8-K
false 0001743907 0001743907 2022-03-29 2022-03-29

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): March 29, 2022

 

 

SUN COUNTRY AIRLINES HOLDINGS, INC.

(Exact name of Registrant as specified in its charter)

 

 

 

Delaware   001-40217   82-4092570
(State
of Incorporation)
 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

 

2005 Cargo Road

Minneapolis, MN

  55450
(Address of principal executive offices)   (Zip Code)

(651) 681-3900

(Registrant’s telephone number, including area code)

(Former Name or Former Address, if Changed Since Last Report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

  

Trading

Symbol(s)

  

Name of each exchange

on which registered

Common Stock, par value $0.01 per share    SNCY    The Nasdaq Stock Market LLC

Indicate by check mark whether the Registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

Emerging growth company

If an emerging growth company, indicate by check mark if the Registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

 

 

 


Item 1.01 Entry into a Material Definitive Agreement.

Note Purchase Agreement

On March 29, 2022, Sun Country, Inc. (“Sun Country”), a wholly owned subsidiary of Sun Country Airlines Holdings, Inc. (“Holdings” and together with Sun Country, the “Company”), and Wilmington Trust, National Association, as subordination agent and pass through trustee (the “Trustee”) under two pass through trusts newly formed by Sun Country (the “Pass Through Trusts”), entered into a Note Purchase Agreement, dated as of March 29, 2022 (the “Note Purchase Agreement”).

The Note Purchase Agreement provides for the issuance by Sun Country of two series of equipment notes (the “Equipment Notes”) in the aggregate principal amount of $188,277,000 to finance thirteen Boeing 737-800 aircraft (the “Aircraft”). Pursuant to the Note Purchase Agreement, the Trustee agreed to purchase the Equipment Notes to be issued under separate Trust Indentures and Mortgages (each, an “Indenture” and collectively, the “Indentures”) with respect to such Aircraft.

Each Indenture contemplates the issuance of the Equipment Notes in two series: Series A, bearing interest at the rate of 4.84% per annum, and Series B, bearing interest at the rate of 5.75% per annum, in aggregate principal amounts of $142,830,000 and $45,447,000, respectively. The Equipment Notes are to be purchased by the Trustee, using the proceeds from the sale of Class A Pass Through Certificates, Series 2022-1A (the “Class A Certificates”) and Class B Pass Through Certificates, Series 2022-1B (the “Class B Certificates” and together with the Class A Certificates, the “Certificates”), to be issued through the Pass Through Trusts on or about March 30, 2022 to facilitate the financing of twelve of the Aircraft, and on or before September 15, 2022 to facilitate the financing of the thirteenth Aircraft.

The interest on the Equipment Notes is payable semi-annually on each March 15 and September 15, beginning on September 15, 2022. The principal payments of the Equipment Notes are scheduled for payment on March 15 and September 15 of each year, commencing on September 15, 2022. The final payments on the Series A Equipment Notes and the Series B Equipment Notes will be due on March 15, 2031 and March 15, 2029, respectively.

The maturity of the Equipment Notes may be accelerated upon the occurrence of certain events of default, including a failure by Sun Country (in some cases after notice or the expiration of a grace period, or both) to make payments under the applicable Indenture when due or to comply with certain covenants. The Equipment Notes issued with respect to each Aircraft will be secured by a lien on such Aircraft and will be cross collateralized by the other Aircraft financed pursuant to the Note Purchase Agreement.

As of April 1, 2022, Sun Country had issued $121,814,000 aggregate principal amount of Series A Equipment Notes and $38,759,000 aggregate principal amount of Series B Equipment Notes pursuant to the Note Purchase Agreement.

The Certificates were offered for sale in reliance on exemptions from registration under the Securities Act of 1933, as amended (the “Securities Act”) for offers and sales of securities that do not involve a public offering solely to persons who are “accredited investors” within the meaning of paragraph (1), (2), (3) or (7) of Rule 501(a) of Regulation D under the Securities Act. The Company relied on these exemptions from registration based in part on acknowledgements, representations and agreements made by the purchasers in a certificate purchase agreement.

