Certificates held by such Class C Certificateholder
(excluding all right, title and interest under any of the foregoing to the
extent such right, title or interest is with respect to an obligation not then
due and payable as respects any action or inaction or state of affairs occurring
prior to such sale) and the purchaser(s) shall assume all of such Class C
Certificateholder's obligations under this Agreement, the Intercreditor
Agreement, the Liquidity Facility, the Note Documents and all such Class C
Certificates. The Class C Certificates will be deemed to be purchased on the
date payment of the purchase price is made notwithstanding the failure of any
Class C Certificateholder to deliver any Class C Certificate and, upon such a
purchase, (i) the only rights of the Class C Certificateholders will be to
deliver the Class C Certificates and (ii) if the purchaser(s) shall so request,
each such Class C Certificateholder will comply with all the provisions of
Section 3.04 of the Basic Agreement to enable new Class C Certificates to be
issued to the purchaser(s) in such denominations as it shall request. All
charges and expenses in connection with the issuance of any such new Class C
Certificates shall be borne by the purchaser(s) thereof.
As used in this Section 4.01(a), the terms "Class A-1 Certificate",
"Class A-1 Certificateholder", "Class A-1 Trust", "Class A-1 Trust Agreement",
"Class A-1 Trustee", "Class A-2 Certificate", "Class A-2 Certificateholder",
"Class A-2 Trust", "Class A-2 Trust Agreement", "Class A-2 Trustee", "Class B
Certificate", "Class B Certificateholder", "Class B Trust", "Class B Trustee",
"Class C Certificateholder", "Class D Certificate", "Class D Certificateholder",
"Class D Trust" and "Class D Trustee" shall have the respective meanings
assigned to such terms in the Intercreditor Agreement.
(b) This Section 4.01 supplements and, to the extent inconsistent
with any provision of Section 6.01(a) of the Basic Agreement, replaces the
provisions of Section 6.01(a) of the Basic Agreement. Notwithstanding anything
to the contrary set forth herein or in any Operative Agreement, the provisions
of this Section 4.01 may not be amended in any manner without the consent of
each Class C Certificateholder, Class A-2 Certificateholder, Class B
Certificateholder, Class C Certificateholder or Class D Certificateholder (other
than the Company or any of its Affiliates) that would be adversely affected
thereby.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01 Final Termination Date. The respective obligations and
responsibilities of the Company and the Trustee created hereby and the Class C
Trust created hereby shall terminate upon the distribution to all
Certificateholders of Class C Certificates and the Trustee of all amounts
required to be distributed to them pursuant to this Agreement and the
disposition of all property held as part of the Trust Property; provided,
however, that in no event shall the Trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
Joseph P. Kennedy, Sr., the father of John F. Kennedy, former President of the
United States, living on the date of this Trust Supplement.
Section 5.02 Basic Agreement Ratified. Except and so far as herein
expressly provided, all of the provisions, terms and conditions of the Basic
Agreement are in all respects ratified and confirmed; and the Basic Agreement
and this Trust Supplement shall be taken, read and construed as one and the same
instrument.
Section 5.03 Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN THE
STATE OF NEW YORK AND THIS AGREEMENT AND THE CLASS C CERTIFICATES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER AND THEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 5.04 Counterparts. This Trust Supplement may be executed in
any number of counterparts (and each of the parties shall not be required to
execute the same counterpart). Each counterpart of this Trust Supplement
including a signature page or pages executed by each of the parties hereto shall
be an original counterpart of this Trust Supplement, but all of such
counterparts together shall constitute one instrument.
Section 5.05 Intention of Parties. The parties hereto intend that
the Class C Trust be classified for United States federal income tax purposes as
a grantor trust under Part 1E of Chapter 1J of Subtitle A of the Internal
Revenue Code of 1986, as amended, and not as a trust or association taxable as a
corporation or as a partnership. Each Certificateholder of a Class C
Certificate, by its acceptance of its Class C Certificate or a beneficial
interest therein, agrees to treat the Class C Trust as a grantor trust for all
United States federal, state and local income tax purposes. The Trustee shall
not be authorized or empowered to do anything that would cause the Class C Trust
to fail to qualify as a grantor trust for such tax purposes (including as
subject to this restriction, acquiring any Aircraft by bidding the Equipment
Notes relating thereto or otherwise, or taking any action with respect to any
such Aircraft once acquired).
IN WITNESS WHEREOF, the parties have caused this Trust Supplement to
be duly executed by their respective officers thereto duly authorized as of the
date first written above.
DELTA AIR LINES, INC.
By:
-------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------
Name:
Title:
EXHIBIT A to
TRUST SUPPLEMENT NO. 2001-1C
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.
DELTA AIR LINES, INC. PASS THROUGH TRUST 2001-1C
7.299% DELTA AIR LINES PASS THROUGH CERTIFICATE, SERIES 2001-1C
Final Expected Regular Distribution Date: September 18, 2006
evidencing a fractional undivided interest in a Trust, the
property of which includes or will include, among other
things, certain Equipment Notes each secured by an Aircraft
owned by Delta Air Lines, Inc.
Certificate No. ______ $____________ Fractional CUSIP No. 247367AV7
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 Delta
Air Lines Pass Through Trust, Series 2001-1C (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
November 16, 2000 (the "Basic Agreement"), as supplemented by Trust Supplement
No. 2001-1C thereto dated September __, 2001 (collectively, the "Agreement"),
between the Trustee and Delta Air Lines, Inc., a corporation incorporated under
Delaware law (the "Company"), a summary of certain of the pertinent provisions
of which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the
Agreement. This Certificate is one of the duly authorized Certificates
designated as "7.299% Delta Air Lines Pass Through Certificates, Series 2001-1C"
(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 all of the provisions of the Agreement and the
Intercreditor Agreement, including the subordination provisions of Section 9.09
of the Intercreditor Agreement. The property of the Trust includes or will
include certain Equipment Notes and all rights of the Trust and the Trustee, on
behalf of the Trust, to receive any payments under the Intercreditor Agreement
or the Liquidity Facility (the "Trust Property"). Each issue of the Equipment
Notes is or will be secured by, among other things, a security interest in
certain Aircraft owned by the Company.
-----------------
* This legend to appear on Book-Entry Certificates to be deposited with The
Depository Trust Company.
The Certificates represent Fractional Undivided Interests in the
Trust and the Trust Property, and will 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 the
Intercreditor Agreement, from funds then available to the Trustee, there will be
distributed on each March 18 and September 18 (a "Regular Distribution Date"),
commencing on March 18, 2002, 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 the Intercreditor Agreement, in the event that Special Payments on
the Equipment Notes are received by the Trustee, from funds then available to
the Trustee, there shall be distributed on the applicable Special Distribution
Date, to the Person in whose name this Certificate is registered at the close of
business on the 15th day preceding the Special Distribution Date, an amount in
respect of such Special Payments on the Equipment Notes, the receipt of which
has been confirmed by the Trustee, equal to the product of the percentage
interest in the Trust evidenced by this Certificate and an amount equal to the
sum of such Special Payments so received. If a Regular Distribution Date or
Special Distribution Date is not a Business Day, distribution shall be made on
the immediately following Business Day with the same force and effect as if made
on such Regular Distribution Date or Special Distribution Date and no interest
shall accrue during the intervening period. The Trustee shall mail notice of
each Special Payment and the Special Distribution Date therefor to the
Certificateholder of this Certificate.
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 that
with respect to Certificates registered on the Record Date in the name of a
Clearing Agency (or its nominee), such distributions shall be made by wire
transfer. 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, the Trustee or any
Loan 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 any payment or distribution to such Certificateholder
pursuant to the terms of the Agreement and that it will not have any recourse to
the Company, the Trustee or the Loan Trustees except as otherwise expressly
provided in the Agreement, in any Note Document or in the Intercreditor
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 therein, 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 Company, the Trustee, the Registrar and any Paying Agent shall
deem and treat the person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Company, the Trustee, the
Registrar or 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.
Any Person acquiring or accepting this Certificate or an interest
herein will, by such acquisition or acceptance, be deemed to represent and
warrant to the Company, the Loan Trustees and the Trustee that either: (i) no
assets of an employee benefit plan subject to Title I of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or of an employee benefit
plan or an individual retirement account subject to Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), or any trust established under
such plan or account, have been used to purchase this Certificate or an interest
herein or (ii) the purchase and holding of this Certificate or interest herein
by such Person are exempt from the prohibited transaction restrictions of ERISA
and the Code pursuant to one or more prohibited transaction statutory or
administrative exemptions.
THIS CERTIFICATE AND THE AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, 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.
DELTA AIR LINES, INC. PASS THROUGH TRUST
2001-1C
By: STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL
ASSOCIATION,
as Trustee
By:
-------------------------------
Title:
Dated:
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:
-------------------------------
Authorized Officer
EXHIBIT B to
TRUST SUPPLEMENT NO. 2001-1C
[DTC Letter of Representations]
[Intentionally Omitted]
SCHEDULE I to
TRUST SUPPLEMENT NO. 2001-1C
EQUIPMENT NOTES,
PRINCIPAL AMOUNTS AND MATURITIES
EQUIPMENT NOTES PRINCIPAL AMOUNT MATURITY
--------------- ---------------- --------
N3731T $3,901,334.19 September 18, 2011
N3732J $3,911,494.70 September 18, 2011
N3733Z $3,911,494.70 September 18, 2011
N3734B $3,911,494.70 September 18, 2011
N3735D $3,915,977.27 September 18, 2011
N3736C $3,915,977.27 September 18, 2011
N3737C $3,915,977.27 September 18, 2011
N3738B $3,915,977.27 September 18, 2011
N3739P $3,915,977.27 September 18, 2011
N3740C $3,915,977.27 September 18, 2011
N3741S $4,028,938.15 September 18, 2011
N3742C $4,039,397.50 September 18, 2011
N3743H $4,039,397.50 September 18, 2011
N3744F $4,067,787.14 September 18, 2011
N3745B $4,078,246.48 September 18, 2011
N3747D $4,067,787.14 September 18, 2011
N685DA $3,718,743.99 September 18, 2011
N686DA $3,821,843.20 September 18, 2011
N687DL $4,393,222.06 September 18, 2011
N688DL $4,393,222.06 September 18, 2011
N689DL $4,403,980.24 September 18, 2011
N690DL $4,403,980.24 September 18, 2011
N692DL $4,437,748.97 September 18, 2011
N693DL $4,448,507.15 September 18, 2011
N694DL $4,460,759.52 September 18, 2011
N695DL $4,473,310.73 September 18, 2011
N6714Q $4,880, 627.35 September 18, 2011
N6715C $4,944,279.92 September 18, 2011
N6716C $4,948,762.49 September 18, 2011
N169DZ $6,650,049.02 September 18, 2011
N171DZ $6,696,070.11 September 18, 2011
N172DZ $6,696,070.11 September 18, 2011
N173DZ $6,731,930.71 September 18, 2011
N1608 $7,275,218.77 September 18, 2011
N1609 $7,275,218.77 September 18, 2011
N1610D $7,275,218.77 September 18, 2011
SCHEDULE II to
TRUST SUPPLEMENT NO. 2001-1C
AIRCRAFT
AIRCRAFT
REGISTRATION
AIRCRAFT NUMBER
-------- ------------
Boeing 737-832 N3731T
Boeing 737-832 N3732J
Boeing 737-832 N3733Z
Boeing 737-832 N3734B
Boeing 737-832 N3735D
Boeing 737-832 N3736C
Boeing 737-832 N3737C
Boeing 737-832 N3738B
Boeing 737-832 N3739P
Boeing 737-832 N3740C
Boeing 737-832 N3741S
Boeing 737-832 N3742C
Boeing 737-832 N3743H
Boeing 737-832 N3744F
Boeing 737-832 N3745B
Boeing 737-832 N3747D
Boeing 737-232 N685DA
Boeing 737-232 N686DA
Boeing 737-232 N687DL
Boeing 737-232 N688DL
Boeing 737-232 N689DL
Boeing 737-232 N690DL
Boeing 737-232 N692DL
Boeing 737-232 N693DL
Boeing 737-232 N694DL
Boeing 737-232 N695DL
Boeing 737-232 N6714Q
Boeing 737-232 N6715C
Boeing 737-232 N6716C
Boeing 767-332ER N169DZ
Boeing 767-332ER N171DZ
Boeing 767-332ER N172DZ
Boeing 767-332ER N173DZ
Boeing 767-332ER N1608
Boeing 767-332ER N1609
Boeing 767-332ER N1610D
SCHEDULE III to
TRUST SUPPLEMENT NO. 2001-1C
NOTE DOCUMENTS
Participation Agreement
Indenture and Security Agreement
Series 2001-1 A-1 Equipment Note
Series 2001-1 A-2 Equipment Note
Series 2001-1B Equipment Note
Series 2001-1C Equipment Note
Series 2001-1D Equipment Note
For each of the following aircraft:
AIRCRAFT
REGISTRATION
AIRCRAFT NUMBER
-------- ------------
Boeing 737-832 N3731T
Boeing 737-832 N3732J
Boeing 737-832 N3733Z
Boeing 737-832 N3734B
Boeing 737-832 N3735D
Boeing 737-832 N3736C
Boeing 737-832 N3737C
Boeing 737-832 N3738B
Boeing 737-832 N3739P
Boeing 737-832 N3740C
Boeing 737-832 N3741S
Boeing 737-832 N3742C
Boeing 737-832 N3743H
Boeing 737-832 N3744F
Boeing 737-832 N3745B
Boeing 737-832 N3747D
Boeing 737-232 N685DA
Boeing 737-232 N686DA
Boeing 737-232 N687DL
Boeing 737-232 N688DL
Boeing 737-232 N689DL
Boeing 737-232 N690DL
Boeing 737-232 N692DL
Boeing 737-232 N693DL
Boeing 737-232 N694DL
Boeing 737-232 N695DL
Boeing 737-232 N6714Q
Boeing 737-232 N6715C
Boeing 737-232 N6716C
Boeing 767-332ER N169DZ
Boeing 767-332ER N171DZ
Boeing 767-332ER N172DZ
Boeing 767-332ER N173DZ
Boeing 767-332ER N1608
Boeing 767-332ER N1609
Boeing 767-332ER N1610D
EX-4.(B)(1)
9
de600102-ex4b1.txt
INTERCREDITOR AGREEMENT
EXHIBIT 4(b)(1)
EXECUTION COPY
INTERCREDITOR AGREEMENT
Dated as of September 17, 2001
among
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Trustee of the
Delta Air Lines Pass Through Trust 2001-1A-1,
Delta Air Lines Pass Through Trust 2001-1A-2,
Delta Air Lines Pass Through Trust 2001-1B,
Delta Air Lines Pass Through Trust 2001-1C
and
Delta Air Lines Pass Through Trust 2001-1D
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as Class A-1 Liquidity Provider,
Class A-2 Liquidity Provider,
Class B Liquidity Provider,
and
Class C Liquidity Provider
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
as Subordination Agent
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Definitions....................................................
ARTICLE II
TRUST ACCOUNTS; CONTROLLING PARTY
Section 2.01. Agreement to Terms of Subordination; Payments from Monies
Received Only..................................................
Section 2.02. Trust Accounts.................................................
Section 2.03. Deposits to the Collection Account and Special Payments
Account; Certain Distributions.................................
Section 2.04. Distributions of Special Payments..............................
Section 2.05. Designated Representatives.....................................
Section 2.06. Controlling Party..............................................
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
AMOUNTS RECEIVED
Section 3.01. Written Notice of Distribution.................................
Section 3.02. Distribution of Amounts on Deposit in the Collection Account...
Section 3.03. Distribution of Amounts on Deposit Following a Triggering
Event..........................................................
Section 3.04. Other Payments.................................................
Section 3.05. Payments to the Trustees and the Liquidity Providers...........
Section 3.06. Liquidity Facilities...........................................
ARTICLE IV
EXERCISE OF REMEDIES
Section 4.01. Directions from the Controlling Party..........................
Section 4.02. Remedies Cumulative............................................
Section 4.03. Discontinuance of Proceedings..................................
Section 4.04. Right of Certificateholders to Receive Payments Not to Be
Impaired.......................................................
ARTICLE V
DUTIES OF THE SUBORDINATION AGENT;
AGREEMENTS OF TRUSTEES, ETC.
Section 5.01. Notice of Indenture Event of Default or Triggering Event.......
Section 5.02. Indemnification................................................
Section 5.03. No Duties Except as Specified in Intercreditor Agreement.......
Section 5.04. Notice from the Liquidity Providers and Trustees...............
ARTICLE VI
THE SUBORDINATION AGENT
Section 6.01. Authorization; Acceptance of Trusts and Duties.................
Section 6.02. Absence of Duties..............................................
Section 6.03. No Representations or Warranties as to Documents...............
Section 6.04. No Segregation of Monies; No Interest..........................
Section 6.05. Reliance; Agents; Advice of Counsel............................
Section 6.06. Capacity in Which Acting.......................................
Section 6.07. Compensation...................................................
Section 6.08. May Become Certificateholder...................................
Section 6.09. Subordination Agent Required; Eligibility......................
Section 6.10. Money to Be Held in Trust......................................
ARTICLE VII
SUCCESSOR SUBORDINATION AGENT
Section 7.01. Replacement of Subordination Agent; Appointment of Successor...
ARTICLE VIII
SUPPLEMENTS AND AMENDMENTS
Section 8.01. Amendments, Waivers, Etc.......................................
Section 8.02. Subordination Agent Protected..................................
Section 8.03. Effect of Supplemental Agreements..............................
Section 8.04. Notice to Rating Agencies......................................
ARTICLE IX
MISCELLANEOUS
Section 9.01. Termination of Intercreditor Agreement.........................
Section 9.02. Intercreditor Agreement for Benefit of Trustees, Liquidity
Providers and Subordination Agent..............................
Section 9.03. Notices........................................................
Section 9.04. Severability...................................................
Section 9.05. No Oral Modifications or Continuing Waivers....................
Section 9.06. Successors and Assigns.........................................
Section 9.07. Headings.......................................................
Section 9.08. Counterparts...................................................
Section 9.09. Subordination..................................................
Section 9.10. Governing Law..................................................
Section 9.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of
Immunity.......................................................
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT, dated as of September 17, 2001, is
made by and among STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, a national banking association (in its individual capacity,
together with its successors and permitted assigns, "State Street"), not in its
individual capacity but solely as trustee of each Trust (such term and other
capitalized terms used herein without definition being defined as provided in
Article I); LANDESBANK HESSEN-THURINGEN GIROZENTRALE, a banking institution
organized under the laws of Germany ("Helaba"), as Class A-1 Liquidity Provider,
Class A-2 Liquidity Provider, Class B Liquidity Provider and Class C Liquidity
Provider, and STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, not in its individual capacity except as expressly set forth
herein, but solely as Subordination Agent and trustee hereunder (in such
capacity, together with any successor appointed pursuant to Article VII, the
"Subordination Agent").
WHEREAS, pursuant to each Indenture with respect to an Aircraft,
Delta will issue on a recourse basis five series of Equipment Notes secured by
such Aircraft;
WHEREAS, pursuant to the Participation Agreements, each Trust will
acquire those Equipment Notes having an interest rate identical to the interest
rate applicable to the Certificates to be issued by such Trust;
WHEREAS, pursuant to each Trust Agreement, the Trust created thereby
proposes to issue a single class of Certificates (a "Class") bearing the
interest rate and having the final distribution date described in such Trust
Agreement on the terms and subject to the conditions set forth therein;
WHEREAS, pursuant to the Underwriting Agreement, the Underwriters
propose to purchase the Class A-1, Class A-2, Class B and Class C Certificates
in the aggregate face amount set forth on Schedule I thereto on the terms and
subject to the conditions set forth therein;
WHEREAS, the Initial Class D Holder proposes to purchase the Class D
Certificates in the aggregate face amount of $150,000,000 on the terms and
subject to the conditions set forth in the Class D Trust Agreement and the
Business Trust Agreement;
WHEREAS, the Liquidity Provider proposes to enter into four separate
revolving credit agreements with the Subordination Agent, as agent and trustee
for the Trustee of each of the Class A-1 Trust, the Class A-2 Trust, the Class B
Trust and the Class C Trust, respectively, for the benefit of the
Certificateholders of such Trust; and
WHEREAS, it is a condition precedent to the obligations of the
Underwriters under the Underwriting Agreement that the Subordination Agent, the
Trustees and the Liquidity Provider agree to the terms of subordination set
forth in this Agreement in respect of each Class of Certificates, and the
Subordination Agent, the Trustees and the Liquidity Provider, by entering into
this Agreement, hereby acknowledge and agree to such terms of subordination and
the other provisions of this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. (a) The definitions stated herein apply
equally to the singular and the plural forms of the terms defined.
(b) All references in this Agreement to designated "Articles", "Sections"
and other subdivisions are to the designated Articles, Sections and other
subdivisions of this Agreement.
(c) The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
(d) 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".
(e) For purposes of this Agreement, unless the context otherwise requires,
the following capitalized terms shall have the following meanings:
"ACCELERATION" means, with respect to the amounts payable in respect
of the Equipment Notes issued under any Indenture, such amounts becoming
immediately due and payable by declaration or otherwise. "Accelerate",
"Accelerated" and "Accelerating" have meanings correlative to the foregoing.
"ADJUSTED EXPECTED DISTRIBUTIONS" means, with respect to the
Certificates of any Trust on any Current Distribution Date, the sum of (x)
accrued and unpaid interest in respect of such Certificates and (y) the greater
of:
(A) the difference between (x) the Pool Balance of such Certificates
as of the immediately preceding Distribution Date (or, if the Current
Distribution Date is the first Distribution Date, the original aggregate
face amount of the Certificates of such Trust) and (y) the Pool Balance of
such Certificates as of the Current Distribution Date calculated on the
basis that (i) the principal of the Non-Performing Equipment Notes held in
such Trust has been paid in full and such payments have been distributed
to the holders of such Certificates, (ii) the principal of the Performing
Equipment Notes held in such Trust has been paid when due (but without
giving effect to any Acceleration of Performing Equipment Notes) and such
payments have been distributed to the holders of such Certificates and
(iii) the principal of any Equipment Notes formerly held in such Trust
that have been sold pursuant to the terms hereof has been paid in full and
such payments have been distributed to the holders of such Certificates,
and
(B) the amount of the excess, if any, of (i) the Pool Balance of
such Class of Certificates as of the immediately preceding Distribution
Date (or, if the Current Distribution Date is the first Distribution Date,
the original aggregate face amount of the Certificates of such Trust),
over (ii) the Aggregate LTV Collateral Amount for such Class of
Certificates for the Current Distribution Date;
provided that, until the date of the initial LTV Appraisals for all the
Aircraft, clause (B) shall not apply.
For purposes of calculating Adjusted Expected Distributions with
respect to the Certificates of any Trust, any premium paid on the Equipment
Notes held in such Trust that has not been distributed to the Certificateholders
of such Trust (other than such premium or a portion thereof applied to the
distribution of interest on the Certificates of such Trust or the reduction of
the Pool Balance of such Trust) shall be added to the amount of Adjusted
Expected Distributions.
"ADVANCE" means, with respect to any Liquidity Facility, any Advance
as defined in such Liquidity Facility.
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, 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.
"AGGREGATE LTV COLLATERAL AMOUNT" for any Class of Certificates for
any Distribution Date means an amount, not less than zero, equal to the product
of (i) the sum of the applicable LTV Collateral Amounts for such Class of
Certificates for all Aircraft, minus the Pool Balance for each Class of
Certificates, if any, senior to such Class, after giving effect to any
distribution of principal on such Distribution Date with respect to such senior
Class or Classes multiplied by (ii) (a) in the case of the Class A-1
Certificates or Class A-2 Certificates, a fraction the numerator of which equals
the Pool Balance for the Class A-1 Certificates or the Class A-2 Certificates,
as the case may be, and the denominator of which equals the aggregate Pool
Balance for the Class A-1 Certificates and the Class A-2 Certificates, in each
case prior to giving effect to any distribution of principal on such
Distribution Date with respect to either such Class of Certificates, and (b) in
the case of the Class B Certificates, the Class C Certificates and the Class D
Certificates, 1.0.
"AIRCRAFT" means, with respect to each Indenture, the "Aircraft"
referred to therein.
"APPRAISAL" means a current fair market value appraisal (which may
be a "desktop" appraisal) performed by any Appraiser or any other nationally
recognized appraiser on the basis of an arm's-length transaction between an
informed and willing purchaser under no compulsion to buy and an informed and
willing seller under no compulsion to sell and both having knowledge of all
relevant facts.
"APPRAISED CURRENT MARKET VALUE" of any Aircraft means the lower of
the average and the median of the three most recent LTV Appraisals of such
Aircraft.
"APPRAISERS" means Aircraft Information Systems, Inc., BK
Associates, Inc. and AvSolutions, Inc.
"AVAILABLE AMOUNT" means, with respect to any Liquidity Facility on
any drawing date, subject to the proviso contained in the first sentence of
Section 3.06(g), an amount equal to (a) the Stated Amount of such Liquidity
Facility at such time, less (b) the aggregate amount of each Interest Drawing
honored by the Liquidity Provider under such Liquidity Facility on or prior to
such date that has not been reimbursed or reinstated as of such date; provided
that, following a Downgrade Drawing, a Non-Extension Drawing or a Final Drawing
under such Liquidity Facility, the Available Amount of such Liquidity Facility
shall be zero.
"BASIC AGREEMENT" means that certain Pass Through Trust Agreement,
dated as of November 16, 2000, between Delta and State Street, as the same may
be amended, supplemented or otherwise modified from time to time in accordance
with its terms, but does not include any Trust Supplement.
"BANKRUPTCY CODE" means the United States Bankruptcy Code, 11 United
States Codess.ss.101 et seq., as amended, or any successor statutEs thereto.
"BUSINESS DAY" means, with respect to the Certificates of any Class,
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, Atlanta, Georgia, or, so
long as any Certificate of such Class is outstanding, the city and state in
which the Trustee, the Subordination Agent or any related Loan Trustee maintains
its Corporate Trust Office or receives and disburses funds, and that, solely
with respect to draws under any Liquidity Facility, also is a "Business Day" as
defined in such Liquidity Facility.
"BUSINESS TRUST AGREEMENT" means the Trust Agreement dated as of
September 14, 2001 between Aero Assurance Ltd. and Wilmington Trust Company, as
Owner Trustee, governing the creation and administration of the Initial Class D
Holder, as the same may be amended, supplemented or otherwise modified from time
to time in accordance with its terms.
"CASH COLLATERAL ACCOUNT" means the Class A-1 Cash Collateral
Account, the Class A-2 Cash Collateral Account, the Class B Cash Collateral
Account or the Class C Cash Collateral Account, as applicable.
"CERTIFICATE" means a Class A-1 Certificate, a Class A-2
Certificate, a Class B Certificate, a Class C Certificate or a Class D
Certificate, as applicable.
"CERTIFICATEHOLDER" means, with respect to any Class of
Certificates, the Person in whose name a Certificate is registered in the
Register for the Certificates of such Class.
"CITIZEN OF THE UNITED STATES" has the meaning specified for such
term in Section 40102(a)(15) of Title 49 of the United States Code or any
similar legislation of the United States enacted in substitution or replacement
therefor.
"CLASS" has the meaning specified in the recitals to this Agreement.
"CLASS A-1 CASH COLLATERAL ACCOUNT" means an Eligible Deposit
Account in the name of the Subordination Agent maintained at an Eligible
Institution, which shall be the Subordination Agent if it so qualifies, into
which amounts shall be deposited as referred to in Section 3.06(f).
"CLASS A-1 CERTIFICATEHOLDER" means, at any time, any
Certificateholder of one or more Class A-1 Certificates.
"CLASS A-1 CERTIFICATES" means the certificates issued by the Class
A-1 Trust, substantially in the form of Exhibit A to the Class A-1 Trust
Agreement, and authenticated by the Class A-1 Trustee, representing Fractional
Undivided Interests in the Class A-1 Trust, and any certificates issued in
exchange therefor or replacement thereof pursuant to the terms of the Class A-1
Trust Agreement.
"CLASS A-1 LIQUIDITY FACILITY" means, initially, the Revolving
Credit Agreement, dated as of the date hereof, between the Subordination Agent,
as agent and trustee for the Class A-1 Trustee, and Helaba and, from and after
the replacement of such agreement pursuant hereto, the Replacement Liquidity
Facility therefor, if any, in each case as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"CLASS A-1 LIQUIDITY PROVIDER" means Helaba, together with any
Replacement Liquidity Provider that has issued a Replacement Liquidity Facility
to replace the Class A-1 Liquidity Facility pursuant to Section 3.06(c) or
3.06(e).
"CLASS A-1 TRUST" means the Delta Air Lines Pass Through Trust
2001-1A-1 created and administered pursuant to the Class A-1 Trust Agreement.
"CLASS A-1 TRUST AGREEMENT" means the Basic Agreement, as
supplemented by Trust Supplement No. 2001-1A-1 thereto, dated as of the date
hereof, governing the creation and administration of the Delta Air Lines Pass
Through Trust 2001-1A-1 and the issuance of the Class A-1 Certificates, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
"CLASS A-1 TRUSTEE" means State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity except as
expressly set forth in the Class A-1 Trust Agreement, but solely as trustee
under the Class A-1 Trust Agreement, together with any successor trustee
appointed pursuant thereto.
"CLASS A-2 CASH COLLATERAL ACCOUNT" means an Eligible Deposit
Account in the name of the Subordination Agent maintained at an Eligible
Institution, which shall be the Subordination Agent if it so qualifies, into
which amounts shall be deposited as referred to in Section 3.06(f).
"CLASS A-2 CERTIFICATEHOLDER" means, at any time, any
Certificateholder of one or more Class A-2 Certificates.
"CLASS A-2 CERTIFICATES" means the certificates issued by the Class
A-2 Trust, substantially in the form of Exhibit A to the Class A-2 Trust
Agreement, and authenticated by the Class A-2 Trustee, representing Fractional
Undivided Interests in the Class A-2 Trust, and any certificates issued in
exchange therefor or replacement thereof pursuant to the terms of the Class A-2
Trust Agreement.
"CLASS A-2 LIQUIDITY FACILITY" means, initially, the Revolving
Credit Agreement, dated as of the date hereof, between the Subordination Agent,
as agent and trustee for the Class A-2 Trustee, and Helaba and, from and after
the replacement of such agreement pursuant hereto, the Replacement Liquidity
Facility therefor, if any, in each case as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"CLASS A-2 LIQUIDITY PROVIDER" means Helaba, together with any
Replacement Liquidity Provider that has issued a Replacement Liquidity Facility
to replace the Class A-2 Liquidity Facility pursuant to Section 3.06(c) or
3.06(e).
"CLASS A-2 TRUST" means the Delta Air Lines Pass Through Trust
2001-1A-2 created and administered pursuant to the Class A-2 Trust Agreement.
"CLASS A-2 TRUST AGREEMENT" means the Basic Agreement, as
supplemented by Trust Supplement No. 2001-1A-2 thereto, dated as of the date
hereof, governing the creation and administration of the Delta Air Lines Pass
Through Trust 2001-1A-2 and the issuance of the Class A-2 Certificates, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with its terms.
"CLASS A-2 TRUSTEE" means State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity except as
expressly set forth in the Class A-2 Trust Agreement, but solely as trustee
under the Class A-2 Trust Agreement, together with any successor trustee
appointed pursuant thereto.
"CLASS B CASH COLLATERAL ACCOUNT" means an Eligible Deposit Account
in the name of the Subordination Agent maintained at an Eligible Institution,
which shall be the Subordination Agent if it so qualifies, into which amounts
shall be deposited as referred to in Section 3.06(f).
"CLASS B CERTIFICATEHOLDER" means, at any time, any
Certificateholder of one or more Class B Certificates.
"CLASS B CERTIFICATES" means the certificates issued by the Class B
Trust, substantially in the form of Exhibit A to the Class B Trust Agreement,
and authenticated by the Class B Trustee, representing Fractional Undivided
Interests in the Class B Trust, and any certificates issued in exchange therefor
or replacement thereof pursuant to the terms of the Class B Trust Agreement.
"CLASS B LIQUIDITY FACILITY" means, initially, the Revolving Credit
Agreement, dated as of the date hereof, between the Subordination Agent, as
agent and trustee for the Class B Trustee, and Helaba, and, from and after the
replacement of such agreement pursuant hereto, the Replacement Liquidity
Facility therefor, if any, in each case as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"CLASS B LIQUIDITY PROVIDER" means Helaba, together with any
Replacement Liquidity Provider that has issued a Replacement Liquidity Facility
to replace the Class B Liquidity Facility pursuant to Section 3.06(c) or
3.06(e).
"CLASS B TRUST" means the Delta Air Lines Pass Through Trust 2001-1B
created and administered pursuant to the Class B Trust Agreement.
"CLASS B TRUST AGREEMENT" means the Basic Agreement, as supplemented
by Trust Supplement No. 2001-1B thereto, dated as of the date hereof, governing
the creation and administration of the Delta Air Lines Pass Through Trust
2001-1B and the issuance of the Class B Certificates, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
its terms.
"CLASS B TRUSTEE" means State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity except as
expressly set forth in the Class B Trust Agreement, but solely as trustee under
the Class B Trust Agreement, together with any successor trustee appointed
pursuant thereto.
"CLASS C CASH COLLATERAL ACCOUNT" means an Eligible Deposit Account
in the name of the Subordination Agent maintained at an Eligible Institution,
which shall be the Subordination Agent if it so qualifies, into which amounts
shall be deposited as referred to in Section 3.06(f).
"CLASS C CERTIFICATEHOLDER" means, at any time, any
Certificateholder of one or more Class C Certificates.
"CLASS C CERTIFICATES" means the certificates issued by the Class C
Trust, substantially in the form of Exhibit A to the Class C Trust Agreement,
and authenticated by the Class C Trustee, representing Fractional Undivided
Interests in the Class C Trust, and any certificates issued in exchange therefor
or replacement thereof pursuant to the terms of the Class C Trust Agreement.
"CLASS C LIQUIDITY FACILITY" means, initially, the Revolving Credit
Agreement, dated as of the date hereof, between the Subordination Agent, as
agent and trustee for the Class C Trustee, and Helaba, and, from and after the
replacement of such agreement pursuant hereto, the Replacement Liquidity
Facility therefor, if any, in each case as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"CLASS C LIQUIDITY PROVIDER" means Helaba, together with any
Replacement Liquidity Provider that has issued a Replacement Liquidity Facility
to replace the Class C Liquidity Facility pursuant to Section 3.06(c) or
3.06(e).
"CLASS C TRUST" means the Delta Air Lines Pass Through Trust 2001-1C
created and administered pursuant to the Class C Trust Agreement.
"CLASS C TRUST AGREEMENT" means the Basic Agreement, as supplemented
by Trust Supplement No. 2001-1C thereto, dated as of the date hereof, governing
the creation and administration of the Delta Air Lines Pass Through Trust
2001-1C and the issuance of the Class C Certificates, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
its terms.
"CLASS C TRUSTEE" means State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity except as
expressly set forth in the Class C Trust Agreement, but solely as trustee under
the Class C Trust Agreement, together with any successor trustee appointed
pursuant thereto.
"CLASS D CERTIFICATEHOLDER" means, at any time, any
Certificateholder of one or more Class D Certificates.
"CLASS D CERTIFICATES" means the certificates issued by the Class D
Trust, substantially in the form of Exhibit A to the Class D Trust Agreement,
and authenticated by the Class D Trustee, representing Fractional Undivided
Interests in the Class D Trust, and any certificates issued in exchange therefor
or replacement thereof pursuant to the terms of the Class D Trust Agreement.
"CLASS D TRUST" means the Delta Air Lines Pass Through Trust
2001-1D, created and administered pursuant to the Class D Trust Agreement.
"CLASS D TRUST AGREEMENT" means the Basic Agreement, as supplemented
by Trust Supplement No. 2001-1D thereto, dated as of the date hereof, governing
the creation and administration of the Delta Air Lines Pass Through Trust
2001-1D and the issuance of the Class D Certificates, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
its terms.
"CLASS D TRUSTEE" means State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity except as
expressly set forth in the Class D Trust Agreement, but solely as trustee under
the Class D Trust Agreement, together with any successor trustee appointed
pursuant thereto.
"CLOSING DATE" means September 17, 2001.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time, and Treasury Regulations promulgated thereunder.
"COLLATERAL" means, with respect to any Indenture, the "Collateral"
referred to therein.
"COLLECTION ACCOUNT" means the Eligible Deposit Account established
by the Subordination Agent pursuant to Section 2.02(a) in and from which the
Subordination Agent shall make deposits and withdrawals in accordance with this
Agreement.
"CONSENT PERIOD" has the meaning specified in Section 3.06(d).
"CONTROLLING PARTY" means the Person entitled to act as such
pursuant to the terms of Section 2.06.
"CORPORATE TRUST OFFICE" means, with respect to any Trustee, the
Subordination Agent or any Loan Trustee, the office of such Person in the city
at which, at any particular time, its corporate trust business shall be
principally administered.
"CURRENT DISTRIBUTION DATE" means a Distribution Date specified as a
reference date for calculating the Expected Distributions or the Adjusted
Expected Distributions with respect to the Certificates of any Trust as of such
Distribution Date.
"DELTA" means Delta Air Lines, Inc., a Delaware corporation, and
its successors and permitted assigns.
"DELTA BANKRUPTCY EVENT" means the occurrence and continuation of
any of the following:
(a) Delta consents to the appointment of or the taking of possession
by a receiver, trustee or liquidator of itself or of a substantial part of
its property, admits in writing its inability to pay its debts generally
as they come due or makes a general assignment for the benefit of
creditors;
(b) Delta files a voluntary petition in bankruptcy or a voluntary
petition or an answer seeking reorganization, liquidation or other relief
as a debtor in a case under any bankruptcy laws or insolvency laws (as in
effect at such time) or an answer admitting the material allegations of a
petition filed against Delta as a debtor in any such case, or Delta seeks
relief as a debtor by voluntary petition, answer or consent, under the
provisions of any other bankruptcy or other similar law providing for the
reorganization or winding-up of corporations (as in effect at such time),
or Delta seeks an agreement, composition, extension or adjustment with its
creditors under such laws; or
(c) an order, judgment or decree is entered by any court of
competent jurisdiction appointing, without the consent of Delta , a
receiver, trustee or liquidator of Delta or sequestering any substantial
part of its property, or granting any other relief in respect of Delta as
a debtor under any bankruptcy laws or insolvency laws (as in effect at
such time), and any such order, judgment or decree of appointment or
sequestration remains in force undismissed, unstayed and unvacated for a
period of 90 days after the date of entry thereof; or
(d) a petition against Delta as a debtor in a case under the federal
bankruptcy laws or other insolvency laws (as in effect at such time) is
filed and not withdrawn or dismissed within 90 days thereafter, or if,
under the provisions of any law providing for reorganization or winding-up
of corporations that applies to Delta , any court of competent
jurisdiction assumes jurisdiction, custody or control of Delta or of any
substantial part of its property and such jurisdiction, custody or control
remains in force unrelinquished, unstayed and unterminated for a period of
90 days.
"DELTA PROVISIONS" has the meaning specified in Section 8.01(a).
"DESIGNATED REPRESENTATIVES" means the Subordination Agent
Representatives, the Trustee Representatives and the LP Representatives
identified under Section 2.05.
"DISTRIBUTION DATE" means a Regular Distribution Date or a Special
Distribution Date.
"DOLLARS" means the lawful currency of the United States.
"DOWNGRADE DRAWING" has the meaning specified in Section 3.06(c).
"DOWNGRADE EVENT" has the meaning specified in each Liquidity
Facility.
"DOWNGRADED FACILITY" has the meaning specified in Section 3.06(c).
"DRAWING" means an Interest Drawing, a Final Drawing, a
Non-Extension Drawing or a Downgrade Drawing, as the case may be.
"ELIGIBLE DEPOSIT ACCOUNT" means either (a) a segregated account
with an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution organized under the laws
of the United States or any one of the states thereof or the District of
Columbia (or any United States branch of a foreign bank), having corporate trust
powers and acting as trustee for funds deposited in such account, so long as any
of the securities of such depository institution has a long-term unsecured debt
rating of at least A3 or its equivalent by Moody's or at least A- or its
equivalent by S&P. An Eligible Deposit Account may be maintained with the
Subordination Agent or Liquidity Provider so long as the Subordination Agent or
such Liquidity Provider is an Eligible Institution; provided that the
Subordination Agent, in its individual capacity, or such Liquidity Provider
shall have waived all rights of set-off and counterclaim with respect to such
account.
"ELIGIBLE INSTITUTION" means (a) the corporate trust department of
the Subordination Agent or any Trustee, as applicable, or (b) a depository
institution organized under the laws of the United States of America or any
state thereof or the District of Columbia (or any U.S. branch of a foreign
bank), which has a long-term unsecured debt rating of at least A3 or its
equivalent by Moody's or at least A- or its equivalent by S&P.
"ELIGIBLE INVESTMENTS" means investments in (a) obligations of the
United States government or agencies thereof, or obligations guaranteed by the
United States government, (b) open market commercial paper of any corporation
incorporated under the laws of the United States or any state thereof rated at
least P-1 or its equivalent by Moody's or at least A-1 or its equivalent by S&P,
(c) certificates of deposit issued by commercial banks organized under the laws
of the United States or of any political subdivision thereof (or any United
States branch of a foreign bank) having a combined capital and surplus in excess
of $500,000,000 which banks or their holding companies have a rating of A or its
equivalent by Moody's or A or its equivalent by S&P; provided, however, that the
aggregate amount at any one time invested in certificates of deposit issued by
any one bank shall not be in excess of 5% of such bank's capital and surplus,
(d) Dollar denominated offshore certificates of deposit issued by, or offshore
time deposits with, any commercial bank described in (c) or any subsidiary
thereof, and (e) repurchase agreements with any financial institution having
combined capital and surplus of at least $500,000,000 with any of the
obligations described in clauses (a) through (d) as collateral. If none of the
above investments is available, the entire amounts to be invested may be used to
purchase Federal funds from an entity described in clause (c). All Eligible
Investments must be held in an Eligible Deposit Account. Any of the investments
described herein may be made through or with, as applicable, the bank acting as
Trustee or its Affiliates.
"EQUIPMENT NOTES" means, at any time, the Series A-1 Equipment
Notes, the Series A-2 Equipment Notes, the Series B Equipment Notes, the Series
C Equipment Notes and the Series D Equipment Notes, collectively, and in each
case, any Equipment Notes issued in exchange therefor or replacement thereof
pursuant to the terms of the Indentures.
"EXPECTED DISTRIBUTIONS" means, with respect to the Certificates of
any Trust on any Current Distribution Date, the sum of (x) accrued and unpaid
interest in respect of such Certificates and (y) the difference between (A) the
Pool Balance of such Certificates as of the immediately preceding Distribution
Date (or, if the Current Distribution Date is the first Distribution Date, the
original aggregate face amount of the Certificates of such Trust) and (B) the
Pool Balance of such Certificates as of the Current Distribution Date calculated
on the basis that (i) the principal of the Equipment Notes held in such Trust
has been paid when due (whether at stated maturity or upon redemption,
prepayment, purchase or Acceleration or otherwise) and such payments have been
distributed to the holders of such Certificates and (ii) the principal of any
Equipment Notes formerly held in such Trust that have been sold pursuant to the
terms hereof has been paid in full and such payments have been distributed to
the holders of such Certificates.
For purposes of calculating Expected Distributions with respect to
the Certificates of any Trust, any premium paid on the Equipment Notes held in
such Trust which has not been distributed to the Certificateholders of such
Trust (other than such premium or a portion thereof applied to distributions of
interest on the Certificates of such Trust or the reduction of the Pool Balance
of such Trust) shall be added to the amount of such Expected Distributions.
"EXPIRY DATE" with respect to any Liquidity Facility, has the
meaning specified in such Liquidity Facility.
"FEE LETTER" means the Fee Letter among Helaba, the Subordination
Agent and Delta with respect to the Liquidity Facilities and any fee letter
entered into among the Subordination Agent, Delta and any Replacement Liquidity
Provider.
"FINAL DISTRIBUTIONS" means, with respect to the Certificates of any
Trust on any Distribution Date, the sum of (x) the aggregate amount of all
accrued and unpaid interest in respect of such Certificates and (y) the Pool
Balance of such Certificates as of the immediately preceding Distribution Date.
For purposes of calculating Final Distributions with respect to the Certificates
of any Trust, any premium paid on the Equipment Notes held in such Trust which
has not been distributed to the Certificateholders of such Trust (other than
such premium or a portion thereof applied to distributions of interest on the
Certificates of such Trust or the reduction of the Pool Balance of such Trust)
shall be added to the amount of such Final Distributions.
"FINAL DRAWING" has the meaning specified in Section 3.06(i).
"FINAL LEGAL DISTRIBUTION DATE" means (i) with respect to the Class
A-1 Certificates, September 18, 2012, (ii) with respect to the Class A-2
Certificates, March 18, 2013, (iii) with respect to the Class B Certificates,
March 18, 2013, (iv) with respect to the Class C Certificates, March 18, 2008
and (v) with respect to the Class D Certificates, September 18, 2006.
"FRACTIONAL UNDIVIDED INTEREST" means the fractional undivided
interest in a Trust that is represented by a Certificate relating to such Trust.
"HELABA" has the meaning specified in the preamble.
"INDENTURE" means each of the Indenture and Security Agreements
entered into by the Loan Trustee and Delta pursuant to the Participation
Agreements, in each case as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"INDENTURE EVENT OF DEFAULT" means, with respect to any Indenture,
any Event of Default (as such term is defined in such Indenture) thereunder.
"INITIAL CLASS D HOLDER" means Delta Class D Certificate Trust, a
Delaware business trust organized pursuant to the Business Trust Agreement, as
the sole initial purchaser and holder of the Class D Certificates.
"INTEREST DRAWING" has the meaning specified in Section 3.06(a).
"INTEREST PAYMENT DATE" means, with respect to any Liquidity
Facility, each date on which interest is due and payable under Section 3.07(c),
(d) or (e) of such Liquidity Facility on a Downgrade Drawing, Non-Extension
Drawing or Final Drawing thereunder.
"INVESTMENT EARNINGS" means investment earnings on funds on deposit
in the Trust Accounts net of losses and the Subordination Agent's reasonable
expenses in making such investments.
"LENDING OFFICE" has the meaning, with respect to any Liquidity
Facility, ascribed to such term in such Liquidity Facility.
"LIEN" means any mortgage, pledge, lien, charge, claim, encumbrance,
lease, sublease or security interest of any kind.
"LIQUIDITY EVENT OF DEFAULT", with respect to any Liquidity
Facility, has the meaning specified in such Liquidity Facility.
"LIQUIDITY EXPENSES" means all Liquidity Obligations other than (i)
the principal amount of any Drawings under the Liquidity Facilities and (ii) any
interest accrued on any Liquidity Obligations.
"LIQUIDITY FACILITY" means, at any time, the Class A-1 Liquidity
Facility, the Class A-2 Liquidity Facility, the Class B Liquidity Facility or
the Class C Liquidity Facility, as applicable.
"LIQUIDITY OBLIGATIONS" means all principal, interest, fees and
other amounts owing to the Liquidity Providers under the Liquidity Facilities,
Section 4.02 of the Participation Agreements or the Fee Letter.
"LIQUIDITY PROVIDER" means, at any time, the Class A-1 Liquidity
Provider, the Class A-2 Liquidity Provider, the Class B Liquidity Provider or
the Class C Liquidity Provider, as applicable.
"LOAN TRUSTEE" means, with respect to any Indenture, the bank, trust
company or other financial institution designated as loan trustee thereunder,
and any successor to such loan trustee.
"LP INCUMBENCY CERTIFICATE" has the meaning specified in Section
2.05(c).
"LP REPRESENTATIVES" has the meaning specified in Section 2.05(c).
"LTV APPRAISALS" has the meaning specified in Section 4.01(a).
"LTV COLLATERAL AMOUNT" of any Aircraft for any Class of
Certificates means, as of any Distribution Date, the lesser of (i)(x) with
respect to any Aircraft other than an Aircraft referred to in the following
clauses (y) and (z), the LTV Ratio for such Class of Certificates multiplied by
the Appraised Current Market Value of such Aircraft or (y) with respect to any
such Aircraft that has suffered an Event of Loss under and as defined in the
relevant Indenture, the amount of the insurance proceeds paid to the related
Loan Trustee in respect thereof to the extent then held by such Loan Trustee
(and/or on deposit in the Special Payments Account) or payable to such Loan
Trustee in respect thereof or (z) with respect to any such Aircraft that has
been released from the applicable Indenture pursuant to the provisions of
Section 10.01(b) thereof, the amount of money and U.S. Government Obligations
deposited with the Loan Trustee pursuant thereto as of such Distribution Date
and (ii) the outstanding principal amount of the Equipment Notes secured by such
Aircraft after giving effect to any principal payments of such Equipment Notes
on or before such Distribution Date.
"LTV RATIO" means (i) for the Class A-1 Certificates, 46.0%, (ii)
for the Class A-2 Certificates, 46.0%, (iii) for the Class B Certificates,
60.0%, (iv) for the Class C Certificates, 66.0% and (v) for the Class D
Certificates, 75.0%.
"MINIMUM SALE PRICE" means, with respect to any Aircraft or the
Equipment Notes issued in respect of such Aircraft, at any time, the lesser of
(a) 75% of the Appraised Current Market Value of such Aircraft and (b) the
aggregate outstanding principal amount of such Equipment Notes, plus accrued and
unpaid interest thereon.
"MOODY'S" means Moody's Investors Service, Inc.
"NON-CONTROLLING PARTY" means, at any time, any Trustee or Liquidity
Provider which is not the Controlling Party at such time.
"NON-EXTENDED FACILITY" has the meaning specified in Section
3.06(d).
"NON-EXTENSION DRAWING" has the meaning specified in Section
3.06(d).
"NON-PERFORMING EQUIPMENT NOTE" means an Equipment Note issued
pursuant to an Indenture that is not a Performing Equipment Note.
"OFFICER'S CERTIFICATE" of any Person means a certification signed
by a Responsible Officer of such Person.
"OPERATIVE AGREEMENTS" means this Agreement, the Liquidity
Facilities, the Business Trust Agreement, the Fee Letter, the Indentures, the
Trust Agreements, the Participation Agreements, the Equipment Notes and the
Certificates, together with all exhibits and schedules included with any of the
foregoing.
"OUTSTANDING" means, when used with respect to each Class of
Certificates, as of the date of determination, all Certificates of such Class
theretofore authenticated and delivered under the related Trust Agreement,
except:
(i) Certificates of such Class theretofore canceled by the Registrar
(as defined in such Trust Agreement) or delivered to the Trustee
thereunder or such Registrar for cancellation;
(ii) all of the Certificates of such Class if money in the full
amount required to make the final distribution with respect to such Class
pursuant to Section 11.01 of such Trust Agreement has been theretofore
deposited with the related Trustee in trust for the Certificateholders of
such Certificates as provided in Section 4.01 of such Trust Agreement,
pending distribution of such money to such Certificateholders pursuant to
payment of such final distribution payment; and
(iii) Certificates of such Class in exchange for or in lieu of which
other Certificates of such Class have been authenticated and delivered
pursuant to such Trust Agreement;
provided, however, that in determining whether the holders of the requisite
Fractional Undivided Interest of such Certificates have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, any
Certificates owned by Delta or any of its Affiliates shall be disregarded and
deemed not to be Outstanding. In determining whether such Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Certificates that such Trustee knows to be so
owned shall be so disregarded. Notwithstanding the foregoing, (x) if Delta and
its Affiliates own 100% of the Certificates of each Class, such Certificates
shall not be so disregarded and (y) if any amount of such Certificates owned by
Delta and its Affiliates have been pledged in good faith, such Certificates
shall not be disregarded if the pledgee establishes to the satisfaction of the
applicable Trustee the pledgee's right so to act with respect to such
Certificates and that the pledgee is not Delta or any of its Affiliates.
"OVERDUE SCHEDULED PAYMENT" means any Scheduled Payment which is not
in fact received by the Subordination Agent within five days after the Scheduled
Payment Date relating thereto.
"PARTICIPATION AGREEMENT" means, with respect to each Indenture, the
"Participation Agreement" referred to therein, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
"PAYEES" has the meaning specified in Section 2.03(c).
"PERFORMING EQUIPMENT NOTE" means an Equipment Note issued pursuant
to an Indenture with respect to which no payment default has occurred and is
continuing (without giving effect to any Acceleration); provided, that in the
event of a bankruptcy proceeding in which Delta is a debtor under Title 11 of
the United States Code (the "Bankruptcy Code"), (i) any payment default
occurring before the date of the order for relief for such proceeding shall not
be taken into consideration during the 60-day period under Section 1110(a)(2)(A)
of the Bankruptcy Code (or such longer period as may apply under Section 1110(b)
of the Bankruptcy Code) (the "Section 1110 period"), (ii) any payment default
occurring after the date of the order for relief in such proceeding shall not be
taken into consideration if such payment default is cured under Section
1110(a)(2)(B) of the Bankruptcy Code before the later of 30 days after the date
of such default or the expiration of the Section 1110 Period and (iii) any
payment default occurring after the Section 1110 Period will not be taken into
consideration if such payment default is cured before the end of the grace
period, if any, set forth in the related Indenture.
"PERFORMING NOTE DEFICIENCY" means any time that less than 65% of
the then aggregate outstanding principal amount of all Equipment Notes are
Performing Equipment Notes.
"PERSON" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
trustee, unincorporated organization or government or any agency or political
subdivision thereof.
"POOL BALANCE" means, with respect to the Certificates of any Class,
as of any date, (i) the original aggregate face amount of the Certificates of
such Class less (ii) the aggregate amount of all distributions made in respect
of such Certificates other than distributions made in respect of interest or
premium or reimbursement of any costs or expenses incurred in connection
therewith. The Pool Balance as of any Distribution Date with respect to each
Class shall be computed after giving effect to the payment of principal, if any,
on the Equipment Notes or other Trust Property held in the related Trust and the
distribution thereof to be made on such date.
"PROCEEDING" means any suit in equity, action at law or other
judicial or administrative proceeding.
"PTC EVENT OF DEFAULT" means, with respect to each Trust Agreement,
the failure to distribute within 10 Business Days after the applicable
Distribution Date: (i) the outstanding Pool Balance of the applicable Class of
Certificates on the Final Legal Distribution Date for such Class or (ii)
interest scheduled for distribution on such Certificates on any Distribution
Date (unless the Subordination Agent shall have made an Interest Drawing, or a
withdrawal from the Cash Collateral Account, with respect thereto in an
aggregate amount sufficient to pay such interest and shall have distributed such
amount to the Trustee entitled thereto).
"RATING AGENCIES" means, collectively, at any time, each of two
nationally recognized rating agencies that have been requested to rate the
Certificates and that are then rating the Certificates. The initial Rating
Agencies will be Moody's and S&P.
"RATINGS CONFIRMATION" means, with respect to any action proposed to
be taken, a written confirmation from each of the Rating Agencies that such
action would not result in (i) a reduction of the rating for any Class of
Certificates below the then current rating for such Class of Certificates or
(ii) a withdrawal or suspension of the rating of any Class of Certificates.
"REGISTER", with respect to any Trust, has the meaning ascribed to
such term in the Trust Agreement for such Trust.
"REGULAR DISTRIBUTION DATES" means each March 18 and September 18,
commencing on March 18, 2002; provided, however, that, if any such day shall not
be a Business Day, the related distribution shall be made on the next succeeding
Business Day without additional interest.
"REPLACEMENT LIQUIDITY FACILITY" means, for any Liquidity Facility,
an irrevocable revolving credit agreement (or agreements) in substantially the
form of the replaced Liquidity Facility, including reinstatement provisions, or
in such other form (which may include a letter of credit, surety bond, financial
insurance policy or guaranty) as shall permit the Rating Agencies to confirm in
writing their respective ratings then in effect for the Certificates of the
Class with respect to which such Liquidity Facility was issued (before
downgrading of such ratings, if any, as a result of the downgrading, if any, of
the applicable Liquidity Provider), in a face amount (or in an aggregate face
amount) equal to the applicable Required Amount and issued by a Person (or
Persons) having short-term unsecured debt ratings issued by both Rating Agencies
that are equal to or higher than the Threshold Rating specified in clause (a) of
the definition of Threshold Rating or if such Person (or Persons) does not have
a short-term unsecured debt rating from a given Rating Agency, a long-term
unsecured debt rating issued by such Rating Agency that is equal to or higher
than the Threshold Rating specified in clause (b) of the definition of Threshold
Rating. Without limitation of the form that a Replacement Liquidity Facility
otherwise may have pursuant to the preceding sentence, a Replacement Liquidity
Facility for any Class of Certificates may have a stated expiration date earlier
than 15 days after the Final Legal Distribution Date of such Class of
Certificates so long as such Replacement Liquidity Facility provides for a
Non-Extension Drawing as contemplated by Section 3.06(d) hereof.
"REPLACEMENT LIQUIDITY PROVIDER" means a Person who issues a
Replacement Liquidity Facility.
"REQUIRED AMOUNT" means, with respect to each Liquidity Facility, or
the Cash Collateral Account, for any Class, for any day, the sum of the
aggregate amount of interest, calculated at the rate per annum equal to the
Stated Interest Rate for the related Class of Certificates on the basis of a
360-day year comprised of twelve 30-day months, that would be distributable on
such Class of Certificates on each of the three successive Regular Distribution
Dates immediately following such day or, if such day is a Regular Distribution
Date, on such day and the succeeding two Regular Distribution Dates, in each
case calculated on the basis of the Pool Balance of such Class of Certificates
on such date and without regard to expected future distributions of principal on
such Class of Certificates.
"RESPONSIBLE OFFICER" means (i) with respect to the Subordination
Agent and each of the Trustees, any officer in the Corporate Trust Department or
similar department of the Subordination Agent or such Trustee, as the case may
be, or any other officer customarily performing functions similar to those
performed by the persons who at the time shall be such officers or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with a particular subject, and (ii) with respect to each Liquidity Provider, any
authorized officer of such Liquidity Provider.
"SCHEDULED PAYMENT" means, with respect to any Equipment Note, (i)
any payment of principal or interest on such Equipment Note (other than an
Overdue Scheduled Payment) or (ii) any distribution in respect of interest on
such Equipment Note to the Certificateholders of Certificates of the
corresponding Class of Certificates with funds drawn under the Liquidity
Facility for such Class or withdrawn from the Cash Collateral Account for such
Class, which payment in the case of clause (i) or clause (ii) represents an
installment of principal on such Equipment Note at the stated maturity of such
installment, or 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.
"SCHEDULED PAYMENT DATE" means, with respect to any Scheduled
Payment, the date on which such Scheduled Payment is scheduled to be made.
"SERIES A-1 EQUIPMENT NOTES" means the Series A-1 Equipment Notes
issued pursuant to each Indenture by Delta and authenticated by the Loan Trustee
thereunder, and any such Equipment Notes issued in exchange therefor or
replacement thereof pursuant to the terms of such Indenture.
"SERIES A-2 EQUIPMENT NOTES" means the Series A-2 Equipment Notes
issued pursuant to each Indenture by Delta and authenticated by the Loan Trustee
thereunder, and any such Equipment Notes issued in exchange therefor or
replacement thereof pursuant to the terms of such Indenture.
"SERIES B EQUIPMENT NOTES" means the Series B Equipment Notes issued
pursuant to each Indenture by Delta and authenticated by the Loan Trustee
thereunder, and any such Equipment Notes issued in exchange therefor or
replacement thereof pursuant to the terms of such Indenture.
"SERIES C EQUIPMENT NOTES" means the Series C Equipment Notes issued
pursuant to each Indenture by Delta and authenticated by the Loan Trustee
thereunder, and any such Equipment Notes issued in exchange therefor or
replacement thereof pursuant to the terms of such Indenture.
"SERIES D EQUIPMENT NOTES" means the Series D Equipment Notes issued
pursuant to each Indenture by Delta and authenticated by the Loan Trustee
thereunder, and any such Equipment Notes issued in exchange therefor or
replacement thereof pursuant to the terms of such Indenture.
"SPECIAL DISTRIBUTION DATE" means, with respect to any Special
Payment, the Business Day chosen by the Subordination Agent pursuant to Section
2.04(a) for the distribution of such Special Payment in accordance with this
Agreement.
"SPECIAL PAYMENT" means any payment (other than a Scheduled Payment
or a distribution referred to in Section 2.03(c)) in respect of, or any proceeds
of, any Equipment Note or Collateral (as defined in each Indenture).
"SPECIAL PAYMENTS ACCOUNT" means the Eligible Deposit Account
created pursuant to Section 2.02(a) as a sub-account to the Collection Account.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.
"STATE STREET" has the meaning specified in the introductory
paragraph to this Agreement.
"STATED AMOUNT" with respect to any Liquidity Facility, means the
Maximum Commitment (as defined in such Liquidity Facility) of the applicable
Liquidity Provider thereunder.
"STATED EXPIRATION DATE" has the meaning specified in Section
3.06(d).
"STATED INTEREST RATE" means (i) with respect to the Class A-1
Certificates, 6.619% per annum, (ii) with respect to the Class A-2 Certificates,
7.111% per annum, (iii), with respect to the Class B Certificates, 7.711% per
annum, (iv) with respect to the Class C Certificates, 7.299% per annum and (v)
with respect to the Class D Certificates 6.950% per annum.
"SUBORDINATION AGENT" has the meaning specified in the introductory
paragraph to this Agreement.
"SUBORDINATION AGENT INCUMBENCY CERTIFICATE" has the meaning
specified in Section 2.05(a).
"SUBORDINATION AGENT REPRESENTATIVES" has the meaning specified in
Section 2.05(a).
"TAX" and "TAXES" means all governmental fees (including, without
limitation, license, filing and registration fees) and all taxes (including,
without limitation, franchise, excise, stamp, value added, income, gross
receipts, sales, use and property taxes), withholdings, assessments, levies,
imposts, duties or charges, of any nature whatsoever, together with any related
penalties, fines, additions to tax or interest thereon imposed, withheld, levied
or assessed by any country, taxing authority or governmental subdivision thereof
or therein or by any international authority, including any taxes imposed on any
Person as a result of such Person being required to collect and pay over
withholding taxes.
"TERMINATION NOTICE" with respect to any Liquidity Facility has the
meaning specified in such Liquidity Facility.
"THRESHOLD RATING" means (a) with respect to the Class A-1 Liquidity
Provider, the Class A-2 Liquidity Provider and the Class B Liquidity Provider, a
short-term unsecured debt rating of P-1 in the case of Moody's and A-1+ in the
case of S&P, and with respect to the Class C Liquidity Provider, a short-term
unsecured debt rating of P-1 in the case of Moody's and A-1 in the case of S&P
and (b) in the case of any Person who does not have a short-term unsecured debt
rating from either or both of such Rating Agencies, then in lieu of such
short-term unsecured debt rating from such Rating Agency or Rating Agencies,
with respect to the Class A-1 Liquidity Provider, the Class A-2 Liquidity
Provider and the Class B Liquidity Provider, a long-term unsecured debt rating
of A1 in the case of Moody's and AA- in the case of S&P, and with respect to the
Class C Liquidity Provider, a long-term unsecured debt rating of A1 in the case
of Moody's and A in the case of S&P.
"TREASURY REGULATIONS" means regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"TRIGGERING EVENT" means (x) the occurrence of an Indenture Event of
Default under all of the Indentures resulting in a PTC Event of Default with
respect to the most senior Class of Certificates then Outstanding, (y) the
Acceleration of all of the outstanding Equipment Notes or (z) the occurrence of
a Delta Bankruptcy Event.
"TRUST" means any of the Class A-1 Trust, the Class A-2 Trust, the
Class B Trust, the Class C Trust or the Class D Trust.
"TRUST ACCOUNTS" has the meaning specified in Section 2.02(a).
"TRUST AGREEMENT" means any of the Class A-1 Trust Agreement, the
Class A-2 Trust Agreement, the Class B Trust Agreement, the Class C Trust
Agreement or the Class D Trust Agreement.
"TRUST PROPERTY", with respect to any Trust, has the meaning
specified in the Trust Agreement for such Trust.
"TRUST SUPPLEMENT" means an agreement supplemental to the Basic
Agreement pursuant to which (i) a separate trust is created for the benefit of
the holders of Certificates of a series, (ii) the issuance of the Certificates
of a series representing fractional undivided interests in such trust is
authorized and (iii) the terms of the Certificates of such series are
established, as such agreement may from time to time be supplemented, amended or
otherwise modified.
"TRUSTEE" means any of the Class A-1 Trustee, the Class A-2 Trustee,
the Class B Trustee, the Class C Trustee or the Class D Trustee.
"TRUSTEE INCUMBENCY CERTIFICATE" has the meaning specified in
Section 2.05(b).
"TRUSTEE REPRESENTATIVES" has the meaning specified in Section
2.05(b).
"UNDERWRITERS" means the several underwriters listed as such in the
Underwriting Agreement.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement, dated
September 6, 2001, among the Underwriters and Delta, relating to the purchase of
the Certificates by the Underwriters, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms.
"UNITED STATES" means the United States of America.
"WRITTEN NOTICE" means, from the Subordination Agent, any Trustee or
Liquidity Provider, a written instrument executed by the Designated
Representative of such Person. An invoice delivered by a Liquidity Provider
pursuant to Section 3.01 in accordance with its normal invoicing procedures
shall constitute Written Notice under such Section.
ARTICLE II
TRUST ACCOUNTS; CONTROLLING PARTY
Section 2.01. Agreement to Terms of Subordination; Payments from
Monies Received Only. (a) Each Trustee hereby acknowledges and agrees to the
terms of subordination set forth in this Agreement in respect of each Class of
Certificates and agrees to enforce such provisions and cause all payments in
respect of the Equipment Notes and the Liquidity Facilities to be applied in
accordance with the terms of this Agreement. In addition, each Trustee hereby
agrees to cause the Equipment Notes purchased by the related Trust to be
registered in the name of the Subordination Agent or its nominee, as agent and
trustee for such Trustee, to be held in trust by the Subordination Agent solely
for the purpose of facilitating the enforcement of the subordination and other
provisions of this Agreement.
(b) Except as otherwise expressly provided in the next succeeding
sentence of this Section 2.01(b), all payments to be made by the Subordination
Agent hereunder shall be made only from amounts received by it that constitute
Scheduled Payments, Special Payments and other payments under the Operative
Agreements, including payments under Section 4.02 of the Participation
Agreements and Section 2.14 of the Indentures, and only to the extent that the
Subordination Agent shall have received sufficient income or proceeds therefrom
to enable it to make such payments in accordance with the terms hereof. Each of
the Trustees and the Subordination Agent hereby agrees and each
Certificateholder, by its acceptance of a Certificate, and each Liquidity
Provider, by entering into the Liquidity Facility to which it is a party, has
agreed to look solely to such amounts to the extent available for distribution
to it as provided in this Agreement or the applicable Trust Agreement, as the
case may be, and that none of the Trustees, Loan Trustees or the Subordination
Agent is personally liable to any of them for any amounts payable or any
liability under this Agreement, any Trust Agreement, any Liquidity Facility or
such Certificate, except (in the case of the Subordination Agent) as expressly
provided herein or (in the case of the Trustees) as expressly provided herein
and in each Trust Agreement or (in the case of the Loan Trustees) as expressly
provided in any Operative Agreement.
Notwithstanding anything to the contrary in this Agreement and in
the other Operative Agreements, the Certificates do not represent indebtedness
of the related Trust, and references in this Agreement and the Operative
Agreements to accrued interest or principal amounts payable on the Certificates
of any Class are included only for computational purposes. For purposes of such
computations, the Certificates of any Class shall be deemed to be comprised of
interest and principal components, with the principal component deemed to be the
Pool Balance, and the interest component deemed to equal interest accruing at
the Stated Interest Rate for such Class of Certificates from (i) the later of
(1) the date of the issuance thereof and (2) the most recent but preceding
Distribution Date to which such interest was distributed to (ii) the applicable
date of determination, such interest to be considered payable in arrears and to
be calculated on the basis of a 360-day year comprised of twelve 30-day months.
Section 2.02. Trust Accounts. (a) Upon the execution of this
Agreement, the Subordination Agent shall establish and maintain in its name (i)
the Collection Account as an Eligible Deposit Account, bearing a designation
clearly indicating that the funds deposited therein are held in trust for the
benefit of the Trustees, the Certificateholders and the Liquidity Providers, and
(ii) as a sub-account in the Collection Account, the Special Payments Account as
an Eligible Deposit Account, bearing a designation clearly indicating that the
funds deposited therein are held in trust for the benefit of the Trustees, the
Certificateholders and the Liquidity Providers. The Subordination Agent shall
establish and maintain the Cash Collateral Accounts pursuant to and under the
circumstances set forth in Section 3.06(f). Upon such establishment and
maintenance under Section 3.06(f), the Cash Collateral Accounts shall, together
with the Collection Account, constitute the "Trust Accounts" hereunder.
(b) Funds on deposit in the Trust Accounts shall be invested and
reinvested by the Subordination Agent in Eligible Investments selected by Delta
or its designated representative if such investments are reasonably available
and have maturities no later than the earlier of (i) 90 days following the date
of such investment and (ii) the Business Day immediately preceding the Regular
Distribution Date or the date of the related distribution pursuant to Section
2.04, as the case may be, next following the date of such investment; provided,
however, that, following the making of a Non-Extension Drawing under any
Liquidity Facility, the Subordination Agent shall invest and reinvest the
amounts in the applicable Cash Collateral Account in Eligible Investments
pursuant to the written instructions of the Liquidity Provider funding such
Drawing, and provided further, however, that upon the occurrence and during the
continuation of a Triggering Event, the Subordination Agent shall invest and
reinvest such amounts (other than amounts in the Cash Collateral Accounts as a
result of a Non-Extension Drawing, which shall be governed by the foregoing
proviso) in Eligible Investments in accordance with the written instructions of
the Controlling Party. Unless otherwise expressly provided in this Agreement
(including, without limitation, with respect to Investment Earnings on amounts
on deposit in the Cash Collateral Accounts, Section 3.06(f)), any Investment
Earnings shall be deposited in the Collection Account when received by the
Subordination Agent and shall be applied by the Subordination Agent in the same
manner as the other amounts on deposit in the Collection Account are to be
applied. The Subordination Agent's reasonable fees and expenses actually
incurred in making such investments and any losses incurred in such investments
shall be charged against the principal amount invested. The Subordination Agent
shall not be liable for any loss resulting from any investment, reinvestment or
liquidation required to be made under this Agreement other than by reason of its
willful misconduct or negligence. Eligible Investments and any other investment
required to be made hereunder shall be held to their maturities except that any
such investment may be sold (without regard to its maturity) by the
Subordination Agent without instructions whenever such sale is necessary to make
a distribution required under this Agreement. Uninvested funds held hereunder
shall not earn or accrue interest.
(c) The Subordination Agent shall possess all right, title and
interest in all funds on deposit from time to time in the Trust Accounts and in
all proceeds thereof (including all income thereon, except as otherwise
expressly provided herein with respect to Investment Earnings). The Trust
Accounts shall be held in trust by the Subordination Agent under the sole
dominion and control of the Subordination Agent for the benefit of the Trustees,
the Certificateholders and the Liquidity Providers, as the case may be. If, at
any time, any of the Trust Accounts ceases to be an Eligible Deposit Account,
the Subordination Agent shall within 10 Business Days (or such longer period,
not to exceed 30 calendar days, to which each Rating Agency may consent)
establish a new Collection Account, Special Payments Account or Cash Collateral
Account, as the case may be, as an Eligible Deposit Account and shall transfer
any cash and/or any investments to such new Collection Account, Special Payments
Account or Cash Collateral Account, as the case may be. So long as the
Subordination Agent is an Eligible Institution, the Trust Accounts shall be
maintained with it as Eligible Deposit Accounts.
Section 2.03. Deposits to the Collection Account and Special
Payments Account; Certain Distributions. (a) The Subordination Agent shall, on
each day when one or more Scheduled Payments are made to the Subordination Agent
as holder of the Equipment Notes, deposit in the Collection Account the
aggregate amount of such Scheduled Payments.
(b) The Subordination Agent shall, on each day when one or more
Special Payments are made to the Subordination Agent as holder of the Equipment
Notes, deposit in the Special Payments Account the aggregate amount of such
Special Payments.
(c) In the event that a Loan Trustee distributes to the
Subordination Agent pursuant to Section 3.04 or clause "first" of Section 3.03
of any Indenture any amounts payable under clauses (b), (c) or (d) of Section
2.14 of any Indenture, the Subordination Agent shall promptly deposit such
amounts in the Collection Account. The Subordination Agent will distribute
promptly upon receipt thereof (or in the case of any such payment, compensation
or reimbursement in respect of the Subordination Agent, will retain) (i) any
indemnity payment received by it from Delta in respect of any Trustee, the
Subordination Agent or any Liquidity Provider (collectively, the "Payees") and
(ii) any compensation or reimbursement received by it from Delta or the Loan
Trustee under any Operative Agreement in respect of any Payee (including,
without limitation, any fees payable to any Liquidity Provider under Section
2.03 of any Liquidity Facility or other amounts referred to in clauses (a), (c)
or (d) of Section 2.14 of any Indenture), in any such case directly to the Payee
entitled thereto, provided that if such Payee has previously received from the
Collection Account such payment, compensation or reimbursement, then the
Subordination Agent shall deposit such amount in the Collection Account.
Section 2.04. Distributions of Special Payments. (a) Notice of
Special Payment. Upon receipt by the Subordination Agent, as registered holder
of the Equipment Notes, of any notice of a Special Payment (or, in the absence
of any such notice, upon receipt by the Subordination Agent of a Special
Payment), the Subordination Agent shall promptly give notice thereof to each
Trustee and the Liquidity Providers. The Subordination Agent shall promptly
calculate the amount of the prepayment (including upon Acceleration), redemption
or purchase of Equipment Notes or the amount of any Overdue Scheduled Payment,
as the case may be, comprising such Special Payment under the applicable
Indenture or Indentures and shall promptly send to each Trustee a Written Notice
of such amount and the amount allocable to each Trust. Such Written Notice shall
also set the distribution date for such Special Payment (a "Special Distribution
Date"), which shall be the first Business Day that follows the later to occur of
(x) the 15th day after the date of such Written Notice or (y) the date the
Subordination Agent has received or expects to receive such Special Payment.
Amounts on deposit in the Special Payments Account shall be distributed in
accordance with Sections 2.04(b) and 2.04(c) hereof, as applicable.
(b) Redemptions, Purchases and Prepayments of Equipment Notes. (i)
So long as no Triggering Event shall have occurred (whether or not continuing),
the Subordination Agent shall make distributions pursuant to this Section
2.04(b) of amounts on deposit in the Special Payments Account on account of the
redemption, purchase (including, without limitation, a purchase resulting from a
sale of the Equipment Notes permitted by Article IV) or prepayment (including
upon Acceleration) of all of the Equipment Notes issued pursuant to an Indenture
on the Special Distribution Date for such Special Payment in the following order
of priority:
first, such amount as shall be required to pay (A) all accrued
and unpaid Liquidity Expenses then in arrears plus (B) the product
of (x) the aggregate amount of all accrued and unpaid Liquidity
Expenses not in arrears to such Special Distribution Date multiplied
by (y) a fraction, the numerator of which is the aggregate
outstanding principal amount of Equipment Notes being redeemed,
purchased or prepaid on such Special Distribution Date and the
denominator of which is the aggregate outstanding principal amount
of all Equipment Notes, shall be distributed to the Liquidity
Providers pro rata on the basis of the amount of Liquidity Expenses
owed to each Liquidity Provider;
second, such amount as shall be required to pay (A) all
accrued and unpaid interest (including interest accrued and unpaid
on any Interest Drawing or any Applied Provider Advance (as defined
in any Liquidity Facility)) then in arrears on all Liquidity
Obligations plus (B) the product of (x) the aggregate amount of all
accrued and unpaid interest on all Liquidity Obligations not in
arrears to such Special Distribution Date (at the rate provided in
the applicable Liquidity Facility) multiplied by (y) a fraction, the
numerator of which is the aggregate outstanding principal amount of
Equipment Notes being redeemed, purchased or prepaid on such Special
Distribution Date and the denominator of which is the aggregate
outstanding principal amount of all Equipment Notes, shall be
distributed to the Liquidity Providers pro rata on the basis of the
amount of accrued and unpaid interest owed to each Liquidity
Provider;
third, such amount as shall be required (A) if any Cash
Collateral Account has been previously funded as provided in Section
3.06(f), to fund such Cash Collateral Account up to its Required
Amount shall be deposited in such Cash Collateral Account, (B) if
any Liquidity Facility shall have become a Downgraded Facility or a
Non-Extended Facility at a time when unreimbursed Interest Drawings
under such Liquidity Facility have reduced the Available Amount
thereunder to zero, to deposit into the related Cash Collateral
Account an amount equal to such Cash Collateral Account's Required
Amount shall be deposited in such Cash Collateral Account, and (C)
if, with respect to any particular Liquidity Facility, neither
subclause (A) nor subclause (B) of this clause "third" is
applicable, to pay or reimburse the Liquidity Provider in respect of
such Liquidity Facility in an amount equal to the amount of any
unreimbursed Interest Drawings under such Liquidity Facility shall
be distributed to such Liquidity Provider, in each case pro rata on
the basis of the amounts of the required deposits and/or
unreimbursed Interest Drawings;
fourth, if, with respect to any particular Liquidity
Facility, any amounts are to be distributed pursuant to either
subclause (A) or (B) of clause "third" above, then the Liquidity
Provider with respect to such Liquidity Facility shall be paid the
excess of (x) the aggregate outstanding amount of unreimbursed
Advances (whether or not then due) under such Liquidity Facility
over (y) the Required Amount for the relevant Class, pro rata on the
basis of such amounts in respect of each Liquidity Provider;
fifth, if any Class A-1 Certificates or Class A-2
Certificates are Outstanding on such Special Distribution Date, such
amount as shall be required to pay in full Expected Distributions to
the holders of Class A-1 Certificates on such Special Distribution
Date shall be distributed to the Class A-1 Trustee and such amount
as shall be required to pay in full Expected Distributions to the
holders of Class A-2 Certificates on such Special Distribution Date
shall be distributed to the Class A-2 Trustee, pro rata on the basis
of such amounts in respect of each such Class of Certificates;
sixth, if any Class B Certificates are Outstanding on
such Special Distribution Date, such amount as shall be required to
pay in full Expected Distributions to the holders of Class B
Certificates on such Special Distribution Date shall be distributed
to the Class B Trustee;
seventh, if any Class C Certificates are Outstanding on
such Special Distribution Date, such amount as shall be required to
pay in full Expected Distributions to the holders of Class C
Certificates on such Special Distribution Date shall be distributed
to the Class C Trustee;
eighth, if any Class D Certificates are Outstanding on
such Special Distribution Date, such amount as shall be required to
pay in full Expected Distributions to holders of Class D
Certificates on such Special Distribution Date shall be distributed
to the Class D Trustee; and
ninth, the balance, if any, of such Special Payment
shall be deposited in the Collection Account.
For the purposes of this Section 2.04(b), clause (x) of the
definition of "Expected Distributions" shall be deemed to read as follows: "(x)
accrued, due and unpaid interest in respect of such Certificates together with
(without duplication) accrued and unpaid interest in respect of a portion of
such Certificates equal to the outstanding principal amount of Equipment Notes
being redeemed, purchased or prepaid (immediately prior to such redemption,
purchase or prepayment)".
(ii) Upon the occurrence of a Triggering Event (whether or not
continuing), the Subordination Agent shall make distributions pursuant to this
Section 2.04(b) of amounts on deposit in the Special Payments Account on account
of the redemption, purchase or prepayment of the Equipment Notes issued pursuant
to an Indenture on the Special Distribution Date for such Special Payment in
accordance with Section 3.03.
(c) Other Special Payments. Any amounts on deposit in the Special
Payments Account other than in respect of amounts to be distributed pursuant to
Section 2.04(b) shall be distributed on the Special Distribution Date therefor
in accordance with Article III.
(d) Investment of Amounts in Special Payments Account. Any amounts
on deposit in the Special Payments Account prior to the distribution thereof
pursuant to Section 2.04(b) or 2.04(c) shall be invested in accordance with
Section 2.02(b). Investment Earnings on such investments shall be distributed in
accordance with Section 2.04(b) or 2.04(c), as the case may be.
Section 2.05. Designated Representatives. (a) With the delivery of
this Agreement, the Subordination Agent shall furnish to each Liquidity Provider
and each Trustee, and from time to time thereafter may furnish to each Liquidity
Provider and each Trustee, at the Subordination Agent's discretion, or upon any
Liquidity Provider's or Trustee's request (which request shall not be made more
than one time in any 12-month period), a certificate (a "Subordination Agent
Incumbency Certificate") of a Responsible Officer of the Subordination Agent
certifying as to the incumbency and specimen signatures of the officers of the
Subordination Agent and the attorney-in-fact and agents of the Subordination
Agent (the "Subordination Agent Representatives") authorized to give Written
Notices on behalf of the Subordination Agent hereunder. Until each Liquidity
Provider and Trustee receives a subsequent Subordination Agent Incumbency
Certificate, it shall be entitled to rely on the last Subordination Agent
Incumbency Certificate delivered to it hereunder.
(b) With the delivery of this Agreement, each Trustee shall furnish
to the Subordination Agent, and from time to time thereafter may furnish to the
Subordination Agent, at such Trustee's discretion, or upon the Subordination
Agent's request (which request shall not be made more than one time in any
12-month period), a certificate (with respect to each such Trustee, a "Trustee
Incumbency Certificate") of a Responsible Officer of such Trustee certifying as
to the incumbency and specimen signatures of the officers of such Trustee and
the attorney-in-fact and agents of such Trustee (with respect to each such
Trustee, the "Trustee Representatives") authorized to give Written Notices on
behalf of such Trustee hereunder. Until the Subordination Agent receives a
subsequent Trustee Incumbency Certificate from a Trustee, it shall be entitled
to rely on the last Trustee Incumbency Certificate with respect to such Trustee
delivered to it hereunder.
(c) With the delivery of this Agreement, each Liquidity Provider
shall furnish to the Subordination Agent, and from time to time thereafter may
furnish to the Subordination Agent, at such Liquidity Provider's discretion, or
upon the Subordination Agent's request (which request shall not be made more
than one time in any 12-month period), a certificate (with respect to each such
Liquidity Provider, an "LP Incumbency Certificate") of a Responsible Officer of
such Liquidity Provider certifying as to the incumbency and specimen signatures
of the officers of such Liquidity Provider and the attorney-in-fact and agents
of such Liquidity Provider (with respect to each such Liquidity Provider, the
"LP Representatives" and, together with the Subordination Agent Representatives
and the Trustee Representatives, the "Designated Representatives") authorized to
give Written Notices on behalf of such Liquidity Provider hereunder. Until the
Subordination Agent receives a subsequent LP Incumbency Certificate from a
Liquidity Provider, it shall be entitled to rely on the last LP Incumbency
Certificate with respect to such Liquidity Provider delivered to it hereunder.
Section 2.06. Controlling Party. (a) The Trustees and the Liquidity
Providers hereby agree that, with respect to any Indenture at any given time,
the Loan Trustee thereunder will be directed (i) in taking, or refraining from
taking, any action under such Indenture or with respect to the Equipment Notes
issued thereunder, so long as no Indenture Event of Default has occurred and is
continuing thereunder, by the holders of at least a majority of the outstanding
principal amount of such Equipment Notes (provided that, for so long as the
Subordination Agent is the registered holder of such Equipment Notes, the
Subordination Agent shall act with respect to this clause (i) in accordance with
the directions of the Trustees of Trusts for which the related Trust Properties
include, in the aggregate, such a majority of outstanding principal amount of
such Equipment Notes), and (ii) after the occurrence and during the continuance
of an Indenture Event of Default thereunder, in taking, or refraining from
taking, any action under such Indenture or with respect to such Equipment Notes,
including exercising remedies thereunder (including Accelerating the Equipment
Notes issued thereunder or foreclosing the Lien created thereunder on the
Aircraft securing such Equipment Notes), by the Subordination Agent as directed
by the Controlling Party.
(b) The Person who shall be the "Controlling Party" with respect to
any Indenture shall be: (v) initially, the Class A-1 Trustee or the Class A-2
Trustee, whichever represents the Class with the larger Pool Balance of
Certificates Outstanding at the time such Indenture Event of Default occurs
(whether or not any other Indenture Event of Default shall thereafter occur so
long as such initial Indenture Event of Default shall continue); (w) upon
payment of Final Distributions to the holders of Certificates of such larger
Class, the other of the Class A-1 Trustee or the Class A-2 Trustee; (x) upon
payment of Final Distributions to the holders of Class A-1 Certificates and
Class A-2 Certificates, the Class B Trustee; (y) upon payment of Final
Distributions to the holders of Class B Certificates, the Class C Trustee; and
(z) upon payment of Final Distributions to the holders of Class C Certificates,
the Class D Trustee. For purposes of giving effect to the foregoing, the
Trustees (other than the Controlling Party) irrevocably agree (and the
Certificateholders (other than the Certificateholders represented by the
Controlling Party) shall be deemed to agree by virtue of their purchase of
Certificates) that the Subordination Agent, as record holder of the Equipment
Notes, shall exercise its voting rights in respect of the Equipment Notes as
directed by the Controlling Party and any vote so exercised shall be binding
upon the Trustees and all Certificateholders.
The Subordination Agent shall give written notice to all of the
other parties to this Agreement promptly upon a change in the identity of the
Controlling Party. Each of the parties hereto agrees that it shall not exercise
any of the rights of the Controlling Party at such time as it is not the
Controlling Party hereunder; provided, however, that nothing herein contained
shall prevent or prohibit any Non-Controlling Party from exercising such rights
as shall be specifically granted to such Non-Controlling Party hereunder and
under the other Operative Agreements.
(c) Notwithstanding the foregoing, at any time after 18 months from
the earliest to occur of (i) the date on which the entire Available Amount under
any Liquidity Facility shall have been drawn (for any reason other than a
Downgrade Drawing or a Non-Extension Drawing) and remain unreimbursed, (ii) the
date on which the entire amount of any Downgrade Drawing or Non-Extension
Drawing under any Liquidity Facility shall have become and remain "Applied
Downgrade Advances" or "Applied Non-Extension Advances", as the case may be,
under and as defined in such Liquidity Facility and (iii) the date on which all
Equipment Notes shall have been Accelerated, the Liquidity Provider(s) with the
greatest amount of unreimbursed Liquidity Obligations shall have the right to
elect, by Written Notice to the Subordination Agent and each of the Trustees, to
become the Controlling Party hereunder with respect to any Indenture at any time
from and including the last day of such 18-month period.
(d) The exercise of remedies by the Controlling Party under this
Agreement shall be expressly limited by Section 4.01(a)(ii).
(e) The Controlling Party shall not be entitled to require or
obligate any Non-Controlling Party to provide funds necessary to exercise any
right or remedy hereunder.
(f) Notwithstanding anything contained herein, neither the
Controlling Party nor the Subordination Agent shall be authorized or empowered
to do anything that would cause any Trust to fail to qualify as a "grantor
trust" for federal income tax purposes.
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
AMOUNTS RECEIVED
Section 3.01. Written Notice of Distribution. (a) No later than 3:00
P.M. (New York City time) on the Business Day immediately preceding each Regular
Distribution Date (or Special Distribution Date for purposes of Section 2.04(b),
as the case may be), each of the following Persons shall deliver to the
Subordination Agent a Written Notice setting forth the following information as
at the close of business on such Business Day:
(i) With respect to the Class A-1 Certificates and the Class A-2
Certificates, if any are then Outstanding, the Class A-1 Trustee and the
Class A-2 Trustee, respectively, shall separately set forth the amounts to
be paid in accordance with clause "fifth" of Section 3.02 or 2.04(b), as
the case may be (without giving effect to the pro rata sharing therein);
(ii) With respect to the Class B Certificates, if any are then
Outstanding, the Class B Trustee shall separately set forth the amounts to
be paid in accordance with clause "sixth" of Section 3.02 or 2.04(b), as
the case may be;
(iii) With respect to the Class C Certificates, if any are then
Outstanding, the Class C Trustee shall separately set forth the amounts to
be paid in accordance with clause "seventh" of Section 3.02 or 2.04(b), as
the case may be;
(iv) With respect to the Class D Certificates, if any are then
Outstanding, the Class D Trustee shall separately set forth the amounts to
be paid in accordance with clause "eighth" of Section 3.02 or 2.04(b), as
the case may be;
(v) With respect to each Liquidity Facility, the Liquidity Provider
thereunder shall separately set forth the amounts to be paid in accordance
with clauses "first", "second", "third" and "fourth" of Section 3.02 or
2.04(b), as the case may be; and
(vi) Each Trustee shall set forth the amounts to be paid in
accordance with clause "ninth" of Section 3.02.
The notices required under this Section 3.01(a) may be in the form of a schedule
or similar document provided to the Subordination Agent by the parties
referenced therein or by any one of them, which schedule or similar document may
state that, unless there has been a redemption, purchase or prepayment of the
Equipment Notes, such schedule or similar document is to remain in effect until
any substitute notice or amendment shall be given to the Subordination Agent by
the party providing such notice.
(b) Following the occurrence of a Triggering Event, the
Subordination Agent shall request the following information from the following
Persons, and may from time to time thereafter again request such information
from such Persons, and each of the following Persons shall, within five Business
Days of such request of the Subordination Agent, deliver a Written Notice to the
Subordination Agent setting forth for such Person the following information:
(i) With respect to the Class A-1 Certificates and the Class A-2
Certificates, if any are then Outstanding, the Class A-1 Trustee and the
Class A-2 Trustee, respectively, shall separately set forth the amounts to
be paid in accordance with clauses "first" (to reimburse payments made by
the Class A-1 Certificateholders and the Class A-2 Certificateholders,
respectively, pursuant to subclause (iii) of clause "first" of Section
3.03), "sixth" (to reimburse payments made by the Class A-1
Certificateholders and the Class A-2 Certificateholders pursuant to
subclause (iii) of clause "sixth" of Section 3.03) and "seventh" of
Section 3.03 (without giving effect to the pro rata sharing therein);
(ii) With respect to the Class B Certificates, if any are then
Outstanding, the Class B Trustee shall separately set forth the amounts to
be paid in accordance with clauses "first" (to reimburse payments made by
the Class B Certificateholders pursuant to subclause (iii) of clause
"first" of Section 3.03), "sixth" (to reimburse payments made by the Class
B Certificateholders pursuant to subclause (iii) of clause "sixth" of
Section 3.03) and "eighth" of Section 3.03;
(iii) With respect to the Class C Certificates, if any are then
Outstanding, the Class C Trustee shall separately set forth the amounts to
be paid in accordance with clauses "first" (to reimburse payments made by
the Class C Certificateholders pursuant to subclause (iii) of clause
"first" of Section 3.03), "sixth" (to reimburse payments made by the Class
C Certificateholders pursuant to subclause (iii) of clause "sixth" of
Section 3.03) and "ninth" of Section 3.03;
(iv) With respect to the Class D Certificates, if any are then
Outstanding, the Class D Trustee shall separately set forth the amounts to
be paid in accordance with clauses "first" (to reimburse payments made by
the Class D Certificateholders pursuant to subclause (iii) of clause
"first" of Section 3.03), "sixth" (to reimburse payments made by the Class
D Certificateholders pursuant to subclause (iii) of clause "sixth" of
Section 3.03) and "tenth" of Section 3.03;
(v) With respect to each Liquidity Facility, the Liquidity Provider
thereunder shall separately set forth the amounts to be paid to it in
accordance with subclause (iii) of clause "first" of Section 3.03 and
clauses "second", "third", "fourth" and "fifth" of Section 3.03; and
(vi) Each Trustee shall set forth the amounts to be paid in
accordance with subclause (ii) of clause "first" of Section 3.03 and
subclause (ii) of clause "sixth" of Section 3.03.
(c) At such time as a Trustee or a Liquidity Provider shall have
received all amounts owing to it (and, in the case of a Trustee, the
Certificateholders for which it is acting) pursuant to Section 2.04, 3.02 or
3.03, as applicable, and, in the case of a Liquidity Provider, its commitment
under the related Liquidity Facility shall have terminated or expired, such
Person shall, by a Written Notice, so inform the Subordination Agent and each
other party to this Agreement.
(d) As provided in Section 6.05, the Subordination Agent shall be
fully protected in relying on any of the information set forth in a Written
Notice provided by any Trustee or any Liquidity Provider pursuant to Sections
3.01(a), 3.01(b) and 3.01(c) above and shall have no independent obligation to
verify, calculate or recalculate any amount set forth in any Written Notice
delivered in accordance with such paragraphs.
(e) Any Written Notice delivered by a Trustee or a Liquidity
Provider, as applicable, pursuant to Section 3.01(a), 3.01(b) or 3.01(c), if
made prior to 10:00 A.M. (New York City time) on a given date that is a Business
Day shall be effective on the date delivered (or if delivered later on such date
or on a day that is not a Business Day shall be effective as of the next
Business Day). Subject to the terms of this Agreement, the Subordination Agent
shall as promptly as practicable comply with any such instructions; provided,
however, that any transfer of funds pursuant to any instruction received after
10:00 A.M. (New York City time) on any Business Day may be made on the next
succeeding Business Day.
(f) In the event the Subordination Agent shall not receive from any
Person any information set forth in Section 3.01(a) or 3.01(b) that is required
to enable the Subordination Agent to make a distribution to such Person pursuant
to Section 2.04(b), 3.02 or 3.03, the Subordination Agent shall not make such
distribution(s) to such Person. In such event, the Subordination Agent shall
make distributions pursuant to clauses "first" through "ninth" of Section
2.04(b), clauses "first" through "tenth" of Section 3.02 and clauses "first"
through "eleventh" of Section 3.03 to the extent it shall have sufficient
information to enable it to make such distributions, and shall continue to hold
any funds remaining, after making such distributions, on the terms hereof
(including Section 2.02(b)) until the Subordination Agent shall receive all
necessary information to enable it to distribute any funds so withheld, and upon
receipt of the information necessary to distribute any funds so withheld, the
Subordination Agent shall distribute such funds.
(g) On such dates (but not more frequently than monthly) as any
Liquidity Provider or any Trustee shall request, but in any event automatically
at the end of each calendar quarter, the Subordination Agent shall send to such
party a written statement reflecting all amounts on deposit with the
Subordination Agent pursuant to Section 3.01(f).
Section 3.02. Distribution of Amounts on Deposit in the Collection
Account. Except as otherwise provided in Sections 2.04, 3.01(f), 3.03, 3.04 and
3.06(b), amounts on deposit in the Collection Account (or, in the case of any
amount described in Section 2.04(c), on deposit in the Special Payments Account)
shall be promptly distributed on each Regular Distribution Date (or, in the case
of any amount described in Section 2.04(c), on the Special Distribution Date
thereof) in the following order of priority and in accordance with the
information provided to the Subordination Agent pursuant to Section 3.01(a):
first, such amount as shall be required to pay in full
all accrued and unpaid Liquidity Expenses shall be distributed to
the Liquidity Providers pro rata on the basis of the amount of
Liquidity Expenses owed to each Liquidity Provider;
second, such amount as shall be required to pay accrued
and unpaid interest on the Liquidity Obligations as provided in the
applicable Liquidity Facility shall be distributed to the Liquidity
Providers pro rata on the basis of the amount of such accrued and
unpaid interest owed to each Liquidity Provider;
third, such amount as shall be required (A) if any Cash
Collateral Account has been previously funded as provided in Section
3.06(f), to fund such Cash Collateral Account up to its Required
Amount shall be deposited in such Cash Collateral Account, (B) if
any Liquidity Facility shall have become a Downgraded Facility or a
Non-Extended Facility at a time when unreimbursed Interest Drawings
under such Liquidity Facility have reduced the Available Amount
thereunder to zero, to deposit into the related Cash Collateral
Account an amount equal to such Cash Collateral Account's Required
Amount shall be deposited in such Cash Collateral Account, and (C)
if, with respect to any particular Liquidity Facility, neither
subclause (A) nor subclause (B) of this clause "third" is
applicable, to pay or reimburse the Liquidity Provider in respect of
such Liquidity Facility in an amount equal to the amount of all
Liquidity Obligations then due under such Liquidity Facility (other
than amounts payable pursuant to clause "first" or "second" of this
Section 3.02) shall be distributed to such Liquidity Provider, in
each case pro rata on the basis of the amounts of the required
deposits and/or unreimbursed Liquidity Obligations;
fourth, if, with respect to any particular Liquidity
Facility and the related Cash Collateral Account, any amounts are to
be distributed pursuant to either subclause (A) or (B) of clause
"third" above, then the Liquidity Provider with respect to such
Liquidity Facility shall be paid the excess of (x) the aggregate
outstanding amount of unreimbursed Advances (whether or not then
due) under such Liquidity Facility over (y) the Required Amount for
the relevant Class, pro rata on the basis of such amounts in respect
of each Liquidity Provider;
fifth, if any Class A-1 Certificates or Class A-2
Certificates are Outstanding on such Distribution Date, such amount
as shall be required to pay in full Expected Distributions to the
holders of the Class A-1 Certificates on such Distribution Date
shall be distributed to the Class A-1 Trustee and such amount as
shall be required to pay in full Expected Distributions to the
holders of the Class A-2 Certificates on such Distribution Date
shall be distributed to the Class A-2 Trustee, pro rata on the basis
of such amounts in respect of each such Class of Certificates;
sixth, if any Class B Certificates are Outstanding on
such Distribution Date, such amount as shall be required to pay in
full Expected Distributions to the holders of the Class B
Certificates on such Distribution Date shall be distributed to the
Class B Trustee;
seventh, if any Class C Certificates are Outstanding on
such Distribution Date, such amount as shall be required to pay in
full Expected Distributions to the holders of the Class C
Certificates on such Distribution Date shall be distributed to the
Class C Trustee;
eighth, if any Class D Certificates are Outstanding on
such Distribution Date, such amount as shall be required to pay in
full Expected Distributions to holders of Class D Certificates on
such Distribution Date shall be distributed to the Class D Trustee;
and
ninth, such amount as shall be required to pay in full
(without duplication of any amounts otherwise payable hereunder or
under any Operative Agreement) the aggregate unpaid amount of fees
and expenses payable as of such Distribution Date to the
Subordination Agent and each Trustee pursuant to the terms of this
Agreement and the Trust Agreements, as the case may be, shall be
distributed to the Subordination Agent and such Trustee; and
tenth, the balance, if any, of any such amount remaining
thereafter shall be held in the Collection Account for later
distribution in accordance with this Article III.
