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EXHIBIT 4.10
INTERCREDITOR AGREEMENT
Dated as of
November 26, 1996
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
Xxxxxxx Xxxx Xxxxxxxx Xxxx Through Trust 0000-0X,
xxx
Xxxxxxx Xxxx Xxxxxxxx Xxxx Through Trust 1996-1E.
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
Page
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.................................. 23
SECTION 2.5 Designated Representatives......................................... 26
SECTION 2.6 Controlling Party.................................................. 27
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF AMOUNTS RECEIVED.......... 28
SECTION 3.1 Written Notice of Distribution..................................... 28
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.... 32
SECTION 3.4 Other Payments..................................................... 34
SECTION 3.5 Payments to the Trustees and the Liquidity Providers............... 34
SECTION 3.6 Liquidity Facilities............................................... 35
ARTICLE IV
EXERCISE OF REMEDIES .............................................. 41
SECTION 4.1 Directions from the Controlling Party.............................. 41
SECTION 4.2 Remedies Cumulative................................................ 42
SECTION 4.3 Discontinuance of Proceedings...................................... 42
SECTION 4.4 Right of Certificateholders to Receive Payments Not to Be
Impaired .......................................................... 43
SECTION 4.5 Undertaking for Costs.............................................. 43
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Page
ARTICLE V
DUTIES OF THE SUBORDINATION AGENT; AGREEMENTS OF
TRUSTEES, ETC ..................................................... 43
SECTION 5.1 Notice of Indenture Default or Triggering Event.................... 43
SECTION 5.2 Indemnification.................................................... 44
SECTION 5.3 No Duties Except as Specified in Intercreditor Agreement........... 44
SECTION 5.4 Notice from the Liquidity Providers and Trustees................... 45
ARTICLE VI
THE SUBORDINATION AGENT ........................................... 45
SECTION 6.1 Authorization; Acceptance of Trusts and Duties..................... 45
SECTION 6.2 Absence of Duties.................................................. 46
SECTION 6.3 No Representations or Warranties as to Documents................... 46
SECTION 6.4 No Segregation of Monies; No Interest.............................. 46
SECTION 6.5 Reliance; Agents; Advice of Counsel................................ 46
SECTION 6.6 Capacity in Which Acting........................................... 47
SECTION 6.7 Compensation....................................................... 47
SECTION 6.8 May Become Certificateholder....................................... 47
SECTION 6.9 Subordination Agent Required; Eligibility.......................... 47
SECTION 6.10 Money to Be Held in Trust.......................................... 48
ARTICLE VII
INDEMNIFICATION AND REIMBURSEMENT OF SUBORDINATION AGENT........... 48
SECTION 7.1 Scope of Indemnification and Reimbursement......................... 48
ARTICLE VIII
SUCCESSOR SUBORDINATION AGENT...................................... 48
SECTION 8.1 Replacement of Subordination Agent;
Appointment of Successor........................................... 48
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Page
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS ........................................ 50
SECTION 9.1 Amendments, Waivers, Etc........................................... 50
SECTION 9.2 Subordination Agent Protected...................................... 51
SECTION 9.3 Effect of Supplemental Agreements.................................. 51
SECTION 9.4 Notice to Rating Agencies.......................................... 51
ARTICLE X
MISCELLANEOUS ..................................................... 52
SECTION 10.1 Termination of Intercreditor Agreement............................. 52
SECTION 10.2 Intercreditor Agreement for Benefit of Trustees, Liquidity
Providers and Subordination Agent.................................. 52
SECTION 10.3 Notices............................................................ 52
SECTION 10.4 Severability....................................................... 53
SECTION 10.5 No Oral Modifications or Continuing Waivers........................ 53
SECTION 10.6 Successors and Assigns............................................. 53
SECTION 10.7 Headings........................................................... 53
SECTION 10.8 Counterpart Form................................................... 53
SECTION 10.9 Subordination...................................................... 53
SECTION 10.10 GOVERNING LAW.................................................... 55
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 November 26, 1996, 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 five series of Equipment Notes to
refinance the current indebtedness of such Owner Trustee originally incurred to
finance the purchase of the Aircraft or Spare Engine 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
Underwriters propose 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
and Class E Trusts), for the benefit of the Certificateholders of such Trust;
and
WHEREAS, it is a condition precedent to the obligations of the
Underwriters under the Underwriting Agreement that the Subordination Agent, the
Trustees and the Liquidity Providers agree to the terms of subordination set
forth in this Agreement in respect of each Class of Certificates, and the
Subordination Agent, the Trustees and the Liquidity Providers, by entering into
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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) 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:
(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
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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 and Spare Engine 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
heading hereof.