The foregoing description of these agreements and instruments is qualified in its entirety by reference to these agreements and instruments, copies of which are filed herewith as exhibits and are incorporated by reference herein.


Item 2.03 Creation of Direct Financial Obligation.

The information set forth in Item 1.01 above is incorporated by reference into this Item 2.03

 

Item 9.01

Financial Statements and Exhibits.

(d) Exhibits

 

Exhibit

No.

   Description
4.1    Trust Supplement No. 2022-1A, dated as of March 29, 2022, between Wilmington Trust, National Association, as trustee, and Sun Country, Inc., to Pass Through Trust Agreement, dated as of December 9, 2019.
4.2    Trust Supplement No. 2022-1B, dated as of March 29, 2022, between Wilmington Trust, National Association, as trustee, and Sun Country, Inc., to Pass Through Trust Agreement, dated as of December 9, 2019.
4.3    Intercreditor Agreement, dated as of March 29, 2022, among Wilmington Trust, National Association, as pass through trustee under the pass through trusts, and Wilmington Trust, National Association, as subordination agent.
4.4    Note Purchase Agreement, dated as of March 29, 2022, among Sun Country, Inc., Wilmington Trust, National Association, as pass through trustee under the pass through trusts, and Wilmington Trust, National Association, as subordination agent.
4.5    Form of Participation Agreement (Participation Agreement between Sun Country, Inc. and Wilmington Trust, National Association, not in its individual capacity but solely as mortgagee, subordination agent under the Intercreditor Agreement and pass through trustee under the pass through trusts) (Exhibit B to Note Purchase Agreement) (included in Exhibit 4.4).
4.6    Form of Indenture (Trust Indenture and Mortgage between Sun Country, Inc. and Wilmington Trust, National Association, not in its individual capacity, except as expressly stated therein, but solely as mortgagee) (Exhibit C to Note Purchase Agreement) (included in Exhibit 4.4).
4.7    Form of Sun Country, Inc. Pass Through Certificate, Series 2022-1A (included in Exhibit 4.1).
4.8    Form of Sun Country, Inc. Pass Through Certificate, Series 2022-1B (included in Exhibit 4.2).
99.1    Press Release
104    Cover Page Interactive Data File (embedded within the Inline XBRL document)


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

Date: April 4, 2022     Sun Country Airlines Holdings, Inc.
    By:  

/s/ Eric Levenhagen

     

Eric Levenhagen

Chief Administrative Officer,

General Counsel and Secretary

EX-4.1

TABLE OF CONTENTS

 

         Page  

ARTICLE I THE CERTIFICATES

     2  

Section 1.01.

  The Certificates      2  

ARTICLE II DEFINITIONS

     3  

Section 2.01.

  Definitions      3  

ARTICLE III ISSUANCE AND TRANSFER OF THE APPLICABLE CERTIFICATES

     8  

Section 3.01.

  Issuance of Applicable Certificates      8  

Section 3.02.

  Restrictive Legends      8  

Section 3.03.

  Amendment of Sections 3.04 and 3.05 of the Basic Agreement      9  

Section 3.04.

  Transfer and Exchange      9  

Section 3.05.

  Transfer Provisions      10  

Section 3.06.

  [Reserved]      11  

Section 3.07.

  Adjustments and Additional Restrictions on Transfer Prior to Final Pre-Funding Expiry Date      11  

ARTICLE IV DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS

     13  

Section 4.01.

  Statements to Applicable Certificateholders      13  

Section 4.02.

  Special Payments Account      14  

Section 4.03.

  Distributions from Special Payments Account      14  

ARTICLE V DEFAULT

     15  

Section 5.01.

  Purchase Rights of Certificateholders      15  

Section 5.02.

  Amendment of Section 6.05 of the Basic Agreement      18  

ARTICLE VI THE TRUSTEE

     18  

Section 6.01.

  Delivery of Documents; Delivery Dates      18  

Section 6.02.