Section 3.03. Distribution of Amounts on Deposit Following a
Triggering Event. Except as otherwise provided in Sections 3.01(f) and 3.06(b),
upon the occurrence of a Triggering Event and at all times thereafter, all funds
in the Collection Account or the Special Payments Account shall be promptly
distributed by the Subordination Agent in the following order of priority:
first, such amount as shall be required to reimburse
(i) the Subordination Agent for any out-of-pocket costs and expenses
actually incurred by it (to the extent not previously reimbursed) in
the protection of, or the realization of the value of, the Equipment
Notes or any Collateral, shall be applied by the Subordination Agent
in reimbursement of such costs and expenses, (ii) each Trustee for
any amounts of the nature described in clause (i) above actually
incurred by it under the applicable Trust Agreement (to the extent
not previously reimbursed), shall be distributed to such Trustee,
and (iii) any Liquidity Provider or Certificateholder for payments,
if any, made by it to the Subordination Agent or any Trustee in
respect of amounts described in clause (i) above, shall be
distributed to such Liquidity Provider or to the applicable Trustee
for the account of such Certificateholder, in each such case, pro
rata on the basis of all amounts described in clauses (i), (ii) and
(iii) above;
second, such amount as shall be required to pay all
accrued and unpaid Liquidity Expenses shall be distributed to the
Liquidity Providers pro rata on the basis of the amount of Liquidity
Expenses owed to each Liquidity Provider;
third, such amount as shall be required to pay accrued
and unpaid interest on the Liquidity Obligations as provided in the
applicable Liquidity Facilities shall be distributed to the
Liquidity Providers pro rata on the basis of the amount of such
accrued and unpaid interest owed to each Liquidity Provider;
fourth, such amount as shall be required (A) if any Cash
Collateral Account has been previously funded as provided in Section
3.06(f), unless (i) a Performing Note Deficiency exists and a
Liquidity Event of Default shall have occurred and be continuing
with respect to the relevant Liquidity Facility or (ii) a Final
Drawing shall have occurred with respect to such Liquidity Facility,
to fund such Cash Collateral Account up to its Required Amount (less
the amount of any repayments of Interest Drawings under such
Liquidity Facility while subclause (A)(i) above is applicable) shall
be deposited in such Cash Collateral Account, (B) if any Liquidity
Facility shall have become a Downgraded Facility or a Non-Extended
Facility at a time when unreimbursed Interest Drawings under such
Liquidity Facility have reduced the Available Amount thereunder to
zero, unless (i) a Performing Note Deficiency exists and a Liquidity
Event of Default shall have occurred and be continuing with respect
to the relevant Liquidity Facility or (ii) a Final Drawing shall
have occurred with respect to such Liquidity Facility, to deposit
into the related Cash Collateral Account an amount equal to such
Cash Collateral Account's Required Amount (less the amount of any
repayments of Interest Drawings under such Liquidity Facility while
subclause (B)(i) above is applicable) shall be deposited in such
Cash Collateral Account, and (C) if, with respect to any particular
Liquidity Facility, neither subclause (A) nor subclause (B) of this
clause "fourth" is applicable, to pay in full the outstanding amount
of all Liquidity Obligations then due under such Liquidity Facility
(other than amounts payable pursuant to clause "second" or "third"
of this Section 3.03) shall be distributed to such Liquidity
Provider, in each case pro rata on the basis of the amounts of the
required deposits and/or unreimbursed Liquidity Obligations;
fifth, if, with respect to any particular Liquidity
Facility, any amounts are to be distributed pursuant to either
subclause (A) or (B) of clause "fourth" above, then the Liquidity
Provider with respect to such Liquidity Facility shall be paid the
excess of (x) the aggregate outstanding amount of unreimbursed
Advances (whether or not then due) under such Liquidity Facility
over (y) the Required Amount for the relevant Class (less the amount
of any repayments of Interest Drawings under such Liquidity Facility
while subclause (A)(i) or (B)(i), as the case may be, of clause
"fourth" above is applicable), pro rata on the basis of such amounts
in respect of each Liquidity Provider;
sixth, such amount as shall be required to reimburse or
pay (i) the Subordination Agent for any Tax (other than Taxes
imposed on compensation paid hereunder), expense, fee, charge or
other loss incurred by, or any other amount payable to, the
Subordination Agent in connection with the transactions contemplated
hereby (to the extent not previously reimbursed), shall be applied
by the Subordination Agent in reimbursement of such amount, (ii)
each Trustee for any Tax (other than Taxes imposed on compensation
paid under the applicable Trust Agreement), expense, fee, charge or
other loss incurred by, or any other amount payable to, such Trustee
under the applicable Trust Agreements (to the extent not previously
reimbursed), shall be distributed to such Trustee, and (iii) each
Certificateholder for payments, if any, made by it pursuant to
Section 5.02 in respect of amounts described in clause (i) above
(without duplication of any amounts distributed pursuant to
subclause (iii) of clause "first" of this Section 3.03), shall be
distributed to the applicable Trustee for the account of such
Certificateholder, in each such case pro rata on the basis of all
amounts described in clauses (i), (ii) and (iii) above;
seventh, if any Class A-1 Certificates or Class A-2
Certificates are Outstanding on such Distribution Date, such amount
remaining as shall be required to pay in full Adjusted Expected
Distributions on the Class A-1 Certificates shall be distributed to
the Class A-1 Trustee and such amount remaining as shall be required
to pay in full Adjusted Expected Distributions on the Class A-2
Certificates shall be distributed to the Class A-2 Trustee, pro rata
on the basis of such amounts in respect of each such Class of
Certificates;
eighth, if any Class B Certificates are Outstanding on
such Distribution Date, such amount remaining as shall be required
to pay in full Adjusted Expected Distributions on the Class B
Certificates shall be distributed to the Class B Trustee;
ninth, if any Class C Certificates are Outstanding on
such Distribution Date, such amount remaining as shall be required
to pay in full Adjusted Expected Distributions on the Class C
Certificates shall be distributed to the Class C Trustee;
tenth, if any Class D Certificates are Outstanding on
such Distribution Date, such amount remaining as shall be required
to pay in full Adjusted Expected Distributions on the Class D
Certificates shall be distributed to the Class D Trustee; and
eleventh, (i) if any Class A-1 Certificates or Class A-2
Certificates are Outstanding on such Distribution Date, such amount
remaining as shall be required to pay Final Distributions on the
Class A-1 Certificates shall be distributed to the Class A-1 Trustee
and such amount remaining as shall be required to pay Final
Distributions on the Class A-2 Certificates shall be distributed to
the Class A-2 Trustee, pro rata on the basis of the Pool Balance of
each such Class of Certificates after giving effect to the
distributions made on such Distribution Date pursuant to clause
"seventh" of this Section 3.03(a); (ii) after giving effect to
clause (i) if any Class B Certificates are Outstanding on such
Distribution Date, such amount remaining as shall be required to pay
Final Distributions on the Class B Certificates shall be distributed
to the Class B Trustee; (iii) after giving effect to clauses (i) and
(ii) if any Class C Certificates are Outstanding on such
Distribution Date, such amount remaining as shall be required to pay
Final Distributions on the Class C Certificates shall be distributed
to the Class C Trustee and (iv) after giving effect to clauses (i),
(ii) and (iii) if any Class D Certificates are Outstanding on such
Distribution Date, such amount remaining as shall be required to pay
Final Distributions on the Class D Certificates shall be distributed
to the Class D Trustee.
Section 3.04. Other Payments. (a) Any payments received by the
Subordination Agent for which no provision as to the application thereof is made
in this Agreement shall be distributed by the Subordination Agent in the order
of priority specified in Section 3.03; provided, however, that to the extent any
such payments are received or realized at any time after the Final Distributions
for all Classes of Certificates have been made, such payments shall be
distributed in the following order of priority: first, in the manner provided in
clause "first" of Section 3.03 and second, in the manner provided in clause
"tenth" of Section 3.02.
(b) On any Interest Payment Date under each Liquidity Facility which
is not a Distribution Date, the Subordination Agent shall pay to the Liquidity
Provider under such Liquidity Facility from, and to the extent of, amounts on
deposit in the Collection Account, an amount equal to the amount of interest
then due and payable to such Liquidity Provider under such Liquidity Facility.
(c) Except as otherwise provided in Section 3.03 or Sections 3.06(a)
and 3.06(b), if the Subordination Agent receives any Scheduled Payment after the
Scheduled Payment Date relating thereto, but prior to such payment becoming an
Overdue Scheduled Payment, then the Subordination Agent shall deposit such
Scheduled Payment in the Collection Account and promptly distribute such
Scheduled Payment in accordance with the priority of distributions set forth in
Section 3.02; provided that, for the purposes of this Section 3.04(c) only, each
reference in clause "ninth" of Section 3.02 to "Distribution Date" shall be
deemed to mean the actual date of payment of such Scheduled Payment and each
reference in clause "fifth", "sixth", "seventh" or "eighth" of Section 3.02 to
"Distribution Date" shall be deemed to refer to such Scheduled Payment Date.
Section 3.05. Payments to the Trustees and the Liquidity Providers.
Any amounts distributed hereunder to any Liquidity Provider shall be paid to
such Liquidity Provider by wire transfer of funds to the address such Liquidity
Provider shall provide to the Subordination Agent. The Subordination Agent shall
provide a Written Notice of any such transfer to the applicable Liquidity
Provider at the time of such transfer. Any amounts distributed hereunder by the
Subordination Agent to any Trustee that is not the same institution as the
Subordination Agent shall be paid to such Trustee by wire transfer of funds at
the address such Trustee shall provide to the Subordination Agent.
Section 3.06. Liquidity Facilities. (a) Interest Drawings. If on any
Distribution Date, after giving effect to the subordination provisions of this
Agreement, the Subordination Agent shall not have sufficient funds for the
payment of any amounts due and owing in respect of accrued interest on the Class
A-1 Certificates, the Class A-2 Certificates, the Class B Certificates or the
Class C Certificates (at the Stated Interest Rate for such Class of
Certificates), then, prior to 1:00 p.m. (New York City time) on such
Distribution Date, the Subordination Agent shall request a drawing (each such
drawing, an "Interest Drawing") under the Liquidity Facility with respect to
such Class of Certificates in an amount equal to the lesser of (i) an amount
sufficient to pay the amount of such accrued interest (at the Stated Interest
Rate for each such Class of Certificates) and (ii) the Available Amount under
such Liquidity Facility, and shall upon receipt of such amount pay such amount
to the Trustee with respect to each such Class of Certificates in payment of
such accrued interest as provided in Section 3.06(b).
(b) Application of Interest Drawings. Notwithstanding anything to
the contrary contained in this Agreement, (i) all payments received by the
Subordination Agent in respect of an Interest Drawing under the Class A-1
Liquidity Facility and all amounts withdrawn by the Subordination Agent from the
Class A-1 Cash Collateral Account, and payable in each case to the Class A-1
Certificateholders, shall be promptly distributed to the Class A-1 Trustee, (ii)
all payments received by the Subordination Agent in respect of an Interest
Drawing under the Class A-2 Liquidity Facility and all amounts withdrawn by the
Subordination Agent from the Class A-2 Cash Collateral Account, and payable in
each case to the Class A-2 Certificateholders, shall be promptly distributed to
the Class A-2 Trustee, (iii) all payments received by the Subordination Agent in
respect of an Interest Drawing under the Class B Liquidity Facility and all
amounts withdrawn by the Subordination Agent from the Class B Cash Collateral
Account, and payable in each case to the Class B Certificateholders, shall be
promptly distributed to the Class B Trustee, and (iv) all payments received by
the Subordination Agent in respect of an Interest Drawing under the Class C
Liquidity Facility and all amounts withdrawn by the Subordination Agent from the
Class C Cash Collateral Account, and payable in each case to the Class C
Certificateholders, shall be promptly distributed to the Class C Trustee.
(c) Downgrade Drawings. The Liquidity Provider will promptly, but in
any event within ten days of its receipt of notice thereof, deliver notice of
any downgrading of its debt ratings to the Subordination Agent and Delta. If at
any time a Downgrade Event occurs with respect to any Liquidity Provider, within
10 days after such downgrading (or within 45 days of such downgrading solely in
the event of a downgrading of such Liquidity Provider's short-term unsecured
debt rating by S&P from A-1+ to A-1) (but not later than the expiration date of
the Liquidity Facility issued by such Liquidity Provider in respect of which the
Downgrade Event occurs (the "Downgraded Facility")), such Liquidity Provider or
Delta may arrange for a Replacement Liquidity Provider to issue and deliver a
Replacement Liquidity Facility to the Subordination Agent. If a Downgraded
Facility has not been replaced in accordance with the terms of this paragraph,
the Subordination Agent shall, on such 10th (or 45th) day (or if such 10th (or
45th) day is not a Business Day, on the next succeeding Business Day) (or, if
earlier, on the expiration date of such Downgraded Facility), request a drawing
in accordance with and to the extent permitted by such Downgraded Facility (such
drawing, a "Downgrade Drawing") of all available and undrawn amounts thereunder.
Amounts drawn pursuant to a Downgrade Drawing shall be maintained and invested
as provided in Section 3.06(f). Subject to Section 3.06(e)(iii), the Liquidity
Provider may also arrange for a Replacement Liquidity Provider to issue and
deliver a Replacement Liquidity Facility at any time after such Downgrade
Drawing so long as such Downgrade Drawing has not been reimbursed in full to the
Liquidity Provider.
(d) Non-Extension Drawings. If any Liquidity Facility with respect
to any Class of Certificates is scheduled to expire on a date (the "Stated
Expiration Date") prior to the date that is 15 days after the Final Legal
Distribution Date for such Class of Certificates, then no earlier than the 60th
day and no later than the 40th day prior to the then applicable Stated
Expiration Date, the Subordination Agent shall request in writing that such
Liquidity Provider extend the Stated Expiration Date to the earlier of (i) the
date that is 15 days after the Final Legal Distribution Date for such Class of
Certificates and (ii) the date that is the day immediately preceding the 364th
day after the last day of the Consent Period (unless the obligations of such
Liquidity Provider thereunder are earlier terminated in accordance with such
Liquidity Facility); provided however, that at its option the initial Liquidity
Provider may elect to extend the Stated Expiration Date for its Liquidity
Facility for any Class of Certificates to a date that is later than such 364th
day and on or before the date that is 15 days after the Final Legal Distribution
Date for the relevant Class of Certificates in accordance with the procedures
set forth in Section 2.11 of such Liquidity Facility. Whether or not the
Liquidity Provider has received a request from the Subordination Agent, the
Liquidity Provider shall, during the period commencing on the date that is 60
days prior to the then effective Stated Expiration Date (or if earlier, the date
of such Liquidity Provider's receipt of such request, if any, from the
Subordination Agent) and ending on the date that is 25 days prior to such Stated
Expiration Date (the "Consent Period") advise the Subordination Agent whether,
in its sole discretion, it agrees to so extend the Stated Expiration Date. If
the Liquidity Provider advises the Subordination Agent on or before the end of
the Consent Period that such Stated Expiration Date shall not be so extended or
fails to irrevocably and unconditionally advise the Subordination Agent on or
before the end of the Consent Period that such Stated Expiration Date shall be
so extended (and, in each case, if the Liquidity Provider shall not have been
replaced in accordance with Section 3.06(e)), the Subordination Agent shall, on
the date on which the Consent Period ends (or as soon as possible thereafter but
prior to the Stated Expiration Date), in accordance with and to the extent
permitted by the terms of the expiring Liquidity Facility (a "Non-Extended
Facility"), request a drawing under such expiring Liquidity Facility (such
drawing, a "Non-Extension Drawing") of all available and undrawn amounts
thereunder. Amounts drawn pursuant to a Non-Extension Drawing shall be
maintained and invested in accordance with Section 3.06(f). If any amounts shall
be drawn pursuant to a Non-Extension Drawing and, within 30 days thereafter, the
Liquidity Provider shall not have been replaced, then at any time following the
30th day after such Non-Extension Drawing, the Liquidity Provider may, by
written notice to the Subordination Agent, agree to reinstate the Liquidity
Facility on the terms of the existing Liquidity Facility for a period ending on
the 364th day after the end of the Consent Period; provided, however, that in
such event the Liquidity Provider shall reimburse the Subordination Agent for
any costs actually incurred by or on behalf of the Subordination Agent in
drawing pursuant to the Non-Extension Drawing and funding the Cash Collateral
Account or otherwise in connection with the Non-Extension Drawing.
(e) Issuance of Replacement Liquidity Facility. (i) Subject to
Section 3.06(e)(iii), at any time, Delta may, at its option, with cause or
without cause, arrange for a Replacement Liquidity Facility to replace any
Liquidity Facility for any Class of Certificates (including any Replacement
Liquidity Facility provided pursuant to Section 3.06(e)(ii)); provided, however,
that if the initial Liquidity Provider is replaced it shall be replaced with
respect to all Liquidity Facilities under which it is a Liquidity Provider, and
provided further, however, that the initial Liquidity Provider shall not be
replaced by Delta as the Liquidity Provider with respect to any Class of
Certificates prior to the fifth anniversary of the Closing Date unless (A) there
shall have become due to the initial Liquidity Provider, or the initial
Liquidity Provider shall have demanded, amounts pursuant to Section 3.01 or 3.03
of any Liquidity Facility and the replacement of the initial Liquidity Provider
would reduce or eliminate the obligation to pay such amounts or Delta determines
in good faith that there is a substantial likelihood that the initial Liquidity
Provider will have the right to claim any such amounts within 180 days after the
date of such determination (unless the initial Liquidity Provider waives, in
writing, any right it may have to claim such amounts), which determination shall
be set forth in a certificate delivered by Delta to the initial Liquidity
Provider accompanied by an opinion of outside counsel selected by Delta and
reasonably acceptable to such initial Liquidity Provider verifying the legal
conclusions, if any, of such certificate relating to such basis, provided that
in the case of any likely claim for amounts based upon any proposed, or proposed
change in, law, rule, regulation, interpretation, directive, requirement,
request or administrative practice, such opinion may assume the adoption or
promulgation of such proposed matter, (B) it shall become unlawful or impossible
for the initial Liquidity Provider to maintain or fund its LIBOR Advances as
described in Section 3.10 of any Liquidity Facility, (C) the short-term
unsecured debt rating of the initial Liquidity Provider is downgraded by S&P
from A-1+ to A-1 and there is a resulting downgrade in the rating by either
Rating Agency of any Class of Certificates, (D) any Liquidity Facility of such
initial Liquidity Provider shall become a Downgraded Facility or a Non-Extended
Facility or a Downgrade Drawing or a Non-Extension Drawing shall have occurred
under any Liquidity Facility or (E) the initial Liquidity Provider shall have
breached any of its payment (including, without limitation, funding) obligations
under any Liquidity Facility. If such Replacement Liquidity Facility is provided
at any time after a Downgrade Drawing or a Non-Extension Drawing has been made,
all funds on deposit in the relevant Cash Collateral Account resulting from such
Downgrade Drawing or Non-Extension Drawing will be returned to the Liquidity
Provider being replaced.
(ii) If any Liquidity Provider shall determine not to extend its
Liquidity Facility in accordance with Section 3.06(d), then such Liquidity
Provider may, at its option, arrange for a Replacement Liquidity Facility to
replace such Liquidity Facility during the period no earlier than 40 days and no
later than 25 days prior to the then effective Stated Expiration Date of such
Liquidity Facility or, so long as Helaba is the Liquidity Provider for any
Liquidity Facility, at any time thereafter so long as the Non-Extension Drawing
made by such Liquidity Provider has not been reimbursed in full.
(iii) No Replacement Liquidity Facility arranged by Delta or a
Liquidity Provider in accordance with Section 3.06(c) or clause (i) or (ii) of
this Section 3.06(e) shall become effective and no such Replacement Liquidity
Facility shall be deemed a "Liquidity Facility" under the Operative Agreements,
unless and until (A) each of the conditions referred to in Section 3.06(e)(iv)
below shall have been satisfied and (B) in the case of a Replacement Liquidity
Facility arranged by a Liquidity Provider under Section 3.06(c) or Section
3.06(e)(ii), such Replacement Liquidity Provider and such Replacement Liquidity
Facility (including the fees, compensation, interest, increased costs or
withholding payable thereunder to the Replacement Liquidity Provider) are
reasonably acceptable to Delta.
(iv) In connection with the issuance of each Replacement Liquidity
Facility, the Subordination Agent shall (x) prior to the issuance of such
Replacement Liquidity Facility, obtain written confirmation from each Rating
Agency that such Replacement Liquidity Facility will not cause a reduction of
any rating then in effect for any Class of Certificates by such Rating Agency
(without regard to any downgrading of any rating of any Liquidity Provider being
replaced pursuant to Section 3.06(c)), (y) pay all Liquidity Obligations then
owing to the replaced Liquidity Provider (which payment shall be made first from
available funds in the applicable Cash Collateral Account as described in
Section 3.06(f)(ix), and thereafter from any other available source, including,
without limitation, a drawing under the Replacement Liquidity Facility) and (z)
cause the issuer of the Replacement Liquidity Facility to deliver the
Replacement Liquidity Facility to the Subordination Agent, together with a legal
opinion addressed to the Subordination Agent, the Trustees and Delta opining
that such Replacement Liquidity Facility is an enforceable obligation of such
Replacement Liquidity Provider.
(v) Upon satisfaction of the conditions set forth in Sections
3.06(e)(iii) and 3.06(e)(iv), (1) the replaced Liquidity Facility shall
terminate, (2) the Subordination Agent shall, if and to the extent so requested
by Delta or the Liquidity Provider being replaced, execute and deliver any
certificate or other instrument required in order to terminate the replaced
Liquidity Facility, shall surrender the replaced Liquidity Facility to the
Liquidity Provider being replaced and shall execute and deliver the Replacement
Liquidity Facility and any associated Fee Letter, (3) each of the parties hereto
shall enter into any amendments to this Agreement necessary to give effect to
the replacement of the applicable Liquidity Provider with the applicable
Replacement Liquidity Provider and the replacement of the applicable Liquidity
Facility with the applicable Replacement Liquidity Facility and (4) the
applicable Replacement Liquidity Provider shall be deemed to be a Liquidity
Provider with the rights and obligations of a Liquidity Provider hereunder and
under the other Operative Agreements and such Replacement Liquidity Facility
shall be deemed to be a Liquidity Facility hereunder and under the other
Operative Agreements.
(f) Cash Collateral Accounts; Withdrawals; Investments. If the
Subordination Agent shall draw all available amounts under the Class A-1
Liquidity Facility, the Class A-2 Liquidity Facility, the Class B Liquidity
Facility or the Class C Liquidity Facility pursuant to Section 3.06(c), 3.06(d)
or 3.06(i), or in the event amounts are to be deposited in the Cash Collateral
Account pursuant to subclause (A) or (B) of clause "third" of Section 2.04(b),
subclause (A) or (B) of clause "third" of Section 3.02 or subclause (A) or (B)
of clause "fourth" of Section 3.03, amounts so drawn or to be deposited, as the
case may be, shall be deposited by the Subordination Agent in the Class A-1 Cash
Collateral Account, the Class A-2 Cash Collateral Account, the Class B Cash
Collateral Account or the Class C Cash Collateral Account, respectively. All
amounts on deposit in each Cash Collateral Account shall be invested and
reinvested in Eligible Investments in accordance with Section 2.02(b). On each
Interest Payment Date (or, in the case of any Special Distribution Date
occurring prior to the occurrence of a Triggering Event, on such Special
Distribution Date), Investment Earnings on amounts on deposit in each Cash
Collateral Account (or in the case of any Special Distribution Date occurring
prior to the occurrence of a Triggering Event, an amount of such Investment
Earnings on amounts of deposits in each Cash Collateral Account equal to the
product of such Investment Earnings multiplied by a fraction, the numerator of
which is the aggregate outstanding principal amount of Equipment Notes being
redeemed, purchased or prepaid on such Special Distribution Date and the
denominator of which is the aggregate outstanding principal amount of all
Equipment Notes) shall be deposited in the Collection Account (or, in the case
of any Special Distribution Date occurring prior to the occurrence of a
Triggering Event, the Special Payments Account) and applied on such Interest
Payment Date (or Special Distribution Date, as the case may be) in accordance
with Section 2.04(b), 3.02, 3.03 or 3.04(b) (as applicable). The Subordination
Agent shall deliver a written statement to Delta and the Liquidity Provider one
day prior to each Interest Payment Date and Special Distribution Date setting
forth the aggregate amount of Investment Earnings held in the Cash Collateral
Accounts as of such date. In addition, from and after the date funds are so
deposited, the Subordination Agent shall make withdrawals from such account as
follows:
(i) on each Distribution Date, the Subordination Agent shall, to the
extent it shall not have received funds to pay accrued and unpaid interest
due and owing on the Class A-1 Certificates (at the Stated Interest Rate
for the Class A-1 Certificates) from any other source, withdraw from the
Class A-1 Cash Collateral Account, and pay to the Class A-1 Trustee, an
amount equal to the lesser of (x) an amount necessary to pay accrued and
unpaid interest (at the Stated Interest Rate for the Class A-1
Certificates) on such Class A-1 Certificates and (y) the amount on deposit
in the Class A-1 Cash Collateral Account;
(ii) on each Distribution Date, the Subordination Agent shall, to
the extent it shall not have received funds to pay accrued and unpaid
interest due and owing on the Class A-2 Certificates (at the Stated
Interest Rate for the Class A-2 Certificates) from any other source,
withdraw from the Class A-2 Cash Collateral Account, and pay to the Class
A-2 Trustee, an amount equal to the lesser of (x) an amount necessary to
pay accrued and unpaid interest (at the Stated Interest Rate for the Class
A-2 Certificates) on such Class A-2 Certificates and (y) the amount on
deposit in the Class A-2 Cash Collateral Account;
(iii) on each Distribution Date, the Subordination Agent shall, to
the extent it shall not have received funds to pay accrued and unpaid
interest due and owing on the Class B Certificates (at the Stated Interest
Rate for the Class B Certificates) from any other source, withdraw from
the Class B Cash Collateral Account, and pay to the Class B Trustee, an
amount equal to the lesser of (x) an amount necessary to pay accrued and
unpaid interest (at the Stated Interest Rate for the Class B Certificates)
on such Class B Certificates and (y) the amount on deposit in the Class B
Cash Collateral Account;
(iv) on each Distribution Date, the Subordination Agent shall, to
the extent it shall not have received funds to pay accrued and unpaid
interest due and owing on the Class C Certificates (at the Stated Interest
Rate for the Class C Certificates) from any other source, withdraw from
the Class C Cash Collateral Account, and pay to the Class C Trustee, an
amount equal to the lesser of (x) an amount necessary to pay accrued and
unpaid interest (at the Stated Interest Rate for the Class C Certificates)
on such Class C Certificates and (y) the amount on deposit in the Class C
Cash Collateral Account;
(v) on each date on which the Pool Balance of the Class A-1 Trust
shall have been reduced by payments made to the Class A-1
Certificateholders pursuant to Section 2.04(b), 3.02 or 3.03, the
Subordination Agent shall withdraw from the Class A-1 Cash Collateral
Account such amount as is necessary so that, after giving effect to the
reduction of such Pool Balance on such date (including any such reduction
resulting from a prior withdrawal of amounts on deposit in the Class A-1
Cash Collateral Account on such date) and any transfer of Investment
Earnings from such Class A-1 Cash Collateral Account to the Collection
Account or the Special Payments Account on such date, an amount equal to
the sum of the Required Amount (with respect to the Class A-1 Liquidity
Facility) plus the remaining Investment Earnings on deposit in such Class
A-1 Cash Collateral Account (if any) will be on deposit in the Class A-1
Cash Collateral Account and shall, first, pay such withdrawn amount to the
relevant Class A-1 Liquidity Provider until the Liquidity Obligations
(with respect to the Class A-1 Certificates) owing to such Class A-1
Liquidity Provider shall have been paid in full and, second, deposit any
remaining amount in the Collection Account;
(vi) on each date on which the Pool Balance of the Class A-2 Trust
shall have been reduced by payments made to the Class A-2
Certificateholders pursuant to Section 2.04(b), 3.02 or 3.03, the
Subordination Agent shall withdraw from the Class A-2 Cash Collateral
Account such amount as is necessary so that, after giving effect to the
reduction of such Pool Balance on such date (including any such reduction
resulting from a prior withdrawal of amounts on deposit in the Class A-2
Cash Collateral Account on such date) and any transfer of Investment
Earnings from such Class A-2 Cash Collateral Account to the Collection
Account or the Special Payments Account on such date, an amount equal to
the sum of the Required Amount (with respect to the Class A-2 Liquidity
Facility) plus the remaining Investment Earnings on deposit in such Class
A-2 Cash Collateral Account (if any) will be on deposit in the Class A-2
Cash Collateral Account and shall, first, pay such withdrawn amount to the
relevant Class A-2 Liquidity Provider until the Liquidity Obligations
(with respect to the Class A-2 Certificates) owing to such Class A-2
Liquidity Provider shall have been paid in full and, second, deposit any
remaining amount in the Collection Account;
(vii) on each date on which the Pool Balance of the Class B Trust
shall have been reduced by payments made to the Class B Certificateholders
pursuant to Section 2.04(b), 3.02 or 3.03, the Subordination Agent shall
withdraw from the Class B Cash Collateral Account such amount as is
necessary so that, after giving effect to the reduction of such Pool
Balance on such date (including any such reduction resulting from a prior
withdrawal of amounts on deposit in the Class B Cash Collateral Account on
such date) and any transfer of Investment Earnings from such Class B Cash
Collateral Account to the Collection Account or the Special Payments
Account on such date, an amount equal to the sum of the Required Amount
(with respect to the Class B Liquidity Facility) plus the remaining
Investment Earnings on deposit in such Class B Cash Collateral Account (if
any) will be on deposit in the Class B Cash Collateral Account and shall,
first, pay such withdrawn amount to the relevant Class B Liquidity
Provider until the Liquidity Obligations (with respect to the Class B
Certificates) owing to such Class B Liquidity Provider shall have been
paid in full and, second, deposit any remaining amount in the Collection
Account;
(viii) on each date on which the Pool Balance of the Class C Trust
shall have been reduced by payments made to the Class C Certificateholders
pursuant to Section 2.04(b), 3.02 or 3.03, the Subordination Agent shall
withdraw from the Class C Cash Collateral Account such amount as is
necessary so that, after giving effect to the reduction of such Pool
Balance on such date (including any such reduction resulting from a prior
withdrawal of amounts on deposit in the Class C Cash Collateral Account on
such date) and any transfer of Investment Earnings from such Class C Cash
Collateral Account to the Collection Account or the Special Payments
Account on such date, an amount equal to the sum of the Required Amount
(with respect to the Class C Liquidity Facility) plus the remaining
Investment Earnings on deposit in such Class C Cash Collateral Account (if
any) will be on deposit in the Class C Cash Collateral Account and shall,
first, pay such withdrawn amount to the relevant Class C Liquidity
Provider until the Liquidity Obligations (with respect to the Class C
Certificates) owing to such Liquidity Provider shall have been paid in
full and, second, deposit any remaining amount in the Collection Account;
(ix) if a Replacement Liquidity Facility for any Class of
Certificates shall be delivered to the Subordination Agent following the
date on which funds have been deposited into the Cash Collateral Account
for such Class of Certificates, the Subordination Agent shall withdraw all
amounts remaining on deposit in such Cash Collateral Account and shall pay
such amounts to the replaced Liquidity Provider until all Liquidity
Obligations owed to such Person shall have been paid in full, and deposit
any remaining amount in the Collection Account; and
(x) following the payment of Final Distributions with respect to any
Class of Certificates, on the date on which the Subordination Agent shall
have been notified by the Liquidity Provider for such Class of
Certificates that the Liquidity Obligations owed to such Liquidity
Provider have been paid in full, the Subordination Agent shall withdraw
all amounts on deposit in the Cash Collateral Account in respect of such
Class of Certificates and deposit such amount in the Collection Account.
(g) Reinstatement. With respect to any Interest Drawing under the
Liquidity Facility for any Trust, upon the reimbursement of the applicable
Liquidity Provider for all or any part of the amount of such Interest Drawing,
together with any accrued interest thereon, the Available Amount of such
Liquidity Facility shall be reinstated by an amount equal to the amount of such
Interest Drawing so reimbursed to the applicable Liquidity Provider but not to
exceed the Stated Amount for such Liquidity Facility; provided, however, that
the Available Amount of such Liquidity Facility shall not be so reinstated in
part or in full at any time if (x) both a Performing Note Deficiency exists and
a Liquidity Event of Default shall have occurred and be continuing with respect
to the relevant Liquidity Facility or (y) a Final Drawing shall have occurred
with respect to such Liquidity Facility. In the event that, with respect to any
particular Liquidity Facility, (i) funds are withdrawn from any Cash Collateral
Account pursuant to clause (i), (ii), (iii) or (iv) of Section 3.06(f) or (ii)
such Liquidity Facility shall become a Downgraded Facility or a Non-Extended
Facility at a time when unreimbursed Interest Drawings under such Liquidity
Facility have reduced the Available Amount thereunder to zero, then funds
received by the Subordination Agent at any time, other than (x) any time when
both a Performing Note Deficiency exists and a Liquidity Event of Default shall
have occurred and be continuing with respect to such Liquidity Facility or (y)
any time after a Final Drawing shall have occurred with respect to such
Liquidity Facility, shall be deposited in such Cash Collateral Account as and to
the extent provided in clause "third" of Section 2.04(b), clause "third" of
Section 3.02 or clause "fourth" of Section 3.03, as applicable, and applied in
accordance with Section 3.06(f).
(h) Reimbursement. The amount of each drawing under the Liquidity
Facilities shall be due and payable, together with interest thereon, on the
dates and at the rates, respectively, provided in the Liquidity Facilities.
(i) Final Drawing. Upon receipt from a Liquidity Provider of a
Termination Notice with respect to any Liquidity Facility, the Subordination
Agent shall, not later than the date specified in such Termination Notice, in
accordance with and to the extent permitted by the terms of such Liquidity
Facility, request a drawing under such Liquidity Facility of all available and
undrawn amounts thereunder (a "Final Drawing"). Amounts drawn pursuant to a
Final Drawing shall be maintained and invested in accordance with Section
3.06(f).
(j) Reduction of Stated Amount. Promptly following each date on
which the Required Amount of the Liquidity Facility for a Class of Certificates
is reduced as a result of a reduction in the Pool Balance with respect to such
Certificates, the Subordination Agent shall, if any such Liquidity Facility
provides for reductions of the Stated Amount of such Liquidity Facility and if
such reductions are not automatic, request such Liquidity Provider for such
Class of Certificates to reduce such Stated Amount to an amount equal to the
Required Amount with respect to such Liquidity Facility (as calculated by the
Subordination Agent after giving effect to such payment). Each such request
shall be made in accordance with the provisions of the applicable Liquidity
Facility.
(k) Relation to Subordination Provisions. Interest Drawings under
the Liquidity Facilities and withdrawals from the Cash Collateral Accounts, in
each case, in respect of interest on the Certificates of any Class, will be
distributed to the Trustee for such Class of Certificates, notwithstanding
Sections 2.04(b), 3.02, 3.03 and 3.06.
(l) Assignment of Liquidity Facility. The Subordination Agent agrees
not to consent to the assignment by any Liquidity Provider of any of its rights
or obligations under any Liquidity Facility or any interest therein unless (i)
Delta shall have consented to such assignment and (ii) each Rating Agency shall
have provided a Ratings Confirmation in respect of such assignment.
ARTICLE IV
EXERCISE OF REMEDIES
Section 4.01. Directions from the Controlling Party. (a) (i)
Following the occurrence and during the continuation of an Indenture Event of
Default under any Indenture, the Controlling Party shall direct the
Subordination Agent, which in turn shall direct the Loan Trustee under such
Indenture, in the exercise of remedies available to the holders of the Equipment
Notes issued pursuant to such Indenture, including, without limitation, the
ability to vote all such Equipment Notes in favor of Accelerating such Equipment
Notes in accordance with the provisions of such Indenture. If the Equipment
Notes issued pursuant to any Indenture have been Accelerated following an
Indenture Event of Default with respect thereto, the Controlling Party may
direct the Subordination Agent to sell, assign, contract to sell or otherwise
dispose of and deliver all (but not less than all) of such Equipment Notes to
any Person at public or private sale, at any location at the option of the
Controlling Party, all upon such terms and conditions as it may reasonably deem
advisable and in accordance with applicable law.
(ii) So long as any Certificates remain Outstanding, during the
period ending on the date which is nine months after the earlier of (x) the
Acceleration of the Equipment Notes issued pursuant to any Indenture or (y) the
occurrence of a Delta Bankruptcy Event, without the consent of each Trustee
(other than the Trustee of any Trust all of the Certificates of which are held
or beneficially owned by Delta and/or its Affiliates), no Aircraft subject to
the Lien of such Indenture or such Equipment Notes may be sold if the net
proceeds from such sale would be less than the Minimum Sale Price for such
Aircraft or such Equipment Notes.
(iii) At the request of the Controlling Party, the Subordination
Agent may from time to time during the continuance of an Indenture Event of
Default (and before the occurrence of a Triggering Event) commission an LTV
Appraisal with respect to the Aircraft subject to such Indenture.
(iv) After a Triggering Event occurs and any Equipment Note becomes
a Non-Performing Equipment Note, the Subordination Agent shall obtain Appraisals
with respect to all of the Aircraft (the "LTV Appraisals") as soon as
practicable and additional LTV Appraisals on or prior to each anniversary of the
date of such initial LTV Appraisals; provided that, if the Controlling Party
reasonably objects to the appraised value of the Aircraft shown in such LTV
Appraisals, the Controlling Party shall have the right to obtain or cause to be
obtained substitute LTV Appraisals (including any LTV Appraisals based upon
physical inspection of the Aircraft).
(b) To the extent permitted by applicable law, the Subordination
Agent, at the direction of the Controlling Party, shall take such actions as it
may reasonably deem most effectual to complete the sale or other disposition of
such Aircraft or Equipment Notes. In addition, in lieu of any sale, assignment,
contract to sell or other disposition, if the Subordination Agent is so directed
by the Controlling Party, the Subordination Agent may maintain possession of
such Equipment Notes and continue to apply monies received in respect of such
Equipment Notes in accordance with Section 2.04(b) and Article III. In addition,
in lieu of such sale, assignment, contract to sell or other disposition, or in
lieu of such maintenance of possession, the Controlling Party may direct the
Subordination Agent to, subject to the terms and conditions of the related
Indenture, instruct the Loan Trustee under such Indenture to foreclose on the
Lien on the related Aircraft or take any other remedial action permitted by such
Indenture or applicable law.
Section 4.02. Remedies Cumulative. Each and every right, power and
remedy given to the Trustees, the Liquidity Providers, the Controlling Party or
the Subordination Agent specifically or otherwise in this Agreement shall be
cumulative and shall be in addition to every other right, power and remedy
herein specifically given or now or hereafter existing at law, in equity or by
statute, and each and every right, power and remedy whether specifically herein
given or otherwise existing may, subject always to the terms and conditions
hereof, be exercised from time to time and as often and in such order as may be
deemed expedient by any Trustee, any Liquidity Provider, the Controlling Party
or the Subordination Agent, as appropriate, and the exercise or the beginning of
the exercise of any right, power or remedy shall not be construed to be a waiver
of the right to exercise at the same time or thereafter any other right, power
or remedy. No delay or omission by any Trustee, any Liquidity Provider, the
Controlling Party or the Subordination Agent in the exercise of any right,
remedy or power or in the pursuit of any remedy shall impair any such right,
power or remedy or be construed to be a waiver of any default or to be an
acquiescence therein.
Section 4.03. Discontinuance of Proceedings. In case any party to
this Agreement (including the Controlling Party in such capacity) shall have
instituted any Proceeding to enforce any right, power or remedy under this
Agreement by foreclosure, entry or otherwise, and such Proceeding shall have
been discontinued or abandoned for any reason or shall have been determined
adversely to the Person instituting such Proceeding, then and in every such case
each such party shall, subject to any determination in such Proceeding, be
restored to its former position and rights hereunder, and all rights, remedies
and powers of such party shall continue as if no such Proceeding had been
instituted.
Section 4.04. Right of Certificateholders to Receive Payments Not to
Be Impaired. Subject to the provisions of this Agreement and each Trust
Agreement, the right of any Certificateholder or any Liquidity Provider,
respectively, to receive payments hereunder (including, without limitation,
pursuant to Section 2.04, 3.02 or 3.03) when due, or to institute suit for the
enforcement of any such payment on or after the applicable Distribution Date,
shall not be impaired or affected without the consent of such Certificateholder
or such Liquidity Provider, respectively.
ARTICLE V
DUTIES OF THE SUBORDINATION AGENT;
AGREEMENTS OF TRUSTEES, ETC.
Section 5.01. Notice of Indenture Event of Default or Triggering
Event. (a) If the Subordination Agent shall have knowledge of an Indenture Event
of Default or a Triggering Event, the Subordination Agent shall promptly give
notice thereof to the Rating Agencies, Delta, the Liquidity Providers and the
Trustees by telegram, cable, facsimile or telephone (to be promptly confirmed in
writing), unless such Indenture Event of Default or Triggering Event shall have
been cured or waived. For all purposes of this Agreement, in the absence of
actual knowledge, the Subordination Agent shall not be deemed to have knowledge
of any Indenture Event of Default or Triggering Event unless notified in writing
by Delta, one or more Trustees, one or more Liquidity Providers or one or more
Certificateholders; and "actual knowledge" (as used in the foregoing clause) of
the Subordination Agent shall mean actual knowledge of an officer in the
Corporate Trust Office of the Subordination Agent.
(b) Other Notices. The Subordination Agent will furnish to each
Liquidity Provider and Trustee, promptly upon receipt thereof, duplicates or
copies of all reports, notices, requests, demands, certificates, financial
statements and other instruments furnished to the Subordination Agent as
registered holder of the Equipment Notes or otherwise in its capacity as
Subordination Agent to the extent the same shall not have been otherwise
directly distributed to such Liquidity Provider or Trustee, as applicable,
pursuant to any other Operative Agreement.
Section 5.02. Indemnification. The Subordination Agent shall not be
required to take any action or refrain from taking any action under Article IV
unless the Subordination Agent shall have received indemnification against any
risks incurred in connection therewith in form and substance reasonably
satisfactory to it, including, without limitation, adequate advances against
costs that may be incurred by it in connection therewith. The Subordination
Agent shall not be required to take any action under Article IV, nor shall any
other provision of this Agreement or any other Operative Agreement be deemed to
impose a duty on the Subordination Agent to take any action, if the
Subordination Agent shall have been advised by outside counsel that such action
is contrary to the terms hereof or is otherwise contrary to law.
Section 5.03. No Duties Except as Specified in Intercreditor
Agreement. The Subordination Agent shall not have any duty or obligation to take
or refrain from taking any action under, or in connection with, this Agreement,
except as expressly provided by the terms of this Agreement; and no implied
duties or obligations shall be read into this Agreement against the
Subordination Agent. The Subordination Agent agrees that it will, in its
individual capacity and at its own cost and expense (but without any right of
indemnity in respect of any such cost or expense) promptly take such action as
may be necessary duly to discharge all Liens on any of the Trust Accounts or any
monies deposited therein that are attributable to the Subordination Agent in its
individual capacity and that are unrelated to the transaction contemplated
hereby and by the other Operative Agreements.
Section 5.04. Notice from the Liquidity Providers and Trustees. If
any Liquidity Provider or Trustee has notice of an Indenture Event of Default or
a Triggering Event, such Person shall promptly give notice thereof to all other
Liquidity Providers and Trustees and to the Subordination Agent; provided,
however, that no such Person shall have any liability hereunder as a result of
its failure to deliver any such notice.
ARTICLE VI
THE SUBORDINATION AGENT
Section 6.01. Authorization; Acceptance of Trusts and Duties. Each
of the Class A-1 Trustee, the Class A-2 Trustee, the Class B Trustee, the Class
C Trustee and the Class D Trustee hereby designates and appoints the
Subordination Agent as the agent and trustee of such Trustee under the
applicable Liquidity Facility and authorizes the Subordination Agent to enter
into the applicable Liquidity Facility as agent and trustee for such Trustee.
Each of the Liquidity Providers and the Trustees hereby designates and appoints
the Subordination Agent as the Subordination Agent under this Agreement. State
Street accepts the trusts and duties hereby created and applicable to it and
agrees to perform such duties, but only upon the terms of this Agreement and
agrees to receive, handle and disburse all monies received by it in accordance
with the terms hereof. The Subordination Agent shall have no liability hereunder
except (a) for its own willful misconduct or negligence, (b) as provided in
Section 2.02 and the last sentence of Section 5.03, (c) for liabilities that may
result from the inaccuracy of any representation or warranty of the
Subordination Agent made in its individual capacity in any Operative Agreement
and (d) as otherwise expressly provided herein or in the other Operative
Agreements.
Section 6.02. Absence of Duties. The Subordination Agent shall have
no duty to see to any recording or filing of this Agreement or any other
document, or to see to the maintenance of any such recording or filing.
Section 6.03. No Representations or Warranties as to Documents. The
Subordination Agent shall not be deemed to have made any representation or
warranty as to the validity, legality or enforceability of this Agreement or any
other Operative Agreement or as to the correctness of any statement contained
herein or therein (other than the representations and warranties of the
Subordination Agent made in its individual capacity under any Operative
Agreement), except that the Subordination Agent hereby represents and warrants
that each of said specified documents to which it is a party has been or will be
duly executed and delivered by one of its officers who is and will be duly
authorized to execute and deliver such document on its behalf. The
Certificateholders, the Trustees and the Liquidity Providers make no
representation or warranty hereunder whatsoever.
Section 6.04. No Segregation of Monies; No Interest. Any monies paid
to or retained by the Subordination Agent pursuant to any provision hereof and
not then required to be distributed to any Trustee or any Liquidity Provider as
provided in Articles II and III or deposited into one or more Trust Accounts
need not be segregated in any manner except to the extent required by such
Articles II and III and by law, and the Subordination Agent shall not (except as
otherwise provided in Section 2.02) be liable for any interest thereon;
provided, however, that any payments received or applied hereunder by the
Subordination Agent shall be accounted for by the Subordination Agent so that
any portion thereof paid or applied pursuant hereto shall be identifiable as to
the source thereof.
Section 6.05. Reliance; Agents; Advice of Counsel. The Subordination
Agent shall not incur any liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. As to the Pool
Balance of any Trust as of any date, the Subordination Agent may for all
purposes hereof rely on a certificate signed by any Responsible Officer of the
applicable Trustee, and such certificate shall constitute full protection to the
Subordination Agent for any action taken or omitted to be taken by it in good
faith in reliance thereon. As to any fact or matter relating to the Liquidity
Providers or the Trustees the manner of ascertainment of which is not
specifically described herein, the Subordination Agent may for all purposes
hereof rely on a certificate, signed by any Responsible Officer of the
applicable Liquidity Provider or Trustee, as the case may be, as to such fact or
matter, and such certificate shall constitute full protection to the
Subordination Agent for any action taken or omitted to be taken by it in good
faith in reliance thereon. In the administration of the trusts hereunder, the
Subordination Agent may (a) execute any of the trusts or powers hereof and
perform its powers and duties hereunder directly or through agents or attorneys
and (b) consult with counsel, accountants and other skilled Persons to be
selected and retained by it. The Subordination Agent shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
advice or opinion of any such counsel, accountants or other skilled Persons
acting within such counsel's, accountants' or Person's area of competence (so
long as the Subordination Agent shall have exercised reasonable care and
judgment in selecting such Persons).
Section 6.06. Capacity in Which Acting. The Subordination Agent acts
hereunder solely as agent or trustee herein and not in its individual capacity,
except as otherwise expressly provided herein and in the Operative Agreements.
Section 6.07. Compensation. The Subordination Agent shall be
entitled to such compensation, including reasonable expenses and disbursements,
for all services rendered hereunder as Delta and the Subordination Agent may
agree from time to time in writing and shall have a priority claim to the extent
set forth in Article III on all monies collected hereunder for the payment of
such compensation, to the extent that such compensation shall not be paid by
others. The Subordination Agent agrees that it shall have no right against any
Trustee or Liquidity Provider for any fee as compensation for its services as
agent under this Agreement. The provisions of this Section 6.07 shall survive
the termination of this Agreement.
Section 6.08. May Become Certificateholder. The institution acting
as Subordination Agent hereunder may become a Certificateholder and have all
rights and benefits of a Certificateholder to the same extent as if it were not
the institution acting as the Subordination Agent.
Section 6.09. Subordination Agent Required; Eligibility. There shall
at all times be a Subordination Agent hereunder that is a Citizen of the United
States, a bank, trust company or other financial institution organized and doing
business under the laws of the United States or any state thereof and eligible
to act as a trustee under Section 310(a) of the Trust Indenture Act of 1939, as
amended, and that has 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 under the laws of the
United States or any State or territory thereof or the District of Columbia and
having a combined capital and surplus of at least $75,000,000). If such bank,
trust company or other financial institution or 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 6.09 the combined capital and
surplus of such bank, trust company or other financial institution or 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 Subordination Agent shall cease to be
eligible in accordance with the provisions of this Section 6.09, the
Subordination Agent shall resign immediately in the manner and with the effect
specified in Section 7.01.
Section 6.10. Money to Be Held in Trust. All Equipment Notes, monies
and other property deposited with or held by the Subordination Agent pursuant to
this Agreement shall be held in trust for the benefit of the parties entitled to
such Equipment Notes, monies and other property and the Subordination Agent, in
its individual capacity, hereby waives all rights of set-off and counterclaim
with respect to all such property.
ARTICLE VII
SUCCESSOR SUBORDINATION AGENT
Section 7.01. Replacement of Subordination Agent; Appointment of
Successor. (a) The Subordination Agent or any successor thereto must resign if
at any time it fails to comply with Section 6.09 and may resign at any time
without cause by giving 60 days' prior written notice to Delta , the Trustees
and the Liquidity Providers. The Controlling Party (or the party that would be
the Controlling Party if an Indenture Event of Default had occurred) shall
remove the Subordination Agent if:
(1) the Subordination Agent fails to comply with Section 6.09;
(2) the Subordination Agent is adjudged bankrupt or insolvent or
files a bankruptcy petition;
(3) a receiver of the Subordination Agent shall be appointed or any
public officer shall take charge or control of the Subordination Agent or
its property or affairs for the purpose of rehabilitation, conservation or
liquidation; or
(4) the Subordination Agent otherwise becomes incapable of acting.
If the Subordination Agent resigns or is removed or if a vacancy
exists in the office of Subordination Agent for any reason (the Subordination
Agent in such event being referred to herein as the retiring Subordination
Agent), the Controlling Party (or the party that would be the Controlling Party
if an Indenture Event of Default had occurred) shall promptly appoint a
successor Subordination Agent. If a successor Subordination Agent shall not have
been appointed within 60 days after such notice of resignation or removal, the
retiring Subordination Agent, one or more of the Trustees or one or more of the
Liquidity Providers may petition any court of competent jurisdiction for the
appointment of a successor Subordination Agent to act until such time, if any,
as a successor shall have been appointed as provided above.
A successor Subordination Agent shall deliver (x) a written
acceptance of its appointment as Subordination Agent hereunder to the retiring
Subordination Agent and (y) a written assumption of its obligations hereunder
and under each Liquidity Facility to each party hereto, upon which the
resignation or removal of the retiring Subordination Agent shall become
effective, and the successor Subordination Agent shall have all the rights,
powers and duties of the Subordination Agent under this Agreement. The successor
Subordination Agent shall mail a notice of its succession to the Liquidity
Providers and the Trustees. The retiring Subordination Agent shall promptly
transfer its rights under each of the Liquidity Facilities and all of the
property and all books and records, or true, complete and correct copies
thereof, held by it as Subordination Agent to the successor Subordination Agent.
If the Subordination Agent fails to comply with Section 6.09 (to the
extent applicable), one or more of the Trustees or one or more of the Liquidity
Providers may petition a court of competent jurisdiction for the removal of the
Subordination Agent and the appointment of a successor Subordination Agent.
Notwithstanding the foregoing, no resignation or removal of the
Subordination Agent shall be effective unless and until a successor has been
appointed. No appointment of a successor Subordination Agent shall be effective
unless and until the Rating Agencies shall have delivered a Ratings
Confirmation.
(b) Any corporation into which the Subordination Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Subordination Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Subordination Agent, shall be the successor
of the Subordination Agent hereunder, provided that such corporation shall be
otherwise qualified and eligible under Section 6.09, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
ARTICLE VIII
SUPPLEMENTS AND AMENDMENTS
Section 8.01. Amendments, Waivers, Etc. (a) This Agreement may not
be supplemented, amended or modified without the consent of each Trustee
(acting, except in the case of any amendment pursuant to Section 3.06(e)(v)(y)
or any amendment contemplated by the last sentence of this Section 8.01(a), with
the consent of holders of Certificates of the related Class evidencing
Fractional Undivided Interests in the related Trust aggregating not less than a
majority in interest in such Trust or as otherwise authorized pursuant to the
relevant Trust Agreement (including, without limitation, without the consent of
the Certificateholders to the extent permitted thereby, Section 9.01 of the
Basic Agreement)), the Subordination Agent and each Liquidity Provider;
provided, however, that this Agreement may be supplemented, amended or modified
without the consent of any Trustee in order (i) to cure any ambiguity or
omission or to correct any mistake, (ii) to correct or supplement any provision,
or (iii) to make any other provision in regard to matters or questions arising
hereunder that will not materially adversely affect the interests of any Trustee
or the holders of the related Class of Certificates, and without the consent of
any Liquidity Provider if such supplement, amendment or modification is in
accordance with Section 8.01(c); provided further, however, that, if such
supplement, amendment or modification (x) would directly or indirectly amend,
modify or supersede, or otherwise conflict with, Section 2.02(b), 3.06(c),
3.06(e), 3.06(f) (other than the last sentence thereof), 3.06(l), this proviso
of 8.01(a), the last sentence of 8.01(a), 8.01(c) or 9.06 (collectively, the
"Delta Provisions"), (y) would otherwise affect the interests of a potential
Replacement Liquidity Provider or of Delta with respect to its ability to
replace any Liquidity Facility or with respect to its payment obligations under
any Operative Agreement or (z) is made pursuant to the last sentence of this
Section 8.01(a) or pursuant to Section 8.01(c), then such supplement, amendment
or modification shall not be effective without the additional written consent of
Delta. Notwithstanding the foregoing, without the consent of each
Certificateholder affected thereby and each Liquidity Provider, no supplement,
amendment or modification of this Agreement may (i) reduce the percentage of the
interest in any Trust evidenced by the Certificates issued by such Trust
necessary to consent to modify or amend any provision of this Agreement or to
waive compliance therewith or (ii), except as provided in the last sentence of
this Section 8.01(a), modify Section 2.04, 3.02 or 3.03 hereof relating to the
distribution of monies received by the Subordination Agent hereunder from the
Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in
this Section 8.01(a) shall require the consent of a Trustee at any time
following the payment of Final Distributions with respect to the related Class
of Certificates. If the Replacement Liquidity Facility for any Liquidity
Facility is to be comprised of more than one instrument as contemplated by the
definition of the term "Replacement Liquidity Facility", then each party hereto
agrees to amend this Agreement and the other Operative Agreements to incorporate
appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) Subject to Section 2.06, if the Subordination Agent, as the
registered holder of any Equipment Notes, receives a request for its consent to
any amendment, modification, consent or waiver under such Equipment Notes, the
Indenture pursuant to which such Equipment Notes were issued or the related
Participation Agreement or other related document, (i) if no Indenture Event of
Default shall have occurred and be continuing with respect to such Indenture,
the Subordination Agent shall request directions with respect to each series of
such Equipment Notes from the Trustee of the Trust which holds such Equipment
Notes and shall vote or consent in accordance with the directions of such
Trustee and (ii) if any Indenture Event of Default shall have occurred and be
continuing with respect to such Indenture, the Subordination Agent will exercise
its voting rights as directed by the Controlling Party, subject to Section 4.01
and 4.04; provided that no such amendment, modification, consent or waiver
shall, without the consent of each Liquidity Provider, reduce the amount of
principal or interest payable by Delta under any Equipment Note.
(c) Notwithstanding any provision to the contrary contained herein,
so long as Delta and/or its Affiliates holds or beneficially owns a majority in
interest of the Class D Certificates or otherwise controls the actions of the
Class D Trustee, any consent or approval of the Class D Trustee or any Class D
Certificateholders otherwise required in accordance with the foregoing
provisions shall not be required.
Section 8.02. Subordination Agent Protected. If, in the reasonable
opinion of the institution acting as the Subordination Agent hereunder, any
document required to be executed by it pursuant to the terms of Section 8.01
adversely affects any right, duty, immunity or indemnity with respect to such
institution under this Agreement or any Liquidity Facility, the Subordination
Agent may in its discretion decline to execute such document.
Section 8.03. Effect of Supplemental Agreements. Upon the execution
of any amendment, consent or supplement hereto pursuant to the provisions
hereof, this Agreement shall be and shall be deemed to be modified and amended
in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Agreement of the parties hereto
and beneficiaries hereof shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental agreement shall be and be
deemed to be part of the terms and conditions of this Agreement for any and all
purposes. In executing or accepting any supplemental agreement permitted by this
Article VIII, the Subordination Agent shall be entitled to receive, and shall be
fully protected in relying upon, an opinion of counsel stating that the
execution of such supplemental agreement is authorized or permitted by this
Agreement.
Section 8.04. Notice to Rating Agencies. Promptly following its
receipt of each amendment, consent, modification, supplement or waiver
contemplated by this Article VIII, the Subordination Agent shall send a copy
thereof to each Rating Agency.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Termination of Intercreditor Agreement. Upon (or at
any time after) payment of Final Distributions with respect to each Class of
Certificates and the payment in full of all Liquidity Obligations to the
Liquidity Providers and provided that there shall then be no other amounts due
to the Certificateholders, the Trustees, the Liquidity Providers and the
Subordination Agent hereunder or under the Trust Agreements, and that the
commitment of the Liquidity Providers under the Liquidity Facilities shall have
expired or been terminated, this Agreement shall terminate and shall be of no
further force or effect. Except as aforesaid or otherwise provided, this
Agreement and the trusts created hereby shall continue in full force and effect
in accordance with the terms hereof.
Section 9.02. Intercreditor Agreement for Benefit of Trustees,
Liquidity Providers and Subordination Agent. Subject to the second sentence of
Section 9.06 and the provisions of Section 4.04, nothing in this Agreement,
whether express or implied, shall be construed to give to any Person other than
the Trustees, the Liquidity Providers and the Subordination Agent any legal or
equitable right, remedy or claim under or in respect of this Agreement.
Section 9.03. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices required or permitted under the terms
and provisions of this Agreement shall be in English and in writing, and any
such notice may be given by United States mail, courier service or facsimile or
any other customary means of communication, and any such notice shall be
effective when delivered (or, if mailed, three Business Days after deposit,
postage prepaid, in the first class United States mail and, if delivered by
facsimile, upon completion of transmission and confirmation by the sender (by a
telephone call to a representative of the recipient or by machine confirmation)
that such transmission was received),
if to the Subordination Agent, to:
State Street Bank and Trust Company of Connecticut,
National Association
225 Asylum Street
Goodwin Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Telephone: (860) 244-1844
Telecopy: (860) 244-1881
if to any Trustee, to:
State Street Bank and Trust Company of Connecticut,
National Association
225 Asylum Street
Goodwin Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Telephone: (860) 244-1844
Telecopy: (860) 244-1881
if to the Liquidity Provider, to:
Landesbank Hessen-Thuringen Girozentrale
Main Tower
Neue Mainzer Str. 52-58
60311 Frankfurt am Main
Germany
Attention: Asset Finance
Telephone: 49-69-9132-4882
Telecopy: 49-69-9132-4392
with a copy to:
Landesbank Hessen-Thuringen
New York Branch
420 Fifth Avenue, 24th Floor
New York, NY 10018
Attention: Structural Finance/Michael Novack
Telephone: (212) 703-5224
Telecopy: (212) 703-5256
Any party, by notice to the other parties hereto, may designate
additional or different addresses for subsequent notices or communications.
Whenever the words "notice" or "notify" or similar words are used herein, they
mean the provision of formal notice as set forth in this Section 9.03.
Section 9.04. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 9.05. No Oral Modifications or Continuing Waivers. No terms
or provisions of this Agreement may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party or other Person
against whom enforcement of the change, waiver, discharge or termination is
sought and any other party or other Person whose consent is required pursuant to
this Agreement and any waiver of the terms hereof shall be effective only in the
specific instance and for the specific purpose given.
Section 9.06. Successors and Assigns. All covenants and agreements
contained herein shall bind and inure to the benefit of, and be enforceable by,
each of the parties hereto and the successors and permitted assigns of each, all
as herein provided. In addition, the Delta Provisions shall inure to the benefit
of Delta and its successors and permitted assigns, and (without limitation of
the foregoing) Delta is hereby constituted, and agreed to be, an express third
party beneficiary of the Delta Provisions.
Section 9.07. Headings. The headings of the various Articles and
Sections herein and in the Table of Contents hereto are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section 9.08. Counterparts. This Agreement may be executed in any
number of counterparts (and each party shall not be required to execute the same
counterpart). Each counterpart of this Agreement including a signature page or
pages executed by each of the parties hereto shall be an original counterpart of
this Agreement, but all of such counterparts together constitute one instrument.
Section 9.09. Subordination. (a) As among the Trustees, and as
between the Liquidity Providers, on the one hand, and the Trustees and the
Certificateholders, on the other hand, this Agreement shall be a subordination
agreement for purposes of Section 510 of the United States Bankruptcy Code, as
amended from time to time. In addition, as among the Trustees and the
Certificateholders of each Class, this Agreement shall be a subordination
agreement for purposes of such Section 510.
(b) Notwithstanding the provisions of this Agreement, if prior to
the payment in full to the Liquidity Providers of all Liquidity Obligations then
due and payable or prior to the distribution in full of any other amount
distributable hereunder, any party hereto shall have received any payment or
distribution in respect of Equipment Notes or any other amount under the
Indentures or other Operative Agreements which, had the subordination provisions
of this Agreement been properly applied to such payment, distribution or other
amount, would not have been distributed to such Person, then such payment,
distribution or other amount shall be received and held in trust by such Person
and paid over or delivered to the Subordination Agent for application as
provided herein.
(c) If any Trustee, any Liquidity Provider or the Subordination
Agent receives any payment in respect of any obligations owing or amounts
distributable hereunder (or, in the case of the Liquidity Providers, in respect
of the Liquidity Obligations), which is subsequently invalidated, declared
preferential, set aside and/or required to be repaid to a trustee, receiver or
other party, then, to the extent of such payment, such obligations or amounts
(or, in the case of the Liquidity Providers, such Liquidity Obligations)
intended to be satisfied shall be revived and continue in full force and effect
as if such payment had not been received.
(d) The Trustees (on behalf of themselves and the holders of
Certificates), the Liquidity Providers and the Subordination Agent expressly
confirm and agree that the payment priorities and subordination specified in
Articles II and III shall apply in all circumstances, notwithstanding (x) the
fact that the obligations owed to the Trustees are secured by certain assets and
the Liquidity Obligations are not so secured and (y) the occurrence of a Delta
Bankruptcy Event or any similar event or occurrence relating to any other Person
(it being expressly agreed that the payment priorities and subordination
specified in Articles II and III shall apply whether or not a claim for
post-petition or post-filing interest is allowed in the proceedings resulting
from such Delta Bankruptcy Event or other event or occurrence). The Trustees
expressly agree (on behalf of themselves and the holders of Certificates) not to
assert priority over the holders of Liquidity Obligations due to their status as
secured creditors in any bankruptcy, insolvency or other legal proceeding.
(e) Each of the Trustees (on behalf of themselves and the holders of
Certificates), the Liquidity Providers and the Subordination Agent may take any
of the following actions without impairing its rights under this Agreement:
(i) obtain a Lien on any property to secure any amounts owing to it
hereunder, including, in the case of the Liquidity Providers, the
Liquidity Obligations;
(ii) obtain the primary or secondary obligation of any other obligor
with respect to any amounts owing to it hereunder, including, in the case
of the Liquidity Providers, any of the Liquidity Obligations;
(iii) renew, extend, increase, alter or exchange any amounts owing
to it hereunder, including, in the case of the Liquidity Providers, any of
the Liquidity Obligations, or release or compromise any obligation of any
obligor with respect thereto;
(iv) refrain from exercising any right or remedy, or delay in
exercising any right or remedy, which it may have; or
(v) take any other action which might discharge a subordinated party
or a surety under applicable law;
provided, however, that the taking of any such actions by any of the Trustees,
the Liquidity Providers or the Subordination Agent shall not prejudice the
rights or adversely affect the obligations of any other party under this
Agreement.
Section 9.10. Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN
THE STATE OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.11. Submission to Jurisdiction; Waiver of Jury Trial;
Waiver of Immunity. (a) Each of the parties hereto, to the extent it may do so
under applicable law, for purposes hereof and of all other Operative Agreements
hereby (a) irrevocably submits itself to the non-exclusive jurisdiction of the
courts of the State of New York sitting in the City of New York and to the
non-exclusive jurisdiction of the United States District Court for the Southern
District of New York, for the purposes of any suit, action or other proceeding
arising out of this Agreement, the subject matter hereof or any of the
transactions contemplated hereby brought by any party or parties hereto or
thereto, or their successors or permitted assigns and (b) waives, and agrees not
to assert, by way of motion, as a defense, or otherwise, in any such suit,
action or proceeding, that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or proceeding is improper
or that this Agreement or the subject matter hereof or any of the transactions
contemplated hereby may not be enforced in or by such courts.
(b) EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING ESTABLISHED, including,
without limitation, contract claims, tort claims, breach of duty claims and all
other common law and statutory claims. Each of the parties warrants and
represents that it has reviewed this waiver with its legal counsel, and that it
knowingly and voluntarily waives its jury trial rights following consultation
with such legal counsel. THIS WAIVER IS IRREVOCABLE AND CANNOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
(c) Each Liquidity Provider hereby waives any immunity it may have
from the jurisdiction of the courts of the United States or of any state thereof
and waives any immunity any of its properties located in the United States may
have from attachment or execution upon a judgment entered by any such court
under the United States Foreign Sovereign Immunities Act of 1976 or any similar
successor legislation.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized, as of
the date first above written.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Trustee for each of the Trusts
By:
--------------------------
Name:
Title:
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as Class A-1 Liquidity
Provider, Class A-2 Liquidity Provider,
Class B Liquidity Provider and
Class C Liquidity Provider
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Subordination Agent
By:
--------------------------
Name:
Title:
EX-4.(C)(1)
10
de600102-ex4c1.txt
REVOLVING CREDIT AGREEMENT (2001-1A-1)
EXHIBIT 4(c)(1)
EXECUTION COPY
REVOLVING CREDIT AGREEMENT
(2001-1A-1)
Dated as of September 17, 2001
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Subordination Agent,
as agent and trustee for the trustee of
Delta Air Lines Pass Through Trust 2001-1A-1,
as Borrower
and
LANDESBANK HESSEN-THURINGEN GIROZENTRALE
as Liquidity Provider
Delta Air Lines Pass Through Trust 2001-1A-1
6.619% Delta Air Lines
Pass Through Certificates,
Series 2001-1A-1
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Definitions...................................................
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances..................................................
Section 2.02. Making of Advances............................................
Section 2.03. Fees..........................................................
Section 2.04. Reduction or Termination of the Maximum Commitment............
Section 2.05. Repayments of Interest Advances or the Final Advance..........
Section 2.06. Repayments of Provider Advances...............................
Section 2.07. Payments to the Liquidity Provider Under the Intercreditor
Agreement...................................................................
Section 2.08. Book Entries..................................................
Section 2.09. Payments from Available Funds Only............................
Section 2.10. Extension of the Expiry Date; Non-Extension Advance...........
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs...............................................
Section 3.02. [Intentionally omitted.]......................................
Section 3.03. Withholding Taxes.............................................
Section 3.04. Payments......................................................
Section 3.05. Computations..................................................
Section 3.06. Payment on Non-Business Days..................................
Section 3.07. Interest......................................................
Section 3.08. Replacement of Borrower.......................................
Section 3.09. Funding Loss Indemnification..................................
Section 3.10. Illegality....................................................
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01.........
Section 4.02. Conditions Precedent to Borrowing.............................
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower.........................
Section 5.02. Negative Covenants of the Borrower............................
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default...................................
ARTICLE VII
MISCELLANEOUS
Section 7.01. No Oral Modifications or Continuing Waivers...................
Section 7.02. Notices.......................................................
Section 7.03. No Waiver; Remedies...........................................
Section 7.04. Further Assurances............................................
Section 7.05. Indemnification; Survival of Certain Provisions...............
Section 7.06. Liability of the Liquidity Provider...........................
Section 7.07. Certain Costs and Expenses....................................
Section 7.08. Binding Effect; Participations................................
Section 7.09. Severability..................................................
Section 7.10. Governing Law.................................................
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of
Immunity......................................................
Section 7.12. Counterparts..................................................
Section 7.13. Entirety......................................................
Section 7.14. Headings......................................................
Section 7.15. Liquidity Provider's Obligation to Make Advances..............
Annex I - Interest Advance Notice of Borrowing
Annex II - Non-Extension Advance Notice of Borrowing
Annex III - Downgrade Advance Notice of Borrowing
Annex IV - Final Advance Notice of Borrowing
Annex V - Notice of Termination
Annex VI - Notice of Replacement Subordination Agent
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT, dated as of September 17, 2001, is made
by and between STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity but
solely as Subordination Agent (such term and other capitalized terms used herein
without definition being defined as provided in Article I) under the
Intercreditor Agreement (as defined below), as agent and trustee for the Class
A-1 Trustee (in such capacity, together with its successors in such capacity,
the "BORROWER"), and LANDESBANK HESSEN-THURINGEN GIROZENTRALE ("Helaba"), a
banking institution organized under the laws of Germany (the "LIQUIDITY
PROVIDER").
W I T N E S S E T H:
WHEREAS, pursuant to the Class A-1 Trust Agreement, the Class A-1 Trust is
issuing the Class A-1 Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a portion
of the interest on the Class A-1 Certificates in accordance with their terms,
has requested the Liquidity Provider to enter into this Agreement, providing in
part for the Borrower to request in specified circumstances that Advances be
made hereunder;
NOW, THEREFORE, in consideration of the 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. (a) The definitions stated herein apply equally
to both the singular and the plural forms of the terms defined.
(b) All references in this Agreement to designated "Articles", "Sections",
"Annexes" and other subdivisions are to the designated Article, Section, Annex
or other subdivision of this Agreement, unless otherwise specifically stated.
(c) 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, Annex or other subdivision.
(d) 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".
(e) For the purposes of this Agreement, unless the context otherwise
requires, the following capitalized terms shall have the following meanings:
"ADVANCE" means an Interest Advance, a Final Advance, a Provider
Advance, an Unapplied Provider Advance, an Applied Provider Advance or an
Unpaid Advance, as the case may be.
"AGREEMENT" means this Agreement, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
"APPLICABLE LIQUIDITY RATE" has the meaning specified in Section
3.07(g).
"APPLICABLE MARGIN" means (a) with respect to any Unpaid Advance or
Applied Provider Advance, 1.50% per annum, or (b) with respect to any
Unapplied Provider Advance, the rate per annum specified in the Fee Letter
applicable to this Agreement.
"APPLIED DOWNGRADE ADVANCE" has the meaning specified in Section
2.06(a).
"APPLIED NON-EXTENSION ADVANCE" has the meaning specified in Section
2.06(a).
"APPLIED PROVIDER ADVANCE" means an Applied Downgrade Advance or an
Applied Non-Extension Advance.
"BASE RATE" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers,
as published for each day in the period for which the Base Rate is to be
determined (or, if such day is not a Business Day, for the preceding
Business Day) by the Federal Reserve Bank of New York, or if such rate is
not so published for any day that is a Business Day, the average of the
quotations for such day for such transactions received by the Liquidity
Provider from three Federal funds brokers of recognized standing selected
by it (and reasonably satisfactory to Delta) plus one-quarter of one
percent (0.25%).
"BASE RATE ADVANCE" means an Advance that bears interest at a rate
based upon the Base Rate.
"BORROWER" has the meaning specified in the introductory paragraph
to this Agreement.
"BORROWING" means the making of Advances requested by delivery of a
Notice of Borrowing.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a
day on which commercial banks are required or authorized to close in New
York, New York, Atlanta, Georgia, or, so long as any Class A-1 Certificate
is outstanding, the city and state in which the Class A-1 Trustee, the
Borrower or any related Loan Trustee maintains its Corporate Trust Office
or receives or disburses funds, and, if the applicable Business Day
relates to any Advance or other amount bearing interest based on the LIBOR
Rate, on which dealings are carried on in the London interbank market.
"CONSENT PERIOD" has the meaning specified in Section 2.10.
"COVERED TAXES" means any Taxes imposed by the United States or any
political subdivision or taxing authority thereof or therein required by
law to be deducted or withheld from any amounts payable to the Liquidity
Provider under this Agreement other than (i) any Tax on, based on or
measured by net income, franchises or conduct of business, (ii) any Tax
imposed, levied, withheld or assessed as a result of any connection
between the Liquidity Provider and the United States or such political
subdivision or taxing authority, other than a connection arising solely
from the Liquidity Provider's having executed, delivered, performed its
obligations or received a payment under, or enforced, any Operative
Agreement, (iii) any Tax attributable to the inaccuracy in or breach by
the Liquidity Provider of any of its representations, warranties or
covenants contained in any Operative Agreement to which it is a party or
the inaccuracy of any form or document furnished pursuant thereto, (iv)
any withholding Taxes imposed by the United States except to the extent
such withholding Taxes would not have been required to be deducted or
withheld from payments hereunder but for a change after the date hereof
(or in the case of a successor Liquidity Provider (including a transferee
of an Advance) after the date on which such successor Liquidity Provider
obtains its interest) in applicable law (excluding from "change in
applicable law" for this purpose, a change in an applicable treaty or
other change in law affecting the applicability of a treaty other than the
applicable income tax treaty between the United States of America and the
Federal Republic of Germany ("German Treaty") (except an addition to, or
change in any "anti-treaty shopping", "limitation of benefits" or similar
provision in such German Treaty)), (v) any withholding Taxes imposed by
the United States which are imposed or increased as a result of the
Liquidity Provider failing to deliver to the Borrower any certificate or
document (which certificate or document in the good faith judgment of the
Liquidity Provider, it is legally entitled to provide) which is reasonably
requested by the Borrower to establish that payments under this Agreement
are exempt from (or entitled to a reduced rate of) withholding Tax, or
(vi) any change in the Lending Office without the prior written consent of
Delta (such consent not to be unreasonably withheld).
"DOWNGRADE ADVANCE" means an Advance made pursuant to Section
2.02(c).
"DOWNGRADE EVENT" means a downgrading of the Liquidity Provider's
short-term unsecured debt rating issued by either Rating Agency (or if the
Liquidity Provider does not have a short-term unsecured debt rating issued
by a given Rating Agency, the long-term unsecured debt rating issued by
such Rating Agency) below the applicable Threshold Rating unless each
Rating Agency shall have confirmed in writing on or prior to the date of
such downgrading that such downgrading will not result in the downgrading,
withdrawal or suspension of the ratings of the Class A-1 Certificates, in
which case, such downgrading of the Liquidity Provider's short-term
unsecured debt rating shall not constitute a Downgrade Event and shall be
referred to herein as a "HELABA DOWNGRADE".
"EFFECTIVE DATE" has the meaning specified in Section 4.01. The
delivery of the certificate of the Liquidity Provider contemplated by
Section 4.01(f) shall be conclusive evidence that the Effective Date has
occurred.
"EXCLUDED TAXES" means (a) Taxes imposed on the overall net income
of the Liquidity Provider, (b) Covered Taxes that are indemnified pursuant
to Section 3.03 hereof, and (c) Taxes described in clauses (i) through
(vi) in the definition of "Covered Taxes".
"EXPENSES" means liabilities, losses, damages, costs and expenses
(including, without limitation, reasonable fees and disbursements of legal
counsel), provided that Expenses shall not include any Taxes other than
sales, use and V.A.T. taxes imposed on fees and expenses payable pursuant
to Section 7.07.
"EXPIRY DATE" means September 15, 2002, initially, or any date to
which the Expiry Date is extended pursuant to Section 2.10.
"FINAL ADVANCE" means an Advance made pursuant to Section 2.02(d).
"HELABA DOWNGRADE" has the meaning assigned to such term in the
definition of "Downgrade Event".
"INCREASED COST" has the meaning specified in Section 3.01.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement, dated
as of the date hereof, among the Trustees, the Liquidity Provider, the
liquidity provider under each Liquidity Facility (other than this
Agreement) and the Subordination Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
"INTEREST ADVANCE" means an Advance made pursuant to Section
2.02(a).
"INTEREST PERIOD" means, with respect to any LIBOR Advance, each of
the following periods:
(i) the period beginning on the third Business Day following
either (A) the Liquidity Provider's receipt of the Notice of
Borrowing for such LIBOR Advance or (B) the date of the withdrawal
of funds from the Class A-1 Cash Collateral Account for the purpose
of paying interest on the Class A-1 Certificates as contemplated by
Section 2.06(a) hereof and, in each case, ending on the next
numerically corresponding day in the first calendar month after the
first day of the applicable Interest Period; and
(ii) each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the numerically
corresponding day in the first calendar month after the first day of
the applicable Interest Period;
provided, however, that if (x) the Final Advance shall have been made
pursuant to Section 2.02(d) or (y) other outstanding Advances shall have
been converted into the Final Advance pursuant to Section 6.01, then the
Interest Periods shall be successive periods of one month beginning on the
third Business Day following the Liquidity Provider's receipt of the
Notice of Borrowing for such Final Advance (in the case of clause (x)
above) or the Regular Distribution Date following such conversion (in the
case of clause (y) above).
"LENDING OFFICE" means the lending office of the Liquidity Provider
presently located at Frankfurt, Germany, or such other lending office as
the Liquidity Provider from time to time shall notify the Borrower as its
lending office hereunder; provided that the Liquidity Provider shall not
change its Lending Office without the prior written consent of Delta (such
consent not to be unreasonably withheld).
"LIBOR ADVANCE" means an Advance bearing interest at a rate based
upon the LIBOR Rate.
"LIBOR RATE" means, with respect to any Interest Period, (a) the
interest rate per annum equal to the rate per annum at which deposits in
Dollars are offered in the London interbank market as shown on Page 3750
of the Telerate Systems Incorporated screen service (or such other page as
may replace Telerate Page 3750), or if such service is not available, Page
LIBO of the Reuters Money Service Monitor System (or such other page as
may replace Reuters Page LIBO) at approximately 11:00 a.m. (London time)
on the day that is two Business Days prior to the first day of such
Interest Period, for a period comparable to such Interest Period, or (b)
if no such rate is published on either such service or if neither of such
services is then available, the interest rate per annum equal to the
average (rounded up, if necessary, to the nearest 1/100th of 1%) of the
rates at which deposits in Dollars are offered by the Reference Banks (or,
if fewer than all of the Reference Banks are quoting a rate for deposits
in Dollars for the applicable period and amount, such fewer number of
Reference Banks) at approximately 11:00 a.m. (London time) on the day that
is two Business Days prior to the first day of such Interest Period to
prime banks in the London interbank market for a period comparable to such
Interest Period and in an amount approximately equal to the principal
amount of the LIBOR Advance to be outstanding during such Interest Period,
or (c) if none of the Reference Banks is quoting a rate for deposits in
Dollars in the London interbank market for such a period and amount, the
interest rate per annum equal to the average (rounded up, if necessary, to
the nearest 1/100th of 1%) of the rates at which deposits in Dollars are
offered by the principal New York offices of the Reference Banks (or, if
fewer than all of the Reference Banks are quoting a rate for deposits in
Dollars in the New York interbank market for the applicable period and
amount, such fewer number of Reference Banks) at approximately 11:00 a.m.
(New York time) on the day that is two Business Days prior to the first
day of such Interest Period to prime banks in the New York interbank
market for a period comparable to such Interest Period and in an amount
approximately equal to the principal amount of the LIBOR Advance to be
outstanding during such Interest Period, or (d) if none of the principal
New York offices of the Reference Banks is quoting a rate for deposits in
Dollars in the New York interbank market for the applicable period and
amount, the Base Rate.
"LIQUIDITY EVENT OF DEFAULT" means the occurrence of either (a) the
Acceleration of all of the Equipment Notes or (b) a Delta Bankruptcy
Event.
"LIQUIDITY INDEMNITEE" means the Liquidity Provider, its directors,
officers, employees and agents, and its successors and permitted assigns.
"LIQUIDITY PROVIDER" has the meaning specified in the introductory
paragraph to this Agreement.
"MAXIMUM AVAILABLE COMMITMENT" means, subject to the proviso
contained in the third sentence of Section 2.02(a), at any time of
determination, (a) the Maximum Commitment at such time less (b) the
aggregate amount of each Interest Advance outstanding at such time;
provided that following a Provider Advance or a Final Advance, the Maximum
Available Commitment shall be zero.
"MAXIMUM COMMITMENT" means $29,840,658.33 as the same may be reduced
from time to time in accordance with Section 2.04(a).
"NON-EXTENSION ADVANCE" means an Advance made pursuant to Section
2.02(b).
"NOTICE OF BORROWING" has the meaning specified in Section 2.02(e).
"NOTICE OF REPLACEMENT SUBORDINATION AGENT" has the meaning
specified in Section 3.08.
"PARTICIPATION" has the meaning specified in Section 7.08(b).
"PERFORMING NOTE DEFICIENCY" means any time that less than 65% of
the then aggregate outstanding principal amount of all Equipment Notes are
Performing Equipment Notes.
"PERMITTED TRANSFEREE" means any Person that:
(a) is not a commercial air carrier, Delta or any affiliate of
Delta; and
(b) is any one of:
(1) a commercial banking institution organized under the
laws of the United States or any state thereof or the District
of Columbia;
(2) a commercial banking institution that (x) is
organized under the laws of France, Germany, The Netherlands,
Switzerland or the United Kingdom, (y) is entitled on the date
it acquires any Participation to a complete exemption from
United States federal income taxes for all income derived by
it from the transactions contemplated by the Operative
Agreements under an income tax treaty, as in effect on such
date, between the United States and such jurisdiction of its
organization and (z) is engaged in the active conduct of a
banking business in such jurisdiction of its organization,
holds its Participation in connection with such banking
business in such jurisdiction and is regulated as a commercial
banking institution by the appropriate regulatory authorities
in such jurisdiction; or
(3) a commercial banking institution that (x) is
organized under the laws of Canada, France, Germany, Ireland,
Japan, Luxembourg, The Netherlands, Sweden, Switzerland or the
United Kingdom and (y) is entitled on the date it acquires any
Participation to a complete exemption from withholding of
United States federal income taxes for all income derived by
it from the transactions contemplated by the Operative
Agreements under laws as in effect on such date by reason of
such income being effectively connected with the conduct of a
trade or business within the United States.
"PROSPECTUS SUPPLEMENT" means the Prospectus Supplement dated
September 6, 2001, relating to the Class A-1, Class A-2, Class B and Class
C Certificates, as such Prospectus Supplement may be amended or
supplemented.
"PROVIDER ADVANCE" means a Downgrade Advance or a Non-Extension
Advance.
"REFERENCE BANKS" means the principal London offices of: National
Westminster Bank, plc; Helaba; The Chase Manhattan Bank; Citibank, N.A.;
and such other or additional banking institutions as may be designated
from time to time by mutual agreement of Delta and the Liquidity Provider.
"REGULATORY CHANGE" means the enactment, adoption or promulgation,
after the date of this Agreement, of any law or regulation by a United
States federal or state government or by any government having
jurisdiction over the Liquidity Provider, or any change, after the date of
this Agreement, in any such law or regulation, or in the interpretation
thereof by any governmental authority, central bank or comparable agency
of the United States or any government having jurisdiction over the
Liquidity Provider charged with responsibility for the administration or
application thereof, that shall impose, modify or deem applicable or the
compliance by the Liquidity Provider (or its head office) with any
applicable direction or requirement (whether or not having the force of
law) of any central bank or competent governmental or other authority with
respect to: (a) any reserve, special deposit or similar requirement
against extensions of credit or other assets of, or deposits with or other
liabilities of, the Liquidity Provider including, or by reason of, the
Advances, or (b) any capital adequacy requirement requiring the
maintenance by the Liquidity Provider of additional capital in respect of
any Advances or the Liquidity Provider's obligation to make any such
Advances or (c) any Taxes (other than Excluded Taxes) with respect to the
amounts payable or paid or change the basis of taxation of any amounts
payable to the Liquidity Provider (other than in respect of Excluded
Taxes).
"REPLENISHMENT AMOUNT" has the meaning specified in Section 2.06(b).
"REQUIRED AMOUNT" means, for any day, the sum of the aggregate
amount of interest, calculated at the rate per annum equal to the Stated
Interest Rate for the Class A-1 Certificates on the basis of a 360-day
year comprised of twelve 30-day months, that would be payable on the Class
A-1 Certificates on each of the three successive semiannual Regular
Distribution Dates immediately following such day or, if such day is a
Regular Distribution Date, on such day and the succeeding two semiannual
Regular Distribution Dates, in each case calculated on the basis of the
Pool Balance of the Class A-1 Certificates on such day and without regard
to expected future distributions of principal on the Class A-1
Certificates.
"TERMINATION DATE" means the earliest to occur of the following: (i)
the Expiry Date; (ii) the date on which the Borrower delivers to the
Liquidity Provider a certificate, signed by a Responsible Officer of the
Borrower, certifying that all of the Class A-1 Certificates have been paid
in full (or provision has been made for such payment in accordance with
the Intercreditor Agreement and the Class A-1 Trust Agreement) or are
otherwise no longer entitled to the benefits of this Agreement; (iii) the
date on which the Borrower delivers to the Liquidity Provider a
certificate, signed by a Responsible Officer of the Borrower, certifying
that a Replacement Liquidity Facility has been substituted for this
Agreement in full pursuant to Section 3.06(e) of the Intercreditor
Agreement; (iv) the fifth Business Day following the receipt by the
Borrower of a Termination Notice from the Liquidity Provider pursuant to
Section 6.01; and (v) the date on which no Advance is or may (including by
reason of reinstatement as herein provided) become available for a
Borrowing hereunder.
"TERMINATION NOTICE" means the Notice of Termination substantially
in the form of Annex V to this Agreement.
"UNAPPLIED NON-EXTENSION ADVANCE": Any portion of a Non-Extension
Advance which is not an Applied Non-Extension Advance.
"UNAPPLIED PROVIDER ADVANCE" means any Provider Advance other than
an Applied Provider Advance.
"UNPAID ADVANCE" has the meaning specified in Section 2.05.
For the purposes of this Agreement, the following terms shall have the
respective meanings specified in the Intercreditor Agreement:
"Acceleration", "Certificate", "Class A-1 Cash Collateral Account",
"Class A-1 Certificates", "Class A-1 Certificateholders", "Class A-1
Trust", "Class A-1 Trust Agreement", "Class A-1 Trustee", "Class A-2
Certificates", "Class B Certificates", "Class C Certificates", "Class D
Certificates", "Closing Date", "Collection Account", "Controlling Party",
"Corporate Trust Office", "Delta", "Delta Bankruptcy Event", "Distribution
Date", "Dollars", "Downgraded Facility", "Equipment Notes", "Fee Letter",
"Final Legal Distribution Date", "Indenture", "Initial Class D Holder",
"Interest Payment Date", "Investment Earnings", "Liquidity Facility",
"Liquidity Obligations", "Loan Trustee", "Moody's", "Non-Extended
Facility", "Operative Agreements", "Participation Agreements", "Performing
Equipment Note", "Person", "Pool Balance", "Rating Agencies", "Ratings
Confirmation", "Regular Distribution Date", "Replacement Liquidity
Facility", "Responsible Officer", "Scheduled Payment", "Special Payment",
"S&P", "Stated Interest Rate", "Subordination Agent", "Taxes", "Threshold
Rating", "Trust Agreement", "Trustee", "Underwriters", "Underwriting
Agreement", "United States" and "Written Notice".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances. The Liquidity Provider hereby irrevocably
agrees, on the terms and conditions hereinafter set forth, to make Advances to
the Borrower from time to time on any Business Day during the period from the
Effective Date until 12:00 noon (New York City time) on the Expiry Date (unless
the obligations of the Liquidity Provider shall be earlier terminated in
accordance with the terms of Section 2.04(b)) in an aggregate amount at any time
outstanding not to exceed the Maximum Commitment.
Section 2.02. Making of Advances (a) Each Interest Advance shall be made
by the Liquidity Provider upon delivery to the Liquidity Provider of a written
and completed Notice of Borrowing in substantially the form of Annex I, signed
by a Responsible Officer of the Borrower, such Interest Advance to be in an
amount not exceeding the Maximum Available Commitment at such time and used
solely for the payment when due of interest with respect to the Class A-1
Certificates at the Stated Interest Rate therefor in accordance with Section
3.06(a) and 3.06(b) of the Intercreditor Agreement. Each Interest Advance made
hereunder shall automatically reduce the Maximum Available Commitment and the
amount available to be borrowed hereunder by subsequent Advances by the amount
of such Interest Advance (subject to reinstatement as provided in the next
sentence). Upon repayment to the Liquidity Provider in full or in part of the
amount of any Interest Advance made pursuant to this Section 2.02(a), together
with accrued interest thereon (as provided herein), the Maximum Available
Commitment shall be reinstated by an amount equal to the amount of such Interest
Advance so repaid, but not to exceed the Maximum Commitment; provided, however,
that the Maximum Available Commitment shall not be so reinstated at any time if
(x) both a Performing Note Deficiency exists and a Liquidity Event of Default
shall have occurred and be continuing or (y) a Final Drawing shall have
occurred.
(b) Subject to Section 2.10, a Non-Extension Advance shall be made by the
Liquidity Provider if this Agreement is not extended in accordance with Section
3.06(d) of the Intercreditor Agreement (unless a Replacement Liquidity Facility
to replace this Agreement shall have been delivered to the Borrower as
contemplated by said Section 3.06(d) within the time period specified in such
Section 3.06(d)) upon delivery to the Liquidity Provider of a written and
completed Notice of Borrowing in substantially the form of Annex II, signed by a
Responsible Officer of the Borrower, in an amount equal to the Maximum Available
Commitment at such time, and shall be used to fund the Class A-1 Cash Collateral
Account in accordance with Sections 3.06(d) and 3.06(f) of the Intercreditor
Agreement.
(c) A Downgrade Advance shall be made by the Liquidity Provider upon the
occurrence of a Downgrade Event (as provided for in Section 3.06(c) of the
Intercreditor Agreement) unless a Replacement Liquidity Facility to replace this
Agreement shall have been previously delivered to the Borrower in accordance
with said Section 3.06(c), upon delivery to the Liquidity Provider of a written
and completed Notice of Borrowing in substantially the form of Annex III, signed
by a Responsible Officer of the Borrower, in an amount equal to the Maximum
Available Commitment at such time, and shall be used to fund the Class A-1 Cash
Collateral Account in accordance with Sections 3.06(c) and 3.06(f) of the
Intercreditor Agreement.
(d) A Final Advance shall be made by the Liquidity Provider following the
receipt by the Borrower of a Termination Notice from the Liquidity Provider
pursuant to Section 6.01 upon delivery to the Liquidity Provider of a written
and completed Notice of Borrowing in substantially the form of Annex IV, signed
by a Responsible Officer of the Borrower, in an amount equal to the Maximum
Available Commitment at such time, and shall be used to fund the Class A-1 Cash
Collateral Account (in accordance with Sections 3.06(f) and 3.06(i) of the
Intercreditor Agreement).
(e) Each Borrowing shall be made on notice in writing (a "NOTICE OF
BORROWING") in substantially the form required by Section 2.02(a), 2.02(b),
2.02(c) or 2.02(d), as the case may be, given by the Borrower to the Liquidity
Provider. If a Notice of Borrowing is delivered by the Borrower in respect of
any Borrowing no later than 1:00 p.m. (New York City time) on a Business Day,
upon satisfaction of the conditions precedent set forth in Section 4.02 with
respect to a requested Borrowing, the Liquidity Provider shall make available to
the Borrower, in accordance with its payment instructions, the amount of such
Borrowing in Dollars and immediately available funds, before 4:00 p.m. (New York
City time) on such Business Day or before 1:00 p.m. (New York City time) on such
later Business Day specified in such Notice of Borrowing. If a Notice of
Borrowing is delivered by the Borrower in respect of any Borrowing after 1:00
p.m. (New York City time) on a Business Day, upon satisfaction of the conditions
precedent set forth in Section 4.02 with respect to a requested Borrowing, the
Liquidity Provider shall make available to the Borrower, in accordance with its
payment instructions, the amount of such Borrowing in Dollars and immediately
available funds, before 1:00 p.m. (New York City time) on the first Business Day
next following the day of receipt of such Notice of Borrowing or on such later
Business Day specified by the Borrower in such Notice of Borrowing. Payments of
proceeds of a Borrowing shall be made by wire transfer of immediately available
funds to the Borrower in accordance with such wire transfer instructions as the
Borrower shall furnish from time to time to the Liquidity Provider for such
purpose. Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. Each Notice of Borrowing shall be effective upon delivery of a copy
thereof to the Liquidity Provider's New York branch at the address specified in
Section 7.02 hereof.
(f) Upon the making of any Advance requested pursuant to a Notice of
Borrowing in accordance with the Borrower's payment instructions, the Liquidity
Provider shall be fully discharged of its obligation hereunder with respect to
such Notice of Borrowing, and the Liquidity Provider shall not thereafter be
obligated to make any further Advances hereunder in respect of such Notice of
Borrowing to the Borrower or to any other Person (including the Trustee or any
Class A-1 Certificateholder). If the Liquidity Provider makes an Advance
requested pursuant to a Notice of Borrowing before 12:00 noon (New York City
time) on the second Business Day after the date of payment specified in said
Section 2.02(e), the Liquidity Provider shall have fully discharged its
obligations hereunder with respect to such Advance and an event of default shall
not have occurred hereunder. Following the making of any Advance pursuant to
Section 2.02(b), 2.02(c) or 2.02(d) to fund the Class A-1 Cash Collateral
Account, the Liquidity Provider shall have no interest in or rights to the Class
A-1 Cash Collateral Account, such Advance or any other amounts from time to time
on deposit in the Class A-1 Cash Collateral Account; provided that the foregoing
shall not affect or impair the obligations of the Subordination Agent to make
the distributions contemplated by Section 3.06(e) or 3.06(f) of the
Intercreditor Agreement and provided further, that the foregoing shall not
affect or impair the rights of the Liquidity Provider to provide written
instructions with respect to the investment and reinvestment of amounts in the
Class A-1 Cash Collateral Account to the extent provided in Section 2.02(b) of
the Intercreditor Agreement. By paying to the Borrower proceeds of Advances
requested by the Borrower in accordance with the provisions of this Agreement,
the Liquidity Provider makes no representation as to, and assumes no
responsibility for, the correctness or sufficiency for any purpose of the amount
of the Advances so made and requested.
Section 2.03. Fees. The Borrower agrees to pay to the Liquidity Provider
the fees set forth in the Fee Letter.
Section 2.04. Reduction or Termination of the Maximum Commitment. (a)
Automatic Reduction. Promptly following each date on which the Required Amount
is reduced as a result of a reduction in the Pool Balance of the Class A-1
Certificates or otherwise, the Maximum Commitment shall automatically be reduced
to an amount equal to such reduced Required Amount (as calculated by the
Borrower). The Borrower shall give notice of any such automatic reduction of the
Maximum Commitment to the Liquidity Provider and Delta within two Business Days
thereof. The failure by the Borrower to furnish any such notice shall not affect
such automatic reduction of the Maximum Commitment.
(b) Termination. Upon the making of any Provider Advance or Final Advance
hereunder or the occurrence of the Termination Date, the obligation of the
Liquidity Provider to make further Advances hereunder shall automatically and
irrevocably terminate, and the Borrower shall not be entitled to request any
further Borrowing hereunder.
Section 2.05. Repayments of Interest Advances or the Final Advance.
Subject to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby agrees,
without notice of an Advance or demand for repayment from the Liquidity Provider
(which notice and demand are hereby waived by the Borrower), to pay, or to cause
to be paid, to the Liquidity Provider (a) on each date on which the Liquidity
Provider shall make an Interest Advance or the Final Advance, an amount equal to
the amount of such Advance (any such Advance, until repaid, is referred to
herein as an "UNPAID ADVANCE"), plus (b) interest on the amount of each such
Unpaid Advance in the amounts and on the dates determined as provided in Section
3.07; provided that if (i) the Liquidity Provider shall make a Provider Advance
at any time after making one or more Interest Advances which shall not have been
repaid in accordance with this Section 2.05 or (ii) this Liquidity Facility
shall become a Downgraded Facility or Non-Extended Facility at any time when
unreimbursed Interest Advances have reduced the Maximum Available Commitment to
zero, then such Interest Advances shall cease to constitute Unpaid Advances and
shall be deemed to have been changed into an Applied Downgrade Advance or an
Applied Non-Extension Advance, as the case may be, for all purposes of this
Agreement (including, without limitation, for the purpose of determining when
such Interest Advance is required to be repaid to the Liquidity Provider in
accordance with Section 2.06 and for the purposes of Section 2.06(b)). The
Borrower and the Liquidity Provider agree that the repayment in full of each
Interest Advance and Final Advance on the date such Advance is made is intended
to be a contemporaneous exchange for new value given to the Borrower by the
Liquidity Provider. For the avoidance of doubt, interest payable on an Interest
Advance or the Final Advance shall not be regarded as overdue unless such
interest is not paid when due under Section 3.07.
Section 2.06. Repayments of Provider Advances. (a) Amounts advanced
hereunder in respect of a Provider Advance shall be deposited in the Class A-1
Cash Collateral Account and invested and withdrawn from the Class A-1 Cash
Collateral Account as set forth in Sections 3.06(c), 3.06(d), 3.06(e) and
3.06(f) of the Intercreditor Agreement. Subject to Sections 2.07 and 2.09, the
Borrower agrees to pay to the Liquidity Provider, on each Regular Distribution
Date, commencing on the first Regular Distribution Date after the making of a
Provider Advance, interest on the principal amount of any such Provider Advance,
in the amounts determined as provided in Section 3.07; provided, however, that
amounts in respect of a Provider Advance withdrawn from the Class A-1 Cash
Collateral Account for the purpose of paying interest on the Class A-1
Certificates in accordance with Section 3.06(f) of the Intercreditor Agreement
(the amount of any such withdrawal being (y) in the case of a Downgrade Advance,
an "APPLIED DOWNGRADE ADVANCE" and (z) in the case of a Non-Extension Advance,
an "APPLIED NON-EXTENSION ADVANCE" and, together with an Applied Downgrade
Advance, an "APPLIED PROVIDER ADVANCE") shall thereafter (subject to Section
2.06(b)) be treated as an Interest Advance under this Agreement for purposes of
determining the Applicable Liquidity Rate for interest payable thereon and the
dates on which such interest is payable; provided further, however, that if,
following the making of a Provider Advance, the Liquidity Provider delivers a
Termination Notice to the Borrower pursuant to Section 6.01, such Provider
Advance shall thereafter be treated as a Final Advance under this Agreement for
purposes of determining the Applicable Liquidity Rate for interest payable
thereon and the dates on which such interest is payable. Subject to Sections
2.07 and 2.09 hereof, immediately upon the withdrawal of any amounts from the
Class A-1 Cash Collateral Account on account of a reduction in the Required
Amount, the Borrower shall repay to the Liquidity Provider a portion of the
Provider Advances in a principal amount equal to such reduction, plus interest
on the principal amount prepaid as provided in Section 3.07.
(b) At any time when an Applied Provider Advance (or any portion thereof)
is outstanding, upon the deposit in the Class A-1 Cash Collateral Account of any
amount pursuant to clause "third" of Section 2.04(b) of the Intercreditor
Agreement, clause "third" of Section 3.02 of the Intercreditor Agreement or
clause "fourth" of Section 3.03 of the Intercreditor Agreement (any such amount
being a "REPLENISHMENT AMOUNT") for the purpose of replenishing or increasing
the balance thereof up to the Required Amount at such time, (i) the aggregate
outstanding principal amount of all Applied Provider Advances (and of Provider
Advances treated as an Interest Advance for purposes of determining the
Applicable Liquidity Rate for interest payable thereon) shall be automatically
reduced by the amount of such Replenishment Amount, and (ii) the aggregate
outstanding principal amount of all Unapplied Provider Advances shall be
automatically increased by the amount of such Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity Facility in replacement
of this Agreement in accordance with Section 3.06(e) of the Intercreditor
Agreement, as provided in Section 3.06(f) of the Intercreditor Agreement,
amounts remaining on deposit in the Class A-1 Cash Collateral Account after
giving effect to any Applied Provider Advance on the date of such replacement
shall be reimbursed to the Liquidity Provider, but only to the extent such
amounts are necessary to repay in full to the Liquidity Provider all amounts
owing to it hereunder.
Section 2.07. Payments to the Liquidity Provider Under the Intercreditor
Agreement. In order to provide for payment or repayment to the Liquidity
Provider of any amounts hereunder, the Intercreditor Agreement provides that
amounts available and referred to in Articles II and III of the Intercreditor
Agreement, to the extent payable to the Liquidity Provider pursuant to the terms
of the Intercreditor Agreement (including, without limitation, Section 3.06(f)
of the Intercreditor Agreement), shall be paid to the Liquidity Provider in
accordance with the terms thereof (but, for the avoidance of doubt, without
duplication of or increase in any amounts payable hereunder). Amounts so paid to
the Liquidity Provider shall be applied by the Liquidity Provider in the order
of priority required by the applicable provisions of Articles II and III of the
Intercreditor Agreement and shall discharge in full the corresponding
obligations of the Borrower hereunder.
Section 2.08. Book Entries. The Liquidity Provider shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower resulting from Advances made from time to time and
the amounts of principal and interest payable hereunder and paid from time to
time in respect thereof; provided, however, that the failure by the Liquidity
Provider to maintain such account or accounts shall not affect the obligations
of the Borrower in respect of Advances.
