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EXHIBIT 4.13
INTERCREDITOR AGREEMENT
Dated as of
June __, 1997
AMONG
FLEET NATIONAL BANK,
not in its individual capacity
but solely as Trustee under the
America West Airlines Pass Through Trust 0000-0X,
Xxxxxxx Xxxx Xxxxxxxx Xxxx Through Trust 0000-0X,
Xxxxxxx Xxxx Xxxxxxxx Xxxx Through Trust 0000-0X
xxx
Xxxxxxx Xxxx Xxxxxxxx Xxxx Through Trust 1997-1D
KREDIETBANK N.V.,
NEW YORK BRANCH,
as Class A Liquidity Provider,
Class B Liquidity Provider
and Class C Liquidity Provider,
AND
FLEET NATIONAL BANK,
not in its individual capacity except
as expressly set forth herein but
solely as Subordination Agent and trustee hereunder
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
TRUST ACCOUNTS; CONTROLLING PARTY . . . . . . . . . . . . . . . . . . . 21
SECTION 2.1 Agreement to Terms of Subordination; Payments from Monies Received Only . . . . . . . . . . . . 21
SECTION 2.2 Trust Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.3 Deposits to the Collection Account and Special Payments Account . . . . . . . . . . . . . . . . 23
SECTION 2.4 Distributions of Special Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.5 Designated Representatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.6 Controlling Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
AMOUNTS RECEIVED . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.1 Written Notice of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.2 Distribution of Amounts on Deposit in the Collection Account . . . . . . . . . . . . . . . . . 31
SECTION 3.3 Distribution of Amounts on Deposit Following a Triggering Event . . . . . . . . . . . . . . . 33
SECTION 3.4 Other Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 3.5 Payments to the Trustees and the Liquidity Providers . . . . . . . . . . . . . . . . . . . . . 35
SECTION 3.6 Liquidity Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE IV
EXERCISE OF REMEDIES . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 4.1 Directions from the Controlling Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 4.2 Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.3 Discontinuance of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.4 Right of Certificateholders and Liquidity Providers to Receive Payments Not
to Be Impaired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.5 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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ARTICLE V
DUTIES OF THE SUBORDINATION AGENT;
AGREEMENTS OF TRUSTEES, ETC. . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.1 Notice of Indenture Default or Triggering
Event, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.2 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.3 No Duties Except as Specified in Intercreditor Agreement . . . . . . . . . . . . . . . . . . . 46
SECTION 5.4 Notice from the Liquidity Providers and Trustees . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE VI
THE SUBORDINATION AGENT . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.1 Authorization; Acceptance of Trusts and Duties . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.2 Absence of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.3 No Representations or Warranties as to Documents . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.4 No Segregation of Monies; No Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.5 Reliance; Agents; Advice of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.6 Capacity in Which Acting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.7 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.8 May Become Certificateholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.9 Subordination Agent Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.10 Money to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE VII
INDEMNIFICATION AND REIMBURSEMENT OF SUBORDINATION AGENT . . . . . . . . . . . . . . 50
SECTION 7.1 Scope of Indemnification and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE VIII
SUCCESSOR SUBORDINATION AGENT . . . . . . . . . . . . . . . . . . . . 50
SECTION 8.1 Replacement of Subordination Agent;Appointment of Successor . . . . . . . . . . . . . . . . . . 50
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ARTICLE IX
SUPPLEMENTS AND AMENDMENTS . . . . . . . . . . . . . . . . . . . . . 52
SECTION 9.1 Amendments, Waivers, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 9.2 Subordination Agent Protected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 9.3 Effect of Supplemental Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 9.4 Notice to Rating Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE X
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 10.1 Termination of Intercreditor Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 10.2 Intercreditor Agreement for Benefit of Trustees, Liquidity Providers and
Subordination Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.4 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 10.5 No Oral Modifications or Continuing Waivers . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 10.6 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 10.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 10.8 Counterpart Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 10.9 Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.10 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Schedule 1 Indentures
Schedule 2 Refunding Agreements
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INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT (as amended, modified and supplemented
from time to time, this "Agreement") dated as of June __, 1997, among FLEET
NATIONAL BANK, a national banking association ("Fleet"), not in its individual
capacity but solely as Trustee of each Trust (each as defined below),
KREDIETBANK N.V., acting through its New York Branch ("Kredietbank"), as Class
A Liquidity Provider, Class B Liquidity Provider and Class C Liquidity
Provider, and FLEET NATIONAL BANK, a national banking association, not in its
individual capacity except as expressly set forth herein, but solely as
Subordination Agent and trustee hereunder (in such capacity, together with any
successor appointed pursuant to Article VIII hereof, the "Subordination
Agent").
WHEREAS, all capitalized terms used herein shall have the
respective meanings referred to in Article I hereof;
WHEREAS, pursuant to each Indenture, the related Owner Trustee
proposes to issue on a nonrecourse basis up to four series of Equipment Notes
to refinance the current indebtedness of such Owner Trustee originally incurred
to finance the purchase of the Aircraft referred to in such Indenture which has
been leased to America West pursuant to the related Lease;
WHEREAS, pursuant to the Refunding Agreements, each Trust will
acquire those Equipment Notes having an interest rate equal to the interest
rate applicable to the Certificates to be issued by such Trust;
WHEREAS, pursuant to each Trust Agreement, the Trust created
thereby proposes to issue a single series 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
Underwriter proposes to purchase the Certificates issued by each Trust in the
aggregate face amount set forth under the name of such Trust on Schedule I
thereto on the terms and subject to the conditions set forth therein;
WHEREAS, each Liquidity Provider proposes to enter into a
revolving credit agreement (each, a "Liquidity Facility") with the
Subordination Agent, as agent for the respective Trustee of each Trust (other
than the Class D Trust), for the benefit of the Certificateholders of such
Trust; and
WHEREAS, it is a condition precedent to the obligations of the
Underwriter under the Underwriting Agreement that the Subordination Agent, the
Trustees and the Liquidity Providers agree to the terms of subordination set
forth in this Agreement
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in respect of each Class of Certificates, and the Subordination Agent, the
Trustees and the Liquidity Providers, by entering into this Agreement, hereby
acknowledge and agree to such terms of subordination and the other provisions
of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms used herein that are defined in this
Article have the meanings assigned to them in this Article, and
include the plural as well as the singular;
(2) all references in this Agreement to designated
"Articles", "Sections" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this Agreement;
(3) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Agreement as a whole and
not to any particular Article, Section or other subdivision; and
(4) the term "including" shall mean "including without
limitation".
"Acceleration" means, with respect to the amounts payable in
respect of the Equipment Notes issued under any Indenture, the declaration or
deemed declaration (pursuant to Section 4.04(b) or (c) of such Indenture) of
such amounts to be immediately due and payable. "Accelerate" and "Accelerated"
have meanings correlative to the foregoing.
"Adjusted Expected Distributions" means, with respect to the
Certificates of any Class on any Current Distribution Date, the sum of (x) the
amount of accrued and unpaid interest on such Certificates plus (y) the greater
of:
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(A) the difference between (x) the Pool Balance of such
Certificates as of the immediately preceding Distribution Date 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 and (ii) the principal of the Performing Equipment Notes
has been paid when due (but without giving effect to any acceleration
of Performing Equipment Notes) and has been distributed to the holders
of such Certificates; and
(B) the amount if any by which (i) the Pool Balance of
such Class of Certificates as of the immediately preceding
Distribution Date exceeds (ii) the Aggregate LTV Collateral Amount for
such Class of Certificates for the Current Distribution Date;
provided that, until the date of the initial LTV Appraisals, clause (B) above
shall not be applicable.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by or under common
control with such Person. For the purposes of this definition, "control" means
the power, directly or indirectly, to direct or cause the direction of the
management and policies of such Person whether through the ownership of voting
securities or by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Aggregate LTV Collateral Amount" means, for any Class of
Certificates for any Distribution Date, the sum of the applicable LTV
Collateral Amounts for each Aircraft minus the Pool Balance for each Class of
Certificates, if any, senior to such Class after giving effect to any
distribution of principal on such Distribution Date on such senior Class or
Classes, but in no event an amount less than zero.
"Agreement" has the meaning assigned to such term in the
preamble hereto.
"Aircraft" means, with respect to each Indenture, the
"Aircraft" referred to therein.
"America West" means America West Airlines, Inc., a Delaware
corporation, and its successors and assigns.
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"America West Bankruptcy Event" means the occurrence and
continuation of any of the following:
(a) the commencement of an involuntary case or other
proceeding in respect of America West in an involuntary case under the
federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other similar
law in the United States or seeking the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of America West or for all or substantially all of its
property, or seeking the winding-up or liquidation of its affairs and
the continuation of any such case or other proceeding undismissed and
unstayed for a period of ninety (90) consecutive days or an order,
judgment or decree shall be entered in any proceeding by any court of
competent jurisdiction appointing, without the consent of America
West, a receiver, trustee or liquidator of America West, or of
substantially all of its property, or sequestering substantially all
of the property of America West and any such order, judgment or decree
or appointment or sequestration shall be final or shall remain in
force undismissed, unstayed or unvacated for a period of ninety (90)
days after the date of entry thereof; or
(b) the commencement by America West of a voluntary case
under the federal bankruptcy laws, as now constituted or hereafter
amended, or any other applicable federal or state bankruptcy,
insolvency or other similar law in the United States, or the consent
by America West to the appointment of or taking, possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or
other similar official) of America West or for all or substantially
all of its property, or the making by America West of any assignment
for the benefit of creditors generally or the taking by America West
of any corporate action to authorize any of the foregoing.
"Appraised Current Market Value" of any Aircraft means the
lower of the average or the median of the most recent three LTV Appraisals of
such Aircraft obtained pursuant to Section 4.1(a)(iv).
"Appraisers" means BK Associates, Inc., Aircraft Information
Services, Inc. and Xxxxxx Xxxxx and Associates.
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"Available Amount" means, with respect to any Liquidity
Facility on any drawing date, an amount equal to (a) the Stated Amount of such
Liquidity Facility, less (b) the aggregate amount of each Interest Drawing
honored by the Liquidity Provider under such Liquidity Facility on or prior to
such date which has not been reimbursed or reinstated as of such date; provided
that, following a Downgrade Drawing or a Final Drawing under such Liquidity
Facility, the Available Amount of such Liquidity Facility shall be zero.
"Bankruptcy Code" has the meaning assigned to such term in the
definition hereof of "Performing Equipment Note".
"Business Day" means any day other than a Saturday or Sunday
or a day on which commercial banks are required or authorized to close in New
York, New York or Hartford, Connecticut.
"Cash Collateral Account" means the Class A Cash Collateral
Account, the Class B Cash Collateral Account or the Class C Cash Collateral
Account, as applicable.
"Certificate" means a Class A Certificate, a Class B
Certificate, a Class C Certificate or a Class D Certificate, as applicable.
"Certificateholder" means any holder of one or more
Certificates.
"Class" has the meaning assigned to such term in the
preliminary statements to this Agreement.
"Class A Cash Collateral Account" means an Eligible Deposit
Account in the name of the Subordination Agent maintained at the Subordination
Agent, into which all amounts drawn under the Class A Liquidity Facility
pursuant to Section 3.6(c) or 3.6(i) shall be deposited.
"Class A Certificateholder" means, at any time, any holder of
one or more Class A Certificates.
"Class A Certificates" means the certificates issued by the
Class A Trust, substantially in the form of Exhibit A to the Class A Trust
Agreement, and authenticated by the Class A Trustee, representing fractional
undivided interests in the Class A Trust, and any certificates issued in
exchange therefor or replacement thereof pursuant to the terms of the Class A
Trust Agreement.
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"Class A Liquidity Facility" means, initially, the Irrevocable
Revolving Credit Agreement dated as of June __, 1997, between the Subordination
Agent, as agent and trustee for the Class A Trust, and the Class A Liquidity
Provider, and, from and after the replacement of such Agreement pursuant
hereto, the Replacement Liquidity Facility therefor, if any, in each case as
amended, supplemented or otherwise modified from time to time in accordance
with its terms.
"Class A Liquidity Provider" means Kredietbank N.V., acting
through its New York Branch, together with any Replacement Liquidity Provider
which has issued a Replacement Liquidity Facility to replace the Class A
Liquidity Facility pursuant to Section 3.6(e).
"Class A Trust" means America West Airlines 1997-1A Pass
Through Trust created and administered pursuant to the Class A Trust Agreement.
"Class A Trust Agreement" means the Pass Through Trust
Agreement dated as of June __, 1997 between America West and the Class A
Trustee, as supplemented by the Supplement No. 1997-1A thereto dated June __,
1997, governing the creation and administration of the Class A Trust and the
issuance of the Class A Certificates, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms.