"Aircraft" means, with respect to each Indenture relating to
Equipment Notes that are secured by an aircraft, the "Aircraft" referred to
therein.
"America West" means America West Airlines, Inc., a Delaware
corporation, and its successors and assigns.
"America West Bankruptcy Event" means the occurrence and
continuation of any of the following:
(a) 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
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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 or Spare
Engine means the lower of the average or the median of the most recent three LTV
Appraisals of such Aircraft or Spare Engine obtained pursuant to Section
4.1(a)(iv).
"Appraisers" means BK Associates, Inc., Aircraft Information
Services, Inc. and Xxxxxx Xxxxx and Associates.
"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 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.
"Business Day" means any day other than a Saturday or Sunday
or a day on which commercial banks are required or
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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, a Class D Certificate or a Class E
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.
"Class A Liquidity Facility" means, initially, the Irrevocable
Revolving Credit Agreement dated as of November 26, 1996, 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 1996-1A Pass
Through Trust created and administered pursuant to the Class A Trust Agreement.
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"Class A Trust Agreement" means the Pass Through Trust
Agreement dated as of November 26, 1996 between America West and the Class A
Trustee, as supplemented by the Supplement No. 1996-1A thereto dated November
26, 1996, 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 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 November 26, 1996, 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 1996-1B Pass
Through Trust created and administered pursuant to the Class B Trust Agreement.
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"Class B Trust Agreement" means the Pass Through Trust
Agreement dated as of November 26, 1996, between America West and the Class B
Trustee, as supplemented by the Supplement No. 1996-1B thereto dated November
26, 1996, 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 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 November 26, 1996, 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 1996-1C Pass
Through Trust created and administered pursuant to the Class C Trust Agreement.
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"Class C Trust Agreement" means the Pass Through Trust
Agreement dated as of November 26, 1996, between America West and the Class C
Trustee, as supplemented by the Supplement No. 1996-1C thereto dated November
26, 1996, 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.
"Class D Trust" means America West Airlines 1996-1D 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 November 26, 1996, between America West and the Class D
Trustee, as supplemented by the Supplement No. 1996- 1D thereto dated November
26, 1996, 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.
"Class E Certificateholder" means, at any time, any holder of
one or more Class E Certificates.
"Class E Certificates" means the certificates issued by the
Class E Trust, substantially in the form of Exhibit A to the Class E Trust
Agreement, and authenticated by the Class E Trustee, representing fractional
undivided interests in the
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Class E Trust, and any certificates issued in exchange therefor or in
replacement thereof pursuant to the terms of the Class E Trust Agreement.
"Class E Trust" means America West Airlines 1996-1E Pass
Through Trust created and administered pursuant to the Class E Trust Agreement.
"Class E Trust Agreement" means the Pass Through Trust
Agreement dated as of November 26, 1996, between America West and the Class E
Trustee, as supplemented by the Supplement No. 1996-1E thereto dated November
26, 1996, governing the creation and administration of the Class E Trust and the
issuance of the Class E Certificates, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms.
"Class E Trustee" means Fleet, not in its individual capacity
except as expressly set forth in the Class E Trust Agreement, but solely as
trustee under the Class E Trust Agreement, together with any successor trustee
appointed pursuant thereto.
"Closing Date" means November 26, 1996.