Section 2.09. Payments from Available Funds Only. All payments to be made
by the Borrower under this Agreement shall be made only from the amounts that
constitute Scheduled Payments, Special Payments and other payments under the
Operative Agreements, including payment under Section 4.02 of the Participation
Agreements and payments under Section 2.14 of the Indentures, and only to the
extent that the Borrower shall have sufficient income or proceeds therefrom to
enable the Borrower to make payments in accordance with the terms hereof after
giving effect to the priority of payments provisions set forth in the
Intercreditor Agreement. The Liquidity Provider agrees that it will look solely
to such amounts to the extent available for distribution to it as provided in
the Intercreditor Agreement and this Agreement and that the Borrower, in its
individual capacity, is not personally liable to it for any amounts payable or
liability under this Agreement except as expressly provided in this Agreement,
the Intercreditor Agreement or any Participation Agreement. Amounts on deposit
in the Class A-1 Cash Collateral Account shall be available to the Borrower to
make payments under this Agreement only to the extent and for the purposes
expressly contemplated in Section 3.06(f) of the Intercreditor Agreement.
Section 2.10. Extension of the Expiry Date; Non-Extension Advance. If the
Expiry Date is prior to the date that is 15 days after the Final Legal
Distribution Date for the Class A-1 Certificates, then no earlier than the 60th
day and no later than the 40th day prior to the then applicable Expiry Date, the
Borrower may request in writing that the Liquidity Provider extend the Expiry
Date to the earlier of (i) the date that is 15 days after the Final Legal
Distribution Date for the Class A-1 Certificates and (ii) the date that is the
day immediately preceding the 364th day after the last day of the Consent Period
(unless the obligations of the Liquidity Provider hereunder are earlier
terminated in accordance herewith). Whether or not the Liquidity Provider has
received a request from the Borrower, the Liquidity Provider shall, during the
period commencing on the date that is 60 days prior to the then effective Expiry
Date (or, if earlier, the date of such Liquidity Provider's receipt of such
request, if any, from the Borrower) and ending on the date that is 25 days prior
to the then effective Expiry Date (the "CONSENT PERIOD") advise the Borrower
whether, in its sole discretion, it agrees to so extend the Expiry Date. If the
Liquidity Provider advises the Borrower on or before the end of the Consent
Period that such Expiry Date shall not be so extended, or fails to irrevocably
and unconditionally advise the Borrower on or before the end of the Consent
Period that such Expiry Date shall be so extended (and, in each case, if the
Liquidity Provider shall not have been replaced in accordance with Section
3.06(e) of the Intercreditor Agreement), the Borrower shall be entitled on and
after the date on which the Consent Period ends (but prior to the then effective
Expiry Date) to request a Non-Extension Advance in accordance with Section
2.02(b) hereof and Section 3.06(d) of the Intercreditor Agreement. If any
amounts shall be drawn pursuant to a Non-Extension Advance and, within 30 days
thereafter, the Liquidity Provider shall not have been replaced, then at any
time following the 30th day after such Non-Extension Advance, the Liquidity
Provider may, by written notice to the Borrower, agree to reinstate the
Liquidity Facility on the terms of the existing Liquidity Facility for a period
ending on the 364th day after the end of the Consent Period; provided, however,
that in such event the Liquidity Provider shall reimburse the Borrower for any
costs actually incurred by or on behalf of the Borrower in drawing pursuant to
the Non-Extension Advance and funding the Class A-1 Cash Collateral Account or
otherwise in connection with the Non-Extension Advance.
Section 2.11. Rights to Extend Expiry Date. Subject to the proviso in the
next succeeding, the initial Liquidity Provider shall have the right at any time
and without the consent of the Borrower to extend the then effective Expiry Date
to a date that is on or before the date that is 15 days after the Final Legal
Distribution Date for the Class A-1 Certificates by giving not less than five
nor more than ten days' prior written notice of such extension to the Borrower,
the Class A-1 Trustee and Delta (which notice shall specify the effective date
of such extension (the "EXTENSION EFFECTIVE DATE")). On the Extension Effective
Date, the then effective Expiry Date shall be so extended without any further
act; provided, however, that if prior to the Extension Effective Date a
Downgrade Event shall have occurred, the then effective Expiry Date shall not be
so extended.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs. If as a result of any Regulatory Change
there shall be any increase by an amount reasonably deemed by the Liquidity
Provider to be material in the actual cost to the Liquidity Provider of making,
funding or maintaining any Advances or its obligation to make any such Advances
or there shall be any reduction by an amount reasonably deemed by the Liquidity
Provider to be material in the amount receivable by the Liquidity Provider under
this Agreement or the Intercreditor Agreement in respect thereof, and in case of
either such an increase or reduction, such event does not arise from the gross
negligence or willful misconduct of the Liquidity Provider, from its breach of
any of its representations, warranties, covenants or agreements contained herein
or in the Intercreditor Agreement or from its failure to comply with any such
Regulatory Change (any such increase or reduction being referred to herein as an
"INCREASED COST"), then the Borrower shall from time to time pay to the
Liquidity Provider an amount equal to such Increased Cost within 10 Business
Days after delivery to the Borrower and Delta of a certificate of an officer of
the Liquidity Provider describing in reasonable detail the event by reason of
which it claims such Increased Cost and the basis for the determination of the
amount of such Increased Cost; provided that, the Borrower shall be obligated to
pay amounts only with respect to any Increased Costs accruing from the date 90
days prior to the date of delivery of such certificate. Such certificate, in the
absence of manifest error, shall be considered prima facie evidence of the
amount of the Increased Costs for purposes of this Agreement; provided that any
determinations and allocations by the Liquidity Provider of the effect of any
Regulatory Change on the costs of maintaining the Advances are made on a
reasonable basis. The Liquidity Provider shall not be entitled to assert any
claim under this Section 3.01 in respect of or attributable to Excluded Taxes.
The Liquidity Provider will notify the Borrower and Delta as promptly as
practicable of any event occurring after the date of this Agreement that will
entitle the Liquidity Provider to compensation under this Section 3.01. The
Liquidity Provider agrees to investigate all commercially reasonable
alternatives for reducing any Increased Costs and to use all commercially
reasonable efforts to avoid or minimize, to the greatest extent possible, any
claim in respect of Increased Costs, including, without limitation, by
designating a different Lending Office, if such designation or other action
would avoid the need for, or reduce the amount of, any such claim; provided that
the foregoing shall not obligate the Liquidity Provider to take any action that
would, in its reasonable judgment, cause the Liquidity Provider to take any
action that is not materially consistent with its internal policies or is
otherwise materially disadvantageous to the Liquidity Provider or that would
cause the Liquidity Provider to incur any material loss or cost, unless the
Borrower or Delta agrees to reimburse or indemnify the Liquidity Provider
therefor. If no such designation or other action is effected, or, if effected,
fails to avoid the need for any claim in respect of Increased Costs, Delta may
arrange for a Replacement Liquidity Facility in accordance with Section 3.06(e)
of the Intercreditor Agreement.
Notwithstanding the foregoing provisions, in no event shall the Borrower
be required to make payments under this Section 3.01: (a) in respect of any
Regulatory Change proposed by any applicable governmental authority (including
any branch of a legislature), central bank or comparable agency of the United
States or the Liquidity Provider's jurisdiction of organization and pending as
of the date of this Agreement (it being agreed that the Consultative Document
issued by the Basel Committee on Banking Supervision entitled "The New Basel
Capital Accord," dated January 2001, shall not be considered to have been
proposed or pending as of the date of this Agreement); (b) if a claim hereunder
in respect of an Increased Cost arises through circumstances peculiar to the
Liquidity Provider and that do not affect similarly organized commercial banking
institutions in the same jurisdiction generally that are in compliance with the
law, rule, regulation or interpretation giving rise to the Regulatory Change
relating to such Increased Cost; or (c) if the Liquidity Provider shall fail to
comply with its obligations under this Section 3.01.
Section 3.02. [Intentionally omitted.]
Section 3.03. Withholding Taxes. (a) All payments made by the Borrower
under this Agreement shall be made without deduction or withholding for or on
account of any Taxes, unless such deduction or withholding is required by law.
If any Taxes are so required to be withheld or deducted from any amounts payable
to the Liquidity Provider under this Agreement, the Borrower shall pay to the
relevant authorities the full amount so required to be deducted or withheld and,
if such Taxes are Covered Taxes, pay to the Liquidity Provider such additional
amounts as shall be necessary to ensure that the net amount actually received by
the Liquidity Provider (after deduction or withholding of all Covered Taxes)
shall be equal to the full amount that would have been received by the Liquidity
Provider had no withholding or deduction of Covered Taxes been required. The
Liquidity Provider agrees to use reasonable efforts (consistent with applicable
legal and regulatory restrictions) to change the jurisdiction of its Lending
Office if making such change would avoid the need for, or reduce the amount of,
any such additional amounts that may thereafter accrue and would not, in the
reasonable judgment of the Liquidity Provider, be otherwise materially
disadvantageous to the Liquidity Provider. If the Liquidity Provider receives a
refund of, or realizes a net Tax benefit not otherwise available to it as a
result of, any Taxes for which additional amounts were paid by the Borrower
pursuant to this Section 3.03, the Liquidity Provider shall pay to the Borrower
(for deposit into the Collection Account) the amount of such refund (and any
interest thereon) or net benefit.
The Liquidity Provider will (i) provide (on its behalf and on behalf of
any participant holding a Participation pursuant to Section 7.08) to the
Borrower (x) on or prior to the Effective Date two valid completed and executed
copies of Internal Revenue Service Form W8-BEN or W8-EC1 (whichever is
applicable), including thereon a valid U.S. taxpayer identification number (or,
with respect to any such participant, such other form or documentation as may be
applicable) covering all amounts receivable by it in connection with the
transactions contemplated by the Operative Agreements and (y) thereafter from
time to time such additional forms or documentation as may be necessary to
establish an available exemption from withholding of United States Tax on
payments hereunder so that such forms or documentation are effective for all
periods during which it is the Liquidity Provider and (ii) provide timely notice
to the Borrower if any such form or documentation is or becomes inaccurate. The
Liquidity Provider shall deliver to the Borrower such other forms or documents
as may be reasonably requested by the Borrower or required by applicable law to
establish that payments hereunder are exempt from or entitled to a reduced rate
of Covered Taxes.
(b) All payments (including, without limitation, Advances) made by the
Liquidity Provider under this Agreement shall be made free and clear of, and
without reduction for or on account of, any Taxes. If any Taxes are required to
be withheld or deducted from any amounts payable to the Borrower under this
Agreement, the Liquidity Provider shall (i) within the time prescribed therefor
by applicable law pay to the appropriate governmental or taxing authority the
full amount of any such Taxes (and any additional Taxes in respect of the
additional amounts payable under clause (ii) hereof) and make such reports or
returns in connection therewith at the time or times and in the manner
prescribed by applicable law, and (ii) pay to the Borrower an additional amount
which (after deduction of all such Taxes) will be sufficient to yield to the
Borrower the full amount which would have been received by it had no such
withholding or deduction been made. Within 30 days after the date of each
payment hereunder, the Liquidity Provider shall furnish to the Borrower the
original or a certified copy of (or other documentary evidence of) the payment
of the Taxes applicable to such payment.
If any exemption from, or reduction in the rate of, any Taxes required to
be borne by the Liquidity Provider under this Section 3.03(b) is reasonably
available to the Borrower without providing any information regarding the
holders or beneficial owners of the Certificates, the Borrower shall deliver the
Liquidity Provider such form or forms and such other evidence of the eligibility
of the Borrower for such exemption or reductions (but without any requirement to
provide any information regarding the holders or beneficial owners of the
Certificates) as the Liquidity Provider may reasonably identify to the Borrower
as being required as a condition to exemption from, or reduction in the rate of,
such Taxes.
Section 3.04. Payments. The Borrower shall make or cause to be made each
payment to the Liquidity Provider under this Agreement so as to cause the same
to be received by the Liquidity Provider not later than 1:00 P.M. (New York City
time) on the day when due. The Borrower shall make all such payments in Dollars,
to the Liquidity Provider in immediately available funds, by wire transfer to
The Chase Manhattan Bank, 021-000021 in favor of account number 4207098,
Reference: Delta EETC 2001-1A-1.
Section 3.05. Computations. All computations of interest based on the Base
Rate shall be made on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the LIBOR Rate shall be made on
the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest is payable.
Section 3.06. Payment on Non-Business Days. Whenever any payment to be
made hereunder shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day and no additional
interest shall be due as a result (and if so made, shall be deemed to have been
made when due). If any payment in respect of interest on an Advance is so
deferred to the next succeeding Business Day, such deferral shall not delay the
commencement of the next Interest Period for such Advance (if such Advance is a
LIBOR Advance) or reduce the number of days for which interest will be payable
on such Advance on the next interest payment date for such Advance.
Section 3.07. Interest. (a) Subject to Sections 2.07 and 2.09, the
Borrower shall pay, or shall cause to be paid, without duplication, interest on
(i) the unpaid principal amount of each Advance from and including the date of
such Advance (or, in the case of an Applied Provider Advance, from and including
the date on which the amount thereof was withdrawn from the Class A-1 Cash
Collateral Account to pay interest on the Class A-1 Certificates) to but
excluding the date such principal amount shall be paid in full (or, in the case
of an Applied Provider Advance, the date on which the Class A-1 Cash Collateral
Account is fully replenished in respect of such Advance) and (ii) any other
amount due hereunder (whether fees, commissions, expenses or other amounts or,
to the extent permitted by law, installments of interest on Advances or any such
other amount) that is not paid when due (whether at stated maturity, by
acceleration or otherwise) from and including the due date thereof to but
excluding the date such amount is paid in full, in each such case, at the
interest rate per annum for each day equal to the Applicable Liquidity Rate (as
defined below) for such Advance or such other amount, as the case may be, as in
effect for such day, but in no event at a rate per annum greater than the
maximum rate permitted by applicable law, provided, however, that, if at any
time the otherwise applicable interest rate as set forth in this Section 3.07
shall exceed the maximum rate permitted by applicable law, then to the maximum
extent permitted by applicable law any subsequent reduction in such interest
rate will not reduce the rate of interest payable pursuant to this Section 3.07
below the maximum rate permitted by applicable law until the total amount of
interest accrued equals the absolute amount of interest that would have accrued
(without additional interest thereon) if such otherwise applicable interest rate
as set forth in this Section 3.07 had at all relevant times been in effect.
(b) Except as provided in Section 3.07(e), each Advance (other than an
Unapplied Non-Extension Advance) will be either a Base Rate Advance or a LIBOR
Advance as provided in this Section 3.07. Each such Advance will be a Base Rate
Advance for the period from the date of its borrowing to (but excluding) the
third Business Day following the Liquidity Provider's receipt of the Notice of
Borrowing for such Advance. Thereafter, such Advance shall be a LIBOR Advance;
provided that (i) a Provider Advance (other than an Unapplied Non-Extension
Advance) shall always be a LIBOR Advance unless the Borrower elects otherwise
and (ii) the Borrower (at the direction of the Controlling Party, so long as the
Liquidity Provider is not the Controlling Party) may (x) convert the Final
Advance into a Base Rate Advance on the last day of an Interest Period for such
Advance by giving the Liquidity Provider no less than four Business Days' prior
written notice of such election or (y) elect to maintain the Final Advance as a
Base Rate Advance by not requesting a conversion of the Final Advance to a LIBOR
Advance under Clause (5) of the applicable Notice of Borrowing (or, if, pursuant
to Section 2.06, such Final Advance is deemed to have been made without delivery
of a Notice of Borrowing, by requesting, prior to 11:00 a.m. (New York time) on
the first Business Day immediately following the Borrower's receipt of the
applicable Termination Notice, that such Final Advance not be converted from a
Base Rate Advance to a LIBOR Advance).
(c) Each LIBOR Advance shall bear interest during each Interest Period at
a rate per annum equal to the LIBOR Rate for such Interest Period plus the
Applicable Margin for such LIBOR Advance, payable in arrears on the last day of
such Interest Period and, in the event of the payment of principal of such LIBOR
Advance on a day other than such last day, on the date of such payment (to the
extent of interest accrued on the amount of principal repaid).
(d) Each Base Rate Advance shall bear interest at a rate per annum equal
to the Base Rate plus the Applicable Margin for such Base Rate Advance, payable
in arrears on each Regular Distribution Date and, in the event of the payment of
principal of such Base Rate Advance on a day other than a Regular Distribution
Date, on the date of such payment (to the extent of interest accrued on the
amount of principal repaid).
(e) Each outstanding Unapplied Non-Extension Advance shall bear interest
in an amount equal to the Investment Earnings on amounts on deposit in the Class
A-1 Cash Collateral Account plus the Applicable Margin for such Unapplied
Non-Extension Advance on the amount of such Unapplied Non-Extension Advance from
time to time, payable in arrears on each Regular Distribution Date.
(f) Each amount not paid when due hereunder (whether fees, commissions,
expenses or other amounts or, to the extent permitted by applicable law,
installments of interest on Advances but excluding Advances) shall bear interest
at a rate per annum equal to the Base Rate plus 2.0% per annum until paid.
(g) Each change in the Base Rate shall become effective immediately. The
rates of interest specified in this Section 3.07 with respect to any Advance or
other amount shall be referred to as the "APPLICABLE LIQUIDITY RATE".
Section 3.08. Replacement of Borrower. Subject to Section 5.02, from time
to time and subject to the successor Borrower's meeting the eligibility
requirements set forth in Section 6.09 of the Intercreditor Agreement applicable
to the Subordination Agent, upon the effective date and time specified in a
written and completed Notice of Replacement Subordination Agent in substantially
the form of Annex VI (a "NOTICE OF REPLACEMENT SUBORDINATION AGENT") delivered
to the Liquidity Provider by the then Borrower, the successor Borrower
designated therein shall become the Borrower for all purposes hereunder.
Section 3.09. Funding Loss Indemnification. The Borrower shall pay to the
Liquidity Provider, upon the request of the Liquidity Provider, such amount or
amounts as shall be sufficient (in the reasonable opinion of the Liquidity
Provider) to compensate it for any loss, cost or expense incurred by reason of
the liquidation or redeployment of deposits or other funds acquired by the
Liquidity Provider to fund or maintain any LIBOR Advance (but excluding loss of
the Applicable Margin or anticipated profits) incurred as a result of:
(1) Any repayment of a LIBOR Advance on a date other than the last
day of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance on the
date for borrowing specified in the relevant notice under Section 2.02.
Section 3.10. Illegality. Notwithstanding any other provision in this
Agreement, if any change in any law, rule or regulation applicable to or binding
on the Liquidity Provider, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by the
Liquidity Provider with any request or directive (whether or not having the
force of law) of any such authority, central bank or comparable agency shall
make it unlawful or impossible for the Liquidity Provider to maintain or fund
its LIBOR Advances, then upon notice to the Borrower and Delta by the Liquidity
Provider, the outstanding principal amount of the LIBOR Advances shall be
converted to Base Rate Advances (a) immediately upon demand of the Liquidity
Provider, if such change or compliance with such request, in the reasonable
judgment of the Liquidity Provider, requires immediate conversion; or (b) at the
expiration of the last Interest Period to expire before the effective date of
any such change or request. The Liquidity Provider will notify the Borrower and
Delta as promptly as practicable of any event that will or to its knowledge is
reasonably likely to lead to the conversion of LIBOR Advances to Base Rate
Advances under this Section 3.10, provided that a failure by the Liquidity
Provider to notify the Borrower or Delta of an event that is reasonably likely
to lead to such a conversion prior to the time that it is determined that such
event will lead to such a conversion shall not prejudice the rights of the
Liquidity Provider under this Section 3.10. The Liquidity Provider agrees to
investigate all commercially reasonable alternatives for avoiding the need for
such conversion, including, without limitation, designating a different Lending
Office, if such designation or other action would avoid the need to convert such
LIBOR Advances to Base Rate Advances; provided, that the foregoing shall not
obligate the Liquidity Provider to take any action that would, in its reasonable
judgment, cause the Liquidity Provider to incur any material loss or cost,
unless the Borrower or Delta agrees to reimburse or indemnify the Liquidity
Provider therefor. If no such designation or other action is effected, or, if
effected, fails to avoid the need for conversion of the LIBOR Advances to Base
Rate Advances, Delta may arrange for a Replacement Liquidity Facility in
accordance with Section 3.06(e) of the Intercreditor Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "EFFECTIVE DATE") on which the following conditions precedent have
been satisfied (or waived by the appropriate party or parties):
(a) The Liquidity Provider shall have received on or before the
Closing Date each of the following, and in the case of each document
delivered pursuant to paragraphs (i), (ii) and (iii), each in form and
substance satisfactory to the Liquidity Provider:
(i) This Agreement and the Fee Letter duly executed on behalf
of the Borrower and Delta, in the case of the Fee Letter;
(ii) The Intercreditor Agreement duly executed on behalf of
each of the parties thereto (other than the Liquidity Provider);
(iii) Fully executed copies of each of the Operative
Agreements executed and delivered on or before the Closing Date
(other than this Agreement, the Fee Letter and the Intercreditor
Agreement);
(iv) A copy of the Prospectus Supplement and specimen copies
of the Class A-1 Certificates;
(v) An executed copy of each document, instrument, certificate
and opinion delivered on or before the Closing Date pursuant to the
Class A-1 Trust Agreement, the Intercreditor Agreement and the other
Operative Agreements (in the case of each such opinion, either
addressed to the Liquidity Provider or accompanied by a letter from
the counsel rendering such opinion to the effect that the Liquidity
Provider is entitled to rely on such opinion as of its date as if it
were addressed to the Liquidity Provider); and
(vi) An agreement from Delta, pursuant to which (x) Delta
agrees to provide copies of quarterly financial statements and
audited annual financial statements to the Liquidity Provider
(which, in the case of quarterly financial statements, Delta may
provide in an electronic format by electronic mail or making such
available over the internet) and (y) Delta agrees to allow the
Liquidity Provider to discuss the transactions contemplated by the
Operative Agreements with officers and employees of Delta.
(b) On and as of the Effective Date no event shall have occurred and
be continuing, or would result from the entering into of this Agreement or
the making of any Advance, which constitutes a Liquidity Event of Default.
(c) The filings referred to in Sections 3.01(d) and 3.01(f) of the
Participation Agreements shall have been filed (or shall be in the process
of being filed).
(d) The Liquidity Provider shall have received payment in full of
the fees and other sums required to be paid to or for the account of the
Liquidity Provider on or prior to the Effective Date pursuant to the Fee
Letter.
(e) All conditions precedent to the issuance of the Certificates
under the Trust Agreements shall have been satisfied or waived, all
conditions precedent to the effectiveness of the other Liquidity
Facilities shall have been satisfied or waived, all conditions precedent
to the purchase of the Class A-1, Class A-2, Class B and Class C
Certificates by the Underwriters under the Underwriting Agreement shall
have been satisfied (unless any of such conditions precedent under the
Underwriting Agreement shall have been waived by the Underwriters), and
all conditions precedent to the purchase of the Class D Certificates by
the Initial Class D Holder shall have been satisfied.
(f) The Borrower and Delta shall have received a certificate, dated
the Effective Date signed by a duly authorized representative of the
Liquidity Provider, certifying that all conditions precedent specified in
this Section 4.01 have been satisfied or waived by the Liquidity Provider.
Section 4.02. Conditions Precedent to Borrowing. The obligation of the
Liquidity Provider to make an Advance on the occasion of each Borrowing shall be
subject to the conditions precedent that the Effective Date shall have occurred
and, prior to the time of such Borrowing, the Borrower shall have delivered a
Notice of Borrowing which conforms to the terms and conditions of this
Agreement.
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower. So long as any
Advance shall remain unpaid or the Liquidity Provider shall have any Maximum
Commitment hereunder or the Borrower shall have any obligation to pay any amount
to the Liquidity Provider hereunder, the Borrower will, unless the Liquidity
Provider shall otherwise consent in writing:
(a) Performance of Agreements. Punctually pay or cause to be paid
all amounts payable by it under this Agreement and the Intercreditor
Agreement and observe and perform in all material respects the conditions,
covenants and requirements applicable to it contained in this Agreement
and the Intercreditor Agreement.
(b) Reporting Requirements. Furnish to the Liquidity Provider with
reasonable promptness, such other information and data with respect to the
transactions contemplated by the Operative Agreements as from time to time
may be reasonably requested by the Liquidity Provider; and permit the
Liquidity Provider, upon reasonable notice, to inspect the Borrower's
books and records with respect to such transactions and to meet with
officers and employees of the Borrower to discuss such transactions.
(c) Certain Operative Agreements. Furnish to the Liquidity Provider
with reasonable promptness, copies of such Operative Agreements entered
into after the date hereof as from time to time may be reasonably
requested by the Liquidity Provider.
Section 5.02. Negative Covenants of the Borrower. Subject to the first and
fourth paragraphs of Section 7.01(a) of the Intercreditor Agreement and Section
7.01(b) of the Intercreditor Agreement, so long as any Advance shall remain
unpaid or the Liquidity Provider shall have any Maximum Commitment hereunder or
the Borrower shall have any obligation to pay any amount to the Liquidity
Provider hereunder, the Borrower will not appoint or permit or suffer to be
appointed any successor Borrower without the prior written consent of the
Liquidity Provider, which consent shall not be unreasonably withheld or delayed.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default. If (a) any Liquidity Event of
Default has occurred and is continuing and (b) there is a Performing Note
Deficiency, the Liquidity Provider may, in its discretion, deliver to the
Borrower a Termination Notice, the effect of which shall be to cause (i) this
Agreement to expire at the close of business on the fifth Business Day after the
date on which such Termination Notice is received by the Borrower, (ii) the
Borrower to promptly request, and the Liquidity Provider to promptly make, a
Final Advance in accordance with Section 2.02(d) hereof and Section 3.06(i) of
the Intercreditor Agreement, (iii) all other outstanding Advances to be
automatically converted into Final Advances for purposes of determining the
Applicable Liquidity Rate for interest payable thereon and (iv) subject to
Sections 2.07 and 2.09, all Advances, any accrued interest thereon and any other
amounts outstanding hereunder to become immediately due and payable to the
Liquidity Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.01. No Oral Modifications or Continuing Waivers. No terms or
provisions of this Agreement may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the Borrower and the
Liquidity Provider and any other Person whose consent is required pursuant to
this Agreement; provided that no such change or other action shall affect the
payment obligations of Delta or the rights of Delta without Delta's prior
written consent; and any waiver of the terms hereof shall be effective only in
the specific instance and for the specific purpose given.
Section 7.02. Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all notices, requests, demands, authorizations, directions,
consents, waivers or documents required or permitted under the terms and
provisions of this Agreement shall be in English and in writing, and given by
United States registered or certified mail, courier service or facsimile, and
any such notice shall be effective when delivered (or, if delivered by
facsimile, upon completion of transmission and confirmation by the sender (by a
telephone call to a representative of the recipient or by machine confirmation)
that such transmission was received) addressed as follows:
If to the Borrower, to:
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
225 Asylum Street, Goodwin Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Telephone: (860) 244-1844
Telecopy: (860) 244-1881
If to the Liquidity Provider, to:
LANDESBANK HESSEN-THURINGEN GIROZENTRALE
Main Tower
Neue Mainzer Str. 52-58
60311 Frankfurt am Main
Germany
Attention: Asset Finance
Telephone: 49-69-9132-4882
Telecopy: 49-69-9132-4392
With a copy to:
LANDESBANK HESSEN-THURINGEN
New York Branch
420 Fifth Avenue, 24th Floor
New York, NY 10018
Attention: Structured Finance/Michael Novack
Telephone: (212) 703-5224
Telecopy: (212) 703-5256
Any party, by notice to the other party hereto, may designate additional
or different addresses for subsequent notices or communications. Whenever the
words "notice" or "notify" or similar words are used herein, they mean the
provision of formal notice as set forth in this Section 7.02.
Section 7.03. No Waiver; Remedies. No failure on the part of the Liquidity
Provider to exercise, and no delay in exercising, any right under this Agreement
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right under this Agreement preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
Section 7.04. Further Assurances. The Borrower agrees to do such further
acts and things and to execute and deliver to the Liquidity Provider such
additional assignments, agreements, powers and instruments as the Liquidity
Provider may reasonably require or deem advisable to carry into effect the
purposes of this Agreement and the other Operative Agreements or to better
assure and confirm unto the Liquidity Provider its rights, powers and remedies
hereunder and under the other Operative Agreements.
Section 7.05. Indemnification; Survival of Certain Provisions. The
Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Section 4.02 of the Participation Agreements. In addition,
the Borrower agrees to indemnify, protect, defend and hold harmless each
Liquidity Indemnitee from and against all Expenses of any kind or nature
whatsoever (other than any Expenses of the nature described in Sections 3.01 or
7.07 or in the Fee Letter (regardless of whether indemnified against pursuant to
said Sections or in such Fee Letter)), that may be imposed on or incurred by
such Liquidity Indemnitee, in any way relating to, resulting from, or arising
out of or in connection with, any action, suit or proceeding by any third party
against such Liquidity Indemnitee and relating to this Agreement, the Fee
Letter, the Intercreditor Agreement or any Participation Agreement; provided,
however, that the Borrower shall not be required to indemnify, protect, defend
and hold harmless any Liquidity Indemnitee in respect of any Expense of such
Liquidity Indemnitee to the extent such Expense is (i) attributable to the
negligence or willful misconduct of such Liquidity Indemnitee or any other
Liquidity Indemnitee, (ii) an ordinary and usual operating overhead expense,
(iii) attributable to the failure by such Liquidity Indemnitee or any other
Liquidity Indemnitee to perform or observe any agreement, covenant or condition
on its part to be performed or observed in this Agreement, the Intercreditor
Agreement, the Fee Letter or any other Operative Agreement to which it is a
party or (iv) otherwise excluded from the indemnification provisions contained
in Section 4.02 of the Participation Agreements. The provisions of Sections
3.01, 3.03, 3.09, 7.05 and 7.07 and the indemnities contained in Section 4.02 of
the Participation Agreements shall survive the termination of this Agreement.
Section 7.06. Liability of the Liquidity Provider. (a) Neither the
Liquidity Provider nor any of its officers, employees or directors shall be
liable or responsible for: (i) the use which may be made of the Advances or any
acts or omissions of the Borrower or any beneficiary or transferee in connection
therewith; (ii) the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in any or all
respects invalid, insufficient, fraudulent or forged; or (iii) the making of
Advances by the Liquidity Provider against delivery of a Notice of Borrowing and
other documents which do not comply with the terms hereof; provided, however,
that the Borrower shall have a claim against the Liquidity Provider, and the
Liquidity Provider shall be liable to the Borrower, to the extent of any damages
suffered by the Borrower that were the result of (A) the Liquidity Provider's
willful misconduct or gross negligence in determining whether documents
presented hereunder comply with the terms hereof or (B) any breach by the
Liquidity Provider of any of the terms of this Agreement or the Intercreditor
Agreement, including, but not limited to, the Liquidity Provider's failure to
make lawful payment hereunder after the delivery to it by the Borrower of a
Notice of Borrowing complying with the terms and conditions hereof.
(b) Neither the Liquidity Provider nor any of its officers, employees or
directors or affiliates shall be liable or responsible in any respect for (i)
any error, omission, interruption or delay in transmission, dispatch or delivery
of any message or advice, however transmitted, in connection with this Agreement
or any Notice of Borrowing delivered hereunder or (ii) any action, inaction or
omission which may be taken by it in good faith, absent willful misconduct or
negligence (in which event the extent of the Liquidity Provider's potential
liability to the Borrower shall be limited as set forth in the immediately
preceding paragraph), in connection with this Agreement or any Notice of
Borrowing.
Section 7.07. Certain Costs and Expenses. The Borrower agrees promptly to
pay, or cause to be paid, (a) the reasonable fees, expenses and disbursements of
Pillsbury Winthrop LLP, special counsel for the Liquidity Provider, in
connection with the preparation, negotiation, execution, delivery, filing and
recording of the Operative Agreements, any waiver or consent thereunder or any
amendment thereof and (b) if a Liquidity Event of Default occurs, all
out-of-pocket expenses incurred by the Liquidity Provider, including reasonable
fees and disbursements of counsel, in connection with such Liquidity Event of
Default and any collection, bankruptcy, insolvency and other enforcement
proceedings in connection therewith. In addition, the Borrower shall pay any and
all recording, stamp and other similar taxes and fees payable or determined to
be payable in the United States in connection with the execution, delivery,
filing and recording of this Agreement, any other Operative Agreement and such
other documents, and agrees to save the Liquidity Provider harmless from and
against any and all liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes or fees.
Section 7.08. Binding Effect; Participations. (a) This Agreement shall be
binding upon and inure to the benefit of the Borrower and the Liquidity Provider
and their respective successors and permitted assigns, except that neither the
Liquidity Provider (except as otherwise provided in this Section 7.08) nor
(except as contemplated by Section 3.08) the Borrower shall have the right to
assign, pledge or otherwise transfer its rights or obligations hereunder or any
interest herein, subject to the Liquidity Provider's right to grant
Participations pursuant to Section 7.08(b).
(b) The Liquidity Provider agrees that it will not grant any participation
(including, without limitation, a "RISK PARTICIPATION") (any such participation,
a "PARTICIPATION") in or to all or a portion of its rights and obligations
hereunder or under the other Operative Agreements, unless all of the following
conditions are satisfied: (i) such Participation is to a Permitted Transferee,
(ii) such Participation is made in accordance with all applicable laws,
including, without limitation, the Securities Act of 1933, as amended, the Trust
Indenture Act of 1939, as amended, and any other applicable laws relating to the
transfer of similar interests and (iii) such Participation shall not be made
under circumstances that require registration under the Securities Act of 1933,
as amended, or qualification of any indenture under the Trust Indenture Act of
1939, as amended. Notwithstanding any such Participation, the Liquidity Provider
agrees that (1) the Liquidity Provider's obligations under the Operative
Agreements shall remain unchanged, and such participant shall have no rights or
benefits as against Delta or the Borrower or under any Operative Agreement, (2)
the Liquidity Provider shall remain solely responsible to the other parties to
the Operative Agreements for the performance of such obligations, (3) the
Liquidity Provider shall remain the maker of any Advances, and the other parties
to the Operative Agreements shall continue to deal solely and directly with the
Liquidity Provider in connection with the Advances and the Liquidity Provider's
rights and obligations under the Operative Agreements, (4) the Liquidity
Provider shall be solely responsible for any withholding Taxes or any filing or
reporting requirements relating to such Participation and shall hold the
Borrower and Delta and their respective successors, permitted assigns,
affiliates, agents and servants harmless against the same and (5) neither Delta
nor the Borrower shall be required to pay to the Liquidity Provider any amount
under Section 3.01 or Section 3.03 greater than it would have been required to
pay had there not been any grant of a Participation by the Liquidity Provider.
The Liquidity Provider may, in connection with any Participation or proposed
Participation pursuant to this Section 7.08(b), disclose to the participant or
proposed participant any information relating to the Operative Agreements or to
the parties thereto furnished to the Liquidity Provider thereunder or in
connection therewith and permitted to be disclosed by the Liquidity Provider;
provided, however, that prior to any such disclosure, the participant or
proposed participant shall agree in writing for the express benefit of the
Borrower and Delta to preserve the confidentiality of any confidential
information included therein (subject to customary exceptions).
(c) Notwithstanding the other provisions of this Section 7.08, the
Liquidity Provider may assign and pledge all or any portion of the Advances
owing to it to any Federal Reserve Bank or the United States Treasury as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank, provided that any payment in respect of such assigned Advances made by the
Borrower to the Liquidity Provider in accordance with the terms of this
Agreement shall satisfy the Borrower's obligations hereunder in respect of such
assigned Advance to the extent of such payment. No such assignment shall release
the Liquidity Provider from its obligations hereunder.
Section 7.09. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 7.10. Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN THE
STATE OF NEW YORK AND THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of
Immunity. (a) Each of the parties hereto, to the extent it may do so under
applicable law, for purposes hereof hereby (i) irrevocably submits itself to the
non-exclusive jurisdiction of the courts of the State of New York sitting in the
City of New York and to the non-exclusive jurisdiction of the United States
District Court for the Southern District of New York, for the purposes of any
suit, action or other proceeding arising out of this Agreement, the subject
matter hereof or any of the transactions contemplated hereby brought by any
party or parties hereto or thereto, or their successors or permitted assigns and
(ii) waives, and agrees not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper or that this Agreement or the subject matter
hereof or any of the transactions contemplated hereby may not be enforced in or
by such courts.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE TO WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO
THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING
ESTABLISHED, including, without limitation, contract claims, tort claims, breach
of duty claims and all other common law and statutory claims. The Borrower and
the Liquidity Provider each warrant and represent that it has reviewed this
waiver with its legal counsel, and that it knowingly and voluntarily waives its
jury trial rights following consultation with such legal counsel. THIS WAIVER IS
IRREVOCABLE, AND CANNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT.
(c) The Liquidity Provider hereby waives any immunity it may have from the
jurisdiction of the courts of the United States or of any state thereof and
waives any immunity any of its properties located in the United States may have
from attachment or execution upon a judgment entered by any such court under the
United States Foreign Sovereign Immunities Act of 1976 or any similar successor
legislation.
Section 7.12. Counterparts. This Agreement may be executed in any number
of counterparts (and each party shall not be required to execute the same
counterpart). Each counterpart of this Agreement including a signature page or
pages executed by each of the parties hereto shall be an original counterpart of
this Agreement, but all of such counterparts together shall constitute one
instrument.
Section 7.13. Entirety. This Agreement and the Intercreditor Agreement
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof and supersede all prior understandings and agreements of
such parties.
Section 7.14. Headings. The headings of the various Articles and Sections
herein and in the Table of Contents hereto are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
Section 7.15. Liquidity Provider's Obligation to Make Advances. EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE LIQUIDITY PROVIDER
TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO DELIVER NOTICES OF
BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL BE ABSOLUTE,
UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE
STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first set forth above.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Subordination Agent,
as agent and trustee for the Class A-1
Trust, as Borrower
By:
---------------------------------------
Name:
Title:
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as Liquidity Provider
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
ANNEX I to
REVOLVING CREDIT AGREEMENT
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower
(the "BORROWER"), hereby certifies to LANDESBANK HESSEN-THURINGEN GIROZENTRALE
(the "LIQUIDITY PROVIDER"), with reference to the Revolving Credit Agreement
(2001-1A-1), dated as of September 17, 2001, between the Borrower and the
Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined or referenced),
that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of an Interest Advance by the Liquidity Provider to be used for the
payment of the interest on the Class A-1 Certificates which is payable on
____________, ____ (the "DISTRIBUTION DATE") in accordance with the terms
and provisions of the Class A-1 Trust Agreement and the Class A-1
Certificates, which Advance is requested to be made on ____________, ____.
The Interest Advance should be remitted to [insert wire and account
details].
(3) The amount of the Interest Advance requested hereby (i) is
$_______________.__, to be applied in respect of the payment of the
interest which is due and payable on the Class A-1 Certificates on the
Distribution Date, (ii) does not include any amount with respect to the
payment of principal of, or premium on, the Class A-1 Certificates, the
Class A-2 Certificates, the Class B Certificates, the Class C Certificates
or the Class D Certificates, or interest on the Class A-2 Certificates,
the Class B Certificates, the Class C Certificates or the Class D
Certificates, (iii) was computed in accordance with the provisions of the
Class A-1 Certificates, the Class A-1 Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I), (iv) does not exceed the Maximum Available Commitment on the
date hereof and (v) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will apply the same in accordance with
the terms of Section 3.06(b) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, the making of the Interest Advance as requested by this Notice of
Borrowing shall automatically reduce, subject to reinstatement in accordance
with the terms of the Liquidity Agreement, the Maximum Available Commitment by
an amount equal to the amount of the Interest Advance requested to be made
hereby as set forth in clause (i) of paragraph (3) of this Notice of Borrowing
and such reduction shall automatically result in corresponding reductions in the
amounts available to be borrowed pursuant to a subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest Advance Notice of
Borrowing]
ANNEX II to
REVOLVING CREDIT AGREEMENT
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
subordination agent (the "BORROWER"), hereby certifies to LANDESBANK
HESSEN-THURINGEN GIROZENTRALE (the "LIQUIDITY PROVIDER"), with reference to the
Revolving Credit Agreement (2001-1A-1), dated as of September 17, 2001, between
the Borrower and the Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined or referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Non-Extension Advance by the Liquidity Provider to be used
for the funding of the Class A-1 Cash Collateral Account in accordance
with Section 3.06(d) of the Intercreditor Agreement, which Advance is
requested to be made on __________, ____. The Non-Extension Advance should
be remitted to [insert wire and account details].
(3) The amount of the Non-Extension Advance requested hereby (i) is
$_______________.__, which equals the Maximum Available Commitment on the
date hereof and is to be applied in respect of the funding of the Class
A-1 Cash Collateral Account in accordance with Sections 3.06(d) and
3.06(f) of the Intercreditor Agreement, (ii) does not include any amount
with respect to the payment of the principal of, or premium on, the Class
A-1 Certificates, or principal of, or interest or premium on, the Class
A-2 Certificates, the Class B Certificates, the Class C Certificates or
the Class D Certificates, (iii) was computed in accordance with the
provisions of the Class A-1 Certificates, the Class A-1 Trust Agreement
and the Intercreditor Agreement (a copy of which computation is attached
hereto as Schedule I) and (iv) has not been and is not the subject of a
prior or contemporaneous Notice of Borrowing under the Liquidity
Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Class
A-1 Cash Collateral Account and apply the same in accordance with the
terms of Sections 3.06(d) and 3.06(f) of the Intercreditor Agreement, (b)
no portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Non-Extension Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the obligation
of the Liquidity Provider to make further Advances under the Liquidity Agreement
and (B) following the making by the Liquidity Provider of the Non-Extension
Advance requested by this Notice of Borrowing, the Borrower shall not be
entitled to request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Non-Extension Advance Notice
of Borrowing]
ANNEX III to
REVOLVING CREDIT AGREEMENT
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
subordination agent (the "BORROWER"), hereby certifies to LANDESBANK
HESSEN-THURINGEN GIROZENTRALE (the "LIQUIDITY PROVIDER"), with reference to the
Revolving Credit Agreement (2001-1A-1), dated as of September __, 2001, between
the Borrower and the Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined or referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Downgrade Advance by the Liquidity Provider to be used for
the funding of the Class A-1 Cash Collateral Account in accordance with
Section 3.06(c) of the Intercreditor Agreement by reason of the
downgrading of the short-term unsecured debt rating or long-term unsecured
debt rating of the Liquidity Provider issued by either Rating Agency below
the Threshold Rating, which Advance is requested to be made on __________,
____. The Downgrade Advance should be remitted to [insert wire and account
details].
(3) The amount of the Downgrade Advance requested hereby (i) is
$_______________.__, which equals the Maximum Available Commitment on the
date hereof and is to be applied in respect of the funding of the Class
A-1 Cash Collateral Account in accordance with Sections 3.06(c) and
3.06(f) of the Intercreditor Agreement, (ii) does not include any amount
with respect to the payment of the principal of, or premium on, the Class
A-1 Certificates, or principal of, or interest or premium on, the Class
A-2 Certificates, the Class B Certificates, the Class C Certificates or
the Class D Certificates, (iii) was computed in accordance with the
provisions of the Class A-1 Certificates, the Class A-1 Trust Agreement
and the Intercreditor Agreement (a copy of which computation is attached
hereto as Schedule I) and (iv) has not been and is not the subject of a
prior or contemporaneous Notice of Borrowing under the Liquidity
Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Class
A-1 Cash Collateral Account and apply the same in accordance with the
terms of Sections 3.06(c) and 3.06(f) of the Intercreditor Agreement, (b)
no portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Downgrade Advance as requested by this Notice
of Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement and
(B) following the making by the Liquidity Provider of the Downgrade Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Downgrade Advance Notice of
Borrowing]
ANNEX IV to
REVOLVING CREDIT AGREEMENT
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower
(the "BORROWER"), hereby certifies to LANDESBANK HESSEN-THURINGEN GIROZENTRALE
(the "LIQUIDITY PROVIDER"), with reference to the Revolving Credit Agreement
(2001-1A-1), dated as of September 17, 2001, between the Borrower and the
Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined or referenced),
that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Final Advance by the Liquidity Provider to be used for the
funding of the Class A-1 Cash Collateral Account in accordance with
Section 3.06(i) of the Intercreditor Agreement by reason of the receipt by
the Borrower of a Termination Notice from the Liquidity Provider with
respect to the Liquidity Agreement, which Advance is requested to be made
on ____________, ____. The Final Advance should be remitted to [insert
wire and account details].
(3) The amount of the Final Advance requested hereby (i) is
$_________________.__, which equals the Maximum Available Commitment on
the date hereof and is to be applied in respect of the funding of the
Class A-1 Cash Collateral Account in accordance with Sections 3.06(f) and
3.06(i) of the Intercreditor Agreement, (ii) does not include any amount
with respect to the payment of principal of, or premium on, the Class A-1
Certificates, or principal of, or interest or premium on, the Class A-2
Certificates, the Class B Certificates, the Class C Certificates or the
Class D Certificates, (iii) was computed in accordance with the provisions
of the Class A-1 Certificates, the Class A-1 Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I) and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Class
A-1 Cash Collateral Account and apply the same in accordance with the
terms of Sections 3.06(f) and 3.06(i) of the Intercreditor Agreement, (b)
no portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
(5) [The Borrower hereby requests that the Advance requested hereby
be a Base Rate Advance [and that such Base Rate Advance be converted into
a LIBOR Advance on the third Business Day following your receipt of this
notice]*.]
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Final Advance as requested by this Notice of
Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement and
(B) following the making by the Liquidity Provider of the Final Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
----------
[* Bracketed language may be included at Borrower's option.]
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Final Advance Notice of
Borrowing]
ANNEX V to
REVOLVING CREDIT AGREEMENT
NOTICE OF TERMINATION
[Date]
State Street Bank and Trust
Company of Connecticut,
National Association, as
Subordination Agent, as
Borrower
225 Asylum Street
Goodwin Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Re: Revolving Credit Agreement, dated as of September 17,
2001, between State Street Bank and Trust Company of
Connecticut, National Association, as Subordination
Agent, as agent and trustee for the Delta Air Lines
Pass Through Trust 2001-1A-1, as Borrower, and
Landesbank Hessen-Thuringen Girozentrale (the
"LIQUIDITY AGREEMENT")
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.01 of the Liquidity
Agreement, by reason of the occurrence and continuance of a Liquidity Event of
Default and the existence of a Performing Note Deficiency (each as defined
therein), we are giving this notice to you in order to cause (i) our obligations
to make Advances (as defined therein) under such Liquidity Agreement to
terminate at the close of business on the fifth Business Day after the date on
which you receive this notice and (ii) you to request a Final Advance under the
Liquidity Agreement pursuant to Section 3.06(i) of the Intercreditor Agreement
(as defined in the Liquidity Agreement) as a consequence of your receipt of this
notice.
THIS NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR UNDER THE
LIQUIDITY AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY
AGREEMENT WILL TERMINATE AT THE
CLOSE OF BUSINESS ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU RECEIVE
THIS NOTICE.
Very truly yours,
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as Liquidity Provider
By:
---------------------------------------
Name:
Title:
cc: State Street Bank and Trust Company of Connecticut,
National Association, as Class A-1 Trustee
ANNEX VI to
REVOLVING CREDIT AGREEMENT
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Re: Revolving Credit Agreement, dated as of September 17, 2001, between State
Street Bank and Trust Company of Connecticut, National Association, as
Subordination Agent, as agent and trustee for the Delta Air Lines Pass
Through Trust 2001-1A-1, as Borrower, and Landesbank Hessen-Thuringen
Girozentrale (the "LIQUIDITY AGREEMENT")
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
[Name of Transferee]
[Address of Transferee]
all rights and obligations of the undersigned as Borrower under the Liquidity
Agreement referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the first
paragraph of the Liquidity Agreement, pursuant to the terms of Section 7.01 of
the Intercreditor Agreement.
By this transfer, all rights of the undersigned as Borrower under the
Liquidity Agreement are transferred to the transferee and the transferee shall
hereafter have the sole rights and obligations as Borrower thereunder. The
undersigned shall pay any costs and expenses of such transfer, including, but
not limited to, transfer taxes or governmental charges.
This transfer shall be effective as of [specify time and date].
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
EX-4.(C)(2)
11
de600102-ex4c2.txt
REVOLVING CREDIT AGREEMENT (2001-1A-2)
EXHIBIT 4(c)(2)
EXECUTION COPY
REVOLVING CREDIT AGREEMENT
(2001-1A-2)
Dated as of September 17, 2001
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Subordination Agent,
as agent and trustee for the trustee of
Delta Air Lines Pass Through Trust 2001-1A-2,
as Borrower
and
LANDESBANK HESSEN-THURINGEN GIROZENTRALE
as Liquidity Provider
Delta Air Lines Pass Through Trust 2001-1A-2
7.111% Delta Air Lines
Pass Through Certificates,
Series 2001-1A-2
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Definitions...................................................
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances..................................................
Section 2.02. Making of Advances............................................
Section 2.03. Fees..........................................................
Section 2.04. Reduction or Termination of the Maximum Commitment............
Section 2.05. Repayments of Interest Advances or the Final Advance..........
Section 2.06. Repayments of Provider Advances...............................
Section 2.07. Payments to the Liquidity Provider Under the Intercreditor
Agreement.....................................................
Section 2.08. Book Entries..................................................
Section 2.09. Payments from Available Funds Only............................
Section 2.10. Extension of the Expiry Date; Non-Extension Advance...........
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs...............................................
Section 3.02. [Intentionally omitted.]......................................
Section 3.03. Withholding Taxes.............................................
Section 3.04. Payments......................................................
Section 3.05. Computations..................................................
Section 3.06. Payment on Non-Business Days..................................
Section 3.07. Interest......................................................
Section 3.08. Replacement of Borrower.......................................
Section 3.09. Funding Loss Indemnification..................................
Section 3.10. Illegality....................................................
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01.........
Section 4.02. Conditions Precedent to Borrowing.............................
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower.........................
Section 5.02. Negative Covenants of the Borrower............................
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default...................................
ARTICLE VII
MISCELLANEOUS
Section 7.01. No Oral Modifications or Continuing Waivers...................
Section 7.02. Notices.......................................................
Section 7.03. No Waiver; Remedies...........................................
Section 7.04. Further Assurances............................................
Section 7.05. Indemnification; Survival of Certain Provisions...............
Section 7.06. Liability of the Liquidity Provider...........................
Section 7.07. Certain Costs and Expenses....................................
Section 7.08. Binding Effect; Participations................................
Section 7.09. Severability..................................................
Section 7.10. Governing Law.................................................
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of
Immunity......................................................
Section 7.12. Counterparts..................................................
Section 7.13. Entirety......................................................
Section 7.14. Headings......................................................
Section 7.15. Liquidity Provider's Obligation to Make Advances..............
Annex I - Interest Advance Notice of Borrowing
Annex II - Non-Extension Advance Notice of Borrowing
Annex III - Downgrade Advance Notice of Borrowing
Annex IV - Final Advance Notice of Borrowing
Annex V - Notice of Termination
Annex VI - Notice of Replacement Subordination Agent
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT, dated as of September 17, 2001, is made
by and between STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity but
solely as Subordination Agent (such term and other capitalized terms used herein
without definition being defined as provided in Article I) under the
Intercreditor Agreement (as defined below), as agent and trustee for the Class
A-2 Trustee (in such capacity, together with its successors in such capacity,
the "BORROWER"), and LANDESBANK HESSEN-THURINGEN GIROZENTRALE ("Helaba"), a
banking institution organized under the laws of Germany (the "LIQUIDITY
PROVIDER").
W I T N E S S E T H:
WHEREAS, pursuant to the Class A-2 Trust Agreement, the Class A-2 Trust is
issuing the Class A-2 Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a portion
of the interest on the Class A-2 Certificates in accordance with their terms,
has requested the Liquidity Provider to enter into this Agreement, providing in
part for the Borrower to request in specified circumstances that Advances be
made hereunder;
NOW, THEREFORE, in consideration of the 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. (a) The definitions stated herein apply equally
to both the singular and the plural forms of the terms defined.
(b) All references in this Agreement to designated "Articles", "Sections",
"Annexes" and other subdivisions are to the designated Article, Section, Annex
or other subdivision of this Agreement, unless otherwise specifically stated.
(c) 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, Annex or other subdivision.
(d) 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".
(e) For the purposes of this Agreement, unless the context otherwise
requires, the following capitalized terms shall have the following meanings:
"ADVANCE" means an Interest Advance, a Final Advance, a Provider
Advance, an Unapplied Provider Advance, an Applied Provider Advance or an
Unpaid Advance, as the case may be.
"AGREEMENT" means this Agreement, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
"APPLICABLE LIQUIDITY RATE" has the meaning specified in Section
3.07(g).
"APPLICABLE MARGIN" means (a) with respect to any Unpaid Advance or
Applied Provider Advance, 1.50% per annum, or (b) with respect to any
Unapplied Provider Advance, the rate per annum specified in the Fee Letter
applicable to this Agreement.
"APPLIED DOWNGRADE ADVANCE" has the meaning specified in Section
2.06(a).
"APPLIED NON-EXTENSION ADVANCE" has the meaning specified in Section
2.06(a).
"APPLIED PROVIDER ADVANCE" means an Applied Downgrade Advance or an
Applied Non-Extension Advance.
"BASE RATE" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers,
as published for each day in the period for which the Base Rate is to be
determined (or, if such day is not a Business Day, for the preceding
Business Day) by the Federal Reserve Bank of New York, or if such rate is
not so published for any day that is a Business Day, the average of the
quotations for such day for such transactions received by the Liquidity
Provider from three Federal funds brokers of recognized standing selected
by it (and reasonably satisfactory to Delta) plus one-quarter of one
percent (0.25%).
"BASE RATE ADVANCE" means an Advance that bears interest at a rate
based upon the Base Rate.
"BORROWER" has the meaning specified in the introductory paragraph
to this Agreement.
"BORROWING" means the making of Advances requested by delivery of a
Notice of Borrowing.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a
day on which commercial banks are required or authorized to close in New
York, New York, Atlanta, Georgia, or, so long as any Class A-2 Certificate
is outstanding, the city and state in which the Class A-2 Trustee, the
Borrower or any related Loan Trustee maintains its Corporate Trust Office
or receives or disburses funds, and, if the applicable Business Day
relates to any Advance or other amount bearing interest based on the LIBOR
Rate, on which dealings are carried on in the London interbank market.
"CONSENT PERIOD" has the meaning specified in Section 2.10.
"COVERED TAXES" means any Taxes imposed by the United States or any
political subdivision or taxing authority thereof or therein required by
law to be deducted or withheld from any amounts payable to the Liquidity
Provider under this Agreement other than (i) any Tax on, based on or
measured by net income, franchises or conduct of business, (ii) any Tax
imposed, levied, withheld or assessed as a result of any connection
between the Liquidity Provider and the United States or such political
subdivision or taxing authority, other than a connection arising solely
from the Liquidity Provider's having executed, delivered, performed its
obligations or received a payment under, or enforced, any Operative
Agreement, (iii) any Tax attributable to the inaccuracy in or breach by
the Liquidity Provider of any of its representations, warranties or
covenants contained in any Operative Agreement to which it is a party or
the inaccuracy of any form or document furnished pursuant thereto, (iv)
any withholding Taxes imposed by the United States except to the extent
such withholding Taxes would not have been required to be deducted or
withheld from payments hereunder but for a change after the date hereof
(or in the case of a successor Liquidity Provider (including a transferee
of an Advance) after the date on which such successor Liquidity Provider
obtains its interest) in applicable law (excluding from "change in
applicable law" for this purpose, a change in an applicable treaty or
other change in law affecting the applicability of a treaty other than the
applicable income tax treaty between the United States of America and the
Federal Republic of Germany ("German Treaty") (except an addition to, or
change in any "anti-treaty shopping", "limitation of benefits" or similar
provision in such German Treaty)), (v) any withholding Taxes imposed by
the United States which are imposed or increased as a result of the
Liquidity Provider failing to deliver to the Borrower any certificate or
document (which certificate or document in the good faith judgment of the
Liquidity Provider, it is legally entitled to provide) which is reasonably
requested by the Borrower to establish that payments under this Agreement
are exempt from (or entitled to a reduced rate of) withholding Tax, or
(vi) any change in the Lending Office without the prior written consent of
Delta (such consent not to be unreasonably withheld).
"DOWNGRADE ADVANCE" means an Advance made pursuant to Section
2.02(c).
"DOWNGRADE EVENT" means a downgrading of the Liquidity Provider's
short-term unsecured debt rating issued by either Rating Agency (or if the
Liquidity Provider does not have a short-term unsecured debt rating issued
by a given Rating Agency, the long-term unsecured debt rating issued by
such Rating Agency) below the applicable Threshold Rating unless each
Rating Agency shall have confirmed in writing on or prior to the date of
such downgrading that such downgrading will not result in the downgrading,
withdrawal or suspension of the ratings of the Class A-2 Certificates, in
which case, such downgrading of the Liquidity Provider's short-term
unsecured debt rating shall not constitute a Downgrade Event and shall be
referred to herein as a "HELABA DOWNGRADE".
"EFFECTIVE DATE" has the meaning specified in Section 4.01. The
delivery of the certificate of the Liquidity Provider contemplated by
Section 4.01(f) shall be conclusive evidence that the Effective Date has
occurred.
"EXCLUDED TAXES" means (a) Taxes imposed on the overall net income
of the Liquidity Provider, (b) Covered Taxes that are indemnified pursuant
to Section 3.03 hereof, and (c) Taxes described in clauses (i) through
(vi) in the definition of "Covered Taxes".
"EXPENSES" means liabilities, losses, damages, costs and expenses
(including, without limitation, reasonable fees and disbursements of legal
counsel), provided that Expenses shall not include any Taxes other than
sales, use and V.A.T. taxes imposed on fees and expenses payable pursuant
to Section 7.07.
"EXPIRY DATE" means September 15, 2002, initially, or any date to
which the Expiry Date is extended pursuant to Section 2.10.
"FINAL ADVANCE" means an Advance made pursuant to Section 2.02(d).
"HELABA DOWNGRADE" has the meaning assigned to such term in the
definition of "Downgrade Event".
"INCREASED COST" has the meaning specified in Section 3.01.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement, dated
as of the date hereof, among the Trustees, the Liquidity Provider, the
liquidity provider under each Liquidity Facility (other than this
Agreement) and the Subordination Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
"INTEREST ADVANCE" means an Advance made pursuant to Section
2.02(a).
"INTEREST PERIOD" means, with respect to any LIBOR Advance, each of
the following periods:
(i) the period beginning on the third Business Day following
either (A) the Liquidity Provider's receipt of the Notice of
Borrowing for such LIBOR Advance or (B) the date of the withdrawal
of funds from the Class A-2 Cash Collateral Account for the purpose
of paying interest on the Class A-2 Certificates as contemplated by
Section 2.06(a) hereof and, in each case, ending on the next
numerically corresponding day in the first calendar month after the
first day of the applicable Interest Period; and
(ii) each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the numerically
corresponding day in the first calendar month after the first day of
the applicable Interest Period;
provided, however, that if (x) the Final Advance shall have been made
pursuant to Section 2.02(d) or (y) other outstanding Advances shall have
been converted into the Final Advance pursuant to Section 6.01, then the
Interest Periods shall be successive periods of one month beginning on the
third Business Day following the Liquidity Provider's receipt of the
Notice of Borrowing for such Final Advance (in the case of clause (x)
above) or the Regular Distribution Date following such conversion (in the
case of clause (y) above).
"LENDING OFFICE" means the lending office of the Liquidity Provider
presently located at Frankfurt, Germany, or such other lending office as
the Liquidity Provider from time to time shall notify the Borrower as its
lending office hereunder; provided that the Liquidity Provider shall not
change its Lending Office without the prior written consent of Delta (such
consent not to be unreasonably withheld).
"LIBOR ADVANCE" means an Advance bearing interest at a rate based
upon the LIBOR Rate.
"LIBOR RATE" means, with respect to any Interest Period, (a) the
interest rate per annum equal to the rate per annum at which deposits in
Dollars are offered in the London interbank market as shown on Page 3750
of the Telerate Systems Incorporated screen service (or such other page as
may replace Telerate Page 3750), or if such service is not available, Page
LIBO of the Reuters Money Service Monitor System (or such other page as
may replace Reuters Page LIBO) at approximately 11:00 a.m. (London time)
on the day that is two Business Days prior to the first day of such
Interest Period, for a period comparable to such Interest Period, or (b)
if no such rate is published on either such service or if neither of such
services is then available, the interest rate per annum equal to the
average (rounded up, if necessary, to the nearest 1/100th of 1%) of the
rates at which deposits in Dollars are offered by the Reference Banks (or,
if fewer than all of the Reference Banks are quoting a rate for deposits
in Dollars for the applicable period and amount, such fewer number of
Reference Banks) at approximately 11:00 a.m. (London time) on the day that
is two Business Days prior to the first day of such Interest Period to
prime banks in the London interbank market for a period comparable to such
Interest Period and in an amount approximately equal to the principal
amount of the LIBOR Advance to be outstanding during such Interest Period,
or (c) if none of the Reference Banks is quoting a rate for deposits in
Dollars in the London interbank market for such a period and amount, the
interest rate per annum equal to the average (rounded up, if necessary, to
the nearest 1/100th of 1%) of the rates at which deposits in Dollars are
offered by the principal New York offices of the Reference Banks (or, if
fewer than all of the Reference Banks are quoting a rate for deposits in
Dollars in the New York interbank market for the applicable period and
amount, such fewer number of Reference Banks) at approximately 11:00 a.m.
(New York time) on the day that is two Business Days prior to the first
day of such Interest Period to prime banks in the New York interbank
market for a period comparable to such Interest Period and in an amount
approximately equal to the principal amount of the LIBOR Advance to be
outstanding during such Interest Period, or (d) if none of the principal
New York offices of the Reference Banks is quoting a rate for deposits in
Dollars in the New York interbank market for the applicable period and
amount, the Base Rate.
"LIQUIDITY EVENT OF DEFAULT" means the occurrence of either (a) the
Acceleration of all of the Equipment Notes or (b) a Delta Bankruptcy
Event.
"LIQUIDITY INDEMNITEE" means the Liquidity Provider, its directors,
officers, employees and agents, and its successors and permitted assigns.
"LIQUIDITY PROVIDER" has the meaning specified in the introductory
paragraph to this Agreement.
"MAXIMUM AVAILABLE COMMITMENT" means, subject to the proviso
contained in the third sentence of Section 2.02(a), at any time of
determination, (a) the Maximum Commitment at such time less (b) the
aggregate amount of each Interest Advance outstanding at such time;
provided that following a Provider Advance or a Final Advance, the Maximum
Available Commitment shall be zero.
"MAXIMUM COMMITMENT" means $61,034,319.02 as the same may be reduced
from time to time in accordance with Section 2.04(a).
"NON-EXTENSION ADVANCE" means an Advance made pursuant to Section
2.02(b).
"NOTICE OF BORROWING" has the meaning specified in Section 2.02(e).
"NOTICE OF REPLACEMENT SUBORDINATION AGENT" has the meaning
specified in Section 3.08.
"PARTICIPATION" has the meaning specified in Section 7.08(b).
"PERFORMING NOTE DEFICIENCY" means any time that less than 65% of
the then aggregate outstanding principal amount of all Equipment Notes are
Performing Equipment Notes.
"PERMITTED TRANSFEREE" means any Person that:
(a) is not a commercial air carrier, Delta or any affiliate of
Delta; and
(b) is any one of:
(1) a commercial banking institution organized under the
laws of the United States or any state thereof or the District
of Columbia;
(2) a commercial banking institution that (x) is
organized under the laws of France, Germany, The Netherlands,
Switzerland or the United Kingdom, (y) is entitled on the date
it acquires any Participation to a complete exemption from
United States federal income taxes for all income derived by
it from the transactions contemplated by the Operative
Agreements under an income tax treaty, as in effect on such
date, between the United States and such jurisdiction of its
organization and (z) is engaged in the active conduct of a
banking business in such jurisdiction of its organization,
holds its Participation in connection with such banking
business in such jurisdiction and is regulated as a commercial
banking institution by the appropriate regulatory authorities
in such jurisdiction; or
(3) a commercial banking institution that (x) is
organized under the laws of Canada, France, Germany, Ireland,
Japan, Luxembourg, The Netherlands, Sweden, Switzerland or the
United Kingdom and (y) is entitled on the date it acquires any
Participation to a complete exemption from withholding of
United States federal income taxes for all income derived by
it from the transactions contemplated by the Operative
Agreements under laws as in effect on such date by reason of
such income being effectively connected with the conduct of a
trade or business within the United States.
"PROSPECTUS SUPPLEMENT" means the Prospectus Supplement dated
September 6, 2001, relating to the Class A-1, Class A-2, Class B and Class
C Certificates, as such Prospectus Supplement may be amended or
supplemented.
"PROVIDER ADVANCE" means a Downgrade Advance or a Non-Extension
Advance.
"REFERENCE BANKS" means the principal London offices of: National
Westminster Bank, plc; Helaba; The Chase Manhattan Bank; Citibank, N.A.;
and such other or additional banking institutions as may be designated
from time to time by mutual agreement of Delta and the Liquidity Provider.
"REGULATORY CHANGE" means the enactment, adoption or promulgation,
after the date of this Agreement, of any law or regulation by a United
States federal or state government or by any government having
jurisdiction over the Liquidity Provider, or any change, after the date of
this Agreement, in any such law or regulation, or in the interpretation
thereof by any governmental authority, central bank or comparable agency
of the United States or any government having jurisdiction over the
Liquidity Provider charged with responsibility for the administration or
application thereof, that shall impose, modify or deem applicable or the
compliance by the Liquidity Provider (or its head office) with any
applicable direction or requirement (whether or not having the force of
law) of any central bank or competent governmental or other authority with
respect to: (a) any reserve, special deposit or similar requirement
against extensions of credit or other assets of, or deposits with or other
liabilities of, the Liquidity Provider including, or by reason of, the
Advances, or (b) any capital adequacy requirement requiring the
maintenance by the Liquidity Provider of additional capital in respect of
any Advances or the Liquidity Provider's obligation to make any such
Advances or (c) any Taxes (other than Excluded Taxes) with respect to the
amounts payable or paid or change the basis of taxation of any amounts
payable to the Liquidity Provider (other than in respect of Excluded
Taxes).
"REPLENISHMENT AMOUNT" has the meaning specified in Section 2.06(b).
"REQUIRED AMOUNT" means, for any day, the sum of the aggregate
amount of interest, calculated at the rate per annum equal to the Stated
Interest Rate for the Class A-2 Certificates on the basis of a 360-day
year comprised of twelve 30-day months, that would be payable on the Class
A-2 Certificates on each of the three successive semiannual Regular
Distribution Dates immediately following such day or, if such day is a
Regular Distribution Date, on such day and the succeeding two semiannual
Regular Distribution Dates, in each case calculated on the basis of the
Pool Balance of the Class A-2 Certificates on such day and without regard
to expected future distributions of principal on the Class A-2
Certificates.
"TERMINATION DATE" means the earliest to occur of the following: (i)
the Expiry Date; (ii) the date on which the Borrower delivers to the
Liquidity Provider a certificate, signed by a Responsible Officer of the
Borrower, certifying that all of the Class A-2 Certificates have been paid
in full (or provision has been made for such payment in accordance with
the Intercreditor Agreement and the Class A-2 Trust Agreement) or are
otherwise no longer entitled to the benefits of this Agreement; (iii) the
date on which the Borrower delivers to the Liquidity Provider a
certificate, signed by a Responsible Officer of the Borrower, certifying
that a Replacement Liquidity Facility has been substituted for this
Agreement in full pursuant to Section 3.06(e) of the Intercreditor
Agreement; (iv) the fifth Business Day following the receipt by the
Borrower of a Termination Notice from the Liquidity Provider pursuant to
Section 6.01; and (v) the date on which no Advance is or may (including by
reason of reinstatement as herein provided) become available for a
Borrowing hereunder.
"TERMINATION NOTICE" means the Notice of Termination substantially
in the form of Annex V to this Agreement.
"UNAPPLIED NON-EXTENSION ADVANCE": Any portion of a Non-Extension
Advance which is not an Applied Non-Extension Advance.
"UNAPPLIED PROVIDER ADVANCE" means any Provider Advance other than
an Applied Provider Advance.
"UNPAID ADVANCE" has the meaning specified in Section 2.05.
For the purposes of this Agreement, the following terms shall have the
respective meanings specified in the Intercreditor Agreement:
"Acceleration", "Certificate", "Class A-1 Certificates", "Class A-2
Cash Collateral Account", "Class A-2 Certificates", "Class A-2
Certificateholders", "Class A-2 Trust", "Class A-2 Trust Agreement",
"Class A-2 Trustee", "Class B Certificates", "Class C Certificates",
"Class D Certificates", "Closing Date", "Collection Account", "Controlling
Party", "Corporate Trust Office", "Delta", "Delta Bankruptcy Event",
"Distribution Date", "Dollars", "Downgraded Facility", "Equipment Notes",
"Fee Letter", "Final Legal Distribution Date", "Indenture", "Initial Class
D Holder", "Interest Payment Date", "Investment Earnings", "Liquidity
Facility", "Liquidity Obligations", "Loan Trustee", "Moody's",
"Non-Extended Facility", "Operative Agreements", "Participation
Agreements", "Performing Equipment Note", "Person", "Pool Balance",
"Rating Agencies", "Ratings Confirmation", "Regular Distribution Date",
"Replacement Liquidity Facility", "Responsible Officer", "Scheduled
Payment", "Special Payment", "S&P", "Stated Interest Rate", "Subordination
Agent", "Taxes", "Threshold Rating", "Trust Agreement", "Trustee",
"Underwriters", "Underwriting Agreement", "United States" and "Written
Notice".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances. The Liquidity Provider hereby irrevocably
agrees, on the terms and conditions hereinafter set forth, to make Advances to
the Borrower from time to time on any Business Day during the period from the
Effective Date until 12:00 noon (New York City time) on the Expiry Date (unless
the obligations of the Liquidity Provider shall be earlier terminated in
accordance with the terms of Section 2.04(b)) in an aggregate amount at any time
outstanding not to exceed the Maximum Commitment.
Section 2.02. Making of Advances (a) Each Interest Advance shall be made
by the Liquidity Provider upon delivery to the Liquidity Provider of a written
and completed Notice of Borrowing in substantially the form of Annex I, signed
by a Responsible Officer of the Borrower, such Interest Advance to be in an
amount not exceeding the Maximum Available Commitment at such time and used
solely for the payment when due of interest with respect to the Class A-2
Certificates at the Stated Interest Rate therefor in accordance with Section
3.06(a) and 3.06(b) of the Intercreditor Agreement. Each Interest Advance made
hereunder shall automatically reduce the Maximum Available Commitment and the
amount available to be borrowed hereunder by subsequent Advances by the amount
of such Interest Advance (subject to reinstatement as provided in the next
sentence). Upon repayment to the Liquidity Provider in full or in part of the
amount of any Interest Advance made pursuant to this Section 2.02(a), together
with accrued interest thereon (as provided herein), the Maximum Available
Commitment shall be reinstated by an amount equal to the amount of such Interest
Advance so repaid, but not to exceed the Maximum Commitment; provided, however,
that the Maximum Available Commitment shall not be so reinstated at any time if
(x) both a Performing Note Deficiency exists and a Liquidity Event of Default
shall have occurred and be continuing or (y) a Final Drawing shall have
occurred.
(b) Subject to Section 2.10, a Non-Extension Advance shall be made by the
Liquidity Provider if this Agreement is not extended in accordance with Section
3.06(d) of the Intercreditor Agreement (unless a Replacement Liquidity Facility
to replace this Agreement shall have been delivered to the Borrower as
contemplated by said Section 3.06(d) within the time period specified in such
Section 3.06(d)) upon delivery to the Liquidity Provider of a written and
completed Notice of Borrowing in substantially the form of Annex II, signed by a
Responsible Officer of the Borrower, in an amount equal to the Maximum Available
Commitment at such time, and shall be used to fund the Class A-2 Cash Collateral
Account in accordance with Sections 3.06(d) and 3.06(f) of the Intercreditor
Agreement.
(c) A Downgrade Advance shall be made by the Liquidity Provider upon the
occurrence of a Downgrade Event (as provided for in Section 3.06(c) of the
Intercreditor Agreement) unless a Replacement Liquidity Facility to replace this
Agreement shall have been previously delivered to the Borrower in accordance
with said Section 3.06(c), upon delivery to the Liquidity Provider of a written
and completed Notice of Borrowing in substantially the form of Annex III, signed
by a Responsible Officer of the Borrower, in an amount equal to the Maximum
Available Commitment at such time, and shall be used to fund the Class A-2 Cash
Collateral Account in accordance with Sections 3.06(c) and 3.06(f) of the
Intercreditor Agreement.
(d) A Final Advance shall be made by the Liquidity Provider following the
receipt by the Borrower of a Termination Notice from the Liquidity Provider
pursuant to Section 6.01 upon delivery to the Liquidity Provider of a written
and completed Notice of Borrowing in substantially the form of Annex IV, signed
by a Responsible Officer of the Borrower, in an amount equal to the Maximum
Available Commitment at such time, and shall be used to fund the Class A-2 Cash
Collateral Account (in accordance with Sections 3.06(f) and 3.06(i) of the
Intercreditor Agreement).
(e) Each Borrowing shall be made on notice in writing (a "NOTICE OF
BORROWING") in substantially the form required by Section 2.02(a), 2.02(b),
2.02(c) or 2.02(d), as the case may be, given by the Borrower to the Liquidity
Provider. If a Notice of Borrowing is delivered by the Borrower in respect of
any Borrowing no later than 1:00 p.m. (New York City time) on a Business Day,
upon satisfaction of the conditions precedent set forth in Section 4.02 with
respect to a requested Borrowing, the Liquidity Provider shall make available to
the Borrower, in accordance with its payment instructions, the amount of such
Borrowing in Dollars and immediately available funds, before 4:00 p.m. (New York
City time) on such Business Day or before 1:00 p.m. (New York City time) on such
later Business Day specified in such Notice of Borrowing. If a Notice of
Borrowing is delivered by the Borrower in respect of any Borrowing after 1:00
p.m. (New York City time) on a Business Day, upon satisfaction of the conditions
precedent set forth in Section 4.02 with respect to a requested Borrowing, the
Liquidity Provider shall make available to the Borrower, in accordance with its
payment instructions, the amount of such Borrowing in Dollars and immediately
available funds, before 1:00 p.m. (New York City time) on the first Business Day
next following the day of receipt of such Notice of Borrowing or on such later
Business Day specified by the Borrower in such Notice of Borrowing. Payments of
proceeds of a Borrowing shall be made by wire transfer of immediately available
funds to the Borrower in accordance with such wire transfer instructions as the
Borrower shall furnish from time to time to the Liquidity Provider for such
purpose. Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. Each Notice of Borrowing shall be effective upon delivery of a copy
thereof to the Liquidity Provider's New York branch at the address specified in
Section 7.02 hereof.
(f) Upon the making of any Advance requested pursuant to a Notice of
Borrowing in accordance with the Borrower's payment instructions, the Liquidity
Provider shall be fully discharged of its obligation hereunder with respect to
such Notice of Borrowing, and the Liquidity Provider shall not thereafter be
obligated to make any further Advances hereunder in respect of such Notice of
Borrowing to the Borrower or to any other Person (including the Trustee or any
Class A-2 Certificateholder). If the Liquidity Provider makes an Advance
requested pursuant to a Notice of Borrowing before 12:00 noon (New York City
time) on the second Business Day after the date of payment specified in said
Section 2.02(e), the Liquidity Provider shall have fully discharged its
obligations hereunder with respect to such Advance and an event of default shall
not have occurred hereunder. Following the making of any Advance pursuant to
Section 2.02(b), 2.02(c) or 2.02(d) to fund the Class A-2 Cash Collateral
Account, the Liquidity Provider shall have no interest in or rights to the Class
A-2 Cash Collateral Account, such Advance or any other amounts from time to time
on deposit in the Class A-2 Cash Collateral Account; provided that the foregoing
shall not affect or impair the obligations of the Subordination Agent to make
the distributions contemplated by Section 3.06(e) or 3.06(f) of the
Intercreditor Agreement and provided further, that the foregoing shall not
affect or impair the rights of the Liquidity Provider to provide written
instructions with respect to the investment and reinvestment of amounts in the
Class A-2 Cash Collateral Account to the extent provided in Section 2.02(b) of
the Intercreditor Agreement. By paying to the Borrower proceeds of Advances
requested by the Borrower in accordance with the provisions of this Agreement,
the Liquidity Provider makes no representation as to, and assumes no
responsibility for, the correctness or sufficiency for any purpose of the amount
of the Advances so made and requested.
Section 2.03. Fees. The Borrower agrees to pay to the Liquidity Provider
the fees set forth in the Fee Letter.
Section 2.04. Reduction or Termination of the Maximum Commitment. (a)
Automatic Reduction. Promptly following each date on which the Required Amount
is reduced as a result of a reduction in the Pool Balance of the Class A-2
Certificates or otherwise, the Maximum Commitment shall automatically be reduced
to an amount equal to such reduced Required Amount (as calculated by the
Borrower). The Borrower shall give notice of any such automatic reduction of the
Maximum Commitment to the Liquidity Provider and Delta within two Business Days
thereof. The failure by the Borrower to furnish any such notice shall not affect
such automatic reduction of the Maximum Commitment.
(b) Termination. Upon the making of any Provider Advance or Final Advance
hereunder or the occurrence of the Termination Date, the obligation of the
Liquidity Provider to make further Advances hereunder shall automatically and
irrevocably terminate, and the Borrower shall not be entitled to request any
further Borrowing hereunder.
Section 2.05. Repayments of Interest Advances or the Final Advance.
Subject to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby agrees,
without notice of an Advance or demand for repayment from the Liquidity Provider
(which notice and demand are hereby waived by the Borrower), to pay, or to cause
to be paid, to the Liquidity Provider (a) on each date on which the Liquidity
Provider shall make an Interest Advance or the Final Advance, an amount equal to
the amount of such Advance (any such Advance, until repaid, is referred to
herein as an "UNPAID ADVANCE"), plus (b) interest on the amount of each such
Unpaid Advance in the amounts and on the dates determined as provided in Section
3.07; provided that if (i) the Liquidity Provider shall make a Provider Advance
at any time after making one or more Interest Advances which shall not have been
repaid in accordance with this Section 2.05 or (ii) this Liquidity Facility
shall become a Downgraded Facility or Non-Extended Facility at any time when
unreimbursed Interest Advances have reduced the Maximum Available Commitment to
zero, then such Interest Advances shall cease to constitute Unpaid Advances and
shall be deemed to have been changed into an Applied Downgrade Advance or an
Applied Non-Extension Advance, as the case may be, for all purposes of this
Agreement (including, without limitation, for the purpose of determining when
such Interest Advance is required to be repaid to the Liquidity Provider in
accordance with Section 2.06 and for the purposes of Section 2.06(b)). The
Borrower and the Liquidity Provider agree that the repayment in full of each
Interest Advance and Final Advance on the date such Advance is made is intended
to be a contemporaneous exchange for new value given to the Borrower by the
Liquidity Provider. For the avoidance of doubt, interest payable on an Interest
Advance or the Final Advance shall not be regarded as overdue unless such
interest is not paid when due under Section 3.07.
Section 2.06. Repayments of Provider Advances. (a) Amounts advanced
hereunder in respect of a Provider Advance shall be deposited in the Class A-2
Cash Collateral Account and invested and withdrawn from the Class A-2 Cash
Collateral Account as set forth in Sections 3.06(c), 3.06(d), 3.06(e) and
3.06(f) of the Intercreditor Agreement. Subject to Sections 2.07 and 2.09, the
Borrower agrees to pay to the Liquidity Provider, on each Regular Distribution
Date, commencing on the first Regular Distribution Date after the making of a
Provider Advance, interest on the principal amount of any such Provider Advance,
in the amounts determined as provided in Section 3.07; provided, however, that
amounts in respect of a Provider Advance withdrawn from the Class A-2 Cash
Collateral Account for the purpose of paying interest on the Class A-2
Certificates in accordance with Section 3.06(f) of the Intercreditor Agreement
(the amount of any such withdrawal being (y) in the case of a Downgrade Advance,
an "APPLIED DOWNGRADE ADVANCE" and (z) in the case of a Non-Extension Advance,
an "APPLIED NON-EXTENSION ADVANCE" and, together with an Applied Downgrade
Advance, an "APPLIED PROVIDER ADVANCE") shall thereafter (subject to Section
2.06(b)) be treated as an Interest Advance under this Agreement for purposes of
determining the Applicable Liquidity Rate for interest payable thereon and the
dates on which such interest is payable; provided further, however, that if,
following the making of a Provider Advance, the Liquidity Provider delivers a
Termination Notice to the Borrower pursuant to Section 6.01, such Provider
Advance shall thereafter be treated as a Final Advance under this Agreement for
purposes of determining the Applicable Liquidity Rate for interest payable
thereon and the dates on which such interest is payable. Subject to Sections
2.07 and 2.09 hereof, immediately upon the withdrawal of any amounts from the
Class A-2 Cash Collateral Account on account of a reduction in the Required
Amount, the Borrower shall repay to the Liquidity Provider a portion of the
Provider Advances in a principal amount equal to such reduction, plus interest
on the principal amount prepaid as provided in Section 3.07.
(b) At any time when an Applied Provider Advance (or any portion thereof)
is outstanding, upon the deposit in the Class A-2 Cash Collateral Account of any
amount pursuant to clause "third" of Section 2.04(b) of the Intercreditor
Agreement, clause "third" of Section 3.02 of the Intercreditor Agreement or
clause "fourth" of Section 3.03 of the Intercreditor Agreement (any such amount
being a "REPLENISHMENT AMOUNT") for the purpose of replenishing or increasing
the balance thereof up to the Required Amount at such time, (i) the aggregate
outstanding principal amount of all Applied Provider Advances (and of Provider
Advances treated as an Interest Advance for purposes of determining the
Applicable Liquidity Rate for interest payable thereon) shall be automatically
reduced by the amount of such Replenishment Amount, and (ii) the aggregate
outstanding principal amount of all Unapplied Provider Advances shall be
automatically increased by the amount of such Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity Facility in replacement
of this Agreement in accordance with Section 3.06(e) of the Intercreditor
Agreement, as provided in Section 3.06(f) of the Intercreditor Agreement,
amounts remaining on deposit in the Class A-2 Cash Collateral Account after
giving effect to any Applied Provider Advance on the date of such replacement
shall be reimbursed to the Liquidity Provider, but only to the extent such
amounts are necessary to repay in full to the Liquidity Provider all amounts
owing to it hereunder.
Section 2.07. Payments to the Liquidity Provider Under the Intercreditor
Agreement. In order to provide for payment or repayment to the Liquidity
Provider of any amounts hereunder, the Intercreditor Agreement provides that
amounts available and referred to in Articles II and III of the Intercreditor
Agreement, to the extent payable to the Liquidity Provider pursuant to the terms
of the Intercreditor Agreement (including, without limitation, Section 3.06(f)
of the Intercreditor Agreement), shall be paid to the Liquidity Provider in
accordance with the terms thereof (but, for the avoidance of doubt, without
duplication of or increase in any amounts payable hereunder). Amounts so paid to
the Liquidity Provider shall be applied by the Liquidity Provider in the order
of priority required by the applicable provisions of Articles II and III of the
Intercreditor Agreement and shall discharge in full the corresponding
obligations of the Borrower hereunder.
Section 2.08. Book Entries. The Liquidity Provider shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower resulting from Advances made from time to time and
the amounts of principal and interest payable hereunder and paid from time to
time in respect thereof; provided, however, that the failure by the Liquidity
Provider to maintain such account or accounts shall not affect the obligations
of the Borrower in respect of Advances.
Section 2.09. Payments from Available Funds Only. All payments to be made
by the Borrower under this Agreement shall be made only from the amounts that
constitute Scheduled Payments, Special Payments and other payments under the
Operative Agreements, including payment under Section 4.02 of the Participation
Agreements and payments under Section 2.14 of the Indentures, and only to the
extent that the Borrower shall have sufficient income or proceeds therefrom to
enable the Borrower to make payments in accordance with the terms hereof after
giving effect to the priority of payments provisions set forth in the
Intercreditor Agreement. The Liquidity Provider agrees that it will look solely
to such amounts to the extent available for distribution to it as provided in
the Intercreditor Agreement and this Agreement and that the Borrower, in its
individual capacity, is not personally liable to it for any amounts payable or
liability under this Agreement except as expressly provided in this Agreement,
the Intercreditor Agreement or any Participation Agreement. Amounts on deposit
in the Class A-2 Cash Collateral Account shall be available to the Borrower to
make payments under this Agreement only to the extent and for the purposes
expressly contemplated in Section 3.06(f) of the Intercreditor Agreement.
Section 2.10. Extension of the Expiry Date; Non-Extension Advance. If the
Expiry Date is prior to the date that is 15 days after the Final Legal
Distribution Date for the Class A-2 Certificates, then no earlier than the 60th
day and no later than the 40th day prior to the then applicable Expiry Date, the
Borrower may request in writing that the Liquidity Provider extend the Expiry
Date to the earlier of (i) the date that is 15 days after the Final Legal
Distribution Date for the Class A-2 Certificates and (ii) the date that is the
day immediately preceding the 364th day after the last day of the Consent Period
(unless the obligations of the Liquidity Provider hereunder are earlier
terminated in accordance herewith). Whether or not the Liquidity Provider has
received a request from the Borrower, the Liquidity Provider shall, during the
period commencing on the date that is 60 days prior to the then effective Expiry
Date (or, if earlier, the date of such Liquidity Provider's receipt of such
request, if any, from the Borrower) and ending on the date that is 25 days prior
to the then effective Expiry Date (the "CONSENT PERIOD") advise the Borrower
whether, in its sole discretion, it agrees to so extend the Expiry Date. If the
Liquidity Provider advises the Borrower on or before the end of the Consent
Period that such Expiry Date shall not be so extended, or fails to irrevocably
and unconditionally advise the Borrower on or before the end of the Consent
Period that such Expiry Date shall be so extended (and, in each case, if the
Liquidity Provider shall not have been replaced in accordance with Section
3.06(e) of the Intercreditor Agreement), the Borrower shall be entitled on and
after the date on which the Consent Period ends (but prior to the then effective
Expiry Date) to request a Non-Extension Advance in accordance with Section
2.02(b) hereof and Section 3.06(d) of the Intercreditor Agreement. If any
amounts shall be drawn pursuant to a Non-Extension Advance and, within 30 days
thereafter, the Liquidity Provider shall not have been replaced, then at any
time following the 30th day after such Non-Extension Advance, the Liquidity
Provider may, by written notice to the Borrower, agree to reinstate the
Liquidity Facility on the terms of the existing Liquidity Facility for a period
ending on the 364th day after the end of the Consent Period; provided, however,
that in such event the Liquidity Provider shall reimburse the Borrower for any
costs actually incurred by or on behalf of the Borrower in drawing pursuant to
the Non-Extension Advance and funding the Class A-2 Cash Collateral Account or
otherwise in connection with the Non-Extension Advance.
Section 2.11. Rights to Extend Expiry Date. Subject to the proviso in the
next succeeding sentence, the initial Liquidity Provider shall have the right at
any time and without the consent of the Borrower to extend the then effective
Expiry Date to a date that is on or before the date that is 15 days after the
Final Legal Distribution Date for the Class A-2 Certificates by giving not less
than five nor more than ten days' prior written notice of such extension to the
Borrower, the Class A-2 Trustee and Delta (which notice shall specify the
effective date of such extension (the "EXTENSION EFFECTIVE DATE")). On the
Extension Effective Date, the then effective Expiry Date shall be so extended
without any further act; provided, however, that if prior to the Extension
Effective Date a Downgrade Event shall have occurred, the then effective Expiry
Date shall not be so extended.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs. If as a result of any Regulatory Change
there shall be any increase by an amount reasonably deemed by the Liquidity
Provider to be material in the actual cost to the Liquidity Provider of making,
funding or maintaining any Advances or its obligation to make any such Advances
or there shall be any reduction by an amount reasonably deemed by the Liquidity
Provider to be material in the amount receivable by the Liquidity Provider under
this Agreement or the Intercreditor Agreement in respect thereof, and in case of
either such an increase or reduction, such event does not arise from the gross
negligence or willful misconduct of the Liquidity Provider, from its breach of
any of its representations, warranties, covenants or agreements contained herein
or in the Intercreditor Agreement or from its failure to comply with any such
Regulatory Change (any such increase or reduction being referred to herein as an
"INCREASED COST"), then the Borrower shall from time to time pay to the
Liquidity Provider an amount equal to such Increased Cost within 10 Business
Days after delivery to the Borrower and Delta of a certificate of an officer of
the Liquidity Provider describing in reasonable detail the event by reason of
which it claims such Increased Cost and the basis for the determination of the
amount of such Increased Cost; provided that, the Borrower shall be obligated to
pay amounts only with respect to any Increased Costs accruing from the date 90
days prior to the date of delivery of such certificate. Such certificate, in the
absence of manifest error, shall be considered prima facie evidence of the
amount of the Increased Costs for purposes of this Agreement; provided that any
determinations and allocations by the Liquidity Provider of the effect of any
Regulatory Change on the costs of maintaining the Advances are made on a
reasonable basis. The Liquidity Provider shall not be entitled to assert any
claim under this Section 3.01 in respect of or attributable to Excluded Taxes.
The Liquidity Provider will notify the Borrower and Delta as promptly as
practicable of any event occurring after the date of this Agreement that will
entitle the Liquidity Provider to compensation under this Section 3.01. The
Liquidity Provider agrees to investigate all commercially reasonable
alternatives for reducing any Increased Costs and to use all commercially
reasonable efforts to avoid or minimize, to the greatest extent possible, any
claim in respect of Increased Costs, including, without limitation, by
designating a different Lending Office, if such designation or other action
would avoid the need for, or reduce the amount of, any such claim; provided that
the foregoing shall not obligate the Liquidity Provider to take any action that
would, in its reasonable judgment, cause the Liquidity Provider to take any
action that is not materially consistent with its internal policies or is
otherwise materially disadvantageous to the Liquidity Provider or that would
cause the Liquidity Provider to incur any material loss or cost, unless the
Borrower or Delta agrees to reimburse or indemnify the Liquidity Provider
therefor. If no such designation or other action is effected, or, if effected,
fails to avoid the need for any claim in respect of Increased Costs, Delta may
arrange for a Replacement Liquidity Facility in accordance with Section 3.06(e)
of the Intercreditor Agreement.
Notwithstanding the foregoing provisions, in no event shall the Borrower
be required to make payments under this Section 3.01: (a) in respect of any
Regulatory Change proposed by any applicable governmental authority (including
any branch of a legislature), central bank or comparable agency of the United
States or the Liquidity Provider's jurisdiction of organization and pending as
of the date of this Agreement (it being agreed that the Consultative Document
issued by the Basel Committee on Banking Supervision entitled "The New Basel
Capital Accord," dated January 2001, shall not be considered to have been
proposed or pending as of the date of this Agreement); (b) if a claim hereunder
in respect of an Increased Cost arises through circumstances peculiar to the
Liquidity Provider and that do not affect similarly organized commercial banking
institutions in the same jurisdiction generally that are in compliance with the
law, rule, regulation or interpretation giving rise to the Regulatory Change
relating to such Increased Cost; or (c) if the Liquidity Provider shall fail to
comply with its obligations under this Section 3.01.
Section 3.02. [Intentionally omitted.]
Section 3.03. Withholding Taxes. (a) All payments made by the Borrower
under this Agreement shall be made without deduction or withholding for or on
account of any Taxes, unless such deduction or withholding is required by law.
If any Taxes are so required to be withheld or deducted from any amounts payable
to the Liquidity Provider under this Agreement, the Borrower shall pay to the
relevant authorities the full amount so required to be deducted or withheld and,
if such Taxes are Covered Taxes, pay to the Liquidity Provider such additional
amounts as shall be necessary to ensure that the net amount actually received by
the Liquidity Provider (after deduction or withholding of all Covered Taxes)
shall be equal to the full amount that would have been received by the Liquidity
Provider had no withholding or deduction of Covered Taxes been required. The
Liquidity Provider agrees to use reasonable efforts (consistent with applicable
legal and regulatory restrictions) to change the jurisdiction of its Lending
Office if making such change would avoid the need for, or reduce the amount of,
any such additional amounts that may thereafter accrue and would not, in the
reasonable judgment of the Liquidity Provider, be otherwise materially
disadvantageous to the Liquidity Provider. If the Liquidity Provider receives a
refund of, or realizes a net Tax benefit not otherwise available to it as a
result of, any Taxes for which additional amounts were paid by the Borrower
pursuant to this Section 3.03, the Liquidity Provider shall pay to the Borrower
(for deposit into the Collection Account) the amount of such refund (and any
interest thereon) or net benefit.
The Liquidity Provider will (i) provide (on its behalf and on behalf of
any participant holding a Participation pursuant to Section 7.08) to the
Borrower (x) on or prior to the Effective Date two valid completed and executed
copies of Internal Revenue Service Form W8-BEN or W8-EC1 (whichever is
applicable), including thereon a valid U.S. taxpayer identification number (or,
with respect to any such participant, such other form or documentation as may be
applicable) covering all amounts receivable by it in connection with the
transactions contemplated by the Operative Agreements and (y) thereafter from
time to time such additional forms or documentation as may be necessary to
establish an available exemption from withholding of United States Tax on
payments hereunder so that such forms or documentation are effective for all
periods during which it is the Liquidity Provider and (ii) provide timely notice
to the Borrower if any such form or documentation is or becomes inaccurate. The
Liquidity Provider shall deliver to the Borrower such other forms or documents
as may be reasonably requested by the Borrower or required by applicable law to
establish that payments hereunder are exempt from or entitled to a reduced rate
of Covered Taxes.
(b) All payments (including, without limitation, Advances) made by the
Liquidity Provider under this Agreement shall be made free and clear of, and
without reduction for or on account of, any Taxes. If any Taxes are required to
be withheld or deducted from any amounts payable to the Borrower under this
Agreement, the Liquidity Provider shall (i) within the time prescribed therefor
by applicable law pay to the appropriate governmental or taxing authority the
full amount of any such Taxes (and any additional Taxes in respect of the
additional amounts payable under clause (ii) hereof) and make such reports or
returns in connection therewith at the time or times and in the manner
prescribed by applicable law, and (ii) pay to the Borrower an additional amount
which (after deduction of all such Taxes) will be sufficient to yield to the
Borrower the full amount which would have been received by it had no such
withholding or deduction been made. Within 30 days after the date of each
payment hereunder, the Liquidity Provider shall furnish to the Borrower the
original or a certified copy of (or other documentary evidence of) the payment
of the Taxes applicable to such payment.
If any exemption from, or reduction in the rate of, any Taxes required to
be borne by the Liquidity Provider under this Section 3.03(b) is reasonably
available to the Borrower without providing any information regarding the
holders or beneficial owners of the Certificates, the Borrower shall deliver the
Liquidity Provider such form or forms and such other evidence of the eligibility
of the Borrower for such exemption or reductions (but without any requirement to
provide any information regarding the holders or beneficial owners of the
Certificates) as the Liquidity Provider may reasonably identify to the Borrower
as being required as a condition to exemption from, or reduction in the rate of,
such Taxes.
Section 3.04. Payments. The Borrower shall make or cause to be made each
payment to the Liquidity Provider under this Agreement so as to cause the same
to be received by the Liquidity Provider not later than 1:00 P.M. (New York City
time) on the day when due. The Borrower shall make all such payments in Dollars,
to the Liquidity Provider in immediately available funds, by wire transfer to
The Chase Manhattan Bank, 021-000021 in favor of account number 4207106,
Reference: Delta EETC 2001-1A-2.
Section 3.05. Computations. All computations of interest based on the Base
Rate shall be made on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the LIBOR Rate shall be made on
the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest is payable.
Section 3.06. Payment on Non-Business Days. Whenever any payment to be
made hereunder shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day and no additional
interest shall be due as a result (and if so made, shall be deemed to have been
made when due). If any payment in respect of interest on an Advance is so
deferred to the next succeeding Business Day, such deferral shall not delay the
commencement of the next Interest Period for such Advance (if such Advance is a
LIBOR Advance) or reduce the number of days for which interest will be payable
on such Advance on the next interest payment date for such Advance.
Section 3.07. Interest. (a) Subject to Sections 2.07 and 2.09, the
Borrower shall pay, or shall cause to be paid, without duplication, interest on
(i) the unpaid principal amount of each Advance from and including the date of
such Advance (or, in the case of an Applied Provider Advance, from and including
the date on which the amount thereof was withdrawn from the Class A-2 Cash
Collateral Account to pay interest on the Class A-2 Certificates) to but
excluding the date such principal amount shall be paid in full (or, in the case
of an Applied Provider Advance, the date on which the Class A-2 Cash Collateral
Account is fully replenished in respect of such Advance) and (ii) any other
amount due hereunder (whether fees, commissions, expenses or other amounts or,
to the extent permitted by law, installments of interest on Advances or any such
other amount) that is not paid when due (whether at stated maturity, by
acceleration or otherwise) from and including the due date thereof to but
excluding the date such amount is paid in full, in each such case, at the
interest rate per annum for each day equal to the Applicable Liquidity Rate (as
defined below) for such Advance or such other amount, as the case may be, as in
effect for such day, but in no event at a rate per annum greater than the
maximum rate permitted by applicable law, provided, however, that, if at any
time the otherwise applicable interest rate as set forth in this Section 3.07
shall exceed the maximum rate permitted by applicable law, then to the maximum
extent permitted by applicable law any subsequent reduction in such interest
rate will not reduce the rate of interest payable pursuant to this Section 3.07
below the maximum rate permitted by applicable law until the total amount of
interest accrued equals the absolute amount of interest that would have accrued
(without additional interest thereon) if such otherwise applicable interest rate
as set forth in this Section 3.07 had at all relevant times been in effect.
(b) Except as provided in Section 3.07(e), each Advance (other than an
Unapplied Non-Extension Advance) will be either a Base Rate Advance or a LIBOR
Advance as provided in this Section 3.07. Each such Advance will be a Base Rate
Advance for the period from the date of its borrowing to (but excluding) the
third Business Day following the Liquidity Provider's receipt of the Notice of
Borrowing for such Advance. Thereafter, such Advance shall be a LIBOR Advance;
provided that (i) a Provider Advance (other than an Unapplied Non-Extension
Advance) shall always be a LIBOR Advance unless the Borrower elects otherwise
and (ii) the Borrower (at the direction of the Controlling Party, so long as the
Liquidity Provider is not the Controlling Party) may (x) convert the Final
Advance into a Base Rate Advance on the last day of an Interest Period for such
Advance by giving the Liquidity Provider no less than four Business Days' prior
written notice of such election or (y) elect to maintain the Final Advance as a
Base Rate Advance by not requesting a conversion of the Final Advance to a LIBOR
Advance under Clause (5) of the applicable Notice of Borrowing (or, if, pursuant
to Section 2.06, such Final Advance is deemed to have been made without delivery
of a Notice of Borrowing, by requesting, prior to 11:00 a.m. (New York time) on
the first Business Day immediately following the Borrower's receipt of the
applicable Termination Notice, that such Final Advance not be converted from a
Base Rate Advance to a LIBOR Advance).
(c) Each LIBOR Advance shall bear interest during each Interest Period at
a rate per annum equal to the LIBOR Rate for such Interest Period plus the
Applicable Margin for such LIBOR Advance, payable in arrears on the last day of
such Interest Period and, in the event of the payment of principal of such LIBOR
Advance on a day other than such last day, on the date of such payment (to the
extent of interest accrued on the amount of principal repaid).
(d) Each Base Rate Advance shall bear interest at a rate per annum equal
to the Base Rate plus the Applicable Margin for such Base Rate Advance, payable
in arrears on each Regular Distribution Date and, in the event of the payment of
principal of such Base Rate Advance on a day other than a Regular Distribution
Date, on the date of such payment (to the extent of interest accrued on the
amount of principal repaid).
(e) Each outstanding Unapplied Non-Extension Advance shall bear interest
in an amount equal to the Investment Earnings on amounts on deposit in the Class
A-2 Cash Collateral Account plus the Applicable Margin for such Unapplied
Non-Extension Advance on the amount of such Unapplied Non-Extension Advance from
time to time, payable in arrears on each Regular Distribution Date.
(f) Each amount not paid when due hereunder (whether fees, commissions,
expenses or other amounts or, to the extent permitted by applicable law,
installments of interest on Advances but excluding Advances) shall bear interest
at a rate per annum equal to the Base Rate plus 2.0% per annum until paid.