"Class A Trustee" means Fleet, not in its individual capacity
except as expressly set forth in the Class A Trust Agreement, but solely as
trustee under the Class A 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 the Subordination
Agent, into which all amounts drawn under the Class B Liquidity Facility
pursuant to Section 3.6(c) or 3.6(i) shall be deposited.
"Class B Certificateholder" means, at any time, any holder 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
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or replacement thereof pursuant to the terms of the Class B Trust Agreement.
"Class B Liquidity Facility" means, initially, the Irrevocable
Revolving Credit Agreement dated as of June __, 1997, between the Subordination
Agent, as agent and trustee for the Class B Trust, and the Class B Liquidity
Provider, and, from and after the replacement of such Agreement pursuant
hereto, the Replacement Liquidity Facility therefor, if any, in each case as
amended, supplemented or otherwise modified from time to time in accordance
with its terms.
"Class B Liquidity Provider" means Kredietbank N.V., acting
through its New York Branch, together with any Replacement Liquidity Provider
which has issued a Replacement Liquidity Facility to replace the Class B
Liquidity Facility pursuant to Section 3.6(e).
"Class B Trust" means America West Airlines 1997-1B Pass
Through Trust created and administered pursuant to the Class B Trust Agreement.
"Class B Trust Agreement" means the Pass Through Trust
Agreement dated as of June __, 1997, between America West and the Class B
Trustee, as supplemented by the Supplement No. 1997-1B thereto dated June __,
1997, governing the creation and administration of the Class B Trust 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 Fleet, 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 the Subordination
Agent, into which all amounts drawn under the Class C Liquidity Facility
pursuant to Section 3.6(c) or 3.6(i) shall be deposited.
"Class C Certificateholder" means, at any time, any holder of
one or more Class C Certificates.
"Class C Certificates" means the certificates issued by the
Class C Trust, substantially in the form of Exhibit A to the Class C Trust
Agreement, and authenticated by the Class C
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Trustee, representing fractional undivided interests in the Class C Trust, and
any certificates issued in exchange therefor or in replacement thereof pursuant
to the terms of the Class C Trust Agreement.
"Class C Liquidity Facility" means, initially, the Irrevocable
Revolving Credit Agreement dated as of June __, 1997, between the Subordination
Agent, as agent and trustee for the Class C Trust, and the Class C Liquidity
Provider and, from and after the replacement of such Agreement pursuant hereto,
the Replacement Liquidity Facility therefor, if any, in each case as amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
"Class C Liquidity Provider" means Kredietbank N.V., acting
through its New York Branch, together with any Replacement Liquidity Provider
which has issued a Replacement Liquidity Facility to replace the Class C
Liquidity Facility pursuant to Section 3.6(e).
"Class C Trust" means America West Airlines 1997-1C Pass
Through Trust created and administered pursuant to the Class C Trust Agreement.
"Class C Trust Agreement" means the Pass Through Trust
Agreement dated as of June __, 1997, between America West and the Class C
Trustee, as supplemented by the Supplement No. 1997-1C thereto dated June __,
1997, governing the creation and administration of the Class C Trust 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 Fleet, 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 holder 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 in replacement thereof pursuant to the terms of the Class
D Trust Agreement.
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"Class D Trust" means America West Airlines 1997-1D Pass
Through Trust created and administered pursuant to the Class D Trust Agreement.
"Class D Trust Agreement" means the Pass Through Trust
Agreement dated as of June __, 1997, between America West and the Class D
Trustee, as supplemented by the Supplement No. 1997-1D thereto dated June __,
1997, governing the creation and administration of the Class D Trust 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 Fleet, 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 June __, 1997.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and Treasury Regulations promulgated thereunder.
"Collection Account" means the Eligible Deposit Account
established by the Subordination Agent pursuant to Section 2.2 which the
Subordination Agent shall make deposits in and withdrawals from in accordance
with this Agreement.
"Controlling Party" means the Person entitled to act as such
pursuant to the terms of Section 2.6.
"Current Distribution Date" means a Distribution Date
specified as a reference date for calculating the Adjusted Expected
Distributions or Expected Distributions with respect to the Certificates of any
Trust as of such Distribution Date.
"Designated Representatives" means the Subordination Agent
Representatives, the Trustee Representatives and the LP Representatives
identified under Section 2.5.
"Distribution Date" means a Regular Distribution Date or a
Special Distribution Date.
"Dollars" or "$" means United States dollars.
"Downgrade Drawing" has the meaning assigned to such term in
Section 3.6(c).
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"Downgraded Facility" has the meaning assigned to such term
in Section 3.6(c).
"Drawing" means an Interest Drawing, a Final Drawing or a
Downgrade Drawing, as the case may be.
"Eligible Deposit Account" means either (a) a segregated
account with an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution organized under the laws
of the United States of America or any one of the states thereof or the
District of Columbia (or any U.S. branch of a foreign bank), having corporate
trust powers and acting as trustee for funds deposited in such account, so long
as any of the securities of such depository institution has a long-term
unsecured debt rating from each Rating Agency of at least A-3 or its
equivalent. An Eligible Deposit Account may be maintained with a Liquidity
Provider so long as such Liquidity Provider is an Eligible Institution;
provided that such Liquidity Provider shall have waived all rights of setoff
and counterclaim with respect to such account.
"Eligible Institution" means (a) the corporate trust
department of the Subordination Agent or any Trustee, as applicable, or (b) a
depository institution organized under the laws of the United States of America
or any one of the states thereof or the District of Columbia (or any U.S.
branch of a foreign bank), which has a long-term unsecured debt rating from
each Rating Agency of at least A-3 or its equivalent.
"Eligible Investments" means (a) investments in obligations
of, or guaranteed by, the United States Government having maturities no later
than 90 days following the date of such investment, (b) investments in open
market commercial paper of any corporation incorporated under the laws of the
United States of America or any state thereof with a short-term unsecured debt
rating issued by Moody's and Standard & Poor's of at least A-1 and P-1,
respectively, having maturities no later than 90 days following the date of
such investment, (c) investments in negotiable certificates of deposit, time
deposits, banker's acceptances, commercial paper or other direct obligations
of, or obligations guaranteed by, commercial banks organized under the laws of
the United States or of any political subdivision thereof (or any U.S. branch
of a foreign bank) with issuer ratings of at least B/C by Thomson BankWatch,
Inc., having maturities no later than 90 days following the date of such
investment or (d) investments in any U.S. money market fund registered under
the Investment Company Act of 1940, as amended, which has been issued the
highest rating in its category by Moody's and Standard & Poor's that invests
solely in obligations described in clause (a) above;
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provided, however, that (x) all Eligible Investments that are bank obligations
shall be denominated in U.S. dollars; and (y) the aggregate amount of Eligible
Investments at any one time that are bank obligations issued by any one bank
shall not be in excess of 5% of such bank's capital surplus; provided further
that (1) any investment of the types described in clauses (a), (b), (c) and (d)
above may be made through a repurchase agreement in commercially reasonable
form with a bank or other financial institution qualifying as an Eligible
Institution so long as such investment is held by a third party custodian also
qualifying as an Eligible Institution, and (2) all such investments set forth
in clauses (a), (b), (c) and (d) above mature no later than the Business Day
immediately preceding the next Regular Distribution Date; provided further,
however, that in the case of any Eligible Investment issued by a domestic
branch of a foreign bank, the income from such investment shall be from sources
within the United States for purposes of the Code. Notwithstanding the
foregoing, no investment of the types described in clause (b), (c) or (d) above
which is issued or guaranteed by a Liquidity Provider or America West or any of
their respective Affiliates shall be an Eligible Investment.
"Equipment Notes" means, at any time, the Series A 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 on such Certificates and (y) the difference between
(A) the Pool Balance of such Certificates as of the immediately preceding
Distribution Date and (B) the Pool Balance of such Certificates as of the
Current Distribution Date, calculated on the basis that the principal of the
Equipment Notes held in such Trust has been paid when due (whether at stated
maturity, upon redemption, prepayment, purchase or acceleration or otherwise)
and such payments have been distributed to the holders of such Certificates.
"Final Distributions" means, with respect to the Certificates
of any Trust on any Distribution Date, the sum of (a) the aggregate amount of
all accrued and unpaid interest on such Certificates and (b) the Pool Balance
of such Certificates as of the immediately preceding Distribution Date.
"Final Drawing" means, in respect of a Liquidity Facility, a
borrowing or drawing of all available and undrawn
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amounts under such Liquidity Facility in accordance with the provisions thereof
other than a Downgrade Drawing.
"Final Legal Distribution Date" means, for the Class A
Certificates, _______________, for the Class B Certificates, _______________,
for the Class C Certificates, _______________ and for the Class D Certificates,
____________.
"Fleet" has the meaning assigned to such term in the preamble
to this Agreement.
"Indenture" means each Trust Indenture and Security Agreement
listed on Schedule 1 hereto, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
"Indenture Default" means, with respect to any Indenture, any
Indenture Event of Default (as such term is defined in such Indenture)
thereunder.
"Indenture Documents" means the "Indenture Documents" under
and as defined in each Indenture.
"Indenture Trustee" means, with respect to any Indenture, the
indenture trustee thereunder.
"Interest Drawing" has the meaning assigned to such term in
Section 3.6(a).
"Investment Earnings" means investment earnings on funds on
deposit in the Trust Accounts net of losses and investment expenses of the
Subordination Agent in making such investments.
"Lease" means, with respect to each Indenture, the "Lease"
referred to therein.
"Lending Office" means the lending office of the Liquidity
Provider, presently located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, or
such other lending office as the Liquidity Provider from time to time shall
notify the Subordination Agent and the Trustee as its lending office hereunder.
"Lien" means any mortgage, pledge, lien, charge, claim,
disposition of title, encumbrance or security interest of any kind, including,
without limitation, any thereof arising under any conditional sales or other
title retention agreement.
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"Liquidity Event of Default" with respect to any Liquidity
Facility, has the meaning assigned to such term in such Liquidity Facility.
"Liquidity Expenses" means all Liquidity Obligations other
than (i) the principal amount of any Drawings under the Liquidity Facilities
and (ii) any interest accrued on any Liquidity Obligations.
"Liquidity Facility" means, at any time, the Class A Liquidity
Facility, 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, Sections 10 and 13 of the Leases and Section 21 of the Refunding
Agreements.
"Liquidity Provider" means, at any time, the Class A Liquidity
Provider, the Class B Liquidity Provider or the Class C Liquidity Provider, as
applicable.
"LP Incumbency Certificate" has the meaning assigned to such
term in Section 2.5(c).
"LP Representatives" has the meaning assigned to such term in
Section 2.5(c).
"LTV Appraisal" means a current fair market appraisal (which
may be a "desktop" appraisal) performed by any Appraiser or any other
nationally recognized appraiser on the basis of an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller under no compulsion to sell, both parties having
knowledge of all relevant facts.
"LTV Collateral Amount" of any Aircraft for any Class of
Certificates on any Distribution Date means the lesser of (i) the LTV Ratio for
such Class of Certificates multiplied by the Appraised Current Market Value of
such Aircraft and (ii) the outstanding principal amount of the Equipment Notes
secured by such Aircraft after giving effect to any principal payments of such
Equipment Notes on or before such Distribution Date.
"LTV Ratio" means for the Class A Certificates ____%, for the
Class B Certificates ____%, for the Class C Certificates ____% and for the
Class D Certificates ____%.
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"Margin" has the meaning assigned thereto in each of the
Liquidity Facilities.
"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 based upon
the most recent LTV Appraisal and (b) the aggregate outstanding principal
amount of such Equipment Notes, plus accrued and unpaid interest thereon.
"Moody's" means Xxxxx'x 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-Performing Equipment Notes" means Equipment Notes issued
pursuant to an Indenture other than Performing Equipment Notes.
"Operative Agreements" means this Agreement, the Liquidity
Facilities, the Indentures, the Trust Agreements, the Underwriting Agreement,
the Refunding Agreements, the Leases, the Equipment Notes and the Certificates,
together with all exhibits and schedules included with any of the foregoing and
each of the other documents and instruments referred to in the definition of
"Operative Documents" contained in the Leases.