"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.
"Corporate Trust Office" means, with respect to any Trustee,
the Subordination Agent or any Indenture Trustee, the office of such Person in
the city at which, at any particular time, its corporate trust business shall be
principally administered.
"Current Distribution Date" means a Distribution Date
specified as a reference date for calculating the 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.
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"Distribution Date" means a Regular Distribution Date or a
Special Distribution Date.
"Dollars" means United States dollars.
"Downgrade Drawing" has the meaning assigned to such term in
Section 3.6(c).
"Downgraded Facility" has the meaning assigned to such term in
Section 3.6(c).
"Drawing" means an Interest Drawing, a Final Drawing 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
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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; 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" means, with respect to each Indenture, the
"Aircraft" or "Spare Engine" referred to therein.
"Equipment Notes" means, at any time, the Series A Equipment
Notes, the Series B Equipment Notes, the Series C Equipment Notes, the Series D
Equipment Notes and the Series E 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 or upon redemption, prepayment, purchase or acceleration or otherwise)
and such payments have been distributed to the holders of such Certificates.
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"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 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, January 2, 2011, for the Class B Certificates, July 2, 2009, for
the Class C Certificates, January 2, 2006, for the Class D Certificates, July 2,
2002 and for the Class E Certificates, January 2, 2004.
"Fleet" has the meaning assigned to such term in the heading
of 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 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.
"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.
"Liquidity Event of Default" with respect to any Liquidity
Facility, has the meaning assigned to such term in such Liquidity Facility.
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"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 or Spare Engine 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 or Spare Engine and (ii) the outstanding principal
amount of the Equipment Notes secured by such Aircraft or Spare Engine 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 39.4%, for the
Class B Certificates 54.1%, for the Class C Certificates 69.1%, for the Class D
Certificates 80.8% and for the Class E Certificates 93.4%.
"Margin" has the meaning assigned thereto in each of the
Liquidity Facilities.
"Minimum Sale Price" means, with respect to any Equipment or
the Equipment Notes issued in respect of such Equipment, at any time, the lesser
of (a) 75% of the Appraised
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Current Market Value of such Equipment 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.
"Officer's Certificate" of any Person means a certification
signed by a Responsible Officer of such Person.
"Operative Agreements" means this Agreement, the Liquidity
Facilities, the 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
(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
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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 so
to act with respect to such Certificates and that the pledgee is not America
West or any of its Affiliates.
"Overdue Scheduled Payment" means any Scheduled Payment which
is not in fact received by the Subordination Agent within five days 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 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.
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"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 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.
"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.
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"Regular Distribution Dates" means each January 2 and July 2,
commencing on January 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 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.
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"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 6.85% 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 6.93% 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.
"Series C Equipment Notes" means the 6.86% 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 8.16% 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.
"Series E Equipment Notes" means the 10.50% Series E Equipment
Notes issued pursuant to the Indenture relating to certain of the Equipment (as
specified in such Indenture) by the related Owner Trustee and authenticated by
the Indenture Trustee thereunder, and any such Equipment Notes issued in
exchange
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therefor or replacement thereof pursuant to the terms of such Indenture.
"Spare Engine" means, with respect to each Indenture relating
to Equipment Notes that are secured by a spare engine, the "Spare Engine"
referred to therein.
"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, 6.85% per annum, (ii) with respect to the Class B Certificates,
6.93% per annum, and (iii) with respect to the Class C Certificates, 6.86% per
annum.
"Subordination Agent" has the meaning assigned to it in
the preamble to this Agreement.
"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,
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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, the Class D Trust or the Class E Trust.
"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, Class D Trust Agreement or
Class E Trust Agreement.
"Trustee" means any of the Class A Trustee, the Class B
Trustee, the Class C Trustee, the Class D Trustee or the Class E Trustee.
"Trustee Incumbency Certificate" has the meaning assigned to
such term in Section 2.5(a).
"Trustee Representatives" has the meaning assigned to such
term in Section 2.5(a).