  The Trustee      19  

Section 6.03.

  Representations and Warranties of the Trustee      19  

Section 6.04.

  Trustee Liens      20  

ARTICLE VII ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS

     20  

Section 7.01.

  Amendment of Section 5.02 of the Basic Agreement      20  

Section 7.02.

  Supplemental Agreements Without Consent of Applicable Certificateholders      20  

Section 7.03.

  Supplemental Agreements with Consent of Applicable Certificateholders      21  

Section 7.04.

  Consent of Holders of Certificates Issued under Other Trusts      21  

ARTICLE VIII TERMINATION OF TRUST

     23  

Section 8.01.

  Termination of the Applicable Trust      23  

 

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ARTICLE IX MISCELLANEOUS PROVISIONS

     24  

Section 9.01.

  Basic Agreement Ratified      24  

Section 9.02.

  GOVERNING LAW      24  

Section 9.03.

  Execution in Counterparts      24  

Section 9.04.

  Intention of Parties      24  

 

Exhibit A   —      Form of Certificate
Exhibit B   —      Initial Amortization Schedule

 

 

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Exhibit 4.1

Execution Version

TRUST SUPPLEMENT No. 2022-1A

Dated as of March 28, 2022

between

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Trustee,

and

SUN COUNTRY, INC.

to

PASS THROUGH TRUST AGREEMENT

Dated as of December 9, 2019

$142,830,000

Sun Country Pass Through Trust 2022-1A

Sun Country Pass Through Certificates, Series 2022-1A

 


This Trust Supplement No. 2022-1A, dated as of March 28, 2022 (herein called the “Trust Supplement”), between Sun Country, Inc., a Minnesota corporation (the “Company”), and Wilmington Trust, National Association (the “Trustee”), to the Pass Through Trust Agreement, dated as of December 9, 2019, between the Company and the Trustee (the “Basic Agreement”).

W I T N E S S E T H:

WHEREAS, the Basic Agreement, unlimited as to the aggregate face amount of Certificates (unless otherwise specified herein, capitalized terms used herein without definition having the respective meanings specified in the Basic Agreement) which may be issued thereunder, has heretofore been executed and delivered;

WHEREAS, the Company owns or will acquire 13 Boeing 737-800 aircraft (the “Applicable Aircraft”);

WHEREAS, the Company intends to finance each of the Applicable Aircraft;

WHEREAS, with respect to each Applicable Aircraft, the Company will issue pursuant to an Indenture, on a recourse basis, Equipment Notes to finance a portion of the purchase price of such Applicable Aircraft;

WHEREAS, the Trustee hereby declares the creation of the Sun Country Pass Through Trust 2022-1A (the “Applicable Trust”) for the benefit of the Applicable Certificateholders, and the initial Applicable Certificateholders as the grantors of the Applicable Trust, by their respective acceptances of the Applicable Certificates, join in the creation of the Applicable Trust with the Trustee;

WHEREAS, all Certificates to be issued by the Applicable Trust will evidence Fractional Undivided Interests in the Applicable Trust and will convey no rights, benefits or interests in respect of any property other than the Trust Property;

WHEREAS, pursuant to the terms and conditions of the Basic Agreement as supplemented by this Trust Supplement (the “Agreement”) and the NPA, upon the financing of an Applicable Aircraft under the NPA, the Trustee on behalf of the Applicable Trust, shall purchase one or more Equipment Notes having the same interest rate (on a weighted average basis) as, and final maturity date not later than the final Regular Distribution Date of, the Applicable Certificates issued hereunder and shall hold such Equipment Notes in trust for the benefit of the Applicable Certificateholders;

WHEREAS, all of the conditions and requirements necessary to make this Trust Supplement, when duly executed and delivered, a valid, binding and legal instrument in accordance with its terms and for the purposes herein expressed, have been done, performed and fulfilled, and the execution and delivery of this Trust Supplement in the form and with the terms hereof have been in all respects duly authorized;

NOW THEREFORE, in consideration of the premises herein, it is agreed between the Company and the Trustee as follows:


ARTICLE I

THE CERTIFICATES

Section 1.01. The Certificates. There is hereby created a series of Certificates to be issued under the Agreement to be distinguished and known as “Sun Country Pass Through Certificates, Series 2022-1A” (hereinafter defined as the “Applicable Certificates”). Each Applicable Certificate represents a Fractional Undivided Interest in the Applicable Trust created hereby. The Applicable Certificates shall be the only instruments evidencing a Fractional Undivided Interest in the Applicable Trust.