"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 cancelled
by the Registrar (as defined in such Trust Agreement) or delivered to
the Trustee thereunder or such Registrar for cancellation;
(ii ) Certificates of such Class for which money in the
full amount required to make the final distribution with respect to
such Certificates pursuant to Section 11.01 of such Trust Agreement
has been theretofore deposited with the related Trustee in trust for
the holders of such Certificates as provided in Section 4.01 of such
Trust Agreement pending distribution of such money to such
Certificateholders pursuant to such final distribution payment; and
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(iii) Certificates of such Class in exchange for or in
lieu of which other Certificates have been authenticated and delivered
pursuant to such Trust Agreement;
provided, however, that in determining whether the holders of the requisite
outstanding amount of such Certificates have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, any Certificates
owned by America West, any related Owner Trustee, any related Owner Participant
or any Affiliate of such Person shall be disregarded and deemed not to be
outstanding (provided that if any such Person or Affiliate thereof owns 100% of
the Certificates of any Class, such Certificates shall not be so disregarded),
except that, in determining whether such Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Certificates that a Responsible Officer of the Trustee knows to be
so owned shall be so disregarded. Certificates so owned that have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the applicable Trustee the pledgee's right to so act with
respect to such Certificates and that the pledgee is not America West or any of
its Affiliates.
"Overdue Scheduled Payment" means any Scheduled Payment which
is not in fact received by the Subordination Agent within five days of the
Scheduled Payment Date relating thereto.
"Owner Participant" means, with respect to any Refunding
Agreement, the Owner Participant (as defined therein).
"Owner Trustee" means, with respect to any Indenture, the
Owner Trustee (as defined therein) not in its individual capacity but solely as
trustee under the related owner trust agreement, together with any successor
trustee appointed pursuant to such owner trust agreement.
"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 thereof); provided
that in the event of a bankruptcy proceeding involving America West under Title
11 of the United States Code (the "Bankruptcy Code"), (i) any payment default
existing during 60-day period under Section 1110(a)(1)(A) of the Bankruptcy
Code (or such longer period as may apply under Section 1110(b) of the
Bankruptcy Code) (the "Section 1110 Period") shall not be taken into
consideration, unless during such period the trustee in such proceeding or
America West refuses to assume or agree to perform its obligations under the
Lease related to such Equipment Notes and (ii) any payment
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default occurring after the date of the order of relief in such proceeding
shall not be taken into consideration if such payment default is cured under
Section 1110(a)(1)(B) of the Bankruptcy Code before the later of (A) 30 days
after the date of such default or (B) the expiration of the Section 1110
Period.
"Performing Note Deficiency" means any time that less than 65%
of the then aggregate outstanding principal amount of all Equipment Notes are
Performing Equipment Notes.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, trustee, unincorporated organization or government or any agency or
political subdivision thereof.
"Pool Balance" means, with respect to each Trust or the
Certificates issued by any Trust, as of any date, (i) the original aggregate
face amount of the Certificates of such Trust less (ii) the aggregate amount of
all payments made in respect of the Certificates of such Trust other than
payments made in respect of interest or premium thereon or reimbursement of any
costs and expenses in connection therewith. The Pool Balance for each Trust or
the Certificates issued by any Trust as of any Distribution Date shall be
computed after giving effect to any payment of principal, if any, on the
Equipment Notes or other Trust Property (as defined in the applicable Trust
Agreement) held in such Trust and the distribution thereof to be made on such
Distribution 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 pay within 10 Business Days of the due date thereof:
(i) the outstanding Pool Balance of the applicable Class of Certificates on the
Final Legal Distribution Date for such Class or (ii) interest due on such
Certificates on any Distribution Date (unless, in the case of the Class A,
Class B or Class C Certificates, the Subordination Agent shall have made an
Interest Drawing with respect thereto in an amount sufficient to pay such
interest and shall have distributed such amount to the holders of the
Certificates entitled thereto).
"Rating Agencies" means, collectively, at any time, each
nationally recognized rating agency which shall have been requested to rate the
Certificates and which shall then be rating the Certificates. Initially, the
Rating Agencies shall consist of Moody's and Standard & Poor's.
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"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.
"Refunding Agreements" means each of the Refunding Agreements
listed on Schedule 2 hereto, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
"Regular Distribution Dates" means each January 2 and July 2,
commencing on July 2, 1997; provided, however, that, if any such day shall not
be a Business Day, the regular distribution shall be made on the next
succeeding Business Day without additional interest.
"Replacement Liquidity Facility" means, for any Trust, an
irrevocable revolving credit agreement in substantially the form of the initial
Liquidity Facility for such Trust, including reinstatement provisions or in
such other form (which may include a letter of credit) as shall permit the
Rating Agencies to confirm in writing their respective ratings then in effect
for the Certificates (before downgrading of such ratings, if any, as a result
of the downgrading of the Liquidity Provider), in a face amount equal to the
Required Amount for such Liquidity Facility and issued by a Replacement
Liquidity Provider, provided that, if a form of Liquidity Facility that is not
substantially in the form of the replaced Liquidity Facility is to be used,
America West shall have received a satisfactory opinion of tax counsel
satisfactory to America West with respect to such form of Replacement Liquidity
Facility and to the effect that the related Trust continues to be a "grantor
trust" (and a copy of such opinion shall be furnished to the Subordination
Agent).
"Replacement Liquidity Provider" means a Person having
unsecured debt ratings which are equal to or higher than the Threshold Rating,
who issues a Replacement Liquidity Facility.
"Required Amount" means, with respect to each Liquidity
Facility and each Cash Collateral Account related thereto, for any day, the sum
of the aggregate amount of interest, calculated at the rate per annum equal to
the Stated Interest Rate for the related Class of Certificates, that would be
payable on such Class of Certificates on each of the three successive Regular
Distribution Dates immediately following such day or, if such day is a Regular
Distribution Date, on such day and the succeeding
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two Regular Distribution Dates, in each case calculated on the basis of the
Pool Balance of such Class of Certificates on such date and without regard to
expected future payments of principal on such Class of Certificates.
"Responsible Officer" means (i) with respect to the
Subordination Agent and each of the Trustees, any officer in the corporate
trust administration department of the Subordination Agent or such Trustee or
any other officer customarily performing functions similar to those performed
by the Persons who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred because of his knowledge of and
familiarity with a particular subject 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 and interest on such Equipment Note (other than an
Overdue Scheduled Payment) due from the obligor thereon or (ii) any payment of
interest on the corresponding Class of Certificates with funds drawn under any
Liquidity Facility, which payment represents the installment of principal at
the stated maturity of such installment of principal on such Equipment Note,
the payment of regularly scheduled interest accrued on the unpaid principal
amount of such Equipment Note, or both; provided that any payment of principal
of, premium, if any, or interest resulting from the redemption or purchase of
any Equipment Note shall not constitute a Scheduled Payment.
"Scheduled Payment Date" means, with respect to any Scheduled
Payment, the date on which such Scheduled Payment is scheduled to be made.
"Series A Equipment Notes" means the [____%] Series A
Equipment Notes issued pursuant to each Indenture by the related Owner Trustee
and authenticated by the Indenture 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 the related Owner Trustee
and authenticated by the Indenture Trustee thereunder, and any such Equipment
Notes issued in exchange therefor or replacement thereof pursuant to the terms
of such Indenture.
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"Series C Equipment Notes" means the [____%] Series C
Equipment Notes issued pursuant to each Indenture by the related Owner Trustee
and authenticated by the Indenture 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 the related Owner Trustee
and authenticated by the Indenture 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 date chosen by the Subordination Agent pursuant to Section 2.4(a)
for the distribution of such Special Payment in accordance with this Agreement;
provided, however, that, if any such day shall not be a Business Day, the
related distribution shall be made on the next succeeding Business Day without
additional interest.
"Special Payment" means any payment (other than a Scheduled
Payment) in respect of, or any proceeds of, any Equipment Note or Trust
Indenture Estate (as defined in each Indenture), including Overdue Scheduled
Payments, payments in respect of the redemption or repurchase of any Equipment
Note and payments in respect of the sale of any Equipment Note to the related
Owner Trustee, Owner Participant or any other Person.
"Special Payments Account" means the Eligible Deposit Account
created pursuant to Section 2.2 as a sub- account to the Collection Account.
"Standard & Poor's" means Standard & Poor's Ratings Group, a
division of XxXxxx-Xxxx Inc.
"Stated Amount" with respect to any Liquidity Facility, means
the Commitment (as defined in such Liquidity Facility) of the applicable
Liquidity Provider thereunder.
"Stated Interest Rate" means (i) with respect to the Class A
Certificates, [____%] per annum, (ii) with respect to the Class B Certificates,
[____%] per annum, and (iii) with respect to the Class C Certificates, [____%]
per annum.
"Subordination Agent" has the meaning assigned to it in the
preamble to this Agreement.
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"Subordination Agent Incumbency Certificate" has the meaning
assigned to such term in Section 2.5(a).
"Subordination Agent Representatives" has the meaning assigned
to such term in Section 2.5(a).
"Tax" and "Taxes" mean any and all taxes, fees, levies,
duties, tariffs, imposts, and other charges of any kind (together with any and
all interest, penalties, loss, damage, liability, expense, additions to tax and
additional amounts or costs incurred or imposed with respect thereto) imposed
or otherwise assessed by the United States or by any state, local or foreign
government (or any subdivision or agency thereof) or other taxing authority,
including, without limitation: taxes or other charges on or with respect to
income, franchises, windfall or other profits, gross receipts, property, sales,
use, capital stock, payroll, employment, social security, workers'
compensation, unemployment compensation, or net worth and similar charges,
taxes or other charges in the nature of excise, withholding, ad valorem, stamp,
transfer, value added, taxes on goods and services, gains taxes, license,
registration and documentation fees, customs duties, tariffs, and similar
charges.
"Threshold Rating" means the short-term unsecured debt rating
of P-1 by Moody's and A-1 by Standard & Poor's, provided that, in the event a
person's short-term unsecured debt is not rated by either Moody's or Standard &
Poor's, the long-term unsecured debt rating by Moody's and Standard & Poor's at
least equal to the initial rating by each of Moody's and Standard & Poor's on
the Class A Certificates.
"Treasury Regulations" means regulations, including proposed
or temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Triggering Event" means (x) the occurrence of an Indenture
Default under all of the Indentures resulting in a PTC Event of Default with
respect to the most senior Class of Certificates then Outstanding, (y) the
Acceleration of, or a failure to pay at final maturity, all of the outstanding
Equipment Notes or (z) the occurrence of an America West Bankruptcy Event.
"Trust" means any of the Class A Trust, the Class B Trust, the
Class C Trust or the Class D Trust.
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"Trust Accounts" has the meaning assigned to such term in
Section 2.2(a).
"Trust Agreement" means any of the Class A Trust Agreement,
Class B Trust Agreement, Class C Trust Agreement or Class D Trust Agreement.
"Trustee" means any of the Class A Trustee, the Class B
Trustee, the Class C Trustee or the Class D Trustee.
"Trustee Incumbency Certificate" has the meaning assigned to
such term in Section 2.5(b).
"Trustee Representatives" has the meaning assigned to such
term in Section 2.5(b).
"Underwriter" means Xxxxxx Xxxxxxx & Co. Incorporated.
"Underwriting Agreement" means the Underwriting Agreement
dated _________ __, 1997, among the Underwriter, America West, GPA Group plc
and GPA Leasing USA Sub I, Inc. relating to the purchase of the Certificates by
the Underwriter, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with its terms.
"Written Notice" means, from the Subordination Agent, any
Trustee or any Liquidity Provider, a written instrument executed by the
Designated Representative of such Person. An invoice delivered by a Liquidity
Provider pursuant to Section 3.1 in accordance with its normal invoicing
procedures shall constitute Written Notice under such Section.
ARTICLE II
TRUST ACCOUNTS; CONTROLLING PARTY
SECTION 2.1 Agreement to Terms of Subordination; Payments
from Monies Received Only. (a) Each Trustee hereby acknowledges and agrees to
the terms of subordination 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, as agent and trustee for
such Trustee, to be held in trust by the Subordination Agent solely for the
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purpose of facilitating the enforcement of the subordination and other
provisions of this Agreement.
(b) Except as otherwise expressly provided in the next
succeeding sentence of this Section 2.1(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 or payments under Section
10 or 13 of the Leases or Section 21 of the Refunding Agreements, and only to
the extent that the Subordination Agent shall have received sufficient income
or proceeds therefrom to enable it to make such payments in accordance with the
terms hereof. Each of the Trustees and the Subordination Agent hereby agrees
and, as provided in each Trust Agreement, 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 and that none of the Trustees, Owner Trustees, Indenture Trustees,
Owner Participants nor the Subordination Agent is personally liable to any of
them for any amounts payable or any liability under this Agreement, any 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 in each Trust Agreement or (in the case of the
Owner Trustees and the Indenture Trustees) as expressly provided in any
Operative Agreement.
SECTION 2.2 Trust Accounts. (a) Upon the execution of this
Agreement, the Subordination Agent shall establish and maintain in its name (i)
the Collection Account as an Eligible Deposit Account, bearing a designation
clearly indicating that the funds deposited therein are held in trust for the
benefit of the 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 3.6(f) hereof. Upon such establishment
and maintenance under Section 3.6(f) hereof, the Cash Collateral Accounts
shall, together with the Collection Account, constitute the "Trust Accounts"
hereunder.