(g) Each change in the Base Rate shall become effective immediately. The
rates of interest specified in this Section 3.07 with respect to any Advance or
other amount shall be referred to as the "APPLICABLE LIQUIDITY RATE".
Section 3.08. Replacement of Borrower. Subject to Section 5.02, from time
to time and subject to the successor Borrower's meeting the eligibility
requirements set forth in Section 6.09 of the Intercreditor Agreement applicable
to the Subordination Agent, upon the effective date and time specified in a
written and completed Notice of Replacement Subordination Agent in substantially
the form of Annex VI (a "NOTICE OF REPLACEMENT SUBORDINATION AGENT") delivered
to the Liquidity Provider by the then Borrower, the successor Borrower
designated therein shall become the Borrower for all purposes hereunder.
Section 3.09. Funding Loss Indemnification. The Borrower shall pay to the
Liquidity Provider, upon the request of the Liquidity Provider, such amount or
amounts as shall be sufficient (in the reasonable opinion of the Liquidity
Provider) to compensate it for any loss, cost or expense incurred by reason of
the liquidation or redeployment of deposits or other funds acquired by the
Liquidity Provider to fund or maintain any LIBOR Advance (but excluding loss of
the Applicable Margin or anticipated profits) incurred as a result of:
(1) Any repayment of a LIBOR Advance on a date other than the last
day of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance on the
date for borrowing specified in the relevant notice under Section 2.02.
Section 3.10. Illegality. Notwithstanding any other provision in this
Agreement, if any change in any law, rule or regulation applicable to or binding
on the Liquidity Provider, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by the
Liquidity Provider with any request or directive (whether or not having the
force of law) of any such authority, central bank or comparable agency shall
make it unlawful or impossible for the Liquidity Provider to maintain or fund
its LIBOR Advances, then upon notice to the Borrower and Delta by the Liquidity
Provider, the outstanding principal amount of the LIBOR Advances shall be
converted to Base Rate Advances (a) immediately upon demand of the Liquidity
Provider, if such change or compliance with such request, in the reasonable
judgment of the Liquidity Provider, requires immediate conversion; or (b) at the
expiration of the last Interest Period to expire before the effective date of
any such change or request. The Liquidity Provider will notify the Borrower and
Delta as promptly as practicable of any event that will or to its knowledge is
reasonably likely to lead to the conversion of LIBOR Advances to Base Rate
Advances under this Section 3.10, provided that a failure by the Liquidity
Provider to notify the Borrower or Delta of an event that is reasonably likely
to lead to such a conversion prior to the time that it is determined that such
event will lead to such a conversion shall not prejudice the rights of the
Liquidity Provider under this Section 3.10. The Liquidity Provider agrees to
investigate all commercially reasonable alternatives for avoiding the need for
such conversion, including, without limitation, designating a different Lending
Office, if such designation or other action would avoid the need to convert such
LIBOR Advances to Base Rate Advances; provided, that the foregoing shall not
obligate the Liquidity Provider to take any action that would, in its reasonable
judgment, cause the Liquidity Provider to incur any material loss or cost,
unless the Borrower or Delta agrees to reimburse or indemnify the Liquidity
Provider therefor. If no such designation or other action is effected, or, if
effected, fails to avoid the need for conversion of the LIBOR Advances to Base
Rate Advances, Delta may arrange for a Replacement Liquidity Facility in
accordance with Section 3.06(e) of the Intercreditor Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "EFFECTIVE DATE") on which the following conditions precedent have
been satisfied (or waived by the appropriate party or parties):
(a) The Liquidity Provider shall have received on or before the
Closing Date each of the following, and in the case of each document
delivered pursuant to paragraphs (i), (ii) and (iii), each in form and
substance satisfactory to the Liquidity Provider:
(i) This Agreement and the Fee Letter duly executed on behalf
of the Borrower and Delta, in the case of the Fee Letter;
(ii) The Intercreditor Agreement duly executed on behalf of
each of the parties thereto (other than the Liquidity Provider);
(iii) Fully executed copies of each of the Operative
Agreements executed and delivered on or before the Closing Date
(other than this Agreement, the Fee Letter and the Intercreditor
Agreement);
(iv) A copy of the Prospectus Supplement and specimen copies
of the Class A-2 Certificates;
(v) An executed copy of each document, instrument, certificate
and opinion delivered on or before the Closing Date pursuant to the
Class A-2 Trust Agreement, the Intercreditor Agreement and the other
Operative Agreements (in the case of each such opinion, either
addressed to the Liquidity Provider or accompanied by a letter from
the counsel rendering such opinion to the effect that the Liquidity
Provider is entitled to rely on such opinion as of its date as if it
were addressed to the Liquidity Provider); and
(vi) An agreement from Delta, pursuant to which (x) Delta
agrees to provide copies of quarterly financial statements and
audited annual financial statements to the Liquidity Provider
(which, in the case of quarterly financial statements, Delta may
provide in an electronic format by electronic mail or making such
available over the internet) and (y) Delta agrees to allow the
Liquidity Provider to discuss the transactions contemplated by the
Operative Agreements with officers and employees of Delta.
(b) On and as of the Effective Date no event shall have occurred and
be continuing, or would result from the entering into of this Agreement or
the making of any Advance, which constitutes a Liquidity Event of Default.
(c) The filings referred to in Sections 3.01(d) and 3.01(f) of the
Participation Agreements shall have been filed (or shall be in the process
of being filed).
(d) The Liquidity Provider shall have received payment in full of
the fees and other sums required to be paid to or for the account of the
Liquidity Provider on or prior to the Effective Date pursuant to the Fee
Letter.
(e) All conditions precedent to the issuance of the Certificates
under the Trust Agreements shall have been satisfied or waived, all
conditions precedent to the effectiveness of the other Liquidity
Facilities shall have been satisfied or waived, all conditions precedent
to the purchase of the Class A-1, Class A-2, Class B and Class C
Certificates by the Underwriters under the Underwriting Agreement shall
have been satisfied (unless any of such conditions precedent under the
Underwriting Agreement shall have been waived by the Underwriters), and
all conditions precedent to the purchase of the Class D Certificates by
the Initial Class D Holder shall have been satisfied.
(f) The Borrower and Delta shall have received a certificate, dated
the Effective Date signed by a duly authorized representative of the
Liquidity Provider, certifying that all conditions precedent specified in
this Section 4.01 have been satisfied or waived by the Liquidity Provider.
Section 4.02. Conditions Precedent to Borrowing. The obligation of the
Liquidity Provider to make an Advance on the occasion of each Borrowing shall be
subject to the conditions precedent that the Effective Date shall have occurred
and, prior to the time of such Borrowing, the Borrower shall have delivered a
Notice of Borrowing which conforms to the terms and conditions of this
Agreement.
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower. So long as any
Advance shall remain unpaid or the Liquidity Provider shall have any Maximum
Commitment hereunder or the Borrower shall have any obligation to pay any amount
to the Liquidity Provider hereunder, the Borrower will, unless the Liquidity
Provider shall otherwise consent in writing:
(a) Performance of Agreements. Punctually pay or cause to be paid
all amounts payable by it under this Agreement and the Intercreditor
Agreement and observe and perform in all material respects the conditions,
covenants and requirements applicable to it contained in this Agreement
and the Intercreditor Agreement.
(b) Reporting Requirements. Furnish to the Liquidity Provider with
reasonable promptness, such other information and data with respect to the
transactions contemplated by the Operative Agreements as from time to time
may be reasonably requested by the Liquidity Provider; and permit the
Liquidity Provider, upon reasonable notice, to inspect the Borrower's
books and records with respect to such transactions and to meet with
officers and employees of the Borrower to discuss such transactions.
(c) Certain Operative Agreements. Furnish to the Liquidity Provider
with reasonable promptness, copies of such Operative Agreements entered
into after the date hereof as from time to time may be reasonably
requested by the Liquidity Provider.
Section 5.02. Negative Covenants of the Borrower. Subject to the first and
fourth paragraphs of Section 7.01(a) of the Intercreditor Agreement and Section
7.01(b) of the Intercreditor Agreement, so long as any Advance shall remain
unpaid or the Liquidity Provider shall have any Maximum Commitment hereunder or
the Borrower shall have any obligation to pay any amount to the Liquidity
Provider hereunder, the Borrower will not appoint or permit or suffer to be
appointed any successor Borrower without the prior written consent of the
Liquidity Provider, which consent shall not be unreasonably withheld or delayed.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default. If (a) any Liquidity Event of
Default has occurred and is continuing and (b) there is a Performing Note
Deficiency, the Liquidity Provider may, in its discretion, deliver to the
Borrower a Termination Notice, the effect of which shall be to cause (i) this
Agreement to expire at the close of business on the fifth Business Day after the
date on which such Termination Notice is received by the Borrower, (ii) the
Borrower to promptly request, and the Liquidity Provider to promptly make, a
Final Advance in accordance with Section 2.02(d) hereof and Section 3.06(i) of
the Intercreditor Agreement, (iii) all other outstanding Advances to be
automatically converted into Final Advances for purposes of determining the
Applicable Liquidity Rate for interest payable thereon and (iv) subject to
Sections 2.07 and 2.09, all Advances, any accrued interest thereon and any other
amounts outstanding hereunder to become immediately due and payable to the
Liquidity Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.01. No Oral Modifications or Continuing Waivers. No terms or
provisions of this Agreement may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the Borrower and the
Liquidity Provider and any other Person whose consent is required pursuant to
this Agreement; provided that no such change or other action shall affect the
payment obligations of Delta or the rights of Delta without Delta's prior
written consent; and any waiver of the terms hereof shall be effective only in
the specific instance and for the specific purpose given.
Section 7.02. Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all notices, requests, demands, authorizations, directions,
consents, waivers or documents required or permitted under the terms and
provisions of this Agreement shall be in English and in writing, and given by
United States registered or certified mail, courier service or facsimile, and
any such notice shall be effective when delivered (or, if delivered by
facsimile, upon completion of transmission and confirmation by the sender (by a
telephone call to a representative of the recipient or by machine confirmation)
that such transmission was received) addressed as follows:
If to the Borrower, to:
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
225 Asylum Street, Goodwin Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Telephone: (860) 244-1844
Telecopy: (860) 244-1881
If to the Liquidity Provider, to:
LANDESBANK HESSEN-THURINGEN GIROZENTRALE
Main Tower
Neue Mainzer Str. 52-58
60311 Frankfurt am Main
Germany
Attention: Asset Finance
Telephone: 49-69-9132-4882
Telecopy: 49-69-9132-4392
With a copy to:
LANDESBANK HESSEN-THURINGEN
New York Branch
420 Fifth Avenue, 24th Floor
New York, NY 10018
Attention: Structured Finance/Michael Novack
Telephone: (212) 703-5224
Telecopy: (212) 703-5256
Any party, by notice to the other party hereto, may designate additional
or different addresses for subsequent notices or communications. Whenever the
words "notice" or "notify" or similar words are used herein, they mean the
provision of formal notice as set forth in this Section 7.02.
Section 7.03. No Waiver; Remedies. No failure on the part of the Liquidity
Provider to exercise, and no delay in exercising, any right under this Agreement
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right under this Agreement preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
Section 7.04. Further Assurances. The Borrower agrees to do such further
acts and things and to execute and deliver to the Liquidity Provider such
additional assignments, agreements, powers and instruments as the Liquidity
Provider may reasonably require or deem advisable to carry into effect the
purposes of this Agreement and the other Operative Agreements or to better
assure and confirm unto the Liquidity Provider its rights, powers and remedies
hereunder and under the other Operative Agreements.
Section 7.05. Indemnification; Survival of Certain Provisions. The
Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Section 4.02 of the Participation Agreements. In addition,
the Borrower agrees to indemnify, protect, defend and hold harmless each
Liquidity Indemnitee from and against all Expenses of any kind or nature
whatsoever (other than any Expenses of the nature described in Sections 3.01 or
7.07 or in the Fee Letter (regardless of whether indemnified against pursuant to
said Sections or in such Fee Letter)), that may be imposed on or incurred by
such Liquidity Indemnitee, in any way relating to, resulting from, or arising
out of or in connection with, any action, suit or proceeding by any third party
against such Liquidity Indemnitee and relating to this Agreement, the Fee
Letter, the Intercreditor Agreement or any Participation Agreement; provided,
however, that the Borrower shall not be required to indemnify, protect, defend
and hold harmless any Liquidity Indemnitee in respect of any Expense of such
Liquidity Indemnitee to the extent such Expense is (i) attributable to the
negligence or willful misconduct of such Liquidity Indemnitee or any other
Liquidity Indemnitee, (ii) an ordinary and usual operating overhead expense,
(iii) attributable to the failure by such Liquidity Indemnitee or any other
Liquidity Indemnitee to perform or observe any agreement, covenant or condition
on its part to be performed or observed in this Agreement, the Intercreditor
Agreement, the Fee Letter or any other Operative Agreement to which it is a
party or (iv) otherwise excluded from the indemnification provisions contained
in Section 4.02 of the Participation Agreements. The provisions of Sections
3.01, 3.03, 3.09, 7.05 and 7.07 and the indemnities contained in Section 4.02 of
the Participation Agreements shall survive the termination of this Agreement.
Section 7.06. Liability of the Liquidity Provider. (a) Neither the
Liquidity Provider nor any of its officers, employees or directors shall be
liable or responsible for: (i) the use which may be made of the Advances or any
acts or omissions of the Borrower or any beneficiary or transferee in connection
therewith; (ii) the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in any or all
respects invalid, insufficient, fraudulent or forged; or (iii) the making of
Advances by the Liquidity Provider against delivery of a Notice of Borrowing and
other documents which do not comply with the terms hereof; provided, however,
that the Borrower shall have a claim against the Liquidity Provider, and the
Liquidity Provider shall be liable to the Borrower, to the extent of any damages
suffered by the Borrower that were the result of (A) the Liquidity Provider's
willful misconduct or gross negligence in determining whether documents
presented hereunder comply with the terms hereof or (B) any breach by the
Liquidity Provider of any of the terms of this Agreement or the Intercreditor
Agreement, including, but not limited to, the Liquidity Provider's failure to
make lawful payment hereunder after the delivery to it by the Borrower of a
Notice of Borrowing complying with the terms and conditions hereof.
(b) Neither the Liquidity Provider nor any of its officers, employees or
directors or affiliates shall be liable or responsible in any respect for (i)
any error, omission, interruption or delay in transmission, dispatch or delivery
of any message or advice, however transmitted, in connection with this Agreement
or any Notice of Borrowing delivered hereunder or (ii) any action, inaction or
omission which may be taken by it in good faith, absent willful misconduct or
negligence (in which event the extent of the Liquidity Provider's potential
liability to the Borrower shall be limited as set forth in the immediately
preceding paragraph), in connection with this Agreement or any Notice of
Borrowing.
Section 7.07. Certain Costs and Expenses. The Borrower agrees promptly to
pay, or cause to be paid, (a) the reasonable fees, expenses and disbursements of
Pillsbury Winthrop LLP, special counsel for the Liquidity Provider, in
connection with the preparation, negotiation, execution, delivery, filing and
recording of the Operative Agreements, any waiver or consent thereunder or any
amendment thereof and (b) if a Liquidity Event of Default occurs, all
out-of-pocket expenses incurred by the Liquidity Provider, including reasonable
fees and disbursements of counsel, in connection with such Liquidity Event of
Default and any collection, bankruptcy, insolvency and other enforcement
proceedings in connection therewith. In addition, the Borrower shall pay any and
all recording, stamp and other similar taxes and fees payable or determined to
be payable in the United States in connection with the execution, delivery,
filing and recording of this Agreement, any other Operative Agreement and such
other documents, and agrees to save the Liquidity Provider harmless from and
against any and all liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes or fees.
Section 7.08. Binding Effect; Participations. (a) This Agreement shall be
binding upon and inure to the benefit of the Borrower and the Liquidity Provider
and their respective successors and permitted assigns, except that neither the
Liquidity Provider (except as otherwise provided in this Section 7.08) nor
(except as contemplated by Section 3.08) the Borrower shall have the right to
assign, pledge or otherwise transfer its rights or obligations hereunder or any
interest herein, subject to the Liquidity Provider's right to grant
Participations pursuant to Section 7.08(b).
(b) The Liquidity Provider agrees that it will not grant any participation
(including, without limitation, a "RISK PARTICIPATION") (any such participation,
a "PARTICIPATION") in or to all or a portion of its rights and obligations
hereunder or under the other Operative Agreements, unless all of the following
conditions are satisfied: (i) such Participation is to a Permitted Transferee,
(ii) such Participation is made in accordance with all applicable laws,
including, without limitation, the Securities Act of 1933, as amended, the Trust
Indenture Act of 1939, as amended, and any other applicable laws relating to the
transfer of similar interests and (iii) such Participation shall not be made
under circumstances that require registration under the Securities Act of 1933,
as amended, or qualification of any indenture under the Trust Indenture Act of
1939, as amended. Notwithstanding any such Participation, the Liquidity Provider
agrees that (1) the Liquidity Provider's obligations under the Operative
Agreements shall remain unchanged, and such participant shall have no rights or
benefits as against Delta or the Borrower or under any Operative Agreement, (2)
the Liquidity Provider shall remain solely responsible to the other parties to
the Operative Agreements for the performance of such obligations, (3) the
Liquidity Provider shall remain the maker of any Advances, and the other parties
to the Operative Agreements shall continue to deal solely and directly with the
Liquidity Provider in connection with the Advances and the Liquidity Provider's
rights and obligations under the Operative Agreements, (4) the Liquidity
Provider shall be solely responsible for any withholding Taxes or any filing or
reporting requirements relating to such Participation and shall hold the
Borrower and Delta and their respective successors, permitted assigns,
affiliates, agents and servants harmless against the same and (5) neither Delta
nor the Borrower shall be required to pay to the Liquidity Provider any amount
under Section 3.01 or Section 3.03 greater than it would have been required to
pay had there not been any grant of a Participation by the Liquidity Provider.
The Liquidity Provider may, in connection with any Participation or proposed
Participation pursuant to this Section 7.08(b), disclose to the participant or
proposed participant any information relating to the Operative Agreements or to
the parties thereto furnished to the Liquidity Provider thereunder or in
connection therewith and permitted to be disclosed by the Liquidity Provider;
provided, however, that prior to any such disclosure, the participant or
proposed participant shall agree in writing for the express benefit of the
Borrower and Delta to preserve the confidentiality of any confidential
information included therein (subject to customary exceptions).
(c) Notwithstanding the other provisions of this Section 7.08, the
Liquidity Provider may assign and pledge all or any portion of the Advances
owing to it to any Federal Reserve Bank or the United States Treasury as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank, provided that any payment in respect of such assigned Advances made by the
Borrower to the Liquidity Provider in accordance with the terms of this
Agreement shall satisfy the Borrower's obligations hereunder in respect of such
assigned Advance to the extent of such payment. No such assignment shall release
the Liquidity Provider from its obligations hereunder.
Section 7.09. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 7.10. Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN THE
STATE OF NEW YORK AND THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of
Immunity. (a) Each of the parties hereto, to the extent it may do so under
applicable law, for purposes hereof hereby (i) irrevocably submits itself to the
non-exclusive jurisdiction of the courts of the State of New York sitting in the
City of New York and to the non-exclusive jurisdiction of the United States
District Court for the Southern District of New York, for the purposes of any
suit, action or other proceeding arising out of this Agreement, the subject
matter hereof or any of the transactions contemplated hereby brought by any
party or parties hereto or thereto, or their successors or permitted assigns and
(ii) waives, and agrees not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper or that this Agreement or the subject matter
hereof or any of the transactions contemplated hereby may not be enforced in or
by such courts.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE TO WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO
THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING
ESTABLISHED, including, without limitation, contract claims, tort claims, breach
of duty claims and all other common law and statutory claims. The Borrower and
the Liquidity Provider each warrant and represent that it has reviewed this
waiver with its legal counsel, and that it knowingly and voluntarily waives its
jury trial rights following consultation with such legal counsel. THIS WAIVER IS
IRREVOCABLE, AND CANNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT.
(c) The Liquidity Provider hereby waives any immunity it may have from the
jurisdiction of the courts of the United States or of any state thereof and
waives any immunity any of its properties located in the United States may have
from attachment or execution upon a judgment entered by any such court under the
United States Foreign Sovereign Immunities Act of 1976 or any similar successor
legislation.
Section 7.12. Counterparts. This Agreement may be executed in any number
of counterparts (and each party shall not be required to execute the same
counterpart). Each counterpart of this Agreement including a signature page or
pages executed by each of the parties hereto shall be an original counterpart of
this Agreement, but all of such counterparts together shall constitute one
instrument.
Section 7.13. Entirety. This Agreement and the Intercreditor Agreement
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof and supersede all prior understandings and agreements of
such parties.
Section 7.14. Headings. The headings of the various Articles and Sections
herein and in the Table of Contents hereto are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
Section 7.15. Liquidity Provider's Obligation to Make Advances. EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE LIQUIDITY PROVIDER
TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO DELIVER NOTICES OF
BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL BE ABSOLUTE,
UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE
STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first set forth above.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Subordination Agent,
as agent and trustee for the Class A-2
Trust, as Borrower
By:
---------------------------------------
Name:
Title:
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as Liquidity Provider
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
ANNEX I to
REVOLVING CREDIT AGREEMENT
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower
(the "BORROWER"), hereby certifies to LANDESBANK HESSEN-THURINGEN GIROZENTRALE
(the "LIQUIDITY PROVIDER"), with reference to the Revolving Credit Agreement
(2001-1A-2), dated as of September 17, 2001, between the Borrower and the
Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined or referenced),
that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of an Interest Advance by the Liquidity Provider to be used for the
payment of the interest on the Class A-2 Certificates which is payable on
____________, ____ (the "DISTRIBUTION DATE") in accordance with the terms
and provisions of the Class A-2 Trust Agreement and the Class A-2
Certificates, which Advance is requested to be made on ____________, ____.
The Interest Advance should be remitted to [insert wire and account
details].
(3) The amount of the Interest Advance requested hereby (i) is
$_______________.__, to be applied in respect of the payment of the
interest which is due and payable on the Class A-2 Certificates on the
Distribution Date, (ii) does not include any amount with respect to the
payment of principal of, or premium on, the Class A-1 Certificates, the
Class A-2 Certificates, the Class B Certificates, the Class C Certificates
or the Class D Certificates, or interest on the Class A-1 Certificates,
the Class B Certificates, the Class C Certificates or the Class D
Certificates, (iii) was computed in accordance with the provisions of the
Class A-2 Certificates, the Class A-2 Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I), (iv) does not exceed the Maximum Available Commitment on the
date hereof and (v) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will apply the same in accordance with
the terms of Section 3.06(b) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, the making of the Interest Advance as requested by this Notice of
Borrowing shall automatically reduce, subject to reinstatement in accordance
with the terms of the Liquidity Agreement, the Maximum Available Commitment by
an amount equal to the amount of the Interest Advance requested to be made
hereby as set forth in clause (i) of paragraph (3) of this Notice of Borrowing
and such reduction shall automatically result in corresponding reductions in the
amounts available to be borrowed pursuant to a subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest Advance Notice of
Borrowing]
ANNEX II to
REVOLVING CREDIT AGREEMENT
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
subordination agent (the "BORROWER"), hereby certifies to LANDESBANK
HESSEN-THURINGEN GIROZENTRALE (the "LIQUIDITY PROVIDER"), with reference to the
Revolving Credit Agreement (2001-1A-2), dated as of September 17, 2001, between
the Borrower and the Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined or referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Non-Extension Advance by the Liquidity Provider to be used
for the funding of the Class A-2 Cash Collateral Account in accordance
with Section 3.06(d) of the Intercreditor Agreement, which Advance is
requested to be made on __________, ____. The Non-Extension Advance should
be remitted to [insert wire and account details].
(3) The amount of the Non-Extension Advance requested hereby (i) is
$_______________.__, which equals the Maximum Available Commitment on the
date hereof and is to be applied in respect of the funding of the Class
A-2 Cash Collateral Account in accordance with Sections 3.06(d) and
3.06(f) of the Intercreditor Agreement, (ii) does not include any amount
with respect to the payment of the principal of, or premium on, the Class
A-2 Certificates, or principal of, or interest or premium on, the Class
A-1 Certificates, the Class B Certificates, the Class C Certificates or
the Class D Certificates, (iii) was computed in accordance with the
provisions of the Class A-2 Certificates, the Class A-2 Trust Agreement
and the Intercreditor Agreement (a copy of which computation is attached
hereto as Schedule I) and (iv) has not been and is not the subject of a
prior or contemporaneous Notice of Borrowing under the Liquidity
Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Class
A-2 Cash Collateral Account and apply the same in accordance with the
terms of Sections 3.06(d) and 3.06(f) of the Intercreditor Agreement, (b)
no portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Non-Extension Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the obligation
of the Liquidity Provider to make further Advances under the Liquidity Agreement
and (B) following the making by the Liquidity Provider of the Non-Extension
Advance requested by this Notice of Borrowing, the Borrower shall not be
entitled to request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Non-Extension Advance Notice
of Borrowing]
ANNEX III to
REVOLVING CREDIT AGREEMENT
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
subordination agent (the "BORROWER"), hereby certifies to LANDESBANK
HESSEN-THURINGEN GIROZENTRALE (the "LIQUIDITY PROVIDER"), with reference to the
Revolving Credit Agreement (2001-1A-2), dated as of September __, 2001, between
the Borrower and the Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined or referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Downgrade Advance by the Liquidity Provider to be used for
the funding of the Class A-2 Cash Collateral Account in accordance with
Section 3.06(c) of the Intercreditor Agreement by reason of the
downgrading of the short-term unsecured debt rating or long-term unsecured
debt rating of the Liquidity Provider issued by either Rating Agency below
the Threshold Rating, which Advance is requested to be made on __________,
____. The Downgrade Advance should be remitted to [insert wire and account
details].
(3) The amount of the Downgrade Advance requested hereby (i) is
$_______________.__, which equals the Maximum Available Commitment on the
date hereof and is to be applied in respect of the funding of the Class
A-2 Cash Collateral Account in accordance with Sections 3.06(c) and
3.06(f) of the Intercreditor Agreement, (ii) does not include any amount
with respect to the payment of the principal of, or premium on, the Class
A-2 Certificates, or principal of, or interest or premium on, the Class
A-1 Certificates, the Class B Certificates, the Class C Certificates or
the Class D Certificates, (iii) was computed in accordance with the
provisions of the Class A-2 Certificates, the Class A-2 Trust Agreement
and the Intercreditor Agreement (a copy of which computation is attached
hereto as Schedule I) and (iv) has not been and is not the subject of a
prior or contemporaneous Notice of Borrowing under the Liquidity
Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Class
A-2 Cash Collateral Account and apply the same in accordance with the
terms of Sections 3.06(c) and 3.06(f) of the Intercreditor Agreement, (b)
no portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Downgrade Advance as requested by this Notice
of Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement and
(B) following the making by the Liquidity Provider of the Downgrade Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Downgrade Advance Notice of
Borrowing]
ANNEX IV to
REVOLVING CREDIT AGREEMENT
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower
(the "BORROWER"), hereby certifies to LANDESBANK HESSEN-THURINGEN GIROZENTRALE
(the "LIQUIDITY PROVIDER"), with reference to the Revolving Credit Agreement
(2001-1A-2), dated as of September 17, 2001, between the Borrower and the
Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined or referenced),
that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Final Advance by the Liquidity Provider to be used for the
funding of the Class A-2 Cash Collateral Account in accordance with
Section 3.06(i) of the Intercreditor Agreement by reason of the receipt by
the Borrower of a Termination Notice from the Liquidity Provider with
respect to the Liquidity Agreement, which Advance is requested to be made
on ____________, ____. The Final Advance should be remitted to [insert
wire and account details].
(3) The amount of the Final Advance requested hereby (i) is
$_________________.__, which equals the Maximum Available Commitment on
the date hereof and is to be applied in respect of the funding of the
Class A-2 Cash Collateral Account in accordance with Sections 3.06(f) and
3.06(i) of the Intercreditor Agreement, (ii) does not include any amount
with respect to the payment of principal of, or premium on, the Class A-2
Certificates, or principal of, or interest or premium on, the Class A-1
Certificates, the Class B Certificates, the Class C Certificates or the
Class D Certificates, (iii) was computed in accordance with the provisions
of the Class A-2 Certificates, the Class A-2 Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I) and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Class
A-2 Cash Collateral Account and apply the same in accordance with the
terms of Sections 3.06(f) and 3.06(i) of the Intercreditor Agreement, (b)
no portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
(5) [The Borrower hereby requests that the Advance requested hereby
be a Base Rate Advance [and that such Base Rate Advance be converted into
a LIBOR Advance on the third Business Day following your receipt of this
notice]*.]
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Final Advance as requested by this Notice of
Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement and
(B) following the making by the Liquidity Provider of the Final Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
----------
[* Bracketed language may be included at Borrower's option.]
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Final Advance Notice of
Borrowing]
ANNEX V to
REVOLVING CREDIT AGREEMENT
NOTICE OF TERMINATION
[Date]
State Street Bank and Trust
Company of Connecticut,
National Association, as
Subordination Agent, as
Borrower
225 Asylum Street
Goodwin Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Re: Revolving Credit Agreement, dated as of September 17,
2001, between State Street Bank and Trust Company of
Connecticut, National Association, as Subordination
Agent, as agent and trustee for the Delta Air Lines
Pass Through Trust 2001-1A-2, as Borrower, and
Landesbank Hessen-Thuringen Girozentrale (the
"LIQUIDITY AGREEMENT")
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.01 of the Liquidity
Agreement, by reason of the occurrence and continuance of a Liquidity Event of
Default and the existence of a Performing Note Deficiency (each as defined
therein), we are giving this notice to you in order to cause (i) our obligations
to make Advances (as defined therein) under such Liquidity Agreement to
terminate at the close of business on the fifth Business Day after the date on
which you receive this notice and (ii) you to request a Final Advance under the
Liquidity Agreement pursuant to Section 3.06(i) of the Intercreditor Agreement
(as defined in the Liquidity Agreement) as a consequence of your receipt of this
notice.
THIS NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR UNDER THE
LIQUIDITY AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY
AGREEMENT WILL TERMINATE AT THE
CLOSE OF BUSINESS ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU RECEIVE
THIS NOTICE.
Very truly yours,
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as Liquidity Provider
By:
------------------------------------
Name:
Title:
cc: State Street Bank and Trust Company of Connecticut,
National Association, as Class A-2 Trustee
ANNEX VI to
REVOLVING CREDIT AGREEMENT
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Re: Revolving Credit Agreement, dated as of September 17, 2001, between State
Street Bank and Trust Company of Connecticut, National Association, as
Subordination Agent, as agent and trustee for the Delta Air Lines Pass
Through Trust 2001-1A-2, as Borrower, and Landesbank Hessen-Thuringen
Girozentrale (the "LIQUIDITY AGREEMENT")
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
[Name of Transferee]
[Address of Transferee]
all rights and obligations of the undersigned as Borrower under the Liquidity
Agreement referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the first
paragraph of the Liquidity Agreement, pursuant to the terms of Section 7.01 of
the Intercreditor Agreement.
By this transfer, all rights of the undersigned as Borrower under the
Liquidity Agreement are transferred to the transferee and the transferee shall
hereafter have the sole rights and obligations as Borrower thereunder. The
undersigned shall pay any costs and expenses of such transfer, including, but
not limited to, transfer taxes or governmental charges.
This transfer shall be effective as of [specify time and date].
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
EX-4.(C)(3)
12
de600102-ex4c3.txt
REVOLVING CREDIT AGREEMENT (2001-1B)
EXHIBIT 4(c)(3)
EXECUTION COPY
REVOLVING CREDIT AGREEMENT
(2001-1B)
Dated as of September 17, 2001
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Subordination Agent,
as agent and trustee for the trustee of
Delta Air Lines Pass Through Trust 2001-1B,
as Borrower
and
LANDESBANK HESSEN-THURINGEN GIROZENTRALE
as Liquidity Provider
Delta Air Lines Pass Through Trust 2001-1B
7.711% Delta Air Lines
Pass Through Certificates,
Series 2001-1B
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Definitions...................................................
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances..................................................
Section 2.02. Making of Advances............................................
Section 2.03. Fees..........................................................
Section 2.04. Reduction or Termination of the Maximum Commitment............
Section 2.05. Repayments of Interest Advances or the Final Advance..........
Section 2.06. Repayments of Provider Advances...............................
Section 2.07. Payments to the Liquidity Provider Under the Intercreditor
Agreement.....................................................
Section 2.08. Book Entries..................................................
Section 2.09. Payments from Available Funds Only............................
Section 2.10. Extension of the Expiry Date; Non-Extension Advance...........
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs...............................................
Section 3.02. [Intentionally omitted.]......................................
Section 3.03. Withholding Taxes.............................................
Section 3.04. Payments......................................................
Section 3.05. Computations..................................................
Section 3.06. Payment on Non-Business Days..................................
Section 3.07. Interest......................................................
Section 3.08. Replacement of Borrower.......................................
Section 3.09. Funding Loss Indemnification..................................
Section 3.10. Illegality....................................................
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01.........
Section 4.02. Conditions Precedent to Borrowing.............................
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower.........................
Section 5.02. Negative Covenants of the Borrower............................
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default...................................
ARTICLE VII
MISCELLANEOUS
Section 7.01. No Oral Modifications or Continuing Waivers...................
Section 7.02. Notices.......................................................
Section 7.03. No Waiver; Remedies...........................................
Section 7.04. Further Assurances............................................
Section 7.05. Indemnification; Survival of Certain Provisions...............
Section 7.06. Liability of the Liquidity Provider...........................
Section 7.07. Certain Costs and Expenses....................................
Section 7.08. Binding Effect; Participations................................
Section 7.09. Severability..................................................
Section 7.10. Governing Law.................................................
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of
Immunity......................................................
Section 7.12. Counterparts..................................................
Section 7.13. Entirety......................................................
Section 7.14. Headings......................................................
Section 7.15. Liquidity Provider's Obligation to Make Advances..............
Annex I - Interest Advance Notice of Borrowing
Annex II - Non-Extension Advance Notice of Borrowing
Annex III - Downgrade Advance Notice of Borrowing
Annex IV - Final Advance Notice of Borrowing
Annex V - Notice of Termination
Annex VI - Notice of Replacement Subordination Agent
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT, dated as of September 17, 2001, is made
by and between STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity but
solely as Subordination Agent (such term and other capitalized terms used herein
without definition being defined as provided in Article I) under the
Intercreditor Agreement (as defined below), as agent and trustee for the Class B
Trustee (in such capacity, together with its successors in such capacity, the
"BORROWER"), and LANDESBANK HESSEN-THURINGEN GIROZENTRALE ("Helaba"), a banking
institution organized under the laws of Germany (the "LIQUIDITY PROVIDER").
W I T N E S S E T H:
WHEREAS, pursuant to the Class B Trust Agreement, the Class B Trust is
issuing the Class B Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a portion
of the interest on the Class B Certificates in accordance with their terms, has
requested the Liquidity Provider to enter into this Agreement, providing in part
for the Borrower to request in specified circumstances that Advances be made
hereunder;
NOW, THEREFORE, in consideration of the 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. (a) The definitions stated herein apply equally
to both the singular and the plural forms of the terms defined.
(b) All references in this Agreement to designated "Articles", "Sections",
"Annexes" and other subdivisions are to the designated Article, Section, Annex
or other subdivision of this Agreement, unless otherwise specifically stated.
(c) 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, Annex or other subdivision.
(d) 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".
(e) For the purposes of this Agreement, unless the context otherwise
requires, the following capitalized terms shall have the following meanings:
"ADVANCE" means an Interest Advance, a Final Advance, a Provider
Advance, an Unapplied Provider Advance, an Applied Provider Advance or an
Unpaid Advance, as the case may be.
"AGREEMENT" means this Agreement, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
"APPLICABLE LIQUIDITY RATE" has the meaning specified in Section
3.07(g).
"APPLICABLE MARGIN" means (a) with respect to any Unpaid Advance or
Applied Provider Advance, 1.50% per annum, or (b) with respect to any
Unapplied Provider Advance, the rate per annum specified in the Fee Letter
applicable to this Agreement.
"APPLIED DOWNGRADE ADVANCE" has the meaning specified in Section
2.06(a).
"APPLIED NON-EXTENSION ADVANCE" has the meaning specified in Section
2.06(a).
"APPLIED PROVIDER ADVANCE" means an Applied Downgrade Advance or an
Applied Non-Extension Advance.
"BASE RATE" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers,
as published for each day in the period for which the Base Rate is to be
determined (or, if such day is not a Business Day, for the preceding
Business Day) by the Federal Reserve Bank of New York, or if such rate is
not so published for any day that is a Business Day, the average of the
quotations for such day for such transactions received by the Liquidity
Provider from three Federal funds brokers of recognized standing selected
by it (and reasonably satisfactory to Delta) plus one-quarter of one
percent (0.25%).
"BASE RATE ADVANCE" means an Advance that bears interest at a rate
based upon the Base Rate.
"BORROWER" has the meaning specified in the introductory paragraph
to this Agreement.
"BORROWING" means the making of Advances requested by delivery of a
Notice of Borrowing.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a
day on which commercial banks are required or authorized to close in New
York, New York, Atlanta, Georgia, or, so long as any Class B Certificate
is outstanding, the city and state in which the Class B Trustee, the
Borrower or any related Loan Trustee maintains its Corporate Trust Office
or receives or disburses funds, and, if the applicable Business Day
relates to any Advance or other amount bearing interest based on the LIBOR
Rate, on which dealings are carried on in the London interbank market.
"CONSENT PERIOD" has the meaning specified in Section 2.10.
"COVERED TAXES" means any Taxes imposed by the United States or any
political subdivision or taxing authority thereof or therein required by
law to be deducted or withheld from any amounts payable to the Liquidity
Provider under this Agreement other than (i) any Tax on, based on or
measured by net income, franchises or conduct of business, (ii) any Tax
imposed, levied, withheld or assessed as a result of any connection
between the Liquidity Provider and the United States or such political
subdivision or taxing authority, other than a connection arising solely
from the Liquidity Provider's having executed, delivered, performed its
obligations or received a payment under, or enforced, any Operative
Agreement, (iii) any Tax attributable to the inaccuracy in or breach by
the Liquidity Provider of any of its representations, warranties or
covenants contained in any Operative Agreement to which it is a party or
the inaccuracy of any form or document furnished pursuant thereto, (iv)
any withholding Taxes imposed by the United States except to the extent
such withholding Taxes would not have been required to be deducted or
withheld from payments hereunder but for a change after the date hereof
(or in the case of a successor Liquidity Provider (including a transferee
of an Advance) after the date on which such successor Liquidity Provider
obtains its interest) in applicable law (excluding from "change in
applicable law" for this purpose, a change in an applicable treaty or
other change in law affecting the applicability of a treaty other than the
applicable income tax treaty between the United States of America and the
Federal Republic of Germany ("German Treaty") (except an addition to, or
change in any "anti-treaty shopping", "limitation of benefits" or similar
provision in such German Treaty)), (v) any withholding Taxes imposed by
the United States which are imposed or increased as a result of the
Liquidity Provider failing to deliver to the Borrower any certificate or
document (which certificate or document in the good faith judgment of the
Liquidity Provider, it is legally entitled to provide) which is reasonably
requested by the Borrower to establish that payments under this Agreement
are exempt from (or entitled to a reduced rate of) withholding Tax, or
(vi) any change in the Lending Office without the prior written consent of
Delta (such consent not to be unreasonably withheld).
"DOWNGRADE ADVANCE" means an Advance made pursuant to Section
2.02(c).
"DOWNGRADE EVENT" means a downgrading of the Liquidity Provider's
short-term unsecured debt rating issued by either Rating Agency (or if the
Liquidity Provider does not have a short-term unsecured debt rating issued
by a given Rating Agency, the long-term unsecured debt rating issued by
such Rating Agency) below the applicable Threshold Rating unless each
Rating Agency shall have confirmed in writing on or prior to the date of
such downgrading that such downgrading will not result in the downgrading,
withdrawal or suspension of the ratings of the Class B Certificates, in
which case, such downgrading of the Liquidity Provider's short-term
unsecured debt rating shall not constitute a Downgrade Event and shall be
referred to herein as a "HELABA DOWNGRADE".
"EFFECTIVE DATE" has the meaning specified in Section 4.01. The
delivery of the certificate of the Liquidity Provider contemplated by
Section 4.01(f) shall be conclusive evidence that the Effective Date has
occurred.
"EXCLUDED TAXES" means (a) Taxes imposed on the overall net income
of the Liquidity Provider, (b) Covered Taxes that are indemnified pursuant
to Section 3.03 hereof, and (c) Taxes described in clauses (i) through
(vi) in the definition of "Covered Taxes".
"EXPENSES" means liabilities, losses, damages, costs and expenses
(including, without limitation, reasonable fees and disbursements of legal
counsel), provided that Expenses shall not include any Taxes other than
sales, use and V.A.T. taxes imposed on fees and expenses payable pursuant
to Section 7.07.
"EXPIRY DATE" means September 15, 2002, initially, or any date to
which the Expiry Date is extended pursuant to Section 2.10.
"FINAL ADVANCE" means an Advance made pursuant to Section 2.02(d).
"HELABA DOWNGRADE" has the meaning assigned to such term in the
definition of "Downgrade Event".
"INCREASED COST" has the meaning specified in Section 3.01.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement, dated
as of the date hereof, among the Trustees, the Liquidity Provider, the
liquidity provider under each Liquidity Facility (other than this
Agreement) and the Subordination Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
"INTEREST ADVANCE" means an Advance made pursuant to Section
2.02(a).
"INTEREST PERIOD" means, with respect to any LIBOR Advance, each of
the following periods:
(i) the period beginning on the third Business Day following
either (A) the Liquidity Provider's receipt of the Notice of
Borrowing for such LIBOR Advance or (B) the date of the withdrawal
of funds from the Class B Cash Collateral Account for the purpose of
paying interest on the Class B Certificates as contemplated by
Section 2.06(a) hereof and, in each case, ending on the next
numerically corresponding day in the first calendar month after the
first day of the applicable Interest Period; and
(ii) each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the numerically
corresponding day in the first calendar month after the first day of
the applicable Interest Period;
provided, however, that if (x) the Final Advance shall have been made
pursuant to Section 2.02(d) or (y) other outstanding Advances shall have
been converted into the Final Advance pursuant to Section 6.01, then the
Interest Periods shall be successive periods of one month beginning on the
third Business Day following the Liquidity Provider's receipt of the
Notice of Borrowing for such Final Advance (in the case of clause (x)
above) or the Regular Distribution Date following such conversion (in the
case of clause (y) above).
"LENDING OFFICE" means the lending office of the Liquidity Provider
presently located at Frankfurt, Germany, or such other lending office as
the Liquidity Provider from time to time shall notify the Borrower as its
lending office hereunder; provided that the Liquidity Provider shall not
change its Lending Office without the prior written consent of Delta (such
consent not to be unreasonably withheld).
"LIBOR ADVANCE" means an Advance bearing interest at a rate based
upon the LIBOR Rate.
"LIBOR RATE" means, with respect to any Interest Period, (a) the
interest rate per annum equal to the rate per annum at which deposits in
Dollars are offered in the London interbank market as shown on Page 3750
of the Telerate Systems Incorporated screen service (or such other page as
may replace Telerate Page 3750), or if such service is not available, Page
LIBO of the Reuters Money Service Monitor System (or such other page as
may replace Reuters Page LIBO) at approximately 11:00 a.m. (London time)
on the day that is two Business Days prior to the first day of such
Interest Period, for a period comparable to such Interest Period, or (b)
if no such rate is published on either such service or if neither of such
services is then available, the interest rate per annum equal to the
average (rounded up, if necessary, to the nearest 1/100th of 1%) of the
rates at which deposits in Dollars are offered by the Reference Banks (or,
if fewer than all of the Reference Banks are quoting a rate for deposits
in Dollars for the applicable period and amount, such fewer number of
Reference Banks) at approximately 11:00 a.m. (London time) on the day that
is two Business Days prior to the first day of such Interest Period to
prime banks in the London interbank market for a period comparable to such
Interest Period and in an amount approximately equal to the principal
amount of the LIBOR Advance to be outstanding during such Interest Period,
or (c) if none of the Reference Banks is quoting a rate for deposits in
Dollars in the London interbank market for such a period and amount, the
interest rate per annum equal to the average (rounded up, if necessary, to
the nearest 1/100th of 1%) of the rates at which deposits in Dollars are
offered by the principal New York offices of the Reference Banks (or, if
fewer than all of the Reference Banks are quoting a rate for deposits in
Dollars in the New York interbank market for the applicable period and
amount, such fewer number of Reference Banks) at approximately 11:00 a.m.
(New York time) on the day that is two Business Days prior to the first
day of such Interest Period to prime banks in the New York interbank
market for a period comparable to such Interest Period and in an amount
approximately equal to the principal amount of the LIBOR Advance to be
outstanding during such Interest Period, or (d) if none of the principal
New York offices of the Reference Banks is quoting a rate for deposits in
Dollars in the New York interbank market for the applicable period and
amount, the Base Rate.
"LIQUIDITY EVENT OF DEFAULT" means the occurrence of either (a) the
Acceleration of all of the Equipment Notes or (b) a Delta Bankruptcy
Event.
"LIQUIDITY INDEMNITEE" means the Liquidity Provider, its directors,
officers, employees and agents, and its successors and permitted assigns.
"LIQUIDITY PROVIDER" has the meaning specified in the introductory
paragraph to this Agreement.
"MAXIMUM AVAILABLE COMMITMENT" means, subject to the proviso
contained in the third sentence of Section 2.02(a), at any time of
determination, (a) the Maximum Commitment at such time less (b) the
aggregate amount of each Interest Advance outstanding at such time;
provided that following a Provider Advance or a Final Advance, the Maximum
Available Commitment shall be zero.
"MAXIMUM COMMITMENT" means $23,995,104.79 as the same may be reduced
from time to time in accordance with Section 2.04(a).
"NON-EXTENSION ADVANCE" means an Advance made pursuant to Section
2.02(b).
"NOTICE OF BORROWING" has the meaning specified in Section 2.02(e).
"NOTICE OF REPLACEMENT SUBORDINATION AGENT" has the meaning
specified in Section 3.08.
"PARTICIPATION" has the meaning specified in Section 7.08(b).
"PERFORMING NOTE DEFICIENCY" means any time that less than 65% of
the then aggregate outstanding principal amount of all Equipment Notes are
Performing Equipment Notes.
"PERMITTED TRANSFEREE" means any Person that:
(a) is not a commercial air carrier, Delta or any affiliate of
Delta; and
(b) is any one of:
(1) a commercial banking institution organized under the
laws of the United States or any state thereof or the District
of Columbia;
(2) a commercial banking institution that (x) is
organized under the laws of France, Germany, The Netherlands,
Switzerland or the United Kingdom, (y) is entitled on the date
it acquires any Participation to a complete exemption from
United States federal income taxes for all income derived by
it from the transactions contemplated by the Operative
Agreements under an income tax treaty, as in effect on such
date, between the United States and such jurisdiction of its
organization and (z) is engaged in the active conduct of a
banking business in such jurisdiction of its organization,
holds its Participation in connection with such banking
business in such jurisdiction and is regulated as a commercial
banking institution by the appropriate regulatory authorities
in such jurisdiction; or
(3) a commercial banking institution that (x) is
organized under the laws of Canada, France, Germany, Ireland,
Japan, Luxembourg, The Netherlands, Sweden, Switzerland or the
United Kingdom and (y) is entitled on the date it acquires any
Participation to a complete exemption from withholding of
United States federal income taxes for all income derived by
it from the transactions contemplated by the Operative
Agreements under laws as in effect on such date by reason of
such income being effectively connected with the conduct of a
trade or business within the United States.
"PROSPECTUS SUPPLEMENT" means the Prospectus Supplement dated
September 6, 2001, relating to the Class A-1, Class A-2, Class B and Class
C Certificates, as such Prospectus Supplement may be amended or
supplemented.
"PROVIDER ADVANCE" means a Downgrade Advance or a Non-Extension
Advance.
"REFERENCE BANKS" means the principal London offices of: National
Westminster Bank, plc; Helaba; The Chase Manhattan Bank; Citibank, N.A.;
and such other or additional banking institutions as may be designated
from time to time by mutual agreement of Delta and the Liquidity Provider.
"REGULATORY CHANGE" means the enactment, adoption or promulgation,
after the date of this Agreement, of any law or regulation by a United
States federal or state government or by any government having
jurisdiction over the Liquidity Provider, or any change, after the date of
this Agreement, in any such law or regulation, or in the interpretation
thereof by any governmental authority, central bank or comparable agency
of the United States or any government having jurisdiction over the
Liquidity Provider charged with responsibility for the administration or
application thereof, that shall impose, modify or deem applicable or the
compliance by the Liquidity Provider (or its head office) with any
applicable direction or requirement (whether or not having the force of
law) of any central bank or competent governmental or other authority with
respect to: (a) any reserve, special deposit or similar requirement
against extensions of credit or other assets of, or deposits with or other
liabilities of, the Liquidity Provider including, or by reason of, the
Advances, or (b) any capital adequacy requirement requiring the
maintenance by the Liquidity Provider of additional capital in respect of
any Advances or the Liquidity Provider's obligation to make any such
Advances or (c) any Taxes (other than Excluded Taxes) with respect to the
amounts payable or paid or change the basis of taxation of any amounts
payable to the Liquidity Provider (other than in respect of Excluded
Taxes).
"REPLENISHMENT AMOUNT" has the meaning specified in Section 2.06(b).
"REQUIRED AMOUNT" means, for any day, the sum of the aggregate
amount of interest, calculated at the rate per annum equal to the Stated
Interest Rate for the Class B Certificates on the basis of a 360-day year
comprised of twelve 30-day months, that would be payable on the Class B
Certificates on each of the three successive semiannual Regular
Distribution Dates immediately following such day or, if such day is a
Regular Distribution Date, on such day and the succeeding two semiannual
Regular Distribution Dates, in each case calculated on the basis of the
Pool Balance of the Class B Certificates on such day and without regard to
expected future distributions of principal on the Class B Certificates.
"TERMINATION DATE" means the earliest to occur of the following: (i)
the Expiry Date; (ii) the date on which the Borrower delivers to the
Liquidity Provider a certificate, signed by a Responsible Officer of the
Borrower, certifying that all of the Class B Certificates have been paid
in full (or provision has been made for such payment in accordance with
the Intercreditor Agreement and the Class B Trust Agreement) or are
otherwise no longer entitled to the benefits of this Agreement; (iii) the
date on which the Borrower delivers to the Liquidity Provider a
certificate, signed by a Responsible Officer of the Borrower, certifying
that a Replacement Liquidity Facility has been substituted for this
Agreement in full pursuant to Section 3.06(e) of the Intercreditor
Agreement; (iv) the fifth Business Day following the receipt by the
Borrower of a Termination Notice from the Liquidity Provider pursuant to
Section 6.01; and (v) the date on which no Advance is or may (including by
reason of reinstatement as herein provided) become available for a
Borrowing hereunder.
"TERMINATION NOTICE" means the Notice of Termination substantially
in the form of Annex V to this Agreement.
"UNAPPLIED NON-EXTENSION ADVANCE": Any portion of a Non-Extension
Advance which is not an Applied Non-Extension Advance.
"UNAPPLIED PROVIDER ADVANCE" means any Provider Advance other than
an Applied Provider Advance.
"UNPAID ADVANCE" has the meaning specified in Section 2.05.
For the purposes of this Agreement, the following terms shall have the
respective meanings specified in the Intercreditor Agreement:
"Acceleration", "Certificate", "Class A-1 Certificates", "Class A-2
Certificates", "Class B Cash Collateral Account", "Class B Certificates",
"Class B Certificateholders", "Class B Trust", "Class B Trust Agreement",
"Class B Trustee", "Class C Certificates", "Class D Certificates",
"Closing Date", "Collection Account", "Controlling Party", "Corporate
Trust Office", "Delta", "Delta Bankruptcy Event", "Distribution Date",
"Dollars", "Downgraded Facility", "Equipment Notes", "Fee Letter", "Final
Legal Distribution Date", "Indenture", "Initial Class D Holder", "Interest
Payment Date", "Investment Earnings", "Liquidity Facility", "Liquidity
Obligations", "Loan Trustee", "Moody's", "Non-Extended Facility",
"Operative Agreements", "Participation Agreements", "Performing Equipment
Note", "Person", "Pool Balance", "Rating Agencies", "Ratings
Confirmation", "Regular Distribution Date", "Replacement Liquidity
Facility", "Responsible Officer", "Scheduled Payment", "Special Payment",
"S&P", "Stated Interest Rate", "Subordination Agent", "Taxes", "Threshold
Rating", "Trust Agreement", "Trustee", "Underwriters", "Underwriting
Agreement", "United States" and "Written Notice".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances. The Liquidity Provider hereby irrevocably
agrees, on the terms and conditions hereinafter set forth, to make Advances to
the Borrower from time to time on any Business Day during the period from the
Effective Date until 12:00 noon (New York City time) on the Expiry Date (unless
the obligations of the Liquidity Provider shall be earlier terminated in
accordance with the terms of Section 2.04(b)) in an aggregate amount at any time
outstanding not to exceed the Maximum Commitment.
Section 2.02. Making of Advances (a) Each Interest Advance shall be made
by the Liquidity Provider upon delivery to the Liquidity Provider of a written
and completed Notice of Borrowing in substantially the form of Annex I, signed
by a Responsible Officer of the Borrower, such Interest Advance to be in an
amount not exceeding the Maximum Available Commitment at such time and used
solely for the payment when due of interest with respect to the Class B
Certificates at the Stated Interest Rate therefor in accordance with Section
3.06(a) and 3.06(b) of the Intercreditor Agreement. Each Interest Advance made
hereunder shall automatically reduce the Maximum Available Commitment and the
amount available to be borrowed hereunder by subsequent Advances by the amount
of such Interest Advance (subject to reinstatement as provided in the next
sentence). Upon repayment to the Liquidity Provider in full or in part of the
amount of any Interest Advance made pursuant to this Section 2.02(a), together
with accrued interest thereon (as provided herein), the Maximum Available
Commitment shall be reinstated by an amount equal to the amount of such Interest
Advance so repaid, but not to exceed the Maximum Commitment; provided, however,
that the Maximum Available Commitment shall not be so reinstated at any time if
(x) both a Performing Note Deficiency exists and a Liquidity Event of Default
shall have occurred and be continuing or (y) a Final Drawing shall have
occurred.
(b) Subject to Section 2.10, a Non-Extension Advance shall be made by the
Liquidity Provider if this Agreement is not extended in accordance with Section
3.06(d) of the Intercreditor Agreement (unless a Replacement Liquidity Facility
to replace this Agreement shall have been delivered to the Borrower as
contemplated by said Section 3.06(d) within the time period specified in such
Section 3.06(d)) upon delivery to the Liquidity Provider of a written and
completed Notice of Borrowing in substantially the form of Annex II, signed by a
Responsible Officer of the Borrower, in an amount equal to the Maximum Available
Commitment at such time, and shall be used to fund the Class B Cash Collateral
Account in accordance with Sections 3.06(d) and 3.06(f) of the Intercreditor
Agreement.
(c) A Downgrade Advance shall be made by the Liquidity Provider upon the
occurrence of a Downgrade Event (as provided for in Section 3.06(c) of the
Intercreditor Agreement) unless a Replacement Liquidity Facility to replace this
Agreement shall have been previously delivered to the Borrower in accordance
with said Section 3.06(c), upon delivery to the Liquidity Provider of a written
and completed Notice of Borrowing in substantially the form of Annex III, signed
by a Responsible Officer of the Borrower, in an amount equal to the Maximum
Available Commitment at such time, and shall be used to fund the Class B Cash
Collateral Account in accordance with Sections 3.06(c) and 3.06(f) of the
Intercreditor Agreement.
(d) A Final Advance shall be made by the Liquidity Provider following the
receipt by the Borrower of a Termination Notice from the Liquidity Provider
pursuant to Section 6.01 upon delivery to the Liquidity Provider of a written
and completed Notice of Borrowing in substantially the form of Annex IV, signed
by a Responsible Officer of the Borrower, in an amount equal to the Maximum
Available Commitment at such time, and shall be used to fund the Class B Cash
Collateral Account (in accordance with Sections 3.06(f) and 3.06(i) of the
Intercreditor Agreement).
(e) Each Borrowing shall be made on notice in writing (a "NOTICE OF
BORROWING") in substantially the form required by Section 2.02(a), 2.02(b),
2.02(c) or 2.02(d), as the case may be, given by the Borrower to the Liquidity
Provider. If a Notice of Borrowing is delivered by the Borrower in respect of
any Borrowing no later than 1:00 p.m. (New York City time) on a Business Day,
upon satisfaction of the conditions precedent set forth in Section 4.02 with
respect to a requested Borrowing, the Liquidity Provider shall make available to
the Borrower, in accordance with its payment instructions, the amount of such
Borrowing in Dollars and immediately available funds, before 4:00 p.m. (New York
City time) on such Business Day or before 1:00 p.m. (New York City time) on such
later Business Day specified in such Notice of Borrowing. If a Notice of
Borrowing is delivered by the Borrower in respect of any Borrowing after 1:00
p.m. (New York City time) on a Business Day, upon satisfaction of the conditions
precedent set forth in Section 4.02 with respect to a requested Borrowing, the
Liquidity Provider shall make available to the Borrower, in accordance with its
payment instructions, the amount of such Borrowing in Dollars and immediately
available funds, before 1:00 p.m. (New York City time) on the first Business Day
next following the day of receipt of such Notice of Borrowing or on such later
Business Day specified by the Borrower in such Notice of Borrowing. Payments of
proceeds of a Borrowing shall be made by wire transfer of immediately available
funds to the Borrower in accordance with such wire transfer instructions as the
Borrower shall furnish from time to time to the Liquidity Provider for such
purpose. Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. Each Notice of Borrowing shall be effective upon delivery of a copy
thereof to the Liquidity Provider's New York branch at the address specified in
Section 7.02 hereof.
(f) Upon the making of any Advance requested pursuant to a Notice of
Borrowing in accordance with the Borrower's payment instructions, the Liquidity
Provider shall be fully discharged of its obligation hereunder with respect to
such Notice of Borrowing, and the Liquidity Provider shall not thereafter be
obligated to make any further Advances hereunder in respect of such Notice of
Borrowing to the Borrower or to any other Person (including the Trustee or any
Class B Certificateholder). If the Liquidity Provider makes an Advance requested
pursuant to a Notice of Borrowing before 12:00 noon (New York City time) on the
second Business Day after the date of payment specified in said Section 2.02(e),
the Liquidity Provider shall have fully discharged its obligations hereunder
with respect to such Advance and an event of default shall not have occurred
hereunder. Following the making of any Advance pursuant to Section 2.02(b),
2.02(c) or 2.02(d) to fund the Class B Cash Collateral Account, the Liquidity
Provider shall have no interest in or rights to the Class B Cash Collateral
Account, such Advance or any other amounts from time to time on deposit in the
Class B Cash Collateral Account; provided that the foregoing shall not affect or
impair the obligations of the Subordination Agent to make the distributions
contemplated by Section 3.06(e) or 3.06(f) of the Intercreditor Agreement and
provided further, that the foregoing shall not affect or impair the rights of
the Liquidity Provider to provide written instructions with respect to the
investment and reinvestment of amounts in the Class B Cash Collateral Account to
the extent provided in Section 2.02(b) of the Intercreditor Agreement. By paying
to the Borrower proceeds of Advances requested by the Borrower in accordance
with the provisions of this Agreement, the Liquidity Provider makes no
representation as to, and assumes no responsibility for, the correctness or
sufficiency for any purpose of the amount of the Advances so made and requested.
Section 2.03. Fees. The Borrower agrees to pay to the Liquidity Provider
the fees set forth in the Fee Letter.
Section 2.04. Reduction or Termination of the Maximum Commitment. (a)
Automatic Reduction. Promptly following each date on which the Required Amount
is reduced as a result of a reduction in the Pool Balance of the Class B
Certificates or otherwise, the Maximum Commitment shall automatically be reduced
to an amount equal to such reduced Required Amount (as calculated by the
Borrower). The Borrower shall give notice of any such automatic reduction of the
Maximum Commitment to the Liquidity Provider and Delta within two Business Days
thereof. The failure by the Borrower to furnish any such notice shall not affect
such automatic reduction of the Maximum Commitment.
(b) Termination. Upon the making of any Provider Advance or Final Advance
hereunder or the occurrence of the Termination Date, the obligation of the
Liquidity Provider to make further Advances hereunder shall automatically and
irrevocably terminate, and the Borrower shall not be entitled to request any
further Borrowing hereunder.
Section 2.05. Repayments of Interest Advances or the Final Advance.
Subject to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby agrees,
without notice of an Advance or demand for repayment from the Liquidity Provider
(which notice and demand are hereby waived by the Borrower), to pay, or to cause
to be paid, to the Liquidity Provider (a) on each date on which the Liquidity
Provider shall make an Interest Advance or the Final Advance, an amount equal to
the amount of such Advance (any such Advance, until repaid, is referred to
herein as an "UNPAID ADVANCE"), plus (b) interest on the amount of each such
Unpaid Advance in the amounts and on the dates determined as provided in Section
3.07; provided that if (i) the Liquidity Provider shall make a Provider Advance
at any time after making one or more Interest Advances which shall not have been
repaid in accordance with this Section 2.05 or (ii) this Liquidity Facility
shall become a Downgraded Facility or Non-Extended Facility at any time when
unreimbursed Interest Advances have reduced the Maximum Available Commitment to
zero, then such Interest Advances shall cease to constitute Unpaid Advances and
shall be deemed to have been changed into an Applied Downgrade Advance or an
Applied Non-Extension Advance, as the case may be, for all purposes of this
Agreement (including, without limitation, for the purpose of determining when
such Interest Advance is required to be repaid to the Liquidity Provider in
accordance with Section 2.06 and for the purposes of Section 2.06(b)). The
Borrower and the Liquidity Provider agree that the repayment in full of each
Interest Advance and Final Advance on the date such Advance is made is intended
to be a contemporaneous exchange for new value given to the Borrower by the
Liquidity Provider. For the avoidance of doubt, interest payable on an Interest
Advance or the Final Advance shall not be regarded as overdue unless such
interest is not paid when due under Section 3.07.
Section 2.06. Repayments of Provider Advances. (a) Amounts advanced
hereunder in respect of a Provider Advance shall be deposited in the Class B
Cash Collateral Account and invested and withdrawn from the Class B Cash
Collateral Account as set forth in Sections 3.06(c), 3.06(d), 3.06(e) and
3.06(f) of the Intercreditor Agreement. Subject to Sections 2.07 and 2.09, the
Borrower agrees to pay to the Liquidity Provider, on each Regular Distribution
Date, commencing on the first Regular Distribution Date after the making of a
Provider Advance, interest on the principal amount of any such Provider Advance,
in the amounts determined as provided in Section 3.07; provided, however, that
amounts in respect of a Provider Advance withdrawn from the Class B Cash
Collateral Account for the purpose of paying interest on the Class B
Certificates in accordance with Section 3.06(f) of the Intercreditor Agreement
(the amount of any such withdrawal being (y) in the case of a Downgrade Advance,
an "APPLIED DOWNGRADE ADVANCE" and (z) in the case of a Non-Extension Advance,
an "APPLIED NON-EXTENSION ADVANCE" and, together with an Applied Downgrade
Advance, an "APPLIED PROVIDER ADVANCE") shall thereafter (subject to Section
2.06(b)) be treated as an Interest Advance under this Agreement for purposes of
determining the Applicable Liquidity Rate for interest payable thereon and the
dates on which such interest is payable; provided further, however, that if,
following the making of a Provider Advance, the Liquidity Provider delivers a
Termination Notice to the Borrower pursuant to Section 6.01, such Provider
Advance shall thereafter be treated as a Final Advance under this Agreement for
purposes of determining the Applicable Liquidity Rate for interest payable
thereon and the dates on which such interest is payable. Subject to Sections
2.07 and 2.09 hereof, immediately upon the withdrawal of any amounts from the
Class B Cash Collateral Account on account of a reduction in the Required
Amount, the Borrower shall repay to the Liquidity Provider a portion of the
Provider Advances in a principal amount equal to such reduction, plus interest
on the principal amount prepaid as provided in Section 3.07.
(b) At any time when an Applied Provider Advance (or any portion thereof)
is outstanding, upon the deposit in the Class B Cash Collateral Account of any
amount pursuant to clause "third" of Section 2.04(b) of the Intercreditor
Agreement, clause "third" of Section 3.02 of the Intercreditor Agreement or
clause "fourth" of Section 3.03 of the Intercreditor Agreement (any such amount
being a "REPLENISHMENT AMOUNT") for the purpose of replenishing or increasing
the balance thereof up to the Required Amount at such time, (i) the aggregate
outstanding principal amount of all Applied Provider Advances (and of Provider
Advances treated as an Interest Advance for purposes of determining the
Applicable Liquidity Rate for interest payable thereon) shall be automatically
reduced by the amount of such Replenishment Amount, and (ii) the aggregate
outstanding principal amount of all Unapplied Provider Advances shall be
automatically increased by the amount of such Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity Facility in replacement
of this Agreement in accordance with Section 3.06(e) of the Intercreditor
Agreement, as provided in Section 3.06(f) of the Intercreditor Agreement,
amounts remaining on deposit in the Class B Cash Collateral Account after giving
effect to any Applied Provider Advance on the date of such replacement shall be
reimbursed to the Liquidity Provider, but only to the extent such amounts are
necessary to repay in full to the Liquidity Provider all amounts owing to it
hereunder.
Section 2.07. Payments to the Liquidity Provider Under the Intercreditor
Agreement. In order to provide for payment or repayment to the Liquidity
Provider of any amounts hereunder, the Intercreditor Agreement provides that
amounts available and referred to in Articles II and III of the Intercreditor
Agreement, to the extent payable to the Liquidity Provider pursuant to the terms
of the Intercreditor Agreement (including, without limitation, Section 3.06(f)
of the Intercreditor Agreement), shall be paid to the Liquidity Provider in
accordance with the terms thereof (but, for the avoidance of doubt, without
duplication of or increase in any amounts payable hereunder). Amounts so paid to
the Liquidity Provider shall be applied by the Liquidity Provider in the order
of priority required by the applicable provisions of Articles II and III of the
Intercreditor Agreement and shall discharge in full the corresponding
obligations of the Borrower hereunder.
Section 2.08. Book Entries. The Liquidity Provider shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower resulting from Advances made from time to time and
the amounts of principal and interest payable hereunder and paid from time to
time in respect thereof; provided, however, that the failure by the Liquidity
Provider to maintain such account or accounts shall not affect the obligations
of the Borrower in respect of Advances.
Section 2.09. Payments from Available Funds Only. All payments to be made
by the Borrower under this Agreement shall be made only from the amounts that
constitute Scheduled Payments, Special Payments and other payments under the
Operative Agreements, including payment under Section 4.02 of the Participation
Agreements and payments under Section 2.14 of the Indentures, and only to the
extent that the Borrower shall have sufficient income or proceeds therefrom to
enable the Borrower to make payments in accordance with the terms hereof after
giving effect to the priority of payments provisions set forth in the
Intercreditor Agreement. The Liquidity Provider agrees that it will look solely
to such amounts to the extent available for distribution to it as provided in
the Intercreditor Agreement and this Agreement and that the Borrower, in its
individual capacity, is not personally liable to it for any amounts payable or
liability under this Agreement except as expressly provided in this Agreement,
the Intercreditor Agreement or any Participation Agreement. Amounts on deposit
in the Class B Cash Collateral Account shall be available to the Borrower to
make payments under this Agreement only to the extent and for the purposes
expressly contemplated in Section 3.06(f) of the Intercreditor Agreement.
Section 2.10. Extension of the Expiry Date; Non-Extension Advance. If the
Expiry Date is prior to the date that is 15 days after the Final Legal
Distribution Date for the Class B Certificates, then no earlier than the 60th
day and no later than the 40th day prior to the then applicable Expiry Date, the
Borrower may request in writing that the Liquidity Provider extend the Expiry
Date to the earlier of (i) the date that is 15 days after the Final Legal
Distribution Date for the Class B Certificates and (ii) the date that is the day
immediately preceding the 364th day after the last day of the Consent Period
(unless the obligations of the Liquidity Provider hereunder are earlier
terminated in accordance herewith). Whether or not the Liquidity Provider has
received a request from the Borrower, the Liquidity Provider shall, during the
period commencing on the date that is 60 days prior to the then effective Expiry
Date (or, if earlier, the date of such Liquidity Provider's receipt of such
request, if any, from the Borrower) and ending on the date that is 25 days prior
to the then effective Expiry Date (the "CONSENT PERIOD") advise the Borrower
whether, in its sole discretion, it agrees to so extend the Expiry Date. If the
Liquidity Provider advises the Borrower on or before the end of the Consent
Period that such Expiry Date shall not be so extended, or fails to irrevocably
and unconditionally advise the Borrower on or before the end of the Consent
Period that such Expiry Date shall be so extended (and, in each case, if the
Liquidity Provider shall not have been replaced in accordance with Section
3.06(e) of the Intercreditor Agreement), the Borrower shall be entitled on and
after the date on which the Consent Period ends (but prior to the then effective
Expiry Date) to request a Non-Extension Advance in accordance with Section
2.02(b) hereof and Section 3.06(d) of the Intercreditor Agreement. If any
amounts shall be drawn pursuant to a Non-Extension Advance and, within 30 days
thereafter, the Liquidity Provider shall not have been replaced, then at any
time following the 30th day after such Non-Extension Advance, the Liquidity
Provider may, by written notice to the Borrower, agree to reinstate the
Liquidity Facility on the terms of the existing Liquidity Facility for a period
ending on the 364th day after the end of the Consent Period; provided, however,
that in such event the Liquidity Provider shall reimburse the Borrower for any
costs actually incurred by or on behalf of the Borrower in drawing pursuant to
the Non-Extension Advance and funding the Class B Cash Collateral Account or
otherwise in connection with the Non-Extension Advance.
Section 2.11. Rights to Extend Expiry Date. Subject to the proviso in the
next succeeding sentence, the initial Liquidity Provider shall have the right at
any time and without the consent of the Borrower to extend the then effective
Expiry Date to a date that is on or before the date that is 15 days after the
Final Legal Distribution Date for the Class B Certificates by giving not less
than five nor more than ten days' prior written notice of such extension to the
Borrower, the Class B Trustee and Delta (which notice shall specify the
effective date of such extension (the "EXTENSION EFFECTIVE DATE")). On the
Extension Effective Date, the then effective Expiry Date shall be so extended
without any further act; provided, however, that if prior to the Extension
Effective Date a Downgrade Event shall have occurred, the then effective Expiry
Date shall not be so extended.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs. If as a result of any Regulatory Change
there shall be any increase by an amount reasonably deemed by the Liquidity
Provider to be material in the actual cost to the Liquidity Provider of making,
funding or maintaining any Advances or its obligation to make any such Advances
or there shall be any reduction by an amount reasonably deemed by the Liquidity
Provider to be material in the amount receivable by the Liquidity Provider under
this Agreement or the Intercreditor Agreement in respect thereof, and in case of
either such an increase or reduction, such event does not arise from the gross
negligence or willful misconduct of the Liquidity Provider, from its breach of
any of its representations, warranties, covenants or agreements contained herein
or in the Intercreditor Agreement or from its failure to comply with any such
Regulatory Change (any such increase or reduction being referred to herein as an
"INCREASED COST"), then the Borrower shall from time to time pay to the
Liquidity Provider an amount equal to such Increased Cost within 10 Business
Days after delivery to the Borrower and Delta of a certificate of an officer of
the Liquidity Provider describing in reasonable detail the event by reason of
which it claims such Increased Cost and the basis for the determination of the
amount of such Increased Cost; provided that, the Borrower shall be obligated to
pay amounts only with respect to any Increased Costs accruing from the date 90
days prior to the date of delivery of such certificate. Such certificate, in the
absence of manifest error, shall be considered prima facie evidence of the
amount of the Increased Costs for purposes of this Agreement; provided that any
determinations and allocations by the Liquidity Provider of the effect of any
Regulatory Change on the costs of maintaining the Advances are made on a
reasonable basis. The Liquidity Provider shall not be entitled to assert any
claim under this Section 3.01 in respect of or attributable to Excluded Taxes.
The Liquidity Provider will notify the Borrower and Delta as promptly as
practicable of any event occurring after the date of this Agreement that will
entitle the Liquidity Provider to compensation under this Section 3.01. The
Liquidity Provider agrees to investigate all commercially reasonable
alternatives for reducing any Increased Costs and to use all commercially
reasonable efforts to avoid or minimize, to the greatest extent possible, any
claim in respect of Increased Costs, including, without limitation, by
designating a different Lending Office, if such designation or other action
would avoid the need for, or reduce the amount of, any such claim; provided that
the foregoing shall not obligate the Liquidity Provider to take any action that
would, in its reasonable judgment, cause the Liquidity Provider to take any
action that is not materially consistent with its internal policies or is
otherwise materially disadvantageous to the Liquidity Provider or that would
cause the Liquidity Provider to incur any material loss or cost, unless the
Borrower or Delta agrees to reimburse or indemnify the Liquidity Provider
therefor. If no such designation or other action is effected, or, if effected,
fails to avoid the need for any claim in respect of Increased Costs, Delta may
arrange for a Replacement Liquidity Facility in accordance with Section 3.06(e)
of the Intercreditor Agreement.
Notwithstanding the foregoing provisions, in no event shall the Borrower
be required to make payments under this Section 3.01: (a) in respect of any
Regulatory Change proposed by any applicable governmental authority (including
any branch of a legislature), central bank or comparable agency of the United
States or the Liquidity Provider's jurisdiction of organization and pending as
of the date of this Agreement (it being agreed that the Consultative Document
issued by the Basel Committee on Banking Supervision entitled "The New Basel
Capital Accord," dated January 2001, shall not be considered to have been
proposed or pending as of the date of this Agreement); (b) if a claim hereunder
in respect of an Increased Cost arises through circumstances peculiar to the
Liquidity Provider and that do not affect similarly organized commercial banking
institutions in the same jurisdiction generally that are in compliance with the
law, rule, regulation or interpretation giving rise to the Regulatory Change
relating to such Increased Cost; or (c) if the Liquidity Provider shall fail to
comply with its obligations under this Section 3.01.
Section 3.02. [Intentionally omitted.]
Section 3.03. Withholding Taxes. (a) All payments made by the Borrower
under this Agreement shall be made without deduction or withholding for or on
account of any Taxes, unless such deduction or withholding is required by law.
If any Taxes are so required to be withheld or deducted from any amounts payable
to the Liquidity Provider under this Agreement, the Borrower shall pay to the
relevant authorities the full amount so required to be deducted or withheld and,
if such Taxes are Covered Taxes, pay to the Liquidity Provider such additional
amounts as shall be necessary to ensure that the net amount actually received by
the Liquidity Provider (after deduction or withholding of all Covered Taxes)
shall be equal to the full amount that would have been received by the Liquidity
Provider had no withholding or deduction of Covered Taxes been required. The
Liquidity Provider agrees to use reasonable efforts (consistent with applicable
legal and regulatory restrictions) to change the jurisdiction of its Lending
Office if making such change would avoid the need for, or reduce the amount of,
any such additional amounts that may thereafter accrue and would not, in the
reasonable judgment of the Liquidity Provider, be otherwise materially
disadvantageous to the Liquidity Provider. If the Liquidity Provider receives a
refund of, or realizes a net Tax benefit not otherwise available to it as a
result of, any Taxes for which additional amounts were paid by the Borrower
pursuant to this Section 3.03, the Liquidity Provider shall pay to the Borrower
(for deposit into the Collection Account) the amount of such refund (and any
interest thereon) or net benefit.
The Liquidity Provider will (i) provide (on its behalf and on behalf of
any participant holding a Participation pursuant to Section 7.08) to the
Borrower (x) on or prior to the Effective Date two valid completed and executed
copies of Internal Revenue Service Form W8-BEN or W8-EC1 (whichever is
applicable), including thereon a valid U.S. taxpayer identification number (or,
with respect to any such participant, such other form or documentation as may be
applicable) covering all amounts receivable by it in connection with the
transactions contemplated by the Operative Agreements and (y) thereafter from
time to time such additional forms or documentation as may be necessary to
establish an available exemption from withholding of United States Tax on
payments hereunder so that such forms or documentation are effective for all
periods during which it is the Liquidity Provider and (ii) provide timely notice
to the Borrower if any such form or documentation is or becomes inaccurate. The
Liquidity Provider shall deliver to the Borrower such other forms or documents
as may be reasonably requested by the Borrower or required by applicable law to
establish that payments hereunder are exempt from or entitled to a reduced rate
of Covered Taxes.
(b) All payments (including, without limitation, Advances) made by the
Liquidity Provider under this Agreement shall be made free and clear of, and
without reduction for or on account of, any Taxes. If any Taxes are required to
be withheld or deducted from any amounts payable to the Borrower under this
Agreement, the Liquidity Provider shall (i) within the time prescribed therefor
by applicable law pay to the appropriate governmental or taxing authority the
full amount of any such Taxes (and any additional Taxes in respect of the
additional amounts payable under clause (ii) hereof) and make such reports or
returns in connection therewith at the time or times and in the manner
prescribed by applicable law, and (ii) pay to the Borrower an additional amount
which (after deduction of all such Taxes) will be sufficient to yield to the
Borrower the full amount which would have been received by it had no such
withholding or deduction been made. Within 30 days after the date of each
payment hereunder, the Liquidity Provider shall furnish to the Borrower the
original or a certified copy of (or other documentary evidence of) the payment
of the Taxes applicable to such payment.
If any exemption from, or reduction in the rate of, any Taxes required to
be borne by the Liquidity Provider under this Section 3.03(b) is reasonably
available to the Borrower without providing any information regarding the
holders or beneficial owners of the Certificates, the Borrower shall deliver the
Liquidity Provider such form or forms and such other evidence of the eligibility
of the Borrower for such exemption or reductions (but without any requirement to
provide any information regarding the holders or beneficial owners of the
Certificates) as the Liquidity Provider may reasonably identify to the Borrower
as being required as a condition to exemption from, or reduction in the rate of,
such Taxes.
Section 3.04. Payments. The Borrower shall make or cause to be made each
payment to the Liquidity Provider under this Agreement so as to cause the same
to be received by the Liquidity Provider not later than 1:00 P.M. (New York City
time) on the day when due. The Borrower shall make all such payments in Dollars,
to the Liquidity Provider in immediately available funds, by wire transfer to
The Chase Manhattan Bank, 021-000021 in favor of account number 4207114,
Reference: Delta EETC 2001-1B.
Section 3.05. Computations. All computations of interest based on the Base
Rate shall be made on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the LIBOR Rate shall be made on
the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest is payable.
Section 3.06. Payment on Non-Business Days. Whenever any payment to be
made hereunder shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day and no additional
interest shall be due as a result (and if so made, shall be deemed to have been
made when due). If any payment in respect of interest on an Advance is so
deferred to the next succeeding Business Day, such deferral shall not delay the
commencement of the next Interest Period for such Advance (if such Advance is a
LIBOR Advance) or reduce the number of days for which interest will be payable
on such Advance on the next interest payment date for such Advance.
Section 3.07. Interest. (a) Subject to Sections 2.07 and 2.09, the
Borrower shall pay, or shall cause to be paid, without duplication, interest on
(i) the unpaid principal amount of each Advance from and including the date of
such Advance (or, in the case of an Applied Provider Advance, from and including
the date on which the amount thereof was withdrawn from the Class B Cash
Collateral Account to pay interest on the Class B Certificates) to but excluding
the date such principal amount shall be paid in full (or, in the case of an
Applied Provider Advance, the date on which the Class B Cash Collateral Account
is fully replenished in respect of such Advance) and (ii) any other amount due
hereunder (whether fees, commissions, expenses or other amounts or, to the
extent permitted by law, installments of interest on Advances or any such other
amount) that is not paid when due (whether at stated maturity, by acceleration
or otherwise) from and including the due date thereof to but excluding the date
such amount is paid in full, in each such case, at the interest rate per annum
for each day equal to the Applicable Liquidity Rate (as defined below) for such
Advance or such other amount, as the case may be, as in effect for such day, but
in no event at a rate per annum greater than the maximum rate permitted by
applicable law, provided, however, that, if at any time the otherwise applicable
interest rate as set forth in this Section 3.07 shall exceed the maximum rate
permitted by applicable law, then to the maximum extent permitted by applicable
law any subsequent reduction in such interest rate will not reduce the rate of
interest payable pursuant to this Section 3.07 below the maximum rate permitted
by applicable law until the total amount of interest accrued equals the absolute
amount of interest that would have accrued (without additional interest thereon)
if such otherwise applicable interest rate as set forth in this Section 3.07 had
at all relevant times been in effect.
(b) Except as provided in Section 3.07(e), each Advance (other than an
Unapplied Non-Extension Advance) will be either a Base Rate Advance or a LIBOR
Advance as provided in this Section 3.07. Each such Advance will be a Base Rate
Advance for the period from the date of its borrowing to (but excluding) the
third Business Day following the Liquidity Provider's receipt of the Notice of
Borrowing for such Advance. Thereafter, such Advance shall be a LIBOR Advance;
provided that (i) a Provider Advance (other than an Unapplied Non-Extension
Advance) shall always be a LIBOR Advance unless the Borrower elects otherwise
and (ii) the Borrower (at the direction of the Controlling Party, so long as the
Liquidity Provider is not the Controlling Party) may (x) convert the Final
Advance into a Base Rate Advance on the last day of an Interest Period for such
Advance by giving the Liquidity Provider no less than four Business Days' prior
written notice of such election or (y) elect to maintain the Final Advance as a
Base Rate Advance by not requesting a conversion of the Final Advance to a LIBOR
Advance under Clause (5) of the applicable Notice of Borrowing (or, if, pursuant
to Section 2.06, such Final Advance is deemed to have been made without delivery
of a Notice of Borrowing, by requesting, prior to 11:00 a.m. (New York time) on
the first Business Day immediately following the Borrower's receipt of the
applicable Termination Notice, that such Final Advance not be converted from a
Base Rate Advance to a LIBOR Advance).
(c) Each LIBOR Advance shall bear interest during each Interest Period at
a rate per annum equal to the LIBOR Rate for such Interest Period plus the
Applicable Margin for such LIBOR Advance, payable in arrears on the last day of
such Interest Period and, in the event of the payment of principal of such LIBOR
Advance on a day other than such last day, on the date of such payment (to the
extent of interest accrued on the amount of principal repaid).
(d) Each Base Rate Advance shall bear interest at a rate per annum equal
to the Base Rate plus the Applicable Margin for such Base Rate Advance, payable
in arrears on each Regular Distribution Date and, in the event of the payment of
principal of such Base Rate Advance on a day other than a Regular Distribution
Date, on the date of such payment (to the extent of interest accrued on the
amount of principal repaid).
(e) Each outstanding Unapplied Non-Extension Advance shall bear interest
in an amount equal to the Investment Earnings on amounts on deposit in the Class
B Cash Collateral Account plus the Applicable Margin for such Unapplied
Non-Extension Advance on the amount of such Unapplied Non-Extension Advance from
time to time, payable in arrears on each Regular Distribution Date.
(f) Each amount not paid when due hereunder (whether fees, commissions,
expenses or other amounts or, to the extent permitted by applicable law,
installments of interest on Advances but excluding Advances) shall bear interest
at a rate per annum equal to the Base Rate plus 2.0% per annum until paid.
(g) Each change in the Base Rate shall become effective immediately. The
rates of interest specified in this Section 3.07 with respect to any Advance or
other amount shall be referred to as the "APPLICABLE LIQUIDITY RATE".
Section 3.08. Replacement of Borrower. Subject to Section 5.02, from time
to time and subject to the successor Borrower's meeting the eligibility
requirements set forth in Section 6.09 of the Intercreditor Agreement applicable
to the Subordination Agent, upon the effective date and time specified in a
written and completed Notice of Replacement Subordination Agent in substantially
the form of Annex VI (a "NOTICE OF REPLACEMENT SUBORDINATION AGENT") delivered
to the Liquidity Provider by the then Borrower, the successor Borrower
designated therein shall become the Borrower for all purposes hereunder.
Section 3.09. Funding Loss Indemnification. The Borrower shall pay to the
Liquidity Provider, upon the request of the Liquidity Provider, such amount or
amounts as shall be sufficient (in the reasonable opinion of the Liquidity
Provider) to compensate it for any loss, cost or expense incurred by reason of
the liquidation or redeployment of deposits or other funds acquired by the
Liquidity Provider to fund or maintain any LIBOR Advance (but excluding loss of
the Applicable Margin or anticipated profits) incurred as a result of:
(1) Any repayment of a LIBOR Advance on a date other than the last
day of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance on the
date for borrowing specified in the relevant notice under Section 2.02.
Section 3.10. Illegality. Notwithstanding any other provision in this
Agreement, if any change in any law, rule or regulation applicable to or binding
on the Liquidity Provider, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by the
Liquidity Provider with any request or directive (whether or not having the
force of law) of any such authority, central bank or comparable agency shall
make it unlawful or impossible for the Liquidity Provider to maintain or fund
its LIBOR Advances, then upon notice to the Borrower and Delta by the Liquidity
Provider, the outstanding principal amount of the LIBOR Advances shall be
converted to Base Rate Advances (a) immediately upon demand of the Liquidity
Provider, if such change or compliance with such request, in the reasonable
judgment of the Liquidity Provider, requires immediate conversion; or (b) at the
expiration of the last Interest Period to expire before the effective date of
any such change or request. The Liquidity Provider will notify the Borrower and
Delta as promptly as practicable of any event that will or to its knowledge is
reasonably likely to lead to the conversion of LIBOR Advances to Base Rate
Advances under this Section 3.10, provided that a failure by the Liquidity
Provider to notify the Borrower or Delta of an event that is reasonably likely
to lead to such a conversion prior to the time that it is determined that such
event will lead to such a conversion shall not prejudice the rights of the
Liquidity Provider under this Section 3.10. The Liquidity Provider agrees to
investigate all commercially reasonable alternatives for avoiding the need for
such conversion, including, without limitation, designating a different Lending
Office, if such designation or other action would avoid the need to convert such
LIBOR Advances to Base Rate Advances; provided, that the foregoing shall not
obligate the Liquidity Provider to take any action that would, in its reasonable
judgment, cause the Liquidity Provider to incur any material loss or cost,
unless the Borrower or Delta agrees to reimburse or indemnify the Liquidity
Provider therefor. If no such designation or other action is effected, or, if
effected, fails to avoid the need for conversion of the LIBOR Advances to Base
Rate Advances, Delta may arrange for a Replacement Liquidity Facility in
accordance with Section 3.06(e) of the Intercreditor Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "EFFECTIVE DATE") on which the following conditions precedent have
been satisfied (or waived by the appropriate party or parties):
(a) The Liquidity Provider shall have received on or before the
Closing Date each of the following, and in the case of each document
delivered pursuant to paragraphs (i), (ii) and (iii), each in form and
substance satisfactory to the Liquidity Provider:
(i) This Agreement and the Fee Letter duly executed on behalf
of the Borrower and Delta, in the case of the Fee Letter;
(ii) The Intercreditor Agreement duly executed on behalf of
each of the parties thereto (other than the Liquidity Provider);
(iii) Fully executed copies of each of the Operative
Agreements executed and delivered on or before the Closing Date
(other than this Agreement, the Fee Letter and the Intercreditor
Agreement);
(iv) A copy of the Prospectus Supplement and specimen copies
of the Class B Certificates;
(v) An executed copy of each document, instrument, certificate
and opinion delivered on or before the Closing Date pursuant to the
Class B Trust Agreement, the Intercreditor Agreement and the other
Operative Agreements (in the case of each such opinion, either
addressed to the Liquidity Provider or accompanied by a letter from
the counsel rendering such opinion to the effect that the Liquidity
Provider is entitled to rely on such opinion as of its date as if it
were addressed to the Liquidity Provider); and
(vi) An agreement from Delta, pursuant to which (x) Delta
agrees to provide copies of quarterly financial statements and
audited annual financial statements to the Liquidity Provider
(which, in the case of quarterly financial statements, Delta may
provide in an electronic format by electronic mail or making such
available over the internet) and (y) Delta agrees to allow the
Liquidity Provider to discuss the transactions contemplated by the
Operative Agreements with officers and employees of Delta.
(b) On and as of the Effective Date no event shall have occurred and
be continuing, or would result from the entering into of this Agreement or
the making of any Advance, which constitutes a Liquidity Event of Default.
(c) The filings referred to in Sections 3.01(d) and 3.01(f) of the
Participation Agreements shall have been filed (or shall be in the process
of being filed).
(d) The Liquidity Provider shall have received payment in full of
the fees and other sums required to be paid to or for the account of the
Liquidity Provider on or prior to the Effective Date pursuant to the Fee
Letter.
(e) All conditions precedent to the issuance of the Certificates
under the Trust Agreements shall have been satisfied or waived, all
conditions precedent to the effectiveness of the other Liquidity
Facilities shall have been satisfied or waived, all conditions precedent
to the purchase of the Class A-1, Class A-2, Class B and Class C
Certificates by the Underwriters under the Underwriting Agreement shall
have been satisfied (unless any of such conditions precedent under the
Underwriting Agreement shall have been waived by the Underwriters), and
all conditions precedent to the purchase of the Class D Certificates by
the Initial Class D Holder shall have been satisfied.
(f) The Borrower and Delta shall have received a certificate, dated
the Effective Date signed by a duly authorized representative of the
Liquidity Provider, certifying that all conditions precedent specified in
this Section 4.01 have been satisfied or waived by the Liquidity Provider.
Section 4.02. Conditions Precedent to Borrowing. The obligation of the
Liquidity Provider to make an Advance on the occasion of each Borrowing shall be
subject to the conditions precedent that the Effective Date shall have occurred
and, prior to the time of such Borrowing, the Borrower shall have delivered a
Notice of Borrowing which conforms to the terms and conditions of this
Agreement.
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower. So long as any
Advance shall remain unpaid or the Liquidity Provider shall have any Maximum
Commitment hereunder or the Borrower shall have any obligation to pay any amount
to the Liquidity Provider hereunder, the Borrower will, unless the Liquidity
Provider shall otherwise consent in writing:
(a) Performance of Agreements. Punctually pay or cause to be paid
all amounts payable by it under this Agreement and the Intercreditor
Agreement and observe and perform in all material respects the conditions,
covenants and requirements applicable to it contained in this Agreement
and the Intercreditor Agreement.
(b) Reporting Requirements. Furnish to the Liquidity Provider with
reasonable promptness, such other information and data with respect to the
transactions contemplated by the Operative Agreements as from time to time
may be reasonably requested by the Liquidity Provider; and permit the
Liquidity Provider, upon reasonable notice, to inspect the Borrower's
books and records with respect to such transactions and to meet with
officers and employees of the Borrower to discuss such transactions.
(c) Certain Operative Agreements. Furnish to the Liquidity Provider
with reasonable promptness, copies of such Operative Agreements entered
into after the date hereof as from time to time may be reasonably
requested by the Liquidity Provider.
Section 5.02. Negative Covenants of the Borrower. Subject to the first and
fourth paragraphs of Section 7.01(a) of the Intercreditor Agreement and Section
7.01(b) of the Intercreditor Agreement, so long as any Advance shall remain
unpaid or the Liquidity Provider shall have any Maximum Commitment hereunder or
the Borrower shall have any obligation to pay any amount to the Liquidity
Provider hereunder, the Borrower will not appoint or permit or suffer to be
appointed any successor Borrower without the prior written consent of the
Liquidity Provider, which consent shall not be unreasonably withheld or delayed.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default. If (a) any Liquidity Event of
Default has occurred and is continuing and (b) there is a Performing Note
Deficiency, the Liquidity Provider may, in its discretion, deliver to the
Borrower a Termination Notice, the effect of which shall be to cause (i) this
Agreement to expire at the close of business on the fifth Business Day after the
date on which such Termination Notice is received by the Borrower, (ii) the
Borrower to promptly request, and the Liquidity Provider to promptly make, a
Final Advance in accordance with Section 2.02(d) hereof and Section 3.06(i) of
the Intercreditor Agreement, (iii) all other outstanding Advances to be
automatically converted into Final Advances for purposes of determining the
Applicable Liquidity Rate for interest payable thereon and (iv) subject to
Sections 2.07 and 2.09, all Advances, any accrued interest thereon and any other
amounts outstanding hereunder to become immediately due and payable to the
Liquidity Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.01. No Oral Modifications or Continuing Waivers. No terms or
provisions of this Agreement may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the Borrower and the
Liquidity Provider and any other Person whose consent is required pursuant to
this Agreement; provided that no such change or other action shall affect the
payment obligations of Delta or the rights of Delta without Delta's prior
written consent; and any waiver of the terms hereof shall be effective only in
the specific instance and for the specific purpose given.
Section 7.02. Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all notices, requests, demands, authorizations, directions,
consents, waivers or documents required or permitted under the terms and
provisions of this Agreement shall be in English and in writing, and given by
United States registered or certified mail, courier service or facsimile, and
any such notice shall be effective when delivered (or, if delivered by
facsimile, upon completion of transmission and confirmation by the sender (by a
telephone call to a representative of the recipient or by machine confirmation)
that such transmission was received) addressed as follows:
If to the Borrower, to:
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
225 Asylum Street, Goodwin Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Telephone: (860) 244-1844
Telecopy: (860) 244-1881
If to the Liquidity Provider, to:
LANDESBANK HESSEN-THURINGEN GIROZENTRALE
Main Tower
Neue Mainzer Str. 52-58
60311 Frankfurt am Main
Germany
Attention: Asset Finance
Telephone: 49-69-9132-4882
Telecopy: 49-69-9132-4392
With a copy to:
LANDESBANK HESSEN-THURINGEN
New York Branch
420 Fifth Avenue, 24th Floor
New York, NY 10018
Attention: Structured Finance/Michael Novack
Telephone: (212) 703-5224
Telecopy: (212) 703-5256
Any party, by notice to the other party hereto, may designate additional
or different addresses for subsequent notices or communications. Whenever the
words "notice" or "notify" or similar words are used herein, they mean the
provision of formal notice as set forth in this Section 7.02.
Section 7.03. No Waiver; Remedies. No failure on the part of the Liquidity
Provider to exercise, and no delay in exercising, any right under this Agreement
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right under this Agreement preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
Section 7.04. Further Assurances. The Borrower agrees to do such further
acts and things and to execute and deliver to the Liquidity Provider such
additional assignments, agreements, powers and instruments as the Liquidity
Provider may reasonably require or deem advisable to carry into effect the
purposes of this Agreement and the other Operative Agreements or to better
assure and confirm unto the Liquidity Provider its rights, powers and remedies
hereunder and under the other Operative Agreements.
Section 7.05. Indemnification; Survival of Certain Provisions. The
Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Section 4.02 of the Participation Agreements. In addition,
the Borrower agrees to indemnify, protect, defend and hold harmless each
Liquidity Indemnitee from and against all Expenses of any kind or nature
whatsoever (other than any Expenses of the nature described in Sections 3.01 or
7.07 or in the Fee Letter (regardless of whether indemnified against pursuant to
said Sections or in such Fee Letter)), that may be imposed on or incurred by
such Liquidity Indemnitee, in any way relating to, resulting from, or arising
out of or in connection with, any action, suit or proceeding by any third party
against such Liquidity Indemnitee and relating to this Agreement, the Fee
Letter, the Intercreditor Agreement or any Participation Agreement; provided,
however, that the Borrower shall not be required to indemnify, protect, defend
and hold harmless any Liquidity Indemnitee in respect of any Expense of such
Liquidity Indemnitee to the extent such Expense is (i) attributable to the
negligence or willful misconduct of such Liquidity Indemnitee or any other
Liquidity Indemnitee, (ii) an ordinary and usual operating overhead expense,
(iii) attributable to the failure by such Liquidity Indemnitee or any other
Liquidity Indemnitee to perform or observe any agreement, covenant or condition
on its part to be performed or observed in this Agreement, the Intercreditor
Agreement, the Fee Letter or any other Operative Agreement to which it is a
party or (iv) otherwise excluded from the indemnification provisions contained
in Section 4.02 of the Participation Agreements. The provisions of Sections
3.01, 3.03, 3.09, 7.05 and 7.07 and the indemnities contained in Section 4.02 of
the Participation Agreements shall survive the termination of this Agreement.
Section 7.06. Liability of the Liquidity Provider. (a) Neither the
Liquidity Provider nor any of its officers, employees or directors shall be
liable or responsible for: (i) the use which may be made of the Advances or any
acts or omissions of the Borrower or any beneficiary or transferee in connection
therewith; (ii) the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in any or all
respects invalid, insufficient, fraudulent or forged; or (iii) the making of
Advances by the Liquidity Provider against delivery of a Notice of Borrowing and
other documents which do not comply with the terms hereof; provided, however,
that the Borrower shall have a claim against the Liquidity Provider, and the
Liquidity Provider shall be liable to the Borrower, to the extent of any damages
suffered by the Borrower that were the result of (A) the Liquidity Provider's
willful misconduct or gross negligence in determining whether documents
presented hereunder comply with the terms hereof or (B) any breach by the
Liquidity Provider of any of the terms of this Agreement or the Intercreditor
Agreement, including, but not limited to, the Liquidity Provider's failure to
make lawful payment hereunder after the delivery to it by the Borrower of a
Notice of Borrowing complying with the terms and conditions hereof.
(b) Neither the Liquidity Provider nor any of its officers, employees or
directors or affiliates shall be liable or responsible in any respect for (i)
any error, omission, interruption or delay in transmission, dispatch or delivery
of any message or advice, however transmitted, in connection with this Agreement
or any Notice of Borrowing delivered hereunder or (ii) any action, inaction or
omission which may be taken by it in good faith, absent willful misconduct or
negligence (in which event the extent of the Liquidity Provider's potential
liability to the Borrower shall be limited as set forth in the immediately
preceding paragraph), in connection with this Agreement or any Notice of
Borrowing.
Section 7.07. Certain Costs and Expenses. The Borrower agrees promptly to
pay, or cause to be paid, (a) the reasonable fees, expenses and disbursements of
Pillsbury Winthrop LLP, special counsel for the Liquidity Provider, in
connection with the preparation, negotiation, execution, delivery, filing and
recording of the Operative Agreements, any waiver or consent thereunder or any
amendment thereof and (b) if a Liquidity Event of Default occurs, all
out-of-pocket expenses incurred by the Liquidity Provider, including reasonable
fees and disbursements of counsel, in connection with such Liquidity Event of
Default and any collection, bankruptcy, insolvency and other enforcement
proceedings in connection therewith. In addition, the Borrower shall pay any and
all recording, stamp and other similar taxes and fees payable or determined to
be payable in the United States in connection with the execution, delivery,
filing and recording of this Agreement, any other Operative Agreement and such
other documents, and agrees to save the Liquidity Provider harmless from and
against any and all liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes or fees.
Section 7.08. Binding Effect; Participations. (a) This Agreement shall be
binding upon and inure to the benefit of the Borrower and the Liquidity Provider
and their respective successors and permitted assigns, except that neither the
Liquidity Provider (except as otherwise provided in this Section 7.08) nor
(except as contemplated by Section 3.08) the Borrower shall have the right to
assign, pledge or otherwise transfer its rights or obligations hereunder or any
interest herein, subject to the Liquidity Provider's right to grant
Participations pursuant to Section 7.08(b).
(b) The Liquidity Provider agrees that it will not grant any participation
(including, without limitation, a "RISK PARTICIPATION") (any such participation,
a "PARTICIPATION") in or to all or a portion of its rights and obligations
hereunder or under the other Operative Agreements, unless all of the following
conditions are satisfied: (i) such Participation is to a Permitted Transferee,
(ii) such Participation is made in accordance with all applicable laws,
including, without limitation, the Securities Act of 1933, as amended, the Trust
Indenture Act of 1939, as amended, and any other applicable laws relating to the
transfer of similar interests and (iii) such Participation shall not be made
under circumstances that require registration under the Securities Act of 1933,
as amended, or qualification of any indenture under the Trust Indenture Act of
1939, as amended. Notwithstanding any such Participation, the Liquidity Provider
agrees that (1) the Liquidity Provider's obligations under the Operative
Agreements shall remain unchanged, and such participant shall have no rights or
benefits as against Delta or the Borrower or under any Operative Agreement, (2)
the Liquidity Provider shall remain solely responsible to the other parties to
the Operative Agreements for the performance of such obligations, (3) the
Liquidity Provider shall remain the maker of any Advances, and the other parties
to the Operative Agreements shall continue to deal solely and directly with the
Liquidity Provider in connection with the Advances and the Liquidity Provider's
rights and obligations under the Operative Agreements, (4) the Liquidity
Provider shall be solely responsible for any withholding Taxes or any filing or
reporting requirements relating to such Participation and shall hold the
Borrower and Delta and their respective successors, permitted assigns,
affiliates, agents and servants harmless against the same and (5) neither Delta
nor the Borrower shall be required to pay to the Liquidity Provider any amount
under Section 3.01 or Section 3.03 greater than it would have been required to
pay had there not been any grant of a Participation by the Liquidity Provider.