The terms and conditions applicable to the Applicable Certificates are as follows:

(a) The aggregate face amount of the Applicable Certificates that shall be authenticated under the Agreement (except for Applicable Certificates authenticated and delivered under Sections 3.03, 3.04, 3.05 and 3.06 of the Basic Agreement) is $142,830,000.

(b) The Regular Distribution Dates with respect to any distribution of Scheduled Payments means March 15 and September 15 of each year, commencing on September 15, 2022 until distribution of all of the Scheduled Payments to be made under the Equipment Notes has been made.

(c) The Special Distribution Dates with respect to the Applicable Certificates means any Business Day on which a Special Payment is to be distributed pursuant to the Agreement.

(d) [Reserved.].

(e) (i) The Applicable Certificates shall be in the form attached hereto as Exhibit A. Any Person acquiring or accepting an Applicable Certificate or an interest therein will, by such acquisition or acceptance, be deemed to have represented and warranted to and for the benefit of the Company that either (i) no assets of an employee benefit plan subject to Title I of ERISA, a plan subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or a governmental, church or foreign plan subject to a law that is similar to Title I of ERISA or Section 4975 of the Code (a “Similar Law Plan”) have been used to purchase or hold such Applicable Certificate or an interest therein or (ii) the purchase and holding of such Applicable Certificate or an interest therein either (a) in the case of assets of an employee benefit plan subject to Title I of ERISA or a plan subject to Section 4975 of the Code, are exempt from the prohibited transaction restrictions of ERISA and the Code pursuant to one or more prohibited transaction statutory or administrative exemptions or (b) in the case of assets of a Similar Law Plan, will not violate any similar state, local or foreign law.

(ii) The Applicable Certificates shall not be Book-Entry Certificates.

(f) If the purchaser or transferee of an Applicable Certificate or an interest therein is an employee benefit plan subject to Title I of ERISA or a plan subject to Section 4975 of the Code, it will be deemed to represent, warrant and agree that (i) neither the Company nor any of its affiliates (or its or their agents) has provided any investment recommendation or investment advice on which it, or any fiduciary or other person investing the assets of such plan

 

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(“Plan Fiduciary”), has relied in connection with its decision to invest in the Applicable Certificates, and they are not otherwise acting as a fiduciary, as defined in Section 3(21) of ERISA or Section 4975(e)(3) of the Code, to such plan or the Plan Fiduciary in connection with such plan’s acquisition of the Applicable Certificates; and (ii) the Plan Fiduciary is exercising its own independent judgment in evaluating the transaction.

(g) The “Participation Agreements” as defined in this Trust Supplement are the “Note Purchase Agreements” referred to in the Basic Agreement.

(h) The Applicable Certificates are subject to the Intercreditor Agreement.

(i) The Responsible Party is the Company.

(j) The definition of the term “PTC Event of Default” is as set forth in the Intercreditor Agreement.

(k) The “particular sections of the Note Purchase Agreement”, for purposes of clause (3) of Section 7.07 of the Basic Agreement, are Section 8.1 of each Participation Agreement.

(l) The Equipment Notes to be acquired and held in the Applicable Trust, and the related Aircraft and Note Documents, are described in the NPA.

ARTICLE II

DEFINITIONS

Section 2.01. Definitions. For all purposes of the Basic Agreement as supplemented by this Trust Supplement, the following capitalized terms have the following meanings (any term used herein which is defined in both this Trust Supplement and the Basic Agreement shall have the meaning assigned thereto in this Trust Supplement for purposes of the Basic Agreement as supplemented by this Trust Supplement):

Agreement: Has the meaning specified in the recitals hereto.