"Underwriters" means Xxxxxx Xxxxxxx & Co. Incorporated,
Citicorp Securities, Inc., Xxxxxx Brothers Inc. and Salomon Brothers Inc.
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"Underwriting Agreement" means the Underwriting Agreement
dated November 20, 1996, among the Underwriters, America West, GPA Group plc,
GPA Leasing USA I, Inc. and GPA Leasing USA Sub I, Inc. relating to the purchase
of the Certificates by the Underwriters, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
"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 purpose
of facilitating the enforcement of the subordination and other provisions of
this Agreement.
(b) Except as otherwise expressly provided in the next
succeeding sentence of this Section 2.1, all payments to be made by the
Subordination Agent hereunder shall be made only from amounts received by it
that constitute Scheduled Payments, Special Payments or payments under Sections
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
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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 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
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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 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
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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 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
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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 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;
eighth, such amount as shall be required to pay in full
Expected Distributions to the holders of Class E Certificates on such
Special Distribution Date shall be distributed to the Class E Trustee;
and
ninth, the balance, if any, of such Special Payment shall be
transferred to the Collection Account for distribution in accordance
with Section 3.2 hereof.
(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
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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, 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
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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 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 4.3 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 or Spare Engine securing such Equipment Notes), by the Controlling
Party.
(b) The Person who shall be the "Controlling Party" with
respect to any Indenture shall be: (v) the Class A Trustee; (w) upon payment of
Final Distributions to the holders of Class A Certificates, the Class B Trustee;
(x) upon payment of Final Distributions to the holders of Class B Certificates,
the Class C Trustee; (y) upon payment of Final Distributions to the holders of
Class C Certificates, the Class D Trustee; and (z) upon payment of Final
Distributions to the holders of Class D Certificates, the Class E 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
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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 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;
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(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;
(v) With respect to the Class E Certificates, the Class
E Trustee shall separately set forth the amounts to be paid in
accordance with clause "eighth" of Section 3.2 or Section 2.4(b), as
the case may be, hereof; and
(vi) With respect to each Liquidity Facility, the
Liquidity Provider thereunder shall separately set forth the amounts to
be paid in accordance with clauses "first", "second" 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) 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) 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
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paid in accordance with clauses "first" (relating to indemnity payments
made by the Class C Certificateholders) 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) and "ninth" of Section 3.3 hereof;
(v) With respect to the Class E Certificates, the Class
E Trustee shall separately set forth the amounts to be paid in
accordance with clauses "first" (relating to indemnity payments made by
the Class E Certificateholders) and "tenth" of Section 3.3 hereof; and
(vi) 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.
(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.
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(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 "eighth" of Section 2.4(b), clauses "first" through "ninth" of
Section 3.2 and clauses "first" through "tenth" of Section 3.3 to the extent it
shall have sufficient information to enable it to make such distributions, and
shall continue to hold any funds remaining, after making such distributions,
until the Subordination Agent shall receive all necessary information to enable
it to distribute any funds so withheld.
(g) On such dates (but not more frequently than monthly) as
any Liquidity Provider or any Trustee shall request, the Subordination Agent
shall send to such party a written statement reflecting all amounts on deposit
with the Subordination Agent pursuant to Section 3.1(f) hereof.
SECTION 3.2 Distribution of Amounts on Deposit in the
Collection Account. Except as otherwise provided in Sections 2.4, 3.1(f), 3.3,
3.4 and 3.6(b), amounts on deposit in the Collection Account (or, in the case of
any amount described in Section 2.4(c), on deposit in the Special Payments
Account) shall be promptly distributed on each 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
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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;
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;
eighth, such amount as shall be required to pay in full
Expected Distributions to the holders of the Class E Certificates on
such Distribution Date shall be distributed to the Class E Trustee; and
ninth, such amount as shall be required to pay in full the
aggregate unpaid amount of fees and expenses payable as of such
Distribution Date to the Subordination Agent and each Trustee pursuant
to the terms of this Agreement and the Trust Agreements, as the case
may be, shall be distributed to the Subordination Agent and such
Trustee.