(b) Funds on deposit in the Trust Accounts shall be
invested and reinvested by the Subordination Agent in Eligible Investments
selected by the Subordination Agent if such
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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 any then
specified Special Distribution Date pursuant to Section 2.4 hereof, as the case
may be, next following the date of such investment; provided, however, that
following the making of a Downgrade Drawing, (i) the Subordination Agent shall
invest and reinvest such amounts at the direction of the Liquidity Provider
funding such Drawing and (ii) the Liquidity Provider funding such Drawing shall
use reasonable efforts to cause such amounts to be invested in Eligible
Investments which yield at least an amount equal to the interest (excluding
Margin) that is payable to such Liquidity Provider in respect of such amounts
pursuant to Section 3.7 of the relevant Liquidity Facility (it being understood
that it may not be feasible to obtain such a yield). Any Investment Earnings
shall be deposited in the Collection Account when received by the Subordination
Agent and shall be applied by the Subordination Agent in the same manner as the
principal amount of such investment is to be applied and any losses shall be
charged against the principal amount invested, in each case net of the
Subordination Agent's reasonable fees and expenses in making such investments.
The Subordination Agent shall not be liable for any loss resulting from any
investment, reinvestment or liquidation required to be made under this
Agreement other than by reason of its willful misconduct or gross negligence.
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 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
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Account or Cash Collateral Account, as the case may be. Initially, the Trust
Accounts shall be maintained with Fleet as Eligible Deposit Accounts.
SECTION 2.3 Deposits to the Collection Account and Special
Payments Account. (a) The Subordination Agent shall, upon receipt thereof,
deposit in the Collection Account all Scheduled Payments received by it.
(b) The Subordination Agent shall, on each date when one
or more Special Payments are made to the Subordination Agent as holder of the
Equipment Notes, deposit in the Special Payments Account the aggregate amount
of such Special Payments.
SECTION 2.4 Distributions of Special Payments. (a) Notice of
Special Payment. 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 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 which follows the later to occur of (x) the 22nd day after the
date such Written Notice is received by the Trustees or (y) the date the
Subordination Agent receives or expects to receive such Special Payment.
Amounts on deposit in the Special Payments Account shall be distributed in
accordance with Sections 2.4(b) and 2.4(c) hereof, as applicable.
(b) (i) Redemptions and Purchases of Equipment Notes. So
long as no Triggering Event shall have occurred (whether or not continuing),
the Subordination Agent shall make distributions pursuant to this Section
2.4(b) of amounts on deposit in the Special Payments Account on account of the
redemption or purchase 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
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in arrears to such Special Payment Date multiplied by (y) a fraction,
the numerator of which is the aggregate outstanding principal amount
of Equipment Notes being redeemed or purchased on such Special Payment
Date and the denominator of which is the aggregate outstanding
principal amount of all Equipment Notes, shall be distributed to the
Liquidity Providers pari passu on the basis of the amount of Liquidity
Expenses owed to each Liquidity Provider;
second, such amount as shall be required to pay (A) all
accrued and unpaid interest then in arrears on all Liquidity
Obligations plus (B) the product of (x) the aggregate amount of all
accrued and unpaid interest on all Liquidity Obligations not in
arrears to such Special Payment 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 or purchased on such Special Payment
Date and the denominator of which is the aggregate outstanding
principal amount of all Equipment Notes, shall be distributed to the
Liquidity Providers pari passu on the basis of the amount of Liquidity
Obligations owed to each Liquidity Provider;
third, such amount as shall be required (A) to pay or
reimburse the Liquidity Providers in an amount equal to the amount of
any unreimbursed Interest Drawings under the Liquidity Facilities
shall be distributed to the Liquidity Providers or (B) if any Cash
Collateral Account had previously been funded as provided in Section
3.6(f), to replenish such Cash Collateral Account up to its Required
Amount shall be deposited in such Cash Collateral Account, in each
such case, pari passu on the basis of the amounts of such unreimbursed
Interest Drawings and/or deficiencies;
fourth, such amount as shall be required to pay in full
Expected Distributions to the holders of Class A Certificates on such
Special Distribution Date shall be distributed to the Class A Trustee;
fifth, 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;
sixth, such amount as shall be required to pay in full
Expected Distributions to the holders of Class C
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Certificates on such Special Distribution Date shall be distributed to
the Class C Trustee;
seventh, such amount as shall be required to pay in full
Expected Distributions to the holders of Class D Certificates on such
Special Distribution Date shall be distributed to the Class D Trustee;
and
eighth, the balance, if any, of such Special Payment shall be
transferred to the Collection Account for distribution in accordance
with Section 3.2 hereof.
(ii) Upon the occurrence of a Triggering Event (whether or
not continuing), the Subordination Agent shall make distributions pursuant to
this Section 2.4(b) of amounts on deposit in the Special Payments Account on
account of the redemption or purchase of all of the Equipment Notes issued
pursuant to an Indenture on the Special Distribution Date for such Special
Payment in accordance with Section 3.3 hereof.
(c) Other Special Payments. Any amounts on deposit in
the Special Payments Account other than in respect of amounts to be distributed
pursuant to Section 2.4(b) shall be distributed on the Special Distribution
Date therefor in accordance with Article III hereof.
(d) Investment of Amounts in Special Payments Account.
Any amounts on deposit in the Special Payments Account prior to the
distribution thereof pursuant to Section 2.4(b) or (c) shall be invested in
accordance with Section 2.2(b). Investment Earnings on such investments shall
be distributed in accordance with Section 2.4(b) or (c), as the case may be.
SECTION 2.5 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,
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it shall be entitled to rely on the last Subordination Agent Incumbency
Certificate delivered to it hereunder.
(b) With the delivery of this Agreement, each Trustee
shall furnish to the Subordination Agent, and from time to time thereafter may
furnish to the Subordination Agent, at such Trustee's discretion, or upon the
Subordination Agent's request (which request shall not be made more than one
time in any 12-month period), a certificate (a "Trustee Incumbency
Certificate") of a Responsible Officer of such Trustee certifying as to the
incumbency and specimen signatures of the officers of such Trustee and the
attorney-in-fact and agents of such Trustee (the "Trustee Representatives")
authorized to give Written Notices on behalf of such Trustee hereunder. Until
the Subordination Agent receives a subsequent Trustee Incumbency Certificate,
it shall be entitled to rely on the last Trustee Incumbency Certificate
delivered to it hereunder.
(c) With the delivery of this Agreement, each Liquidity
Provider shall furnish to the Subordination Agent, and from time to time
thereafter may furnish to the Subordination Agent, at such Liquidity Provider's
discretion, or upon the Subordination Agent's request (which request shall not
be made more than one time in any 12-month period), a certificate (an "LP
Incumbency Certificate") of any authorized signatory of such Liquidity Provider
certifying as to the incumbency and specimen signatures of any officer,
attorney-in-fact, agent or other designated representative of such Liquidity
Provider (the "LP Representatives" and, together with the Trustee
Representatives and the Subordination Agent Representatives, the "Designated
Representatives") authorized to give Written Notices on behalf of such
Liquidity Provider hereunder. Until the Subordination Agent receives a
subsequent LP Incumbency Certificate, it shall be entitled to rely on the last
LP Incumbency Certificate delivered to it hereunder.
SECTION 2.6 Controlling Party. (a) The Trustees and the
Liquidity Providers hereby agree that, with respect to any Indenture at any
given time, the Indenture Trustee thereunder will be directed (i) in taking, or
refraining from taking, any action with respect to such Indenture or the
Equipment Notes issued thereunder, so long as no Indenture 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 the Equipment
Notes, the Subordination Agent shall act with respect to this clause (i) in
accordance with the directions of the Trustees representing holders of
Certificates representing an undivided interest in such principal
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amount of Equipment Notes), and (ii) after the occurrence and during the
continuance of an Indenture Default thereunder (which has not been cured by the
applicable Owner Trustee or the applicable Owner Participant pursuant to
Section 4.03 of such Indenture), in taking, or refraining from taking, any
action with respect to such Indenture or such Equipment Notes, including
exercising remedies thereunder (including accelerating the Equipment Notes
issued thereunder or foreclosing the Lien on the Aircraft securing such
Equipment Notes), by the Controlling Party.
(b) The Person who shall be the "Controlling Party" with
respect to any Indenture shall be: (w) the Class A Trustee; (x) upon payment of
Final Distributions to the holders of Class A 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, the Liquidity Provider
with the then greatest amount of unreimbursed Liquidity Obligations payable to
it under the Liquidity Facilities shall have the right to elect, by Written
Notice to the Subordination Agent and each of the Trustees, to become the
Controlling Party hereunder with respect to any Indenture at any time from and
including the date which is 18 months after the earlier of (i) the Acceleration
of the Equipment Notes under such Indenture and (ii) a Final Drawing with
respect to the Liquidity Facilities, if, in the case of clause (i) or (ii)
above, at the time of
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such election, all Liquidity Obligations owed to such Liquidity Provider under
the Liquidity Facilities have not been paid in full.
(d) The exercise of remedies by the Controlling Party
under this Agreement shall be expressly limited by Section 4.1(a)(ii) hereof.
(e) The Controlling Party shall not be entitled to
require or obligate any Non-Controlling Party to provide funds necessary to
exercise any right or remedy hereunder.
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
AMOUNTS RECEIVED
SECTION 3.1 Written Notice of Distribution. (a) No later
than 3:00 P.M. (New York City time) on the Business Day immediately preceding
each Distribution Date (or Special Distribution Date for purposes of Section
2.4(b) hereof, as the case may be), each of the following Persons shall deliver
to the Subordination Agent a Written Notice setting forth the following
information as at the close of business on such Business Day:
(i) With respect to the Class A Certificates, the
Class A Trustee shall separately set forth the amounts to be paid in
accordance with clause "fourth" of Section 3.2 or Section 2.4(b), as
the case may be, hereof;
(ii) With respect to the Class B Certificates, the
Class B Trustee shall separately set forth the amounts to be paid in
accordance with clause "fifth" of Section 3.2 or Section 2.4(b), as
the case may be, hereof;
(iii) With respect to the Class C Certificates, the
Class C Trustee shall separately set forth the amounts to be paid in
accordance with clause "sixth" of Section 3.2 or Section 2.4(b), as
the case may be, hereof;
(iv) With respect to the Class D Certificates, the
Class D Trustee shall separately set forth the amounts to be paid in
accordance with clause "seventh" of Section 3.2 or Section 2.4(b), as
the case may be, hereof; and
(v) With respect to each Liquidity Facility, the
Liquidity Provider thereunder shall separately set forth the
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amounts to be paid in accordance with clauses "first", "second" and
"third" of Section 3.2 or Section 2.4(b), as the case may be, hereof.
The notices required under this Section 3.1(a) may be in the form of a schedule
or similar document provided to the Subordination Agent by the parties
referenced therein or by any one of them, which schedule or similar document
may state that, unless there has been a prepayment of the Certificates, such
schedule or similar document is to remain in effect until any substitute notice
or amendment shall be given to the Subordination Agent by the party providing
such notice.
(b) Following the occurrence of a Triggering Event, the
Subordination Agent shall request the following information from the following
Persons, and each of the following Persons shall, upon the request of the
Subordination Agent, deliver a Written Notice to the Subordination Agent
setting forth for such Person the following information:
(i) With respect to the Class A Certificates, the
Class A Trustee shall separately set forth the amounts to be paid in
accordance with clauses "first" (relating to indemnity payments made
by the Class A Certificateholders), "fifth" and "sixth" of Section 3.3
hereof;
(ii) With respect to the Class B Certificates, the
Class B Trustee shall separately set forth the amounts to be paid in
accordance with clauses "first" (relating to indemnity payments made
by the Class B Certificateholders), "fifth" and "seventh" of Section
3.3 hereof;
(iii) With respect to the Class C Certificates, the
Class C Trustee shall separately set forth the amounts to be paid in
accordance with clauses "first" (relating to indemnity payments made
by the Class C Certificateholders), "fifth" and "eighth" of Section
3.3 hereof;
(iv) With respect to the Class D Certificates, the
Class D Trustee shall separately set forth the amounts to be paid in
accordance with clauses "first" (relating to indemnity payments made
by the Class D Certificateholders), "fifth" and "ninth" of Section 3.3
hereof; and
(v) With respect to each Liquidity Facility, the
Liquidity Provider thereunder shall separately set forth the amounts
to be paid in accordance with clauses "second", "third" and "fourth"
of Section 3.3 hereof.