The Liquidity Provider may, in connection with any Participation or proposed
Participation pursuant to this Section 7.08(b), disclose to the participant or
proposed participant any information relating to the Operative Agreements or to
the parties thereto furnished to the Liquidity Provider thereunder or in
connection therewith and permitted to be disclosed by the Liquidity Provider;
provided, however, that prior to any such disclosure, the participant or
proposed participant shall agree in writing for the express benefit of the
Borrower and Delta to preserve the confidentiality of any confidential
information included therein (subject to customary exceptions).
(c) Notwithstanding the other provisions of this Section 7.08, the
Liquidity Provider may assign and pledge all or any portion of the Advances
owing to it to any Federal Reserve Bank or the United States Treasury as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank, provided that any payment in respect of such assigned Advances made by the
Borrower to the Liquidity Provider in accordance with the terms of this
Agreement shall satisfy the Borrower's obligations hereunder in respect of such
assigned Advance to the extent of such payment. No such assignment shall release
the Liquidity Provider from its obligations hereunder.
Section 7.09. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 7.10. Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN THE
STATE OF NEW YORK AND THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of
Immunity. (a) Each of the parties hereto, to the extent it may do so under
applicable law, for purposes hereof hereby (i) irrevocably submits itself to the
non-exclusive jurisdiction of the courts of the State of New York sitting in the
City of New York and to the non-exclusive jurisdiction of the United States
District Court for the Southern District of New York, for the purposes of any
suit, action or other proceeding arising out of this Agreement, the subject
matter hereof or any of the transactions contemplated hereby brought by any
party or parties hereto or thereto, or their successors or permitted assigns and
(ii) waives, and agrees not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper or that this Agreement or the subject matter
hereof or any of the transactions contemplated hereby may not be enforced in or
by such courts.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE TO WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO
THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING
ESTABLISHED, including, without limitation, contract claims, tort claims, breach
of duty claims and all other common law and statutory claims. The Borrower and
the Liquidity Provider each warrant and represent that it has reviewed this
waiver with its legal counsel, and that it knowingly and voluntarily waives its
jury trial rights following consultation with such legal counsel. THIS WAIVER IS
IRREVOCABLE, AND CANNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT.
(c) The Liquidity Provider hereby waives any immunity it may have from the
jurisdiction of the courts of the United States or of any state thereof and
waives any immunity any of its properties located in the United States may have
from attachment or execution upon a judgment entered by any such court under the
United States Foreign Sovereign Immunities Act of 1976 or any similar successor
legislation.
Section 7.12. Counterparts. This Agreement may be executed in any number
of counterparts (and each party shall not be required to execute the same
counterpart). Each counterpart of this Agreement including a signature page or
pages executed by each of the parties hereto shall be an original counterpart of
this Agreement, but all of such counterparts together shall constitute one
instrument.
Section 7.13. Entirety. This Agreement and the Intercreditor Agreement
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof and supersede all prior understandings and agreements of
such parties.
Section 7.14. Headings. The headings of the various Articles and Sections
herein and in the Table of Contents hereto are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
Section 7.15. Liquidity Provider's Obligation to Make Advances. EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE LIQUIDITY PROVIDER
TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO DELIVER NOTICES OF
BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL BE ABSOLUTE,
UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE
STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first set forth above.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Subordination Agent,
as agent and trustee for the Class B Trust,
as Borrower
By:
---------------------------------------
Name:
Title:
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as Liquidity Provider
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
ANNEX I to
REVOLVING CREDIT AGREEMENT
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower
(the "BORROWER"), hereby certifies to LANDESBANK HESSEN-THURINGEN GIROZENTRALE
(the "LIQUIDITY PROVIDER"), with reference to the Revolving Credit Agreement
(2001-1B), dated as of September 17, 2001, between the Borrower and the
Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined or referenced),
that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of an Interest Advance by the Liquidity Provider to be used for the
payment of the interest on the Class B Certificates which is payable on
____________, ____ (the "DISTRIBUTION DATE") in accordance with the terms
and provisions of the Class B Trust Agreement and the Class B
Certificates, which Advance is requested to be made on ____________, ____.
The Interest Advance should be remitted to [insert wire and account
details].
(3) The amount of the Interest Advance requested hereby (i) is
$_______________.__, to be applied in respect of the payment of the
interest which is due and payable on the Class B Certificates on the
Distribution Date, (ii) does not include any amount with respect to the
payment of principal of, or premium on, the Class A-1 Certificates, the
Class A-2 Certificates, the Class B Certificates, the Class C Certificates
or the Class D Certificates, or interest on the Class A-1 Certificates,
the Class A-2 Certificates, the Class C Certificates or the Class D
Certificates, (iii) was computed in accordance with the provisions of the
Class B Certificates, the Class B Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule I),
(iv) does not exceed the Maximum Available Commitment on the date hereof
and (v) has not been and is not the subject of a prior or contemporaneous
Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will apply the same in accordance with
the terms of Section 3.06(b) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, the making of the Interest Advance as requested by this Notice of
Borrowing shall automatically reduce, subject to reinstatement in accordance
with the terms of the Liquidity Agreement, the Maximum Available Commitment by
an amount equal to the amount of the Interest Advance requested to be made
hereby as set forth in clause (i) of paragraph (3) of this Notice of Borrowing
and such reduction shall automatically result in corresponding reductions in the
amounts available to be borrowed pursuant to a subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest Advance Notice of
Borrowing]
ANNEX II to
REVOLVING CREDIT AGREEMENT
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
subordination agent (the "BORROWER"), hereby certifies to LANDESBANK
HESSEN-THURINGEN GIROZENTRALE (the "LIQUIDITY PROVIDER"), with reference to the
Revolving Credit Agreement (2001-1B), dated as of September 17, 2001, between
the Borrower and the Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined or referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Non-Extension Advance by the Liquidity Provider to be used
for the funding of the Class B Cash Collateral Account in accordance with
Section 3.06(d) of the Intercreditor Agreement, which Advance is requested
to be made on __________, ____. The Non-Extension Advance should be
remitted to [insert wire and account details].
(3) The amount of the Non-Extension Advance requested hereby (i) is
$_______________.__, which equals the Maximum Available Commitment on the
date hereof and is to be applied in respect of the funding of the Class B
Cash Collateral Account in accordance with Sections 3.06(d) and 3.06(f) of
the Intercreditor Agreement, (ii) does not include any amount with respect
to the payment of the principal of, or premium on, the Class B
Certificates, or principal of, or interest or premium on, the Class A-1
Certificates, the Class A-2 Certificates, the Class C Certificates or the
Class D Certificates, (iii) was computed in accordance with the provisions
of the Class B Certificates, the Class B Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I) and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Class B
Cash Collateral Account and apply the same in accordance with the terms of
Sections 3.06(d) and 3.06(f) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Non-Extension Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the obligation
of the Liquidity Provider to make further Advances under the Liquidity Agreement
and (B) following the making by the Liquidity Provider of the Non-Extension
Advance requested by this Notice of Borrowing, the Borrower shall not be
entitled to request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Non-Extension Advance Notice
of Borrowing]
ANNEX III to
REVOLVING CREDIT AGREEMENT
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
subordination agent (the "BORROWER"), hereby certifies to LANDESBANK
HESSEN-THURINGEN GIROZENTRALE (the "LIQUIDITY PROVIDER"), with reference to the
Revolving Credit Agreement (2001-1B), dated as of September __, 2001, between
the Borrower and the Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined or referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Downgrade Advance by the Liquidity Provider to be used for
the funding of the Class B Cash Collateral Account in accordance with
Section 3.06(c) of the Intercreditor Agreement by reason of the
downgrading of the short-term unsecured debt rating or long-term unsecured
debt rating of the Liquidity Provider issued by either Rating Agency below
the Threshold Rating, which Advance is requested to be made on __________,
____. The Downgrade Advance should be remitted to [insert wire and account
details].
(3) The amount of the Downgrade Advance requested hereby (i) is
$_______________.__, which equals the Maximum Available Commitment on the
date hereof and is to be applied in respect of the funding of the Class B
Cash Collateral Account in accordance with Sections 3.06(c) and 3.06(f) of
the Intercreditor Agreement, (ii) does not include any amount with respect
to the payment of the principal of, or premium on, the Class B
Certificates, or principal of, or interest or premium on, the Class A-1
Certificates, the Class A-2 Certificates, the Class C Certificates or the
Class D Certificates, (iii) was computed in accordance with the provisions
of the Class B Certificates, the Class B Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I) and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Class B
Cash Collateral Account and apply the same in accordance with the terms of
Sections 3.06(c) and 3.06(f) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Downgrade Advance as requested by this Notice
of Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement and
(B) following the making by the Liquidity Provider of the Downgrade Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Downgrade Advance Notice of
Borrowing]
ANNEX IV to
REVOLVING CREDIT AGREEMENT
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower
(the "BORROWER"), hereby certifies to LANDESBANK HESSEN-THURINGEN GIROZENTRALE
(the "LIQUIDITY PROVIDER"), with reference to the Revolving Credit Agreement
(2001-1B), dated as of September 17, 2001, between the Borrower and the
Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined or referenced),
that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Final Advance by the Liquidity Provider to be used for the
funding of the Class B Cash Collateral Account in accordance with Section
3.06(i) of the Intercreditor Agreement by reason of the receipt by the
Borrower of a Termination Notice from the Liquidity Provider with respect
to the Liquidity Agreement, which Advance is requested to be made on
____________, ____. The Final Advance should be remitted to [insert wire
and account details].
(3) The amount of the Final Advance requested hereby (i) is
$_________________.__, which equals the Maximum Available Commitment on
the date hereof and is to be applied in respect of the funding of the
Class B Cash Collateral Account in accordance with Sections 3.06(f) and
3.06(i) of the Intercreditor Agreement, (ii) does not include any amount
with respect to the payment of principal of, or premium on, the Class B
Certificates, or principal of, or interest or premium on, the Class A-1
Certificates, the Class A-2 Certificates, the Class C Certificates or the
Class D Certificates, (iii) was computed in accordance with the provisions
of the Class B Certificates, the Class B Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I) and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Class B
Cash Collateral Account and apply the same in accordance with the terms of
Sections 3.06(f) and 3.06(i) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
(5) [The Borrower hereby requests that the Advance requested hereby
be a Base Rate Advance [and that such Base Rate Advance be converted into
a LIBOR Advance on the third Business Day following your receipt of this
notice]*.]
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Final Advance as requested by this Notice of
Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement and
(B) following the making by the Liquidity Provider of the Final Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
----------
[* Bracketed language may be included at Borrower's option.]
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Final Advance Notice of
Borrowing]
ANNEX V to
REVOLVING CREDIT AGREEMENT
NOTICE OF TERMINATION
[Date]
State Street Bank and Trust
Company of Connecticut,
National Association, as
Subordination Agent, as
Borrower
225 Asylum Street
Goodwin Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Re: Revolving Credit Agreement, dated as of September 17,
2001, between State Street Bank and Trust Company of
Connecticut, National Association, as Subordination
Agent, as agent and trustee for the Delta Air Lines
Pass Through Trust 2001-1B, as Borrower, and
Landesbank Hessen-Thuringen Girozentrale (the
"LIQUIDITY AGREEMENT")
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.01 of the Liquidity
Agreement, by reason of the occurrence and continuance of a Liquidity Event of
Default and the existence of a Performing Note Deficiency (each as defined
therein), we are giving this notice to you in order to cause (i) our obligations
to make Advances (as defined therein) under such Liquidity Agreement to
terminate at the close of business on the fifth Business Day after the date on
which you receive this notice and (ii) you to request a Final Advance under the
Liquidity Agreement pursuant to Section 3.06(i) of the Intercreditor Agreement
(as defined in the Liquidity Agreement) as a consequence of your receipt of this
notice.
THIS NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR UNDER THE
LIQUIDITY AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY
AGREEMENT WILL TERMINATE AT THE
CLOSE OF BUSINESS ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU RECEIVE
THIS NOTICE.
Very truly yours,
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as Liquidity Provider
By:
------------------------------------
Name:
Title:
cc: State Street Bank and Trust Company of Connecticut,
National Association, as Class B Trustee
ANNEX VI to
REVOLVING CREDIT AGREEMENT
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Re: Revolving Credit Agreement, dated as of September 17, 2001,
between State Street Bank and Trust Company of Connecticut,
National Association, as Subordination Agent, as agent and
trustee for the Delta Air Lines Pass Through Trust 2001-1B, as
Borrower, and Landesbank Hessen-Thuringen Girozentrale (the
"LIQUIDITY AGREEMENT")
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
[Name of Transferee]
[Address of Transferee]
all rights and obligations of the undersigned as Borrower under the Liquidity
Agreement referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the first
paragraph of the Liquidity Agreement, pursuant to the terms of Section 7.01 of
the Intercreditor Agreement.
By this transfer, all rights of the undersigned as Borrower under the
Liquidity Agreement are transferred to the transferee and the transferee shall
hereafter have the sole rights and obligations as Borrower thereunder. The
undersigned shall pay any costs and expenses of such transfer, including, but
not limited to, transfer taxes or governmental charges.
This transfer shall be effective as of [specify time and date].
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
EX-4.(C)(4)
13
de600102-ex4c4.txt
REVOLVING CREDIT AGREEMENT (2001-1C)
EXHIBIT 4(c)(4)
EXECUTION COPY
REVOLVING CREDIT AGREEMENT
(2001-1C)
Dated as of September 17, 2001
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Subordination Agent,
as agent and trustee for the trustee of
Delta Air Lines Pass Through Trust 2001-1C,
as Borrower
and
LANDESBANK HESSEN-THURINGEN GIROZENTRALE
as Liquidity Provider
Delta Air Lines Pass Through Trust 2001-1C
7.299% Delta Air Lines
Pass Through Certificates,
Series 2001-1C
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Definitions...................................................
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances..................................................
Section 2.02. Making of Advances............................................
Section 2.03. Fees..........................................................
Section 2.04. Reduction or Termination of the Maximum Commitment............
Section 2.05. Repayments of Interest Advances or the Final Advance..........
Section 2.06. Repayments of Provider Advances...............................
Section 2.07. Payments to the Liquidity Provider Under the Intercreditor
Agreement.....................................................
Section 2.08. Book Entries..................................................
Section 2.09. Payments from Available Funds Only............................
Section 2.10. Extension of the Expiry Date; Non-Extension Advance...........
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs...............................................
Section 3.02. [Intentionally omitted.]......................................
Section 3.03. Withholding Taxes.............................................
Section 3.04. Payments......................................................
Section 3.05. Computations..................................................
Section 3.06. Payment on Non-Business Days..................................
Section 3.07. Interest......................................................
Section 3.08. Replacement of Borrower.......................................
Section 3.09. Funding Loss Indemnification..................................
Section 3.10. Illegality....................................................
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01.........
Section 4.02. Conditions Precedent to Borrowing.............................
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower.........................
Section 5.02. Negative Covenants of the Borrower............................
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default...................................
ARTICLE VII
MISCELLANEOUS
Section 7.01. No Oral Modifications or Continuing Waivers...................
Section 7.02. Notices.......................................................
Section 7.03. No Waiver; Remedies...........................................
Section 7.04. Further Assurances............................................
Section 7.05. Indemnification; Survival of Certain Provisions...............
Section 7.06. Liability of the Liquidity Provider...........................
Section 7.07. Certain Costs and Expenses....................................
Section 7.08. Binding Effect; Participations................................
Section 7.09. Severability..................................................
Section 7.10. Governing Law.................................................
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of
Immunity......................................................
Section 7.12. Counterparts..................................................
Section 7.13. Entirety......................................................
Section 7.14. Headings......................................................
Section 7.15. Liquidity Provider's Obligation to Make Advances..............
Annex I - Interest Advance Notice of Borrowing
Annex II - Non-Extension Advance Notice of Borrowing
Annex III - Downgrade Advance Notice of Borrowing
Annex IV - Final Advance Notice of Borrowing
Annex V - Notice of Termination
Annex VI - Notice of Replacement Subordination Agent
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT, dated as of September 17, 2001, is made
by and between STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity but
solely as Subordination Agent (such term and other capitalized terms used herein
without definition being defined as provided in Article I) under the
Intercreditor Agreement (as defined below), as agent and trustee for the Class C
Trustee (in such capacity, together with its successors in such capacity, the
"BORROWER"), and LANDESBANK HESSEN-THURINGEN GIROZENTRALE ("Helaba"), a banking
institution organized under the laws of Germany (the "LIQUIDITY PROVIDER").
W I T N E S S E T H:
WHEREAS, pursuant to the Class C Trust Agreement, the Class C Trust is
issuing the Class C Certificates; and
WHEREAS, the Borrower, in order to support the timely payment of a portion
of the interest on the Class C Certificates in accordance with their terms, has
requested the Liquidity Provider to enter into this Agreement, providing in part
for the Borrower to request in specified circumstances that Advances be made
hereunder;
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. (a) The definitions stated herein apply equally
to both the singular and the plural forms of the terms defined.
(b) All references in this Agreement to designated "Articles", "Sections",
"Annexes" and other subdivisions are to the designated Article, Section, Annex
or other subdivision of this Agreement, unless otherwise specifically stated.
(c) 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, Annex or other subdivision.
(d) 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".
(e) For the purposes of this Agreement, unless the context otherwise
requires, the following capitalized terms shall have the following meanings:
"ADVANCE" means an Interest Advance, a Final Advance, a Provider
Advance, an Unapplied Provider Advance, an Applied Provider Advance or an
Unpaid Advance, as the case may be.
"AGREEMENT" means this Agreement, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
"APPLICABLE LIQUIDITY RATE" has the meaning specified in Section
3.07(g).
"APPLICABLE MARGIN" means (a) with respect to any Unpaid Advance or
Applied Provider Advance, 1.50% per annum, or (b) with respect to any
Unapplied Provider Advance, the rate per annum specified in the Fee Letter
applicable to this Agreement.
"APPLIED DOWNGRADE ADVANCE" has the meaning specified in Section
2.06(a).
"APPLIED NON-EXTENSION ADVANCE" has the meaning specified in Section
2.06(a).
"APPLIED PROVIDER ADVANCE" means an Applied Downgrade Advance or an
Applied Non-Extension Advance.
"BASE RATE" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers,
as published for each day in the period for which the Base Rate is to be
determined (or, if such day is not a Business Day, for the preceding
Business Day) by the Federal Reserve Bank of New York, or if such rate is
not so published for any day that is a Business Day, the average of the
quotations for such day for such transactions received by the Liquidity
Provider from three Federal funds brokers of recognized standing selected
by it (and reasonably satisfactory to Delta) plus one-quarter of one
percent (0.25%).
"BASE RATE ADVANCE" means an Advance that bears interest at a rate
based upon the Base Rate.
"BORROWER" has the meaning specified in the introductory paragraph
to this Agreement.
"BORROWING" means the making of Advances requested by delivery of a
Notice of Borrowing.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a
day on which commercial banks are required or authorized to close in New
York, New York, Atlanta, Georgia, or, so long as any Class C Certificate
is outstanding, the city and state in which the Class C Trustee, the
Borrower or any related Loan Trustee maintains its Corporate Trust Office
or receives or disburses funds, and, if the applicable Business Day
relates to any Advance or other amount bearing interest based on the LIBOR
Rate, on which dealings are carried on in the London interbank market.
"CONSENT PERIOD" has the meaning specified in Section 2.10.
"COVERED TAXES" means any Taxes imposed by the United States or any
political subdivision or taxing authority thereof or therein required by
law to be deducted or withheld from any amounts payable to the Liquidity
Provider under this Agreement other than (i) any Tax on, based on or
measured by net income, franchises or conduct of business, (ii) any Tax
imposed, levied, withheld or assessed as a result of any connection
between the Liquidity Provider and the United States or such political
subdivision or taxing authority, other than a connection arising solely
from the Liquidity Provider's having executed, delivered, performed its
obligations or received a payment under, or enforced, any Operative
Agreement, (iii) any Tax attributable to the inaccuracy in or breach by
the Liquidity Provider of any of its representations, warranties or
covenants contained in any Operative Agreement to which it is a party or
the inaccuracy of any form or document furnished pursuant thereto, (iv)
any withholding Taxes imposed by the United States except to the extent
such withholding Taxes would not have been required to be deducted or
withheld from payments hereunder but for a change after the date hereof
(or in the case of a successor Liquidity Provider (including a transferee
of an Advance) after the date on which such successor Liquidity Provider
obtains its interest) in applicable law (excluding from "change in
applicable law" for this purpose, a change in an applicable treaty or
other change in law affecting the applicability of a treaty other than the
applicable income tax treaty between the United States of America and the
Federal Republic of Germany ("German Treaty") (except an addition to, or
change in any "anti-treaty shopping", "limitation of benefits" or similar
provision in such German Treaty)), (v) any withholding Taxes imposed by
the United States which are imposed or increased as a result of the
Liquidity Provider failing to deliver to the Borrower any certificate or
document (which certificate or document in the good faith judgment of the
Liquidity Provider, it is legally entitled to provide) which is reasonably
requested by the Borrower to establish that payments under this Agreement
are exempt from (or entitled to a reduced rate of) withholding Tax, or
(vi) any change in the Lending Office without the prior written consent of
Delta (such consent not to be unreasonably withheld).
"DOWNGRADE ADVANCE" means an Advance made pursuant to Section
2.02(c).
"DOWNGRADE EVENT" means a downgrading of the Liquidity Provider's
short-term unsecured debt rating issued by either Rating Agency (or if the
Liquidity Provider does not have a short-term unsecured debt rating issued
by a given Rating Agency, the long-term unsecured debt rating issued by
such Rating Agency) below the applicable Threshold Rating unless each
Rating Agency shall have confirmed in writing on or prior to the date of
such downgrading that such downgrading will not result in the downgrading,
withdrawal or suspension of the ratings of the Class C Certificates, in
which case, such downgrading of the Liquidity Provider's short-term
unsecured debt rating shall not constitute a Downgrade Event and shall be
referred to herein as a "HELABA DOWNGRADE".
"EFFECTIVE DATE" has the meaning specified in Section 4.01. The
delivery of the certificate of the Liquidity Provider contemplated by
Section 4.01(f) shall be conclusive evidence that the Effective Date has
occurred.
"EXCLUDED TAXES" means (a) Taxes imposed on the overall net income
of the Liquidity Provider, (b) Covered Taxes that are indemnified pursuant
to Section 3.03 hereof, and (c) Taxes described in clauses (i) through
(vi) in the definition of "Covered Taxes".
"EXPENSES" means liabilities, losses, damages, costs and expenses
(including, without limitation, reasonable fees and disbursements of legal
counsel), provided that Expenses shall not include any Taxes other than
sales, use and V.A.T. taxes imposed on fees and expenses payable pursuant
to Section 7.07.
"EXPIRY DATE" means September 15, 2002, initially, or any date to
which the Expiry Date is extended pursuant to Section 2.10.
"FINAL ADVANCE" means an Advance made pursuant to Section 2.02(d).
"HELABA DOWNGRADE" has the meaning assigned to such term in the
definition of "Downgrade Event".
"INCREASED COST" has the meaning specified in Section 3.01.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement, dated
as of the date hereof, among the Trustees, the Liquidity Provider, the
liquidity provider under each Liquidity Facility (other than this
Agreement) and the Subordination Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
its terms.
"INTEREST ADVANCE" means an Advance made pursuant to Section
2.02(a).
"INTEREST PERIOD" means, with respect to any LIBOR Advance, each of
the following periods:
(i) the period beginning on the third Business Day following
either (A) the Liquidity Provider's receipt of the Notice of
Borrowing for such LIBOR Advance or (B) the date of the withdrawal
of funds from the Class C Cash Collateral Account for the purpose of
paying interest on the Class C Certificates as contemplated by
Section 2.06(a) hereof and, in each case, ending on the next
numerically corresponding day in the first calendar month after the
first day of the applicable Interest Period; and
(ii) each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the numerically
corresponding day in the first calendar month after the first day of
the applicable Interest Period;
provided, however, that if (x) the Final Advance shall have been made
pursuant to Section 2.02(d) or (y) other outstanding Advances shall have
been converted into the Final Advance pursuant to Section 6.01, then the
Interest Periods shall be successive periods of one month beginning on the
third Business Day following the Liquidity Provider's receipt of the
Notice of Borrowing for such Final Advance (in the case of clause (x)
above) or the Regular Distribution Date following such conversion (in the
case of clause (y) above).
"LENDING OFFICE" means the lending office of the Liquidity Provider
presently located at Frankfurt, Germany, or such other lending office as
the Liquidity Provider from time to time shall notify the Borrower as its
lending office hereunder; provided that the Liquidity Provider shall not
change its Lending Office without the prior written consent of Delta (such
consent not to be unreasonably withheld).
"LIBOR ADVANCE" means an Advance bearing interest at a rate based
upon the LIBOR Rate.
"LIBOR RATE" means, with respect to any Interest Period, (a) the
interest rate per annum equal to the rate per annum at which deposits in
Dollars are offered in the London interbank market as shown on Page 3750
of the Telerate Systems Incorporated screen service (or such other page as
may replace Telerate Page 3750), or if such service is not available, Page
LIBO of the Reuters Money Service Monitor System (or such other page as
may replace Reuters Page LIBO) at approximately 11:00 a.m. (London time)
on the day that is two Business Days prior to the first day of such
Interest Period, for a period comparable to such Interest Period, or (b)
if no such rate is published on either such service or if neither of such
services is then available, the interest rate per annum equal to the
average (rounded up, if necessary, to the nearest 1/100th of 1%) of the
rates at which deposits in Dollars are offered by the Reference Banks (or,
if fewer than all of the Reference Banks are quoting a rate for deposits
in Dollars for the applicable period and amount, such fewer number of
Reference Banks) at approximately 11:00 a.m. (London time) on the day that
is two Business Days prior to the first day of such Interest Period to
prime banks in the London interbank market for a period comparable to such
Interest Period and in an amount approximately equal to the principal
amount of the LIBOR Advance to be outstanding during such Interest Period,
or (c) if none of the Reference Banks is quoting a rate for deposits in
Dollars in the London interbank market for such a period and amount, the
interest rate per annum equal to the average (rounded up, if necessary, to
the nearest 1/100th of 1%) of the rates at which deposits in Dollars are
offered by the principal New York offices of the Reference Banks (or, if
fewer than all of the Reference Banks are quoting a rate for deposits in
Dollars in the New York interbank market for the applicable period and
amount, such fewer number of Reference Banks) at approximately 11:00 a.m.
(New York time) on the day that is two Business Days prior to the first
day of such Interest Period to prime banks in the New York interbank
market for a period comparable to such Interest Period and in an amount
approximately equal to the principal amount of the LIBOR Advance to be
outstanding during such Interest Period, or (d) if none of the principal
New York offices of the Reference Banks is quoting a rate for deposits in
Dollars in the New York interbank market for the applicable period and
amount, the Base Rate.
"LIQUIDITY EVENT OF DEFAULT" means the occurrence of either (a) the
Acceleration of all of the Equipment Notes or (b) a Delta Bankruptcy
Event.
"LIQUIDITY INDEMNITEE" means the Liquidity Provider, its directors,
officers, employees and agents, and its successors and permitted assigns.
"LIQUIDITY PROVIDER" has the meaning specified in the introductory
paragraph to this Agreement.
"MAXIMUM AVAILABLE COMMITMENT" means, subject to the proviso
contained in the third sentence of Section 2.02(a), at any time of
determination, (a) the Maximum Commitment at such time less (b) the
aggregate amount of each Interest Advance outstanding at such time;
provided that following a Provider Advance or a Final Advance, the Maximum
Available Commitment shall be zero.
"MAXIMUM COMMITMENT" means $18,623,005.57 as the same may be reduced
from time to time in accordance with Section 2.04(a).
"NON-EXTENSION ADVANCE" means an Advance made pursuant to Section
2.02(b).
"NOTICE OF BORROWING" has the meaning specified in Section 2.02(e).
"NOTICE OF REPLACEMENT SUBORDINATION AGENT" has the meaning
specified in Section 3.08.
"PARTICIPATION" has the meaning specified in Section 7.08(b).
"PERFORMING NOTE DEFICIENCY" means any time that less than 65% of
the then aggregate outstanding principal amount of all Equipment Notes are
Performing Equipment Notes.
"PERMITTED TRANSFEREE" means any Person that:
(a) is not a commercial air carrier, Delta or any affiliate of
Delta; and
(b) is any one of:
(1) a commercial banking institution organized under the
laws of the United States or any state thereof or the District
of Columbia;
(2) a commercial banking institution that (x) is
organized under the laws of France, Germany, The Netherlands,
Switzerland or the United Kingdom, (y) is entitled on the date
it acquires any Participation to a complete exemption from
United States federal income taxes for all income derived by
it from the transactions contemplated by the Operative
Agreements under an income tax treaty, as in effect on such
date, between the United States and such jurisdiction of its
organization and (z) is engaged in the active conduct of a
banking business in such jurisdiction of its organization,
holds its Participation in connection with such banking
business in such jurisdiction and is regulated as a commercial
banking institution by the appropriate regulatory authorities
in such jurisdiction; or
(3) a commercial banking institution that (x) is
organized under the laws of Canada, France, Germany, Ireland,
Japan, Luxembourg, The Netherlands, Sweden, Switzerland or the
United Kingdom and (y) is entitled on the date it acquires any
Participation to a complete exemption from withholding of
United States federal income taxes for all income derived by
it from the transactions contemplated by the Operative
Agreements under laws as in effect on such date by reason of
such income being effectively connected with the conduct of a
trade or business within the United States.
"PROSPECTUS SUPPLEMENT" means the Prospectus Supplement dated
September 6, 2001, relating to the Class A-1, Class A-2, Class B and Class
C Certificates, as such Prospectus Supplement may be amended or
supplemented.
"PROVIDER ADVANCE" means a Downgrade Advance or a Non-Extension
Advance.
"REFERENCE BANKS" means the principal London offices of: National
Westminster Bank, plc; Helaba; The Chase Manhattan Bank; Citibank, N.A.;
and such other or additional banking institutions as may be designated
from time to time by mutual agreement of Delta and the Liquidity Provider.
"REGULATORY CHANGE" means the enactment, adoption or promulgation,
after the date of this Agreement, of any law or regulation by a United
States federal or state government or by any government having
jurisdiction over the Liquidity Provider, or any change, after the date of
this Agreement, in any such law or regulation, or in the interpretation
thereof by any governmental authority, central bank or comparable agency
of the United States or any government having jurisdiction over the
Liquidity Provider charged with responsibility for the administration or
application thereof, that shall impose, modify or deem applicable or the
compliance by the Liquidity Provider (or its head office) with any
applicable direction or requirement (whether or not having the force of
law) of any central bank or competent governmental or other authority with
respect to: (a) any reserve, special deposit or similar requirement
against extensions of credit or other assets of, or deposits with or other
liabilities of, the Liquidity Provider including, or by reason of, the
Advances, or (b) any capital adequacy requirement requiring the
maintenance by the Liquidity Provider of additional capital in respect of
any Advances or the Liquidity Provider's obligation to make any such
Advances or (c) any Taxes (other than Excluded Taxes) with respect to the
amounts payable or paid or change the basis of taxation of any amounts
payable to the Liquidity Provider (other than in respect of Excluded
Taxes).
"REPLENISHMENT AMOUNT" has the meaning specified in Section 2.06(b).
"REQUIRED AMOUNT" means, for any day, the sum of the aggregate
amount of interest, calculated at the rate per annum equal to the Stated
Interest Rate for the Class C Certificates on the basis of a 360-day year
comprised of twelve 30-day months, that would be payable on the Class C
Certificates on each of the three successive semiannual Regular
Distribution Dates immediately following such day or, if such day is a
Regular Distribution Date, on such day and the succeeding two semiannual
Regular Distribution Dates, in each case calculated on the basis of the
Pool Balance of the Class C Certificates on such day and without regard to
expected future distributions of principal on the Class C Certificates.
"TERMINATION DATE" means the earliest to occur of the following: (i)
the Expiry Date; (ii) the date on which the Borrower delivers to the
Liquidity Provider a certificate, signed by a Responsible Officer of the
Borrower, certifying that all of the Class C Certificates have been paid
in full (or provision has been made for such payment in accordance with
the Intercreditor Agreement and the Class C Trust Agreement) or are
otherwise no longer entitled to the benefits of this Agreement; (iii) the
date on which the Borrower delivers to the Liquidity Provider a
certificate, signed by a Responsible Officer of the Borrower, certifying
that a Replacement Liquidity Facility has been substituted for this
Agreement in full pursuant to Section 3.06(e) of the Intercreditor
Agreement; (iv) the fifth Business Day following the receipt by the
Borrower of a Termination Notice from the Liquidity Provider pursuant to
Section 6.01; and (v) the date on which no Advance is or may (including by
reason of reinstatement as herein provided) become available for a
Borrowing hereunder.
"TERMINATION NOTICE" means the Notice of Termination substantially
in the form of Annex V to this Agreement.
"UNAPPLIED NON-EXTENSION ADVANCE": Any portion of a Non-Extension
Advance which is not an Applied Non-Extension Advance.
"UNAPPLIED PROVIDER ADVANCE" means any Provider Advance other than
an Applied Provider Advance.
"UNPAID ADVANCE" has the meaning specified in Section 2.05.
For the purposes of this Agreement, the following terms shall have the
respective meanings specified in the Intercreditor Agreement:
"Acceleration", "Certificate", "Class A-1 Certificates", "Class A-2
Certificates", "Class B Certificates", "Class C Cash Collateral Account",
"Class C Certificates", "Class C Certificateholders", "Class C Trust",
"Class C Trust Agreement", "Class C Trustee", "Class A-2 Certificates",
"Class B Certificates", "Class C Certificates", "Class D Certificates",
"Closing Date", "Collection Account", "Controlling Party", "Corporate
Trust Office", "Delta", "Delta Bankruptcy Event", "Distribution Date",
"Dollars", "Downgraded Facility", "Equipment Notes", "Fee Letter", "Final
Legal Distribution Date", "Indenture", "Initial Class D Holder", "Interest
Payment Date", "Investment Earnings", "Liquidity Facility", "Liquidity
Obligations", "Loan Trustee", "Moody's", "Non-Extended Facility",
"Operative Agreements", "Participation Agreements", "Performing Equipment
Note", "Person", "Pool Balance", "Rating Agencies", "Ratings
Confirmation", "Regular Distribution Date", "Replacement Liquidity
Facility", "Responsible Officer", "Scheduled Payment", "Special Payment",
"S&P", "Stated Interest Rate", "Subordination Agent", "Taxes", "Threshold
Rating", "Trust Agreement", "Trustee", "Underwriters", "Underwriting
Agreement", "United States" and "Written Notice".
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.01. The Advances. The Liquidity Provider hereby irrevocably
agrees, on the terms and conditions hereinafter set forth, to make Advances to
the Borrower from time to time on any Business Day during the period from the
Effective Date until 12:00 noon (New York City time) on the Expiry Date (unless
the obligations of the Liquidity Provider shall be earlier terminated in
accordance with the terms of Section 2.04(b)) in an aggregate amount at any time
outstanding not to exceed the Maximum Commitment.
Section 2.02. Making of Advances (a) Each Interest Advance shall be made
by the Liquidity Provider upon delivery to the Liquidity Provider of a written
and completed Notice of Borrowing in substantially the form of Annex I, signed
by a Responsible Officer of the Borrower, such Interest Advance to be in an
amount not exceeding the Maximum Available Commitment at such time and used
solely for the payment when due of interest with respect to the Class C
Certificates at the Stated Interest Rate therefor in accordance with Section
3.06(a) and 3.06(b) of the Intercreditor Agreement. Each Interest Advance made
hereunder shall automatically reduce the Maximum Available Commitment and the
amount available to be borrowed hereunder by subsequent Advances by the amount
of such Interest Advance (subject to reinstatement as provided in the next
sentence). Upon repayment to the Liquidity Provider in full or in part of the
amount of any Interest Advance made pursuant to this Section 2.02(a), together
with accrued interest thereon (as provided herein), the Maximum Available
Commitment shall be reinstated by an amount equal to the amount of such Interest
Advance so repaid, but not to exceed the Maximum Commitment; provided, however,
that the Maximum Available Commitment shall not be so reinstated at any time if
(x) both a Performing Note Deficiency exists and a Liquidity Event of Default
shall have occurred and be continuing or (y) a Final Drawing shall have
occurred.
(b) Subject to Section 2.10, a Non-Extension Advance shall be made by the
Liquidity Provider if this Agreement is not extended in accordance with Section
3.06(d) of the Intercreditor Agreement (unless a Replacement Liquidity Facility
to replace this Agreement shall have been delivered to the Borrower as
contemplated by said Section 3.06(d) within the time period specified in such
Section 3.06(d)) upon delivery to the Liquidity Provider of a written and
completed Notice of Borrowing in substantially the form of Annex II, signed by a
Responsible Officer of the Borrower, in an amount equal to the Maximum Available
Commitment at such time, and shall be used to fund the Class C Cash Collateral
Account in accordance with Sections 3.06(d) and 3.06(f) of the Intercreditor
Agreement.
(c) A Downgrade Advance shall be made by the Liquidity Provider upon the
occurrence of a Downgrade Event (as provided for in Section 3.06(c) of the
Intercreditor Agreement) unless a Replacement Liquidity Facility to replace this
Agreement shall have been previously delivered to the Borrower in accordance
with said Section 3.06(c), upon delivery to the Liquidity Provider of a written
and completed Notice of Borrowing in substantially the form of Annex III, signed
by a Responsible Officer of the Borrower, in an amount equal to the Maximum
Available Commitment at such time, and shall be used to fund the Class C Cash
Collateral Account in accordance with Sections 3.06(c) and 3.06(f) of the
Intercreditor Agreement.
(d) A Final Advance shall be made by the Liquidity Provider following the
receipt by the Borrower of a Termination Notice from the Liquidity Provider
pursuant to Section 6.01 upon delivery to the Liquidity Provider of a written
and completed Notice of Borrowing in substantially the form of Annex IV, signed
by a Responsible Officer of the Borrower, in an amount equal to the Maximum
Available Commitment at such time, and shall be used to fund the Class C Cash
Collateral Account (in accordance with Sections 3.06(f) and 3.06(i) of the
Intercreditor Agreement).
(e) Each Borrowing shall be made on notice in writing (a "NOTICE OF
BORROWING") in substantially the form required by Section 2.02(a), 2.02(b),
2.02(c) or 2.02(d), as the case may be, given by the Borrower to the Liquidity
Provider. If a Notice of Borrowing is delivered by the Borrower in respect of
any Borrowing no later than 1:00 p.m. (New York City time) on a Business Day,
upon satisfaction of the conditions precedent set forth in Section 4.02 with
respect to a requested Borrowing, the Liquidity Provider shall make available to
the Borrower, in accordance with its payment instructions, the amount of such
Borrowing in Dollars and immediately available funds, before 4:00 p.m. (New York
City time) on such Business Day or before 1:00 p.m. (New York City time) on such
later Business Day specified in such Notice of Borrowing. If a Notice of
Borrowing is delivered by the Borrower in respect of any Borrowing after 1:00
p.m. (New York City time) on a Business Day, upon satisfaction of the conditions
precedent set forth in Section 4.02 with respect to a requested Borrowing, the
Liquidity Provider shall make available to the Borrower, in accordance with its
payment instructions, the amount of such Borrowing in Dollars and immediately
available funds, before 1:00 p.m. (New York City time) on the first Business Day
next following the day of receipt of such Notice of Borrowing or on such later
Business Day specified by the Borrower in such Notice of Borrowing. Payments of
proceeds of a Borrowing shall be made by wire transfer of immediately available
funds to the Borrower in accordance with such wire transfer instructions as the
Borrower shall furnish from time to time to the Liquidity Provider for such
purpose. Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. Each Notice of Borrowing shall be effective upon delivery of a copy
thereof to the Liquidity Provider's New York branch at the address specified in
Section 7.02 hereof.
(f) Upon the making of any Advance requested pursuant to a Notice of
Borrowing in accordance with the Borrower's payment instructions, the Liquidity
Provider shall be fully discharged of its obligation hereunder with respect to
such Notice of Borrowing, and the Liquidity Provider shall not thereafter be
obligated to make any further Advances hereunder in respect of such Notice of
Borrowing to the Borrower or to any other Person (including the Trustee or any
Class C Certificateholder). If the Liquidity Provider makes an Advance requested
pursuant to a Notice of Borrowing before 12:00 noon (New York City time) on the
second Business Day after the date of payment specified in said Section 2.02(e),
the Liquidity Provider shall have fully discharged its obligations hereunder
with respect to such Advance and an event of default shall not have occurred
hereunder. Following the making of any Advance pursuant to Section 2.02(b),
2.02(c) or 2.02(d) to fund the Class C Cash Collateral Account, the Liquidity
Provider shall have no interest in or rights to the Class C Cash Collateral
Account, such Advance or any other amounts from time to time on deposit in the
Class C Cash Collateral Account; provided that the foregoing shall not affect or
impair the obligations of the Subordination Agent to make the distributions
contemplated by Section 3.06(e) or 3.06(f) of the Intercreditor Agreement and
provided further, that the foregoing shall not affect or impair the rights of
the Liquidity Provider to provide written instructions with respect to the
investment and reinvestment of amounts in the Class C Cash Collateral Account to
the extent provided in Section 2.02(b) of the Intercreditor Agreement. By paying
to the Borrower proceeds of Advances requested by the Borrower in accordance
with the provisions of this Agreement, the Liquidity Provider makes no
representation as to, and assumes no responsibility for, the correctness or
sufficiency for any purpose of the amount of the Advances so made and requested.
Section 2.03. Fees. The Borrower agrees to pay to the Liquidity Provider
the fees set forth in the Fee Letter.
Section 2.04. Reduction or Termination of the Maximum Commitment. (a)
Automatic Reduction. Promptly following each date on which the Required Amount
is reduced as a result of a reduction in the Pool Balance of the Class C
Certificates or otherwise, the Maximum Commitment shall automatically be reduced
to an amount equal to such reduced Required Amount (as calculated by the
Borrower). The Borrower shall give notice of any such automatic reduction of the
Maximum Commitment to the Liquidity Provider and Delta within two Business Days
thereof. The failure by the Borrower to furnish any such notice shall not affect
such automatic reduction of the Maximum Commitment.
(b) Termination. Upon the making of any Provider Advance or Final Advance
hereunder or the occurrence of the Termination Date, the obligation of the
Liquidity Provider to make further Advances hereunder shall automatically and
irrevocably terminate, and the Borrower shall not be entitled to request any
further Borrowing hereunder.
Section 2.05. Repayments of Interest Advances or the Final Advance.
Subject to Sections 2.06, 2.07 and 2.09 hereof, the Borrower hereby agrees,
without notice of an Advance or demand for repayment from the Liquidity Provider
(which notice and demand are hereby waived by the Borrower), to pay, or to cause
to be paid, to the Liquidity Provider (a) on each date on which the Liquidity
Provider shall make an Interest Advance or the Final Advance, an amount equal to
the amount of such Advance (any such Advance, until repaid, is referred to
herein as an "UNPAID ADVANCE"), plus (b) interest on the amount of each such
Unpaid Advance in the amounts and on the dates determined as provided in Section
3.07; provided that if (i) the Liquidity Provider shall make a Provider Advance
at any time after making one or more Interest Advances which shall not have been
repaid in accordance with this Section 2.05 or (ii) this Liquidity Facility
shall become a Downgraded Facility or Non-Extended Facility at any time when
unreimbursed Interest Advances have reduced the Maximum Available Commitment to
zero, then such Interest Advances shall cease to constitute Unpaid Advances and
shall be deemed to have been changed into an Applied Downgrade Advance or an
Applied Non-Extension Advance, as the case may be, for all purposes of this
Agreement (including, without limitation, for the purpose of determining when
such Interest Advance is required to be repaid to the Liquidity Provider in
accordance with Section 2.06 and for the purposes of Section 2.06(b)). The
Borrower and the Liquidity Provider agree that the repayment in full of each
Interest Advance and Final Advance on the date such Advance is made is intended
to be a contemporaneous exchange for new value given to the Borrower by the
Liquidity Provider. For the avoidance of doubt, interest payable on an Interest
Advance or the Final Advance shall not be regarded as overdue unless such
interest is not paid when due under Section 3.07.
Section 2.06. Repayments of Provider Advances. (a) Amounts advanced
hereunder in respect of a Provider Advance shall be deposited in the Class C
Cash Collateral Account and invested and withdrawn from the Class C Cash
Collateral Account as set forth in Sections 3.06(c), 3.06(d), 3.06(e) and
3.06(f) of the Intercreditor Agreement. Subject to Sections 2.07 and 2.09, the
Borrower agrees to pay to the Liquidity Provider, on each Regular Distribution
Date, commencing on the first Regular Distribution Date after the making of a
Provider Advance, interest on the principal amount of any such Provider Advance,
in the amounts determined as provided in Section 3.07; provided, however, that
amounts in respect of a Provider Advance withdrawn from the Class C Cash
Collateral Account for the purpose of paying interest on the Class C
Certificates in accordance with Section 3.06(f) of the Intercreditor Agreement
(the amount of any such withdrawal being (y) in the case of a Downgrade Advance,
an "APPLIED DOWNGRADE ADVANCE" and (z) in the case of a Non-Extension Advance,
an "APPLIED NON-EXTENSION ADVANCE" and, together with an Applied Downgrade
Advance, an "APPLIED PROVIDER ADVANCE") shall thereafter (subject to Section
2.06(b)) be treated as an Interest Advance under this Agreement for purposes of
determining the Applicable Liquidity Rate for interest payable thereon and the
dates on which such interest is payable; provided further, however, that if,
following the making of a Provider Advance, the Liquidity Provider delivers a
Termination Notice to the Borrower pursuant to Section 6.01, such Provider
Advance shall thereafter be treated as a Final Advance under this Agreement for
purposes of determining the Applicable Liquidity Rate for interest payable
thereon and the dates on which such interest is payable. Subject to Sections
2.07 and 2.09 hereof, immediately upon the withdrawal of any amounts from the
Class C Cash Collateral Account on account of a reduction in the Required
Amount, the Borrower shall repay to the Liquidity Provider a portion of the
Provider Advances in a principal amount equal to such reduction, plus interest
on the principal amount prepaid as provided in Section 3.07.
(b) At any time when an Applied Provider Advance (or any portion thereof)
is outstanding, upon the deposit in the Class C Cash Collateral Account of any
amount pursuant to clause "third" of Section 2.04(b) of the Intercreditor
Agreement, clause "third" of Section 3.02 of the Intercreditor Agreement or
clause "fourth" of Section 3.03 of the Intercreditor Agreement (any such amount
being a "REPLENISHMENT AMOUNT") for the purpose of replenishing or increasing
the balance thereof up to the Required Amount at such time, (i) the aggregate
outstanding principal amount of all Applied Provider Advances (and of Provider
Advances treated as an Interest Advance for purposes of determining the
Applicable Liquidity Rate for interest payable thereon) shall be automatically
reduced by the amount of such Replenishment Amount, and (ii) the aggregate
outstanding principal amount of all Unapplied Provider Advances shall be
automatically increased by the amount of such Replenishment Amount.
(c) Upon the provision of a Replacement Liquidity Facility in replacement
of this Agreement in accordance with Section 3.06(e) of the Intercreditor
Agreement, as provided in Section 3.06(f) of the Intercreditor Agreement,
amounts remaining on deposit in the Class C Cash Collateral Account after giving
effect to any Applied Provider Advance on the date of such replacement shall be
reimbursed to the Liquidity Provider, but only to the extent such amounts are
necessary to repay in full to the Liquidity Provider all amounts owing to it
hereunder.
Section 2.07. Payments to the Liquidity Provider Under the Intercreditor
Agreement. In order to provide for payment or repayment to the Liquidity
Provider of any amounts hereunder, the Intercreditor Agreement provides that
amounts available and referred to in Articles II and III of the Intercreditor
Agreement, to the extent payable to the Liquidity Provider pursuant to the terms
of the Intercreditor Agreement (including, without limitation, Section 3.06(f)
of the Intercreditor Agreement), shall be paid to the Liquidity Provider in
accordance with the terms thereof (but, for the avoidance of doubt, without
duplication of or increase in any amounts payable hereunder). Amounts so paid to
the Liquidity Provider shall be applied by the Liquidity Provider in the order
of priority required by the applicable provisions of Articles II and III of the
Intercreditor Agreement and shall discharge in full the corresponding
obligations of the Borrower hereunder.
Section 2.08. Book Entries. The Liquidity Provider shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower resulting from Advances made from time to time and
the amounts of principal and interest payable hereunder and paid from time to
time in respect thereof; provided, however, that the failure by the Liquidity
Provider to maintain such account or accounts shall not affect the obligations
of the Borrower in respect of Advances.
Section 2.09. Payments from Available Funds Only. All payments to be made
by the Borrower under this Agreement shall be made only from the amounts that
constitute Scheduled Payments, Special Payments and other payments under the
Operative Agreements, including payment under Section 4.02 of the Participation
Agreements and payments under Section 2.14 of the Indentures, and only to the
extent that the Borrower shall have sufficient income or proceeds therefrom to
enable the Borrower to make payments in accordance with the terms hereof after
giving effect to the priority of payments provisions set forth in the
Intercreditor Agreement. The Liquidity Provider agrees that it will look solely
to such amounts to the extent available for distribution to it as provided in
the Intercreditor Agreement and this Agreement and that the Borrower, in its
individual capacity, is not personally liable to it for any amounts payable or
liability under this Agreement except as expressly provided in this Agreement,
the Intercreditor Agreement or any Participation Agreement. Amounts on deposit
in the Class C Cash Collateral Account shall be available to the Borrower to
make payments under this Agreement only to the extent and for the purposes
expressly contemplated in Section 3.06(f) of the Intercreditor Agreement.
Section 2.10. Extension of the Expiry Date; Non-Extension Advance. If the
Expiry Date is prior to the date that is 15 days after the Final Legal
Distribution Date for the Class C Certificates, then no earlier than the 60th
day and no later than the 40th day prior to the then applicable Expiry Date, the
Borrower may request in writing that the Liquidity Provider extend the Expiry
Date to the earlier of (i) the date that is 15 days after the Final Legal
Distribution Date for the Class C Certificates and (ii) the date that is the day
immediately preceding the 364th day after the last day of the Consent Period
(unless the obligations of the Liquidity Provider hereunder are earlier
terminated in accordance herewith). Whether or not the Liquidity Provider has
received a request from the Borrower, the Liquidity Provider shall, during the
period commencing on the date that is 60 days prior to the then effective Expiry
Date (or, if earlier, the date of such Liquidity Provider's receipt of such
request, if any, from the Borrower) and ending on the date that is 25 days prior
to the then effective Expiry Date (the "CONSENT PERIOD") advise the Borrower
whether, in its sole discretion, it agrees to so extend the Expiry Date. If the
Liquidity Provider advises the Borrower on or before the end of the Consent
Period that such Expiry Date shall not be so extended, or fails to irrevocably
and unconditionally advise the Borrower on or before the end of the Consent
Period that such Expiry Date shall be so extended (and, in each case, if the
Liquidity Provider shall not have been replaced in accordance with Section
3.06(e) of the Intercreditor Agreement), the Borrower shall be entitled on and
after the date on which the Consent Period ends (but prior to the then effective
Expiry Date) to request a Non-Extension Advance in accordance with Section
2.02(b) hereof and Section 3.06(d) of the Intercreditor Agreement. If any
amounts shall be drawn pursuant to a Non-Extension Advance and, within 30 days
thereafter, the Liquidity Provider shall not have been replaced, then at any
time following the 30th day after such Non-Extension Advance, the Liquidity
Provider may, by written notice to the Borrower, agree to reinstate the
Liquidity Facility on the terms of the existing Liquidity Facility for a period
ending on the 364th day after the end of the Consent Period; provided, however,
that in such event the Liquidity Provider shall reimburse the Borrower for any
costs actually incurred by or on behalf of the Borrower in drawing pursuant to
the Non-Extension Advance and funding the Class C Cash Collateral Account or
otherwise in connection with the Non-Extension Advance.
Section 2.11. Rights to Extend Expiry Date. Subject to the proviso in the
next succeeding sentence, the initial Liquidity Provider shall have the right at
any time and without the consent of the Borrower to extend the then effective
Expiry Date to a date that is on or before the date that is 15 days after the
Final Legal Distribution Date for the Class C Certificates by giving not less
than five nor more than ten days' prior written notice of such extension to the
Borrower, the Class C Trustee and Delta (which notice shall specify the
effective date of such extension (the "EXTENSION EFFECTIVE DATE")). On the
Extension Effective Date, the then effective Expiry Date shall be so extended
without any further act; provided, however, that if prior to the Extension
Effective Date a Downgrade Event shall have occurred, the then effective Expiry
Date shall not be so extended.
ARTICLE III
OBLIGATIONS OF THE BORROWER
Section 3.01. Increased Costs. If as a result of any Regulatory Change
there shall be any increase by an amount reasonably deemed by the Liquidity
Provider to be material in the actual cost to the Liquidity Provider of making,
funding or maintaining any Advances or its obligation to make any such Advances
or there shall be any reduction by an amount reasonably deemed by the Liquidity
Provider to be material in the amount receivable by the Liquidity Provider under
this Agreement or the Intercreditor Agreement in respect thereof, and in case of
either such an increase or reduction, such event does not arise from the gross
negligence or willful misconduct of the Liquidity Provider, from its breach of
any of its representations, warranties, covenants or agreements contained herein
or in the Intercreditor Agreement or from its failure to comply with any such
Regulatory Change (any such increase or reduction being referred to herein as an
"INCREASED COST"), then the Borrower shall from time to time pay to the
Liquidity Provider an amount equal to such Increased Cost within 10 Business
Days after delivery to the Borrower and Delta of a certificate of an officer of
the Liquidity Provider describing in reasonable detail the event by reason of
which it claims such Increased Cost and the basis for the determination of the
amount of such Increased Cost; provided that, the Borrower shall be obligated to
pay amounts only with respect to any Increased Costs accruing from the date 90
days prior to the date of delivery of such certificate. Such certificate, in the
absence of manifest error, shall be considered prima facie evidence of the
amount of the Increased Costs for purposes of this Agreement; provided that any
determinations and allocations by the Liquidity Provider of the effect of any
Regulatory Change on the costs of maintaining the Advances are made on a
reasonable basis. The Liquidity Provider shall not be entitled to assert any
claim under this Section 3.01 in respect of or attributable to Excluded Taxes.
The Liquidity Provider will notify the Borrower and Delta as promptly as
practicable of any event occurring after the date of this Agreement that will
entitle the Liquidity Provider to compensation under this Section 3.01. The
Liquidity Provider agrees to investigate all commercially reasonable
alternatives for reducing any Increased Costs and to use all commercially
reasonable efforts to avoid or minimize, to the greatest extent possible, any
claim in respect of Increased Costs, including, without limitation, by
designating a different Lending Office, if such designation or other action
would avoid the need for, or reduce the amount of, any such claim; provided that
the foregoing shall not obligate the Liquidity Provider to take any action that
would, in its reasonable judgment, cause the Liquidity Provider to take any
action that is not materially consistent with its internal policies or is
otherwise materially disadvantageous to the Liquidity Provider or that would
cause the Liquidity Provider to incur any material loss or cost, unless the
Borrower or Delta agrees to reimburse or indemnify the Liquidity Provider
therefor. If no such designation or other action is effected, or, if effected,
fails to avoid the need for any claim in respect of Increased Costs, Delta may
arrange for a Replacement Liquidity Facility in accordance with Section 3.06(e)
of the Intercreditor Agreement.
Notwithstanding the foregoing provisions, in no event shall the Borrower
be required to make payments under this Section 3.01: (a) in respect of any
Regulatory Change proposed by any applicable governmental authority (including
any branch of a legislature), central bank or comparable agency of the United
States or the Liquidity Provider's jurisdiction of organization and pending as
of the date of this Agreement (it being agreed that the Consultative Document
issued by the Basel Committee on Banking Supervision entitled "The New Basel
Capital Accord," dated January 2001, shall not be considered to have been
proposed or pending as of the date of this Agreement); (b) if a claim hereunder
in respect of an Increased Cost arises through circumstances peculiar to the
Liquidity Provider and that do not affect similarly organized commercial banking
institutions in the same jurisdiction generally that are in compliance with the
law, rule, regulation or interpretation giving rise to the Regulatory Change
relating to such Increased Cost; or (c) if the Liquidity Provider shall fail to
comply with its obligations under this Section 3.01.
Section 3.02. [Intentionally omitted.]
Section 3.03. Withholding Taxes. (a) All payments made by the Borrower
under this Agreement shall be made without deduction or withholding for or on
account of any Taxes, unless such deduction or withholding is required by law.
If any Taxes are so required to be withheld or deducted from any amounts payable
to the Liquidity Provider under this Agreement, the Borrower shall pay to the
relevant authorities the full amount so required to be deducted or withheld and,
if such Taxes are Covered Taxes, pay to the Liquidity Provider such additional
amounts as shall be necessary to ensure that the net amount actually received by
the Liquidity Provider (after deduction or withholding of all Covered Taxes)
shall be equal to the full amount that would have been received by the Liquidity
Provider had no withholding or deduction of Covered Taxes been required. The
Liquidity Provider agrees to use reasonable efforts (consistent with applicable
legal and regulatory restrictions) to change the jurisdiction of its Lending
Office if making such change would avoid the need for, or reduce the amount of,
any such additional amounts that may thereafter accrue and would not, in the
reasonable judgment of the Liquidity Provider, be otherwise materially
disadvantageous to the Liquidity Provider. If the Liquidity Provider receives a
refund of, or realizes a net Tax benefit not otherwise available to it as a
result of, any Taxes for which additional amounts were paid by the Borrower
pursuant to this Section 3.03, the Liquidity Provider shall pay to the Borrower
(for deposit into the Collection Account) the amount of such refund (and any
interest thereon) or net benefit.
The Liquidity Provider will (i) provide (on its behalf and on behalf of
any participant holding a Participation pursuant to Section 7.08) to the
Borrower (x) on or prior to the Effective Date two valid completed and executed
copies of Internal Revenue Service Form W8-BEN or W8-EC1 (whichever is
applicable), including thereon a valid U.S. taxpayer identification number (or,
with respect to any such participant, such other form or documentation as may be
applicable) covering all amounts receivable by it in connection with the
transactions contemplated by the Operative Agreements and (y) thereafter from
time to time such additional forms or documentation as may be necessary to
establish an available exemption from withholding of United States Tax on
payments hereunder so that such forms or documentation are effective for all
periods during which it is the Liquidity Provider and (ii) provide timely notice
to the Borrower if any such form or documentation is or becomes inaccurate. The
Liquidity Provider shall deliver to the Borrower such other forms or documents
as may be reasonably requested by the Borrower or required by applicable law to
establish that payments hereunder are exempt from or entitled to a reduced rate
of Covered Taxes.
(b) All payments (including, without limitation, Advances) made by the
Liquidity Provider under this Agreement shall be made free and clear of, and
without reduction for or on account of, any Taxes. If any Taxes are required to
be withheld or deducted from any amounts payable to the Borrower under this
Agreement, the Liquidity Provider shall (i) within the time prescribed therefor
by applicable law pay to the appropriate governmental or taxing authority the
full amount of any such Taxes (and any additional Taxes in respect of the
additional amounts payable under clause (ii) hereof) and make such reports or
returns in connection therewith at the time or times and in the manner
prescribed by applicable law, and (ii) pay to the Borrower an additional amount
which (after deduction of all such Taxes) will be sufficient to yield to the
Borrower the full amount which would have been received by it had no such
withholding or deduction been made. Within 30 days after the date of each
payment hereunder, the Liquidity Provider shall furnish to the Borrower the
original or a certified copy of (or other documentary evidence of) the payment
of the Taxes applicable to such payment.
If any exemption from, or reduction in the rate of, any Taxes required to
be borne by the Liquidity Provider under this Section 3.03(b) is reasonably
available to the Borrower without providing any information regarding the
holders or beneficial owners of the Certificates, the Borrower shall deliver the
Liquidity Provider such form or forms and such other evidence of the eligibility
of the Borrower for such exemption or reductions (but without any requirement to
provide any information regarding the holders or beneficial owners of the
Certificates) as the Liquidity Provider may reasonably identify to the Borrower
as being required as a condition to exemption from, or reduction in the rate of,
such Taxes.
Section 3.04. Payments. The Borrower shall make or cause to be made each
payment to the Liquidity Provider under this Agreement so as to cause the same
to be received by the Liquidity Provider not later than 1:00 P.M. (New York City
time) on the day when due. The Borrower shall make all such payments in Dollars,
to the Liquidity Provider in immediately available funds, by wire transfer to
The Chase Manhattan Bank, 021-000021 in favor of account number 4207122,
Reference: Delta EETC 2001-1C.
Section 3.05. Computations. All computations of interest based on the Base
Rate shall be made on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the LIBOR Rate shall be made on
the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest is payable.
Section 3.06. Payment on Non-Business Days. Whenever any payment to be
made hereunder shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day and no additional
interest shall be due as a result (and if so made, shall be deemed to have been
made when due). If any payment in respect of interest on an Advance is so
deferred to the next succeeding Business Day, such deferral shall not delay the
commencement of the next Interest Period for such Advance (if such Advance is a
LIBOR Advance) or reduce the number of days for which interest will be payable
on such Advance on the next interest payment date for such Advance.
Section 3.07. Interest. (a) Subject to Sections 2.07 and 2.09, the
Borrower shall pay, or shall cause to be paid, without duplication, interest on
(i) the unpaid principal amount of each Advance from and including the date of
such Advance (or, in the case of an Applied Provider Advance, from and including
the date on which the amount thereof was withdrawn from the Class C Cash
Collateral Account to pay interest on the Class C Certificates) to but excluding
the date such principal amount shall be paid in full (or, in the case of an
Applied Provider Advance, the date on which the Class C Cash Collateral Account
is fully replenished in respect of such Advance) and (ii) any other amount due
hereunder (whether fees, commissions, expenses or other amounts or, to the
extent permitted by law, installments of interest on Advances or any such other
amount) that is not paid when due (whether at stated maturity, by acceleration
or otherwise) from and including the due date thereof to but excluding the date
such amount is paid in full, in each such case, at the interest rate per annum
for each day equal to the Applicable Liquidity Rate (as defined below) for such
Advance or such other amount, as the case may be, as in effect for such day, but
in no event at a rate per annum greater than the maximum rate permitted by
applicable law, provided, however, that, if at any time the otherwise applicable
interest rate as set forth in this Section 3.07 shall exceed the maximum rate
permitted by applicable law, then to the maximum extent permitted by applicable
law any subsequent reduction in such interest rate will not reduce the rate of
interest payable pursuant to this Section 3.07 below the maximum rate permitted
by applicable law until the total amount of interest accrued equals the absolute
amount of interest that would have accrued (without additional interest thereon)
if such otherwise applicable interest rate as set forth in this Section 3.07 had
at all relevant times been in effect.
(b) Except as provided in Section 3.07(e), each Advance (other than an
Unapplied Non-Extension Advance) will be either a Base Rate Advance or a LIBOR
Advance as provided in this Section 3.07. Each such Advance will be a Base Rate
Advance for the period from the date of its borrowing to (but excluding) the
third Business Day following the Liquidity Provider's receipt of the Notice of
Borrowing for such Advance. Thereafter, such Advance shall be a LIBOR Advance;
provided that (i) a Provider Advance (other than an Unapplied Non-Extension
Advance shall always be a LIBOR Advance) unless the Borrower elects otherwise
and (ii) the Borrower (at the direction of the Controlling Party, so long as the
Liquidity Provider is not the Controlling Party) may (x) convert the Final
Advance into a Base Rate Advance on the last day of an Interest Period for such
Advance by giving the Liquidity Provider no less than four Business Days' prior
written notice of such election or (y) elect to maintain the Final Advance as a
Base Rate Advance by not requesting a conversion of the Final Advance to a LIBOR
Advance under Clause (5) of the applicable Notice of Borrowing (or, if, pursuant
to Section 2.06, such Final Advance is deemed to have been made without delivery
of a Notice of Borrowing, by requesting, prior to 11:00 a.m. (New York time) on
the first Business Day immediately following the Borrower's receipt of the
applicable Termination Notice, that such Final Advance not be converted from a
Base Rate Advance to a LIBOR Advance).
(c) Each LIBOR Advance shall bear interest during each Interest Period at
a rate per annum equal to the LIBOR Rate for such Interest Period plus the
Applicable Margin for such LIBOR Advance, payable in arrears on the last day of
such Interest Period and, in the event of the payment of principal of such LIBOR
Advance on a day other than such last day, on the date of such payment (to the
extent of interest accrued on the amount of principal repaid).
(d) Each Base Rate Advance shall bear interest at a rate per annum equal
to the Base Rate plus the Applicable Margin for such Base Rate Advance, payable
in arrears on each Regular Distribution Date and, in the event of the payment of
principal of such Base Rate Advance on a day other than a Regular Distribution
Date, on the date of such payment (to the extent of interest accrued on the
amount of principal repaid).
(e) Each outstanding Unapplied Non-Extension Advance shall bear interest
in an amount equal to the Investment Earnings on amounts on deposit in the Class
C Cash Collateral Account plus the Applicable Margin for such Unapplied
Non-Extension Advance on the amount of such Unapplied Non-Extension Advance from
time to time, payable in arrears on each Regular Distribution Date.
(f) Each amount not paid when due hereunder (whether fees, commissions,
expenses or other amounts or, to the extent permitted by applicable law,
installments of interest on Advances but excluding Advances) shall bear interest
at a rate per annum equal to the Base Rate plus 2.0% per annum until paid.
(g) Each change in the Base Rate shall become effective immediately. The
rates of interest specified in this Section 3.07 with respect to any Advance or
other amount shall be referred to as the "APPLICABLE LIQUIDITY RATE".
Section 3.08. Replacement of Borrower. Subject to Section 5.02, from time
to time and subject to the successor Borrower's meeting the eligibility
requirements set forth in Section 6.09 of the Intercreditor Agreement applicable
to the Subordination Agent, upon the effective date and time specified in a
written and completed Notice of Replacement Subordination Agent in substantially
the form of Annex VI (a "NOTICE OF REPLACEMENT SUBORDINATION AGENT") delivered
to the Liquidity Provider by the then Borrower, the successor Borrower
designated therein shall become the Borrower for all purposes hereunder.
Section 3.09. Funding Loss Indemnification. The Borrower shall pay to the
Liquidity Provider, upon the request of the Liquidity Provider, such amount or
amounts as shall be sufficient (in the reasonable opinion of the Liquidity
Provider) to compensate it for any loss, cost or expense incurred by reason of
the liquidation or redeployment of deposits or other funds acquired by the
Liquidity Provider to fund or maintain any LIBOR Advance (but excluding loss of
the Applicable Margin or anticipated profits) incurred as a result of:
(1) Any repayment of a LIBOR Advance on a date other than the last
day of the Interest Period for such Advance; or
(2) Any failure by the Borrower to borrow a LIBOR Advance on the
date for borrowing specified in the relevant notice under Section 2.02.
Section 3.10. Illegality. Notwithstanding any other provision in this
Agreement, if any change in any law, rule or regulation applicable to or binding
on the Liquidity Provider, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by the
Liquidity Provider with any request or directive (whether or not having the
force of law) of any such authority, central bank or comparable agency shall
make it unlawful or impossible for the Liquidity Provider to maintain or fund
its LIBOR Advances, then upon notice to the Borrower and Delta by the Liquidity
Provider, the outstanding principal amount of the LIBOR Advances shall be
converted to Base Rate Advances (a) immediately upon demand of the Liquidity
Provider, if such change or compliance with such request, in the reasonable
judgment of the Liquidity Provider, requires immediate conversion; or (b) at the
expiration of the last Interest Period to expire before the effective date of
any such change or request. The Liquidity Provider will notify the Borrower and
Delta as promptly as practicable of any event that will or to its knowledge is
reasonably likely to lead to the conversion of LIBOR Advances to Base Rate
Advances under this Section 3.10, provided that a failure by the Liquidity
Provider to notify the Borrower or Delta of an event that is reasonably likely
to lead to such a conversion prior to the time that it is determined that such
event will lead to such a conversion shall not prejudice the rights of the
Liquidity Provider under this Section 3.10. The Liquidity Provider agrees to
investigate all commercially reasonable alternatives for avoiding the need for
such conversion, including, without limitation, designating a different Lending
Office, if such designation or other action would avoid the need to convert such
LIBOR Advances to Base Rate Advances; provided, that the foregoing shall not
obligate the Liquidity Provider to take any action that would, in its reasonable
judgment, cause the Liquidity Provider to incur any material loss or cost,
unless the Borrower or Delta agrees to reimburse or indemnify the Liquidity
Provider therefor. If no such designation or other action is effected, or, if
effected, fails to avoid the need for conversion of the LIBOR Advances to Base
Rate Advances, Delta may arrange for a Replacement Liquidity Facility in
accordance with Section 3.06(e) of the Intercreditor Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "EFFECTIVE DATE") on which the following conditions precedent have
been satisfied (or waived by the appropriate party or parties):
(a) The Liquidity Provider shall have received on or before the
Closing Date each of the following, and in the case of each document
delivered pursuant to paragraphs (i), (ii) and (iii), each in form and
substance satisfactory to the Liquidity Provider:
(i) This Agreement and the Fee Letter duly executed on behalf
of the Borrower and Delta, in the case of the Fee Letter;
(ii) The Intercreditor Agreement duly executed on behalf of
each of the parties thereto (other than the Liquidity Provider);
(iii) Fully executed copies of each of the Operative
Agreements executed and delivered on or before the Closing Date
(other than this Agreement, the Fee Letter and the Intercreditor
Agreement);
(iv) A copy of the Prospectus Supplement and specimen copies
of the Class C Certificates;
(v) An executed copy of each document, instrument, certificate
and opinion delivered on or before the Closing Date pursuant to the
Class C Trust Agreement, the Intercreditor Agreement and the other
Operative Agreements (in the case of each such opinion, either
addressed to the Liquidity Provider or accompanied by a letter from
the counsel rendering such opinion to the effect that the Liquidity
Provider is entitled to rely on such opinion as of its date as if it
were addressed to the Liquidity Provider); and
(vi) An agreement from Delta, pursuant to which (x) Delta
agrees to provide copies of quarterly financial statements and
audited annual financial statements to the Liquidity Provider
(which, in the case of quarterly financial statements, Delta may
provide in an electronic format by electronic mail or making such
available over the internet) and (y) Delta agrees to allow the
Liquidity Provider to discuss the transactions contemplated by the
Operative Agreements with officers and employees of Delta.
(b) On and as of the Effective Date no event shall have occurred and
be continuing, or would result from the entering into of this Agreement or
the making of any Advance, which constitutes a Liquidity Event of Default.
(c) The filings referred to in Sections 3.01(d) and 3.01(f) of the
Participation Agreements shall have been filed (or shall be in the process
of being filed).
(d) The Liquidity Provider shall have received payment in full of
the fees and other sums required to be paid to or for the account of the
Liquidity Provider on or prior to the Effective Date pursuant to the Fee
Letter.
(e) All conditions precedent to the issuance of the Certificates
under the Trust Agreements shall have been satisfied or waived, all
conditions precedent to the effectiveness of the other Liquidity
Facilities shall have been satisfied or waived, all conditions precedent
to the purchase of the Class C, Class A-2, Class B and Class C
Certificates by the Underwriters under the Underwriting Agreement shall
have been satisfied (unless any of such conditions precedent under the
Underwriting Agreement shall have been waived by the Underwriters), and
all conditions precedent to the purchase of the Class D Certificates by
the Initial Class D Holder shall have been satisfied.
(f) The Borrower and Delta shall have received a certificate, dated
the Effective Date signed by a duly authorized representative of the
Liquidity Provider, certifying that all conditions precedent specified in
this Section 4.01 have been satisfied or waived by the Liquidity Provider.
Section 4.02. Conditions Precedent to Borrowing. The obligation of the
Liquidity Provider to make an Advance on the occasion of each Borrowing shall be
subject to the conditions precedent that the Effective Date shall have occurred
and, prior to the time of such Borrowing, the Borrower shall have delivered a
Notice of Borrowing which conforms to the terms and conditions of this
Agreement.
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Borrower. So long as any
Advance shall remain unpaid or the Liquidity Provider shall have any Maximum
Commitment hereunder or the Borrower shall have any obligation to pay any amount
to the Liquidity Provider hereunder, the Borrower will, unless the Liquidity
Provider shall otherwise consent in writing:
(a) Performance of Agreements. Punctually pay or cause to be paid
all amounts payable by it under this Agreement and the Intercreditor
Agreement and observe and perform in all material respects the conditions,
covenants and requirements applicable to it contained in this Agreement
and the Intercreditor Agreement.
(b) Reporting Requirements. Furnish to the Liquidity Provider with
reasonable promptness, such other information and data with respect to the
transactions contemplated by the Operative Agreements as from time to time
may be reasonably requested by the Liquidity Provider; and permit the
Liquidity Provider, upon reasonable notice, to inspect the Borrower's
books and records with respect to such transactions and to meet with
officers and employees of the Borrower to discuss such transactions.
(c) Certain Operative Agreements. Furnish to the Liquidity Provider
with reasonable promptness, copies of such Operative Agreements entered
into after the date hereof as from time to time may be reasonably
requested by the Liquidity Provider.
Section 5.02. Negative Covenants of the Borrower. Subject to the first and
fourth paragraphs of Section 7.01(a) of the Intercreditor Agreement and Section
7.01(b) of the Intercreditor Agreement, so long as any Advance shall remain
unpaid or the Liquidity Provider shall have any Maximum Commitment hereunder or
the Borrower shall have any obligation to pay any amount to the Liquidity
Provider hereunder, the Borrower will not appoint or permit or suffer to be
appointed any successor Borrower without the prior written consent of the
Liquidity Provider, which consent shall not be unreasonably withheld or delayed.
ARTICLE VI
LIQUIDITY EVENTS OF DEFAULT
Section 6.01. Liquidity Events of Default. If (a) any Liquidity Event of
Default has occurred and is continuing and (b) there is a Performing Note
Deficiency, the Liquidity Provider may, in its discretion, deliver to the
Borrower a Termination Notice, the effect of which shall be to cause (i) this
Agreement to expire at the close of business on the fifth Business Day after the
date on which such Termination Notice is received by the Borrower, (ii) the
Borrower to promptly request, and the Liquidity Provider to promptly make, a
Final Advance in accordance with Section 2.02(d) hereof and Section 3.06(i) of
the Intercreditor Agreement, (iii) all other outstanding Advances to be
automatically converted into Final Advances for purposes of determining the
Applicable Liquidity Rate for interest payable thereon and (iv) subject to
Sections 2.07 and 2.09, all Advances, any accrued interest thereon and any other
amounts outstanding hereunder to become immediately due and payable to the
Liquidity Provider.
ARTICLE VII
MISCELLANEOUS
Section 7.01. No Oral Modifications or Continuing Waivers. No terms or
provisions of this Agreement may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the Borrower and the
Liquidity Provider and any other Person whose consent is required pursuant to
this Agreement; provided that no such change or other action shall affect the
payment obligations of Delta or the rights of Delta without Delta's prior
written consent; and any waiver of the terms hereof shall be effective only in
the specific instance and for the specific purpose given.
Section 7.02. Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all notices, requests, demands, authorizations, directions,
consents, waivers or documents required or permitted under the terms and
provisions of this Agreement shall be in English and in writing, and given by
United States registered or certified mail, courier service or facsimile, and
any such notice shall be effective when delivered (or, if delivered by
facsimile, upon completion of transmission and confirmation by the sender (by a
telephone call to a representative of the recipient or by machine confirmation)
that such transmission was received) addressed as follows:
If to the Borrower, to:
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
225 Asylum Street, Goodwin Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Telephone: (860) 244-1844
Telecopy: (860) 244-1881
If to the Liquidity Provider, to:
LANDESBANK HESSEN-THURINGEN GIROZENTRALE
Main Tower
Neue Mainzer Str. 52-58
60311 Frankfurt am Main
Germany
Attention: Asset Finance
Telephone: 49-69-9132-4882
Telecopy: 49-69-9132-4392
With a copy to:
LANDESBANK HESSEN-THURINGEN
New York Branch
420 Fifth Avenue, 24th Floor
New York, NY 10018
Attention: Structured Finance/Michael Novack
Telephone: (212) 703-5224
Telecopy: (212) 703-5256
Any party, by notice to the other party hereto, may designate additional
or different addresses for subsequent notices or communications. Whenever the
words "notice" or "notify" or similar words are used herein, they mean the
provision of formal notice as set forth in this Section 7.02.
Section 7.03. No Waiver; Remedies. No failure on the part of the Liquidity
Provider to exercise, and no delay in exercising, any right under this Agreement
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right under this Agreement preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
Section 7.04. Further Assurances. The Borrower agrees to do such further
acts and things and to execute and deliver to the Liquidity Provider such
additional assignments, agreements, powers and instruments as the Liquidity
Provider may reasonably require or deem advisable to carry into effect the
purposes of this Agreement and the other Operative Agreements or to better
assure and confirm unto the Liquidity Provider its rights, powers and remedies
hereunder and under the other Operative Agreements.
Section 7.05. Indemnification; Survival of Certain Provisions. The
Liquidity Provider shall be indemnified hereunder to the extent and in the
manner described in Section 4.02 of the Participation Agreements. In addition,
the Borrower agrees to indemnify, protect, defend and hold harmless each
Liquidity Indemnitee from and against all Expenses of any kind or nature
whatsoever (other than any Expenses of the nature described in Sections 3.01 or
7.07 or in the Fee Letter (regardless of whether indemnified against pursuant to
said Sections or in such Fee Letter)), that may be imposed on or incurred by
such Liquidity Indemnitee, in any way relating to, resulting from, or arising
out of or in connection with, any action, suit or proceeding by any third party
against such Liquidity Indemnitee and relating to this Agreement, the Fee
Letter, the Intercreditor Agreement or any Participation Agreement; provided,
however, that the Borrower shall not be required to indemnify, protect, defend
and hold harmless any Liquidity Indemnitee in respect of any Expense of such
Liquidity Indemnitee to the extent such Expense is (i) attributable to the
negligence or willful misconduct of such Liquidity Indemnitee or any other
Liquidity Indemnitee, (ii) an ordinary and usual operating overhead expense,
(iii) attributable to the failure by such Liquidity Indemnitee or any other
Liquidity Indemnitee to perform or observe any agreement, covenant or condition
on its part to be performed or observed in this Agreement, the Intercreditor
Agreement, the Fee Letter or any other Operative Agreement to which it is a
party or (iv) otherwise excluded from the indemnification provisions contained
in Section 4.02 of the Participation Agreements. The provisions of Sections
3.01, 3.03, 3.09, 7.05 and 7.07 and the indemnities contained in Section 4.02 of
the Participation Agreements shall survive the termination of this Agreement.
Section 7.06. Liability of the Liquidity Provider. (a) Neither the
Liquidity Provider nor any of its officers, employees or directors shall be
liable or responsible for: (i) the use which may be made of the Advances or any
acts or omissions of the Borrower or any beneficiary or transferee in connection
therewith; (ii) the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in any or all
respects invalid, insufficient, fraudulent or forged; or (iii) the making of
Advances by the Liquidity Provider against delivery of a Notice of Borrowing and
other documents which do not comply with the terms hereof; provided, however,
that the Borrower shall have a claim against the Liquidity Provider, and the
Liquidity Provider shall be liable to the Borrower, to the extent of any damages
suffered by the Borrower that were the result of (A) the Liquidity Provider's
willful misconduct or gross negligence in determining whether documents
presented hereunder comply with the terms hereof or (B) any breach by the
Liquidity Provider of any of the terms of this Agreement or the Intercreditor
Agreement, including, but not limited to, the Liquidity Provider's failure to
make lawful payment hereunder after the delivery to it by the Borrower of a
Notice of Borrowing complying with the terms and conditions hereof.
(b) Neither the Liquidity Provider nor any of its officers, employees or
directors or affiliates shall be liable or responsible in any respect for (i)
any error, omission, interruption or delay in transmission, dispatch or delivery
of any message or advice, however transmitted, in connection with this Agreement
or any Notice of Borrowing delivered hereunder or (ii) any action, inaction or
omission which may be taken by it in good faith, absent willful misconduct or
negligence (in which event the extent of the Liquidity Provider's potential
liability to the Borrower shall be limited as set forth in the immediately
preceding paragraph), in connection with this Agreement or any Notice of
Borrowing.
Section 7.07. Certain Costs and Expenses. The Borrower agrees promptly to
pay, or cause to be paid, (a) the reasonable fees, expenses and disbursements of
Pillsbury Winthrop LLP, special counsel for the Liquidity Provider, in
connection with the preparation, negotiation, execution, delivery, filing and
recording of the Operative Agreements, any waiver or consent thereunder or any
amendment thereof and (b) if a Liquidity Event of Default occurs, all
out-of-pocket expenses incurred by the Liquidity Provider, including reasonable
fees and disbursements of counsel, in connection with such Liquidity Event of
Default and any collection, bankruptcy, insolvency and other enforcement
proceedings in connection therewith. In addition, the Borrower shall pay any and
all recording, stamp and other similar taxes and fees payable or determined to
be payable in the United States in connection with the execution, delivery,
filing and recording of this Agreement, any other Operative Agreement and such
other documents, and agrees to save the Liquidity Provider harmless from and
against any and all liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes or fees.
Section 7.08. Binding Effect; Participations. (a) This Agreement shall be
binding upon and inure to the benefit of the Borrower and the Liquidity Provider
and their respective successors and permitted assigns, except that neither the
Liquidity Provider (except as otherwise provided in this Section 7.08) nor
(except as contemplated by Section 3.08) the Borrower shall have the right to
assign, pledge or otherwise transfer its rights or obligations hereunder or any
interest herein, subject to the Liquidity Provider's right to grant
Participations pursuant to Section 7.08(b).
(b) The Liquidity Provider agrees that it will not grant any participation
(including, without limitation, a "RISK PARTICIPATION") (any such participation,
a "PARTICIPATION") in or to all or a portion of its rights and obligations
hereunder or under the other Operative Agreements, unless all of the following
conditions are satisfied: (i) such Participation is to a Permitted Transferee,
(ii) such Participation is made in accordance with all applicable laws,
including, without limitation, the Securities Act of 1933, as amended, the Trust
Indenture Act of 1939, as amended, and any other applicable laws relating to the
transfer of similar interests and (iii) such Participation shall not be made
under circumstances that require registration under the Securities Act of 1933,
as amended, or qualification of any indenture under the Trust Indenture Act of
1939, as amended. Notwithstanding any such Participation, the Liquidity Provider
agrees that (1) the Liquidity Provider's obligations under the Operative
Agreements shall remain unchanged, and such participant shall have no rights or
benefits as against Delta or the Borrower or under any Operative Agreement, (2)
the Liquidity Provider shall remain solely responsible to the other parties to
the Operative Agreements for the performance of such obligations, (3) the
Liquidity Provider shall remain the maker of any Advances, and the other parties
to the Operative Agreements shall continue to deal solely and directly with the
Liquidity Provider in connection with the Advances and the Liquidity Provider's
rights and obligations under the Operative Agreements, (4) the Liquidity
Provider shall be solely responsible for any withholding Taxes or any filing or
reporting requirements relating to such Participation and shall hold the
Borrower and Delta and their respective successors, permitted assigns,
affiliates, agents and servants harmless against the same and (5) neither Delta
nor the Borrower shall be required to pay to the Liquidity Provider any amount
under Section 3.01 or Section 3.03 greater than it would have been required to
pay had there not been any grant of a Participation by the Liquidity Provider.
The Liquidity Provider may, in connection with any Participation or proposed
Participation pursuant to this Section 7.08(b), disclose to the participant or
proposed participant any information relating to the Operative Agreements or to
the parties thereto furnished to the Liquidity Provider thereunder or in
connection therewith and permitted to be disclosed by the Liquidity Provider;
provided, however, that prior to any such disclosure, the participant or
proposed participant shall agree in writing for the express benefit of the
Borrower and Delta to preserve the confidentiality of any confidential
information included therein (subject to customary exceptions).
(c) Notwithstanding the other provisions of this Section 7.08, the
Liquidity Provider may assign and pledge all or any portion of the Advances
owing to it to any Federal Reserve Bank or the United States Treasury as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank, provided that any payment in respect of such assigned Advances made by the
Borrower to the Liquidity Provider in accordance with the terms of this
Agreement shall satisfy the Borrower's obligations hereunder in respect of such
assigned Advance to the extent of such payment. No such assignment shall release
the Liquidity Provider from its obligations hereunder.
Section 7.09. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 7.10. Governing Law. THIS AGREEMENT HAS BEEN DELIVERED IN THE
STATE OF NEW YORK AND THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of
Immunity. (a) Each of the parties hereto, to the extent it may do so under
applicable law, for purposes hereof hereby (i) irrevocably submits itself to the
non-exclusive jurisdiction of the courts of the State of New York sitting in the
City of New York and to the non-exclusive jurisdiction of the United States
District Court for the Southern District of New York, for the purposes of any
suit, action or other proceeding arising out of this Agreement, the subject
matter hereof or any of the transactions contemplated hereby brought by any
party or parties hereto or thereto, or their successors or permitted assigns and
(ii) waives, and agrees not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper or that this Agreement or the subject matter
hereof or any of the transactions contemplated hereby may not be enforced in or
by such courts.
(b) THE BORROWER AND THE LIQUIDITY PROVIDER EACH HEREBY AGREE TO WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO
THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING
ESTABLISHED, including, without limitation, contract claims, tort claims, breach
of duty claims and all other common law and statutory claims. The Borrower and
the Liquidity Provider each warrant and represent that it has reviewed this
waiver with its legal counsel, and that it knowingly and voluntarily waives its
jury trial rights following consultation with such legal counsel. THIS WAIVER IS
IRREVOCABLE, AND CANNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT.
(c) The Liquidity Provider hereby waives any immunity it may have from the
jurisdiction of the courts of the United States or of any state thereof and
waives any immunity any of its properties located in the United States may have
from attachment or execution upon a judgment entered by any such court under the
United States Foreign Sovereign Immunities Act of 1976 or any similar successor
legislation.
Section 7.12. Counterparts. This Agreement may be executed in any number
of counterparts (and each party shall not be required to execute the same
counterpart). Each counterpart of this Agreement including a signature page or
pages executed by each of the parties hereto shall be an original counterpart of
this Agreement, but all of such counterparts together shall constitute one
instrument.
Section 7.13. Entirety. This Agreement and the Intercreditor Agreement
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof and supersede all prior understandings and agreements of
such parties.
Section 7.14. Headings. The headings of the various Articles and Sections
herein and in the Table of Contents hereto are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
Section 7.15. Liquidity Provider's Obligation to Make Advances. EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, THE OBLIGATIONS OF THE LIQUIDITY PROVIDER
TO MAKE ADVANCES HEREUNDER, AND THE BORROWER'S RIGHTS TO DELIVER NOTICES OF
BORROWING REQUESTING THE MAKING OF ADVANCES HEREUNDER, SHALL BE ABSOLUTE,
UNCONDITIONAL AND IRREVOCABLE, AND SHALL BE PAID OR PERFORMED, IN EACH CASE
STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first set forth above.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Subordination Agent,
as agent and trustee for the Class C Trust,
as Borrower
By:
---------------------------------------
Name:
Title:
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as Liquidity Provider
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
ANNEX I to
REVOLVING CREDIT AGREEMENT
INTEREST ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower
(the "BORROWER"), hereby certifies to LANDESBANK HESSEN-THURINGEN GIROZENTRALE
(the "LIQUIDITY PROVIDER"), with reference to the Revolving Credit Agreement
(2001-1C), dated as of September 17, 2001, between the Borrower and the
Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined or referenced),
that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of an Interest Advance by the Liquidity Provider to be used for the
payment of the interest on the Class C Certificates which is payable on
____________, ____ (the "DISTRIBUTION DATE") in accordance with the terms
and provisions of the Class C Trust Agreement and the Class C
Certificates, which Advance is requested to be made on ____________, ____.
The Interest Advance should be remitted to [insert wire and account
details].
(3) The amount of the Interest Advance requested hereby (i) is
$_______________.__, to be applied in respect of the payment of the
interest which is due and payable on the Class C Certificates on the
Distribution Date, (ii) does not include any amount with respect to the
payment of principal of, or premium on, the Class A-1 Certificates, the
Class A-2 Certificates, the Class B Certificates, the Class C Certificates
or the Class D Certificates, or interest on the Class A-1 Certificates,
the Class A-2 Certificates, the Class B Certificates or the Class D
Certificates, (iii) was computed in accordance with the provisions of the
Class C Certificates, the Class C Trust Agreement and the Intercreditor
Agreement (a copy of which computation is attached hereto as Schedule I),
(iv) does not exceed the Maximum Available Commitment on the date hereof
and (v) has not been and is not the subject of a prior or contemporaneous
Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will apply the same in accordance with
the terms of Section 3.06(b) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, the making of the Interest Advance as requested by this Notice of
Borrowing shall automatically reduce, subject to reinstatement in accordance
with the terms of the Liquidity Agreement, the Maximum Available Commitment by
an amount equal to the amount of the Interest Advance requested to be made
hereby as set forth in clause (i) of paragraph (3) of this Notice of Borrowing
and such reduction shall automatically result in corresponding reductions in the
amounts available to be borrowed pursuant to a subsequent Advance.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
SCHEDULE I TO INTEREST ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Interest Advance Notice of
Borrowing]
ANNEX II to
REVOLVING CREDIT AGREEMENT
NON-EXTENSION ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
subordination agent (the "BORROWER"), hereby certifies to LANDESBANK
HESSEN-THURINGEN GIROZENTRALE (the "LIQUIDITY PROVIDER"), with reference to the
Revolving Credit Agreement (2001-1C), dated as of September 17, 2001, between
the Borrower and the Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined or referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Non-Extension Advance by the Liquidity Provider to be used
for the funding of the Class C Cash Collateral Account in accordance with
Section 3.06(d) of the Intercreditor Agreement, which Advance is requested
to be made on __________, ____. The Non-Extension Advance should be
remitted to [insert wire and account details].
(3) The amount of the Non-Extension Advance requested hereby (i) is
$_______________.__, which equals the Maximum Available Commitment on the
date hereof and is to be applied in respect of the funding of the Class C
Cash Collateral Account in accordance with Sections 3.06(d) and 3.06(f) of
the Intercreditor Agreement, (ii) does not include any amount with respect
to the payment of the principal of, or premium on, the Class C
Certificates, or principal of, or interest or premium on, the Class A-1
Certificates, the Class A-2 Certificates, the Class B Certificates or the
Class D Certificates, (iii) was computed in accordance with the provisions
of the Class C Certificates, the Class C Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I) and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Class C
Cash Collateral Account and apply the same in accordance with the terms of
Sections 3.06(d) and 3.06(f) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Non-Extension Advance as requested by this
Notice of Borrowing shall automatically and irrevocably terminate the obligation
of the Liquidity Provider to make further Advances under the Liquidity Agreement
and (B) following the making by the Liquidity Provider of the Non-Extension
Advance requested by this Notice of Borrowing, the Borrower shall not be
entitled to request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
SCHEDULE I TO NON-EXTENSION ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Non-Extension Advance Notice
of Borrowing]
ANNEX III to
REVOLVING CREDIT AGREEMENT
DOWNGRADE ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned
subordination agent (the "BORROWER"), hereby certifies to LANDESBANK
HESSEN-THURINGEN GIROZENTRALE (the "LIQUIDITY PROVIDER"), with reference to the
Revolving Credit Agreement (2001-1C), dated as of September __, 2001, between
the Borrower and the Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined or referenced), that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Downgrade Advance by the Liquidity Provider to be used for
the funding of the Class C Cash Collateral Account in accordance with
Section 3.06(c) of the Intercreditor Agreement by reason of the
downgrading of the short-term unsecured debt rating or long-term unsecured
debt rating of the Liquidity Provider issued by either Rating Agency below
the Threshold Rating, which Advance is requested to be made on __________,
____. The Downgrade Advance should be remitted to [insert wire and account
details].
(3) The amount of the Downgrade Advance requested hereby (i) is
$_______________.__, which equals the Maximum Available Commitment on the
date hereof and is to be applied in respect of the funding of the Class C
Cash Collateral Account in accordance with Sections 3.06(c) and 3.06(f) of
the Intercreditor Agreement, (ii) does not include any amount with respect
to the payment of the principal of, or premium on, the Class C
Certificates, or principal of, or interest or premium on, the Class A-1
Certificates, the Class A-2 Certificates, the Class B Certificates or the
Class D Certificates, (iii) was computed in accordance with the provisions
of the Class C Certificates, the Class C Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I) and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing under the Liquidity Agreement.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Class C
Cash Collateral Account and apply the same in accordance with the terms of
Sections 3.06(c) and 3.06(f) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Downgrade Advance as requested by this Notice
of Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement and
(B) following the making by the Liquidity Provider of the Downgrade Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
SCHEDULE I TO DOWNGRADE ADVANCE NOTICE OF BORROWING
[Insert Copy of computations in accordance with Downgrade Advance Notice of
Borrowing]
ANNEX IV to
REVOLVING CREDIT AGREEMENT
FINAL ADVANCE NOTICE OF BORROWING
The undersigned, a duly authorized signatory of the undersigned borrower
(the "BORROWER"), hereby certifies to LANDESBANK HESSEN-THURINGEN GIROZENTRALE
(the "LIQUIDITY PROVIDER"), with reference to the Revolving Credit Agreement
(2001-1C), dated as of September 17, 2001, between the Borrower and the
Liquidity Provider (the "LIQUIDITY AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined or referenced),
that:
(1) The Borrower is the Subordination Agent under the Intercreditor
Agreement.
(2) The Borrower is delivering this Notice of Borrowing for the
making of the Final Advance by the Liquidity Provider to be used for the
funding of the Class C Cash Collateral Account in accordance with Section
3.06(i) of the Intercreditor Agreement by reason of the receipt by the
Borrower of a Termination Notice from the Liquidity Provider with respect
to the Liquidity Agreement, which Advance is requested to be made on
____________, ____. The Final Advance should be remitted to [insert wire
and account details].
(3) The amount of the Final Advance requested hereby (i) is
$_________________.__, which equals the Maximum Available Commitment on
the date hereof and is to be applied in respect of the funding of the
Class C Cash Collateral Account in accordance with Sections 3.06(f) and
3.06(i) of the Intercreditor Agreement, (ii) does not include any amount
with respect to the payment of principal of, or premium on, the Class C
Certificates, or principal of, or interest or premium on, the Class A-1
Certificates, the Class A-2 Certificates, the Class B Certificates or the
Class D Certificates, (iii) was computed in accordance with the provisions
of the Class C Certificates, the Class C Trust Agreement and the
Intercreditor Agreement (a copy of which computation is attached hereto as
Schedule I) and (iv) has not been and is not the subject of a prior or
contemporaneous Notice of Borrowing.
(4) Upon receipt by or on behalf of the Borrower of the amount
requested hereby, (a) the Borrower will deposit such amount in the Class C
Cash Collateral Account and apply the same in accordance with the terms of
Sections 3.06(f) and 3.06(i) of the Intercreditor Agreement, (b) no
portion of such amount shall be applied by the Borrower for any other
purpose and (c) no portion of such amount until so applied shall be
commingled with other funds held by the Borrower.
(5) [The Borrower hereby requests that the Advance requested hereby
be a Base Rate Advance [and that such Base Rate Advance be converted into
a LIBOR Advance on the third Business Day following your receipt of this
notice]*.]
The Borrower hereby acknowledges that, pursuant to the Liquidity
Agreement, (A) the making of the Final Advance as requested by this Notice of
Borrowing shall automatically and irrevocably terminate the obligation of the
Liquidity Provider to make further Advances under the Liquidity Agreement and
(B) following the making by the Liquidity Provider of the Final Advance
requested by this Notice of Borrowing, the Borrower shall not be entitled to
request any further Advances under the Liquidity Agreement.
----------
[* Bracketed language may be included at Borrower's option.]
IN WITNESS WHEREOF, the Borrower has executed and delivered this Notice of
Borrowing as of the ____ day of _________, ____.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
SCHEDULE I TO FINAL ADVANCE NOTICE OF BORROWING
[Insert Copy of Computations in accordance with Final Advance Notice of
Borrowing]
ANNEX V to
REVOLVING CREDIT AGREEMENT
NOTICE OF TERMINATION
[Date]
State Street Bank and Trust
Company of Connecticut,
National Association, as
Subordination Agent, as
Borrower
225 Asylum Street
Goodwin Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Re: Revolving Credit Agreement, dated as of September 17,
2001, between State Street Bank and Trust Company of
Connecticut, National Association, as Subordination
Agent, as agent and trustee for the Delta Air Lines
Pass Through Trust 2001-1C, as Borrower, and
Landesbank Hessen-Thuringen Girozentrale (the
"LIQUIDITY AGREEMENT")
Ladies and Gentlemen:
You are hereby notified that pursuant to Section 6.01 of the Liquidity
Agreement, by reason of the occurrence and continuance of a Liquidity Event of
Default and the existence of a Performing Note Deficiency (each as defined
therein), we are giving this notice to you in order to cause (i) our obligations
to make Advances (as defined therein) under such Liquidity Agreement to
terminate at the close of business on the fifth Business Day after the date on
which you receive this notice and (ii) you to request a Final Advance under the
Liquidity Agreement pursuant to Section 3.06(i) of the Intercreditor Agreement
(as defined in the Liquidity Agreement) as a consequence of your receipt of this
notice.
THIS NOTICE IS THE "NOTICE OF TERMINATION" PROVIDED FOR UNDER THE
LIQUIDITY AGREEMENT. OUR OBLIGATIONS TO MAKE ADVANCES UNDER THE LIQUIDITY
AGREEMENT WILL TERMINATE AT THE
CLOSE OF BUSINESS ON THE FIFTH BUSINESS DAY AFTER THE DATE ON WHICH YOU RECEIVE
THIS NOTICE.
Very truly yours,
LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as Liquidity Provider
By:
------------------------------------
Name:
Title:
cc: State Street Bank and Trust Company of Connecticut,
National Association, as Class C Trustee
ANNEX VI to
REVOLVING CREDIT AGREEMENT
NOTICE OF REPLACEMENT SUBORDINATION AGENT
[Date]
Attention:
Re: Revolving Credit Agreement, dated as of September 17, 2001,
between State Street Bank and Trust Company of Connecticut,
National Association, as Subordination Agent, as agent and
trustee for the Delta Air Lines Pass Through Trust 2001-1C, as
Borrower, and Landesbank Hessen-Thuringen Girozentrale (the
"LIQUIDITY AGREEMENT")
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
[Name of Transferee]
[Address of Transferee]
all rights and obligations of the undersigned as Borrower under the Liquidity
Agreement referred to above. The transferee has succeeded the undersigned as
Subordination Agent under the Intercreditor Agreement referred to in the first
paragraph of the Liquidity Agreement, pursuant to the terms of Section 7.01 of
the Intercreditor Agreement.
By this transfer, all rights of the undersigned as Borrower under the
Liquidity Agreement are transferred to the transferee and the transferee shall
hereafter have the sole rights and obligations as Borrower thereunder. The
undersigned shall pay any costs and expenses of such transfer, including, but
not limited to, transfer taxes or governmental charges.
This transfer shall be effective as of [specify time and date].
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Subordination Agent, as Borrower
By:
--------------------------------
Name:
Title:
EX-4.(D)(1)
14
de600102-ex4d1.txt
PARTICIPATION AGREEMENT (N3731T)
EXHIBIT 4(d)(1)
================================================================================
PARTICIPATION AGREEMENT
(N3731T)
Dated as of September 17, 2001
among
DELTA AIR LINES, INC.,
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Pass Through Trustee under each of the
Pass Through Trust Agreements
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Subordination Agent
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Loan Trustee
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
in its individual capacity as set forth herein
----------
One Boeing 737-832 Aircraft
U.S. Registration No. N3731T
================================================================================
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions...................................................