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
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Trust Indenture Estate, shall be applied by the Subordination Agent in
reimbursement of such costs and expenses, (ii) each Trustee for any
amounts of the nature described in clause (i) above actually incurred
by it under the applicable Trust Agreement (to the extent not
previously reimbursed), shall be distributed to such Trustee 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 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),
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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;
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;
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; and
tenth, such amount remaining as shall be required to pay in
full Adjusted Expected Distributions on the Class E Certificates shall
be distributed to the Class E 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 funds at the address such Trustee shall provide to
the Subordination Agent.
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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 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
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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.]
(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. If such 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 such Replacement Liquidity Facility executed in connection
therewith shall become effective and no such 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 Certificate- holders, 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 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
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Section 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 and (y) the amount on
deposit in the Class A Cash Collateral Account;
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(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 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
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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 and Class
E Certificates), on the date on which the Subordination Agent shall
have been notified by the Liquidity Provider for such Class of
Certificates that the Liquidity Obligations owed to such Liquidity
Provider have been paid in full, the Subordination Agent shall withdraw
all amounts on deposit in the Cash Collateral Account in respect of
such Class of Certificates and shall deposit such amount in the
Collection Account.
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(g) Reinstatement. With respect to any Interest Drawing under
the Liquidity Facility for any Trust, upon the reimbursement of the applicable
Liquidity Provider for all or any part of the amount of such Interest Drawing,
together with any accrued interest thereon, the Available Amount of such
Liquidity Facility shall be reinstated by an amount equal to the amount 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 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
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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 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 or Spare Engine 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, Spare Engine or
such Equipment Notes, and (B) the amount and payment dates of rentals payable by
America West under the Lease for such Aircraft or Spare Engine 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.
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(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 or Spare Engine.
(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 and Spare Engine 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 or Spare Engine 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 or Spare Engine).
(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, Spare Engine 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
Spare Engine 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 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.
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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 Proceedings 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 Proceedings had been
instituted.
SECTION 4.4 Right of Certificateholders to Receive Payments
Not to Be Impaired. Anything in this Agreement to the contrary notwithstanding
but subject to each Trust Agreement, the right of any Certificateholder 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 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 Equipment subject to such Lease, except in accordance with the provisions of
such Lease.
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ARTICLE V
DUTIES OF THE SUBORDINATION AGENT;
AGREEMENTS OF TRUSTEES, ETC.
SECTION 5.1 Notice of Indenture Default or Triggering Event,
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 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
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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 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 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 National Bank 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
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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 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
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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 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.
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SECTION 6.9 Subordination Agent Required; Eligibility. There
shall at all times be a Subordination Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any State or the District of Columbia having a combined capital
and surplus of at least $100,000,000 (or the obligations of which, whether now
in existence or hereafter incurred, are fully and unconditionally guaranteed by
a corporation organized and doing business under the laws of the United States,
any State thereof or of the District of Columbia and having a combined capital
and surplus of at least $100,000,000), if there is such an institution willing
and able to perform the duties of the Subordination Agent hereunder upon
reasonable or customary terms. Such corporation shall be a citizen of the United
States and shall be authorized under the laws of the United States or any State
thereof or of the District of Columbia to exercise corporate trust powers and
shall be subject to supervision or examination by federal, state or District of
Columbia authorities. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of any of the aforesaid
supervising or examining authorities, then, for the purposes of this Section
6.9, the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published.
In case at any time the Subordination Agent shall cease to be
eligible in accordance with the provisions of this Section, the Subordination
Agent shall resign immediately in the manner and with the effect specified in
Section 8.1.
SECTION 6.10 Money to Be Held in Trust. All Equipment Notes,
monies and other property deposited with or held by the Subordination Agent
pursuant to this Agreement shall be held in trust for the benefit of the parties
entitled to such Equipment Notes, monies and other property. All such Equipment
Notes, monies or other property shall be held in the Trust Department of the
institution acting as Subordination Agent hereunder.