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(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 2.4, 3.2 or 3.3
hereof, as applicable, and, in the case of a Liquidity Provider, its commitment
under the related Liquidity Facility shall have terminated or expired, such
Person shall, by a Written Notice, so inform the Subordination Agent and each
other party to this Agreement.
(d) As provided in Section 6.5 hereof, the Subordination
Agent shall be fully protected in relying on any of the information set forth
in a Written Notice provided by any Trustee or any Liquidity Provider pursuant
to paragraphs (a) through (c) above and shall have no independent obligation to
verify, calculate or recalculate any amount set forth in any Written Notice
delivered in accordance with such paragraphs.
(e) Any Written Notice delivered by a Trustee or a
Liquidity Provider, as applicable, pursuant to Section 3.1(a), 3.1(b) or 3.1(c)
hereof, if made prior to 10:00 A.M. (New York City time) shall be effective on
the date delivered (or if delivered later on a given date shall be effective as
of the next Business Day). Subject to the terms of this Agreement, the
Subordination Agent shall as promptly as practicable comply with any such
instructions; provided, however, that any transfer of funds pursuant to any
instruction received after 10:00 A.M. (New York City time) on any Business Day
may be made on the next succeeding Business Day.
(f) In the event the Subordination Agent shall not
receive from any Person any information set forth in paragraphs (a) or (b)
above which is required to enable the Subordination Agent to make a
distribution to such Person pursuant to Section 2.4(b), 3.2 or 3.3 hereof, the
Subordination Agent shall request such information and, failing to receive any
such information, the Subordination Agent shall not make such distribution(s)
to such Person. In such event, the Subordination Agent shall make
distributions pursuant to clauses "first" through "seventh" of Section 2.4(b),
clauses "first" through "eighth" of Section 3.2 and clauses "first" through
"ninth" of Section 3.3 to the extent it shall have sufficient information to
enable it to make such distributions, and shall continue to hold any funds
remaining, after making such distributions, until the Subordination Agent shall
receive all necessary information to enable it to distribute any funds so
withheld.
(g) On such dates (but not more frequently than monthly)
as any Liquidity Provider or any Trustee shall request, the Subordination Agent
shall send to such party a written
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statement reflecting all amounts on deposit with the Subordination Agent
pursuant to Section 3.1(f) hereof.
SECTION 3.2 Distribution of Amounts on Deposit in the
Collection Account. Except as otherwise provided in Sections 2.4, 3.1(f), 3.3,
3.4 and 3.6(b), amounts on deposit in the Collection Account (or, in the case
of any amount described in Section 2.4(c), on deposit in the Special Payments
Account) shall be promptly distributed on each Distribution Date in the
following order of priority and in accordance with the information provided to
the Subordination Agent pursuant to Section 3.1(a) hereof:
first, such amount as shall be required to pay all accrued and
unpaid Liquidity Expenses owed to each Liquidity Provider shall be
distributed to the Liquidity Providers pari passu on the basis of the
amount of Liquidity Expenses owed to each Liquidity Provider;
second, such amount as shall be required to pay in full the
aggregate amount of interest accrued on all Liquidity Obligations (at
the rate provided in the applicable Liquidity Facility) shall be
distributed to the Liquidity Providers pari passu on the basis of the
amount of Liquidity Obligations owed to each Liquidity Provider;
third, such amount as shall be required (A) to pay or
reimburse the Liquidity Providers in an amount equal to the amount of
all Liquidity Obligations then due (other than amounts payable
pursuant to clause "first" or "second" of this Section 3.2) shall be
distributed to the Liquidity Providers, and (B) if any Cash Collateral
Account had previously been funded as provided in Section 3.6(f), to
replenish such Cash Collateral Account up to its Required Amount shall
be deposited in such Cash Collateral Account, in each such case, pari
passu on the basis of the amounts of such unreimbursed Liquidity
Obligations and/or deficiencies;
fourth, such amount as shall be required to pay in full
Expected Distributions to the holders of the Class A Certificates on
such Distribution Date shall be distributed to the Class A Trustee;
fifth, 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;
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sixth, 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;
seventh, such amount as shall be required to pay in full
Expected Distributions to the holders of the Class D Certificates on
such Distribution Date shall be distributed to the Class D Trustee;
and
eighth, such amount as shall be required to pay in full the
aggregate unpaid amount of fees and expenses payable as of such
Distribution Date to the Subordination Agent and each Trustee pursuant
to the terms of this Agreement and the Trust Agreements, as the case
may be, shall be distributed to the Subordination Agent and such
Trustee.
SECTION 3.3 Distribution of Amounts on Deposit Following a
Triggering Event. (a) Except as otherwise provided in Sections 3.1(f) and
3.6(b) hereof, upon the occurrence of a Triggering Event and at all times
thereafter, all funds in the Collection Account or the Special Payments Account
shall be promptly distributed by the Subordination Agent in the following order
of priority:
first, such amount as shall be required to reimburse (i) the
Subordination Agent for any out-of-pocket costs and expenses actually
incurred by it (to the extent not previously reimbursed) in the
protection of, or the realization of the value of, the Equipment Notes
or any Trust Indenture Estate (as defined in the relevant Indenture),
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, pari passu on the basis of all amounts described in
clauses (i) through (iii) above;
second, such amount remaining as shall be required to pay all
accrued and unpaid Liquidity Expenses shall be distributed to each
Liquidity Provider pari passu on
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the basis of the amount of Liquidity Expenses owed to each Liquidity
Provider;
third, such amount remaining as shall be required to pay
accrued and unpaid interest on the Liquidity Obligations as provided
in the Liquidity Facilities shall be distributed to each Liquidity
Provider pari passu on the basis of the amount of such accrued and
unpaid interest owed to each Liquidity Provider;
fourth, such amount remaining as shall be required (A) to pay
in full the outstanding amount of all Liquidity Obligations, whether
or not then due (other than amounts payable pursuant to clause
"second" or "third" of this Section 3.3) shall be distributed to each
Liquidity Provider that has not funded a Cash Collateral Account in
accordance with Section 3.6(c) or 3.6(i) hereof, and/or (B) if
applicable, so long as no Performing Note Deficiency exists and no
Liquidity Event of Default has occurred and is continuing, to
replenish the Cash Collateral Accounts up to their respective Required
Amounts shall be deposited in the Cash Collateral Accounts, in each
case, pari passu on the basis of the amount of Liquidity Obligations
owed to each Liquidity Provider and/or such deficiencies;
fifth, such amount as shall be required to reimburse or pay
(i) the Subordination Agent for any Tax (other than Taxes imposed on
compensation paid hereunder), expense, fee, charge or other loss
incurred by or any other amount payable to the Subordination Agent in
connection with the transactions contemplated hereby (to the extent
not previously reimbursed), shall be applied by the Subordination
Agent in reimbursement of such amount, (ii) each Trustee for any Tax
(other than Taxes imposed on compensation paid under the applicable
Trust Agreement), expense, fee, charge, loss or any other amount
payable to such Trustee under the applicable Trust Agreements (to the
extent not previously reimbursed), shall be distributed to such
Trustee and (iii) each Certificateholder for payments, if any, made by
it pursuant to Section 5.2 hereof in respect of amounts described in
clause (i) above, shall be distributed to the applicable Trustee for
the account of such Certificateholder, in each such case, pari passu
on the basis of all amounts described in clauses (i) through (iii)
above;
sixth, such amount remaining as shall be required to pay in
full Adjusted Expected Distributions on the Class A Certificates shall
be distributed to the Class A Trustee;
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seventh, 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;
eighth, 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; and
ninth, 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.
SECTION 3.4 Other Payments. Any payments received by the
Subordination Agent for which no provision as to the application thereof is
made in this Agreement shall be distributed by the Subordination Agent in the
order of priority specified in Section 3.3 hereof.
SECTION 3.5 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, as the case may be, at the time of such
transfer. Any amounts distributed hereunder by the Subordination Agent to any
Trustee which shall not be the same institution as the Subordination Agent
shall be paid to such Trustee by wire transfer of funds at the address such
Trustee shall provide to the Subordination Agent.
SECTION 3.6 Liquidity Facilities. (a) Interest Drawings.
If on any Distribution Date, after giving effect to the subordination
provisions of this Agreement, the Subordination Agent shall not have sufficient
funds for the payment of any amounts due and owing in respect of accrued
interest on the Class A Certificates, the Class B Certificates or the Class C
Certificates (at the Stated Interest Rate for such Class of Certificates),
then, prior to 12:00 noon (New York City time) on the Business Day following
such Distribution Date, the Subordination Agent shall request a drawing (each
such drawing, an "Interest Drawing") under the Liquidity Facility with respect
to such Class of Certificates in an amount equal to the lesser of (i) an amount
sufficient to pay the amount of such accrued interest (at the Stated Interest
Rate for such Class of Certificates) and (ii) the Available Amount under such
Liquidity Facility, and shall pay such amount to the Trustee with respect
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to such Class of Certificates in payment of such accrued interest.
(b) Application of Interest Drawings. Notwithstanding
anything to the contrary contained in this Agreement, (i) all payments received
by the Subordination Agent in respect of an Interest Drawing under the Class A
Liquidity Facility and all amounts withdrawn by the Subordination Agent from
the Class A Cash Collateral Account, and payable in each case to the Class A
Certificateholders, shall be promptly distributed to the Class A Trustee, (ii)
all payments received by the Subordination Agent in respect of an Interest
Drawing under the Class B Liquidity Facility and all amounts withdrawn by the
Subordination Agent from the Class B Cash Collateral Account, and payable in
each case to the Class B Certificateholders, shall be promptly distributed to
the Class B Trustee and (iii) 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. If at any time the debt rating
of any Liquidity Provider issued by either Rating Agency is lower than the
applicable Threshold Rating, within 30 days after receiving notice of such
downgrading (but no later than the expiration date of the Liquidity Facility
issued by the downgraded Liquidity Provider (the "Downgraded Facility")), such
Liquidity Provider may arrange, or the Subordination Agent (in consultation
with America West (whose recommendations the Subordination Agent will accept))
may arrange, for a Replacement Liquidity Provider to issue and deliver a
Replacement Liquidity Facility to the Subordination Agent. If a Downgraded
Facility has not been replaced in accordance with the terms of this paragraph,
the Subordination Agent shall, on such 30th day (or if such 30th day is not a
Business Day, on the next succeeding Business Day) (or, if earlier, the
expiration date of such Downgraded Facility), request a drawing in accordance
with and to the extent permitted by such Downgraded Facility (such drawing, a
"Downgrade Drawing") of all available and undrawn amounts thereunder. Amounts
drawn pursuant to a Downgrade Drawing shall be maintained and invested as
provided in Section 3.6(f) hereof.
(d) [Reserved.]
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(e) Issuance of Replacement Liquidity Facility. At
any time, the Subordination Agent may, at its option, in consultation with
America West (whose recommendations the Subordination Agent will accept),
arrange for a Replacement Liquidity Facility to replace the Liquidity Facility
for any Class of Certificates; provided that the initial Liquidity Provider may
not be replaced pursuant to this paragraph unless (i) there shall have become
due to the initial Liquidity Provider amounts pursuant to Section 3.1, 3.2 or
3.3 of the Liquidity Facilities and the replacement of the initial Liquidity
Provider would reduce or eliminate the obligation to pay such amounts, (ii) it
shall become unlawful or impossible for the initial Liquidity Provider (or its
Lending Office) to maintain or fund its LIBOR Advances as described in Section
3.10 of each Liquidity Facility or (iii) a Downgrade Drawing shall have
occurred under any Liquidity Facility. In any such consultation, the
Subordination Agent shall accept the recommendations of America West in the
absence of a good faith reason not to do so. In addition to any such
replacement by the Subordination Agent, the Liquidity Provider with respect to
any Liquidity Facility may arrange for a Replacement Liquidity Facility to
replace such Liquidity Facility under the circumstances set forth in Section
3.10 of such Liquidity Facility. If a Replacement Liquidity Facility is
provided at any time after a Downgrade Drawing has been made, all funds on
deposit in the relevant Cash Collateral Account will be returned to the
Liquidity Provider being replaced. No Replacement Liquidity Facility shall
become effective and no Replacement Liquidity Facility shall be deemed a
"Liquidity Facility" under the Operative Agreements, unless and until (i) the
conditions referred to in the immediately following paragraph shall have been
satisfied and (ii) if such Replacement Liquidity Facility shall materially
adversely affect the rights, remedies, interests or obligations of the Class A
Certificateholders, the Class B Certificateholders or the Class C
Certificateholders under any of the Operative Agreements, the applicable
Trustee shall have consented, in writing, to the execution and issuance of such
Replacement Liquidity Facility.