Section 1.02 Other Definitional Provisions.................................
ARTICLE 2
THE LOANS
Section 2.01 The Loans.....................................................
Section 2.02 Issuance of Equipment Notes...................................
Section 2.03 The Closing...................................................
ARTICLE 3
CONDITIONS PRECEDENT
Section 3.01 Conditions Precedent to Obligations of the Pass Through
Trustees.....................................................
Section 3.02 Conditions Precedent to Obligations of the Company............
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND INDEMNITIES OF THE COMPANY
Section 4.01 Representations and Warranties of the Company.................
Section 4.02 General Indemnity.............................................
ARTICLE 5
REPRESENTATIONS, WARRANTIES AND COVENANTS OF STATE STREET
Section 5.01 Representations, Warranties and Covenants of State Street.....
ARTICLE 6
OTHER COVENANTS AND AGREEMENTS
Section 6.01 Other Agreements..............................................
Section 6.02 Certain Covenants of the Company..............................
ARTICLE 7
MISCELLANEOUS
Section 7.01 Notices.......................................................
Section 7.02 Survival of Representations, Warranties, Indemnities,
Covenants and Agreements.....................................
Section 7.03 Governing Law.................................................
Section 7.04 Severability..................................................
Section 7.05 No Oral Modifications or Continuing Waivers; Consents.........
Section 7.06 Effect of Headings and Table of Contents......................
Section 7.07 Successors and Assigns........................................
Section 7.08 Benefits of Agreement.........................................
Section 7.09 Counterparts..................................................
Section 7.10 Submission to Jurisdiction....................................
Schedule I - Equipment Notes, Purchasers and Original Principal
Amounts
Schedule II - Trust Supplements
Exhibit A-1 - Form of Opinion of Counsel for the Company
Exhibit A-2 - Form of Opinion of Cadwalader, Wickersham & Taft,
special counsel for the Company
Exhibit A-3 - Form ofss. 1110 Opinion of Cadwalader, Wickersham &
Taft, special counsel for the Company
Exhibit B - Form of Opinion of Special Counsel for the Loan
Trustee, the Subordination Agent and State Street
Exhibit C - Form of Opinion of Special FAA Counsel
Exhibit D-1 - Form of Opinion of Special Counsel for the
Liquidity Provider
Exhibit D-2 - Form of Opinion of German In-House Counsel for the
Liquidity Provider
Exhibit E - Form of Manufacturer's Consent
Exhibit F - Form of Opinion of Special Counsel for the Pass
Through Trustees
Annex A - Definitions
PARTICIPATION AGREEMENT
(N3731T)
This PARTICIPATION AGREEMENT (N3731T), dated as of September 17,
2001, is made by and among DELTA AIR LINES, INC., a Delaware corporation
(together with its successors and permitted assigns, the "Company"), STATE
STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national
banking association (in its individual capacity, together with its successors
and permitted assigns, "State Street"), not in its individual capacity except as
otherwise expressly provided in any of the Operative Documents or the Pass
Through Documents, but solely as trustee (in such capacity together with any
successor or other trustee in such capacity, the "Pass Through Trustee") under
each of the Pass Through Trust Agreements (such term and other capitalized terms
used herein without definition being defined as provided in Section 1.01), STATE
STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national
banking association, as subordination agent and trustee (in such capacity,
together with any successor trustee in such capacity, the "Subordination Agent")
under the Intercreditor Agreement, and STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as loan trustee (in such capacity, together
with any successor trustee in such capacity, the "Loan Trustee") under the
Indenture.
W I T N E S S E T H:
WHEREAS, the Company is the owner of that certain Boeing Model
737-832 aircraft more particularly described in the Indenture Supplement
originally executed and delivered under the Indenture;
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company and the Loan Trustee are entering into the Indenture,
pursuant to which, among other things, the Company will issue five series of
Equipment Notes, which Equipment Notes are to be secured by a security interest
in all right, title and interest of the Company in and to the Aircraft and
certain other property described in the Indenture;
WHEREAS, pursuant to the Basic Pass Through Trust Agreement and each
of the Trust Supplements set forth in Schedule II hereto, concurrently with the
execution and delivery of this Agreement, separate Pass Through Trusts are being
created to facilitate certain of the transactions contemplated hereby,
including, without limitation, the issuance and sale of Pass Through
Certificates;
WHEREAS, pursuant to the Intercreditor Agreement, the Subordination
Agent will hold the Equipment Notes on behalf of the Pass Through Trusts;
NOW, THEREFORE, in consideration of the foregoing premises and 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 1
DEFINITIONS
Section 1.01 Definitions. For the purposes of this Agreement, unless
the context otherwise requires, capitalized terms used but not defined herein
shall have the respective meanings set forth or incorporated by reference in
Annex A.
Section 1.02 Other Definitional Provisions. (a) The definitions
stated herein and in Annex A apply equally to both the singular and the plural
forms of the terms defined.
(b) All references in this Agreement to designated "Articles",
"Sections", "Subsections", "Schedules", "Exhibits", "Annexes" and other
subdivisions are to the designated Article, Section, Subsection, Schedule,
Exhibit, Annex or other subdivision of this Agreement, unless otherwise
specifically stated.
(c) 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, Schedule, Exhibit, Annex or other subdivision.
(d) All references in this Agreement to a "government" are to such
government and any instrumentality or agency thereof.
(e) Unless the context otherwise requires, whenever the words
"including", "include" or "includes" are used herein, they shall be deemed to be
followed by the phrase "without limitation".
ARTICLE 2
THE LOANS
Section 2.01 The Loans. Subject to the terms and conditions of this
Agreement and the Indenture, on the Closing Date the Pass Through Trustee for
each Pass Through Trust shall make a loan to the Company by paying to the
Company the aggregate original principal amounts of the Equipment Notes being
issued to such Pass Through Trust as set forth on Schedule I opposite the name
of such Pass Through Trust. The Pass Through Trustees, on behalf of the Pass
Through Trusts, shall make such loans to the Company no later than 11:00 a.m.
(New York City time) on the Closing Date by transferring such amount in
immediately available funds to the Company at its account at Citibank, N.A., 111
Wall Street, New York, New York, Account No. 40002617, ABA Number 021000089,
with the request that the bank advise the Company by telephone at (404) 715-2046
upon transfer of the funds.
Section 2.02 Issuance of Equipment Notes. Upon the occurrence of the
above payments by the Pass Through Trustee for each Pass Through Trust to the
Company, the Company shall issue, pursuant to and in accordance with Article II
of the Indenture, to the Subordination Agent as agent and trustee for the Pass
Through Trustee for each Pass Through Trust, one or more Equipment Notes of the
maturity and aggregate principal amount and bearing the interest rate set forth
in Schedule I opposite the name of such Pass Through Trust. Each such Equipment
Note shall be duly authenticated by the Loan Trustee pursuant to the Indenture,
registered in the name of the Subordination Agent and dated the Closing Date and
shall be delivered by the Loan Trustee to the Subordination Agent.
Section 2.03 The Closing. The closing (the "Closing") of the
transactions contemplated hereby shall take place at the offices of Cadwalader,
Wickersham & Taft, 100 Maiden Lane, New York, New York at 9:30 a.m. (New York
City time) on September 17, 2001, or at such other time or place as the parties
shall agree.
ARTICLE 3
CONDITIONS PRECEDENT
Section 3.01 Conditions Precedent to Obligations of the Pass Through
Trustees. The obligation of each Pass Through Trustee to make the loan
contemplated by Article II is subject to the fulfillment (or the waiver by such
Pass Through Trustee) prior to or on the Closing Date of the following
conditions precedent:
(a) The Company shall have tendered the Equipment Notes to the Loan
Trustee for authentication, and the Loan Trustee shall have authenticated such
Equipment Notes and shall have tendered the Equipment Notes to the Subordination
Agent on behalf of the applicable Pass Through Trustee in accordance with
Section 2.02.
(b) No change shall have occurred after the date of this Agreement
in applicable law or regulations thereunder or interpretations thereof by
appropriate regulatory authorities or any court that would make it a violation
of law or governmental regulations for the Pass Through Trustees to make the
loans contemplated by Section 2.01 or to acquire the Equipment Notes.
(c) This Agreement and the following documents shall have been duly
authorized, executed and delivered by the respective party or parties thereto
(other than the Pass Through Trustees or the Loan Trustee), shall be in full
force and effect and executed counterparts (or copies thereof where indicated)
thereof shall have been delivered to each Pass Through Trustee:
(i) the Intercreditor Agreement;
(ii) the Liquidity Facilities;
(iii) the Pass Through Trust Agreements;
(iv) the Indenture and the Indenture Supplement covering the
Aircraft and dated the Closing Date;
(v) the Manufacturer's Consent;
(vi) a copy of the FAA Bill of Sale; and
(vii) a copy of the Warranty Bill of Sale.
(d) A Uniform Commercial Code financing statement or statements
covering the security interest created by the Indenture shall have been executed
and delivered by the Company, as debtor, and by the Loan Trustee, as secured
party, and such financing statement or statements shall have been duly filed in
all places necessary or desirable within the State of Delaware.
(e) Each Pass Through Trustee shall have received the following:
(i) a certificate dated the Closing Date of the Secretary or an
Assistant Secretary of the Company, certifying as to (A) a copy of the
resolutions of the Board of Directors of the Company or the executive
committee thereof duly authorizing the transactions contemplated hereby
and the execution, delivery and performance by the Company of this
Agreement and the Indenture and each other document required to be
executed and delivered by the Company in accordance with the provisions
hereof or thereof and (B) a copy of the certificate of incorporation and
by-laws of the Company, as in effect on the Closing Date;
(ii) a certificate or other evidence from the Secretary of State of
the State of Delaware, dated as of a date reasonably near the Closing
Date, as to the due incorporation and good standing of the Company in such
state;
(iii) an incumbency certificate of the Company as to the person or
persons authorized to execute and deliver this Agreement, the Indenture
and each other document to be executed by the Company in connection with
the transactions contemplated hereby and thereby, and the specimen
signatures of such person or persons; and
(iv) one or more certificates of the Loan Trustee and the
Subordination Agent certifying to the reasonable satisfaction of the Pass
Through Trustees as to the due authorization, execution, delivery and
performance by the Loan Trustee and the Subordination Agent of each of the
Operative Documents to which the Loan Trustee or the Subordination Agent
is or will be a party and any other documents to be executed by or on
behalf of the Loan Trustee or Subordination Agent in connection with the
transactions contemplated hereby or thereby.
(f) On the Closing Date, the following statements shall be correct:
(i) the representations and warranties herein of the Company are correct in all
material respects as though made on and as of such date, except to the extent
that such representations and warranties relate solely to an earlier date (in
which case such representations and warranties are correct on and as of such
earlier date) and (ii) no event has occurred and is continuing that constitutes
an Event of Default or an Event of Loss or would constitute an Event of Default
or Event of Loss but for the requirement that notice be given or time elapse or
both.
(g) Each Pass Through Trustee and the Loan Trustee shall have
received (i) an opinion addressed to it from the General Counsel or an Associate
General Counsel of the Company (or such other internal counsel to the Company as
shall be reasonably satisfactory to the Pass Through Trustees) substantially in
the form set forth in Exhibit A-1 and (ii) opinions addressed to it from
Cadwalader, Wickersham & Taft substantially in the forms set forth in Exhibits
A-2 and A-3.
(h) Each Pass Through Trustee and the Loan Trustee shall have
received an opinion addressed to it from Bingham Dana LLP, special counsel for
State Street, the Loan Trustee and the Subordination Agent, substantially in the
form set forth in Exhibit B.
(i) Each Pass Through Trustee and the Loan Trustee shall have
received an opinion addressed to it from Daugherty, Fowler, Peregrin & Haught, A
Professional Corporation, special FAA counsel in Oklahoma City, Oklahoma,
substantially in the form set forth in Exhibit C.
(j) Each Pass Through Trustee and the Loan Trustee shall have
received a certificate or certificates signed by the chief financial or
accounting officer, any Senior Vice President, the Treasurer, any Vice President
or any Assistant Treasurer (or any other Responsible Officer) of the Company,
dated the Closing Date, certifying as to the correctness of each of the matters
stated in Section 3.01(f).
(k) Each Pass Through Trustee shall have received a certificate from
State Street in its individual capacity and as Loan Trustee and Subordination
Agent, as applicable, dated the Closing Date, signed by an authorized officer of
State Street in its individual capacity and as Loan Trustee and Subordination
Agent, as applicable, certifying for each such entity that no Loan Trustee Liens
or Other Party Liens attributable to it, as applicable, exist, and further
certifying as to the correctness of each of the matters stated in Section 5.01.
(l) Each Pass Through Trustee shall have received opinions addressed
to it from Pillsbury Winthrop LLC, special counsel for the Liquidity Provider,
substantially in the form set forth in Exhibit D-1, and from German in-house
counsel for the Liquidity Provider, substantially in the form set forth in
Exhibit D-2.
(m) The Loan Trustee shall have received an insurance report of an
independent insurance broker and the related certificates of insurance, each in
form and substance reasonably satisfactory to the Loan Trustee, as to the
compliance with the terms of Section 7.06 of the Indenture relating to insurance
with respect to the Aircraft.
(n) No action or proceeding shall have been instituted nor shall
governmental action be threatened before any court or governmental agency, nor
shall any order, judgment or decree have been issued or proposed to be issued by
any court or governmental agency at the time of the Closing to set aside,
restrain, enjoin or prevent the completion and consummation of this Agreement or
the transactions contemplated hereby.
(o) The Company shall have entered into the Underwriting Agreement,
the Pass Through Certificates shall have been issued and sold pursuant to the
Underwriting Agreement and the Underwriters shall have transferred to the Pass
Through Trustees in immediately available funds an amount at least equal to the
aggregate purchase price of the Equipment Notes to be purchased from the
Company.
(p) The Loan Trustee shall have received an executed copy of the
Manufacturer's Consent substantially in the form set forth in Exhibit E.
Promptly upon the recording of the Indenture (with the Indenture
Supplement attached) pursuant to the Transportation Code, the Company will cause
Daugherty, Fowler, Peregrin & Haught, A Professional Corporation, special FAA
counsel in Oklahoma City, Oklahoma to deliver to the Subordination Agent on
behalf of the Pass Through Trustees, to the Loan Trustee and to the Company an
opinion as to the due recording of such instrument and the lack of filing of any
intervening documents with respect to the Aircraft.
Section 3.02 Conditions Precedent to Obligations of the Company. The
obligation of the Company to issue and sell the Equipment Notes is subject to
the fulfillment (or waiver by the Company) prior to or on the Closing Date of
the following conditions precedent:
(a) No change shall have occurred after the date of this Agreement
in applicable law or regulations thereunder or interpretations thereof by
appropriate regulatory authorities or any court that would make it a violation
of law or governmental regulations for the Company to enter into any transaction
contemplated by the Operative Documents or the Pass Through Trust Agreements.
(b) The documents referred to in Section 3.01(c) shall have been
duly authorized, executed and delivered by the respective party or parties
thereto (other than the Company), shall be in full force and effect and executed
counterparts (or copies thereof where indicated) thereof shall have been
delivered to the Company, and the Company shall have received such documents and
evidence with respect to State Street, the Liquidity Provider, the Loan Trustee,
the Subordination Agent and each Pass Through Trustee as the Company may
reasonably request in order to establish the consummation of the transactions
contemplated by this Agreement, the taking of all corporate and other
proceedings in connection therewith and compliance with the conditions herein
set forth.
(c) The Indenture (with the Indenture Supplement covering the
Aircraft attached) shall have been duly filed for recordation (or shall be in
the process of being so duly filed for recordation) with the FAA pursuant to the
Transportation Code.
(d) On the Closing Date, the representations and warranties herein
of State Street, the Loan Trustee, the Subordination Agent and the Pass Through
Trustees shall be correct as though made on and as of such date, except to the
extent that such representations and warranties relate solely to an earlier date
(in which case such representations and warranties shall have been correct on
and as of such earlier date), and, insofar as such representations and
warranties concern State Street, the Loan Trustee, the Subordination Agent or
any Pass Through Trustee, such party shall have so certified to the Company.
(e) The Company shall have received each opinion referred to in
Subsections 3.01(h), 3.01(i) and 3.01(l), each such opinion (other than 3.01(l))
addressed to the Company or accompanied by a letter from the counsel rendering
such opinion authorizing the Company to rely on such opinion as if it were
addressed to the Company, and the certificates referred to in Subsections
3.01(e)(iv) and 3.01(k).
(f) The Company shall have received an opinion addressed to it from
Bingham Dana LLP, special counsel for the Pass Through Trustees, substantially
in the form set forth in Exhibit F.
(g) No action or proceeding shall have been instituted nor shall
governmental action be threatened before any court or governmental agency, nor
shall any order, judgment or decree have been issued or proposed to be issued by
any court or governmental agency at the time of the Closing to set aside,
restrain, enjoin or prevent the completion and consummation of this Agreement or
the transactions contemplated hereby.
(h) The Company shall have received a certificate from State Street
dated the Closing Date, signed by an authorized officer of State Street,
certifying for each Pass Through Trustee that no Other Party Liens attributable
to it exist and further certifying as to the correctness of each of the matters
stated in Section 5.01.
(i) The Company shall have been paid by the Pass Through Trustee for
each Pass Through Trust the aggregate original principal amount of the Equipment
Notes being issued to such Pass Through Trust as set forth on Schedule I
opposite the name of such Pass Through Trust.
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND INDEMNITIES OF THE COMPANY
Section 4.01 Representations and Warranties of the Company. The
Company represents and warrants that:
(a) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware, is a
Certificated Air Carrier, is a Citizen of the United States, has the corporate
power and authority to own or hold under lease its properties and to enter into
and perform its obligations under the Operative Documents to which it is a party
and is duly qualified to do business as a foreign corporation in good standing
in each other jurisdiction in which the failure to so qualify would have a
material adverse effect on the consolidated financial condition of the Company
and its subsidiaries, considered as a whole, and its jurisdiction of
organization (as such term is used in Article 9 of the Uniform Commercial Code
as in effect in the State of Georgia) is Delaware.
(b) The execution, delivery and performance by the Company of this
Agreement and the other Operative Documents to which the Company is a party have
been duly authorized by all necessary corporate action on the part of the
Company, do not require any stockholder approval or approval or consent of any
trustee or holder of any indebtedness or obligations of the Company, except such
as have been duly obtained and are in full force and effect, and do not
contravene any law, governmental rule, regulation, judgment or order binding on
the Company or the certificate of incorporation or by-laws of the Company or
contravene or result in a breach of, or constitute a default under, or result in
the creation of any Lien (other than as permitted under the Indenture) upon the
property of the Company under, any material indenture, mortgage, contract or
other agreement to which the Company is a party or by which it or any of its
properties may be bound or affected.
(c) Neither the execution and delivery by the Company of this
Agreement and the other Operative Documents to which it is a party, nor the
consummation by the Company of any of the transactions contemplated hereby or
thereby, requires 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, the Department of Transportation, the FAA or any other federal or
state governmental authority or agency, except for (i) the registration of the
Pass Through Certificates (other than the Class D Pass Through Certificates)
under the Securities Act of 1933, as amended, and under the securities laws of
any state in which the Pass Through Certificates may be offered for sale if the
laws of such state require such action, (ii) the qualification of the Pass
Through Trust Agreements under the Trust Indenture Act of 1939, as amended,
(iii) the orders, permits, waivers, exemptions, authorizations and approvals of
the regulatory authorities having jurisdiction over the operation of the
Aircraft by the Company required to be obtained on or prior to the Closing Date,
which orders, permits, waivers, exemptions, authorizations and approvals have
been duly obtained and are, or on the Closing Date will be, in full force and
effect, (iv) the filings referred to in Section 4.01(e) and (v) consents,
approvals, notices, registrations and other actions required to be obtained,
given, made or taken only after the date hereof.
(d) This Agreement and each other Operative Document to which the
Company is a party have been duly executed and delivered by the Company and
constitute the legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, except as the same may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the rights of creditors generally and by general principles of
equity and except, in the case of the Indenture, as limited by applicable laws
that may affect the remedies provided in the Indenture.
(e) Except for (i) the filing for recordation pursuant to the
Transportation Code of the Indenture (with the Indenture Supplement covering the
Aircraft attached) and (ii) with respect to the security interests created by
such documents, the filing of financing statements (and continuation statements
at periodic intervals) under the Uniform Commercial Code of Georgia, no further
filing or recording of any document is necessary under the laws of the United
States or any state thereof as of the Closing Date in order to establish and
perfect the security interest in the Aircraft created under the Indenture in
favor of the Loan Trustee as against the Company and any third parties in any
applicable jurisdiction in the United States.
(f) The Company is not an investment company or a company controlled
by an investment company within the meaning of the Investment Company Act of
1940, as amended.
(g) As of the Closing Date, (i) the Company has good title to the
Aircraft, free and clear of Liens other than Permitted Liens, (ii) the Aircraft
has been duly certificated by the FAA as to type and airworthiness in accordance
with the terms of the Indenture, (iii) the Indenture (with the Indenture
Supplement covering the Aircraft attached) has been duly filed for recordation
(or shall be in the process of being so duly filed for recordation) with the FAA
pursuant to the Transportation Code and (iv) the Aircraft is duly registered
with the FAA in the name of the Company.
Section 4.02 General Indemnity.
(a) Claims Defined. For the purposes of this Section 4.02, "Claims"
shall mean any and all liabilities, obligations, losses, damages, penalties,
claims, actions, suits, costs or expenses of whatsoever kind and nature (whether
or not on the basis of negligence, strict or absolute liability or liability in
tort) that may be imposed on, incurred by, suffered by or asserted against an
Indemnitee, as defined herein, and, except as otherwise expressly provided in
this Section 4.02, shall include all reasonable out-of-pocket costs,
disbursements and expenses (including reasonable out-of-pocket legal fees and
expenses) of an Indemnitee actually incurred in connection therewith or related
thereto.
(b) Indemnitee Defined. For the purposes of this Section 4.02,
"Indemnitee" means (i) State Street and the Loan Trustee, (ii) so long as it
holds any Equipment Notes as agent and trustee of any Pass Through Trustee, the
Subordination Agent, (iii) so long as it is the holder of any Equipment Notes,
each Pass Through Trustee, (iv) the Liquidity Provider and (v) each of their
respective successors and permitted assigns in such capacities, agents,
servants, officers, employees and directors (the respective agents, servants,
officers, employees and directors of each of the foregoing Indemnitees, as
applicable, together with such Indemnitee, being referred to herein collectively
as the "Related Indemnitee Group" of such Indemnitee); provided that such
Persons shall, to the extent they are not signatories to this Agreement, have
expressly agreed in writing to be bound by the terms of this Section 4.02 prior
to, or concurrently with, the making of a Claim hereunder. If an Indemnitee
fails to comply with any duty or obligation under this Section 4.02 with respect
to any Claim, such Indemnitee shall not, to the extent such failure was
prejudicial to the Company, be entitled to any indemnity with respect to such
Claim under this Section 4.02. No holder of a Pass Through Certificate in its
capacity as such holder shall be an Indemnitee for purposes hereof.
(c) Claims Indemnified. Subject to the exclusions stated in
Subsection 4.02(d), the Company agrees to indemnify, protect, defend and hold
harmless on an After-Tax Basis each Indemnitee against Claims resulting from or
arising out of the sale, purchase, acceptance, non-acceptance or rejection of
the Aircraft under the Purchase Agreement or the ownership, possession, use,
non-use, substitution, airworthiness, control, maintenance, repair, operation,
registration, re-registration, condition, sale, lease, sublease, storage,
modification, alteration, return, transfer or other disposition of the Aircraft,
the Airframe, any Engine or any Part (including, without limitation, latent or
other defects, whether or not discoverable, and any claim for patent, trademark
or copyright infringement) by the Company, any Permitted Lessee or any other
Person. Without limiting the foregoing and subject to, and without duplication
of, the provisions of Section 6.01(a), the Company agrees to pay the reasonable
ongoing fees, and the reasonable out-of-pocket costs and expenses actually
incurred (including, without limitation, reasonable attorney's fees and
disbursements actually incurred and, to the extent payable as provided in the
Indenture, reasonable compensation and expenses of the Loan Trustee's agents
actually incurred), of the Loan Trustee in connection with the transactions
contemplated hereby.
(d) Claims Excluded. The following are excluded from the Company's
agreement to indemnify an Indemnitee under this Section 4.02:
(i) any Claim to the extent such Claim is attributable to acts or
events occurring after (x) the Equipment Notes have been paid in full or
(y) the transfer of possession of the Aircraft pursuant to Article IV of
the Indenture except to the extent that such Claim is attributable to acts
occurring in connection with the exercise of remedies pursuant to Section
4.02 of the Indenture following the occurrence and continuance of an Event
of Default;
(ii) any Claim to the extent such Claim is, or is attributable to, a
Tax;
(iii) any Claim to the extent such Claim is attributable to the
negligence or willful misconduct of such Indemnitee or such Indemnitee's
Related Indemnitee Group;
(iv) any Claim to the extent such Claim is attributable to the
noncompliance by such Indemnitee or such Indemnitee's Related Indemnitee
Group with any of the terms of, or any misrepresentation by an Indemnitee
or its Related Indemnitee Group contained in, this Agreement, any other
Operative Document or any Pass Through Document to which such Indemnitee
or any of such Related Indemnitee Group is a party or any agreement
relating hereto or thereto;
(v) any Claim to the extent such Claim constitutes a Permitted Lien
attributable to such Indemnitee;
(vi) any Claim to the extent such Claim is attributable to the
offer, sale, assignment, transfer, participation or other disposition
(whether voluntary or involuntary) by or on behalf of such Indemnitee or
its Related Indemnitee Group other than during the occurrence and
continuance of an Event of Default (provided that any such offer, sale,
assignment, transfer, participation or other disposition during the
occurrence and continuation of an Event of Default shall not be subject to
indemnification unless it is made in accordance with the Indenture and
applicable law) of any Equipment Note or Pass Through Certificate, all or
any part of such Indemnitee's interest in the Operative Documents or the
Pass Through Documents or any interest in the Collateral or any similar
security;
(vii) any Claim to the extent such Claim is attributable to (A) a
failure on the part of the Loan Trustee to distribute in accordance with
this Agreement or the Indenture any amounts received and distributable by
it hereunder or thereunder, (B) a failure on the part of the Subordination
Agent to distribute in accordance with the Intercreditor Agreement any
amounts received and distributable by it thereunder or (C) a failure on
the part of any Pass Through Trustee to distribute in accordance with the
Pass Through Trust Agreement to which it is a party any amounts received
and distributable by it thereunder;
(viii) any Claim to the extent such Claim is attributable to the
authorization or giving or withholding of any future amendments,
supplements, waivers or consents with respect to any Operative Document or
any Pass Through Document, other than such as have been requested by the
Company or that occur as the result of an Event of Default, or such as are
expressly required or contemplated by the provisions of the Operative
Documents or the Pass Through Documents;
(ix) any Claim to the extent such Claim is payable or borne by (a)
the Company pursuant to any indemnification, compensation or reimbursement
provision of any other Operative Document or any Pass Through Document or
(b) a Person other than the Company pursuant to any provision of any
Operative Document or any Pass Through Document;
(x) any Claim to the extent such Claim is an ordinary and usual
operating or overhead expense or not an out-of-pocket expense actually
incurred;
(xi) any Claim to the extent such Claim is incurred by or asserted
as a result of any "prohibited transaction" within the meaning of Section
406 of ERISA or Section 4975 of the Code;
(xii) any Claim to the extent such Claim is attributable to one or
more of the other aircraft financed through the offering of Pass Through
Certificates (in the event of doubt, any Claim shall be allocated between
the Aircraft and such other aircraft in the same proportion that the then
outstanding Equipment Notes bear to the then outstanding equipment notes
issued with respect to the other aircraft and held by the Pass Through
Trustees); and
(xiii) any Claim by an Indemnitee related to the status of such
Indemnitee as a passenger or shipper on any of the Company's aircraft.
(e) Insured Claims. In the case of any Claim indemnified by the
Company hereunder that is covered by a policy of insurance maintained by the
Company, each Indemnitee agrees to cooperate, at the Company's expense, with the
insurers in the exercise of their rights to investigate, defend or compromise
such Claim.
(f) Claims Procedure. An Indemnitee shall promptly notify the
Company of any Claim as to which indemnification is sought; provided that the
failure to provide such prompt notice shall not release the Company from any of
its obligations to indemnify hereunder, except to the extent that the Company is
prejudiced by such failure or the Company's indemnification obligations are
increased as a result of such failure. Such Indemnitee shall promptly submit to
the Company all additional information in such Indemnitee's possession to
substantiate such request for payment to the Company as the Company reasonably
requests. Subject to the rights of insurers under policies of insurance
maintained by the Company, the Company shall have the right, at its sole cost
and expense, to investigate, and the right in its sole discretion to defend or
compromise, any Claim for which indemnification is sought under this Section
4.02, and, at the Company's expense, the Indemnitee shall cooperate with all
reasonable requests of the Company in connection therewith. Such Indemnitee
shall not enter into a settlement or other compromise with respect to any Claim
without the prior written consent of the Company, which consent shall not be
unreasonably withheld or delayed, unless such Indemnitee waives its right to be
indemnified with respect to such Claim under this Section 4.02. Where the
Company or the insurers under a policy of insurance maintained by the Company
undertake the defense of an Indemnitee with respect to a Claim, no additional
legal fees or expenses of such Indemnitee in connection with the defense of such
Claim shall be indemnified hereunder unless such fees or expenses were incurred
at the written request of the Company or such insurers. Subject to the
requirements of any policy of insurance, an Indemnitee may participate at its
own expense in any judicial proceeding controlled by the Company pursuant to the
preceding provisions; provided that such party's participation does not, in the
opinion of the counsel appointed by the Company or its insurers to conduct such
proceedings, interfere with such control; and such participation shall not
constitute a waiver of the indemnification provided in this Section 4.02.
Notwithstanding anything to the contrary contained herein, the Company shall not
under any circumstances be liable for the fees and expenses of more than one
counsel for all Indemnitees.
(g) Subrogation. To the extent that a Claim indemnified by the
Company under this Section 4.02 is in fact paid in full by the Company or an
insurer under a policy of insurance maintained by the Company, the Company or
such insurer, as the case may be, shall, without any further action, be
subrogated to the rights and remedies of the Indemnitee on whose behalf such
Claim was paid with respect to the transaction or event giving rise to such
Claim. Such Indemnitee shall give such further assurances or agreements and
shall cooperate with the Company or such insurer, as the case may be, to permit
the Company or such insurer to pursue such rights and remedies, if any, to the
extent reasonably requested by the Company. So long as no Event of Default shall
have occurred and be continuing, if an Indemnitee receives any payment from any
party other than the Company or its insurers, in whole or in part, with respect
to any Claim paid by the Company or its insurers hereunder, it shall promptly
pay over to the Company the amount received (but not an amount in excess of the
amount the Company or any of its insurers has paid in respect of such Claim).
Any amount referred to in the preceding sentence that is payable to the Company
shall not be paid to the Company, or, if it has been previously paid directly to
the Company, shall not be retained by the Company, if at the time of such
payment an Event of Default shall have occurred and be continuing, but shall be
paid to and held by the Loan Trustee as security for the obligations of the
Company under this Agreement, the Indenture and the other Operative Documents,
and, if the Company agrees, shall be applied against the Company's obligations
hereunder and thereunder when and as they become due and payable and, at such
time as there shall not be continuing any such Event of Default, such amount, to
the extent not previously so applied against the Company's obligations, shall be
paid to the Company; provided that if any such amount has been so held by the
Loan Trustee as security for more than 90 days after any such Event of Default
shall have occurred, during which period (i) the Loan Trustee shall not have
been limited by operation of law or otherwise from exercising remedies under the
Indenture and (ii) the Loan Trustee shall not have exercised any remedy
available to it under Section 4.02 of the Indenture, then such amount, to the
extent not previously so applied against the Company's payment obligations,
shall be paid to the Company.
(h) No Guaranty. Nothing set forth in this Section 4.02 shall
constitute a guarantee by the Company that the Aircraft shall at any time have
any particular value, useful life or residual value.
(i) Payments; Interest. Any amount payable to any Indemnitee
pursuant to this Section 4.02 shall be paid within 30 days after receipt of a
written demand therefor from such Indemnitee accompanied by a written statement
describing in reasonable detail the Claims that are the subject of and basis for
such indemnity and the computation of the amount payable. Any payments made
pursuant to this Section 4.02 directly to an Indemnitee or to the Company, as
the case may be, shall be made in immediately available funds at such bank or to
such account as is specified by the payee in written directions to the payor or,
if no such directions shall have been given, by check of the payor payable to
the order of the payee and mailed to the payee by certified mail, return receipt
requested, postage prepaid to its address referred to in Section 7.01. To the
extent permitted by applicable law, interest at the Past Due Rate shall be paid,
on demand, on any amount or indemnity not paid when due pursuant to this Section
4.02 until the same shall be paid. Such interest shall be paid in the same
manner as the unpaid amount in respect of which such interest is due.
(j) Tax deduction or credit. If, by reason of any Claim payment made
to or for the account of an Indemnitee by the Company pursuant to this Section
4.02, such Indemnitee subsequently realizes a tax deduction or credit (including
foreign tax credit and any reduction in Taxes) not previously taken into account
in computing such payment, such Indemnitee shall promptly pay to the Company,
but only if the Company has made all payments then due and owing to such
Indemnitee under the Operative Documents, an amount equal to the sum of (I) the
actual reduction in Taxes realized by such Indemnitee which is attributable to
such deduction or credit, and (II) the actual reduction in Taxes realized by
such Indemnitee as a result of any payment made by such Indemnitee pursuant to
this sentence.
ARTICLE 5
REPRESENTATIONS, WARRANTIES AND COVENANTS OF STATE STREET
Section 5.01 Representations, Warranties and Covenants of State
Street. State Street, generally, and each of the Loan Trustee, the Subordination
Agent and the Pass Through Trustee as it relates to it, represents, warrants and
covenants that:
(a) State Street is a national banking association duly organized
and validly existing in good standing under the laws of the United States, is
eligible to be the Loan Trustee under Section 8.01(a) of the Indenture, will
promptly comply with Section 8.01(a) of the Indenture and has full power,
authority and legal right to enter into and perform its obligations under each
of the Operative Documents and the Pass Through Documents to which State Street,
the Loan Trustee, the Subordination Agent or any Pass Through Trustee is a party
and, in its capacity as Loan Trustee and Pass Through Trustee, respectively, to
authenticate the Equipment Notes and the Pass Through Certificates,
respectively. State Street is qualified to act as Loan Trustee under Section
8.01(c) of the Indenture.
(b) The execution, delivery and performance by State Street,
individually or in its capacity as Loan Trustee, Subordination Agent or Pass
Through Trustee, as the case may be, of this Agreement, each of the other
Operative Documents and each of the Pass Through Documents to which State
Street, the Loan Trustee, the Subordination Agent or any Pass Through Trustee is
a party, and the authentication of the Equipment Notes and the Pass Through
Certificates, respectively, to be delivered on the Closing Date, have been duly
authorized by all necessary action on the part of State Street, the Loan
Trustee, the Subordination Agent and each Pass Through Trustee, as the case may
be, and do not violate any law or regulation of the United States or of the
state of the United States in which State Street is located and which governs
the banking and trust powers of State Street or any order, writ, judgment or
decree of any court, arbitrator or governmental authority applicable to State
Street, the Loan Trustee, the Subordination Agent or any Pass Through Trustee or
any of their assets, will not violate any provision of the articles of
association or by-laws of State Street and will not violate any provision of, or
constitute a default under, any mortgage, indenture, contract, agreement or
undertaking to which any of State Street, the Loan Trustee, the Subordination
Agent or any Pass Through Trustee is a party or by which any of them or their
respective properties may be bound or affected.
(c) Neither the execution and delivery by State Street, individually
or in its capacity as Loan Trustee, Subordination Agent or Pass Through Trustee,
as the case may be, of this Agreement, any other Operative Document or any Pass
Through Document to which State Street, the Loan Trustee, the Subordination
Agent or any Pass Through Trustee is a party, nor the consummation by State
Street, the Loan Trustee, the Subordination Agent or any Pass Through Trustee of
any of the transactions contemplated hereby or thereby, requires 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 State Street is located and regulating the banking and trust powers
of State Street.
(d) This Agreement, each other Operative Document and each Pass
Through Document to which State Street, the Loan Trustee, the Subordination
Agent or any Pass Through Trustee is a party have been duly executed and
delivered by State Street, individually and in its capacity as Loan Trustee,
Subordination Agent or Pass Through Trustee, as the case may be, and constitute
the legal, valid and binding obligations of State Street, the Loan Trustee, the
Subordination Agent and such Pass Through Trustee, as it shall be a party
thereto, enforceable against it in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the rights of creditors generally and by general
principles of equity.
(e) It unconditionally agrees with and for the benefit of the
parties to this Agreement that it will not directly or indirectly create, incur,
assume or suffer to exist any Loan Trustee Lien or Other Party Lien attributable
to it, and it agrees that it will, at its own cost and expense, promptly take
such action as may be necessary to discharge and satisfy in full any such Lien;
and it shall indemnify, protect, defend and hold harmless each Indemnitee and
the Company against Claims in any way resulting from or arising out of a breach
by it of its obligations under this Section 5.01(e).
(f) The Equipment Notes to be issued to the Subordination Agent
pursuant hereto are being acquired by it to be held under the Intercreditor
Agreement.
(g) Each of State Street, the Loan Trustee, the Subordination Agent
and each Pass Through Trustee agrees that it will not impose any lifting charge,
cable charge, remittance charge or any other charge or fee on any transfer by
the Company of funds to, through or by State Street, the Loan Trustee, the
Subordination Agent or such Pass Through Trustee pursuant to this Agreement, any
other Operative Document or any Pass Through Document, except as may be
otherwise agreed to in writing by the Company.
(h) Each of State Street, the Loan Trustee, the Subordination Agent
and any Pass Through Trustee agrees to be bound by the terms of Section 10.16 of
the Indenture.
(i) There are no Taxes payable by State Street, the Loan Trustee,
the Subordination Agent or any Pass Through Trustee imposed by the State of
Connecticut or any political subdivision or taxing authority thereof in
connection with the execution, delivery or performance by State Street, the Loan
Trustee, the Subordination Agent or any Pass Through Trustee of any Operative
Document or any Pass Through Document (other than franchise or other taxes based
on or measured by any fees or compensation received by any such Person for
services rendered in connection with the transactions contemplated by the
Operative Documents or the Pass Through Documents), and there are no Taxes
payable by any Pass Through Trustee imposed by the State of Connecticut or any
political subdivision thereof in connection with the acquisition, possession or
ownership by such Pass Through Trustee of any of the Equipment Notes (other than
franchise or other taxes based on or measured by any fees or compensation
received by such Pass Through Trustee for services rendered in connection with
the transactions contemplated by the Operative Documents or the Pass Through
Documents) and, assuming that the Pass Through Trusts will not be taxable for
Federal income tax purposes as corporations, but, rather, will be characterized
for such purposes as grantor trusts or partnerships, the Pass Through Trusts
will not be subject to any Taxes imposed by the State of Connecticut or any
political subdivision thereof.
(j) Except with the consent of the Company, which shall not be
unreasonably withheld, State Street will act as Pass Through Trustee solely
through its offices within the State of Connecticut, except for such services
that may be performed for it by various agents, but not directly by it, in other
states.
(k) There are no pending or, to its knowledge, threatened actions or
proceedings against State Street, the Loan Trustee, the Subordination Agent or
any Pass Through Trustee before any court or administrative agency which
individually or in the aggregate, if determined adversely to it, would
materially adversely affect the ability of State Street, the Loan Trustee, the
Subordination Agent or any Pass Through Trustee to perform its obligations under
any Operative Document or any Pass Through Document.
(l) The representations and warranties contained in Section 7.15 of
each Pass Through Trust Agreement are true, complete and correct as of the
Closing Date.
ARTICLE 6
OTHER COVENANTS AND AGREEMENTS
Section 6.01 Other Agreements. (a) The Company agrees promptly to
pay (without duplication of any other obligation the Company may have to pay
such amounts) (A) the initial and annual fees and (to the extent the Loan
Trustee is entitled to be reimbursed for its reasonable expenses) the reasonable
expenses of the Loan Trustee in connection with the transactions contemplated
hereby and (B) the following expenses incurred by the Loan Trustee, the
Subordination Agent and the Pass Through Trustees in connection with the
negotiation, preparation, execution and delivery of this Agreement, the other
Operative Documents and the other documents or instruments referred to herein or
therein:
(i) the reasonable fees, expenses and disbursements of (x) Bingham
Dana LLP, special counsel for the Loan Trustee, the Subordination Agent
and the Pass Through Trustees and (y) Daugherty, Fowler, Peregrin &
Haught, A Professional Corporation, special FAA counsel in Oklahoma City,
Oklahoma, in each case to the extent actually incurred; and
(ii) all reasonable expenses incurred in connection with printing
and document production or reproduction expenses, and in connection with
the filing of Uniform Commercial Code financing statements.
(b) The Loan Trustee, the Noteholders, the Subordination Agent and
each Pass Through Trustee agree to execute and deliver, at the Company's
expense, all such documents as the Company reasonably requests for the purpose
of continuing the registration of the Aircraft at the FAA in the Company's name.
In addition, each of the Loan Trustee, the Subordination Agent, each Pass
Through Trustee and any other Noteholder agrees, for the benefit of the Company,
to cooperate with the Company in effecting any foreign registration of the
Aircraft pursuant to Section 7.02(e) of the Indenture; provided that prior to
any such change in the country of registry of the Aircraft the conditions set
forth in Section 7.02(e) of the Indenture are met to the reasonable satisfaction
of, or waived by, the Loan Trustee.
(c) Each of State Street, the Loan Trustee, the Subordination Agent,
each Pass Through Trustee and any other Noteholder agrees that, unless an Event
of Default shall have occurred and be continuing, it shall not take any action
contrary to, or otherwise in any way interfere with or disturb (and then only in
accordance with the Indenture), the quiet enjoyment of the use and possession of
the Aircraft, the Airframe, any Engine or any Part by the Company or any
transferee of any interest in any thereof permitted under the Indenture.
(d) Each Noteholder, including, without limitation, the
Subordination Agent and each Pass Through Trustee, unconditionally agrees with
and for the benefit of the parties to this Agreement that it will not directly
or indirectly create, incur, assume or suffer to exist any Noteholder Liens, and
such Noteholder agrees that it will, at its own cost and expense, promptly take
such action as may be necessary to discharge and satisfy in full any such
Noteholder Lien; and each Noteholder hereby agrees to indemnify, protect, defend
and hold harmless each Indemnitee and the Company against Claims in any way
resulting from or arising out of a breach by it of its obligations under this
Section 6.01(d).
(e) By its acceptance of its Equipment Notes, each Noteholder (i)
unconditionally agrees for the benefit of the Company and the Loan Trustee to be
bound by and to perform and comply with all of the terms of such Equipment
Notes, the Indenture and this Agreement applicable to such Noteholder and (ii)
agrees that it will not transfer any Equipment Note (or any part thereof) to any
entity unless such entity makes (or is deemed to have made) a representation and
warranty as of the date of transfer that either no part of the funds to be used
by it for the purchase and holding of such Equipment Note (or any part thereof)
constitutes assets of any "employee benefit plan" or that such purchase and
holding will not result in a non-exempt prohibited transaction under Section
4975 of the Code and Section 406 of ERISA.
Section 6.02 Certain Covenants of the Company. The Company covenants
and agrees with the Loan Trustee as follows: (a) On and after the Closing, the
Company will cause to be done, executed, acknowledged and delivered such further
acts, conveyances and assurances as the Loan Trustee reasonably requests for
accomplishing the purposes of this Agreement and the other Operative Documents;
provided that any instrument or other document so executed by the Company will
not expand any obligations or limit any rights of the Company in respect of the
transactions contemplated by the Operative Documents.
(b) The Company will cause the Indenture (with the Indenture
Supplement covering the Aircraft attached) to be promptly filed and recorded, or
filed for recording, with the FAA to the extent permitted under the
Transportation Code and the rules and regulations of the FAA thereunder.
(c) The Company, at its expense, will take, or cause to be taken,
such action with respect to the recording, filing, re-recording and refiling of
the Indenture and any financing statements or other instruments as are necessary
to maintain, so long as the Indenture is in effect, the perfection of the
security interests created by the Indenture or will furnish the Loan Trustee
timely notice of the necessity of such action, together with such instruments,
in execution form, and such other information as may be required to enable the
Loan Trustee to take such action. In addition, the Company will pay any and all
recording, stamp and other similar taxes payable in the United States, and in
any other jurisdiction where the Aircraft is registered, in connection with the
execution, delivery, recording, filing, re-recording and refiling of the
Indenture or any such financing statements or other instruments. The Company
will notify the Loan Trustee of any change in its jurisdiction of organization
(as such term is used in Article 9 of the Uniform Commercial Code as in effect
in the State of Georgia) promptly after making such change or in any event
within the period of time necessary under applicable law to prevent the lapse of
perfection (absent refiling) of financing statements filed under the Operative
Documents.
(d) The Company shall at all times maintain its corporate existence
except as permitted by Section 6.02(e).
(e) The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease substantially all of its assets as an
entirety to any Person, unless:
(i) the successor or transferee entity shall, if and to the extent
required under Section 1110 in order that the Loan Trustee shall continue
to be entitled to any benefits of Section 1110 with respect to the
Aircraft, be a Citizen of the United States and a Certificated Air Carrier
and shall execute and deliver to the Loan Trustee an agreement containing
the express assumption by such successor or transferee entity of the due
and punctual performance and observance of each covenant and condition of
the Operative Documents to which the Company is a party to be performed or
observed by the Company;
(ii) immediately after giving effect to such transaction, no Event
of Default shall have occurred and be continuing; and
(iii) the Company shall have delivered to the Loan Trustee a
certificate signed by a Responsible Officer of the Company, and an opinion
of counsel (which may be internal counsel to the Company), each stating
that such consolidation, merger, conveyance, transfer or lease and the
assumption agreement mentioned in clause (i) above comply with this
Section 6.02(e) and that all conditions precedent herein provided relating
to such transaction have been complied with (except that such opinion need
not cover the matters referred to in clause (ii) above and may rely, as to
factual matters, on a certificate of an officer of the Company) and, in
the case of such opinion, that such assumption agreement has been duly
authorized, executed and delivered by such successor Person and is
enforceable against such successor Person in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally and by general principles of equity.
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 6.02(e), the successor 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 and the
other Operative Documents with the same effect as if such successor Person had
been named as the Company herein.
(f) The Company shall remain a Certificated Air Carrier for as long
as and to the extent required under Section 1110 in order that the Loan Trustee
shall be entitled to any of the benefits of Section 1110 with respect to the
Aircraft.
ARTICLE 7
MISCELLANEOUS
Section 7.01 Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices required or permitted under the terms
and provisions of this Agreement shall be in English and in writing, and any
such notice may be given by registered or certified United States mail, courier
service or facsimile or any other customary means of communication, and any such
notice shall be effective when delivered (or, if delivered by facsimile, upon
completion of transmission and confirmation by the sender (by a telephone call
to a representative of the recipient or by machine confirmation) that such
transmission was received) addressed as follows:
if to the Company, addressed to:
Delta Air Lines, Inc.
1030 Delta Boulevard
Atlanta, Georgia 30320
Attention: Director - Corporate Finance, Dept. 856
Telephone: (404) 715-6707
Facsimile: (404) 715-4862
with a copy to the General Counsel at the same address, but Dept. 971
Telephone: (404) 715-2387
Facsimile: (404) 733-1657
if to State Street, the Loan Trustee, the Subordination Agent or any Pass
Through Trustee, addressed to:
State Street Bank And Trust Company of Connecticut,
National Association
225 Asylum Street
Goodwin Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Telephone: (860) 244-1844
Facsimile: (860) 244-1881
or if to any subsequent Noteholder, addressed to such Noteholder at its address
set forth in the Equipment Note Register maintained pursuant to Section 2.07 of
the Indenture.
Any party, by notice to the other parties hereto, may designate
additional or different addresses for subsequent notices or communications.
Whenever the words "notice" or "notify" or similar words are used herein, they
mean the provision of formal notice as set forth in this Section 7.01. Section
7.02 Survival of Representations, Warranties, Indemnities, Covenants
and Agreements. Except as otherwise provided for herein, the representations,
warranties, indemnities, covenants and agreements of the Company, State Street,
the Loan Trustee, the Subordination Agent, each Pass Through Trustee and the
Noteholders provided for in this Agreement, and each of their obligations
hereunder, shall survive the making of the loans and the expiration or
termination (to the extent arising out of acts or events occurring prior to such
expiration) of any Operative Documents.
SECTION 7.03 GOVERNING LAW. THIS AGREEMENT HAS BEEN DELIVERED IN THE
STATE OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.04 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Section
7.05 No Oral Modifications or Continuing Waivers; Consents. Subject
to Section 9.03 of the Indenture, no terms or provisions of this Agreement may
be changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against which the enforcement of the change,
waiver, discharge or termination is sought; provided that no such change,
waiver, discharge or termination shall be effective unless a signed copy thereof
is delivered to the Loan Trustee. Each Pass Through Trustee and, by its
acceptance of an Equipment Note, each subsequent Noteholder covenants and agrees
that it shall not unreasonably withhold its consent to any consent of the Loan
Trustee requested by the Company under the terms of the Indenture.
Section 7.06 Effect of Headings and Table of Contents. The headings
of the various Articles and Sections herein and in the Table of Contents are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
Section 7.07 Successors and Assigns. All covenants, agreements,
representations and warranties in this Agreement by the Company, by State
Street, individually or as Loan Trustee, Subordination Agent or Pass Through
Trustee, or by any Noteholder, shall bind and inure to the benefit of and be
enforceable by the Company, and subject to the terms of Section 6.02(e), its
successors and permitted assigns, each Pass Through Trustee and any successor or
other trustee under the Pass Through Trust Agreement to which it is a party, the
Subordination Agent and its successor under the Intercreditor Agreement and the
Loan Trustee and its successor under the Indenture, whether so expressed or not.
Section 7.08 Benefits of Agreement. Nothing in this Agreement,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder, any benefit or any legal or equitable right, remedy
or claim under this Agreement, except as provided expressly herein. Section
7.09 Counterparts. This Agreement may be executed in any number of
counterparts (and each of the parties hereto shall not be required to execute
the same counterpart). Each counterpart of this Agreement including a signature
page or pages executed by each of the parties hereto shall be an original
counterpart of this Agreement, but all of such counterparts shall together
constitute one instrument.
Section 7.10 Submission to Jurisdiction. Each of the parties hereto,
to the extent it may do so under applicable law, for purposes hereof and of all
other Operative Documents hereby (a) irrevocably submits itself to the
non-exclusive jurisdiction of the courts of the State of New York sitting in the
City of New York and to the non-exclusive jurisdiction of the United States
District Court for the Southern District of New York, for the purposes of any
suit, action or other proceeding arising out of this Agreement, the subject
matter hereof or any of the transactions contemplated hereby brought by any
party or parties hereto, or their successors or permitted assigns and (b)
waives, and agrees not to assert, by way of motion, as a defense, or otherwise,
in any such suit, action or proceeding, that the suit, action or proceeding is
brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper or that this Agreement or the subject matter hereof or
any of the transactions contemplated hereby may not be enforced in or by such
courts.
IN WITNESS WHEREOF, the parties hereto have caused this
Participation Agreement to be duly executed by their respective officers
thereunto duly authorized as of the date first above written.
DELTA AIR LINES, INC.
By:____________________________________
Name: David Stowe
Title: Director - Treasury
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Pass Through Trustee under each of the
Pass Through Trust Agreements
By:____________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
as Subordination Agent
By:____________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
as Loan Trustee
By:____________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
in its individual capacity as set
forth herein
By:____________________________________
Name:
Title:
SCHEDULE I to
PARTICIPATION AGREEMENT
EQUIPMENT NOTES,
PURCHASERS AND ORIGINAL PRINCIPAL AMOUNTS
ORIGINAL
DESCRIPTION OF INTEREST PRINCIPAL
PURCHASER EQUIPMENT NOTES MATURITY RATE AMOUNT
--------------------- ------------------- ------------------ -------- --------------
Delta Air Lines Series 2001-1A-1 March 18, 2011 6.619% $6,590,608.67
Pass Through Equipment Note
Trust 2001-1A-1 EN-1A1-001
Delta Air Lines Series 2001-1A-2 September 18, 2011 7.111% $13,427,058.00
Pass Through Equipment Note
Trust 2001-1A-2 EN-1A2-001
Delta Air Lines Series 2001-1B September 18, 2011 7.711% $4,758,156.18
Pass Through Equipment Note
Trust 2001-1B EN-1B-001
Delta Air Lines Series 2001-1C September 18, 2006 7.299% $3,901,334.19
Pass Through Equipment Note
Trust 2001-1C EN-1C-001
Delta Air Lines Series 2001-1D September 18, 2006 6.950% $3,446,773.66
Pass Through Equipment Note
Trust 2001-1D EN-1D-001
SCHEDULE II to
PARTICIPATION AGREEMENT
TRUST SUPPLEMENTS
Trust Supplement No. 2001-1A-1, dated as of September 17, 2001,
between the Company and the Pass Through Trustee in respect of Delta Air Lines
Pass Through Trust 2001-1A-1.
Trust Supplement No. 2001-1A-2, dated as of September 17, 2001,
between the Company and the Pass Through Trustee in respect of Delta Air Lines
Pass Through Trust 2001-1A-2.
Trust Supplement No. 2001-1B, dated as of September 17, 2001,
between the Company and the Pass Through Trustee in respect of Delta Air Lines
Pass Through Trust 2001-1B.
Trust Supplement No. 2001-1C, dated as of September 17, 2001,
between the Company and the Pass Through Trustee in respect of Delta Air Lines
Pass Through Trust 2001-1C.
Trust Supplement No. 2001-1D, dated as of September 17, 2001,
between the Company and the Pass Through Trustee in respect of Delta Air Lines
Pass Through Trust 2001-1D.
EXHIBIT A-1 to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
COUNSEL FOR THE COMPANY
[Intentionally Omitted]
EXHIBIT A-2 to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
SPECIAL COUNSEL FOR THE COMPANY
[Intentionally Omitted]
EXHIBIT A-3 to
PARTICIPATION AGREEMENT
FORM OF ss. 1110 OPINION OF
SPECIAL COUNSEL FOR THE COMPANY
[Intentionally Omitted]
EXHIBIT B to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
SPECIAL COUNSEL FOR THE LOAN TRUSTEE,
THE SUBORDINATION AGENT AND STATE STREET
[Intentionally Omitted]
EXHIBIT C to
PARTICIPATION AGREEMENT
FORM OF OPINION OF
SPECIAL FAA COUNSEL
[Intentionally Omitted]
EXHIBIT D-1to
PARTICIPATION AGREEMENT
FORM OF OPINION OF SPECIAL
COUNSEL FOR THE LIQUIDITY PROVIDER
[Intentionally Omitted]
EXHIBIT D-2 to
PARTICIPATION AGREEMENT
FORM OF OPINION OF GERMAN IN-HOUSE
COUNSEL FOR THE LIQUIDITY PROVIDER
[Intentionally Omitted]
EXHIBIT E to
PARTICIPATION AGREEMENT
FORM OF MANUFACTURER'S CONSENT
[Intentionally Omitted]
EXHIBIT F TO
PARTICIPATION AGREEMENT
FORM OF OPINION
SPECIAL COUNSEL FOR THE PASS THROUGH TRUSTEES
[Intentionally Omitted]
Annex A to
Participation Agreement and
Indenture and Security Agreement
(N3731T)
DEFINITIONS
(N3731T)
"Additional Insureds" has the meaning specified in Section 7.06(a)
of the Indenture.
"After-Tax Basis" means that indemnity and compensation payments
required to be made on such basis will be supplemented by the Person paying the
base amount by that amount which, when added to such base amount, and after
deduction of all Federal, state, local and foreign Taxes required to be paid by
or on behalf of the payee with respect of the receipt or realization of any such
amounts, and after consideration of any current tax savings of such payee
resulting by way of any deduction, credit or other tax benefit attributable to
such base amount or Tax, shall net such payee the full amount of such base
amount.
"Agreement" and "Participation Agreement" mean that certain
Participation Agreement (N3731T), dated as of September 17, 2001, among the
Company, State Street, the Pass Through Trustee under each Pass Through Trust
Agreement, the Subordination Agent and the Loan Trustee, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
its Terms.
"Aircraft" means the Airframe (or any Replacement Airframe
substituted therefor pursuant to Section 7.05 of the Indenture) together with
the two Engines described in the Indenture Supplement originally executed and
delivered under the Indenture (or any Replacement Engine that may from time to
time be substituted for any of such Engines pursuant to Section 7.04 or Section
7.05 of the Indenture), whether or not any of such initial or substituted
Engines is from time to time installed on such Airframe or installed on any
other airframe or on any other aircraft. The term "Aircraft" includes any
Replacement Aircraft.
"Airframe" means (a) the Boeing 737-832 aircraft (except (i) the
Engines or engines from time to time installed thereon and any and all Parts
related to such Engine or engines and (ii) items installed or incorporated in or
attached to such Boeing 737-832 aircraft from time to time that are excluded
from the definition of Parts (except Engines or engines)) specified in the
Indenture Supplement originally executed and delivered under the Indenture and
(b) any and all related Parts. The term "Airframe" includes any Replacement
Airframe that is substituted for the Airframe pursuant to Section 7.05 of the
Indenture. At such time as any Replacement Airframe is so substituted and the
Airframe for which such substitution is made is released from the Lien of the
Indenture, such replaced Airframe shall cease to be an Airframe under the
Indenture.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 United
States Codess.ss.101 et seq., as amended, or any successor statutes thereto.
"Basic Pass Through Trust Agreement" means that certain Pass Through
Trust Agreement, dated as of November 16, 2000, between the Company and State
Street, as the same may be amended, supplemented or otherwise modified from time
to time in accordance with its terms (but does not include any Trust
Supplement).
"Bills of Sale" means the FAA Bill of Sale and the Warranty Bill of
Sale.
"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, Atlanta, Georgia or the city and state in which the Loan Trustee
maintains its Corporate Trust Office or receives and disburses funds.
"Certificated Air Carrier" means a Citizen of the United States
holding an air carrier operating certificate issued by the Secretary of
Transportation pursuant to Chapter 447 of Title 49 of the United States Code for
aircraft capable of carrying ten or more individuals or 6,000 pounds or more of
cargo or that otherwise is certified or registered to the extent required to
fall within the purview of Section 1110.
"Citizen of the United States" has the meaning specified for such
term in Section 40102(a)(15) of Title 49 of the United States Code or any
similar legislation of the United States enacted in substitution or replacement
therefor.
"Claim" has the meaning specified in Section 4.02(a) of the
Participation Agreement.
"Class D Pass Through Trust" means the Delta Air Lines Pass Through
Trust 2001-1D created pursuant to the Basic Pass Through Trust Agreement, as
supplemented by Trust Supplement No. 2001-1D, dated as of September 17, 2001
between the Company and State Street.
"Class D Pass Through Certificates" means the Pass Through
Certificates issued by the Class D Pass Through Trust.
"Class D Trustee" means the Pass Through Trustee under the Basic
Pass Through Trust Agreement, as supplemented by Trust Supplement No. 2001-1D,
dated as of September 17, 2001 between the Company and State Street.
"Closing" has the meaning specified in Section 2.03 of the
Participation Agreement.
"Closing Date" means the date of the closing of the transaction
contemplated by the Operative Documents.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning specified in the granting clause of the
Indenture.
"Company" means Delta Air Lines, Inc., and its successors and
permitted assigns.
"Compulsory Acquisition" means requisition of title or other
compulsory acquisition, capture, seizure, deprivation, confiscation or detention
for any reason of the Aircraft by any government that results in the loss of
title or use of the Aircraft by the Company (or any Permitted Lessee) for a
period in excess of 180 days, but shall exclude requisition for use or hire not
involving requisition of title.
"Confidential Information" has the meaning specified in Section
10.16 of the Indenture.
"Controlling Party" has the meaning specified in Section 2.06 of the
Intercreditor Agreement.
"Corporate Trust Office" means the Corporate Trust Division of the
Loan Trustee located at State Street Bank and Trust Company of Connecticut,
National Association, 225 Asylum Street, Goodwin Square, Hartford, Connecticut,
06103, Attention: Corporate Trust Division, or such other office at which the
Loan Trustee's corporate trust business is administered that the Loan Trustee
specifies by notice to the Company.
"CRAF Program" means the Civil Reserve Air Fleet Program authorized
under 10 U.S.C. Section 9511 et seq. or any similar or substitute program under
the laws of the United States.
"Debt Rate" means, with respect to any Series, the rate per annum
specified for such Series under the heading "Interest Rate" in Schedule I to the
Indenture.
"Department of Transportation" means the United States Department of
Transportation and any agency or instrumentality of the United States government
succeeding to its functions.
"Direction" has the meaning specified in Section 2.16 of the
Indenture.
"Dollars" and "$" mean the lawful currency of the United States.
"Downgrade Event" means, with respect to any Series other than the
Series D Equipment Notes, the occurrence of the first of any of the following
events: (i) the downgrade of the long-term unsecured debt rating or the
long-term corporate credit rating of the Company after September 6, 2001 by
Moody's or S&P; (ii) the public announcement after September 6, 2001 by Moody's
or S&P that it has on review for downgrade (in the case of Moody's) or has
placed on credit watch with negative implications (in the case of S&P), its
rating of the long-term unsecured debt or the long-term corporate credit rating
of the Company; or (iii) with respect to such Series, the downgrade of the Pass
Through Certificates numerically and alphabetically corresponding to the
numerical and alphabetical designation of such Series after September 6, 2001 by
Moody's or S&P.
"Engine" means (a) each of the two CFM International, Inc.
CFM56-7B26 engines listed by manufacturer's serial number in the Indenture
Supplement originally executed and delivered under the Indenture, whether or not
from time to time installed on the Airframe or installed on any other airframe
or on any other aircraft and (b) any Replacement Engine substituted for an
Engine pursuant to Section 7.04 or 7.05 of the Indenture; together in each case
with any and all related Parts. At such time as a Replacement Engine is so
substituted and the Engine for which substitution is made is released from the
Lien of the Indenture, such replaced Engine shall cease to be an Engine under
the Indenture.
"Equipment Note" means and includes any Equipment Note originally
issued pursuant to Section 2.02 of the Indenture and any Equipment Note issued
in exchange therefor or replacement thereof pursuant to Section 2.07 or 2.08 of
the Indenture.
"Equipment Note Register" has the meaning specified in Section 2.07
of the Indenture.
"Equipment Note Registrar" has the meaning specified in Section 2.07
of the Indenture.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA as in effect at the date of
the Participation Agreement and any subsequent provisions of ERISA amendatory
thereof, supplemental thereto or substituted therefor.
"Event of Default" has the meaning specified in Section 4.01 of the
Indenture.
"Event of Loss" means, with respect to the Aircraft, Airframe or any
Engine, any of the following events with respect to such property:
(a) the loss of such property or of the use thereof due to
destruction, damage beyond repair or rendition of such property permanently
unfit for normal use for any reason whatsoever;
(b) any damage to such property which results in an insurance
settlement with respect to such property on the basis of a total loss, a
compromised total loss or a constructive total loss;
(c) the theft or disappearance of such property for a period in
excess of 180 days;
(d) the requisition for use of such property by any government
(other than a requisition for use by a Government or the government of the
country of registry of the Aircraft) that results in the loss of possession of
such property by the Company (or any Permitted Lessee) for a period in excess of
12 consecutive months;
(e) the operation or location of the Aircraft, while under
requisition for use by any government, in any area excluded from coverage by any
insurance policy in effect with respect to the Aircraft required by the terms of
Section 7.06 of the Indenture, unless the Company shall have obtained indemnity
or insurance in lieu thereof from such government;
(f) any Compulsory Acquisition;
(g) as a result of any law, rule, regulation, order or other action
by the FAA or other government of the country of registry, the use of the
Aircraft or Airframe in the normal business of air transportation is prohibited
by virtue of a condition affecting all aircraft of the same type for a period of
18 consecutive months, unless the Company is diligently carrying forward all
steps that are necessary or desirable to permit the normal use of the Aircraft
or Airframe or, in any event, if such use is prohibited for a period of three
consecutive years; and
(h) with respect to an Engine only, any divestiture of title to or
interest in an Engine or any event with respect to an Engine that is deemed to
be an Event of Loss with respect to such Engine pursuant to Section 7.02(a)(vii)
of the Indenture.
An Event of Loss with respect to the Aircraft shall be deemed to
have occurred if an Event of Loss occurs with respect to the Airframe unless the
Company elects to substitute a Replacement Airframe pursuant to Section
7.05(a)(i) of the Indenture.
"FAA" means the United States Federal Aviation Administration and
any agency or instrumentality of the United States government succeeding to its
functions.
"FAA Bill of Sale" means the bill of sale for the Aircraft on AC
Form 8050-2 executed by the Manufacturer or an affiliate of the Manufacturer in
favor of the Company and recorded with the FAA.
"Federal Funds Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or if such rate
is not so published for any day that is a Business Day, the average of the
quotations for such day for such transactions received by State Street from
three Federal funds brokers of recognized standing selected by it.
"Government" means the government of any of Canada, France, Germany,
Japan, The Netherlands, Sweden, Switzerland, the United Kingdom or the United
States and any instrumentality or agency thereof.
"Indemnitee" has the meaning specified in Section 4.02(b) of the
Participation Agreement.
"Indenture" means that certain Indenture and Security Agreement
(N3731T), dated as of September 17, 2001, between the Company and the Loan
Trustee, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with its terms, including supplementing by an
Indenture Supplement pursuant to the Indenture.
"Indenture Indemnitee" means (i) the Loan Trustee, (ii) State
Street, (iii) so long as it holds any Equipment Note as agent and trustee of any
Pass Through Trustee, the Subordination Agent, (iv) the Liquidity Provider and
(v) so long as it is the holder of any Equipment Notes, each Pass Through
Trustee and each of their respective directors, officers, employees, agents and
servants. No holder of a Pass Through Certificate in its capacity as such shall
be an Indenture Indemnitee.
"Indenture Supplement" means a supplement to the Indenture,
substantially in the form of Exhibit A to the Indenture, which particularly
describes the Aircraft, and any Replacement Airframe and or Replacement Engine
included in the property subject to the Lien of the Indenture.
"Intercreditor Agreement" means that certain Intercreditor
Agreement, dated as of the Closing Date, among the Pass Through Trustees, the
Liquidity Provider and the Subordination Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
"Interests" has the meaning specified in Section 7.06(a) of the
Indenture.
"Lease" means any lease permitted by the terms of Section 7.02(a) of
the Indenture.
"Lien" means any mortgage, pledge, lien, encumbrance, lease,
sublease, sub-sublease or security interest.
"Liquidity Facilities" means the four Revolving Credit Agreements,
each dated as of the Closing Date, between the Subordination Agent, as borrower,
and the Liquidity Provider, and any replacements thereof, in each case as the
same may be amended or supplemented or otherwise modified from time to time in
accordance with its terms.
"Liquidity Provider" means Landesbank Hessen-Thuringen Girozentrale,
a public law banking institution organized under the laws of Germany, as
liquidity provider under each of the Liquidity Facilities, or any liquidity
provider under a replacement liquidity facility.
"Loan Amount" has the meaning specified in Section 7.06(b) of the
Indenture.
"Loan Trustee" has the meaning specified in the introductory
paragraph of the Indenture.
"Loan Trustee Liens" means any Lien attributable to State Street or
the Loan Trustee with respect to the Aircraft, any interest therein or any other
portion of the Collateral arising as a result of (i) claims against State Street
or the Loan Trustee not related to its interest in the Aircraft or the
administration of the Collateral pursuant to the Indenture, (ii) acts of State
Street or the Loan Trustee not permitted by, or the failure of State Street or
the Loan Trustee to take any action required by the Operative Documents or the
Pass Through Documents, (iii) claims against State Street or the Loan Trustee
relating to Taxes or Claims that are excluded from the indemnification provided
by Section 4.02 of the Participation Agreement pursuant to said Section 4.02 or
(iv) claims against State Street or the Loan Trustee arising out of the transfer
by any such party of all or any portion of its interest in the Aircraft, the
Collateral, the Operative Documents or the Pass Through Documents, except while
an Event of Default is continuing and prior to the time that the Loan Trustee
has received all amounts due to it pursuant to the Indenture.
"Loss Payment Date" has the meaning specified in Section 7.05(a) of
the Indenture.
"Majority in Interest of Noteholders" means, as of a particular date
of determination and subject to Section 2.16 of the Indenture, the holders of at
least a majority in aggregate unpaid principal amount of all Equipment Notes
outstanding as of such date (excluding any Equipment Notes held by the Company
or any affiliate thereof, it being understood that the Class D Trustee shall be
considered an affiliate of the Company as long as more than 50% in the aggregate
face amount of the Pass Through Certificates issued by the Class D Pass Through
Trust are held by an affiliate of the Company or the Class D Trustee is
otherwise under the control of such affiliate of the Company (unless all
Equipment Notes are held by the Company or any affiliate thereof)).
"Make-Whole Amount" means, with respect to any Equipment Note, the
amount (as determined by an independent investment banker selected by the
Company (and, following the occurrence and during the continuance of an Event of
Default, reasonably acceptable to the Loan Trustee)), if any, by which (i) the
present value of the remaining scheduled payments of principal and interest from
the redemption date to maturity of such Equipment Note computed by discounting
each such payment on a semiannual basis from its respective Payment Date
(assuming a 360-day year of twelve 30 day months) using a discount rate equal to
the Treasury Yield exceeds (ii) the outstanding principal amount of such
Equipment Note plus accrued but unpaid interest thereon. For purposes of
determining the Make-Whole Amount, "Treasury Yield" means, at the date of
determination, the interest rate (expressed as a semiannual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semiannual
yield to maturity for United States Treasury securities maturing on the Average
Life Date and trading in the public securities market either as determined by
interpolation between the most recent weekly average yield to maturity for two
series of United States Treasury securities, trading in the public securities
markets, (A) one maturing as close as possible to, but earlier than, the Average
Life Date and (B) the other maturing as close as possible to, but later than,
the Average Life Date, in each case as published in the most recent H.15(519)
or, if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date is reported on the most recent H.15(519), such
weekly average yield to maturity as published in such H.15(519). "H.15(519)"
means the weekly statistical release designated as such, or any successor
publication, published by the Board of Governors of the Federal Reserve System.
The date of determination of a Make-Whole Amount shall be the third Business Day
prior to the applicable redemption date and the "most recent H.15(519)" means
the H.15(519) published prior to the close of business on the third Business Day
prior to the applicable redemption date. "Average Life Date" means, for each
Equipment Note to be redeemed, the date which follows the redemption date by a
period equal to the Remaining Weighted Average Life at the redemption date of
such Equipment Note. "Remaining Weighted Average Life" of an Equipment Note, at
the redemption date of such Equipment Note, means the number of days equal to
the quotient obtained by dividing: (i) the sum of the products obtained by
multiplying (A) the amount of each then remaining installment of principal,
including the payment due on the maturity date of such Equipment Note, by (B)
the number of days from and including the redemption date to but excluding the
scheduled payment date of such principal installment by (ii) the then unpaid
principal amount of such Equipment Note.
"Manufacturer" means The Boeing Company, a Delaware corporation, and
its successors and assigns.
"Manufacturer's Consent" means the Manufacturer's Consent and
Agreement to Assignment of Warranties, dated as of the Closing Date,
substantially in the form of Exhibit E to the Participation Agreement
"Noteholder" means any Person in whose name an Equipment Note is
registered on the Equipment Note Register (including, for so long as it is the
registered holder of any Equipment Notes, the Subordination Agent on behalf of
the Pass Through Trustees pursuant to the provisions of the Intercreditor
Agreement).
"Noteholder Liens" means any Lien attributable to any Noteholder on
or against the Aircraft, any interest herein or any portion of the Collateral,
arising out of any claim against such Noteholder that is not related to the
Operative Documents or Pass Through Documents, or out of any act or omission of
such Noteholder that is not related to the transactions contemplated by, or that
constitutes a breach by such Noteholder of its obligations under, the Operative
Documents or the Pass Through Documents.
"Operative Documents" means, collectively, the Participation
Agreement, the Indenture, each Indenture Supplement, the Manufacturer's Consent
and the Equipment Notes.
"Other Party Liens" means any Lien attributable to the Pass Through
Trustee (other than in its capacity as Noteholder), the Subordination Agent
(other than in its capacity as Noteholder) or the Liquidity Provider on or
against the Aircraft, any interest therein, or any portion of the Collateral
arising out of any claim against such party that is not related to the Operative
Documents or Pass Through Documents, or out of any act or omission of such party
that is not related to the transactions contemplated by, or that constitutes a
breach by such party of its obligations under, the Operative Documents or the
Pass Through Documents.
"Participation Agreement" has the meaning set forth under the
definition of "Agreement".
"Parts" means any and all appliances, parts, instruments,
appurtenances, accessories, furnishings and other equipment of whatever nature
(other than (a) complete Engines or engines, (b) any items leased by the Company
or any Permitted Lessee, (c) cargo containers, (d) components or systems
installed on or affixed to the Airframe that are used to provide individual
telecommunications or electronic entertainment to passengers aboard the
Aircraft, (e) medical and similar emergency equipment and (f) passenger service
items and equipment generally used in but not affixed to the Aircraft, such as
blankets, coffee pots, beverage and meal servicing carts, etc.), so long as the
same are incorporated or installed in or attached to the Airframe or any Engine
or so long as the same are subject to the Lien of the Indenture in accordance
with the terms of Section 7.04 thereof after removal from the Airframe or any
Engine.
"Pass Through Certificates" means the pass through certificates
issued by the Pass Through Trustees.
"Pass Through Documents" means the Pass Through Trust Agreements,
the Intercreditor Agreement and the Liquidity Facilities.
"Pass Through Trust" means each of the five separate grantor trusts
created pursuant to the Pass Through Trust Agreements to facilitate certain of
the transactions contemplated by the Operative Documents.
"Pass Through Trust Agreement" means each of the five separate Trust
Supplements together in each case with the Basic Pass Through Trust Agreement,
as the same may be amended, supplemented or otherwise modified from time to time
in accordance with its terms.
"Pass Through Trustee" has the meaning specified in the introductory
paragraph to the Participation Agreement.
"Pass Through Trustees" means, collectively, the Pass Through
Trustees under each Pass Through Trust Agreement.
"Past Due Rate" means, with respect to a particular Series, a rate
per annum equal to the applicable Debt Rate plus 1% and, in any case other than
with respect to a particular Series, the Debt Rate for the Series A-1 Equipment
Notes plus 1%.
"Payment Date" means, for any Equipment Note, each March 18 and
September 18, commencing with March 18, 2002.
"Payment Default" means the occurrence of an event that would give
rise to an Event of Default under Section 4.01(a) of the Indenture upon the
giving of notice or the passing of time or both.
"Permitted Investments" means each of (a) direct obligations of the
United States and agencies thereof; (b) obligations fully guaranteed by the
United States; (c) certificates of deposit issued by, or bankers' acceptances
of, or time deposits with, any bank, trust company or national banking
association incorporated or doing business under the laws of the United States
or one of the states thereof having combined capital and surplus and retained
earnings of at least $100,000,000 and having a rating of A, its equivalent or
better by Moody's Investors Service, Inc. ("Moody's") or Standard & Poor's
Ratings Services, a division of The McGraw-Hill Companies, Inc. ("S&P") (or, if
neither such organization then rates such institutions, by any nationally
recognized rating organization in the United States); (d) commercial paper of
any holding company of a bank, trust company or national banking association
described in clause (c); (e) commercial paper of companies having a rating
assigned to such commercial paper by either Moody's or S&P (or, if neither such
organization then rates such commercial paper, by any nationally recognized
rating organization in the United States) equal to either of the two highest
ratings assigned by such organization; (f) Dollar-denominated certificates of
deposit issued by, or time deposits with, the European subsidiaries of (i) any
bank, trust company or national banking association described in clause (c), or
(ii) any other bank or financial institution described in clause (h) or (i)
below; (g) United States-issued Yankee certificates of deposit issued by, or
bankers' acceptances of, or commercial paper issued by, any bank having combined
capital and surplus and retained earnings of at least $100,000,000 and
headquartered in Canada, Japan, the United Kingdom, France, Germany, Switzerland
or The Netherlands and having a rating of A, its equivalent or better by Moody's
or S&P (or, if neither such organization then rates such institutions, by any
nationally recognized rating organization in the United States); (h)
Dollar-denominated time deposits with any Canadian bank having a combined
capital and surplus and retained earnings of at least $100,000,000 and having a
rating of A, its equivalent or better by Moody's or S&P (or, if neither such
organization then rates such institutions, by any nationally recognized rating
organization in the United States); (i) Canadian Treasury Bills fully hedged to
Dollars; (j) repurchase agreements with any financial institution having
combined capital and surplus and retained earnings of at least $100,000,000
collateralized by transfer of possession of any of the obligations described in
clauses (a) through (i) above; (k) bonds, notes or other obligations of any
state of the United States, or any political subdivision of any state, or any
agencies or other instrumentalities of any such state, including, but not
limited to, industrial development bonds, pollution control revenue bonds,
public power bonds, housing bonds, other revenue bonds or any general obligation
bonds, that, at the time of their purchase, such obligations are rated A, its
equivalent or better by Moody's or S&P (or, if neither such organization then
rates such obligations, by any nationally recognized rating organization in the
United States); (1) bonds or other debt instruments of any company, if such
bonds or other debt instruments, at the time of their purchase, are rated A, its
equivalent or better by Moody's or S&P (or, if neither such organization then
rates such obligations, by any nationally recognized rating organization in the
United States); (m) mortgage backed securities (i) guaranteed by the Federal
National Mortgage Association, the Federal Home Loan Mortgage Corporation or the
Government National Mortgage Association or rated AAA, its equivalent or better
by Moody's or S&P (or, if neither such organization then rates such obligations,
by any nationally recognized rating organization in the United States) or, if
unrated, deemed to be of a comparable quality by the Loan Trustee and (ii)
having an average life not to exceed 15 years as determined by standard industry
pricing practices presently in effect; (n) asset-backed securities rated A, its
equivalent or better by Moody's or S&P (or, if neither such organization then
rates such obligations, by any nationally recognized rating organization in the
United States) or, if unrated, deemed to be of a comparable quality by the Loan
Trustee; and (o) such other investments approved in writing by the Loan Trustee;
provided that, except in clause (m), the instruments described in the foregoing
clauses shall have a maturity of no more than six months from the date of
acquisition thereof. The bank acting as Pass Through Trustee or Loan Trustee is
hereby authorized, in making or disposing of any investment described herein, to
deal with itself (in its individual capacity) or with any one or more of its
affiliates, whether it or such affiliate is acting as an agent of the Pass
Through Trustee or the Loan Trustee or for any third person or dealing as
principal for its own account.
"Permitted Lessee" means any Person to whom the Company is permitted
to lease the Airframe or any Engine pursuant to Section 7.02(a) of the
Indenture.
"Permitted Lien" has the meaning specified in Section 7.01 of the
Indenture.
"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.
"Purchase Agreement" means Purchase Agreement No. 2022, dated as of
October 21, 1997, which incorporates by reference the Aircraft General Terms
Agreement AGTA-DAL, dated as of October 21, 1997, between the Manufacturer and
the Company, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with its terms.
"Rating Agencies" has the meaning specified in the Intercreditor
Agreement.
"Related Indemnitee Group" has the meaning specified in Section
4.02(b) of the Participation Agreement.
"Replacement Aircraft" means the Aircraft of which a Replacement
Airframe is part.
"Replacement Airframe" means a Boeing 737-832 aircraft or a
comparable or improved model of the Manufacturer (except (a) Engines or engines
from time to time installed thereon and any and all Parts related to such Engine
or engines and (b) items excluded from the definition of Parts (except Engines
or engines)), that shall have been made subject to the Lien of the Indenture
pursuant to Section 7.05 thereof, together with all Parts relating to such
aircraft.
"Replacement Engine" means a CFM International, Inc. CFM56-7B26
engine (or an engine of the same or another manufacturer of a comparable or an
improved model and suitable for installation and use on the Airframe with the
other Engine (or any other Replacement Engine being substituted simultaneously
therewith)) that is made subject to the Lien of the Indenture pursuant to
Section 7.04 or Section 7.05 thereof, together with all Parts relating to such
engine.
"Responsible Officer" means, with respect to the Company, its
Chairman of the Board, its President, its Chief Operating Officer, any Executive
Vice President, any Senior Vice President, the Chief Financial Officer, any Vice
President, the Treasurer, the Controller or the Secretary.
"Section 1110" means Section 1110 of the Bankruptcy Code.
"Secured Obligations" has the meaning specified in Section 2.06 of
the Indenture.
"Series" means any series of Equipment Notes, including the Series
A-1 Equipment Notes, the Series A-2 Equipment Notes, the Series B Equipment
Notes, the Series C Equipment Notes or the Series D Equipment Notes.
"Series A-1 Equipment Notes" means Equipment Notes issued and
designated as "Series A-1 Equipment Notes" under the Indenture, in the original
principal amount and maturities and bearing interest as specified in Schedule I
to the Indenture under the heading "Series A-1 Equipment Notes."
"Series A-2 Equipment Notes" means Equipment Notes issued and
designated as "Series A-2 Equipment Notes" under the Indenture, in the original
principal amount and maturities and bearing interest as specified in Schedule I
to the Indenture under the heading "Series A-2 Equipment Notes."
"Series B Equipment Notes" means Equipment Notes issued and
designated as "Series B Equipment Notes" under the Indenture, in the original
principal amount and maturities and bearing interest as specified in Schedule I
to the Indenture under the heading "Series B Equipment Notes."
"Series C Equipment Notes" means Equipment Notes issued and
designated as "Series C Equipment Notes" under the Indenture, in the original
principal amount and maturities and bearing interest as specified in Schedule I
to the Indenture under the heading "Series C Equipment Notes."
"Series D Equipment Notes" means Equipment Notes issued and
designated as "Series D Equipment Notes" under the Indenture, in the original
principal amount and maturities and bearing interest as specified in Schedule I
to the Indenture under the heading "Series D Equipment Notes".
"State Street" has the meaning specified in the introductory
paragraph of the Participation Agreement.
"Subordination Agent" has the meaning specified in the introductory
paragraph of the Participation Agreement.
"Tax" and "Taxes" mean all governmental fees (including, without
limitation. license, filing and registration fees) and all taxes (including,
without limitation, franchise, excise, stamp, value added, income, gross
receipts, sales, use and property taxes), withholdings, assessments, levies,
imposts, duties or charges, of any nature whatsoever, together with any related
penalties, fines, additions to tax or interest thereon imposed, withheld, levied
or assessed by any country, taxing authority or governmental subdivision thereof
or therein or by any international authority, including any taxes imposed on any
Person as a result of such Person being required to collect and pay over
withholding taxes.
"Transportation Code" means that portion of Title 49 of the United
States Code comprising those provisions formerly referred to as the Federal
Aviation Act of 1958, as amended, or any subsequent legislation that amends,
supplements or supersedes such provisions.
"Trust Supplements" means those agreements supplemental to the Basic
Pass Through Trust Agreement referred to in Schedule II to the Participation
Agreement.
"Underwriters" means the several underwriters listed as such in the
Underwriting Agreement.
"Underwriting Agreement" means that certain Underwriting Agreement,
dated September 6, 2001, among the Company and the Underwriters.
"United States" means the United States of America.
"U.S. Government Obligations" means securities that are direct
obligations of the United States for the payment of which its full faith and
credit is pledged which are not callable or redeemable, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligations or a specific payment of interest on or
principal of any such U.S. Government Obligations held by such custodian for the
account of the holder of a depository receipt so long as such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligations or the specific payment of interest on or principal
of the U.S. Government Obligations evidenced by such depository receipt.
"Warranty Bill of Sale" means the warranty (as to title) bill of
sale covering the Aircraft executed by the Manufacturer or an affiliate of the
Manufacturer in favor of the Company and specifically referring to each Engine,
as well as the Airframe, constituting a part of the Aircraft.
"Warranty Rights" means all right and interest of the Company in, to
and under Parts 1, 2, 3, 4 and 6 of the Product Assurance Document attached as
Exhibit C to the Aircraft General Terms Agreement AGTA-DAL, but only to the
extent the same relate to continuing rights of the Company in respect of any
warranty or indemnity, express or implied, pursuant to the Product Assurance
Document with respect to the Airframe, it being understood that the Warranty
Rights exclude any and all other right, title and interest of the Company in, to
and under the Purchase Agreement and that the Warranty Rights are subject to the
terms of the Manufacturer's Consent.
EX-4.(D)(2)
15
de600102-ex4d2.txt
INDENTURE AND SECURITY AGREEMENT (N3731T)
EXHIBIT 4(d)(2)
================================================================================
INDENTURE AND SECURITY AGREEMENT
(N3731T)
Dated as of September 17, 2001
between
DELTA AIR LINES, INC.,
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Loan Trustee
----------
One Boeing 737-832 Aircraft
U.S. Registration No. N3731T
================================================================================
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions...................................................
Section 1.02 Other Definitional Provisions.................................
ARTICLE II
THE EQUIPMENT NOTES
Section 2.01 Form of Equipment Notes.......................................
Section 2.02 Issuance and Terms of Equipment Notes.........................
Section 2.03 Method of Payment.............................................
Section 2.04 Withholding Taxes.............................................
Section 2.05 Application of Payments.......................................
Section 2.06 Termination of Interest in Collateral.........................
Section 2.07 Registration, Transfer and Exchange of Equipment Notes........
Section 2.08 Mutilated, Destroyed, Lost or Stolen Equipment Notes..........
Section 2.09 Payment of Expenses on Transfer; Cancellation.................
Section 2.10 Mandatory Redemption of Equipment Notes.......................
Section 2.11 Voluntary Redemption of Equipment Notes.......................
Section 2.12 Redemptions; Notice of Redemptions; Repurchases...............
Section 2.13 Subordination.................................................
Section 2.14 Certain Payments..............................................
Section 2.15 Repayment of Monies for Equipment Note Payments Held by
the Loan Trustee.............................................
Section 2.16 Directions by Subordination Agent.............................
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM THE COLLATERAL
Section 3.01 Basic Distributions...........................................
Section 3.02 Event of Loss; Optional Redemption............................
Section 3.03 Payments after Event of Default...............................
Section 3.04 Certain Payments..............................................
Section 3.05 Payments to the Company.......................................
ARTICLE IV
EVENTS OF DEFAULT; REMEDIES OF LOAN TRUSTEE
Section 4.01 Events of Default.............................................
Section 4.02 Remedies......................................................
Section 4.03 Remedies Cumulative...........................................
Section 4.04 Discontinuance of Proceedings.................................
Section 4.05 Waiver of Past Defaults.......................................
Section 4.06 Noteholders May Not Bring Suit Except Under Certain
Conditions...................................................
ARTICLE V
DUTIES OF THE LOAN TRUSTEE
Section 5.01 Notice of Event of Default....................................
Section 5.02 Action upon Instructions; Certain Rights and Limitations......
Section 5.03 Indemnification...............................................
Section 5.04 No Duties Except as Specified in Indenture or Instructions....
Section 5.05 No Action Except under Indenture or Instructions..............
Section 5.06 Investment of Amounts Held by the Loan Trustee................
ARTICLE VI
THE LOAN TRUSTEE
Section 6.01 Acceptance of Trusts and Duties...............................
Section 6.02 Absence of Certain Duties.....................................
Section 6.03 No Representations or Warranties as to the Documents..........
Section 6.04 No Segregation of Monies; No Interest.........................
Section 6.05 Reliance; Agents; Advice of Counsel...........................
Section 6.06 Instructions from Noteholders.................................
ARTICLE VII
OPERATING COVENANTS OF THE COMPANY
Section 7.01 Liens.........................................................
Section 7.02 Possession, Operation and Use, Maintenance and
Registration.................................................
Section 7.03 Inspection; Financial Information.............................
Section 7.04 Replacement and Pooling of Parts; Alterations,
Modifications and Additions; Substitution of Engines.........
Section 7.05 Loss, Destruction or Requisition..............................
Section 7.06 Insurance.....................................................
ARTICLE VIII
SUCCESSOR AND ADDITIONAL TRUSTEES
Section 8.01 Resignation or Removal; Appointment of Successor..............
Section 8.02 Appointment of Additional and Separate Trustees...............
ARTICLE IX
AMENDMENTS AND WAIVERS
Section 9.01 Amendments to this Indenture without Consent of Holders.......
Section 9.02 Amendments to this Indenture with Consent of Holders..........
Section 9.03 Amendments, Waivers, Etc. of the Participation Agreement......
Section 9.04 Revocation and Effect of Consents.............................
Section 9.05 Notation on or Exchange of Equipment Notes....................
Section 9.06 Trustee Protected.............................................
ARTICLE X
MISCELLANEOUS
Section 10.01 Termination of Indenture......................................
Section 10.02 No Legal Title to Collateral in Noteholders...................
Section 10.03 Sale of Aircraft by Loan Trustee is Binding...................
Section 10.04 Indenture for Benefit of the Company, Loan Trustee and
Noteholders..................................................
Section 10.05 Notices.......................................................
Section 10.06 Severability..................................................
Section 10.07 No Oral Modification or Continuing Waivers....................
Section 10.08 Successors and Assigns........................................
Section 10.09 Headings......................................................
Section 10.10 Normal Commercial Relations...................................
Section 10.11 Voting by Noteholders.........................................
Section 10.12 Section 1110..................................................
Section 10.13 The Company's Performance and Rights..........................
Section 10.14 Counterparts..................................................
Section 10.15 Governing Law.................................................
Section 10.16 Confidential Information......................................
Section 10.17 Submission to Jurisdiction....................................
Exhibit A - Form of Indenture Supplement
Exhibit B - List of Permitted Countries
Exhibit C - Aircraft Type Equipment Value for Section 7.06(b)
Schedule I - Description of Equipment Notes
Schedule II - Pass Through Trust Agreement and Pass Through Trust Supplements
Annex A - Definitions
INDENTURE AND SECURITY AGREEMENT
(N3731T)
This INDENTURE AND SECURITY AGREEMENT (N3731T), dated as of
September 17, 2001, is made by and between DELTA AIR LINES, INC., a Delaware
corporation (together with its successors and permitted assigns, the "Company"),
and STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a
national banking association, not in its individual capacity, except as
expressly stated herein, but solely as Loan Trustee hereunder (together with its
permitted successors hereunder, the "Loan Trustee").
W I T N E S S E T H:
WHEREAS, the parties desire by this Indenture (such term and other
capitalized terms used herein without definition being defined as provided in
Article I), among other things, to provide for (i) the issuance by the Company
of the Equipment Notes and (ii) the assignment, mortgage and pledge by the
Company to the Loan Trustee, as part of the Collateral hereunder, among other
things, of all of the Company's estate, right, title and interest in and to the
Aircraft, as security for, among other things, the Company's obligations to the
Loan Trustee, for the ratable benefit and security of the Noteholders, subject
to Section 2.13 and Article III;
WHEREAS, all things have been done to make the Equipment Notes, when
executed by the Company and authenticated and delivered by the Loan Trustee
hereunder, the valid, binding and enforceable obligations of the Company; and
WHEREAS, all things necessary to make this Indenture a legal, valid
and binding obligation of the Company for the uses and purposes herein set
forth, in accordance with its terms, have been done and performed and have
occurred;
GRANTING CLAUSE
NOW, THEREFORE, to secure the prompt and complete payment (whether
at stated maturity, by acceleration or otherwise) of principal of, Make-Whole
Amount, if any, and interest on, the Equipment Notes and all other amounts
payable by the Company under the Operative Documents and the performance and
observance by the Company of all the agreements and covenants to be performed or
observed by the Company for the benefit of the Noteholders and the Indenture
Indemnitees contained in the Operative Documents, and in consideration of the
premises and of the covenants contained in the Operative Documents, and for
other good and valuable consideration given by the Loan Trustee, the Noteholders
and the Indenture Indemnitees to the Company at or before the Closing Date, the
receipt of which is hereby acknowledged, the Company does hereby grant, bargain,
sell, convey, transfer, mortgage, assign, pledge and confirm unto the Loan
Trustee and its successors in trust and permitted assigns, for the security and
benefit of the Loan Trustee, the Noteholders and the Indenture Indemnitees, a
first priority security interest in, and mortgage lien on, all estate, right,
title and interest of the Company in, to and under, all and singular, the
following described properties, rights, interests and privileges whether now or
hereafter acquired (hereinafter sometimes referred to as the "Collateral"):
(1) the Aircraft, including the Airframe and the Engines, whether or
not any such Engine from time to time is installed on the Airframe or any
other airframe or any other aircraft, and any and all Parts relating
thereto, and, to the extent provided herein, all substitutions and
replacements of, and additions, improvements, accessions and accumulations
to, the Aircraft, including the Airframe, the Engines and any and all
Parts (in each case other than any substitutions, replacements, additions,
improvements, accessions and accumulations that constitute items excluded
from the definition of Parts by clauses (b), (c), (d), (e) and (f)
thereof) relating thereto (such Airframe and Engines as more particularly
described in the Indenture Supplement executed and delivered with respect
to the Aircraft on the Closing Date or with respect to any substitutions
or replacements therefor) and together with all logs, manuals maintained
on the Aircraft, modification and maintenance records at any time required
to be maintained with respect to the Aircraft, in accordance with the
rules and regulations of the FAA if the Aircraft is registered under the
laws of the United States or the rules and regulations of the government
of the country of registry if the Aircraft is registered under the laws of
a jurisdiction other than the United States;
(2) the Warranty Rights, together with all rights, powers,
privileges, options and other benefits of the Company under the same;
(3) all requisition proceeds with respect to the Aircraft or any
Part thereof, and all insurance proceeds with respect to the Aircraft or
any Part thereof, but excluding all proceeds of, and rights under, any
insurance maintained by the Company and in excess of that required under
Section 7.06(b);
(4) all moneys and securities now or hereafter paid or deposited or
required to be paid or deposited to or with the Loan Trustee by or for the
account of the Company pursuant to any term of any Operative Document and
held or required to be held by the Loan Trustee hereunder or thereunder;
and
(5) all proceeds of the foregoing;
PROVIDED, HOWEVER, that notwithstanding any of the foregoing
provisions, so long as no Event of Default shall have occurred and be
continuing, the Company shall have the right, to the exclusion of the Loan
Trustee, (i) to quiet enjoyment of the Aircraft, the Airframe, the Parts and the
Engines, and to possess, use, retain and control the Aircraft, the Airframe, the
Parts and the Engines and all revenues, income and profits derived therefrom and
(ii) with respect to the Warranty Rights, to exercise in the Company's name all
rights and powers of the Buyer (as defined in the Purchase Agreement) under the
Warranty Rights and to retain any recovery or benefit resulting from the
enforcement of any warranty or indemnity or other obligation under the Warranty
Rights; provided, further, that notwithstanding the occurrence and continuation
of an Event of Default, the Loan Trustee shall not enter into any amendment or
modification of the Purchase Agreement that would alter the rights, benefits or
obligations of the Company thereunder;
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Loan Trustee, and its successors and permitted assigns, in trust for the ratable
benefit and security of the Noteholders and the Indenture Indemnitees, except as
otherwise provided in this Indenture, including Section 2.13 and Article III,
without any preference, distinction or priority of any one Equipment Note over
any other by reason of priority of time of issue, sale, negotiation, date of
maturity thereof or otherwise for any reason whatsoever, and for the uses and
purposes and in all cases and as to all property specified in paragraphs (1)
through (5) inclusive above, subject to the terms and provisions set forth in
this Indenture.
It is expressly agreed that notwithstanding anything herein to the
contrary, the Company shall remain liable under the Purchase Agreement to
perform all of its obligations thereunder, and, except to the extent expressly
provided in any Operative Document, none of the Loan Trustee, any Noteholders or
any Indenture Indemnitee shall be required or obligated in any manner to perform
or fulfill any obligations of the Company under or pursuant to any Operative
Document, or to make any inquiry as to the nature or sufficiency of any payment
received by it, or present or file any claim or take any action to collect or
enforce the payment of any amount that may have been assigned to it or to which
it may be entitled at any time or times.
Notwithstanding anything herein to the contrary (but without in any
way releasing the Company from any of its duties or obligations under the
Purchase Agreement), the Loan Trustee, the Noteholders and the Indenture
Indemnitees confirm for the benefit of the Manufacturer that in exercising any
rights under the Warranty Rights, or in making any claim with respect to the
Aircraft or other goods and services delivered or to be delivered pursuant to
the Purchase Agreement, the terms and conditions of the Purchase Agreement
relating to the Warranty Rights, including, without limitation, the warranty
disclaimer provisions for the benefit of the Manufacturer, shall apply to and be
binding upon the Loan Trustee, the Noteholders and the Indenture Indemnitees to
the same extent as the Company. The Company hereby directs the Manufacturer, so
long as an Event of Default shall have occurred and be continuing, to pay all
amounts, if any, payable to the Company pursuant to the Warranty Rights directly
to the Loan Trustee to be held and applied as provided herein. Nothing contained
herein shall subject the Manufacturer to any liability to which it would not
otherwise be subject under the Purchase Agreement or modify in any respect the
contract rights of the Manufacturer thereunder except as provided in the
Manufacturer's Consent.
The Company does hereby constitute the Loan Trustee the true and
lawful attorney of the Company (which appointment is coupled with an interest)
with full power (in the name of the Company or otherwise) to ask, require,
demand and receive any and all monies and claims for monies (in each case
including insurance and requisition proceeds) due and to become due to the
Company under or arising out of the Purchase Agreement (to the extent assigned
hereby), and all other property which now or hereafter constitutes part of the
Collateral, to endorse any checks or other instruments or orders in connection
therewith and to file any claims or to take any action or to institute any
proceedings which the Loan Trustee may deem to be necessary or advisable in the
premises; provided that the Loan Trustee shall not exercise any such rights
except during the continuance of an Event of Default. The Company agrees that
promptly upon receipt thereof, to the extent required by the Operative
Documents, it will transfer to the Loan Trustee any and all monies from time to
time received by the Company constituting part of the Collateral, for
distribution by the Loan Trustee pursuant to this Indenture.
The Company does hereby warrant and represent that it has not sold,
assigned or pledged, and hereby covenants and agrees that it will not sell,
assign or pledge, so long as this Indenture shall remain in effect and the Lien
hereof shall not have been released pursuant to the provisions hereof, any of
its estate, right, title or interest hereby assigned, to any Person other than
the Loan Trustee, except as otherwise provided in or permitted by any Operative
Document.
The Company agrees that at any time and from time to time, upon the
written request of the Loan Trustee, the Company shall promptly and duly execute
and deliver or cause to be duly executed and delivered any and all such further
instruments and documents as the Loan Trustee may reasonably deem necessary to
perfect, preserve or protect the mortgage, security interests and assignments
created or intended to be created hereby or to obtain for the Loan Trustee the
full benefit of the assignment hereunder and of the rights and powers herein
granted, provided that any instrument or other document so executed by the
Company will not expand any obligations or limit any rights of the Company in
respect of the transactions contemplated by the Operative Documents.
IT IS HEREBY COVENANTED AND AGREED by and between the parties hereto
as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. For all purposes of this Indenture, unless
the context otherwise requires, capitalized terms used but not defined herein
shall have the respective meanings set forth or incorporated by reference in
Annex A.
Section 1.02 Other Definitional Provisions. (a) The definitions
stated herein and in Annex A apply equally to both the singular and the plural
forms of the terms defined.
(b) All references in this Indenture to designated "Articles",
"Sections", "Subsections", "Schedules", "Exhibits", "Annexes" and other
subdivisions are to the designated Article, Section, Subsection, Schedule,
Exhibit, Annex or other subdivision of this Indenture, unless otherwise
specifically stated.
(c) The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section, Subsection, Schedule, Exhibit, Annex or other subdivision.
(d) Unless the context otherwise requires, whenever the words
"including", "include" or "includes" are used herein, they shall be deemed to be
followed by the phrase "without limitation".
(e) All references in this Indenture to a "government" are to such
government and any instrumentality or agency thereof.