ARTICLE VII
INDEMNIFICATION 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.
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ARTICLE VIII
SUCCESSOR SUBORDINATION AGENT
SECTION 8.1 Replacement of Subordination Agent; Appointment of
Successor. The Subordination Agent may resign at any time by so notifying the
Trustees and the Liquidity Providers. The Liquidity Provider 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 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.
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,
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.
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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 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.
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 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
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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.
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.
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 and be deemed to be and shall be modified and
amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Agreement of the parties
hereto and beneficiaries hereof shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental agreement shall be and
be deemed to be and shall be part of the terms and conditions of this Agreement
for any and all purposes. In executing or accepting any supplemental agreement
permitted by this Article IX, the Subordination Agent shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel (as
defined in the Trust
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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 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 at its
office at:
Fleet National Bank
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
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(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 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.
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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 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
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Liquidity Obligations due to their status as secured creditors in any
bankruptcy, insolvency or other legal proceeding.
(e) Each of the Trustees (on behalf of themselves and the
holders of Certificates), the Liquidity Providers and the Subordination Agent
may take any of the following actions without impairing its rights under this
Agreement:
(i) obtain a lien on any property to secure any amounts owing to
it hereunder, including, in the case of the Liquidity Providers, the
Liquidity Obligations,
(ii) obtain the primary or secondary obligation of any other
obligor with respect to any amounts owing to it hereunder, including,
in the case of the Liquidity Providers, any of the Liquidity
Obligations,
(iii) renew, extend, increase, alter or exchange any amounts owing
to it hereunder, including, in the case of the Liquidity Providers, any
of the Liquidity Obligations, or release or compromise any obligation
of any obligor with respect thereto,
(iv) refrain from exercising any right or remedy, or delay in
exercising 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
Second Amended and Restated Trust Indenture and Security Agreement [GPA 1989
BN-5] dated as of November 26, 1996 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
Second Amended and Restated Trust Indenture and Security Agreement [GPA 1989
BN-6] dated as of November 26, 1996 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
Second Amended and Restated Trust Indenture and Security Agreement [GPA 1989
BN-10] dated as of November 26, 1996 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
First Amended and Restated Trust Indenture and Security Agreement [GPA 1989
BN-12] dated as of November 26, 1996 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
First Amended and Restated Trust Indenture and Security Agreement [GPA 1990
AWA-13] dated as of November 26, 1996 between Wilmington Trust Company, not in
its individual capacity except as expressly provided therein but solely as Owner
Trustee and Fleet National Bank, not in its individual capacity except as
expressly provided therein but solely as Indenture Trustee
First Amended and Restated Trust Indenture and Security Agreement [GPA 1990
AWA-14] dated as of November 26, 1996 between Wilmington Trust Company, not in
its individual capacity except as expressly provided therein but solely as Owner
Trustee and Fleet National Bank, not in its individual capacity except as
expressly provided therein but solely as Indenture Trustee
First Amended and Restated Trust Indenture and Security Agreement [GPA 1990
AWA-15] dated as of November 26, 1996 between Wilmington Trust Company, not in
its individual capacity except as expressly provided therein but solely as Owner
Trustee and Fleet National Bank, not in its individual capacity except as
expressly provided therein but solely as Indenture Trustee
62
First Amended and Restated Trust Indenture and Security Agreement [GPA 1990