In connection with the issuance of each Replacement Liquidity
Facility, the Subordination Agent (or, in the case of clause (z) below if a
Liquidity Provider is replacing a Liquidity Facility in accordance with Section
3.10 of such Liquidity Facility, such Liquidity Provider) shall (x) prior to
the issuance of such Replacement Liquidity Facility, receive written
confirmation from each Rating Agency that such Replacement Liquidity Facility
will not cause a reduction, withdrawal or suspension of the rating then in
effect for any Class of Certificates by such Rating Agency (without regard to
the ratings of any Liquidity Provider being replaced pursuant to Section
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3.6(c) hereof), (y) pay all Liquidity Obligations then owing to the replaced
Liquidity Provider (which payment shall be made first from available funds in
the Cash Collateral Account as described in clause (vii) of Section 3.6(f)
hereof and thereafter from any other available source, including, without
limitation, a drawing under the Replacement Liquidity Facility, it being
understood that no Replacement Liquidity Facility shall become effective (other
than insofar as necessary to permit the repayment of amounts owed to the
replaced Liquidity Provider) until all amounts owed to the replaced Liquidity
Provider have been paid) and (z) cause the issuer of the Replacement Liquidity
Facility to deliver the Replacement Liquidity Facility to the Subordination
Agent, together with a legal opinion opining that such Replacement Liquidity
Facility is an enforceable obligation of such Replacement Liquidity Provider.
Upon satisfaction of the conditions set forth in this Section 3.6(e), (i) the
replaced Liquidity Facility shall terminate and (ii) such Replacement Liquidity
Provider shall be deemed to be a Liquidity Provider with the rights and
obligations of a Liquidity Provider hereunder and under the other Operative
Agreements and such Replacement Liquidity Facility shall be deemed to be a
Liquidity Facility hereunder and under the other Operative Agreements.
(f) Cash Collateral Accounts; Withdrawals;
Investments. In the event the Subordination Agent shall draw all available
amounts under the Class A Liquidity Facility, the Class B Liquidity Facility or
the Class C Liquidity Facility pursuant to Section 3.6(c) or a Final Drawing
shall be made as provided in the Liquidity Facility, amounts so drawn shall be
deposited by the Subordination Agent in the Class A Cash Collateral Account,
the Class B Cash Collateral Account or the Class C Cash Collateral Account,
respectively. Amounts so deposited shall be invested in Eligible Investments
in accordance with Section 2.2(b) hereof. Investment Earnings on amounts on
deposit in the Cash Collateral Accounts shall be deposited in the Collection
Account. In addition, from and after the date funds are so deposited, the
Subordination Agent shall make withdrawals from such account as follows:
(i) on each Distribution Date, the Subordination Agent
shall, to the extent it shall not have received funds to pay accrued
and unpaid interest on the Class A Certificates (at the Stated
Interest Rate for the Class A Certificates) from any other source,
withdraw from the Class A Cash Collateral Account, and pay to the
Class A 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 Certificates) on such Class A Certificates
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and (y) the amount on deposit in the Class A 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 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;
(iii) on each Distribution Date, the Subordination Agent
shall, to the extent it shall not have received funds to pay accrued
and unpaid interest on the Class 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;
(iv ) on each date on which the Pool Balance of the
Class A Trust shall have been reduced by payments made to the Class A
Certificateholders pursuant to Section 2.4, 3.2 or 3.3 hereof, the
Subordination Agent shall withdraw from the Class A Cash Collateral
Account such amount as is necessary so that, after giving effect to
the reduction of the Pool Balance on such date (including any such
reduction resulting from a prior withdrawal of amounts on deposit in
the Class A Cash Collateral Account on such date), the Required Amount
(with respect to the Class A Liquidity Facility) will be on deposit in
the Class A Cash Collateral Account and shall first, pay such amount
to the Class A Liquidity Provider until the Liquidity Obligations
(with respect to the Class A Certificates) shall have been paid in
full, and second, deposit any remaining amount in the Collection
Account;
(v) 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
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Section 2.4, 3.2 or 3.3 hereof, 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 the 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), the Required Amount (with respect to the Class
B Liquidity Facility) will be on deposit in the Class B Cash
Collateral Account and shall first, pay such amount to the Class B
Liquidity Provider until the Liquidity Obligations (with respect to
the Class B Certificates) 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 C Trust shall have been reduced by payments made of the Class C
Certificateholders pursuant to Section 2.4, 3.2 or 3.3 hereof, the
Subordination Agent shall withdraw from the Class C Cash Collateral
Account such amount as is necessary so that, after giving effect to
the reduction of the Pool Balance on such date (including any such
reduction resulting from a prior withdrawal of amounts on deposit in
the Class C Cash Collateral Account on such date), the Required Amount
(with respect to the Class C Liquidity Facility) will be on deposit in
the Class C Cash Collateral Account and shall first, pay such amount
to the Class C Liquidity Provider until the Liquidity Obligations
(with respect to the Class C Certificates) shall have been paid in
full, and second, deposit any remaining amount in the Collection
Account;
(vii) if a Replacement Liquidity Facility for any Class
of Certificates shall be delivered to the Subordination Agent
following the date on which funds have been deposited into the Cash
Collateral Account for such Class of Certificates, the Subordination
Agent shall withdraw all amounts on deposit in such Cash Collateral
Account and shall pay such amounts to the replaced Liquidity Provider
until all Liquidity Obligations owed to such Person shall have been
paid in full, and shall deposit any remaining amount in the Collection
Account; and
(viii) following the payment of Final Distributions with
respect to any Class of Certificates (other than the Class D
Certificates), on the date on which the Subordination Agent shall have
been notified
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by the Liquidity Provider for such Class of Certificates that the
Liquidity Obligations owed to such Liquidity Provider have been paid
in full, the Subordination Agent shall withdraw all amounts on deposit
in the Cash Collateral Account in respect of such Class of
Certificates and shall deposit such amount in the Collection Account.
(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; provided, however, that such Liquidity Facility shall not be so
reinstated in part or in full at any time if (x) both (i) a Triggering Event
shall have occurred and (ii) a Performing Note Deficiency exists or (y) a
Liquidity Event of Default shall have occurred and be continuing under such
Liquidity Facility. In the event that at any time prior to both the occurrence
of a Triggering Event and the existence of a Performing Note Deficiency funds
are withdrawn from any Cash Collateral Account pursuant to clauses (i), (ii) or
(iii) of Section 3.6(f) hereof, then funds received by the Subordination Agent
prior to both the occurrence of a Triggering Event and the existence of a
Performing Note Deficiency shall be deposited in such Cash Collateral Account
as provided in clause "third" of Section 2.4(b)(i), clause "third" of Section
3.2 or clause "fourth" of Section 3.3, as applicable, and applied in accordance
with Section 3.6(f) hereof.
(h) Reimbursement. The amount of each drawing under the
Liquidity Facilities shall be due and payable, together with interest thereon,
on the dates and at the rates, respectively, provided in the Liquidity
Facilities.
(i) Final Drawing. If any action is expressly required
under a Liquidity Facility to be taken by the Subordination Agent in order to
make a Final Drawing thereunder, the Subordination Agent shall not fail to take
such action. Upon receipt of the proceeds of a Final Drawing under the related
Liquidity Facility, the Subordination Agent shall maintain and invest such
proceeds in accordance with Section 3.6(f) hereof.
(j) Reduction of Stated Amount. Promptly following each
date on which the Required Amount of the Liquidity Facility for a Class of
Certificates is reduced as a result of a distribution to the Certificateholders
of such Class of
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Certificates, the Subordination Agent shall, if such Liquidity Facility
provides for reductions of the Stated Amount of such Liquidity Facility and if
such reductions are not automatic, request the Liquidity Provider for such
Class of 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 2.4(b), 3.2, and 3.3 hereof.
ARTICLE IV
EXERCISE OF REMEDIES
SECTION 4.1 Directions from the Controlling Party. (a) (i)
Following the occurrence and during the continuation of an Indenture Default
under any Indenture, the Controlling Party shall direct the Indenture Trustee
under such Indenture in the exercise of remedies available to the holders of
the Equipment Notes issued pursuant to such Indenture, including, without
limitation, the ability to vote all such Equipment Notes in favor of declaring
all of the unpaid principal amount of such Equipment Notes and accrued interest
thereon to be due and payable under, and in accordance with, the provisions of
such Indenture. Subject to the Owner Trustees' and the Owner Participants'
rights set forth in the Indentures to purchase the Equipment Notes, if the
Equipment Notes issued pursuant to any Indenture have been Accelerated
following an Indenture Default with respect thereto, the Controlling Party may,
on the terms and conditions set forth in such Indenture, direct the related
Trustee 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 in accordance
with applicable law.
(ii) Subject to the Owner Trustees' and the Owner Participants'
rights set forth in the Indentures to purchase the Equipment Notes, and
notwithstanding the foregoing, so long as any Certificates remain Outstanding,
during the period ending on the date which is nine months after the earlier of
(x) the
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Acceleration of the Equipment Notes issued pursuant to any Indenture or (y) the
occurrence of an America West Bankruptcy Event, without the consent of each
Trustee, (A) no Aircraft subject to the Lien of such Indenture or such
Equipment Notes may be sold if the net proceeds from such sale would be less
than the Minimum Sale Price for such Aircraft or such Equipment Notes, and (B)
the amount and payment dates of rentals payable by America West under the Lease
for such Aircraft may not be adjusted if, as a result of such adjustment, the
discounted present value of all such rentals would be less than 75% of the
discounted present value of the rentals payable by America West under such
Lease before giving effect to such adjustment, in each case, using the weighted
average interest rate of the Equipment Notes then outstanding pursuant to such
Indenture as the discount rate.
(iii) At the request of the Controlling Party, the Subordination
Agent may from time to time during the continuance of an Indenture Default (and
before the occurrence of a Triggering Event) commission LTV Appraisals with
respect to the related Aircraft.
(iv) After a Triggering Event occurs and any Equipment Note
becomes a Non-Performing Equipment Note, the Subordination Agent shall obtain
LTV Appraisals for each Aircraft as soon as practicable and additional LTV
Appraisals on or prior to each anniversary of the date of such initial LTV
Appraisals; provided that, if the Controlling Party reasonably objects to the
appraised value of the Aircraft shown in any such LTV Appraisals, the
Controlling Party shall have the right to obtain or cause to be obtained
substitute LTV Appraisals (including any LTV Appraisals based upon physical
inspection of the Aircraft).
(b) The Controlling Party shall take such actions as it
may reasonably deem most effectual to complete the sale or other disposition of
such Aircraft or Equipment Notes. In addition, in lieu of any sale,
assignment, contract to sell or other disposition, the Subordination Agent, on
behalf of the Controlling Party, may maintain possession of such Equipment
Notes and continue to apply monies received in respect of such Equipment Notes
in accordance with Article III hereof. In addition, in lieu of such sale,
assignment, contract to sell or other disposition, or in lieu of such
maintenance of possession, the Controlling Party may instruct the Indenture
Trustee under such Indenture to foreclose on the Lien on the related Aircraft
or to take any other remedial action permitted under such Indenture or
applicable law.
SECTION 4.2 Remedies Cumulative. Each and every right power
and remedy given to the Trustees, the Controlling Party or
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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, the Controlling Party or the Subordination
Agent, as appropriate, and the exercise or the beginning of the exercise of any
power or remedy shall not be construed to be a waiver of the right to exercise
at the same time or thereafter any other right, power or remedy. No delay or
omission by any Trustee, the Controlling Party or the Subordination Agent in
the exercise of any right, remedy or power or in the pursuit of any remedy
shall impair any such right, power or remedy or be construed to be a waiver of
any default or to be an acquiescence therein.
SECTION 4.3 Discontinuance of Proceedings. In case any party
to this Agreement (including the Controlling Party in such capacity) shall have
instituted any Proceeding to enforce any right, power or remedy under this
Agreement by foreclosure, entry or otherwise, and such Proceeding shall have
been discontinued or abandoned for any reason or shall have been determined
adversely to the Person instituting such Proceeding, then and in every such
case each such party shall, subject to any determination in such proceedings,
be restored to its former position and rights hereunder, and all rights,
remedies and powers of such party shall continue as if no such Proceeding had
been instituted.
SECTION 4.4 Right of Certificateholders and Liquidity
Providers to Receive Payments Not to Be Impaired. Anything in this Agreement
to the contrary notwithstanding but subject to each Trust Agreement, the right
of any Certificateholder or any Liquidity Provider, respectively, to receive
payments pursuant to Section 2.4, 3.2 or 3.3 hereof when due, or to institute
suit for the enforcement of any such payment on or after the applicable
Distribution Date, shall not be impaired or affected without the consent of
such Certificateholder or such Liquidity Provider, respectively.