ARTICLE II
THE EQUIPMENT NOTES
Section 2.01 Form of Equipment Notes. The Equipment Notes shall be
substantially in the form set forth below:
THIS EQUIPMENT NOTE HAS NOT BEEN REGISTERED PURSUANT TO THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR PURSUANT TO THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. ACCORDINGLY,
THIS EQUIPMENT NOTE MAY NOT BE OFFERED FOR SALE OR SOLD UNLESS
EITHER REGISTERED UNDER THE ACT AND SUCH APPLICABLE STATE OR OTHER
LAWS OR EXEMPTIONS FROM SUCH REGISTRATION REQUIREMENTS ARE
AVAILABLE.
DELTA AIR LINES, INC.
SERIES 2001-1 [___] EQUIPMENT NOTE DUE [___]
ISSUED IN CONNECTION WITH THE BOEING 737-832 AIRCRAFT
BEARING UNITED STATES REGISTRATION NUMBER N3731T
No.____ Date: [______,__]
$________________
INTEREST RATE MATURITY DATE
[____] [___________,_____]
DELTA AIR LINES, INC. (together with its successors and permitted
assigns, the "Company") hereby promises to pay to ___________, or the registered
assignee thereof, the principal amount of ________________ Dollars ($_________)
[on __________](1) [in installments on the Payment Dates set forth in Schedule I
hereto, each such installment to be in an amount computed by multiplying the
original principal amount of this Equipment Note by the percentage set forth in
Schedule I hereto opposite the Payment Date on which such installment is due,]2
and to pay interest in arrears on each Payment Date at the Debt Rate on the
principal amount remaining unpaid from time to time (calculated on the basis of
a year of 360 days comprised of twelve 30-day months) from the date hereof until
paid in full. [Notwithstanding the foregoing, the final payment made on this
Equipment Note shall be in an amount sufficient to discharge in full the unpaid
principal amount and all accrued and unpaid interest on, and any other amounts
due under, this Equipment Note.](2) Notwithstanding anything to the contrary
contained herein, if any date on which a payment under this Equipment Note
becomes due and payable is not a Business Day, then such payment shall not be
made on such scheduled date but shall be made on the next succeeding Business
Day with the same force and effect as if made on such scheduled date, and if
such payment is made on such next succeeding Business Day, no interest shall
accrue on the amount of such payment from and after such scheduled date.
----------
(1) To be inserted in non-installment Equipment Notes.
(2) To be inserted in installment Equipment Notes.
For purposes hereof, the term "Indenture" means the Indenture and
Security Agreement (N3731T), dated as of September 17, 2001, between the Company
and State Street Bank and Trust Company of Connecticut, National Association, as
Loan Trustee (the "Loan Trustee"), as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms. All
capitalized terms used in this Equipment Note and not defined herein, unless the
context otherwise requires, shall have the respective meanings set forth or
incorporated by reference, and shall be construed and interpreted in the manner
described, in the Indenture. This Equipment Note shall bear interest, payable on
demand, at the Past Due Rate (and not the Debt Rate) (calculated on the basis of
a year of 360 days comprised of twelve 30-day months) on any principal amount
and (to the extent permitted by applicable law) Make-Whole Amount, if any,
interest and any other amounts payable hereunder not paid when due for any
period during which the same is overdue, in each case for the period the same is
overdue. Amounts shall be overdue if not paid in the manner provided herein or
in the Indenture when due (whether at stated maturity, by acceleration or
otherwise).
There shall be maintained an Equipment Note Register for the purpose
of registering transfers and exchanges of Equipment Notes at the Corporate Trust
Office of the Loan Trustee, or at the office of any successor trustee, in the
manner provided in Section 2.07 of the Indenture. The principal amount and
interest and other amounts due hereunder shall be payable in Dollars in
immediately available funds at the Corporate Trust Office of the Loan Trustee,
or as otherwise provided in the Indenture. The Company shall not have any
responsibility for the distribution of any such payment to the Noteholder of
this Equipment Note. Each such payment shall be made on the date such payment is
due and without any presentment or surrender of this Equipment Note, except that
in the case of any final payment with respect to this Equipment Note, the
Equipment Note shall be surrendered to the Loan Trustee for cancellation. The
holder hereof, by its acceptance of this Equipment Note, agrees that, except as
provided in the Indenture, including the subordination provisions referred to
below, each payment of an installment of principal amount, Make-Whole Amount, if
any, and interest received by it hereunder shall be applied: first, to the
payment of accrued interest on this Equipment Note (as well as any interest on
any overdue principal amount, and, to the extent permitted by law, any overdue
Make-Whole Amount, if any, any overdue interest and other overdue amounts
hereunder) to the date of such payment; second, to the payment of Make-Whole
Amount, if any, and third, to the payment of the principal amount of this
Equipment Note (or portion hereof) then due.
This Equipment Note is one of the Equipment Notes referred to in the
Indenture which have been or are to be issued by the Company pursuant to the
terms of the Indenture. The Collateral is held by the Loan Trustee as security,
in part, for the Equipment Notes. The provisions of this Equipment Note are
subject to the Indenture and the Participation Agreement. Reference is hereby
made to the Indenture and the Participation Agreement for a complete statement
of the rights and obligations of the holder of, and the nature and extent of the
security for, this Equipment Note and the rights and obligations of the holders
of, and the nature and extent of the security for, any other Equipment Notes
executed and delivered under the Indenture, to all of which terms and conditions
in the Indenture and the Participation Agreement each holder hereof agrees by
its acceptance of this Equipment Note.
As provided in the Indenture and subject to certain limitations
therein set forth, this Equipment Note is exchangeable for a like aggregate
principal amount of Equipment Notes of the same Series of different authorized
denominations, as requested by the holder surrendering the same. Prior to the
due presentment for registration of transfer of this Equipment Note, the Company
and the Loan Trustee shall deem and treat the Person in whose name this
Equipment Note is registered on the Equipment Note Register as the absolute
owner and holder hereof for the purpose of receiving all amounts payable with
respect to this Equipment Note and for all purposes, and neither the Company nor
the Loan Trustee shall be affected by notice to the contrary.
This Equipment Note is subject to redemption as provided in Sections
2.10 and 2.11 of the Indenture but not otherwise.
The indebtedness evidenced by this Equipment Note [shall rank in
right of payment equally with all Series A-2 Equipment Notes and all other
Series A-1 Equipment Notes.](3) [shall rank in right of payment equally with all
Series A-1 Equipment Notes and all other Series A-2 Equipment Notes.](4) [is, to
the extent and in the manner provided in the Indenture, subordinate and subject
in right of payment to the prior payment in full of the Secured Obligations (as
defined in the Indenture) in respect of [Series A-1 Equipment Notes and Series
A-2 Equipment Notes](5) [Series A-1 Equipment Notes, Series A-2 Equipment Notes
and Series B Equipment Notes](6) [Series A-1 Equipment Notes, Series A-2
Equipment Notes, Series B Equipment Notes and Series C Equipment Notes](7), and
this Equipment Note is issued subject to such provisions.](8) The Noteholder of
this Equipment Note, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Loan Trustee on such
Noteholder's behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in the Indenture and (c) appoints the
Loan Trustee such Noteholder's attorney-in-fact for such purpose.
[Without limiting the foregoing, the](9) [The](10) Noteholder of
this Equipment Note, by accepting the same, agrees that if such Noteholder, in
its capacity as a Noteholder, receives any payment or distribution on any
Secured Obligation in respect of this Equipment Note that it is not entitled to
receive under Section 2.13 or Article III of the Indenture, it shall hold any
amount so received in trust for the Loan Trustee and forthwith turn over such
amount to the Loan Trustee in the form received to be applied as provided in
Article III of the Indenture. Unless the certificate of authentication hereon
has been executed by or on behalf of the Loan Trustee by manual signature, this
Equipment Note shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
----------
(3) To be inserted in the case of a Series A-1 Equipment Note.
(4) To be inserted in the case of a Series A-2 Equipment Note.
(5) To be inserted in the case of a Series B Equipment Note.
(6) To be inserted in the case of a Series C Equipment Note.
(7) To be inserted in the case of a Series D Equipment Note.
(8) To be inserted in the case of a Series B Equipment Note, a Series C
Equipment Note or a Series D Equipment Note.
(9) To be inserted in the case of a Series B Equipment Note, a Series C
Equipment Note or a Series D Equipment Note.
(10) To be inserted in the case of a Series A-1 Equipment Note or a Series A-2
Equipment Note.
THIS EQUIPMENT NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE.
IN WITNESS WHEREOF, the Company has caused this Equipment Note to be
executed in its corporate name by its officer thereunto duly authorized on the
date hereof.
DELTA AIR LINES, INC.
By:____________________________________
Name:
Title:
LOAN TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Equipment Notes referred to in the within-mentioned
Indenture.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Loan Trustee
By:____________________________________
Name:
Title:
SCHEDULE I(11)
EQUIPMENT NOTE AMORTIZATION
Payment Date Percentage of Original
Principal Amount
to be Paid
[SEE "EQUIPMENT NOTES AMORTIZATION" ON SCHEDULE I TO
INDENTURE WHICH IS TO BE INSERTED UPON ISSUANCE]
* * *
Section 2.02 Issuance and Terms of Equipment Notes. The Equipment
Notes shall be dated the date of issuance thereof, shall be issued in (a) five
separate series consisting of Series A-1 Equipment Notes, Series A-2 Equipment
Notes, Series B Equipment Notes, Series C Equipment Notes and Series D Equipment
Notes and (b) the maturities and principal amounts and shall bear interest at
the applicable Debt Rates specified in Schedule I. On the Closing Date, each
Series A-1 Equipment Note, Series A-2 Equipment Note, Series B Equipment Note,
Series C Equipment Note and Series D Equipment Note shall be issued to the
Subordination Agent on behalf of each of the Pass Through Trustees for the Pass
Through Trusts created under the Pass Through Trust Agreements referred to in
Schedule II. The Equipment Notes shall be issued in registered form only. The
Equipment Notes shall be issued in denominations of $1,000 and integral
multiples thereof, except that one Equipment Note of each Series may be in an
amount that is not an integral multiple of $1,000.
Each Equipment Note shall bear interest at the Debt Rate (calculated
on the basis of a year of 360 days comprised of twelve 30-day months), payable
in arrears on each Payment Date on the unpaid principal amount thereof from time
to time outstanding until such principal amount is paid in full, as further
provided in the form of Equipment Note set forth in Section 2.01. The principal
amount of each Series A-1 Equipment Note shall be payable in installments on the
Payment Dates set forth in Schedule I to such Equipment Note, each such
installment to be in an amount computed by multiplying the original principal
amount of such Equipment Note by the percentage set forth in Schedule I hereto,
the applicable portion of which shall be attached as Schedule I to such
Equipment Note, opposite the Payment Date on which such installment is due. The
principal amount of each Series A-2 Equipment Note and Series B Equipment Note
shall be due in a single payment on September 18, 2011. The principal amount of
each Series C Equipment Note shall be due in a single payment on September 18,
2006. The principal amount of each Series D Equipment Note shall be due in a
single payment on September 18, 2006. Notwithstanding the foregoing, the final
payment made under each Series A-1 Equipment Note shall be in an amount
sufficient to discharge in full the unpaid principal amount and all accrued and
unpaid interest on, and any other amounts due under, such Equipment Note. Each
Equipment Note shall bear interest, payable on demand, at the Past Due Rate (and
not at the Debt Rate) (calculated on the basis of a year of 360 days comprised
of twelve 30-day months) on any principal amount and (to the extent permitted by
applicable law) Make-Whole Amount, if any, interest and any other amounts
payable thereunder not paid when due for any period during which the same is
overdue, in each case for the period the same is overdue. Amounts shall be
overdue under an Equipment Note if not paid in the manner provided therein or in
this Indenture when due (whether at stated maturity, by acceleration or
otherwise). Notwithstanding anything to the contrary contained herein, if any
date on which a payment hereunder or under any Equipment Note becomes due and
payable is not a Business Day, then such payment shall not be made on such
scheduled date but shall be made on the next succeeding Business Day with the
same force and effect as if made on such scheduled date, and if such payment is
made on such next succeeding Business Day, no interest shall accrue on the
amount of such payment from and after such scheduled date.
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(11) To be inserted on installment Equipment Notes.
The Equipment Notes shall be executed on behalf of the Company by
the manual or facsimile signature of one of its authorized officers. Equipment
Notes bearing the signatures of individuals who were at the time of execution
the proper officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Equipment Notes or did not hold such offices
at the respective dates of such Equipment Notes. No Equipment Note shall be
secured by or entitled to any benefit under this Indenture or be valid or
obligatory for any purposes unless there appears on such Equipment Note a
certificate of authentication in the form provided herein executed by the Loan
Trustee by the manual signature of one of its authorized officers, and such
certificate upon any Equipment Notes shall be conclusive evidence, and the only
evidence, that such Equipment Note has been duly authenticated and delivered
hereunder.
Section 2.03 Method of Payment. The principal amount of, interest
on, Make-Whole Amount, if any, and, except to the extent expressly provided
herein, all other amounts due to any Noteholder under each Equipment Note or
otherwise payable hereunder shall be payable by the Company in Dollars by wire
transfer of immediately available funds not later than 10:00 a.m. (New York City
time) on the due date of payment to the Loan Trustee at the Corporate Trust
Office for distribution among the Noteholders in the manner provided herein. The
Company shall not have any responsibility for the distribution of such payment
to any Noteholder. Notwithstanding the foregoing or any provision in any
Equipment Note to the contrary, the Loan Trustee will use reasonable efforts to
pay or cause to be paid, if so directed in writing by any Noteholder (with a
copy to the Company), all amounts paid by the Company hereunder and under such
Noteholder's Equipment Note or Equipment Notes to such Noteholder or a nominee
therefor (including all amounts distributed pursuant to Article III) by
transferring, or causing to be transferred, by wire transfer of immediately
available funds in Dollars, prior to 12:00 noon (New York City time) on the due
date of payment, to an account maintained by such Noteholder with a bank located
in the continental United States the amount to be distributed to such
Noteholder, for credit to the account of such Noteholder maintained at such
bank; provided that, in the event the Equipment Notes are not held by the
Subordination Agent on behalf of the Pass Through Trustees, the Loan Trustee may
at its option pay such amounts by check mailed to the Noteholder's address as it
appears on the Equipment Note Register. If, after its receipt of funds at the
place and prior to the time specified above in the immediately preceding
sentence, the Loan Trustee fails (other than as a result of a failure of the
Noteholder to provide it with wire transfer instructions) to make any such
payment required to be paid by wire transfer as provided in the immediately
preceding sentence on the Business Day it receives such funds, the Loan Trustee,
in its individual capacity and not as trustee, agrees to compensate such
Noteholders for loss of use of funds at the Federal Funds Rate until such
payment is made and the Loan Trustee shall be entitled to any interest earned on
such funds until such payment is made. Any payment made hereunder shall be made
without any presentment or surrender of any Equipment Note, except that, in the
case of the final payment in respect of any Equipment Note, such Equipment Note
shall be surrendered to the Loan Trustee for cancellation. Notwithstanding any
other provision of this Indenture to the contrary, the Loan Trustee shall not be
required to make, or cause to be made, wire transfers as aforesaid prior to the
first Business Day on which it is practicable for the Loan Trustee to do so in
view of the time of day when the funds to be so transferred were received by it
if such funds were received after 1:00 p.m. (New York City time) at the place of
payment.
Section 2.04 Withholding Taxes. The Loan Trustee shall exclude and
withhold at the appropriate rate from each payment of principal amount of,
interest on, Make-Whole Amount, if any, and other amounts due hereunder or under
each Equipment Note (which exclusion and withholding shall constitute payment of
such amounts payable hereunder or in respect of such Equipment Notes, as
applicable) any and all withholding taxes applicable thereto as required by law.
The Loan 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 hereunder or in respect of
the Equipment Notes, to withhold such amounts (which withholding shall
constitute payment of such amounts payable hereunder or in respect of such
Equipment Notes, as applicable) and timely pay the same to the appropriate
authority in the name of and on behalf of the Noteholders, 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 Noteholder (with a
copy to the Company) appropriate documentation showing the payment thereof,
together with such additional documentary evidence as any such Noteholder may
reasonably request from time to time. The Loan Trustee agrees to file any other
information reports it is required to file under United States law.
Section 2.05 Application of Payments. Subject always to Section 2.13
and except as otherwise provided in Article III, in the case of each Equipment
Note, each payment of an installment of principal amount, Make-Whole Amount, if
any, and interest paid thereon shall be applied:
FIRST, to the payment of accrued interest on such Equipment Note (as
well as any interest on any overdue principal amount and (to the extent
permitted by law) any overdue Make-Whole Amount, if any, any overdue
interest and any other overdue amounts thereunder) to the date of such
payment; and
SECOND, to the payment of Make-Whole Amount, if any; and
THIRD, to the payment of principal amount of such Equipment Note (or
portion thereof) then due thereunder.
Section 2.06 Termination of Interest in Collateral. No Noteholder or
Indenture Indemnitee shall, as such, have any further interest in, or other
right with respect to, the Collateral when and if the principal amount of,
Make-Whole Amount, if any, and interest (including interest on any overdue
amounts) on and all other amounts due under all Equipment Notes held by such
Noteholder and all other sums then payable to such Noteholder or Indenture
Indemnitee, as the case may be, hereunder and under the Participation Agreement
by the Company (collectively, "Secured Obligations") have been paid in full.
Section 2.07 Registration, Transfer and Exchange of Equipment Notes.
The Loan Trustee shall keep a register or registers (the "Equipment Note
Register") in which the Loan Trustee shall provide for the registration of
Equipment Notes and the registration of transfers of Equipment Notes. No such
transfer shall be given effect unless and until registration hereunder shall
have occurred. The Equipment Note Register shall be kept at the Corporate Trust
Office of the Loan Trustee. The Loan Trustee is hereby appointed "Equipment Note
Registrar" for the purpose of registering Equipment Notes and transfers of
Equipment Notes. A holder of any Equipment Note intending to exchange or
transfer such Equipment Note shall surrender such Equipment Note to the Loan
Trustee at the Corporate Trust Office, together with a written request from the
registered holder thereof for the issuance of a new Equipment Note of the same
Series, specifying, in the case of a surrender for transfer, the name and
address of the new holder or holders. Upon surrender for registration of
transfer of any Equipment Note and subject to satisfaction of Section 2.09, the
Company shall execute, and the Loan Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Equipment
Notes of an equal aggregate principal amount and of the same Series. At the
option of the Noteholder, Equipment Notes may be exchanged for other Equipment
Notes of the same Series of any authorized denominations of an equal aggregate
principal amount, upon surrender of the Equipment Notes to be exchanged to the
Loan Trustee at the Corporate Trust Office. Whenever any Equipment Notes are so
surrendered for exchange, the Company shall execute, and the Loan Trustee shall
authenticate and deliver, the Equipment Notes which the Noteholder making the
exchange is entitled to receive. All Equipment Notes issued upon any
registration of transfer or exchange of Equipment Notes (whether under this
Section 2.07 or under Section 2.08 or otherwise under this Indenture) shall be
the valid obligations of the Company evidencing the same respective obligations,
and entitled to the same security and benefits under this Indenture, as the
Equipment Notes surrendered upon such registration of transfer or exchange.
Every Equipment Note presented or surrendered for registration of transfer shall
be duly endorsed or be accompanied by a written instrument of transfer in form
satisfactory to the Loan Trustee, duly executed by the Noteholder or such
Noteholder's attorney duly authorized in writing, and the Loan Trustee shall
require evidence satisfactory to it as to the compliance of any such transfer
with the Securities Act of 1933, as amended, and the securities laws of any
applicable state or jurisdiction. The Loan Trustee shall make a notation on each
new Equipment Note of the amount of all payments of principal amount previously
made on the old Equipment Note or Equipment Notes with respect to which such new
Equipment Note is issued and the date to which interest on such old Equipment
Note or Equipment Notes has been paid. Principal, interest and all other amounts
shall be deemed to have been paid on such new Equipment Note to the date on
which such amounts have been paid on such old Equipment Note. The Company shall
not be required to exchange any surrendered Equipment Notes as provided above
(a) during the ten-day period preceding the due date of any payment on such
Equipment Note or (b) that has been called for redemption. The Company and the
Loan Trustee shall in all cases deem and treat the Person in whose name any
Equipment Note has been issued and registered on the Equipment Note Register as
the absolute owner and Noteholder of such Equipment Note for the purpose of
receiving payment of all amounts payable with respect to such Equipment Note and
for all other purposes, and neither the Company nor the Loan Trustee shall be
affected by any notice to the contrary. The Loan Trustee will promptly notify
the Company of each registration of a transfer of an Equipment Note. Any such
transferee of an Equipment Note, by its acceptance of an Equipment Note, agrees
to the provisions of the Operative Documents applicable to Noteholders, and
shall be deemed to have represented, warranted and covenanted to the parties to
the Participation Agreement as to the matters represented, warranted and
covenanted by the Noteholders, including the Pass Through Trustees, in the
Participation Agreement. Subject to compliance by the Noteholder and any
transferee of the requirements set forth in this Section 2.07 and in Section
2.09, the Loan Trustee and the Company shall use all reasonable efforts to issue
new Equipment Notes upon transfer or exchange within ten Business Days of the
date an Equipment Note is surrendered for transfer or exchange.
Section 2.08 Mutilated, Destroyed, Lost or Stolen Equipment Notes.
If any Equipment Note becomes mutilated, destroyed, lost or stolen, the Company
shall, upon the written request of the holder of such Equipment Note and subject
to satisfaction of this Section 2.08 and of Section 2.09, execute and the Loan
Trustee shall authenticate and deliver in replacement thereof a new Equipment
Note of the same Series, payable in the same principal amount, dated the same
date and captioned as issued in connection with the Aircraft. If the Equipment
Note being replaced has become mutilated, such Equipment Note shall be
surrendered to the Loan Trustee, and a photocopy thereof shall be furnished to
the Company. If the Equipment Note being replaced has been destroyed, lost or
stolen, the holder of such Equipment Note shall furnish to the Company and the
Loan Trustee such security or indemnity as may be required by them to save the
Company and the Loan Trustee harmless and evidence satisfactory to the Company
and the Loan Trustee of the destruction, loss or theft of such Equipment Note
and of the ownership thereof.
Section 2.09 Payment of Expenses on Transfer; Cancellation. (a) No
service charge shall be made to a Noteholder for any registration of transfer or
exchange of Equipment Notes, but the Loan Trustee, as Equipment Note Registrar,
may require payment of a sum sufficient to cover any Tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Equipment Notes.
(b) The Loan Trustee shall cancel all Equipment Notes surrendered
for replacement, redemption, transfer, exchange, payment or cancellation, shall
keep a copy of such canceled Equipment Notes, and shall send the original
canceled Equipment Notes marked "canceled" to the Company.
Section 2.10 Mandatory Redemption of Equipment Notes. The Company
shall redeem the Equipment Notes in whole in connection with an Event of Loss in
respect of the Airframe or the Airframe and the Engines installed thereon
(unless the Company has performed the option set forth in Section 7.05(a)(i)
with respect thereto) on or before the Loss Payment Date at a redemption price
equal to 100% of the unpaid principal amount thereof, together with all accrued
interest thereon to (but excluding) the date of redemption, but without any
Make-Whole Amount.
Section 2.11 Voluntary Redemption of Equipment Notes. All, but not
less than all, of the Equipment Notes may be redeemed in whole by the Company
upon at least 20 days' revocable prior written notice to the Loan Trustee at a
redemption price equal to 100% of the unpaid principal amount of the Equipment
Notes being redeemed, together with accrued interest thereon to (but excluding)
the date of redemption and all other amounts payable hereunder or under the
Participation Agreement to the Noteholders plus the Make-Whole Amount, if any.
Any notice shall become irrevocable three days before the redemption date if not
previously revoked.
Section 2.12 Redemptions; Notice of Redemptions; Repurchases. (a) No
redemption of any Equipment Note may be made except to the extent and in the
manner expressly permitted by this Indenture. At such time as no Pass Through
Certificates are outstanding, the Company may at any time repurchase any of the
Equipment Notes at any price in the open market and may hold, resell or
surrender such Equipment Notes to the Loan Trustee for cancellation.
(b) Notice of redemption with respect to the Equipment Notes shall
be given by the Loan Trustee by first-class mail, postage prepaid, mailed not
less than 15 nor more than 60 days prior to the applicable redemption date, to
each Noteholder at such Noteholder's address appearing in the Equipment Note
Register. All notices of redemption shall state: (1) the redemption date, (2)
the applicable basis for determining the redemption price, (3) that on the
redemption date, the redemption price will become due and payable upon each such
Equipment Note, and that, if any such Equipment Notes are then outstanding,
interest on such Equipment Notes shall cease to accrue on and after such
redemption date and (4) the place or places where such Equipment Notes are to be
surrendered for payment of the redemption price.
(c) On or before the redemption date, the Company (or any person on
behalf of the Company) shall, to the extent an amount equal to the redemption
price for the Equipment Notes to be redeemed on the redemption date shall not
then be held in the Collateral, deposit or cause to be deposited with the Loan
Trustee by 10:00 a.m. (New York City time) on the redemption date in immediately
available funds the redemption price of the Equipment Notes to be redeemed.
(d) Notice of redemption having been given as aforesaid (and not
revoked as permitted by Section 2.11), the Equipment Notes to be redeemed shall,
on the redemption date, become due and payable at the Corporate Trust Office of
the Loan Trustee, and from and after such redemption date (unless there is a
default in the deposit of the redemption price pursuant to Section 2.12(c)) any
such Equipment Notes then outstanding shall cease to bear interest. Upon
surrender of any such Equipment Note for redemption in accordance with said
notice, such Equipment Note shall be redeemed at the redemption price.
Section 2.13 Subordination. (a) The indebtedness evidenced by the
Series A-1 Equipment Notes and Series A-2 Equipment Notes shall rank in right of
payment equally with all other Series A-1 Equipment Notes and Series A-2
Equipment Notes. The indebtedness evidenced by the Series B Equipment Notes is,
to the extent and in the manner provided in this Indenture, subordinate and
subject in right of payment to the prior payment in full of the Secured
Obligations in respect of the Series A-1 Equipment Notes and Series A-2
Equipment Notes, and the Series B Equipment Notes are issued subject to such
provisions. The indebtedness evidenced by the Series C Equipment Notes is, to
the extent and in the manner provided in this Indenture, subordinate and subject
in right of payment to the prior payment in full of the Secured Obligations in
respect of the Series A-1 Equipment Notes, the Series A-2 Equipment Notes and
the Series B Equipment Notes, and the Series C Equipment Notes are issued
subject to such provisions. The indebtedness evidenced by the Series D Equipment
Notes is, to the extent and in the manner provided in this Indenture,
subordinate and subject in right of payment to the prior payment in full of the
Secured Obligations in respect of the Series A-1 Equipment Notes, the Series A-2
Equipment Notes, the Series B Equipment Notes and the Series C Equipment Notes,
and the Series D Equipment Notes are issued subject to such provisions. By
acceptance of its Equipment Notes of any Series, each Noteholder of such Series
(a) agrees to and shall be bound by such provisions, (b) authorizes and directs
the Loan Trustee on such Noteholder's behalf to take any action necessary or
appropriate to effectuate the subordination as provided in this Indenture and
(c) appoints the Loan Trustee as such Noteholder's attorney-in-fact for such
purpose.
(b) The Company, the Loan Trustee and, by acceptance of its
Equipment Notes of any Series, each Noteholder of such Series, hereby agree that
no payment or distribution shall be made on or in respect of the Secured
Obligations owed to such Noteholder of such Series, including any payment or
distribution of cash, property or securities, after the occurrence of any of the
events referred to in Section 4.01(f) or after the commencement of any
proceedings of the type referred to in Sections 4.01(g), (h) or (i), except as
expressly provided in Article III.
(c) By the acceptance of its Equipment Notes of any Series, each
Noteholder of such Series agrees that if such Noteholder, in its capacity as a
Noteholder, receives any payment or distribution on any Secured Obligations in
respect of such Series that it is not entitled to receive under this Section
2.13 or Article III hereof, it will hold any amount so received in trust for the
Loan Trustee and forthwith turn over such amount to the Loan Trustee in the form
received to be applied as provided in Article III.
Section 2.14 Certain Payments. The Company agrees to pay to the Loan
Trustee for distribution in accordance with Section 3.04:
(a) an amount or amounts equal to the fees payable to the Liquidity
Provider under Section 2.03 of each Liquidity Facility and the related Fee
Letter (as defined in the Intercreditor Agreement), multiplied by a fraction,
the numerator of which is the sum of the then outstanding aggregate principal
amount of the Series A-1 Equipment Notes, Series A-2 Equipment Notes, Series B
Equipment Notes and Series C Equipment Notes and the denominator of which is the
sum of the then outstanding aggregate principal amount of all "Series A-1
Equipment Notes," "Series A-2 Equipment Notes," "Series B Equipment Notes" and
"Series C Equipment Notes" (in each case as defined in the Intercreditor
Agreement);
(b) if any payment default shall have occurred and be continuing
with respect to interest on any Series A-1 Equipment Note, Series A-2 Equipment
Note, Series B Equipment Note or Series C Equipment Note, (x) the excess, if
any, of (1) the amount equal to the sum of interest on any Unpaid Advance or
Applied Provider Advance payable under Section 3.07 of each Liquidity Facility
plus any other amounts payable in respect of such Unpaid Advance or Applied
Provider Advance under Section 3.01, 3.03 or 3.09 of the Liquidity Facility
under which such Unpaid Advance or Applied Provider Advance was made over (2)
the sum of Investment Earnings from any Final Advance plus any amount of
interest at the Past Due Rate actually payable (whether or not in fact paid) by
the Company in respect of the overdue scheduled interest on the Equipment Notes
in respect of which such Unpaid Advance or Applied Provider Advance was made,
multiplied by (y) a fraction, the numerator of which is the then aggregate
overdue amounts of interest on the Series A-1 Equipment Notes, Series A-2
Equipment Notes, Series B Equipment Notes and Series C Equipment Notes (other
than interest becoming due and payable solely as a result of acceleration of any
such Equipment Notes) and the denominator of which is the then aggregate overdue
amounts of interest on all "Series A-1 Equipment Notes", "Series A- 2 Equipment
Notes", "Series B Equipment Notes" and "Series C Equipment Notes" (in each case
as defined in the Intercreditor Agreement) (other than interest becoming due and
payable solely as a result of acceleration of any such "Equipment Notes");
(c) any amounts owed to the Liquidity Provider by the Subordination
Agent as borrower under Section 3.01 (other than in respect of an Unpaid Advance
or Applied Provider Advance), 3.03 (other than in respect of an Unpaid Advance
or Applied Provider Advance), 7.05 and 7.07 of each Liquidity Facility (or
similar provisions of any Replacement Liquidity Facility) multiplied by the
fraction specified in the foregoing clause (a);
(d) an amount or amounts equal to the compensation, including
reasonable expenses and disbursements actually incurred, payable to the
Subordination Agent under Section 6.07 of the Intercreditor Agreement,
multiplied by the fraction specified in the foregoing clause (a) (but in any
event without duplication of any amount or amounts payable by the Company in
respect of such compensation under any other Operative Document or Pass Through
Document); and
(e) (x) the excess, if any, of (1) an amount equal to the interest
on any Unapplied Downgrade Advance payable under Section 3.07 of each Liquidity
Facility over (2) the Investment Earnings from any such Unapplied Downgrade
Advance, multiplied by (y) the fraction specified in the foregoing clause (a).
For purposes of this paragraph, the terms "Advance", "Applied
Provider Advance", "Cash Collateral Account", "Final Advance", "Investment
Earnings", "Replacement Liquidity Facility", "Unapplied Downgrade Advance" and
"Unpaid Advance" have the meanings specified in each Liquidity Facility or the
Intercreditor Agreement.
Section 2.15 Repayment of Monies for Equipment Note Payments Held by
the Loan Trustee. Any money held by the Loan Trustee in trust for any payment of
the principal of, Make-Whole Amount, if any, or interest or any other amounts
due on, any Equipment Note, including, without limitation, any money deposited
pursuant to Section 2.12(c) or Section 10.01, and remaining unclaimed for two
years after the due date for such payment (or such lesser time as the Loan
Trustee is satisfied, after 60 days' notice from the Company, is one month prior
to the escheat period provided under applicable state law) shall be paid to the
Company. The Noteholders of any outstanding Equipment Notes shall thereafter, as
unsecured general creditors, look only to the Company for payment thereof, and
all liability of the Loan Trustee with respect to such trust money shall
thereupon cease. The Loan Trustee, before being required to make any such
repayment, may at the expense of the Company cause to be mailed to each such
Noteholder notice that such money remains unclaimed. After a date specified in
such notice, which may not be less than 30 days from the date of mailing, any
unclaimed balance of such money then remaining will be repaid to the Company as
provided herein.
Section 2.16 Directions by Subordination Agent. So long as the
Subordination Agent is a Noteholder, notwithstanding anything contained herein
or in any other Operative Document to the contrary, in exercising its right to
vote the Equipment Notes held by it, or in giving or taking any direction,
consent, request, demand, instruction, authorization, notice, waiver or other
action provided by this Indenture or in respect of the Equipment Notes to be
given or taken by a Noteholder (each such vote or other action, a "Direction")
in respect of such Equipment Notes, the Subordination Agent may act in
accordance with any votes, directions, consents, requests, demands,
instructions, authorizations, notices, waivers or other actions given or taken
by any applicable Pass Through Trustee or the Controlling Party pursuant to the
Intercreditor Agreement, including without limitation pursuant to Section 2.06,
Article IV or Section 8.01(b) thereof. The Subordination Agent shall be
permitted (x) to give a Direction with respect to less than the entire principal
amount of any single Equipment Note held by it, and (y) to give different
Directions with respect to different portions of the principal amount of any
single Equipment Note held by it. Any Direction given by the Subordination Agent
at any time with respect to more than a majority in aggregate unpaid principal
amount of all of the Equipment Notes issued and then outstanding hereunder shall
be deemed to have been given by a Majority in Interest of Noteholders.
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM
THE COLLATERAL
Section 3.01 Basic Distributions. Except as otherwise provided in
Sections 3.02, 3.03 and 3.04, each periodic payment by the Company of regularly
scheduled installments of principal or interest on the Equipment Notes received
by the Loan Trustee shall be promptly distributed in the following order of
priority:
FIRST, so much of such payment as is required to pay in full the
aggregate amount of the payment or payments of principal amount and
interest (as well as any interest on any overdue principal amount and, to
the extent permitted by applicable law, on any overdue interest and any
other overdue amounts) then due under all Series A-1 Equipment Notes and
Series A-2 Equipment Notes shall be distributed to the Noteholders of
Series A-1 Equipment Notes and Series A-2 Equipment Notes ratably, without
priority of one over the other, in the proportion that the amount of such
payment or payments then due under each Series A-1 Equipment Note or
Series A-2 Equipment Note bears to the aggregate amount of the payments
then due under all Series A-1 Equipment Notes and Series A-2 Equipment
Notes;
SECOND, after giving effect to clause "first" above, so much of such
payment remaining as is required to pay in full the aggregate amount of
the payment or payments of principal amount and interest (as well as any
interest on any overdue principal amount and, to the extent permitted by
applicable law, on any overdue interest and other overdue amounts) then
due under all Series B Equipment Notes shall be distributed to the
Noteholders of Series B Equipment Notes ratably, without priority of one
over the other, in the proportion that the amount of such payment or
payments then due under each Series B Equipment Note bears to the
aggregate amount of the payments then due under all Series B Equipment
Notes;
THIRD, after giving effect to clause "second" above, so much of such
payment remaining as is required to pay in full the aggregate amount of
the payment or payments of principal amount and interest (as well as any
interest on any overdue principal amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue amounts)
then due under all Series C Equipment Notes shall be distributed to the
Noteholders of Series C Equipment Notes ratably, without priority of one
over the other, in the proportion that the amount of such payment or
payments then due under each Series C Equipment Note bears to the
aggregate amount of the payments then due under all Series C Equipment
Notes;
FOURTH, after giving effect to clause "third" above, so much of such
payment remaining as is required to pay in full the aggregate amount of
the payment or payments of principal amount and interest (as well as any
interest on any overdue principal amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue amounts)
then due under all Series D Equipment Notes shall be distributed to the
Noteholders of Series D Equipment Notes ratably, without priority of one
over the other, in the proportion that the amount of such payment or
payments then due under each Series D Equipment Note bears to the
aggregate amount of the payments then due under all Series D Equipment
Notes; and
FIFTH, the balance, if any, of such installment remaining thereafter
shall be distributed to the Company.
Section 3.02 Event of Loss; Optional Redemption. Except as otherwise
provided in Sections 3.03 and 3.04 and subject to the following proviso, any
payments received by the Loan Trustee with respect to the Aircraft as the result
of (a) an Event of Loss (including amounts paid by the Company pursuant to
Section 2.10) or (b) an optional redemption of the Equipment Notes pursuant to
Section 2.11 shall be applied to redemption of the Equipment Notes pursuant to
Section 2.10 or Section 2.11, as applicable, and to payment of all other Secured
Obligations by applying such funds in the following order of priority:
FIRST, (i) to reimburse the Loan Trustee and the Noteholders for any
reasonable costs or expenses actually incurred in connection with such
redemption for which they are entitled to reimbursement, or indemnity by
the Company, under the Operative Documents; and then (ii) to pay any other
amounts then due (except as provided in clause "second" below) to the Loan
Trustee, the Noteholders and the Indenture Indemnitees under this
Indenture, the Participation Agreement or the Equipment Notes;
SECOND, (i) to pay the amounts specified in subclause (i) of clause
"third" of Section 3.03 plus Make-Whole Amount, if any, then due and
payable in respect of the Series A-1 Equipment Notes and the Series A-2
Equipment Notes; (ii) after giving effect to subclause (i) above, to pay
the amounts specified in subclause (ii) of clause "third" of Section 3.03
plus Make-Whole Amount, if any, then due and payable in respect of the
Series B Equipment Notes; (iii) after giving effect to subclause (ii)
above, to pay the amounts specified in subclause (iii) of clause "third"
of Section 3.03 plus Make-Whole Amount, if any, then due and payable in
respect of the Series C Equipment Notes; and (iv) after giving effect to
subclause (iii) above, to pay the amounts specified in subclause (iv) of
clause "third" of Section 3.03 plus Make-Whole Amount, if any, then due
and payable in respect of the Series D Equipment Notes; and
THIRD, the balance, if any, of such payments shall be distributed to
the Company.
Notwithstanding the foregoing, any insurance, condemnation or similar proceeds
resulting from an Event of Loss that are received by the Loan Trustee shall be
held or disbursed by the Loan Trustee as provided by Sections 7.05(c) and
7.06(d). Any such money held by the Loan Trustee shall be invested as provided
in Section 5.06.
No Make-Whole Amount shall be payable on the Equipment Notes in
connection with their redemption as a result of an Event of Loss in respect of
the Airframe or the Airframe and the Engines installed thereon.
Section 3.03 Payments after Event of Default. Except as otherwise
provided in Section 3.04, all payments received and amounts held or realized by
the Loan Trustee (including any amounts realized by the Loan Trustee from the
exercise of any remedies pursuant to Article IV) after both an Event of Default
shall have occurred and be continuing and the Equipment Notes shall have become
due and payable pursuant to Section 4.02(a), as well as all payments or amounts
then held by the Loan Trustee as part of the Collateral, shall be promptly
distributed by the Loan Trustee in the following order of priority:
FIRST, so much of such payments or amounts as is required to (i)
reimburse the Loan Trustee, to the extent the Loan Trustee is entitled to
be reimbursed or indemnified under the Operative Documents, for any Tax,
expense or other loss (including, without limitation, all amounts to be
expended at the expense of, or charged upon the tolls, rents, revenues,
issues, products and profits of, the Collateral and every part thereof
pursuant to Section 4.02(a)) actually incurred by the Loan Trustee (to the
extent not previously reimbursed), the expenses of any sale, taking or
other proceeding, reasonable attorneys' fees and expenses, court costs and
any other expenditures actually incurred or expenditures or advances made
by the Loan Trustee or the Noteholders in the protection, exercise or
enforcement of any right, power or remedy or any damages sustained by the
Loan Trustee or any Noteholder, liquidated or otherwise, upon such Event
of Default shall be applied by the Loan Trustee as between itself and the
Noteholders in reimbursement of such expenses and any other expenses for
which the Loan Trustee or the Noteholders are entitled to reimbursement
under any Operative Document, and (ii) to pay all amounts payable (except
as provided in clauses "second" and "third" below) to the other Indenture
Indemnitees hereunder and under the Participation Agreement; and in case
the aggregate amount so to be distributed is insufficient to pay as
aforesaid, then ratably, without priority of one over the other, in
proportion to the amounts owed each hereunder;
SECOND, so much of such payments or amounts remaining as is required
to reimburse the then existing or prior Noteholders for payments made
pursuant to Section 5.03 (to the extent not previously reimbursed) shall
be distributed to such then existing or prior Noteholders ratably, without
priority of one over the other, in accordance with the amount of the
payment or payments made by each such then existing or prior Noteholder
pursuant to Section 5.03;
THIRD, (i) so much of such payments or amounts remaining as is
required to pay in full the aggregate unpaid principal amount of all
Series A-1 Equipment Notes and Series A-2 Equipment Notes and the accrued
but unpaid interest and all other Secured Obligations in respect of the
Series A-1 Equipment Notes and Series A-2 Equipment Notes to the date of
distribution shall be distributed to the Noteholders of Series A-1
Equipment Notes and Series A-2 Equipment Notes ratably, without priority
of one over the other, in the proportion that the aggregate unpaid
principal amount of all Series A-1 Equipment Notes and Series A-2
Equipment Notes held by each Noteholder plus the accrued but unpaid
interest and other amounts due hereunder or thereunder to the date of
distribution bears to the aggregate unpaid principal amount of all Series
A-1 Equipment Notes and Series A-2 Equipment Notes held by all such
Noteholders plus the accrued but unpaid interest and other amounts due
thereon to the date of distribution; (ii) after giving effect to subclause
(i) above, so much of such payments or amounts remaining as is required to
pay in full the aggregate unpaid principal amount of all Series B
Equipment Notes and the accrued but unpaid interest and all other Secured
Obligations in respect of the Series B Equipment Notes to the date of
distribution shall be distributed to the Noteholders of Series B Equipment
Notes ratably, without priority of one over the other, in the proportion
that the aggregate unpaid principal amount of all Series B Equipment Notes
held by each Noteholder plus the accrued but unpaid interest and other
amounts due hereunder or thereunder to the date of distribution bears to
the aggregate unpaid principal amount of all Series B Equipment Notes held
by all such Noteholders plus the accrued but unpaid interest and other
amounts due thereon to the date of distribution; (iii) after giving effect
to subclause (ii) above, so much of such payments or amounts remaining as
is required to pay in full the aggregate unpaid principal amount of all
Series C Equipment Notes and the accrued but unpaid interest and all other
Secured Obligations in respect of the Series C Equipment Notes to the date
of distribution shall be distributed to the Noteholders of Series C
Equipment Notes ratably, without priority of one over the other, in the
proportion that the aggregate unpaid principal amount of all Series C
Equipment Notes held by each Noteholder plus the accrued but unpaid
interest and other amounts due hereunder or thereunder to the date of
distribution bears to the aggregate unpaid principal amount of all Series
C Equipment Notes held by all such Noteholders plus the accrued but unpaid
interest and other amounts due thereon to the date of distribution; and
(iv) after giving effect to subclause (iii) above, so much of such
payments or amounts remaining as is required to pay in full the aggregate
unpaid principal amount of all Series D Equipment Notes and the accrued
but unpaid interest and all other Secured Obligations in respect of the
Series D Equipment Notes to the date of distribution shall be distributed
to the Noteholders of Series D Equipment Notes, ratably, without priority
of one over the other, in the proportion that the aggregate unpaid
principal amount of all Series D Equipment Notes held by each Noteholder
plus the accrued but unpaid interest and other amounts due hereunder or
thereunder to the date of distribution bears to the aggregate unpaid
principal amount of all Series D Equipment Notes held by all such
Noteholders plus the accrued but unpaid interest and other amounts due
thereon to the date of distribution; and
FOURTH, the balance, if any, of such payments or amounts shall be
distributed to the Company.
No Make-Whole Amount shall be payable on the Equipment Notes as a
consequence of or in connection with an Event of Default or the acceleration of
the Equipment Notes.
Section 3.04 Certain Payments. (a) Any payments received by the Loan
Trustee for which provision as to the application thereof is made in this
Indenture other than in this Article III shall be applied as provided in those
provisions. Without limiting the foregoing, any payments received by the Loan
Trustee which are payable to the Company pursuant to any of the provisions of
this Indenture other than those set forth in this Article III (including
Sections 5.06, 7.05 and 7.06 hereof) shall be so paid to the Company. Any
payments received by the Loan Trustee for which no provision as to the
application thereof is made in this Indenture and for which such provision is
made in any other Operative Document shall be applied forthwith to the purpose
for which such payment was made in accordance with the terms of such other
Operative Document.
(b) The Loan Trustee will distribute promptly upon receipt any
indemnity payment received by it from the Company pursuant to Section 4.02 of
the Participation Agreement in respect of (i) State Street and the Loan Trustee,
(ii) the Subordination Agent, (iii) the Pass Through Trustees and (iv) the
Liquidity Provider, in each case, directly to the Person entitled thereto. Any
payment received by the Loan Trustee from the Company under Section 2.14 shall
be distributed to the Subordination Agent to be distributed in accordance with
Section 2.03(c) of the Intercreditor Agreement.
(c) Any payments received by the Loan Trustee not constituting part
of the Collateral or otherwise for which no provision as to the application
thereof is made in any Operative Document shall be distributed by the Loan
Trustee to the Company. Further, and except as otherwise provided in Sections
3.02, 3.03 and 3.04, all payments received and amounts realized by the Loan
Trustee with respect to the Aircraft, to the extent received or realized at any
time after payment in full of all Secured Obligations or after the conditions
set forth in Section 10.01(a)(ii) for the defeasance of this Indenture have been
satisfied, as well as any amounts remaining as part of the Collateral after the
occurrence of such payment in full or defeasance, shall be distributed by the
Loan Trustee to the Company.
Section 3.05 Payments to the Company. Any amounts distributed
hereunder by the Loan Trustee to the Company shall be paid to the Company
(within the time limits contemplated by Section 2.03(a)) by wire transfer of
funds of the type received by the Loan Trustee at such office and to such
account or accounts of such entity or entities as shall be designated by notice
from the Company to the Loan Trustee from time to time.
ARTICLE IV
EVENTS OF DEFAULT; REMEDIES OF LOAN TRUSTEE
Section 4.01 Events of Default. Each of the following events
constitutes an "EVENT OF DEFAULT" whether such event is voluntary or involuntary
or comes about or is effected by operation of law or pursuant to or in
compliance with any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body and each such Event of
Default is deemed to exist and continue so long as, but only as long as, it has
not been remedied or explicitly waived:
(a) the Company fails to make any payment of principal amount of,
Make-Whole Amount, if any, or interest on, any Equipment Note within 15 days
after such payment is due;
(b) the Company fails to make payment when the same is due of any
amount (other than amounts referred to in Section 4.01(a)) due hereunder, under
any Equipment Note or under any other Operative Document, and such failure
continues unremedied for 30 days after the receipt by the Company of written
notice thereof from the Loan Trustee or any Noteholder;
(c) the Company fails to carry and maintain insurance or indemnity
on or with respect to the Aircraft in accordance with the provisions of Section
7.06; provided that no such failure to carry and maintain insurance shall
constitute an Event of Default until the earlier of (i) the date such failure
shall have continued unremedied for a period of 30 days after receipt by the
Loan Trustee of the notice of cancellation or lapse referred to in Section 7.06
or (ii) the date such insurance is not in effect as to the Loan Trustee;
(d) the Company fails to perform or observe any other covenant,
condition or agreement to be performed or observed by it under any Operative
Document, and such failure continues unremedied for a period of 60 days after
receipt by the Company of written notice thereof from the Loan Trustee or any
Noteholder; provided that, if such failure is capable of being remedied, no such
failure shall constitute an Event of Default for a period of one year after such
notice is received by the Company so long as the Company is diligently
proceeding to remedy such failure;
(e) any representation or warranty made by the Company in any
Operative Document was incorrect in any material respect at the time made, and
such incorrectness continues to be material to the transactions contemplated
hereby and continues unremedied for a period of 60 days after receipt by the
Company of written notice thereof from the Loan Trustee; provided that, if such
incorrectness is capable of being remedied, no such incorrectness shall
constitute an Event of Default for a period of one year after such notice is
received by the Company so long as the Company is diligently proceeding to
remedy such incorrectness;
(f) the Company consents to the appointment of or the taking of
possession by a receiver, trustee or liquidator in respect of a substantial part
of its property, admits in writing its inability to pay its debts generally as
they come due or makes a general assignment for the benefit of its creditors;
(g) the Company files a voluntary petition in bankruptcy or a
voluntary petition or an answer seeking reorganization, liquidation or other
relief as a debtor in a case under any bankruptcy laws or insolvency laws (as in
effect at such time) or an answer admitting the material allegations of a
petition filed against the Company as a debtor in any such case, or the Company
as a debtor seeks relief by voluntary petition, answer or consent, under the
provisions of any other bankruptcy or other similar law providing for the
reorganization or winding-up of corporations (as in effect at such time), or the
Company seeks an agreement, composition, extension or adjustment with its
creditors under such laws;
(h) an order, judgment or decree is entered by any court of
competent jurisdiction appointing, without the consent of the Company, a
receiver, trustee or liquidator of the Company or sequestering any substantial
part of its property, or granting any other relief in respect of the Company as
a debtor under any bankruptcy laws or insolvency laws (as in effect at such
time), and any such order, judgment or decree of appointment or sequestration
remains in force undismissed, unstayed or unvacated for a period of 90 days
after the date of entry thereof; or
(i) a petition against the Company as a debtor in a case under the
federal bankruptcy laws or other insolvency laws (as in effect at such time) is
filed and not withdrawn or dismissed within 90 days thereafter, or if, under the
provisions of any law providing for reorganization or winding-up of corporations
that may apply to the Company, any court of competent jurisdiction assumes
jurisdiction, custody or control of the Company or of any substantial part of
its property and such jurisdiction, custody or control remains in force
unrelinquished, unstayed or unterminated for a period of 90 days;
provided, however, that notwithstanding anything to the contrary contained in
this Section 4.01, any failure of the Company to perform or observe any
covenant, condition or agreement shall not constitute an Event of Default if
such failure arises by reason of an event referred to in the definition of
"Event of Loss" so long as the Company is continuing to comply with all of the
terms of Section 7.05.
Section 4.02 Remedies. (a) If an Event of Default has occurred and
is continuing and so long as the same shall continue unremedied, then and in
every such case the Loan Trustee may, and upon the written instructions of a
Majority in Interest of Noteholders, the Loan Trustee shall, do one or more of
the following to the extent permitted by, and subject to compliance with the
requirements of, applicable law then in effect (provided, however, that during
any period the Airframe or any Engine is subject to the CRAF Program and is in
possession of or being operated under the direction of the United States
government or an agency or instrumentality of the United States, the Loan
Trustee shall not, on account of any Event of Default, be entitled to exercise
or pursue any of the powers, rights or remedies described in this Section 4.02
in such manner as to limit the Company's control under this Indenture (or any
Permitted Lessee's control under any Lease) of the Airframe or such Engine,
unless at least 60 days' (or such lesser period as may then be applicable under
the Military Airlift Command Program of the United States government) prior
written notice of default hereunder has been given by the Loan Trustee by
registered or certified mail to the Company (and any such Permitted Lessee) with
a copy addressed to the Contracting Office Representative or other appropriate
person for the Military Airlift Command of the United States Air Force under any
contract with the Company (or such Permitted Lessee) relating to the Aircraft):
(i) declare by written notice to the Company all the Equipment Notes
to be due and payable, whereupon the aggregate unpaid principal amount of
all Equipment Notes then outstanding, together with accrued but unpaid
interest thereon and other amounts due thereunder (but without Make-Whole
Amount), shall immediately become due and payable without presentment,
demand, protest or notice, all of which are hereby waived; provided that
if an Event of Default referred to in Subsections 4.01(f), (g), (h) or (i)
has occurred and is continuing, then and in every such case the unpaid
principal amount then outstanding, together with accrued but unpaid
interest and all other amounts due thereunder (but without Make-Whole
Amount) shall immediately and without further act become due and payable
without presentment, demand, protest or other notice, all of which are
hereby waived; and, following such declaration or deemed declaration:
(ii) (A) cause the Company, upon the demand by notice of the Loan
Trustee, at the Company's expense, to deliver promptly, and the Company
shall deliver promptly, all or such part of the Airframe or any Engine as
the Loan Trustee so demands to the Loan Trustee or its order, or, if the
Company has failed to so deliver the Airframe or any Engine after such
demand, the Loan Trustee, at its option, may enter upon the premises where
all or any part of the Airframe or any Engine are located and take
immediate possession of and remove the same together with any engine which
is not an Engine but which is installed on the Airframe, subject to all of
the rights of the owner, lessor, lienor or secured party of such engine;
provided that the Airframe with an engine (which is not an Engine)
installed thereon may be flown or returned only to a location within the
continental United States, and such engine shall be held for the account
of any such owner, lessor, lienor, secured party or, if such engine is
owned by the Company, may at the option of the Company with the consent of
the Loan Trustee (which will not be unreasonably withheld) or at the
option of the Loan Trustee with the consent of the Company (which will not
be unreasonably withheld), be exchanged with the Company for an Engine in
accordance with the provisions of Section 7.05(b); (B) sell all or any
part of the Airframe and any Engine at public or private sale, whether or
not the Loan Trustee at the time has possession thereof, as the Loan
Trustee may determine, or otherwise dispose of, hold, use, operate, lease
to others or keep idle all or any part of the Airframe or such Engine as
the Loan Trustee, in its sole discretion, determines, all free and clear
of any rights or claims of the Company, and the proceeds of such sale or
disposition shall be applied as set forth in Section 3.03; or (C) exercise
any other remedy of a secured party under the Uniform Commercial Code of
the State of New York (whether or not in effect in the jurisdiction in
which enforcement is sought).
Upon every such taking of possession of Collateral under this
Section 4.02, the Loan Trustee may, from time to time, at the expense of the
Collateral, make all such expenditures for maintenance, insurance, repairs,
alterations, additions and improvements to and of the Collateral as it deems
necessary to cause the Collateral to be in such condition as required by the
provisions of this Indenture. In each such case, the Loan Trustee may maintain,
use, operate, store, lease, control or manage the Collateral and may exercise
all rights and powers of the Company relating to the Collateral as the Loan
Trustee reasonably deems best, including the right to enter into any and all
such agreements with respect to the maintenance, use, operation, storage,
leasing, control, management or disposition of the Collateral or any part
thereof as the Loan Trustee may reasonably determine; and the Loan Trustee shall
be entitled to collect and receive directly all tolls, rents, revenues, issues,
income, products and profits of the Collateral and every part thereof. Such
tolls, rents, revenues, issues, income, products and profits shall be applied to
pay the expenses of the use, operation, storage, leasing, control, management or
disposition of the Collateral, and of all maintenance, repairs, replacements,
alterations, additions and improvements, and to make all payments that the Loan
Trustee is required or elects to make, if any, for Taxes, insurance or other
proper charges assessed against or otherwise imposed upon the Collateral or any
part thereof, and all other payments which the Loan Trustee is required or
expressly authorized to make under any provision of this Indenture, as well as
just and reasonable compensation for the services of the Loan Trustee, and shall
otherwise be applied in accordance with Article III. If an Event of Default has
occurred and is continuing and the Equipment Notes either have been accelerated
pursuant to this Section 4.02 or have become due at maturity and the Loan
Trustee is entitled to exercise rights hereunder, at the request of the Loan
Trustee, the Company shall promptly execute and deliver to the Loan Trustee such
instruments of title and other documents as the Loan Trustee reasonably deems
necessary or advisable to enable the Loan Trustee or an agent or representative
designated by the Loan Trustee, at such time or times and place or places as the
Loan Trustee specifies, to obtain possession of all or any part of the
Collateral to which the Loan Trustee at the time is entitled hereunder. If the
Company for any reason fails to execute and deliver such instruments and
documents after such request by the Loan Trustee, the Loan Trustee may obtain a
judgment conferring on the Loan Trustee the right to immediate possession and
requiring the Company to execute and deliver such instruments and documents to
the Loan Trustee, to the entry of which judgment the Company hereby specifically
consents to the fullest extent it may lawfully do so.
(b) The Loan Trustee shall give the Company at least 30 days' prior
written notice of any public sale or of the date on or after which any private
sale will be held, which notice the Company hereby agrees to the extent
permitted by applicable law is reasonable notice. Any Noteholder or Noteholders
shall be entitled to bid for and become the purchaser of any Collateral offered
for sale pursuant to this Section 4.02 and to credit against the purchase price
bid at such sale by such Noteholders all or any part of the unpaid amounts owing
to such Noteholders under the Operative Documents and secured by the Lien of
this Indenture (but only to the extent that such purchase price would have been
paid to such Noteholders pursuant to Article III if such purchase price were
paid in cash and the foregoing provision of this Section 4.02(b) were not given
effect). The Loan Trustee may exercise such right without possession or
production of the Equipment Notes or proof of ownership thereof, and as a
representative of the Noteholders may exercise such right without notice to the
Noteholders as parties to any suit or proceeding relating to the foreclosure of
any Collateral. The Company may also bid for and become the purchaser of any
Collateral offered for sale pursuant to this Section 4.02.
(c) To the extent permitted by applicable law, while an Event of
Default has occurred and is continuing, the Company irrevocably appoints the
Loan Trustee the true and lawful attorney-in-fact of the Company (which
appointment is coupled with an interest) in its name and stead and on its
behalf, for the purpose of effectuating any sale, assignment, transfer or
delivery for the enforcement of the Lien of this Indenture, whether pursuant to
foreclosure or power of sale, or otherwise, to execute and deliver all such
bills of sale, assignments and other instruments as may be necessary or
appropriate, with full power of substitution, the Company hereby ratifying and
confirming all that such attorney or any substitute does by virtue hereof in
accordance with applicable law; provided that if so requested by the Loan
Trustee or any purchaser, the Company shall ratify and confirm any such sale,
assignment or transfer of delivery, by executing and delivering to the Loan
Trustee or such purchaser all bills of sale, assignments, releases and other
proper instruments to effect such ratification and confirmation as may be
designated in any such request.
(d) At any time after the Loan Trustee has declared the unpaid
principal amount of all Equipment Notes then outstanding to be due and payable
and prior to the sale of any part of the Collateral pursuant to this Article IV,
a Majority in Interest of Noteholders, by written notice to the Company and the
Loan Trustee, may rescind and annul such declaration, whether made by the Loan
Trustee on its own accord or as directed, and its consequences if: (i) there has
been paid to or deposited with the Loan Trustee an amount sufficient to pay all
overdue installments of principal amount of, and interest on, the Equipment
Notes, and all other amounts owing under the Operative Documents, that have
become due otherwise than by such declaration of acceleration and (ii) all other
Events of Default, other than nonpayment of principal amount or interest on the
Equipment Notes that have become due solely because of such acceleration, have
been either cured or waived.
(e) Notwithstanding anything contained herein, so long as the Pass
Through Trustee under any Pass Through Trust Agreement or the Subordination
Agent on its behalf is a Noteholder, the Loan Trustee will not be authorized or
empowered to acquire title to any Collateral or take any action with respect to
any Collateral so acquired by it if such acquisition or action would cause any
Pass Through Trust to fail to qualify as a "grantor trust" for federal income
tax purposes.
Section 4.03 Remedies Cumulative. To the extent permitted under
applicable law, each and every right, power and remedy specifically given to the
Loan Trustee herein or otherwise in this Indenture shall be cumulative and shall
be in addition to every other right, power and remedy specifically given herein
or now or hereafter existing at law, in equity or by statute, and each and every
right, power and remedy whether specifically given herein or otherwise existing
may be exercised from time to time and as often and in such order as may be
deemed expedient by the Loan Trustee, and the exercise or the beginning of the
exercise of any power or remedy shall not be construed to be a waiver of the
right to exercise at the same time or thereafter any other right, power or
remedy. No delay or omission by the Loan Trustee in the exercise of any right,
remedy or power or in the pursuance of any remedy shall, to the extent permitted
by applicable law, impair any such right, power or remedy or be construed to be
a waiver of any default on the part of the Company or to be an acquiescence
therein.
Section 4.04 Discontinuance of Proceedings. In case the Loan Trustee
has instituted any proceedings to enforce any right, power or remedy under this
Indenture by foreclosure, entry or otherwise, and such proceedings have been
discontinued or abandoned for any reason or have been determined adversely to
the Loan Trustee, then and in every such case the Company and the Loan Trustee
shall, subject to any determination in such proceedings, be restored to their
former positions and rights hereunder with respect to the Collateral, and all
rights, remedies and powers of the Loan Trustee shall continue as if no such
proceedings had been undertaken (but otherwise without prejudice).
Section 4.05 Waiver of Past Defaults. Upon written instruction from
a Majority in Interest of Noteholders, the Loan Trustee shall waive any past
default hereunder and its consequences, and upon any such waiver such default
shall cease to exist and any Event of Default arising therefrom shall be deemed
to have been cured for every purpose of the Operative Documents, but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon; provided, however, that in the absence of written
instructions from each of the affected Noteholders, the Loan Trustee shall not
waive any default (i) in the payment of the principal amount, Make-Whole Amount,
if any, or interest due under any Equipment Note then outstanding (other than
with the consent of the holder thereof), or (ii) in respect of a covenant or
provision hereof which, under Article IX, cannot be modified or amended without
the consent of each such affected Noteholder.
Section 4.06 Noteholders May Not Bring Suit Except Under Certain
Conditions. A Noteholder 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
Indenture for the appointment of a receiver or for the enforcement of any other
remedy under this Indenture, unless:
(1) such Noteholder previously shall have given written notice to
the Loan Trustee of a continuing Event of Default;
(2) A Majority in Interest of Noteholders shall have requested the
Loan Trustee in writing to institute such action, suit or proceeding and
shall have offered to the Loan Trustee indemnity as provided in Section
5.03;
(3) the Loan 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 Loan Trustee during such 60-day period by a Majority in
Interest of Noteholders.
Except to the extent provided in the Intercreditor Agreement or in
any Indenture Supplement, it is understood and intended that no one or more of
the Noteholders of any Series shall have any right in any manner whatsoever
hereunder or under the Indenture Supplement or under the Equipment Notes of such
Series to (i) surrender, impair, waive, affect, disturb or prejudice any
Collateral, or the Lien of the Indenture on any Collateral, or the rights of the
Noteholders of such Series, (ii) obtain or seek to obtain priority over or
preference with respect to any other such Noteholder of such Series or (iii)
enforce any right under this Indenture, except in the manner provided in this
Indenture and for the equal, ratable and common benefit of all the Noteholders
of such Series subject to the provisions of this Indenture.
ARTICLE V
DUTIES OF THE LOAN TRUSTEE
Section 5.01 Notice of Event of Default. If the Loan Trustee has
knowledge of an Event of Default or of a default arising from a failure by the
Company to pay when due any payment of principal amount, interest or Make-Whole
Amount, if any, due and payable under any Equipment Note, the Loan Trustee shall
promptly give notice thereof to the Company and each Noteholder; provided,
however, that except in the case of a default in the payment of the principal
amount, interest or Make-Whole Amount, if any, due and payable under any
Equipment Note, the Loan Trustee shall be protected in withholding the notice to
the Noteholders required in the foregoing part of this sentence if and so long
as the executive committee or trust committee of directors of the Loan Trustee
and/or trust officers thereof in good faith determine that withholding such
notice is in the interest of the Noteholders. Subject to the terms of Sections
4.02, 4.05, 5.02 and 5.03, the Loan Trustee shall take such action, or refrain
from taking such action, with respect to such Event of Default (including with
respect to the exercise of any rights or remedies hereunder) as the Loan Trustee
is instructed in writing by a Majority in Interest of Noteholders. Subject to
the provisions of Section 5.03, if the Loan Trustee does not receive
instructions as above provided within 20 Business Days after giving notice of
such Event of Default to the Noteholders, the Loan Trustee may, subject to
instructions thereafter received pursuant to the preceding provisions of this
Section 5.01, take such action, or refrain from taking such action with respect
to such Event of Default as it reasonably determines to be advisable in the best
interests of the Noteholders, but shall be under no duty to take or refrain from
taking any action. It shall use the same degree of care and skill in connection
therewith as a prudent person would use under the circumstances in the conduct
of his or her own affairs. The Loan Trustee may not sell the Airframe or any
Engine without the consent of a Majority in Interest of Noteholders.
For all purposes of this Indenture, in the absence of actual
knowledge, the Loan Trustee shall not be deemed to have knowledge of a default
or an Event of Default unless notified in writing by the Company or one or more
Noteholders; and "actual knowledge" (as used in the foregoing clause) of the
Loan Trustee shall mean actual knowledge of an officer in the Corporate Trust
Division of the Loan Trustee; provided, however, that the Loan Trustee is deemed
to have actual knowledge of (i) the failure of the Company to pay any principal
amount of, or interest on, the Equipment Notes directly to the Loan Trustee when
the same shall become due or (ii) the failure of the Company to maintain
insurance as required under Section 7.06 if the Loan Trustee receives written
notice thereof from an insurer or insurance broker.
Section 5.02 Action upon Instructions; Certain Rights and
Limitations. Subject to the terms of Article IV and this Article V, upon the
written instructions at any time of a Majority in Interest of Noteholders, the
Loan Trustee shall promptly (i) give such notice, direction, consent, waiver or
approval or exercise such right, remedy or power hereunder in respect of all or
any part of the Collateral or (ii) take such other action, as is specified in
such instructions.
The Loan Trustee will cooperate with the Company in connection with
the recording, filing, re-recording and refiling of the Indenture and any
supplements to it and any financing statements or other documents as is
necessary to maintain the perfection hereof or otherwise protect the security
interests created hereby. The Loan Trustee shall furnish to the Company upon
request such information and copies of such documents as the Loan Trustee may
have and as are necessary for the Company to perform its duties under Article II
hereof.
Section 5.03 Indemnification. The Loan Trustee shall not be required
to take any action or refrain from taking any action under Sections 5.01 (other
than the first sentence thereof) or 5.02 or Article IV unless it shall have
received indemnification against any risks incurred in connection therewith in
form and substance reasonably satisfactory to it, including, without limitation,
adequate advances against costs that may be incurred by it in connection
therewith. The Loan Trustee shall not be required to take any action under
Section 5.01 (other than the first sentence thereof) or 5.02 or Article IV, nor
shall any other provision of any Operative Document be deemed to impose a duty
on the Loan Trustee to take any action, if the Loan Trustee shall have been
advised by outside counsel that such action is contrary to the terms hereof or
is otherwise contrary to law.
Section 5.04 No Duties Except as Specified in Indenture or
Instructions. The Loan Trustee shall not have any duty or obligation to manage,
control, lease, use, sell, operate, store, dispose of or otherwise deal with the
Aircraft or any other part of the Collateral, or to otherwise take or refrain
from taking any action under, or in connection with, this Indenture, except as
expressly provided by the terms of this Indenture or the Participation Agreement
or as expressly provided in written instructions received pursuant to the terms
of Section 5.01 or 5.02; and no implied duties or obligations shall be read into
this Indenture against the Loan Trustee.
Section 5.05 No Action Except under Indenture or Instructions. The
Loan Trustee will not manage, control, use, sell, lease, operate, store, dispose
of or otherwise deal with the Aircraft or any other part of the Collateral
except in accordance with the powers granted to, or the authority conferred
upon, the Loan Trustee pursuant to this Indenture and in accordance with the
express terms hereof.
Section 5.06 Investment of Amounts Held by the Loan Trustee. Any
monies (including for the purpose of this Section 5.06 any cash deposited with
the Loan Trustee by the Company, any cash received by the Loan Trustee pursuant
to Sections 7.05(c) or 7.06(d) or otherwise) or Permitted Investments purchased
by the use of such cash pursuant to this Section 5.06 or any cash constituting
the proceeds of the maturity, sale or other disposition of any Permitted
Investments) held by the Loan Trustee hereunder as part of the Collateral, until
paid out by the Loan Trustee as herein provided, (i) subject to clause (ii)
below, may be carried by the Loan Trustee on deposit with itself or on deposit
to its account with any bank, trust company or national banking association
incorporated or doing business under the laws of the United States or one of the
states thereof having combined capital and surplus and retained earnings of a
least $100,000,000, and the Loan Trustee shall not have any liability for
interest upon any such monies except as otherwise agreed in writing with the
Company, or (ii) at any time and from time to time, so long as no Event of
Default shall have occurred and be continuing, at the request of the Company,
shall be invested and reinvested in Permitted Investments as specified in such
request (if such investments are reasonably available for purchase) and sold, in
any case at such prices, including accrued interest or its equivalent, as are
set forth in such request, and such Permitted Investments shall be held by the
Loan Trustee in trust as part of the Collateral until so sold; provided that the
Company shall upon demand pay to the Loan Trustee the amount of any loss
realized upon maturity, sale or other disposition of any such Permitted
Investment and, so long as no Event of Default or Payment Default shall have
occurred and be continuing, the Company shall be entitled to receive from the
Loan Trustee, and the Loan Trustee shall promptly pay to the Company, any
profit, income, interest, dividend or gain realized upon maturity, sale or other
disposition of any Permitted Investment. If an Event of Default or Payment
Default shall have occurred and be continuing, any net income, profit, interest,
dividend or gain realized upon maturity, sale or other disposition of any
Permitted Investment shall be held as part of the Collateral and shall be
applied by the Loan Trustee at the same time, on the same conditions and in the
same manner as the amounts in respect of which such income, profit, interest,
dividend or gain was realized are required to be distributed in accordance with
the provisions hereof pursuant to which such amounts were required to be held.
The Loan Trustee shall not be responsible for any losses on any investments or
sales of Permitted Investments made pursuant to the procedure specified in this
Section 5.06 other than by reason of its willful misconduct or negligence. If
any moneys or investments are held by the Loan Trustee solely because an Event
of Default has occurred and is continuing and such moneys or investments have
been held for a period of 90 consecutive days during which such Event of Default
is continuing without any remedial action being taken by the Loan Trustee in
respect of such Event of Default pursuant to Section 4.02 hereof, and provided
that there is no stay, moratorium or injunction in effect preventing the taking
of such action, then, notwithstanding any other provision of the Operative
Documents, all such moneys and investments held by the Loan Trustee shall be
released to the Company on such 90th day, or on the next Business Day after such
90th day.
ARTICLE VI
THE LOAN TRUSTEE
Section 6.01 Acceptance of Trusts and Duties. State Street accepts
the trusts and duties hereby created and applicable to it and agrees to perform
such duties, but only upon the terms of this Indenture and agrees to receive,
handle and disburse all monies received by it as Loan Trustee constituting part
of the Collateral in accordance with the terms hereof. State Street shall have
no liability hereunder except (a) for its own willful misconduct or negligence,
(b) as provided in the fourth sentence of Section 2.03 and the penultimate
sentence of Section 5.06, (c) for liabilities that may result from the
inaccuracy of any representation or warranty of State Street in the
Participation Agreement or expressly made hereunder and (d) as otherwise
expressly provided in the Operative Documents.
Section 6.02 Absence of Certain Duties. Except in accordance with
written instructions furnished pursuant to Sections 5.01, 5.02 or 6.06, and
except as provided in, and without limiting the generality of, Sections 5.02,
5.03 and 5.04, the Loan Trustee shall have no duty (a) to see to any
registration of the Aircraft or any recording or filing of this Indenture or any
other document, or to see to the maintenance of any such registration, recording
or filing, (b) to see to any insurance on the Aircraft or to effect or maintain
any such insurance, whether or not the Company is in default with respect
thereto, (c) to confirm, verify or inquire into the failure to receive any
financial statements of the Company or (d) to inspect the Aircraft at any time
or ascertain or inquire as to the performance or observance of any of the
Company's covenants hereunder with respect to the Aircraft.
Section 6.03 No Representations or Warranties as to the Documents.
Except as provided in Article V of the Participation Agreement, the Loan Trustee
shall not be deemed to have made any representation or warranty as to the
validity, legality or enforceability of any Operative Document or any other
document or instrument, or as to the correctness of any statement (other than a
statement by the Loan Trustee) contained herein or therein, except that the Loan
Trustee hereby represents and warrants that each of said specified documents to
which it is a party has been or will be duly executed and delivered by one of
its officers who is and will be duly authorized to execute and deliver such
document on its behalf.
Section 6.04 No Segregation of Monies; No Interest. Subject to
Section 5.06 hereof, all moneys received by the Loan Trustee shall, until used
or applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law, and neither the Loan Trustee nor any
agent of the Loan Trustee shall be under any liability for interest on any
moneys received by it hereunder; provided, however, that any payments received,
or applied hereunder, by the Loan Trustee shall be accounted for by the Loan
Trustee so that any portion thereof paid or applied pursuant hereto shall be
identifiable as to the source thereof.
Section 6.05 Reliance; Agents; Advice of Counsel. The Loan Trustee
shall not incur any liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper reasonably believed by it to be genuine
and reasonably believed by it to be signed by the proper party or parties. The
Loan Trustee may accept a copy of a resolution of the Board of Directors of any
party to the Participation Agreement, certified by the Secretary or an Assistant
Secretary of such party as duly adopted and in full force and effect, as
conclusive evidence that such resolution has been duly adopted and that the same
is in full force and effect. As to any fact or matter the manner of
ascertainment of which is not specifically described herein, the Loan Trustee
may for all purposes hereof rely on a certificate, signed by a duly authorized
officer of the Company, as to such fact or matter, and such certificate shall
constitute full protection to the Loan Trustee for any action taken or omitted
to be taken by it in good faith in reliance thereon. In the administration of
the trusts hereunder, the Loan Trustee may, with the consent of the Company
(such consent not to be unreasonably withheld), (a) execute any of the trusts or
powers hereof and perform its powers and duties hereunder directly or through
agents (including paying agents or registrars) or attorneys, and (b) at the
expense of the Collateral, consult with counsel, accountants and other skilled
Persons to be selected and retained by it. The Loan Trustee shall not be liable
for anything done, suffered or omitted in good faith by it in accordance with
the advice or opinion of any such counsel, accountants or other skilled Persons
acting within such counsel's, accountants' or Person's area of competence (so
long as the Loan Trustee shall have exercised reasonable care and judgment in
selecting such Persons).
Section 6.06 Instructions from Noteholders. In the administration of
the trusts created hereunder, the Loan Trustee shall have the right to seek
instructions from a Majority in Interest of Noteholders should any provision of
this Indenture appear to conflict with any other provision herein or any other
Operative Document or Pass Through Document or should the Loan Trustee's duties
or obligations hereunder be unclear, and the Loan Trustee shall incur no
liability in refraining from acting until it receives such instructions. The
Loan Trustee shall be fully protected for acting in accordance with any
instructions received under this Section 6.06.
ARTICLE VII
OPERATING COVENANTS OF THE COMPANY
Section 7.01 Liens. The Company will not directly or indirectly
create, incur, assume or suffer to exist any Lien on or with respect to the
Aircraft, its title thereto or any of its interest therein, except:
(a) the respective rights of the Loan Trustee and the Company as
provided in the Operative Documents, the Lien of this Indenture, the rights of
any Permitted Lessee under a Lease permitted hereunder and the rights of any
Person existing pursuant to the Operative Documents or the Pass Through
Documents;
(b) the rights of others under agreements or arrangements to the
extent expressly permitted by this Indenture;
(c) Loan Trustee Liens, Noteholder Liens and Other Party Liens;
(d) Liens for Taxes either not yet due or payable or being contested
in good faith by appropriate proceedings so long as such proceedings do not
involve any material risk of the sale, forfeiture or loss of the Airframe or any
Engine or the Loan Trustee's interest therein or materially impair the Lien of
this Indenture;
(e) materialmen's, mechanics', workers', repairmen's, employees' or
other like Liens arising in the ordinary course of business (including those
arising under maintenance agreements entered into in the ordinary course of
business) securing obligations that either are not yet overdue for a period of
more than 60 days or are being contested in good faith by appropriate
proceedings so long as such proceedings do not involve any material risk of the
sale, forfeiture or loss of the Airframe or any Engine or the Loan Trustee's
interest therein or materially impair the Lien of this Indenture;
(f) Liens arising out of any judgment or award, so long as such
judgment is, within 60 days after the entry thereof, discharged, vacated or
reversed, or execution thereof stayed pending appeal or other judicial review or
is discharged, vacated or reversed within 60 days after the expiration of such
stay;
(g) any other Lien with respect to which the Company provides a
bond, cash collateral or other security adequate in the reasonable opinion of
the Loan Trustee;
(h) salvage or similar rights of insurers under insurance policies
maintained by the Company; and
(i) Liens approved in writing by the Loan Trustee with the consent
of a Majority in Interest of the Noteholders.
Liens described in clauses (a) through (i) above are referred to herein as
"Permitted Liens". The Company shall promptly, at its own expense, take (or
cause to be taken) such action as may be necessary duly to discharge (by bonding
or otherwise) any Lien other than a Permitted Lien arising at any time with
respect to the Aircraft, its title thereto or any of its interest therein.
Section 7.02 Possession, Operation and Use, Maintenance and
Registration. (a) Possession. The Company shall not, without the prior written
consent of the Loan Trustee, lease or otherwise in any manner deliver, transfer
or relinquish possession of the Airframe or any Engine or install any Engine, or
permit any Engine to be installed, on any airframe other than the Airframe;
provided that the Company may without the prior written consent of the Loan
Trustee:
(i) subject the Airframe to interchange agreements or subject any
Engine to interchange or pooling agreements or arrangements, in each case
entered into by the Company in the ordinary course of its business;
provided that (A) no such agreement or arrangement contemplates or
requires the transfer of title to the Airframe and (B) if the Company's
title to any such Engine is divested under any such agreement or
arrangement, such divestiture shall be deemed to be an Event of Loss with
respect to such Engine, and the Company shall comply with Section 7.05(b)
in respect thereof;
(ii) deliver possession of the Airframe or any Engine to any Person
for testing, service, repair, maintenance, overhaul work or other similar
purposes or for alterations, modifications or additions to the Airframe or
such Engine to the extent required or permitted by the terms hereof;
(iii) transfer or permit the transfer of possession of the Airframe
or any Engine to any Government pursuant to a lease, contract or other
instrument;
(iv) subject the Airframe or any Engine to the CRAF Program or
transfer possession of the Airframe or any Engine to the United States
government in accordance with applicable laws, rulings, regulations or
orders (including, without limitation, any transfer of possession pursuant
to the CRAF Program); provided, that the Company (A) shall promptly notify
the Loan Trustee upon transferring possession of the Airframe or any
Engine pursuant to this clause (iv) and (B) in the case of a transfer of
possession pursuant to the CRAF Program, shall notify the Loan Trustee of
the name and address of the responsible Contracting Office Representative
for the Military Airlift Command of the United States Air Force or other
appropriate Person to whom notices must be given and to whom requests or
claims must be made to the extent applicable under the CRAF Program;
(v) install an Engine on an airframe owned by the Company (or any
Permitted Lessee) free and clear of all Liens, except (A) Permitted Liens
and Liens that apply only to the engines (other than Engines), appliances,
parts, instruments, appurtenances, accessories, furnishings and other
equipment (other than Parts) installed on such airframe (but not to the
airframe as an entirety) and (B) the rights of third parties under
interchange agreements or pooling or similar arrangements that would be
permitted under clause (i) above;
(vi) install an Engine on an airframe leased to the Company (or any
Permitted Lessee) or purchased or owned by the Company (or any Permitted
Lessee) subject to a conditional sale or other security agreement;
provided that: (A) such airframe is free and clear of all Liens except (1)
the rights of the parties to the lease or conditional sale or other
security agreement covering such airframe, or their successors and
assigns, and (2) Liens of the type permitted by clause (v) of this Section
7.02(a); and (B) either: (1) the Company shall have obtained from the
lessor or secured party of such airframe a written agreement (which may be
the lease, conditional sale or other security agreement covering such
airframe), in form and substance satisfactory to the Loan Trustee (it
being understood that an agreement from such lessor or secured party
substantially in the form of the final sentence of the penultimate
paragraph of this Section 7.02(a) shall be deemed to be satisfactory to
the Loan Trustee), whereby such lessor or secured party expressly agrees
that neither it nor its successors or assigns will acquire or claim any
right, title or interest in any Engine by reason of such Engine being
installed on such airframe at any time while such Engine is subject to the
Lien of this Indenture, or (2) such lease, conditional sale or other
security agreement provides that such Engine shall not become subject to
the Lien of such lease, conditional sale or other security agreement at
any time while such Engine is subject to the Lien of this Indenture,
notwithstanding the installation thereof on such airframe;
(vii) install an Engine on an airframe owned by the Company (or any
Permitted Lessee), leased to the Company (or any Permitted Lessee) or
purchased by the Company (or any Permitted Lessee) subject to a
conditional sale or other security agreement under circumstances where
neither clause (v) nor clause (vi) of this Section 7.02(a) is applicable;
provided that such installation shall be deemed an Event of Loss with
respect to such Engine, and the Company shall comply with Section 7.05(b)
in respect thereof, if such installation adversely affects the Loan
Trustee's security interest in such Engine, the Loan Trustee not intending
hereby to waive any right or interest it may have to or in such Engine
under applicable law until compliance by the Company with Section 7.05(b);
(viii) lease any Engine or the Airframe and Engines to any United
States air carrier as to which there is in force a certificate issued
pursuant to the Transportation Code (49 U.S.C. Sections 41101-41112) or
successor provision that gives like authority; and
(ix) lease any Engine or the Airframe and Engines to (A) any foreign
air carrier other than those set forth in clause (B), (B) any foreign air
carrier that is at the inception of the lease based in and a domiciliary
of a country listed in Exhibit B hereto and (C) any foreign air carrier
consented to in writing by the Loan Trustee with the consent of a Majority
in Interest of Noteholders; provided that (x) in the case of a lease to a
foreign air carrier under clause (A) above, the Loan Trustee receives at
the time of such lease (1) written confirmation from each of the Rating
Agencies that such lease would not result in a reduction of the rating for
any class of Pass Through Certificates below the then current rating for
such class of Pass Through Certificates or a withdrawal or suspension of
the rating of any class of Pass Through Certificates and (2) an opinion of
counsel to the Company (such counsel to be reasonably satisfactory to the
Loan Trustee) to the effect that there exist no possessory rights in favor
of the lessee under the laws of such lessee's country which would, upon
bankruptcy or insolvency of or other default by the Company and assuming
at such time such lessee is not insolvent or bankrupt, prevent the taking
of possession of any such Engine or the Airframe and any such Engine by
the Loan Trustee in accordance with and when permitted by the terms of
Section 4.02 upon the exercise by the Loan Trustee of its remedies under
Section 4.02, (y) in the case of a lease to any foreign air carrier (other
than a foreign air carrier principally based in Taiwan), the United States
maintains diplomatic relations with the country in which such foreign air
carrier is based at the time such lease is entered into and (z) in the
case of any lease to a foreign air carrier, such carrier is not then
subject to any bankruptcy, insolvency, liquidation, reorganization,
dissolution or similar proceeding and shall not have substantially all of
its property in the possession of any liquidator, trustee, receiver or
similar person;
provided that the rights of any lessee or other transferee who receives
possession of the Aircraft, the Airframe or any Engine by reason of a transfer
permitted by this Section 7.02(a) (other than the transfer of an Engine which is
deemed an Event of Loss) shall be subject and subordinate to, and any permitted
lease shall be made expressly subject and subordinate to, all the terms of this
Indenture, including the Loan Trustee's rights to repossess pursuant to Section
4.02 and to avoid such lease upon such repossession, and the Company shall
remain primarily liable hereunder for the performance and observance of all of
the terms and conditions of this Indenture to the same extent as if such lease
or transfer had not occurred, any such lease shall include appropriate
provisions for the maintenance and insurance of the Aircraft, the Airframe or
such Engine, and no lease or transfer of possession otherwise in compliance with
this Section shall (x) result in any registration or re-registration of the
Aircraft except to the extent permitted in Section 7.02(e) or the maintenance,
operation or use thereof that does not comply with Section 7.02(b) and (c) or
(y) permit any action not permitted to be taken by the Company with respect to
the Aircraft hereunder. The Company shall promptly notify the Loan Trustee and
the Rating Agencies of the existence of any such lease with a term in excess of
one year.
The Loan Trustee, and each Noteholder by acceptance of an Equipment
Note, agrees, for the benefit of the Company (and any Permitted Lessee) and for
the benefit of the lessor or secured party of any airframe or engine leased to
the Company (or any Permitted Lessee) or purchased or owned by the Company (or
any Permitted Lessee) subject to a conditional sale or other security agreement,
that the Loan Trustee and the Noteholders will not acquire or claim, as against
the Company (or any Permitted Lessee) or such lessor or secured party, any
right, title or interest in: (A) any engine or engines owned by the Company (or
any Permitted Lessee) or by the lessor under such lease or subject to a security
interest in favor of the secured party under such conditional sale or other
security agreement as the result of such engine or engines being installed on
the Airframe, or (B) any airframe owned by the Company (or any Permitted Lessee)
or by the lessor under such lease or subject to a security interest in favor of
the secured party under such conditional sale or other security agreement as the
result of any Engine being installed on such airframe.
The Loan Trustee acknowledges that any "wet lease" or other similar
arrangement under which the Company maintains operational control of the
Aircraft does not constitute a delivery, transfer or relinquishment of
possession for purposes of this Section 7.02(a).
(b) Operation and Use. The Company agrees that the Aircraft will not
be maintained, used or operated in violation of any law, rule or regulation of
any government of any country having jurisdiction over the Aircraft or in
violation of any airworthiness certificate, license or registration relating to
the Aircraft issued by any such government, except to the extent the Company
(or, if a Lease is then in effect, any Permitted Lessee) is contesting in good
faith the validity or application of any such law, rule or regulation in any
manner that does not involve any material risk of sale, forfeiture or loss of
the Aircraft or materially impair the Lien of this Indenture; provided, that the
Company shall not be in default under, or required to take any action set forth
in, this sentence if it is not possible for it to comply with the laws of a
jurisdiction other than the United States (or other than any jurisdiction in
which the Aircraft is then registered) because of a conflict with the applicable
laws of the United States (or such jurisdiction in which the Aircraft is then
registered). The Company will not operate the Aircraft, or permit the Aircraft
to be operated or located, (i) in any area excluded from coverage by any
insurance required by the terms of Section 7.06 or (ii) in any war zone or
recognized or, in the Company's judgment, threatened areas of hostilities unless
covered by war risk insurance in accordance with Section 7.06, unless in the
case of either clause (i) or (ii), (x) indemnification complying with Section
7.06 (a) and (b) has been provided or (y) the Aircraft is only temporarily
located in such area as a result of an isolated occurrence or isolated series of
occurrences attributable to a hijacking, medical emergency, equipment
malfunction, weather conditions, navigational error or other similar unforeseen
circumstances and the Company is using its good faith efforts to remove the
Aircraft from such area as promptly as practicable.
(c) Maintenance. The Company shall maintain, service, repair and
overhaul the Aircraft (or cause the same to be done) so as to keep the Aircraft
in good operating condition and in such condition as may be necessary to enable
the airworthiness certification of the Aircraft to be maintained in good
standing at all times (other than during temporary periods of storage, during
maintenance or modification permitted hereunder, or during periods of grounding
by applicable governmental authorities) under the Transportation Code, during
such periods in which the Aircraft is registered under the laws of the United
States, or, if the Aircraft is registered under the laws of any other
jurisdiction, the applicable laws of such jurisdiction. In any case, the
Aircraft will be maintained in accordance with the maintenance standards
required by the FAA (while operated under an FAA-approved maintenance program)
or, while operated under the maintenance program of another jurisdiction,
standards substantially equivalent to those required by the central aviation
authority of Australia, Austria, Belgium, Canada, Denmark, Finland, France,
Germany, Ireland, Italy, Japan, the Netherlands, New Zealand, Norway, Spain,
Sweden, Switzerland or the United Kingdom. The Company shall maintain or cause
to be maintained all records, logs and other documents required to be maintained
in respect of the Aircraft by appropriate authorities in the jurisdiction in
which the Aircraft is registered.
(d) Identification of Loan Trustee's Interest. The Company agrees to
affix as promptly as practicable after the Closing Date and thereafter to
maintain in the cockpit of the Aircraft, in a clearly visible location, and (if
not prevented by applicable law or regulations or by any government) on each
Engine, a nameplate bearing the inscription "MORTGAGED TO STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, AS LOAN TRUSTEE" (such
nameplate to be replaced, if necessary, with a nameplate reflecting the name of
any successor Loan Trustee).
(e) Registration. The Company shall cause the Aircraft to remain
duly registered, under the laws of the United States, in the name of the Company
except as otherwise required by the Transportation Code; provided that the Loan
Trustee shall, at the Company's expense, execute and deliver all such documents
as the Company may reasonably request for the purpose of continuing such
registration. Notwithstanding the preceding sentence, the Company, at its own
expense, may cause or allow the Aircraft to be duly registered under the laws of
any foreign jurisdiction in which a Permitted Lessee could be principally based,
in the name of the Company or of any nominee of the Company, or, if required by
applicable law, in the name of any other Person (and, following any such foreign
registration, may cause the Aircraft to be re-registered under the laws of the
United States); provided, that in the case of jurisdictions other than those
approved by the Loan Trustee with the consent of a Majority in Interest of the
Noteholders (i) if such jurisdiction is at the time of registration listed on
Exhibit B, the Loan Trustee shall have received at the time of such registration
an opinion of counsel to the Company to the effect that (A) this Indenture and
the Loan Trustee's right to repossession thereunder is valid and enforceable
under the laws of such country, (B) after giving effect to such change in
registration, the Lien of this Indenture shall continue as a valid Lien and
shall be duly perfected in the new jurisdiction of registration and that all
filing, recording or other action necessary to perfect and protect the Lien of
this Indenture has been accomplished (or if such opinion cannot be given at such
time, (x) the opinion shall detail what filing, recording or other action is
necessary and (y) the Loan Trustee shall have received a certificate from a
Responsible Officer of the Company that all possible preparations to accomplish
such filing, recording and other action shall have been done, and such filing,
recording and other action shall be accomplished and a supplemental opinion to
that effect shall be promptly delivered to the Loan Trustee subsequent to the
effective date of such change in registration), (C) the obligations of the
Company under this Indenture shall remain valid, binding and (subject to
customary bankruptcy and equitable remedies exceptions and to other exceptions
customary in foreign opinions generally) enforceable under the laws of such
jurisdiction (or the laws of the jurisdiction to which the laws of such
jurisdiction would refer as the applicable governing law) and (D) all approvals
or consents of any government in such jurisdiction having jurisdiction required
for such change in registration shall have been duly obtained and shall be in
full force and effect, and (ii) if such jurisdiction is at the time of
registration not listed on Exhibit B, the Loan Trustee shall have received (in
addition to the opinions set forth in clause (i) above) at the time of such
registration an opinion of counsel to the Company to the effect that (A) the
terms of this Indenture are legal, valid, binding and enforceable in such
jurisdiction (subject to exceptions customary in such jurisdiction, provided,
that, subject to exceptions relating to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally and
exceptions relating to general principles of equity, such counsel shall opine
that any applicable laws limiting the remedies provided in Section 4.02 do not
in the opinion of such counsel make the remedies provided in Section 4.02
inadequate for the practical realization of the rights and benefits provided
thereby), (B) that it is not necessary for the Loan Trustee to register or
qualify to do business in such jurisdiction, (C) that there is no tort liability
of the lender of an aircraft not in possession thereof under the laws of such
jurisdiction other than tort liability that might have been imposed on such
lender under the laws of the United States or any state thereof (it being
understood that such opinion shall be waived if insurance reasonably
satisfactory to the Loan Trustee is provided, at the Company's expense, to cover
such risk) and (D) (unless the Company shall have agreed to provide insurance
covering the risk of requisition of use or title of the Aircraft by the
government of such jurisdiction so long as the Aircraft is registered under the
laws of such jurisdiction) that the laws of such jurisdiction require fair
compensation by the government of such jurisdiction payable in currency freely
convertible into Dollars for the loss of use or title of the Aircraft in the
event of requisition by such government of such use or title. The Loan Trustee
will cooperate with the Company in effecting such foreign registration.
Notwithstanding the foregoing, prior to any such change in the country of
registry of the Aircraft, the following conditions shall be met (or waived as
provided in Section 6.01(b) of the Participation Agreement):
(i) no Event of Default shall have occurred and be continuing at the
effective date of the change in registration; provided, that it shall not
be necessary to comply with this condition if the change in registration
results in the registration of the Aircraft under the laws of the United
States or if a Majority in Interest of Noteholders consents to such change
in registration;
(ii) the Loan Trustee shall have received evidence of compliance
with the insurance provisions contained herein after giving effect to such
change in registration; and
(iii) the Company shall have paid or made provision reasonably
satisfactory to the Loan Trustee for the payment of all reasonable
expenses (including reasonable attorneys' fees) of the Loan Trustee and
the Noteholders in connection with such change in registration.
Section 7.03 Inspection; Financial Information. (a) Inspection. At
all reasonable times, but upon at least 15 Business Days' prior written notice
to the Company, the Loan Trustee or its authorized representative may, subject
to the other conditions of this Section 7.03(a), inspect the Aircraft and may
inspect the books and records of the Company relating to the maintenance of the
Aircraft required to be maintained by the FAA or the government of another
jurisdiction in which the Aircraft is then registered; provided, that (i) such
Loan Trustee or its representative, as the case may be, shall be fully insured
at no cost to the Company in a manner satisfactory to the Company with respect
to any risks incurred in connection with any such inspection or shall provide to
the Company a written release satisfactory to the Company with respect to such
risks, (ii) any such inspection shall be during the Company's normal business
hours and subject to the safety, security and workplace rules applicable at the
location where such inspection is conducted and any applicable governmental
rules or regulations, (iii) any such inspection of the Aircraft shall be a
visual, walk-around inspection of the interior and exterior of the Aircraft and
shall not include opening any panels, bays or the like without the Company's
express consent, which consent the Company may in its sole discretion withhold,
and (iv) no exercise of such inspection right shall interfere with the use,
operation or maintenance of the Aircraft by, or the business of, the Company and
the Company shall not be required to undertake or incur any additional
liabilities in connection therewith. All information obtained in connection with
any such inspection of the Aircraft and of such books and records shall be
Confidential Information and shall be treated by the Loan Trustee and its
representatives in accordance with the provisions of Section 10.16. Any
inspection pursuant to this Section 7.03(a) shall be at the sole risk
(including, without limitation, any risk of personal injury or death) and
expense of the Loan Trustee (or its representative) making such inspection.
Except during the continuance of an Event of Default, all inspections by the
Loan Trustee and its representatives provided for under this Section 7.03(a)
shall be limited to one inspection of any kind contemplated by this Section
7.03(a) during any consecutive twelve month period.
(b) Financial Information. So long as any of the Equipment Notes
remain unpaid, the Company agrees to furnish to the Loan Trustee and the
Liquidity Provider: (i) within 60 days after the end of each of the first three
quarterly periods in each fiscal year of the Company, either (x) a consolidated
balance sheet of the Company and its consolidated subsidiaries prepared by it as
of the close of such period, together with the related consolidated statements
of income for such period or (y) a report of the Company on Form 10-Q in respect
of such period in the form filed with the Securities and Exchange Commission and
(ii) within 120 days after the close of each fiscal year of the Company, either
(x) a consolidated balance sheet of the Company and its consolidated
subsidiaries as of the close of such fiscal year, together with the related
consolidated statements of income for such fiscal year, certified by independent
public accountants, or (y) a report of the Company on Form 10-K in respect of
such year in the form filed with the Securities and Exchange Commission. The
Company may fulfill the requirements of this Section 7.03(b) by providing the
material described above in an electronic format by electronic mail or
accessible over the Internet.
Section 7.04 Replacement and Pooling of Parts; Alterations,
Modifications and Additions; Substitution of Engines. (a) Replacement of Parts.
The Company shall promptly replace or cause to be replaced all Parts that may
from time to time be incorporated or installed in or attached to the Airframe or
any Engine and that may from time to time become worn out, lost, stolen,
destroyed, seized, confiscated, damaged beyond repair or rendered permanently
unfit for use for any reason whatsoever, except as otherwise provided in Section
7.04(c) or if the Airframe or an Engine to which a Part relates has suffered an
Event of Loss. In addition, the Company (or any Permitted Lessee) may remove in
the ordinary course of maintenance, service, repair, overhaul or testing, any
Parts, whether or not worn out, lost, stolen, destroyed, seized, confiscated,
damaged beyond repair or rendered permanently unfit for use; provided that the
Company (or any Permitted Lessee), except as otherwise provided in Section
7.04(c), will replace such Parts as promptly as practicable. All replacement
Parts shall be free and clear of all Liens (except for Permitted Liens and
except in the case of replacement property temporarily installed on an emergency
basis) and shall be in the condition and repair required to be maintained by the
terms hereof. Except as otherwise provided in Section 7.04(c), all Parts at any
time removed from the Airframe or any Engine shall remain subject to the Lien of
this Indenture no matter where located until such time as such Parts shall be
replaced by parts that have been incorporated or installed in or attached to the
Airframe or such Engine and that meet the requirements for replacement Parts
specified above. Immediately upon any replacement Part becoming incorporated or
installed in or attached to the Airframe or any Engine as above provided (except
in the case of replacement property temporarily installed on an emergency
basis), without further act, (i) the replaced Part shall thereupon be free and
clear of all rights of the Loan Trustee and of the Lien of this Indenture and
shall no longer be deemed a Part hereunder, and (ii) such replacement Part shall
become subject to the Lien of this Indenture and be deemed a Part of the
Airframe or such Engine for all purposes to the same extent as the Parts
originally incorporated or installed in or attached to the Airframe or such
Engine. Upon request of the Company from time to time, the Loan Trustee shall
execute and deliver to the Company an appropriate instrument confirming the
release of any such replaced Part from the Lien of this Indenture.
(b) Pooling of Parts. Any Part removed from the Airframe or any
Engine as provided in Section 7.04(a) may be subjected by the Company or a
Person permitted to be in possession of the Aircraft to a pooling arrangement
entered into in the ordinary course of the Company's or such Person's business;
provided that the part replacing such removed Part shall be incorporated or
installed in or attached to the Airframe or such Engine in accordance with
Section 7.04(a) as promptly as practicable after the removal of such removed
Part. In addition, any replacement Part when incorporated or installed in or
attached to the Airframe or any Engine may be owned by any third party subject
to such a pooling arrangement; provided that the Company, at its expense, as
promptly thereafter as practicable either (i) causes title to such replacement
Part to vest in the Company free and clear of all Liens (except Permitted
Liens), or (ii) replaces such replacement Part by incorporating or installing in
or attaching to the Airframe or such Engine a further replacement Part in the
manner contemplated by Section 7.04(a).
(c) Alterations, Modifications and Additions. The Company will make
(or cause to be made) such alterations and modifications in and additions to the
Airframe and the Engines as may be required from time to time to meet the
applicable requirements of the FAA or any applicable government of any other
jurisdiction in which the Aircraft may then be registered; provided, however,
that the Company (or, if a Lease is then in effect, any Permitted Lessee) may,
in good faith, contest the validity or application of any such requirement in
any manner that does not involve any material risk of sale, loss or forfeiture
of the Aircraft and does not materially adversely affect the Loan Trustee's
interest in the Aircraft. In addition, the Company (or any Permitted Lessee), at
its own expense, may from time to time add further parts or accessories and make
or cause to be made such alterations and modifications in and additions to the
Airframe or any Engine as the Company (or any Permitted Lessee) may deem
desirable in the proper conduct of its business, including, without limitation,
removal (without replacement) of Parts, provided that no such alteration,
modification or addition shall materially diminish the value or utility of the
Airframe or such Engine below its value or utility, immediately prior to such
alteration, modification or addition, assuming that the Airframe or such Engine
was then in the condition required to be maintained by the terms of this
Indenture, except that the value (but not the utility) of the Airframe or any
Engine may be reduced by the value of any such Parts that are removed that the
Company deems obsolete or no longer suitable or appropriate for use on the
Airframe or any Engine. All Parts incorporated or installed in or attached or
added to the Airframe or any Engine as the result of such alteration,
modification or addition shall, without further act, be subject to the Lien of
this Indenture. Notwithstanding the foregoing, the Company (or any Permitted
Lessee) may, at any time, remove any Part from the Airframe or any Engine if
such Part: (i) is in addition to, and not in replacement of or substitution for,
any Part originally incorporated or installed in or attached to the Airframe or
such Engine at the time of delivery thereof to the Company or any Part in
replacement of, or substitution for, any such Part, (ii) is not required to be
incorporated or installed in or attached or added to the Airframe or such Engine
pursuant to the first sentence of this Section 7.04(c) or (iii) can be removed
from the Airframe or such Engine without materially diminishing the value or
utility required to be maintained by the terms of this Indenture that the
Airframe or such Engine would have had at such time had such removal not
occurred. Upon the removal by the Company (or any Permitted Lessee) of any Part
as permitted by this Section 7.04(c), such removed Part shall, without further
act, be free and clear of all rights and interests of the Loan Trustee and the
Lien of this Indenture and shall no longer be deemed a Part hereunder. Upon
request of the Company from time to time, the Loan Trustee shall execute and
deliver to the Company an appropriate instrument confirming the release of any
such removed Part from the Lien of this Indenture.