AWA-16] dated as of November 26, 1996 between Wilmington Trust Company, not in
its individual capacity except as expressly provided therein but solely as Owner
Trustee and Fleet National Bank, not in its individual capacity except as
expressly provided therein but solely as Indenture Trustee
First Amended and Restated Trust Indenture and Security Agreement [GPA 1991
AWA-E1] dated as of November 26, 1996 between Wilmington Trust Company, not in
its individual capacity except as expressly provided therein but solely as Owner
Trustee and Fleet National Bank, not in its individual capacity except as
expressly provided therein but solely as Indenture Trustee
First Amended and Restated Trust Indenture and Security Agreement [GPA 1991
AWA-E2] dated as of November 26, 1996 between Wilmington Trust Company, not in
its individual capacity except as expressly provided therein but solely as Owner
Trustee and Fleet National Bank, not in its individual capacity except as
expressly provided therein but solely as Indenture Trustee
First Amended and Restated Trust Indenture and Security Agreement [GPA 1991
AWA-E3] dated as of November 26, 1996 between Wilmington Trust Company, not in
its individual capacity except as expressly provided therein but solely as Owner
Trustee and Fleet National Bank, not in its individual capacity except as
expressly provided therein but solely as Indenture Trustee
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SCHEDULE 2 TO
INTERCREDITOR AGREEMENT
Refunding Agreements
Refunding Agreement [GPA 1989 BN-5] dated as of November 20, 1996 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, Chrysler Capital Corporation, 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-6] dated as of November 20, 1996 among America
West Airlines, Inc., as Lessee, GPA Leasing USA 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, Chrysler Capital Corporation, 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-10] dated as of November 20, 1996 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, Chrysler Capital Corporation, 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-12] dated as of November 20, 1996 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, Xxxxxx Xxxxxx Capital Corporation, as Owner
Participant, Fleet National Bank, as Subordination Agent, and The Chase
Manhattan Bank, not
64
in its individual capacity except as expressly provided therein but solely as
Indenture Trustee
Refunding Agreement [GPA 1990 AWA-13] dated as of November 20, 1996 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, Xxxxxx Xxxxxx Capital Corporation, as Owner
Participant, Fleet National Bank, as Subordination Agent, and Fleet National
Bank, not in its individual capacity except as expressly provided therein but
solely as Indenture Trustee
Refunding Agreement [GPA 1990 AWA-14] dated as of November 20, 1996 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, Xxxxxx Xxxxxx Capital Corporation, as Owner
Participant, Fleet National Bank, as Subordination Agent and Fleet National
Bank, not in its individual capacity except as expressly provided therein but
solely as Indenture Trustee
Refunding Agreement [GPA 1990 AWA-15] dated as of November 20, 1996 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, Xxxxxx Xxxxxx Capital Corporation, as Owner
Participant, Fleet National Bank, as Subordination Agent, and Fleet National
Bank, not in its individual capacity except as expressly provided therein but
solely as Indenture Trustee
Refunding Agreement [GPA 1990 AWA-16] dated as of November 20, 1996 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, Xxxxxx Xxxxxx Capital Corporation, as Owner
Participant, Fleet National Bank, as Subordination Agent, and Fleet National
Bank, not in its
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individual capacity except as expressly provided therein but solely as Indenture
Trustee
Refunding Agreement [GPA 1991 AWA-E1] dated as of November 20, 1996 among
America West Airlines, Inc., as Lessee, GPA Leasing USA 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, Xxxxxx Xxxxxx Capital Corporation, as Owner
Participant, Fleet National Bank, as Subordination Agent, and Fleet National
Bank, not in its individual capacity except as expressly provided therein but
solely as Indenture Trustee
Refunding Agreement [GPA 1990 AWA-E2] dated as of November 20, 1996 among
America West Airlines, Inc., as Lessee, GPA Leasing USA 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, Xxxxxx Xxxxxx Capital Corporation, as Owner
Participant, Fleet National Bank, as Subordination Agent, and Fleet National
Bank, not in its individual capacity except as expressly provided therein but
solely as Indenture Trustee
Refunding Agreement [GPA 1990 AWA-E3] dated as of November 20, 1996 among
America West Airlines, Inc., as Lessee, GPA Leasing USA 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, Xxxxxx Xxxxxx Capital Corporation, as Owner
Participant, Fleet National Bank, as Subordination Agent, and Fleet National
Bank, not in its individual capacity except as expressly provided therein but
solely as Indenture Trustee
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