SECTION 4.5 Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Agreement or in any suit against
any Controlling Party or the Subordination Agent for any action taken or
omitted by it as Controlling Party or Subordination Agent, as the case may be,
a court in its discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the
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court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by the
party litigant. The provisions of this Section do not apply to a suit
instituted by the Subordination Agent, a Liquidity Provider or a Trustee or a
suit by Certificateholders holding more than 10% of the original principal
amount of any Class of Certificates.
SECTION 4.6 No Action Contrary to America West's Rights Under
the Lease. Notwithstanding any of the provisions of this Agreement to the
contrary, each of the parties hereto agrees for the benefit of America West
that it will not take any action contrary to America West's rights under any
Lease, including the right of America West to possession and use and quiet
enjoyment of the Aircraft subject to such Lease, except in accordance with the
provisions of such Lease.
ARTICLE V
DUTIES OF THE SUBORDINATION AGENT;
AGREEMENTS OF TRUSTEES, ETC.
SECTION 5.1 Notice of Indenture Default or Triggering
Event, Etc. (a) In the event the Subordination Agent shall have actual
knowledge of the occurrence of an Indenture Default or a Triggering Event, as
promptly as practicable, and in any event within 10 days after obtaining
knowledge thereof, the Subordination Agent shall transmit by mail to the Rating
Agencies, the Liquidity Providers and the Trustees notice of such Indenture
Default or Triggering Event, unless such Indenture Default or Triggering Event
shall have been cured or waived. For all purposes of this Agreement, in the
absence of actual knowledge on the part of a Responsible Officer, the
Subordination Agent shall not be deemed to have knowledge of any Indenture
Default or Triggering Event unless notified in writing by one or more Trustees,
one or more Liquidity Providers or one or more Certificateholders.
(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 required to be
directly distributed to such Liquidity Provider or
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Trustee, as applicable, pursuant to the express provision of any other
Operative Agreement.
(c) Determinations and Notice. The Subordination Agent
agrees to make the determinations and notifications required to be made by it
pursuant to Section 2.02 of each Indenture.
SECTION 5.2 Indemnification. The Subordination Agent shall
not be required to take any action or refrain from taking any action under
Section 5.1 (other than the first sentence thereof) or Article IV hereof unless
the Subordination Agent shall have been indemnified (to the extent and in the
manner reasonably satisfactory to the Subordination Agent) against any
liability, cost or expense (including counsel fees and expenses) which may be
incurred in connection therewith. The Subordination Agent shall not be under
any obligation to take any action under this Agreement and nothing contained in
this Agreement shall require the Subordination Agent to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. The Subordination Agent shall not be required to take any action under
Section 5.1 (other than the first sentence of subsection (a) thereof) or
Article IV hereof, nor shall any other provision of this Agreement be deemed to
impose a duty on the Subordination Agent to take any action, if the
Subordination Agent shall have been advised by counsel that such action is
contrary to the terms hereof or is otherwise contrary to law.
SECTION 5.3 No Duties Except as Specified in Intercreditor
Agreement. The Subordination Agent shall not have any duty or obligation to
take or refrain from taking any action under, or in connection with, this
Agreement, except as expressly provided by the terms of this Agreement; and no
implied duties or obligations shall be read into this Agreement against the
Subordination Agent. The Subordination Agent agrees that it will, in its
individual capacity and at its own cost and expense (but without any right of
indemnity in respect of any such cost or expense under Section 7.1 hereof)
promptly take such action as may be necessary to discharge duly all Liens on
any of the Trust Accounts or any monies deposited therein which result from
claims against it in its individual capacity not related to its activities
hereunder or any other Operative Agreement.
SECTION 5.4 Notice from the Liquidity Providers and Trustees.
If a Responsible Officer of any Liquidity Provider or
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Trustee has notice of an Indenture Default or a Triggering Event, such
Liquidity Provider or Trustee, as the case may be, 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 6.1 Authorization; Acceptance of Trusts and Duties.
Each of the Class A Trustee, Class B Trustee and Class C 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.
Fleet hereby accepts the duties hereby created and applicable
to it as the Subordination Agent and agrees to perform the same but only upon
the terms of this Agreement and agrees to receive and disburse all monies
received by it in accordance with the terms hereof. The Subordination Agent
shall not be answerable or accountable under any circumstances, except (a) for
its own willful misconduct or gross negligence (other than for the handling of
funds, for which the standard of accountability shall be negligence) and (b)
for liabilities that may result from the material inaccuracy of any
representation or warranty of the Subordination Agent made in its individual
capacity in any Operative Agreement. The Subordination Agent shall not be
liable for any error of judgment made in good faith by a Responsible Officer of
the Subordination Agent, unless it is proved that the Subordination Agent was
grossly negligent in ascertaining the pertinent facts.
SECTION 6.2 Absence of Duties. The Subordination Agent shall
have no duty to see to any recording or filing of this Agreement or any other
document, or to see to the maintenance of any such recording or filing.
SECTION 6.3 No Representations or Warranties as to Documents.
The Subordination Agent in its individual capacity does not make nor shall be
deemed to have made any representation or warranty as to the validity, legality
or enforceability of this Agreement or any other Operative Agreement or as to
the
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correctness of any statement contained in any thereof, except for the
representations and warranties of the Subordination Agent, made in its
individual capacity, under any Operative Agreement to which it is a party. The
Certificateholders, the Trustees and the Liquidity Providers make no
representation or warranty hereunder whatsoever.
SECTION 6.4 No Segregation of Monies; No Interest. Any
monies paid to or retained by the Subordination Agent pursuant to any provision
hereof and not then required to be distributed to any Trustee or any Liquidity
Provider as provided in Articles II and III hereof need not be segregated in
any manner except to the extent required by such Articles II and III and by
law, and the Subordination Agent shall not (except as otherwise provided in
Section 2.2 hereof) be liable for any interest thereon; provided, however, that
any payments received or applied hereunder by the Subordination Agent shall be
accounted for by the Subordination Agent so that any portion thereof paid or
applied pursuant hereto shall be identifiable as to the source thereof.
SECTION 6.5 Reliance; Agents; Advice of Counsel. The
Subordination Agent shall not incur liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. As
to the Pool Balance of any 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. The Subordination Agent shall assume, and shall be
fully protected in assuming, that each of the Liquidity Providers and each of
the Trustees are authorized to enter into this Agreement and to take all action
to be taken by them pursuant to the provisions hereof, and shall not inquire
into the authorization of each of the Liquidity Providers and each of the
Trustees with respect thereto. In the administration of the trusts hereunder,
the Subordination Agent may execute any of the trusts or powers
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hereof and perform its powers and duties hereunder directly or through agents
or attorneys and may consult with counsel, accountants and other skilled
persons to be selected and retained by it, and the Subordination Agent shall
not be liable for the acts or omissions of any agent appointed with due care or
for anything done, suffered or omitted in good faith by it in accordance with
the advice or written opinion of any such counsel, accountants or other skilled
persons.
SECTION 6.6 Capacity in Which Acting. The Subordination
Agent acts hereunder solely as agent and trustee herein and not in its
individual capacity, except as otherwise expressly provided in the Operative
Agreements.
SECTION 6.7 Compensation. The Subordination Agent shall be
entitled to reasonable compensation, including expenses and disbursements, for
all services rendered hereunder and shall have a priority claim to the extent
set forth in Article III hereof on all monies collected hereunder for the
payment of such compensation, to the extent that such compensation shall not be
paid by others. The Subordination Agent agrees that it shall have no right
against any Trustee or Liquidity Provider for any fee as compensation for its
services as agent under this Agreement. The provisions of this Section 6.7
shall survive the termination of this Agreement.
SECTION 6.8 May Become Certificateholder. The institution
acting as Subordination Agent hereunder may become a Certificateholder and have
all rights and benefits of a Certificateholder to the same extent as if it were
not the institution acting as the Subordination Agent.
SECTION 6.9 Subordination Agent Required; Eligibility. There
shall at all times be a Subordination Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any State thereof or of the District of Columbia having a
combined capital and surplus of at least $100,000,000 (or the obligations of
which, whether now in existence or hereafter incurred, are fully and
unconditionally guaranteed by a corporation organized and doing business under
the laws of the United States, any State thereof or of the District of Columbia
and having a combined capital and surplus of at least $100,000,000), if there
is such an institution willing and able to perform the duties of the
Subordination Agent hereunder upon reasonable or customary terms. Such
corporation shall be a citizen of the United States and shall be authorized
under the laws of the United States or any State thereof or of the District of
Columbia to exercise corporate trust powers and shall be subject to supervision
or
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examination by federal, state or District of Columbia authorities. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of any of the aforesaid supervising or examining
authorities, then, for the purposes of this Section 6.9, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
In case at any time the Subordination Agent shall cease to be
eligible in accordance with the provisions of this Section, the Subordination
Agent shall resign immediately in the manner and with the effect specified in
Section 8.1.
SECTION 6.10 Money to Be Held in Trust. All Equipment Notes,
monies and other property deposited with or held by the Subordination Agent
pursuant to this Agreement shall be held in trust for the benefit of the
parties entitled to such Equipment Notes, monies and other property. All such
Equipment Notes, monies or other property shall be held in the trust department
of the institution acting as Subordination Agent hereunder.
ARTICLE VII
INDEMNIFICATION AND REIMBURSEMENT OF SUBORDINATION AGENT
SECTION 7.1 Scope of Indemnification and Reimbursement. The
Subordination Agent shall be indemnified hereunder to the extent and in the
manner described in Sections 10 and 13 of the Leases and shall be reimbursed
for expenses to the extent and in the manner described in Section 21 of the
Refunding Agreements. The indemnities or rights to reimbursement for expenses
contained in such Sections of the Leases and the Refunding Agreements shall
survive the termination of this Agreement.
ARTICLE VIII
SUCCESSOR SUBORDINATION AGENT
SECTION 8.1 Replacement of Subordination Agent; Appointment
of Successor. The Subordination Agent may resign at any time by so notifying
the Trustees and the Liquidity Providers. The Liquidity Providers or the
Controlling Party (or, prior to the occurrence of a Triggering Event, the
Person who would be the Controlling Party if a Triggering Event had occurred)
may remove the Subordination Agent for cause by so
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notifying the Subordination Agent and may appoint a successor Subordination
Agent. The Controlling Party (or, prior to the occurrence of a Triggering
Event, the Person who would be the Controlling Party if a Triggering Event had
occurred) shall remove the Subordination Agent if:
(1) the Subordination Agent fails to comply with Section
6.9 hereof;
(2) the Subordination Agent is adjudged bankrupt or
insolvent;
(3) a receiver or other public officer takes charge of
the Subordination Agent or its property; or
(4) the Subordination Agent otherwise becomes incapable
of acting.
If the Subordination Agent resigns or is removed or if a
vacancy exists in the office of Subordination Agent for any reason (the
Subordination Agent in such event being referred to herein as the retiring
Subordination Agent), the Controlling Party (or, prior to the occurrence of a
Triggering Event, the Person who would be the Controlling Party if a Triggering
Event had occurred) shall promptly appoint a successor Subordination Agent.
A successor Subordination Agent shall deliver a written
acceptance of its appointment as Subordination Agent hereunder to the retiring
Subordination Agent, upon which the resignation or removal of the retiring
Subordination Agent shall become effective, and the successor Subordination
Agent shall have all the rights, powers and duties of the Subordination Agent
under this Agreement. The successor Subordination Agent shall 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 held by it as Subordination Agent
to the successor Subordination Agent.
If a successor Subordination Agent does not take office within
60 days after the retiring Subordination Agent resigns or is removed, the
retiring Subordination Agent or one or more of the Trustees may petition any
court of competent jurisdiction for the appointment of a successor
Subordination Agent.
If the Subordination Agent fails to comply with Section 6.9
hereof (to the extent applicable), one or more of the Trustees or one or more
of the Liquidity Providers may petition
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any court of competent jurisdiction for the removal of the Subordination Agent
and the appointment of a successor Subordination Agent.
Notwithstanding the foregoing, no resignation or removal of
the Subordination Agent shall be effective unless and until a successor has
been appointed. No appointment of a successor Subordination Agent shall be
effective unless and until the Rating Agencies shall have delivered a Ratings
Confirmation.
Notwithstanding the foregoing, any corporation into which the
Subordination Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Subordination Agent shall be a party, or any
corporation to which substantially all the corporate trust business of the
Subordination Agent may be transferred (including the corporate trust business
in respect of this Agreement), shall, subject to the terms of Section 6.9
hereof, be the Subordination Agent hereunder and under the other Operative
Agreements to which the Subordination Agent is a party without further act,
except that such Person shall give prompt subsequent notice of such transaction
to the Liquidity Provider and each Trustee. The parties hereto acknowledge
that Fleet intends to sell its corporate trust business (including the
corporate trust business in respect of this Agreement) to State Street Bank and
Trust Company or an affiliate thereof in 1997. Upon such sale, and subject to
the terms of Section 6.9 hereof, such purchaser shall be the Subordination
Agent hereunder and under the other Operative Agreements to which the
Subordination Agent is a party without further act, except that such Purchaser
shall give prompt subsequent notice of such transaction to the Liquidity
Provider and each Trustee.