(d) Substitution of Engines. The Company shall have the right at its
option at any time, on at least 30 days' prior written notice to the Loan
Trustee, to substitute a Replacement Engine for any Engine. In such event, and
prior to the date of such substitution, the Company shall replace such Engine by
complying with the terms of Section 7.05(b) to the same extent as if an Event of
Loss had occurred with respect to such Engine.
Section 7.05 Loss, Destruction or Requisition. (a) Event of Loss
with Respect to the Airframe. Upon the occurrence of an Event of Loss with
respect to the Airframe or the Airframe and the Engines then installed thereon,
the Company shall as soon as practicable (and, in any event, within 30 days
after an Event of Loss has occurred) notify the Loan Trustee of such Event of
Loss, and, within 90 days after such Event of Loss, the Company shall give the
Loan Trustee written notice of its election to perform one of the following
options (it being agreed that if the Company has not given such notice of
election within such 90-day period, the Company shall be deemed to have elected
to perform the option set forth in the following clause (ii)). The Company may
elect either to:
(i) substitute, on or before the Loss Payment Date (as defined
below), as replacement for the Airframe or Airframe and Engines with
respect to which an Event of Loss has occurred, a Replacement Airframe
(together with a number of Replacement Engines equal to the number of
Engines, if any, with respect to which the Event of Loss occurred), such
Replacement Airframe and Replacement Engines to be owned by the Company
free and clear of all Liens (other than Permitted Liens); provided that if
the Company shall not perform its obligation to effect such substitution
under this clause (i) on or prior to the Loss Payment Date, then the
Company shall on the Loss Payment Date prepay the Equipment Notes in full
in accordance with Section 2.10; or
(ii) redeem, on or before the Loss Payment Date, the Equipment Notes
in full in accordance with Section 2.10. The Company shall give the Loan
Trustee 20 days prior written notice if it elects to redeem the Equipment
Notes on any day prior to the Loss Payment Date.
The "Loss Payment Date" with respect to an Event of Loss means the
Business Day next succeeding the 120th day following the date of occurrence of
such Event of Loss.
If the Company elects to substitute a Replacement Airframe (or a
Replacement Airframe and one or more Replacement Engines, as the case may be)
the Company shall, at its sole expense, not later than the Loss Payment Date,
(A) cause an Indenture Supplement for such Replacement Airframe and Replacement
Engines, if any, to be delivered to the Loan Trustee for execution and, upon
such execution, to be filed for recordation pursuant to the Transportation Code
or the applicable laws of such other jurisdiction in which the Aircraft may then
be registered, (B) cause a financing statement or statements with respect to the
Replacement Airframe and Replacement Engines, if any, or other requisite
documents or instruments to be filed in such place or places as necessary in
order to perfect the Loan Trustee's interest therein in the United States, or in
any other jurisdiction in which the Aircraft may then be registered, (C) furnish
the Loan Trustee with an opinion of the Company's counsel (which may be internal
counsel of the Company) addressed to the Loan Trustee to the effect that upon
such replacement, such Replacement Airframe and Replacement Engines, if any,
will be subject to the Lien of this Indenture and addressing the matters set
forth in clauses (A) and (B), (D) furnish the Loan Trustee with a certificate of
an independent aircraft engineer or appraiser, certifying that the Replacement
Airframe and Replacement Engines, if any, have a value and utility (without
regard to hours or cycles) at least equal to the Airframe and Engines, if any,
so replaced, assuming the Airframe and such Engines were in the condition and
repair required by the terms hereof immediately prior to the occurrence of such
Event of Loss, (E) furnish the Loan Trustee with evidence of compliance with the
insurance provisions of Section 7.06 with respect to such Replacement Airframe
and Replacement Engines, if any, and (F) furnish the Loan Trustee with an
opinion of the Company's counsel (which may be internal counsel of the Company)
to the effect that the Loan Trustee will be entitled to the benefits of Section
1110 with respect to the Replacement Airframe, provided that (i) such opinion
need not be delivered to the extent that the benefits of Section 1110 were not,
by reason of a change in law or governmental or judicial interpretation thereof,
available to the Loan Trustee with respect to the Aircraft immediately prior to
such substitution and (ii) such opinion may contain qualifications and
assumptions of the tenor contained in the Section 1110 opinion of the Company's
special counsel delivered pursuant to Section 3.01 of the Participation
Agreement on the Closing Date and such other qualifications and assumptions as
shall at the time be customary in opinions rendered in comparable circumstances.
In the case of each Replacement Airframe or Replacement Airframe and
one or more Replacement Engines subjected to the Lien of this Indenture under
this Section 7.05(a), promptly upon the recordation of the Indenture Supplement
covering such Replacement Airframe and Replacement Engines, if any, pursuant to
the Transportation Code (or pursuant to the applicable law of such other
jurisdiction in which such Replacement Airframe and Replacement Engines, if any,
are registered), the Company will cause to be delivered to the Loan Trustee a
favorable opinion of FAA counsel selected by the Company if at the time of the
Event of Loss the Aircraft was registered under the laws of the United States
(or, if at the time of the Event of Loss the Aircraft was registered under the
laws of another jurisdiction, counsel qualified to opine on matters of
registration in such jurisdiction selected by the Company, which counsel shall
be reasonably satisfactory to the Loan Trustee) addressed to the Loan Trustee as
to the due registration of such Replacement Aircraft and the due recordation of
such Indenture Supplement or such other requisite documents or instruments and
the validity and perfection of the security interest in the Replacement Aircraft
granted to the Loan Trustee under this Indenture.
For all purposes hereof, upon the attachment of the Lien of this
Indenture thereto, the Replacement Aircraft and Replacement Engines, if any,
shall become part of the Collateral, the Replacement Airframe shall be deemed an
"Airframe" as defined herein, and each such Replacement Engine shall be deemed
an "Engine" as defined herein. Upon compliance with clauses (A) through (F) of
the third paragraph of this Section 7.05(a), the Loan Trustee shall execute and
deliver to the Company an appropriate instrument releasing such replaced
Airframe and Engines (if any) installed thereon at the time such Event of Loss
occurred, all proceeds (including, without limitation, insurance proceeds), the
Warranty Rights in respect of such replaced Airframe and Engines (if any) and
all rights relating to the foregoing, from the Lien of this Indenture and
assigning to the Company all claims against third Persons for damage to or loss
of the Airframe and Engines arising from the Event of Loss.
If, after an Event of Loss, the Company performs the option set
forth in clause (ii) of the first paragraph of this Section 7.05(a), the Loan
Trustee shall execute and deliver to the Company an appropriate instrument
releasing the Aircraft, all proceeds (including, without limitation, insurance
proceeds), the Warranty Rights in respect of the Aircraft and all rights
relating to the foregoing from the Lien of this Indenture and assigning to the
Company all claims against third Persons for damage to or loss of the Aircraft
arising from the Event of Loss.
(b) Event of Loss with Respect to an Engine. Upon the occurrence of
an Event of Loss with respect to an Engine under circumstances in which there
has not occurred an Event of Loss with respect to the Airframe, the Company
shall give the Loan Trustee prompt written notice thereof and shall, within 120
days after the occurrence of such Event of Loss, cause to be subjected to the
Lien of this Indenture, as replacement for the Engine with respect to which such
Event of Loss occurred, a Replacement Engine free and clear of all Liens (other
than Permitted Liens).
Prior to or at the time of any replacement under this Section
7.05(b), the Company will (i) cause an Indenture Supplement covering such
Replacement Engine to be delivered to the Loan Trustee for execution and, upon
such execution, to be filed for recordation pursuant to the Transportation Code
or the applicable laws of any other jurisdiction in which the Aircraft may be
registered, (ii) cause a financing statement or statements with respect to such
Replacement Engine or other requisite documents or instruments to be filed in
such place or places as necessary in order to perfect the Loan Trustee's
interest therein in the United States, or in such other jurisdiction in which
the Engine may then be registered, (iii) furnish the Loan Trustee with an
opinion of the Company's counsel (which may be internal counsel to the Company)
addressed to the Loan Trustee to the effect that, upon such replacement, the
Replacement Engine will be subject to the Lien of this Indenture, (iv) furnish
the Loan Trustee with a certificate of an aircraft engineer or appraiser (who
may be an employee of the Company) certifying that such Replacement Engine has a
value and utility (without regard to hours or cycles) at least equal to the
Engine so replaced assuming such Engine was in the condition and repair required
by the terms hereof immediately prior to the occurrence of such Event of Loss
and (v) furnish the Loan Trustee with evidence of compliance with the insurance
provisions of Section 7.06 with respect to such Replacement Engine. In the case
of each Replacement Engine subjected to the Lien of this Indenture under this
Section 7.05(b), promptly upon the recordation of the Indenture Supplement
covering such Replacement Engine pursuant to the Transportation Code (or
pursuant to the applicable law of such other jurisdiction in which the Aircraft
is registered), the Company will cause to be delivered to the Loan Trustee an
opinion of FAA counsel selected by the Company if at the time of the Event of
Loss the Aircraft was registered under the laws of the United States (or, if at
the time of the Event of Loss the Aircraft was registered under the laws of
another jurisdiction, counsel qualified to opine on matters of registration in
such jurisdiction selected by the Company, which counsel shall be reasonably
satisfactory to the Loan Trustee) addressed to the Loan Trustee as to the due
recordation of such Indenture Supplement or such other requisite documents or
instruments and the validity and perfection of the security interest in the
Replacement Engine granted to the Loan Trustee under this Indenture. For all
purposes hereof, upon the attachment of the Lien of this Indenture thereto, the
Replacement Engine shall become part of the Collateral and shall be deemed an
"Engine" as defined herein. Upon compliance with clauses (i) through (v) of the
first sentence of this paragraph, the Loan Trustee shall execute and deliver to
the Company an appropriate instrument releasing such replaced Engine, any
proceeds (including, without limitation, insurance proceeds), the Warranty
Rights in respect of such replaced Engine and all rights relating to any of the
foregoing from the Lien of this Indenture and assigning to the Company all
claims against third Persons for damage to or loss of such Engine arising from
the Event of Loss.
(c) Application of Payments for Event of Loss from Requisition of
Title or Use. Any payments other than insurance proceeds (the application of
which is provided for in Section 7.06) received at any time by the Company or by
the Loan Trustee from any government or other Person with respect to an Event of
Loss to the Airframe or any Engine, will be applied as follows:
(i) if such payments are received with respect to the Airframe or
the Airframe and any Engines installed on the Airframe that has been or is
being replaced by the Company pursuant to Section 7.05(a), such payments
shall be paid over to, or retained by, the Loan Trustee and upon
completion of such replacement shall be paid over to, or retained by, the
Company;
(ii) if such payments are received with respect to the Airframe or
the Airframe and any Engines installed on the Airframe that has not been
and will not be replaced pursuant to Section 7.05(a), so much of such
payments remaining after reimbursement of the Loan Trustee for costs and
expenses that shall not exceed the amounts required to be paid to the
Noteholders pursuant to Section 2.10 shall be applied in reduction of the
Company's obligation to pay such amounts, if not already paid by the
Company, or, if already paid by the Company, shall be applied to reimburse
the Company for its payment of such amount and the balance, if any, of
such payment remaining thereafter will be paid over to, or retained by,
the Company; and
(iii) if such payments are received with respect to an Engine with
regard to which an Event of Loss has occurred as contemplated by Section
7.05(b), so much of such payments remaining after reimbursement of the
Loan Trustee for costs and expenses shall be paid over to, or retained by,
the Company; provided that the Company has fully performed its obligations
under Section 7.05(b) with respect to the Event of Loss for which such
payments are made.
(d) Requisition for Use by the Government of the Airframe and the
Engines Installed Thereon. In the event of the requisition for use by any
government (it being acknowledged that the use of the Airframe or any Engine
pursuant to the CRAF Program does not constitute such a requisition) of the
Airframe and the Engines or engines installed on the Airframe that does not
constitute an Event of Loss, all of the Company's rights and obligations under
this Indenture with respect to the Airframe and such Engines shall continue to
the same extent as if such requisition had not occurred; provided that,
notwithstanding the foregoing, the Company's obligations other than payment
obligations shall only continue to the extent feasible. All payments received by
the Company or the Loan Trustee from such government for such use of the
Airframe and Engines or engines shall be paid over to, or retained by, the
Company.
(e) Requisition for Use by the Government of an Engine not Installed
on the Airframe. In the event of the requisition for use by any government of
any Engine not then installed on the Airframe for a period in excess of sixty
(60) days, the Company will replace such Engine by complying with the terms of
Section 7.05(b) to the same extent as if an Event of Loss had occurred with
respect to such Engine. Upon such replacement, any payments received by the
Company or the Loan Trustee from such government with respect to such
requisition shall be paid over to, or retained by, the Company.
(f) Application of Payments During Existence of Event of Default.
Any amount referred to in Section 7.05 that is payable to or retainable by the
Company shall not be paid to or retained by the Company if at the time of such
payment or retention an Event of Default or Payment Default shall have occurred
and be continuing, but shall be held by or paid over to the Loan Trustee as
security for the obligations of the Company under this Indenture. At such time
as there shall not be continuing any such Event of Default or Payment Default,
such amount shall be paid to the Company.
Section 7.06 Insurance. (a) Aircraft Liability Insurance. (i) Except
as provided in clause (ii) of this subsection (a), and subject to the rights of
the Company to establish and maintain self-insurance in the manner and to the
extent specified in Section 7.06(c), the Company will carry, or cause to be
carried, at no expense to the Loan Trustee, aircraft liability insurance
(including, but not limited to, bodily injury, personal injury and property
damage liability, exclusive of manufacturer's product liability insurance) and
contractual liability insurance with respect to the Aircraft (A) in amounts that
are not less than the aircraft liability insurance applicable to similar
aircraft and engines in the Company's fleet on which the Company carries
insurance; provided that such liability insurance shall not be less than the
amount certified in the insurance report delivered to the Loan Trustee on the
Closing Date, (B) of the type covering the same risks as from time to time
applicable to aircraft operated by the Company (or, if a Lease is then in
effect, by the Permitted Lessee) of the same type as the Aircraft, and (C) that
is maintained in effect with insurers of recognized responsibility. Any policies
of insurance carried in accordance with this Section 7.06(a) and any policies
taken out in substitution or replacement for any of such policies shall: (A)
name the Loan Trustee, the Subordination Agent, each Pass Through Trustee and
the Liquidity Provider as their Interests (as defined below in this Section
7.06) may appear, as additional insured (the "Additional Insureds"), (B) subject
to the condition of clause (C) below, provide that, in respect of the interest
of the Additional Insureds in such policies, the insurance shall not be
invalidated by any action or inaction of the Company and shall insure the
Additional Insureds' Interests as they appear, regardless of any breach or
violation of any warranty, declaration or condition contained in such policies
by the Company, (C) provide that, if such insurance is canceled for any reason
whatever, or if any change is made in the policy that materially reduces the
amount of insurance or the coverage certified in the insurance report delivered
on the Closing Date to the Loan Trustee and the Liquidity Provider, or if such
insurance is allowed to lapse for nonpayment of premium, such cancellation,
change or lapse shall not be effective as to any Additional Insured for 30 days
(seven days, or such other period as is then generally available in the
industry, in the case of any war risk or allied perils coverage) after receipt
by such Additional Insured of written notice from such insurers of such
cancellation, change or lapse, (D) provide that the Additional Insureds shall
have no obligation or liability for premiums, commissions, assessments or calls
in connection with such insurance, (E) provide that the insurers shall waive any
rights of (1) set-off, counterclaim or any other deduction, whether by
attachment or otherwise, in respect of any liability of the Additional Insureds
to the extent of any moneys due to the Additional Insureds and (2) subrogation
against the Additional Insureds to the extent that the Company has waived its
rights by its agreements to indemnify the Additional Insureds pursuant to the
Operative Documents, (F) be primary without right of contribution from any other
insurance that may be carried by each Additional Insured with respect to its
Interests as such in the Aircraft and (G) expressly provide that all of the
provisions thereof, except the limits of liability, shall operate in the same
manner as if there were a separate policy covering each insured. "Interests" as
used in this Section 7.06(a) and in Section 7.06(b) with respect to any Person
means the interests of such Person in the transactions contemplated by the
Operative Documents. In the case of a lease or contract with any government in
respect of the Aircraft or any Engine, or in the case of any requisition for use
of the Aircraft or any Engine by any government, a valid agreement by such
government to indemnify the Company, or an insurance policy issued by such
government, against any of the risks that the Company is required hereunder to
insure against shall be considered adequate insurance for purposes of this
Section 7.06(a) to the extent of the risks (and in the amounts) that are the
subject of such indemnification or insurance.
(ii) During any period that the Airframe or an Engine, as the case
may be, is on the ground and not being flown, the Company may carry or cause to
be carried as to such non-flown Airframe or Engine, in lieu of the insurance
required by clause (i) above, and subject to self-insurance to the extent
permitted by Subsection 7.06(c), insurance otherwise conforming with the
provisions of said clause (i) except that: (A) the amounts of coverage shall not
be required to exceed the amounts of airline liability insurance from time to
time applicable to airframes or engines owned or leased by the Company (or, if a
Lease is then in effect, by the Permitted Lessee) of the same type as such
non-flown Airframe or Engine and that are on the ground and not being flown and
(B) the scope of the risks covered and the type of insurance shall be the same
as from time to time shall be applicable to airframes or engines operated by the
Company (or, if a Lease is then in effect, by the Permitted Lessee) of the same
type as such non-flown Airframe or Engine and that are on the ground and not
being flown.
(b) Insurance Against Loss or Damage to Aircraft. (i) Except as
provided in clause (ii) of this subsection (b), and subject to the rights of the
Company to establish and maintain self-insurance in the manner and to the extent
specified in Section 7.06(c), the Company shall maintain, or cause to be
maintained, in effect with insurers of recognized responsibility, at no expense
to the Loan Trustee, all-risk aircraft hull insurance covering the Aircraft and
all-risk coverage with respect to any Engines or Parts while removed from the
Aircraft (including, without limitation, war risk insurance if and to the extent
the same is maintained by the Company (or, if a Lease is then in effect, by the
Permitted Lessee) with respect to other similar aircraft operated by the Company
or such Permitted Lessee, as the case may be, on the same routes) that is of the
type as from time to time applicable to the aircraft operated by the Company
(or, if a Lease is then in effect, by the Permitted Lessee) of the same type as
the Aircraft; provided that (A) such insurance (including the permitted
self-insurance) shall at all times while the Aircraft is subject to this
Indenture be for an amount not less than 110% of the aggregate principal amount
of the Equipment Notes outstanding from time to time, (B) such insurance need
not cover an Engine while attached to an airframe not owned, leased or operated
by the Company, and (C) such insurance covering Engines and Parts removed from
an Airframe or an airframe or (in the case of Parts) an Engine need be obtained
only to the extent available at reasonable cost (as reasonably determined by the
Company). Any policies carried in accordance with this Section 7.06(b) and any
policies taken out in substitution or replacement for any such policies shall:
(A) provide that any insurance proceeds up to an amount equal to the outstanding
principal amount of the Equipment Notes, together with accrued but unpaid
interest thereon, plus an amount equal to the interest that would accrue on the
outstanding principal amount of the Equipment Notes at the Debt Rate in effect
on the date of payment of such insurance proceeds to the Loan Trustee (as
provided for in this sentence) during the period commencing on the day following
the date of such payment to the Loan Trustee and ending on the Loss Payment Date
(the sum of such three amounts being the "Loan Amount"), payable for any loss or
damage constituting an Event of Loss with respect to the Aircraft and any
insurance proceeds in excess of the amount set forth on Exhibit C up to the
amount of the Loan Amount for any loss or damage to the Aircraft (or Engines)
not constituting an Event of Loss with respect to the Aircraft (or Engines),
shall be paid to the Loan Trustee as long as the Indenture shall not have been
discharged, and that all other amounts shall be payable to the Company, unless
the insurer shall have received notice that an Event of Default exists, in which
case all insurance proceeds for any loss or damage to the Aircraft (or Engines)
up to the Loan Amount shall be payable to the Loan Trustee, (B) subject to the
conditions of clause (C) below, provide that, in respect of the interests of the
Additional Insureds in such policies, the insurance shall not be invalidated by
any action or inaction of the Company and shall insure the Additional Insureds'
Interests as they appear, regardless of any breach or violation by the Company
of any warranty, declaration or condition contained in such policies, (C)
provide that if such insurance is canceled for any reason whatsoever, or if any
change is made in the insurance that materially reduces the coverage (not
including the amount) certified in the insurance report delivered on the Closing
Date to the Loan Trustee and the Liquidity Provider or if such insurance is
allowed to lapse for nonpayment of premium, such cancellation, change or lapse
shall not be effective as to the Additional Insureds for 30 days (seven days, or
such other period as is customarily available in the industry, in the case of
war risk or allied perils coverage) after receipt by the Additional Insureds of
written notice from such insurers of such cancellation, change or lapse, (D)
provide that the Additional Insureds shall have no obligation or liability for
premiums, commissions, assessments or calls in connection with such insurance,
(E) provide that the insurers shall waive rights of (1) setoff, counterclaim or
any other deduction, whether by attachment or otherwise, in respect of any
liability of the Additional Insureds to the extent of any moneys due to the
Additional Insureds and (2) subrogation against the Additional Insureds to the
extent the Company has waived its rights by its agreement to indemnify the
Additional Insureds pursuant to the Operative Documents and (F) be primary
without right of contribution from any other insurance that may be carried by
any Additional Insured with respect to its Interests as such in the Aircraft. In
the case of a lease or contract with any government in respect of the Aircraft
or any Engine, or in the case of any requisition for use of the Aircraft or any
Engine by any government, a valid agreement by such government to indemnify the
Company, or an insurance policy issued by such government, against any risks
which the Company is required hereunder to insure against shall be considered
adequate insurance for purposes of this Section 7.06(b) to the extent of the
risks (and in the amounts) that are the subject of such indemnification or
insurance.
(ii) During any period that the Airframe or an Engine is on the
ground and not being flown, the Company may carry or cause to be carried as to
such non-flown Airframe or Engine, in lieu of the insurance required by clause
(i) above, and subject to self-insurance to the extent permitted by Subsection
7.06(c), insurance otherwise conforming with the provisions of said clause (i)
except that the scope of the risks covered and the type of insurance shall be
the same as from time to time applicable to airframes and engines operated by
the Company (or, if a Lease is then in effect, by the Permitted Lessee) of the
same type as such non-flown Airframe or Engine and that are on the ground and
not being flown; provided that, subject to self-insurance to the extent
permitted by Subsection 7.06(c), the Company shall maintain or cause to be
maintained insurance against risk of loss or damage to such non-flown Airframe
or Engine in an amount at least equal to 110% of the aggregate outstanding
principal amount of the Equipment Notes during such period that such Airframe or
Engine is on the ground and not being flown.
(c) Self-Insurance. The Company may from time-to-time self-insure,
by way of deductible, self-insured retention, premium adjustment or franchise or
otherwise (including, with respect to insurance maintained pursuant to
Subsections 7.06(a) or 7.06(b), insuring for a maximum amount that is less than
the amounts set forth in Sections 7.06(a) and 7.06(b)), the risks required to be
insured against pursuant to Sections 7.06(a) and 7.06(b), but in no case shall
the self-insurance with respect to all of the aircraft and engines in the
Company's fleet (including, without limitation, the Aircraft) exceed for any
12-month policy year 1% of the average aggregate insurable value (for the
preceding policy year) of all aircraft (including, without limitation, the
Aircraft) on which the Company carries insurance, unless an insurance broker of
national standing certifies that the standard among other major United States
airlines is a higher level of self-insurance, in which case the Company may
self-insure the Aircraft to such higher level. In addition to the foregoing
right to self-insure, the Company may self-insure to the extent of (1) any
deductible per occurrence that, in the case of the Aircraft, is not in excess of
the amount customarily allowed as a deductible in the industry or is required to
facilitate claims handling or (2) any applicable mandatory minimum per aircraft
(or if applicable per annum or other period) hull or liability insurance
deductibles imposed by the aircraft or hull liability insurers.
(d) Application of Insurance Payments. All losses will be adjusted
by the Company with the insurers. As between the Loan Trustee and the Company it
is agreed that all insurance payments received under policies required to be
maintained by the Company hereunder, exclusive of any payments received in
excess of the Loan Amount for the Aircraft from such policies, as the result of
the occurrence of an Event of Loss with respect to the Airframe or an Engine
will be applied as follows:
(i) if such payments are received with respect to the Airframe or
the Airframe and any Engines installed on the Airframe that has been or is
being replaced by the Company pursuant to Section 7.05(a), such payments
shall be paid over to, or retained by, the Loan Trustee and upon
completion of such replacement shall be paid over to, or retained by, the
Company;
(ii) if such payments are received with respect to the Airframe or
the Airframe and any Engines installed on the Airframe that has not been
and will not be replaced as contemplated by Section 7.05(a), so much of
such payments remaining after reimbursement of the Loan Trustee for its
costs and expenses as do not exceed the amounts required to be paid by the
Company pursuant to Section 2.10 shall be applied in reduction of the
Company's obligation to pay such amounts, if not already paid by the
Company, or, if already paid by the Company, shall be applied to reimburse
the Company for its payment of such amounts and the balance, if any, of
such payment remaining thereafter will be paid over to, or retained by,
the Company; and
(iii) if such payments are received with respect to an Engine, so
much of such payments remaining after reimbursement of the Loan Trustee
for its costs and expenses shall be paid over to, or retained by, the
Company; provided that the Company shall have fully performed its
obligations under Section 7.05(b) with respect to the Event of Loss for
which such payments are made.
In all events, the insurance payment of any property damage loss
received under policies maintained by the Company in excess of the Loan Amount
for the Aircraft shall be paid to the Company.
The insurance payments for any loss or damage to the Airframe or an
Engine not constituting an Event of Loss with respect to the Airframe or such
Engine will be applied in payment (or to reimburse the Company) for repairs or
for replacement property in accordance with the terms of Sections 7.02 and 7.04,
and any balance remaining after compliance with such Sections with respect to
such loss or damage shall be paid to the Company. Any amount referred to in the
preceding sentence or in clause (i), (ii) or (iii) of the first paragraph of
this Section 7.06(d) that is payable to the Company shall not be paid to the
Company (or, if it has been previously paid directly to the Company, shall not
be retained by the Company) if at the time of such payment an Event of Default
or Payment Default shall have occurred and be continuing, but shall be paid to
and held by the Loan Trustee as security for the obligations of the Company
under this Indenture, and at such time as there shall not be continuing any such
Event of Default or Payment Default, such amount shall, to the extent not
theretofore applied as provided herein, be paid to the Company.
(e) Reports, Etc. On or before the Closing Date and annually upon
renewal of the Company's insurance coverage, the Company will furnish to the
Loan Trustee and the Liquidity Provider a report signed by a firm of independent
aircraft insurance brokers appointed by the Company (which brokers may be in the
regular employ of the Company), stating the opinion of such firm that the
insurance then carried and maintained on the Aircraft complies with the terms
hereof; provided that all information contained in such report shall be
Confidential Information and shall be treated by the Loan Trustee and the
Liquidity Provider and each of their affiliates and officers, directors, agents
and employees in accordance with the provisions of Section 10.16. The Company
will cause such firm to notify the Loan Trustee and the Liquidity Provider of
any act or omission on the part of the Company of which such firm has knowledge
that might invalidate or render unenforceable, in whole or in part, any
insurance on the Aircraft. The Company will also cause such firm to notify the
Loan Trustee and the Liquidity Provider as promptly as practicable after such
firm acquires knowledge that an interruption of any insurance carried and
maintained on the Aircraft pursuant to this Section 7.06 will occur. Such
information may only be provided to other Persons in accordance with Section
10.16.
(f) Salvage Rights; Other. All salvage rights to the Airframe and
each Engine shall remain with the Company's insurers at all times, and any
insurance policies of the Loan Trustee insuring the Airframe or any Engine shall
provide for a release to the Company of any and all salvage rights in and to the
Airframe or any Engine. Neither the Loan Trustee nor any Noteholder may,
directly or indirectly, obtain insurance for its own account with respect to the
Airframe or any Engine if such insurance would limit or otherwise adversely
affect the coverage or amounts payable under, or increase the premiums for, any
insurance required to be maintained pursuant to this Section 7.06 or any other
insurance maintained with respect to the Aircraft or any other aircraft in the
Company's fleet.
ARTICLE VIII
SUCCESSOR AND ADDITIONAL TRUSTEES
Section 8.01 Resignation or Removal; Appointment of Successor. (a)
The resignation or removal of the Loan Trustee and the appointment of a
successor Loan Trustee shall become effective only upon the successor Loan
Trustee's acceptance of appointment as provided in this Section 8.01. The Loan
Trustee or any successor thereto must resign if at any time it ceases to be
eligible in accordance with the provisions of Section 8.01(c) and may resign at
any time without cause by giving at least 60 days' prior written notice to the
Company and each Noteholder. In addition, either the Company (so long as no
Event of Default or Payment Default shall have occurred and be continuing) or a
Majority in Interest of Noteholders (but only with the consent of the Company so
long as no Event of Default or Payment Default shall have occurred and be
continuing), may at any time remove the Loan Trustee without cause by an
instrument in writing delivered to the Loan Trustee and each Noteholder, and, in
case of a removal by a Majority in Interest of Noteholders, to the Company. In
the case of the resignation or removal of the Loan Trustee, the Company shall
promptly appoint a successor Loan Trustee. If a successor Loan Trustee has not
been appointed within 60 days after such notice of resignation or removal, the
Loan Trustee, the Company or any Noteholder may apply to any court of competent
jurisdiction to appoint a successor Loan Trustee to act until such time, if any,
as a successor is appointed as above provided. The successor Loan Trustee so
appointed by such court shall immediately and without further act be superseded
by any successor Loan Trustee appointed as above provided.
(b) Any successor Loan Trustee, however appointed, shall execute and
deliver to the predecessor Loan Trustee and the Company an instrument accepting
such appointment and assuming the obligations of the Loan Trustee arising from
and after the time of such appointment, and thereupon such successor Loan
Trustee, without further act, shall become vested with all the estates,
properties, rights, powers and duties of the predecessor Loan Trustee in the
trust hereunder applicable to it with like effect as if originally named the
Loan Trustee herein; but nevertheless upon the written request of such successor
Loan Trustee, such predecessor Loan Trustee shall execute and deliver an
instrument transferring to such successor Loan Trustee all the estates,
properties, rights and powers of such predecessor Loan Trustee, and such
predecessor Loan Trustee shall duly assign, transfer, deliver and pay over to
such successor Loan Trustee all monies or other property and all other books and
records, or true, correct and complete copies thereof, then held by such
predecessor Loan Trustee.
(c) This Indenture shall at all times have a Loan Trustee, however
appointed, that is a Citizen of the United States (without the use of a voting
trust) and a bank or trust company having a combined capital and surplus of at
least $100,000,000 (or a combined capital and surplus in excess of $5,000,000
and the obligations of which, whether now in existence or hereafter incurred,
are fully and unconditionally guaranteed by a corporation organized and doing
business under the laws of the United States or any state or territory thereof
or the District of Columbia and having a combined capital and surplus of at
least $100,000,000) or a corporation with a net worth of at least $100,000,000,
if there be such an institution willing, able and legally qualified to perform
the duties of the Loan Trustee upon reasonable or customary terms. If such bank,
trust company or 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 8.01(c) the combined capital and surplus of such bank, trust
company or 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 Loan Trustee ceases to be eligible in accordance with the provisions of
this Section 8.01(c), the Loan Trustee shall resign immediately in the manner
and with the effect specified in Section 8.01(a).
(d) Any corporation into which the Loan 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 Loan Trustee is a
party, or any corporation to which substantially all the corporate trust
business of the Loan Trustee may be transferred, shall, subject to the terms of
Section 8.01(c), be a successor Loan Trustee under this Indenture without
further act.
Section 8.02 Appointment of Additional and Separate Trustees. (a)
Whenever (i) the Loan Trustee deems it necessary or desirable in order to
conform to any law of any jurisdiction in which all or any part of the
Collateral is situated or to make any claim or bring any suit with respect to or
in connection with the Collateral, any Operative Document or any of the
transactions contemplated by the Operative Documents, (ii) the Loan Trustee
shall be advised by counsel satisfactory to it that it is necessary or prudent
in the interests of the Noteholders (and the Loan Trustee shall so advise the
Company) or (iii) the Loan Trustee has been requested to do so by a Majority in
Interest of Noteholders, then in any such case, the Loan Trustee and, upon the
written request of the Loan Trustee, the Company, shall execute and deliver an
indenture supplemental hereto and such other instruments as from time to time
are necessary or advisable either (1) to constitute one or more banks or trust
companies or corporations meeting the requirements of Section 8.01(c) and
approved by the Loan Trustee, either to act jointly with the Loan Trustee as
additional trustee or trustees of all or any part of the Collateral or to act as
separate trustee or trustees of all or any part of the Collateral, in each case
with such rights, powers, duties and obligations consistent with this Indenture
as is provided in such supplemental indenture or other instruments as the Loan
Trustee or a Majority in Interest of Noteholders deems necessary or advisable,
or (2) to clarify, add to or subtract from the rights, powers, duties and
obligations theretofore granted any such additional or separate trustee, subject
in each case to the remaining provisions of this Section 8.02. If no Event of
Default has occurred and is continuing, no additional or supplemental trustee
shall be appointed without the Company's consent. If an Event of Default shall
have occurred and be continuing, the Loan Trustee may act under the foregoing
provisions of this Section 8.02(a) without the concurrence of the Company, and
the Company hereby irrevocably appoints (which appointment is coupled with an
interest) the Loan Trustee as its agent and attorney-in-fact to act for it under
the foregoing provisions of this Section 8.02(a). The Loan Trustee may, in such
capacity, execute, deliver and perform any such supplemental indenture, or any
such instrument, as may be required for the appointment of any such additional
or separate trustee or for the clarification of, addition to or subtraction from
the rights, powers, duties or obligations theretofore granted to any such
additional or separate trustee, subject in each case to the remaining provisions
of this Section 8.02. In case any additional or separate trustee appointed under
this Section 8.02(a) becomes incapable of acting, resigns or is removed, all the
assets, property, rights, powers, trusts, duties and obligations of such
additional or separate trustee shall revert to the Loan Trustee until a
successor additional or separate trustee is appointed as provided in this
Section 8.02(a).
(b) No additional or separate trustee shall be entitled to exercise
any of the rights, powers, duties and obligations conferred upon the Loan
Trustee in respect of the custody, investment and payment of monies and all
monies received by any such additional or separate trustee from or constituting
part of the Collateral or otherwise payable under any Operative Documents to the
Loan Trustee shall be promptly paid over by it to the Loan Trustee. All other
rights, powers, duties and obligations conferred or imposed upon any additional
or separate trustee shall be exercised or performed by the Loan Trustee and such
additional or separate trustee jointly except to the extent that applicable law
of any jurisdiction in which any particular act is to be performed renders the
Loan Trustee incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations (including the holding of title to all or
part of the Collateral in any such jurisdiction) shall be exercised and
performed by such additional or separate trustee. No additional or separate
trustee shall take any discretionary action except on the instructions of the
Loan Trustee or a Majority in Interest of Noteholders. No trustee hereunder
shall be personally liable by reason of any act or omission of any other trustee
hereunder, except that the Loan Trustee shall be liable for the consequences of
its lack of reasonable care in selecting, and the Loan Trustee's own actions in
acting with, any additional or separate trustee. Each additional or separate
trustee appointed pursuant to this Section 8.02 shall be subject to, and shall
have the benefit of Articles IV, V, VI, VIII, IX and X hereof insofar as they
apply to the Loan Trustee. The powers of any additional or separate trustee
appointed pursuant to this Section 8.02 shall not in any case exceed those of
the Loan Trustee.
(c) If at any time the Loan Trustee deems it no longer necessary or
desirable or in the event that the Loan Trustee has been requested to do so in
writing by a Majority in Interest of Noteholders, the Loan Trustee and, upon the
written request of the Loan Trustee, the Company, shall execute and deliver an
indenture supplemental hereto and all other instruments and agreements necessary
or proper to remove any additional or separate trustee. The Loan Trustee may act
on behalf of the Company under this Section 8.02(c) when and to the extent it
could so act under Section 8.02(a) hereof. In any case, the Company may remove
an additional or separate trustee in the manner set forth in Section 8.01.
ARTICLE IX
AMENDMENTS AND WAIVERS
Section 9.01 Amendments to this Indenture without Consent of
Holders. At any time after the date hereof, the Company and the Loan Trustee may
enter into one or more agreements supplemental hereto without notice to or
consent of any Noteholder for any of the following purposes: (i) to evidence the
succession of another Person to the Company and the assumption by any such
successor of the covenants of the Company contained in any Operative Documents
pursuant to Section 6.02(e) of the Participation Agreement; (ii) to cure any
defect or inconsistency herein or in the Equipment Notes; (iii) to cure any
ambiguity or correct any mistake; (iv) to evidence the succession of a new
trustee hereunder pursuant hereto or the removal of the trustee hereunder or to
provide for or facilitate the appointment of an additional or separate trustee
pursuant to Section 8.02 hereof; (v) to convey, transfer, assign, mortgage or
pledge any property to or with the Loan Trustee; (vi) to make any other
provisions or amendments with respect to matters or questions arising hereunder
or under the Equipment Notes, or to amend, modify or supplement any provision
hereof or thereof, so long as such action shall not adversely affect the
interests of the Noteholders or the Liquidity Provider; (vii) to correct or
amplify the description of any property at any time subject to the Lien of this
Indenture, or better to assure, convey and confirm unto the Loan Trustee any
property subject or required to be subject to the Lien of this Indenture or to
subject to the Lien of this Indenture the Airframe or Engines or any Replacement
Airframe or Replacement Engine; (viii) to add to the covenants of the Company
for the benefit of the Noteholders, or to surrender any rights or power herein
conferred upon the Company; (ix) to add to the rights of the Noteholders; (x) to
include on the Equipment Notes any legend required by law or as otherwise
necessary or advisable and (xi) to comply with any applicable requirements of
the Trust Indenture Act of 1939, as amended, or any other requirements of
applicable law or of any regulatory body.
Section 9.02 Amendments to this Indenture with Consent of Holders.
(a) With the written consent of a Majority in Interest of Noteholders, the
Company may, and the Loan Trustee shall, subject to Section 9.06, at any time
and from time to time, enter into such supplemental agreements to add any
provisions to or to change or eliminate any provisions of this Indenture or of
any such supplemental agreements or to modify in any manner the rights and
obligations of the Company, the Loan Trustee and of the Noteholders under this
Indenture; provided, however, that without the consent of each Noteholder
affected thereby, an amendment under this Section 9.02 may not:
(1) reduce the principal amount of, Make-Whole Amount, if any, or
interest on, any Equipment Note;
(2) change the date on which any principal amount of, Make-Whole
Amount, if any, or interest on any Equipment Note, is due or payable;
(3) create any Lien with respect to the Collateral prior to or pari
passu with the Lien thereon under this Indenture except such as are
permitted by this Indenture, or deprive any Noteholder of the benefit of
the Lien on the Collateral created by this Indenture;
(4) reduce the percentage of the outstanding principal amount of the
Equipment Notes the consent of whose holders is required for any such
supplemental agreement, or the consent of whose holders is required for
any waiver of compliance with certain provisions of this Indenture or of
certain defaults hereunder or their consequences provided for in this
Indenture; or
(5) make any change in Section 4.05 or this Section 9.02, except to
provide that certain other provisions of this Indenture cannot be modified
or waived without the consent of each Noteholder affected thereby.
(b) It is not necessary under this Section 9.02 for the Noteholders
to consent to the particular form of any proposed supplemental agreement, but it
is sufficient if they consent to the substance thereof.
(c) Promptly after the execution by the Company and the Loan Trustee
of any supplemental agreement pursuant to the provisions of this Section 9.02,
the Loan Trustee shall transmit by first-class mail a notice, setting forth in
general terms the substance of such supplemental agreement, to all Noteholders,
as the names and addresses of such Noteholders appear on the Equipment Note
Register. Any failure of the Loan Trustee to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental agreement.
Section 9.03 Amendments, Waivers, Etc. of the Participation
Agreement. Without the consent of a Majority in Interest of Noteholders, the
respective parties to the Participation Agreement may not modify, amend or
supplement such agreement, or give any consent, waiver, authorization or
approval thereunder, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions thereof or of modifying in any
manner the rights of the respective parties thereunder; provided, however, that,
without the consent of the Loan Trustee or any Noteholder, the Participation
Agreement may be modified, amended or supplemented in order (i) to cure any
defect or inconsistency therein or to cure any ambiguity or correct any mistake,
(ii) to amend, modify or supplement any provision thereof or make any other
provision with respect to matters or questions arising thereunder or under this
Indenture, provided that the making of any such other provision shall not
materially adversely affect the interests of the Noteholders or (iii) to make
any other change, or reflect any other matter, of the kind referred to in
clauses (i) through (xi) of Section 9.01. Notwithstanding the foregoing, without
the consent of the Liquidity Provider, the Company shall not enter into any
amendment, waiver or modification of or supplement or consent to the
Participation Agreement which shall reduce, modify or amend any indemnities in
favor of the Liquidity Provider contained therein.
Section 9.04 Revocation and Effect of Consents. Until an amendment
or waiver becomes effective, a consent to it by a Noteholder is a continuing
consent by the Noteholder and every subsequent Noteholder, even if notation of
the consent is not made on any Equipment Note.
Section 9.05 Notation on or Exchange of Equipment Notes. The Loan
Trustee may place an appropriate notation about an amendment or waiver on any
Equipment Note thereafter executed. The Loan Trustee in exchange for such
Equipment Notes may execute new Equipment Notes that reflect the amendment or
waiver.
Section 9.06 Trustee Protected. If, in the reasonable opinion of the
institution acting as Loan Trustee, any document required to be executed by it
pursuant to the terms of Section 9.01 or 9.02 adversely affects any right, duty,
immunity or indemnity with respect to such institution under this Indenture,
such institution may in its discretion decline to execute such document.
ARTICLE X
MISCELLANEOUS
Section 10.01 Termination of Indenture. (a) Upon (or at any time
after):
(i) payment in full of the principal amount, Make-Whole Amount, if
any, and interest on and all other amounts due under all Equipment Notes
and provided that there shall then be no other Secured Obligations due to
the Noteholders, the Indenture Indemnitees and the Loan Trustee hereunder
or under the Participation Agreement; or
(ii) the 91st day after there has been irrevocably deposited (except
as provided in Section 2.15 or 10.01(d)) with the Loan Trustee as funds in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Noteholders: (A) money in an amount, (B) U.S. Government
Obligations that, through the payment of interest and principal in respect
thereof in accordance with their terms, will provide (not later than one
Business Day before the due date of any payment referred to below in this
paragraph) money in an amount, or (C) a combination of money and U.S.
Government Obligations referred to in the foregoing clause (B),
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Loan Trustee, to pay in full the outstanding principal
amount of and interest on all the Equipment Notes then outstanding on the
dates such amounts are due; provided, however, that
(1) the Company has delivered to the Loan Trustee an officer's
certificate and an opinion of counsel to the effect that there has been a
change in tax law since September 6, 2001 or has been published by the
Internal Revenue Service a ruling to the effect that Noteholders and the
holders of the Pass Through Certificates will not recognize income, gain
or loss for United States Federal income tax purposes as a result of the
exercise by the Company of its option under this subsection (ii) and will
be subject to United States Federal income tax on the same amounts and in
the same manner and at the same times, as would have been the case if such
option had not been exercised;
(2) all other amounts then due and payable hereunder have been paid;
(3) the Company has delivered to the Loan Trustee an officer's
certificate and an opinion of counsel (which may be internal counsel to
the Company), each stating that all conditions precedent to the
satisfaction and discharge of this Indenture set forth in this Section
10.01 have been complied with;
(4) such deposit will not result in a breach or violation of, or
constitute an Event of Default under, this Indenture;
(5) no Event of Default set forth in Sections 4.01(f), (g), (h) or
(i) shall have occurred and be continuing on the date of such deposit or
at any time during the period beginning on such date and ending on the
91st day after the date of such deposit; and
(6) the Company has delivered to the Loan Trustee written
confirmation from each of the Rating Agencies that such deposit, the
resulting release and discharge of the Company from its obligations under
this Indenture and under the Equipment Notes and the release of the
Aircraft and the balance of the Collateral from the Lien of this Indenture
will not result in a reduction in the rating for any class of Pass Through
Certificates below the then current rating for such class of Pass Through
Certificates or a withdrawal or suspension of the rating of any class of
Pass Through Certificates;
the Company and the Loan Trustee shall be deemed to have been released and
discharged from their respective obligations hereunder and under the Equipment
Notes and the security interest, mortgage lien and all other estate, right,
title and interest granted by this Indenture shall cease and become null and
void and all of the property, rights, interests and privileges granted as
security for the Equipment Notes shall revert to and revest in the Company
without any other act or formality whatsoever, and the Loan Trustee shall, upon
the written request of the Company, execute and deliver to, or as directed in
writing by, the Company an appropriate instrument (in due form for recording)
releasing the Aircraft and the balance of the Collateral from the Lien of this
Indenture together with such other instruments and documents as the Company
reasonably requests to give effect to the release and termination, and, in such
event, this Indenture and the trusts created hereby shall terminate and this
Indenture shall be of no further force or effect; provided, however, that this
Indenture and the trusts created hereby shall earlier terminate and this
Indenture shall be of no further force or effect upon any sale or other final
disposition by the Loan Trustee of all property constituting part of the
Collateral and the final distribution by the Loan Trustee of all monies or other
property or proceeds constituting part of the Collateral in accordance with the
terms hereof. Except as otherwise provided above, this Indenture and the trusts
created hereby shall continue in full force and effect in accordance with the
terms hereof. Upon the deposit of the defeasance funds as described above, the
right of the Company to cause redemption of the Equipment Notes shall cease.
(b) Notwithstanding the provisions of Section 10.01(a)(ii), the
obligations of the Loan Trustee contained in Sections 2.01, 2.02, 2.03, 2.04,
2.05, 2.07, 2.08, 2.09, 2.13, 2.15, 2.16, 3.01, 10.01(c) and 10.01(d) of this
Section 10.01, and the other rights, duties, immunities and privileges hereunder
of the Loan Trustee, shall survive.
(c) All monies and U.S. Government Obligations deposited with the
Loan Trustee pursuant to Section 10.01(a)(ii) shall be held in trust and applied
by it, in accordance with the provisions of the Equipment Notes and this
Indenture, to the payment to the Noteholders of all sums due and to become due
thereon for principal and interest, but such money need not be segregated from
other funds received pursuant hereto except to the extent required by law.
(d) The Loan Trustee shall promptly pay or return to the Company
upon request of the Company any money or U.S. Government Obligations held by it
at any time that are not required for the payment of the amounts described above
in Section 10.01(c) on the Equipment Notes for which money or U.S. Government
Obligations have been deposited pursuant to Section 10.01(a)(ii).
Section 10.02 No Legal Title to Collateral in Noteholders. No
Noteholder shall have legal title to any part of the Collateral. No transfer, by
operation of law or otherwise, of any Equipment Note or other right, title and
interest of any Noteholder in and to the Collateral or hereunder shall operate
to terminate this Indenture or entitle such Noteholder or any successor or
transferee of such holder to an accounting or to the transfer to it of any legal
title to any part of the Collateral.
Section 10.03 Sale of Aircraft by Loan Trustee is Binding. Any sale
or other conveyance of the Aircraft, the Airframe, any Engine or any interest
therein by the Loan Trustee made pursuant to the terms of this Indenture shall
bind the Noteholders and the Company and shall be effective to transfer or
convey all right, title and interest of the Loan Trustee, the Company and such
Noteholders in and to such Aircraft, Airframe, Engine or interest therein. No
purchaser or other grantee shall be required to inquire as to the authorization,
necessity, expediency or regularity of such sale or conveyance or as to the
application of any sale or other proceeds with respect thereto by the
Noteholders.
Section 10.04 Indenture for Benefit of the Company, Loan Trustee and
Noteholders. Nothing in this Indenture, whether express or implied, shall be
construed to give any Person other than the Company, the Loan Trustee, the
Noteholders or the other Indenture Indemnitees any legal or equitable right,
remedy or claim under or in respect of this Indenture.
Section 10.05 Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices, requests, demands, authorizations,
directions, consents, waivers or documents required or permitted under the terms
and provisions of this Indenture shall be in English and in writing, and given
by United States registered or certified mail, courier service or facsimile, and
any such notice shall be effective when delivered (or, if delivered by
facsimile, upon completion of transmission and confirmation by the sender (by a
telephone call to a representative of the recipient or by machine confirmation)
that such transmission was received) addressed as follows:
(i) if to the Company, addressed to:
Delta Air Lines, Inc.
1030 Delta Boulevard
Atlanta, Georgia 30320
Attention: Director - Corporate Finance, Dept. 856
Telephone: (404) 715-6707
Facsimile: (404) 715-4862
with a copy to the General Counsel at the same address, but
Dept. 971
Telephone: (404) 715-2387
Facsimile: (404) 715-1657
(ii) if to the Loan Trustee, addressed to:
State Street Bank And Trust Company of Connecticut,
National Association
225 Asylum Street
Goodwin Square
Hartford, Connecticut 06103
Attention: Corporate Trust Division
Telephone: (860) 244-1844
Facsimile: (860) 244-1881
or if to any Noteholder, addressed to such Noteholder at its address set forth
in the Equipment Note Register maintained pursuant to Section 2.07 hereof.
Any party, by notice to the other parties hereto, may designate
additional or different addresses for subsequent notices or communications.
Whenever the words "notice" or "notify" or similar words are used herein, they
mean the provision of formal notice as set forth in this Section 10.05.
Section 10.06 Severability. Any provision of this Indenture that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 10.07 No Oral Modification or Continuing Waivers. No terms
or provisions of this Indenture or of the Equipment Notes may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the Company and the Loan Trustee, in compliance with Article IX. Any
waiver of the terms hereof or of any Equipment Note shall be effective only in
the specific instance and for the specific purpose given.
Section 10.08 Successors and Assigns. All covenants and agreements
contained herein shall bind and inure to the benefit of, and be enforceable by,
each of the parties hereto and the successors and permitted assigns of each, all
as herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by any Noteholder shall bind the successors and permitted
assigns of such Noteholder. Each Noteholder by its acceptance of an Equipment
Note agrees to be bound by this Indenture and all provisions of the
Participation Agreement applicable to a Noteholder.
Section 10.09 Headings. The headings of the various Articles and
Sections herein and in the Table of Contents hereto are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section 10.10 Normal Commercial Relations. Anything contained in
this Indenture to the contrary notwithstanding, the Loan Trustee, any Noteholder
or any other party to any of the Operative Documents or the Pass Through
Documents or any of their affiliates may conduct any banking or other financial
transactions, and have banking or other commercial relationships, with the
Company, fully to the same extent as if this Indenture were not in effect,
including without limitation the making of loans or other extensions of credit
to the Company for any purpose whatsoever, whether related to any of the
transactions contemplated hereby or otherwise.
Section 10.11 Voting by Noteholders. All votes of the Noteholders
shall be governed by a vote of a Majority in Interest of Noteholders, except as
otherwise provided herein.
Section 10.12 Section 1110. It is the intention of the parties
hereto that the security interest created hereby, to the fullest extent
available under applicable law, entitles the Loan Trustee, on behalf of the
Noteholders, to all of the benefits of Section 1110 with respect to the
Aircraft.
Section 10.13 The Company's Performance and Rights. Any obligation
imposed on the Company herein shall require only that the Company perform or
cause to be performed such obligation, even if stated as a direct obligation,
and the performance of any such obligation by any permitted assignee, lessee or
transferee under an assignment, lease or transfer agreement then in effect and
in accordance with the provisions of the Operative Documents shall constitute
performance by the Company and, to the extent of such performance, discharge
such obligation by the Company. Except as otherwise expressly provided herein,
any right granted to the Company in this Indenture shall grant the Company the
right to permit such right to be exercised by any such assignee, lessee or
transferee. The inclusion of specific references to obligations or rights of any
such assignee, lessee or transferee in certain provisions of this Indenture
shall not in any way prevent or diminish the application of the provisions of
the two sentences immediately preceding with respect to obligations or rights in
respect of which specific reference to any such assignee, lessee or transferee
has not been made in this Indenture.
Section 10.14 Counterparts. This Indenture may be executed in any
number of counterparts (and each of the parties hereto shall not be required to
execute the same counterpart). Each counterpart of this Indenture including a
signature page or pages executed by each of the parties hereto shall be an
original counterpart of this Indenture, but all of such counterparts together
shall constitute one instrument.
SECTION 10.15 GOVERNING LAW. THIS INDENTURE HAS BEEN DELIVERED IN
THE STATE OF NEW YORK AND THIS INDENTURE, ANY INDENTURE SUPPLEMENT AND THE
EQUIPMENT NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF
THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.16 Confidential Information. The term "Confidential
Information" means: (a) the existence and terms of any lease of the Airframe or
Engines pursuant to Section 7.02(a) and the identity of the Permitted Lessee
thereunder; (b) all information obtained in connection with any inspection
conducted by the Loan Trustee or its representative pursuant to Section 7.03(a);
(c) each certification furnished to the Loan Trustee pursuant to Sections
7.06(a) and 7.06(b); (d) all information contained in each report furnished to
the Loan Trustee pursuant to Section 7.06(e); and (e) all information regarding
the Warranty Rights. All Confidential Information shall be held confidential by
the Loan Trustee and each Noteholder and each affiliate, agent, officer,
director, or employee of any thereof and shall not be furnished or disclosed by
any of them to anyone other than (i) the Loan Trustee or any Noteholder and (ii)
their respective bank examiners, auditors, accountants, agents and legal
counsel, and except as may be required by an order of any court or
administrative agency or by any statute, rule, regulation or order of any
governmental authority.
Section 10.17 Submission to Jurisdiction. Each of the parties
hereto, and by acceptance of Equipment Notes, each Noteholder, to the extent it
may do so under applicable law, for purposes hereof and of all other Operative
Agreements hereby (a) irrevocably submits itself to the non-exclusive
jurisdiction of the courts of the State of New York sitting in the City of New
York and to the non-exclusive jurisdiction of the United States District Court
for the Southern District of New York, for the purposes of any suit, action or
other proceeding arising out of this Indenture, the subject matter hereof or any
of the transactions contemplated hereby brought by any party or parties hereto
or thereto, or their successors or permitted assigns and (b) waives, and agrees
not to assert, by way of motion, as a defense, or otherwise, in any such suit,
action or proceeding, that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or proceeding is improper
or that this Indenture or the Equipment Notes or the subject matter hereof or
any of the transactions contemplated hereby may not be enforced in or by such
courts.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed by their respective officers thereof duly authorized, as of the
date first above written.
DELTA AIR LINES, INC.
By:
--------------------------------------
Name: David Stowe
Title:
Director - Treasury
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not in
its individual capacity, except as
expressly provided herein, but solely as
Loan Trustee
By:
--------------------------------
Name:
Title:
EXHIBIT A
to INDENTURE AND
SECURITY AGREEMENT
INDENTURE SUPPLEMENT NO. ___
INDENTURE SUPPLEMENT NO. __ , dated _____________, ____ ("Indenture
Supplement"), between DELTA AIR LINES, INC. (the "Company") and STATE STREET
BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Loan Trustee under the Indenture (each as
hereinafter defined).
W I T N E S S E T H:
WHEREAS, the Indenture and Security Agreement (N3731T), dated as of
September 17, 2001 (the "Indenture"; capitalized terms used herein without
definition shall have the meanings specified therefor in Annex A to the
Indenture), between the Company and State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity, except as
expressly provided therein, but solely as Loan Trustee (the "Loan Trustee"),
provides for the execution and delivery of supplements thereto substantially in
the form hereof which shall particularly describe the Aircraft, and shall
specifically grant a security interest in the Aircraft to the Loan Trustee; and
[WHEREAS, the Indenture relates to the Airframe and Engines
described in Annex A attached hereto and made a part hereof, and a counterpart
of the Indenture is attached to and made a part of this Indenture Supplement;]*
[WHEREAS, the Company has, as provided in the Indenture, heretofore
executed and delivered to the Loan Trustee Indenture Supplement(s) for the
purpose of specifically subjecting to the Lien of the Indenture certain
airframes and/or engines therein described, which Indenture Supplement(s) is/are
dated and has/have been duly recorded with the FAA as set forth below, to wit:
Date Recordation Date FAA Document Number]**
---- ---------------- --------------------
----------
* Use for Indenture Supplement No. 1 only.
** Use for all Indenture Supplements other than Indenture Supplement No. 1.
NOW, THEREFORE, to secure the prompt and complete payment (whether
at stated maturity, by acceleration or otherwise) of principal of, Make-Whole
Amount, if any, and interest on, the Equipment Notes and all other amounts
payable by the Company under the Operative Documents and the performance and
observance by the Company of all the agreements and covenants to be performed or
observed by the Company for the benefit of the Noteholders and the Indenture
Indemnitees contained in the Operative Documents, and in consideration of the
premises and of the covenants contained in the Operative Documents, and for
other good and valuable consideration given by the Loan Trustee, the Noteholders
and the Indenture Indemnitees to the Company at or before the Closing Date, the
receipt of which is hereby acknowledged, the Company does hereby grant, bargain,
sell, convey, transfer, mortgage, assign, pledge and confirm unto the Loan
Trustee and its successors in trust and permitted assigns, for the security and
benefit of the Loan Trustee, the Noteholders and the Indenture Indemnitees, a
first priority security interest in, and mortgage lien on, all estate, right,
title and interest of the Company in, to and under the Aircraft, including the
Airframe and Engines described in Annex A attached hereto, whether or not any
such Engine from time to time is installed on the Airframe or any other airframe
or any other aircraft, and any and all Parts relating thereto, and, to the
extent provided in the Indenture, all substitutions and replacements of, and
additions, improvements, accessions and accumulations to, the Aircraft,
including the Airframe, the Engines and any and all Parts (in each case other
than any substitutions, replacements, additions, improvements, accessions and
accumulations that constitute items excluded from the definition of Parts by
clauses (b), (c), (d), (e) and (f) thereof) relating thereto;
To have and to hold all and singular the aforesaid property unto the
Loan Trustee, and its successors and assigns, in trust for the ratable benefit
and security of the Noteholders and the Indenture Indemnitees, except as
otherwise provided in the Indenture, including Section 2.13 and Article III of
the Indenture, without any preference, distinction or priority of any one
Equipment Note over any other by reason of priority of time of issue, sale,
negotiation, date of maturity thereof or otherwise for any reason whatsoever,
and for the uses and purposes and subject to the terms and provisions set forth
in the Indenture.
This Indenture Supplement shall be construed as supplemental to the
Indenture and shall form a part thereof, and the Indenture is hereby
incorporated by reference herein and is hereby ratified, approved and confirmed.
THIS INDENTURE SUPPLEMENT HAS BEEN DELIVERED IN THE STATE OF NEW
YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the undersigned have caused this Indenture
Supplement No. __ to be duly executed by their respective duly authorized
officers, on the date first above written.
DELTA AIR LINES, INC.
By:____________________________________
Name: David Stowe
Title: Director - Treasury
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Loan Trustee
By:____________________________________
Name:
Title:
Annex A to
Indenture Supplement No. __
DESCRIPTION OF AIRFRAME AND ENGINES
AIRFRAME
Manufacturer Model FAA Registration No. Manufacturer's Serial No.
------------ ----- -------------------- -------------------------
ENGINES
Manufacturer Model Manufacturer's Serial No.
------------ ----- -------------------------
Each Engine is of 750 or more "rated take-off horsepower" or the
equivalent of such horsepower.
EXHIBIT B
to INDENTURE AND
SECURITY AGREEMENT
LIST OF PERMITTED COUNTRIES
Argentina Grenada Norway
Australia Guatemala Paraguay
Austria Hungary Peoples' Republic of China
Bahamas Iceland Philippines
Barbados India Poland
Belgium Indonesia Portugal
Bermuda Islands Ireland Republic of China (Taiwan)
Brazil Italy Singapore
British Virgin Islands Jamaica South Africa
Canada Japan South Korea
Cayman Islands Kuwait Spain
Chile Liechtenstein Sweden
Czech Republic Luxembourg Switzerland
Denmark Malta Thailand
Ecuador Mexico Trinidad and Tobago
Egypt Monaco United Kingdom
Finland Morocco Uruguay
France Netherlands Antilles Venezuela
Germany Netherlands, the
Greece New Zealand
EXHIBIT C
to INDENTURE AND
SECURITY AGREEMENT
AIRCRAFT TYPE VALUE FOR SECTION 7.06(b)
Boeing 737-832 - $8,000,000
SCHEDULE I
to INDENTURE AND
SECURITY AGREEMENT
DESCRIPTION OF EQUIPMENT NOTES
Original Principal Amount Interest Rate Maturity Date
------------------------- ------------- -------------
Series A-1
Equipment Notes: $6,590,608.67 6.619% March 18, 2011
Series A-2
Equipment Notes: $13,427,058.00 7.111% September 18, 2011
Series B
Equipment Notes: $4,758,156.18 7.711% September 18, 2011
Series C
Equipment Notes: $3,901,334.19 7.299% September 18, 2006
Series D
Equipment Notes: $3,446,773.66 6.950% September 18, 2006
EQUIPMENT NOTES AMORTIZATION
SERIES A-1 EQUIPMENT NOTES
Percentage of
Original Principal Amount
Payment Date to be Paid
------------ -------------------------
The portion of this Schedule appearing below this text is intentionally deleted
from the FAA filing counterpart because the parties hereto deem it to contain
confidential information.
SCHEDULE II
to INDENTURE AND
SECURITY AGREEMENT
PASS THROUGH TRUST AGREEMENT AND
PASS THROUGH TRUST SUPPLEMENTS
Pass Through Trust Agreement, dated as of November 16, 2000, between Delta Air
Lines, Inc. and State Street Bank and Trust Company of Connecticut, National
Association, as trustee, as supplemented by Trust Supplement No. 2001-1A-1,
dated as of September 17, 2001, Trust Supplement No. 2001-1A-2, dated as of
September 17, 2001, Trust Supplement No. 2001-1B, dated as of September 17,
2001, Trust Supplement No. 2001-1C, dated as of September 17, 2001 and Trust
Supplement No. 2001-1D, dated as of September 17, 2001.
2
Annex A to
Participation Agreement and
Indenture and Security Agreement
(N3731T)
DEFINITIONS
(N3731T)
"Additional Insureds" has the meaning specified in Section 7.06(a)
of the Indenture.
"After-Tax Basis" means that indemnity and compensation payments
required to be made on such basis will be supplemented by the Person paying the
base amount by that amount which, when added to such base amount, and after
deduction of all Federal, state, local and foreign Taxes required to be paid by
or on behalf of the payee with respect of the receipt or realization of any such
amounts, and after consideration of any current tax savings of such payee
resulting by way of any deduction, credit or other tax benefit attributable to
such base amount or Tax, shall net such payee the full amount of such base
amount.
"Agreement" and "Participation Agreement" mean that certain
Participation Agreement (N3731T), dated as of September 17, 2001, among the
Company, State Street, the Pass Through Trustee under each Pass Through Trust
Agreement, the Subordination Agent and the Loan Trustee, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
its Terms.
"Aircraft" means the Airframe (or any Replacement Airframe
substituted therefor pursuant to Section 7.05 of the Indenture) together with
the two Engines described in the Indenture Supplement originally executed and
delivered under the Indenture (or any Replacement Engine that may from time to
time be substituted for any of such Engines pursuant to Section 7.04 or Section
7.05 of the Indenture), whether or not any of such initial or substituted
Engines is from time to time installed on such Airframe or installed on any
other airframe or on any other aircraft. The term "Aircraft" includes any
Replacement Aircraft.
"Airframe" means (a) the Boeing 737-832 aircraft (except (i) the
Engines or engines from time to time installed thereon and any and all Parts
related to such Engine or engines and (ii) items installed or incorporated in or
attached to such Boeing 737-832 aircraft from time to time that are excluded
from the definition of Parts (except Engines or engines)) specified in the
Indenture Supplement originally executed and delivered under the Indenture and
(b) any and all related Parts. The term "Airframe" includes any Replacement
Airframe that is substituted for the Airframe pursuant to Section 7.05 of the
Indenture. At such time as any Replacement Airframe is so substituted and the
Airframe for which such substitution is made is released from the Lien of the
Indenture, such replaced Airframe shall cease to be an Airframe under the
Indenture.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 United
States Codess.ss.101 et seq., as amended, or any successor statutes thereto.
"Basic Pass Through Trust Agreement" means that certain Pass Through
Trust Agreement, dated as of November 16, 2000, between the Company and State
Street, as the same may be amended, supplemented or otherwise modified from time
to time in accordance with its terms (but does not include any Trust
Supplement).
"Bills of Sale" means the FAA Bill of Sale and the Warranty Bill of
Sale.
"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, Atlanta, Georgia or the city and state in which the Loan Trustee
maintains its Corporate Trust Office or receives and disburses funds.
"Certificated Air Carrier" means a Citizen of the United States
holding an air carrier operating certificate issued by the Secretary of
Transportation pursuant to Chapter 447 of Title 49 of the United States Code for
aircraft capable of carrying ten or more individuals or 6,000 pounds or more of
cargo or that otherwise is certified or registered to the extent required to
fall within the purview of Section 1110.
"Citizen of the United States" has the meaning specified for such
term in Section 40102(a)(15) of Title 49 of the United States Code or any
similar legislation of the United States enacted in substitution or replacement
therefor.
"Claim" has the meaning specified in Section 4.02(a) of the
Participation Agreement.
"Class D Pass Through Trust" means the Delta Air Lines Pass Through
Trust 2001-1D created pursuant to the Basic Pass Through Trust Agreement, as
supplemented by Trust Supplement No. 2001-1D, dated as of September 17, 2001
between the Company and State Street.
"Class D Pass Through Certificates" means the Pass Through
Certificates issued by the Class D Pass Through Trust.
"Class D Trustee" means the Pass Through Trustee under the Basic
Pass Through Trust Agreement, as supplemented by Trust Supplement No. 2001-1D,
dated as of September 17, 2001 between the Company and State Street.
"Closing" has the meaning specified in Section 2.03 of the
Participation Agreement.
"Closing Date" means the date of the closing of the transaction
contemplated by the Operative Documents.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning specified in the granting clause of the
Indenture.
"Company" means Delta Air Lines, Inc., and its successors and
permitted assigns.
"Compulsory Acquisition" means requisition of title or other
compulsory acquisition, capture, seizure, deprivation, confiscation or detention
for any reason of the Aircraft by any government that results in the loss of
title or use of the Aircraft by the Company (or any Permitted Lessee) for a
period in excess of 180 days, but shall exclude requisition for use or hire not
involving requisition of title.
"Confidential Information" has the meaning specified in Section
10.16 of the Indenture.
"Controlling Party" has the meaning specified in Section 2.06 of the
Intercreditor Agreement.
"Corporate Trust Office" means the Corporate Trust Division of the
Loan Trustee located at State Street Bank and Trust Company of Connecticut,
National Association, 225 Asylum Street, Goodwin Square, Hartford, Connecticut,
06103, Attention: Corporate Trust Division, or such other office at which the
Loan Trustee's corporate trust business is administered that the Loan Trustee
specifies by notice to the Company.
"CRAF Program" means the Civil Reserve Air Fleet Program authorized
under 10 U.S.C. Section 9511 et seq. or any similar or substitute program under
the laws of the United States.
"Debt Rate" means, with respect to any Series, the rate per annum
specified for such Series under the heading "Interest Rate" in Schedule I to the
Indenture.
"Department of Transportation" means the United States Department of
Transportation and any agency or instrumentality of the United States government
succeeding to its functions.
"Direction" has the meaning specified in Section 2.16 of the
Indenture.
"Dollars" and "$" mean the lawful currency of the United States.
"Downgrade Event" means, with respect to any Series other than the
Series D Equipment Notes, the occurrence of the first of any of the following
events: (i) the downgrade of the long-term unsecured debt rating or the
long-term corporate credit rating of the Company after September 6, 2001 by
Moody's or S&P; (ii) the public announcement after September 6, 2001 by Moody's
or S&P that it has on review for downgrade (in the case of Moody's) or has
placed on credit watch with negative implications (in the case of S&P), its
rating of the long-term unsecured debt or the long-term corporate credit rating
of the Company; or (iii) with respect to such Series, the downgrade of the Pass
Through Certificates numerically and alphabetically corresponding to the
numerical and alphabetical designation of such Series after September 6, 2001 by
Moody's or S&P.
"Engine" means (a) each of the two CFM International, Inc.
CFM56-7B26 engines listed by manufacturer's serial number in the Indenture
Supplement originally executed and delivered under the Indenture, whether or not
from time to time installed on the Airframe or installed on any other airframe
or on any other aircraft and (b) any Replacement Engine substituted for an
Engine pursuant to Section 7.04 or 7.05 of the Indenture; together in each case
with any and all related Parts. At such time as a Replacement Engine is so
substituted and the Engine for which substitution is made is released from the
Lien of the Indenture, such replaced Engine shall cease to be an Engine under
the Indenture.
"Equipment Note" means and includes any Equipment Note originally
issued pursuant to Section 2.02 of the Indenture and any Equipment Note issued
in exchange therefor or replacement thereof pursuant to Section 2.07 or 2.08 of
the Indenture.
"Equipment Note Register" has the meaning specified in Section 2.07
of the Indenture.
"Equipment Note Registrar" has the meaning specified in Section 2.07
of the Indenture.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA as in effect at the date of
the Participation Agreement and any subsequent provisions of ERISA amendatory
thereof, supplemental thereto or substituted therefor.
"Event of Default" has the meaning specified in Section 4.01 of the
Indenture.
"Event of Loss" means, with respect to the Aircraft, Airframe or any
Engine, any of the following events with respect to such property:
(a) the loss of such property or of the use thereof due to
destruction, damage beyond repair or rendition of such property permanently
unfit for normal use for any reason whatsoever;
(b) any damage to such property which results in an insurance
settlement with respect to such property on the basis of a total loss, a
compromised total loss or a constructive total loss;
(c) the theft or disappearance of such property for a period in
excess of 180 days;
(d) the requisition for use of such property by any government
(other than a requisition for use by a Government or the government of the
country of registry of the Aircraft) that results in the loss of possession of
such property by the Company (or any Permitted Lessee) for a period in excess of
12 consecutive months;
(e) the operation or location of the Aircraft, while under
requisition for use by any government, in any area excluded from coverage by any
insurance policy in effect with respect to the Aircraft required by the terms of
Section 7.06 of the Indenture, unless the Company shall have obtained indemnity
or insurance in lieu thereof from such government;
(f) any Compulsory Acquisition;
(g) as a result of any law, rule, regulation, order or other action
by the FAA or other government of the country of registry, the use of the
Aircraft or Airframe in the normal business of air transportation is prohibited
by virtue of a condition affecting all aircraft of the same type for a period of
18 consecutive months, unless the Company is diligently carrying forward all
steps that are necessary or desirable to permit the normal use of the Aircraft
or Airframe or, in any event, if such use is prohibited for a period of three
consecutive years; and
(h) with respect to an Engine only, any divestiture of title to or
interest in an Engine or any event with respect to an Engine that is deemed to
be an Event of Loss with respect to such Engine pursuant to Section 7.02(a)(vii)
of the Indenture.
An Event of Loss with respect to the Aircraft shall be deemed to
have occurred if an Event of Loss occurs with respect to the Airframe unless the
Company elects to substitute a Replacement Airframe pursuant to Section
7.05(a)(i) of the Indenture.
"FAA" means the United States Federal Aviation Administration and
any agency or instrumentality of the United States government succeeding to its
functions.
"FAA Bill of Sale" means the bill of sale for the Aircraft on AC
Form 8050-2 executed by the Manufacturer or an affiliate of the Manufacturer in
favor of the Company and recorded with the FAA.
"Federal Funds Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or if such rate
is not so published for any day that is a Business Day, the average of the
quotations for such day for such transactions received by State Street from
three Federal funds brokers of recognized standing selected by it.
"Government" means the government of any of Canada, France, Germany,
Japan, The Netherlands, Sweden, Switzerland, the United Kingdom or the United
States and any instrumentality or agency thereof.
"Indemnitee" has the meaning specified in Section 4.02(b) of the
Participation Agreement.
"Indenture" means that certain Indenture and Security Agreement
(N3731T), dated as of September 17, 2001, between the Company and the Loan
Trustee, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with its terms, including supplementing by an
Indenture Supplement pursuant to the Indenture.
"Indenture Indemnitee" means (i) the Loan Trustee, (ii) State
Street, (iii) so long as it holds any Equipment Note as agent and trustee of any
Pass Through Trustee, the Subordination Agent, (iv) the Liquidity Provider and
(v) so long as it is the holder of any Equipment Notes, each Pass Through
Trustee and each of their respective directors, officers, employees, agents and
servants. No holder of a Pass Through Certificate in its capacity as such shall
be an Indenture Indemnitee.
"Indenture Supplement" means a supplement to the Indenture,
substantially in the form of Exhibit A to the Indenture, which particularly
describes the Aircraft, and any Replacement Airframe and or Replacement Engine
included in the property subject to the Lien of the Indenture.
"Intercreditor Agreement" means that certain Intercreditor
Agreement, dated as of the Closing Date, among the Pass Through Trustees, the
Liquidity Provider and the Subordination Agent, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
"Interests" has the meaning specified in Section 7.06(a) of the
Indenture.
"Lease" means any lease permitted by the terms of Section 7.02(a) of
the Indenture.
"Lien" means any mortgage, pledge, lien, encumbrance, lease,
sublease, sub-sublease or security interest.
"Liquidity Facilities" means the four Revolving Credit Agreements,
each dated as of the Closing Date, between the Subordination Agent, as borrower,
and the Liquidity Provider, and any replacements thereof, in each case as the
same may be amended or supplemented or otherwise modified from time to time in
accordance with its terms.
"Liquidity Provider" means Landesbank Hessen-Thuringen Girozentrale,
a public law banking institution organized under the laws of Germany, as
liquidity provider under each of the Liquidity Facilities, or any liquidity
provider under a replacement liquidity facility.
"Loan Amount" has the meaning specified in Section 7.06(b) of the
Indenture.
"Loan Trustee" has the meaning specified in the introductory
paragraph of the Indenture.
"Loan Trustee Liens" means any Lien attributable to State Street or
the Loan Trustee with respect to the Aircraft, any interest therein or any other
portion of the Collateral arising as a result of (i) claims against State Street
or the Loan Trustee not related to its interest in the Aircraft or the
administration of the Collateral pursuant to the Indenture, (ii) acts of State
Street or the Loan Trustee not permitted by, or the failure of State Street or
the Loan Trustee to take any action required by the Operative Documents or the
Pass Through Documents, (iii) claims against State Street or the Loan Trustee
relating to Taxes or Claims that are excluded from the indemnification provided
by Section 4.02 of the Participation Agreement pursuant to said Section 4.02 or
(iv) claims against State Street or the Loan Trustee arising out of the transfer
by any such party of all or any portion of its interest in the Aircraft, the
Collateral, the Operative Documents or the Pass Through Documents, except while
an Event of Default is continuing and prior to the time that the Loan Trustee
has received all amounts due to it pursuant to the Indenture.
"Loss Payment Date" has the meaning specified in Section 7.05(a) of
the Indenture.
"Majority in Interest of Noteholders" means, as of a particular date
of determination and subject to Section 2.16 of the Indenture, the holders of at
least a majority in aggregate unpaid principal amount of all Equipment Notes
outstanding as of such date (excluding any Equipment Notes held by the Company
or any affiliate thereof, it being understood that the Class D Trustee shall be
considered an affiliate of the Company as long as more than 50% in the aggregate
face amount of the Pass Through Certificates issued by the Class D Pass Through
Trust are held by an affiliate of the Company or the Class D Trustee is
otherwise under the control of such affiliate of the Company (unless all
Equipment Notes are held by the Company or any affiliate thereof)).
"Make-Whole Amount" means, with respect to any Equipment Note, the
amount (as determined by an independent investment banker selected by the
Company (and, following the occurrence and during the continuance of an Event of
Default, reasonably acceptable to the Loan Trustee)), if any, by which (i) the
present value of the remaining scheduled payments of principal and interest from
the redemption date to maturity of such Equipment Note computed by discounting
each such payment on a semiannual basis from its respective Payment Date
(assuming a 360-day year of twelve 30 day months) using a discount rate equal to
the Treasury Yield exceeds (ii) the outstanding principal amount of such
Equipment Note plus accrued but unpaid interest thereon. For purposes of
determining the Make-Whole Amount, "Treasury Yield" means, at the date of
determination, the interest rate (expressed as a semiannual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semiannual
yield to maturity for United States Treasury securities maturing on the Average
Life Date and trading in the public securities market either as determined by
interpolation between the most recent weekly average yield to maturity for two
series of United States Treasury securities, trading in the public securities
markets, (A) one maturing as close as possible to, but earlier than, the Average
Life Date and (B) the other maturing as close as possible to, but later than,
the Average Life Date, in each case as published in the most recent H.15(519)
or, if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date is reported on the most recent H.15(519), such
weekly average yield to maturity as published in such H.15(519). "H.15(519)"
means the weekly statistical release designated as such, or any successor
publication, published by the Board of Governors of the Federal Reserve System.
The date of determination of a Make-Whole Amount shall be the third Business Day
prior to the applicable redemption date and the "most recent H.15(519)" means
the H.15(519) published prior to the close of business on the third Business Day
prior to the applicable redemption date. "Average Life Date" means, for each
Equipment Note to be redeemed, the date which follows the redemption date by a
period equal to the Remaining Weighted Average Life at the redemption date of
such Equipment Note. "Remaining Weighted Average Life" of an Equipment Note, at
the redemption date of such Equipment Note, means the number of days equal to
the quotient obtained by dividing: (i) the sum of the products obtained by
multiplying (A) the amount of each then remaining installment of principal,
including the payment due on the maturity date of such Equipment Note, by (B)
the number of days from and including the redemption date to but excluding the
scheduled payment date of such principal installment by (ii) the then unpaid
principal amount of such Equipment Note.
"Manufacturer" means The Boeing Company, a Delaware corporation, and
its successors and assigns.
"Manufacturer's Consent" means the Manufacturer's Consent and
Agreement to Assignment of Warranties, dated as of the Closing Date,
substantially in the form of Exhibit E to the Participation Agreement
"Noteholder" means any Person in whose name an Equipment Note is
registered on the Equipment Note Register (including, for so long as it is the
registered holder of any Equipment Notes, the Subordination Agent on behalf of
the Pass Through Trustees pursuant to the provisions of the Intercreditor
Agreement).
"Noteholder Liens" means any Lien attributable to any Noteholder on
or against the Aircraft, any interest herein or any portion of the Collateral,
arising out of any claim against such Noteholder that is not related to the
Operative Documents or Pass Through Documents, or out of any act or omission of
such Noteholder that is not related to the transactions contemplated by, or that
constitutes a breach by such Noteholder of its obligations under, the Operative
Documents or the Pass Through Documents.
"Operative Documents" means, collectively, the Participation
Agreement, the Indenture, each Indenture Supplement, the Manufacturer's Consent
and the Equipment Notes.
"Other Party Liens" means any Lien attributable to the Pass Through
Trustee (other than in its capacity as Noteholder), the Subordination Agent
(other than in its capacity as Noteholder) or the Liquidity Provider on or
against the Aircraft, any interest therein, or any portion of the Collateral
arising out of any claim against such party that is not related to the Operative
Documents or Pass Through Documents, or out of any act or omission of such party
that is not related to the transactions contemplated by, or that constitutes a
breach by such party of its obligations under, the Operative Documents or the
Pass Through Documents.
"Participation Agreement" has the meaning set forth under the
definition of "Agreement".
"Parts" means any and all appliances, parts, instruments,
appurtenances, accessories, furnishings and other equipment of whatever nature
(other than (a) complete Engines or engines, (b) any items leased by the Company
or any Permitted Lessee, (c) cargo containers, (d) components or systems
installed on or affixed to the Airframe that are used to provide individual
telecommunications or electronic entertainment to passengers aboard the
Aircraft, (e) medical and similar emergency equipment and (f) passenger service
items and equipment generally used in but not affixed to the Aircraft, such as
blankets, coffee pots, beverage and meal servicing carts, etc.), so long as the
same are incorporated or installed in or attached to the Airframe or any Engine
or so long as the same are subject to the Lien of the Indenture in accordance
with the terms of Section 7.04 thereof after removal from the Airframe or any
Engine.
"Pass Through Certificates" means the pass through certificates
issued by the Pass Through Trustees.
"Pass Through Documents" means the Pass Through Trust Agreements,
the Intercreditor Agreement and the Liquidity Facilities.
"Pass Through Trust" means each of the five separate grantor trusts
created pursuant to the Pass Through Trust Agreements to facilitate certain of
the transactions contemplated by the Operative Documents.
"Pass Through Trust Agreement" means each of the five separate Trust
Supplements together in each case with the Basic Pass Through Trust Agreement,
as the same may be amended, supplemented or otherwise modified from time to time
in accordance with its terms.
"Pass Through Trustee" has the meaning specified in the introductory
paragraph to the Participation Agreement.
"Pass Through Trustees" means, collectively, the Pass Through
Trustees under each Pass Through Trust Agreement.
"Past Due Rate" means, with respect to a particular Series, a rate
per annum equal to the applicable Debt Rate plus 1% and, in any case other than
with respect to a particular Series, the Debt Rate for the Series A-1 Equipment
Notes plus 1%.
"Payment Date" means, for any Equipment Note, each March 18 and
September 18, commencing with March 18, 2002.
"Payment Default" means the occurrence of an event that would give
rise to an Event of Default under Section 4.01(a) of the Indenture upon the
giving of notice or the passing of time or both.
"Permitted Investments" means each of (a) direct obligations of the
United States and agencies thereof; (b) obligations fully guaranteed by the
United States; (c) certificates of deposit issued by, or bankers' acceptances
of, or time deposits with, any bank, trust company or national banking
association incorporated or doing business under the laws of the United States
or one of the states thereof having combined capital and surplus and retained
earnings of at least $100,000,000 and having a rating of A, its equivalent or
better by Moody's Investors Service, Inc. ("Moody's") or Standard & Poor's
Ratings Services, a division of The McGraw-Hill Companies, Inc. ("S&P") (or, if
neither such organization then rates such institutions, by any nationally
recognized rating organization in the United States); (d) commercial paper of
any holding company of a bank, trust company or national banking association
described in clause (c); (e) commercial paper of companies having a rating
assigned to such commercial paper by either Moody's or S&P (or, if neither such
organization then rates such commercial paper, by any nationally recognized
rating organization in the United States) equal to either of the two highest
ratings assigned by such organization; (f) Dollar-denominated certificates of
deposit issued by, or time deposits with, the European subsidiaries of (i) any
bank, trust company or national banking association described in clause (c), or
(ii) any other bank or financial institution described in clause (h) or (i)
below; (g) United States-issued Yankee certificates of deposit issued by, or
bankers' acceptances of, or commercial paper issued by, any bank having combined
capital and surplus and retained earnings of at least $100,000,000 and
headquartered in Canada, Japan, the United Kingdom, France, Germany, Switzerland
or The Netherlands and having a rating of A, its equivalent or better by Moody's
or S&P (or, if neither such organization then rates such institutions, by any
nationally recognized rating organization in the United States); (h)
Dollar-denominated time deposits with any Canadian bank having a combined
capital and surplus and retained earnings of at least $100,000,000 and having a
rating of A, its equivalent or better by Moody's or S&P (or, if neither such
organization then rates such institutions, by any nationally recognized rating
organization in the United States); (i) Canadian Treasury Bills fully hedged to
Dollars; (j) repurchase agreements with any financial institution having
combined capital and surplus and retained earnings of at least $100,000,000
collateralized by transfer of possession of any of the obligations described in
clauses (a) through (i) above; (k) bonds, notes or other obligations of any
state of the United States, or any political subdivision of any state, or any
agencies or other instrumentalities of any such state, including, but not
limited to, industrial development bonds, pollution control revenue bonds,
public power bonds, housing bonds, other revenue bonds or any general obligation
bonds, that, at the time of their purchase, such obligations are rated A, its
equivalent or better by Moody's or S&P (or, if neither such organization then
rates such obligations, by any nationally recognized rating organization in the
United States); (1) bonds or other debt instruments of any company, if such
bonds or other debt instruments, at the time of their purchase, are rated A, its
equivalent or better by Moody's or S&P (or, if neither such organization then
rates such obligations, by any nationally recognized rating organization in the
United States); (m) mortgage backed securities (i) guaranteed by the Federal
National Mortgage Association, the Federal Home Loan Mortgage Corporation or the
Government National Mortgage Association or rated AAA, its equivalent or better
by Moody's or S&P (or, if neither such organization then rates such obligations,
by any nationally recognized rating organization in the United States) or, if
unrated, deemed to be of a comparable quality by the Loan Trustee and (ii)
having an average life not to exceed 15 years as determined by standard industry
pricing practices presently in effect; (n) asset-backed securities rated A, its
equivalent or better by Moody's or S&P (or, if neither such organization then
rates such obligations, by any nationally recognized rating organization in the
United States) or, if unrated, deemed to be of a comparable quality by the Loan
Trustee; and (o) such other investments approved in writing by the Loan Trustee;
provided that, except in clause (m), the instruments described in the foregoing
clauses shall have a maturity of no more than six months from the date of
acquisition thereof. The bank acting as Pass Through Trustee or Loan Trustee is
hereby authorized, in making or disposing of any investment described herein, to
deal with itself (in its individual capacity) or with any one or more of its
affiliates, whether it or such affiliate is acting as an agent of the Pass
Through Trustee or the Loan Trustee or for any third person or dealing as
principal for its own account.
"Permitted Lessee" means any Person to whom the Company is permitted
to lease the Airframe or any Engine pursuant to Section 7.02(a) of the
Indenture.
"Permitted Lien" has the meaning specified in Section 7.01 of the
Indenture.
"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.
"Purchase Agreement" means Purchase Agreement No. 2022, dated as of
October 21, 1997, which incorporates by reference the Aircraft General Terms
Agreement AGTA-DAL, dated as of October 21, 1997, between the Manufacturer and
the Company, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with its terms.
"Rating Agencies" has the meaning specified in the Intercreditor
Agreement.
"Related Indemnitee Group" has the meaning specified in Section
4.02(b) of the Participation Agreement.
"Replacement Aircraft" means the Aircraft of which a Replacement
Airframe is part.
"Replacement Airframe" means a Boeing 737-832 aircraft or a
comparable or improved model of the Manufacturer (except (a) Engines or engines
from time to time installed thereon and any and all Parts related to such Engine
or engines and (b) items excluded from the definition of Parts (except Engines
or engines)), that shall have been made subject to the Lien of the Indenture
pursuant to Section 7.05 thereof, together with all Parts relating to such
aircraft.
"Replacement Engine" means a CFM International, Inc. CFM56-7B26
engine (or an engine of the same or another manufacturer of a comparable or an
improved model and suitable for installation and use on the Airframe with the
other Engine (or any other Replacement Engine being substituted simultaneously
therewith)) that is made subject to the Lien of the Indenture pursuant to
Section 7.04 or Section 7.05 thereof, together with all Parts relating to such
engine.
"Responsible Officer" means, with respect to the Company, its
Chairman of the Board, its President, its Chief Operating Officer, any Executive
Vice President, any Senior Vice President, the Chief Financial Officer, any Vice
President, the Treasurer, the Controller or the Secretary.
"Section 1110" means Section 1110 of the Bankruptcy Code.
"Secured Obligations" has the meaning specified in Section 2.06 of
the Indenture.
"Series" means any series of Equipment Notes, including the Series
A-1 Equipment Notes, the Series A-2 Equipment Notes, the Series B Equipment
Notes, the Series C Equipment Notes or the Series D Equipment Notes.
"Series A-1 Equipment Notes" means Equipment Notes issued and
designated as "Series A-1 Equipment Notes" under the Indenture, in the original
principal amount and maturities and bearing interest as specified in Schedule I
to the Indenture under the heading "Series A-1 Equipment Notes."
"Series A-2 Equipment Notes" means Equipment Notes issued and
designated as "Series A-2 Equipment Notes" under the Indenture, in the original
principal amount and maturities and bearing interest as specified in Schedule I
to the Indenture under the heading "Series A-2 Equipment Notes."
"Series B Equipment Notes" means Equipment Notes issued and
designated as "Series B Equipment Notes" under the Indenture, in the original
principal amount and maturities and bearing interest as specified in Schedule I
to the Indenture under the heading "Series B Equipment Notes."
"Series C Equipment Notes" means Equipment Notes issued and
designated as "Series C Equipment Notes" under the Indenture, in the original
principal amount and maturities and bearing interest as specified in Schedule I
to the Indenture under the heading "Series C Equipment Notes."
"Series D Equipment Notes" means Equipment Notes issued and
designated as "Series D Equipment Notes" under the Indenture, in the original
principal amount and maturities and bearing interest as specified in Schedule I
to the Indenture under the heading "Series D Equipment Notes".
"State Street" has the meaning specified in the introductory
paragraph of the Participation Agreement.
"Subordination Agent" has the meaning specified in the introductory
paragraph of the Participation Agreement.
"Tax" and "Taxes" mean all governmental fees (including, without
limitation. license, filing and registration fees) and all taxes (including,
without limitation, franchise, excise, stamp, value added, income, gross
receipts, sales, use and property taxes), withholdings, assessments, levies,
imposts, duties or charges, of any nature whatsoever, together with any related
penalties, fines, additions to tax or interest thereon imposed, withheld, levied
or assessed by any country, taxing authority or governmental subdivision thereof
or therein or by any international authority, including any taxes imposed on any
Person as a result of such Person being required to collect and pay over
withholding taxes.
"Transportation Code" means that portion of Title 49 of the United
States Code comprising those provisions formerly referred to as the Federal
Aviation Act of 1958, as amended, or any subsequent legislation that amends,
supplements or supersedes such provisions.
"Trust Supplements" means those agreements supplemental to the Basic
Pass Through Trust Agreement referred to in Schedule II to the Participation
Agreement.
"Underwriters" means the several underwriters listed as such in the
Underwriting Agreement.
"Underwriting Agreement" means that certain Underwriting Agreement,
dated September 6, 2001, among the Company and the Underwriters.
"United States" means the United States of America.
"U.S. Government Obligations" means securities that are direct
obligations of the United States for the payment of which its full faith and
credit is pledged which are not callable or redeemable, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligations or a specific payment of interest on or
principal of any such U.S. Government Obligations held by such custodian for the
account of the holder of a depository receipt so long as such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligations or the specific payment of interest on or principal
of the U.S. Government Obligations evidenced by such depository receipt.
"Warranty Bill of Sale" means the warranty (as to title) bill of
sale covering the Aircraft executed by the Manufacturer or an affiliate of the
Manufacturer in favor of the Company and specifically referring to each Engine,
as well as the Airframe, constituting a part of the Aircraft.
"Warranty Rights" means all right and interest of the Company in, to
and under Parts 1, 2, 3, 4 and 6 of the Product Assurance Document attached as
Exhibit C to the Aircraft General Terms Agreement AGTA-DAL, but only to the
extent the same relate to continuing rights of the Company in respect of any
warranty or indemnity, express or implied, pursuant to the Product Assurance
Document with respect to the Airframe, it being understood that the Warranty
Rights exclude any and all other right, title and interest of the Company in, to
and under the Purchase Agreement and that the Warranty Rights are subject to the
terms of the Manufacturer's Consent.
EX-99
16
de600102-ex99a.txt
SCHEDULE I
EXHIBIT 99(a)
SCHEDULE I
The following documents relating to one Boeing 737-832 aircraft
bearing United States registration number N3731T (hereinafter collectively
referred to as the "N3731T Documents") have been provided in this filing: (a)
Participation Agreement (N3731T), dated as of September 17, 2001, among Delta
Air Lines, Inc. (the "Company"), State Street Bank and Trust Company of
Connecticut, National Association, as Pass Through Trustee under each of the
Pass Through Trust Agreements (the "Pass Through Trustee"), State Street Bank
and Trust Company of Connecticut, as Subordination Agent under the Intercreditor
Agreement (the Subordination Agent"), State Street Bank and Trust Company of
Connecticut, National Association, as loan trustee (the "Loan Trustee"), and
State Street Bank and Trust Company of Connecticut, National Association, in its
individual capacity as set forth therein ("State Street"); and (b) Indenture and
Security Agreement (N3731T), dated as of September 17, 2001, between the Company
and the Loan Trustee.
The corresponding documents listed below are substantially identical
in all material respects to the N3731T Documents, with the following exceptions:
(1) conforming changes have been made to reflect the appropriate United States
registration number of each aircraft (i.e., N3732J, N3733Z, N3734B, etc.), the
appropriate model of each aircraft (i.e., 737-832, 757-232, 767-332ER) and the
appropriate manufacturer's serial number of each aircraft; (2) the description
and original principal amount of the equipment notes set forth on Schedule I to
each Participation Agreement differ; (2) the dollar amount set forth on Exhibit
C to each Indenture and Security Agreement differs according to the model of
each aircraft; (3) conforming changes have been made to reflect the appropriate
engines relating to each aircraft (i.e., CFM International, Inc. CFM56-7B26,
United Technologies Corporation PW2037, General Electric Company CF6-80C2B6F);
and (4) the definitions set forth in Annex A to each Participation Agreement and
Indenture and Security Agreement differ.
(1)(a) Participation Agreement (N3732J), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(1)(b) Indenture and Security Agreement (N3732J), dated as of September 17,
2001, between the Company and the Loan Trustee.
(2)(a) Participation Agreement (N3733Z), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(2)(b) Indenture and Security Agreement (N3733Z), dated as of September 17,
2001, between the Company and the Loan Trustee.
(3)(a) Participation Agreement (N3734B), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(3)(b) Indenture and Security Agreement (N3734B), dated as of September 17,
2001, between the Company and the Loan Trustee.
(4)(a) Participation Agreement (N3735D), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(4)(b) Indenture and Security Agreement (N3735D), dated as of September 17,
2001, between the Company and the Loan Trustee.
(5)(a) Participation Agreement (N3736C), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(5)(b) Indenture and Security Agreement (N3736C), dated as of September 17,
2001, between the Company and the Loan Trustee.
(6)(a) Participation Agreement (N3737C), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(6)(b) Indenture and Security Agreement (N3737C), dated as of September 17,
2001, between the Company and the Loan Trustee.
(7)(a) Participation Agreement (N3738B), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(7)(b) Indenture and Security Agreement (N3738B), dated as of September 17,
2001, between the Company and the Loan Trustee.
(8)(a) Participation Agreement (N3739P), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(8)(b) Indenture and Security Agreement (N3739P), dated as of September 17,
2001, between the Company and the Loan Trustee.
(9)(a) Participation Agreement (N3740C), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(9)(b) Indenture and Security Agreement (N3740C), dated as of September 17,
2001, between the Company and the Loan Trustee.
(10)(a) Participation Agreement (N3741S), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(10)(b) Indenture and Security Agreement (N3741S), dated as of September 17,
2001, between the Company and the Loan Trustee.
(11)(a) Participation Agreement (N3742C), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(11)(b) Indenture and Security Agreement (N3742C), dated as of September 17,
2001, between the Company and the Loan Trustee.
(12)(a) Participation Agreement (N3743H), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(12)(b) Indenture and Security Agreement (N3743H), dated as of September 17,
2001, between the Company and the Loan Trustee.
(13)(a) Participation Agreement (N3744F), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(13)(b) Indenture and Security Agreement (N3744F), dated as of September 17,
2001, between the Company and the Loan Trustee.
(14)(a) Participation Agreement (N3745B), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(14)(b) Indenture and Security Agreement (N3745B), dated as of September 17,
2001, between the Company and the Loan Trustee.
(15)(a) Participation Agreement (N3747D), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(15)(b) Indenture and Security Agreement (N3747D), dated as of September 17,
2001, between the Company and the Loan Trustee.
(16)(a) Participation Agreement (N685DA), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(16)(b) Indenture and Security Agreement (N685DA), dated as of September 17,
2001, between the Company and the Loan Trustee.
(17)(a) Participation Agreement (N686DA), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(17)(b) Indenture and Security Agreement (N686DA), dated as of September 17,
2001, between the Company and the Loan Trustee.
(18)(a) Participation Agreement (N687DL), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(18)(b) Indenture and Security Agreement (N687DL), dated as of September 17,
2001, between the Company and the Loan Trustee.
(19)(a) Participation Agreement (N688DL), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(19)(b) Indenture and Security Agreement (N688DL), dated as of September 17,
2001, between the Company and the Loan Trustee.
(20)(a) Participation Agreement (N689DL), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(20)(b) Indenture and Security Agreement (N689DL), dated as of September 17,
2001, between the Company and the Loan Trustee.
(21)(a) Participation Agreement (N690DL), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(21)(b) Indenture and Security Agreement (N690DL), dated as of September 17,
2001, between the Company and the Loan Trustee.
(22)(a) Participation Agreement (N692DL), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(22)(b) Indenture and Security Agreement (N692DL), dated as of September 17,
2001, between the Company and the Loan Trustee.
(23)(a) Participation Agreement (N693DL), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(23)(b) Indenture and Security Agreement (N693DL), dated as of September 17,
2001, between the Company and the Loan Trustee.
(24)(a) Participation Agreement (N694DL), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(24)(b) Indenture and Security Agreement (N694DL), dated as of September 17,
2001, between the Company and the Loan Trustee.
(25)(a) Participation Agreement (N695DL), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(25)(b) Indenture and Security Agreement (N695DL), dated as of September 17,
2001, between the Company and the Loan Trustee.
(26)(a) Participation Agreement (N6714Q), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(26)(b) Indenture and Security Agreement (N6714Q), dated as of September 17,
2001, between the Company and the Loan Trustee.
(27)(a) Participation Agreement (N6715C), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(27)(b) Indenture and Security Agreement (N6715C), dated as of September 17,
2001, between the Company and the Loan Trustee.
(28)(a) Participation Agreement (N6716C), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(28)(b) Indenture and Security Agreement (N6716C), dated as of September 17,
2001, between the Company and the Loan Trustee.
(29)(a) Participation Agreement (N169DZ), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(29)(b) Indenture and Security Agreement (N169DZ), dated as of September 17,
2001, between the Company and the Loan Trustee.
(30)(a) Participation Agreement (N171DZ), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(30)(b) Indenture and Security Agreement (N171DZ), dated as of September 17,
2001, between the Company and the Loan Trustee.
(31)(a) Participation Agreement (N172DZ), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(31)(b) Indenture and Security Agreement (N172DZ), dated as of September 17,
2001, between the Company and the Loan Trustee.
(32)(a) Participation Agreement (N173DZ), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(32)(b) Indenture and Security Agreement (N173DZ), dated as of September 17,
2001, between the Company and the Loan Trustee.
(33)(a) Participation Agreement (N1608), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(33)(b) Indenture and Security Agreement (N1608), dated as of September 17,
2001, between the Company and the Loan Trustee.
(34)(a) Participation Agreement (N1609), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(34)(b) Indenture and Security Agreement (N1609), dated as of September 17,
2001, between the Company and the Loan Trustee.
(35)(a) Participation Agreement (N1610D), dated as of September 17, 2001, among
the Company, the Pass Through Trustee, the Subordination Agent and
State Street Bank and Trust Company of Connecticut, National
Association, as loan trustee, and State Street Bank.
(35)(b) Indenture and Security Agreement (N1610D), dated as of September 17,
2001, between the Company and the Loan Trustee.