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS
SECTION 9.1 Amendments, Waivers, Etc. (a) This Agreement
may not be supplemented, amended or modified without the consent of each
Trustee (acting with the consent of holders of Certificates of the related
Class evidencing interests in the related Trust aggregating not less than a
majority in interest in such Trust), the Subordination Agent and each Liquidity
Provider; provided, however, that this Agreement may be supplemented, amended
or modified without the consent of any Trustee if such supplement or amendment
cures an ambiguity or inconsistency or does not materially adversely affect
such Trustee or the holders
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of the related Class of Certificates. Notwithstanding the foregoing, without
the consent of each Certificateholder and each Liquidity Provider, no
supplement, amendment or modification of this Agreement may (i) reduce the
percentage of the interest in any 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) modify Section 2.4, 3.2 or
3.3 hereof, relating to the distribution of monies received by the
Subordination Agent hereunder from the Equipment Notes or pursuant to the
Liquidity Facilities. Nothing contained in this Section shall require the
consent of a Trustee at any time following the payment of Final Distributions
with respect to the related Class of Certificates.
(b) In the event that the Subordination Agent, as the
registered holder of any Equipment Notes, receives a request for its consent to
any amendment, modification or waiver under such Equipment Notes, the Indenture
pursuant to which such Equipment Notes were issued, or the Lease, Refunding
Agreement or other related document, (i) if no Indenture Default shall have
occurred and be continuing, the Subordination Agent shall request instructions
with respect to each Series of Equipment Notes from the Trustee of the Trust
which holds such Equipment Notes and shall vote or consent in accordance with
the instructions of such Trustee and (ii) if any Indenture Default (which has
not been cured by the applicable Owner Trustee or the applicable Owner
Participant pursuant to such Indenture) shall have occurred and be continuing
with respect to such Indenture, the Subordination Agent will exercise its
voting rights as directed by the Controlling Party; provided that no such
amendment, modification or waiver shall, without the consent of each Liquidity
Provider, reduce the amount of rent, supplemental rent or stipulated loss
values payable by the lessee under the Lease; and provided further that no
amendment of or supplement to the Indenture, the Lease, the Refunding Agreement
or any other Indenture Document or waiver or modification of the terms of, or
consent under, any thereof, shall without the consent of each Liquidity
Provider, have any of the effects listed in the proviso to Section 9.01(b) of
the Indenture.
SECTION 9.2 Subordination Agent Protected. If, in the
reasonable opinion of the institution acting as the Subordination Agent
hereunder, any document required to be executed pursuant to the terms of
Section 9.1 affects any right, duty, immunity or indemnity with respect to it
under this Agreement or any Liquidity Facility, the Subordination Agent may in
its discretion decline to execute such document.
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SECTION 9.3 Effect of Supplemental Agreements. Upon the
execution of any amendment or supplement hereto pursuant to the provisions
hereof, this Agreement shall be deemed to be and shall be modified and amended
in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Agreement of the parties hereto
and beneficiaries hereof shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental agreement shall be deemed to
be and shall be part of the terms and conditions of this Agreement for any and
all purposes. In executing or accepting any supplemental agreement permitted
by this Article IX, the Subordination Agent shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel (as defined in
the Trust Agreements) stating that the execution of such supplemental agreement
is authorized or permitted by this Agreement.
SECTION 9.4 Notice to Rating Agencies. Promptly following
its receipt of each amendment, consent, modification, supplement or waiver
contemplated by this Article IX, the Subordination Agent shall send a copy
thereof to each Rating Agency.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Termination of Intercreditor Agreement.
Following payment of Final Distributions with respect to each Class of
Certificates and the payment in full of all Liquidity Obligations to the
Liquidity Providers and 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 and the trusts created hereby shall
terminate and this Agreement shall be of no further force or effect. Except as
aforesaid or otherwise provided, this Agreement and the trusts created hereby
shall continue in full force and effect in accordance with the terms hereof.
SECTION 10.2 Intercreditor Agreement for Benefit of Trustees,
Liquidity Providers and Subordination Agent. Nothing in this Agreement,
whether express or implied, shall be construed to give to any Person other than
the Trustees, the Liquidity
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Providers and the Subordination Agent any legal or equitable right, remedy or
claim under or in respect of this Agreement.
SECTION 10.3 Notices. Unless otherwise expressly specified
or permitted by the terms hereof, all notices, requests, demands,
authorizations, directions, consents, waivers or documents provided or
permitted by this Agreement to be made, given, furnished or filed shall be in
writing, mailed by certified mail, postage prepaid, or by confirmed telecopy
and
(i) if to the Subordination Agent, addressed to it at its
office at:
Fleet National Bank
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
(ii) if to any Trustee, addressed to it at its office at:
Fleet National Bank
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
(iii) if to any Liquidity Provider, addressed to it at its
office at:
Kredietbank N.V.
New York Branch
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Manager
Telecopy: (000) 000-0000
Whenever any notice in writing is required to be given by any Trustee or
Liquidity Provider or the Subordination Agent to any of the other of them, such
notice shall be deemed given and such requirement satisfied when such notice is
received. Any party hereto may change the address to which notices to such
party will be sent by giving notice of such change to the other parties to this
Agreement.
SECTION 10.4 Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to
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the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
SECTION 10.5 No Oral Modifications or Continuing Waivers. No
terms or provisions of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party or
other Person against whom enforcement of the change, waiver, discharge or
termination is sought and any other party or other Person whose consent is
required pursuant to this Agreement and any waiver of the terms hereof shall be
effective only in the specific instance and for the specific purpose given.
SECTION 10.6 Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
each of the parties hereto and the successors and assigns of each, all as
herein provided.
SECTION 10.7 Headings. The headings of the various Articles
and Sections herein and in the table of contents hereto are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
SECTION 10.8 Counterpart Form. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same agreement.
SECTION 10.9 Subordination. (a) As between the Liquidity
Providers, on the one hand, and the Trustees and the Certificateholders, on the
other hand, this Agreement shall be a subordination agreement for purposes of
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, as amended from time to time.
(b) Notwithstanding the provisions of this Agreement, if
prior to the payment in full to the Liquidity Providers of all Liquidity
Obligations then due and payable, any party hereto shall have received any
payment or distribution in respect of Equipment 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
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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
hereunder (or, in the case of the Liquidity Providers, in respect of the
Liquidity Obligations), which is subsequently invalidated, declared
preferential, set aside and/or required to be repaid to a trustee, receiver or
other party, then, to the extent of such payment, such obligations (or, in the
case of the Liquidity Providers, such Liquidity Obligations) intended to be
satisfied shall be revived and continue in full force and effect as if such
payment had not been received.
(d) The Trustees (on behalf of themselves and the holders of
Certificates), the Liquidity Providers and the Subordination Agent confirm that
the payment priorities specified in Sections 2.4, 3.2 and 3.3 shall apply in
all circumstances (including to the payment of any sum which would have accrued
but for the commencement of any applicable insolvency proceeding),
notwithstanding the fact that the obligations owed to the Trustees and the
holders of Certificates are secured by certain assets and the Liquidity
Obligations are not so secured. The Trustees expressly agree (on behalf of
themselves and the holders of Certificates) not to assert priority over the
holders of Liquidity Obligations 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,
any of 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,
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(iv) refrain from exercising any right or remedy, or delay in
exercising such right or remedy, which it may have, or
(v) take any other action which might discharge a
subordinated party or a surety under applicable law.
SECTION 10.10 GOVERNING LAW. THIS AGREEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written, and acknowledge that
this Agreement has been made and delivered in the City of New York, and this
Agreement has become effective only upon such execution and delivery.
FLEET NATIONAL BANK,
not in its individual capacity but
solely as Trustee for each of the
Trusts
By
-----------------------------------
Name:
Title:
KREDIETBANK N.V.,
NEW YORK BRANCH,
as Class A Liquidity Provider,
Class B Liquidity Provider and
Class C Liquidity Provider
By
-----------------------------------
Name:
Title:
By
-----------------------------------
Name:
Title:
FLEET NATIONAL BANK,
not in its individual capacity
except as expressly set forth
herein but solely as Subordination
Agent and Trustee
By
-----------------------------------
Name:
Title:
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SCHEDULE 1 TO
INTERCREDITOR AGREEMENT
Indentures
Amended and Restated Trust Indenture and Security Agreement [GPA 1989 BN-7]
dated as of June __, 1997 between Wilmington Trust Company, not in its
individual capacity except as expressly provided therein but solely as Owner
Trustee and The Chase Manhattan Bank, not in its individual capacity except as
expressly provided therein but solely as Indenture Trustee
Amended and Restated Trust Indenture and Security Agreement [GPA 1989 BN-8]
dated as of June __, 1997 between Wilmington Trust Company, not in its
individual capacity except as expressly provided therein but solely as Owner
Trustee and The Chase Manhattan Bank, not in its individual capacity except as
expressly provided therein but solely as Indenture Trustee
Amended and Restated Trust Indenture and Security Agreement [GPA 1989 BN-9]
dated as of June __, 1997 between Wilmington Trust Company, not in its
individual capacity except as expressly provided therein but solely as Owner
Trustee and The Chase Manhattan Bank, not in its individual capacity except as
expressly provided therein but solely as Indenture Trustee
Amended and Restated Trust Indenture and Security Agreement [GPA 1989 BN-11]
dated as of June __, 1997 between Wilmington Trust Company, not in its
individual capacity except as expressly provided therein but solely as Owner
Trustee and The Chase Manhattan Bank, not in its individual capacity except as
expressly provided therein but solely as Indenture Trustee
65
SCHEDULE 2 TO
INTERCREDITOR AGREEMENT
Refunding Agreements
Refunding Agreement [GPA 1989 BN-7] dated as of June __, 1997 among America
West Airlines, Inc., as Lessee, GPA Leasing USA Sub I, Inc., as Original Head
Lessee, GPA Group plc, as Parent Guarantor, Wilmington Trust Company, not in
its individual capacity except as expressly provided therein but solely as
Owner Trustee, Fleet National Bank, not in its individual capacity except as
expressly provided therein but solely as Pass Through Trustee under each of the
Pass Through Trust Agreements, DFO Partnership, as Owner Participant, Fleet
National Bank, as Subordination Agent, and The Chase Manhattan Bank, not in its
individual capacity except as expressly provided therein but solely as
Indenture Trustee
Refunding Agreement [GPA 1989 BN-8] dated as of June __, 1997 among America
West Airlines, Inc., as Lessee, GPA Leasing USA Sub I, Inc., as Original Head
Lessee, GPA Group plc, as Parent Guarantor, Wilmington Trust Company, not in
its individual capacity except as expressly provided therein but solely as
Owner Trustee, Fleet National Bank, not in its individual capacity except as
expressly provided therein but solely as Pass Through Trustee under each of the
Pass Through Trust Agreements, DFO Partnership, as Owner Participant, Fleet
National Bank, as Subordination Agent, and The Chase Manhattan Bank, not in its
individual capacity except as expressly provided therein but solely as
Indenture Trustee
Refunding Agreement [GPA 1989 BN-9] dated as of June __, 1997 among America
West Airlines, Inc., as Lessee, GPA Leasing USA Sub I, Inc., as Original Head
Lessee, GPA Group plc, as Parent Guarantor, Wilmington Trust Company, not in
its individual capacity except as expressly provided therein but solely as
Owner Trustee, Fleet National Bank, not in its individual capacity except as
expressly provided therein but solely as Pass Through Trustee under each of the
Pass Through Trust Agreements, DFO Partnership, as Owner Participant, Fleet
National Bank, as Subordination Agent, and The Chase Manhattan Bank, not in its
individual capacity except as expressly provided therein but solely as
Indenture Trustee
Refunding Agreement [GPA 1989 BN-11] dated as of June __, 1997 among America
West Airlines, Inc., as Lessee, GPA Leasing USA Sub I, Inc., as Original Head
Lessee, GPA Group plc, as Parent Guarantor, Wilmington Trust Company, not in
its individual capacity except as expressly provided therein but solely as
Owner Trustee, Fleet National Bank, not in its individual capacity except as
expressly provided therein but solely as Pass Through
66
Trustee under each of the Pass Through Trust Agreements, DFO Partnership, as
Owner Participant, Fleet National Bank, as Subordination Agent, and The Chase
Manhattan Bank, not in its individual capacity except as expressly provided
therein but solely as Indenture Trustee
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