Aircraft: Means each of the Applicable Aircraft in respect of which a Participation Agreement is to be or is, as the case may be, entered into in accordance with the NPA (or any substitute aircraft, including engines therefor, owned by the Company and securing one or more Equipment Notes).

Aircraft Purchase Agreement: Has the meaning specified in the NPA.

Applicable Aircraft: Has the meaning specified in the recitals hereto.

Applicable Certificate: Has the meaning specified in Section 1.01 of this Trust Supplement.

Applicable Certificateholder: Means the Person in whose name an Applicable Certificate is registered on the Register for the Applicable Certificates.

 

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Applicable Closing Date: Has the meaning specified in Section 6.01(b) of this Trust Supplement.

Applicable Participation Agreement: Has the meaning specified in Section 6.01(b) of this Trust Supplement.

Applicable Trust: Has the meaning specified in the recitals hereto.

Bankruptcy Event: Has the meaning specified in the Intercreditor Agreement.

Basic Agreement: Has the meaning specified in the first paragraph of this Trust Supplement.

Business Day: Means any day other than a Saturday, a Sunday or a day on which commercial banks are required or authorized to close in Minneapolis, Minnesota, New York, New York, or, so long as any Applicable Certificate is Outstanding, the city and state in which the Trustee, the Subordination Agent or any Loan Trustee maintains its Corporate Trust Office or receives and disburses funds.

Certificate: Has the meaning specified in the Intercreditor Agreement.

Certificate Buyout Event: Means that a Bankruptcy Event has occurred and is continuing and either of the following events has occurred: (A) both (i) the 60-day period specified in Section 1110(a)(2)(A) of the U.S. Bankruptcy Code (the “60-Day Period”) has expired and (ii) the Company has not entered into one or more agreements under Section 1110(a)(2)(A) of the U.S. Bankruptcy Code to perform all of its obligations under all of the Indentures or, if it has entered into such agreements, has at any time thereafter failed to cure any default under any of the Indentures in accordance with Section 1110(a)(2)(B) of the Bankruptcy Code; or (B) if prior to the expiry of the 60-Day Period, the Company shall have abandoned any Aircraft.

Certificate Purchase Agreement: Means the Certificate Purchase Agreement, dated March 28, 2022, among the Company, the Trustee, the Other Trustees and the Initial Purchasers.

Class: Has the meaning specified in the Intercreditor Agreement.

Class B Certificate: Has the meaning specified in the Intercreditor Agreement.

Class B Certificateholder: Has the meaning specified in the Intercreditor Agreement.

Closing Notice: Has the meaning specified in the NPA.

Company: Has the meaning specified in the first paragraph of this Trust Supplement.

Controlling Party: Has the meaning specified in the Intercreditor Agreement.

 

4


Cut-off Date: Means the earlier of (a) the Final Prefunding Expiry Date and (b) the date on which a Triggering Event occurs.

Definitive Certificate: Has the meaning specified in Section 3.01 of this Trust Supplement.

Distribution Date: Means any Regular Distribution Date or Special Distribution Date as the context requires.

Downgrade Event: Means (a) the occurrence of a Change of Control (as defined in each Indenture) that results in a downgrade of the rating of the Applicable Certificates to “BB+” or lower by Kroll Bond Rating Agency and (b) within a period of 120 days from the occurrence of such downgrade, the Company has not exercised its right to redeem the Equipment Notes under Section 2.11(d) of each Indenture during such period.

Final Legal Distribution Date: Means March 15, 2031.

Final Prefunding Expiry Date: Means the earlier of (a) the final Prefunding Expiry Date permitted under and as defined in the Certificate Purchase Agreement, as the same may be extended pursuant to Section 2.1(d) thereof, and (b) the date on which Equipment Notes issued with respect to all of the Applicable Aircraft have been purchased by the Applicable Trust in accordance with the NPA and the Certificate Purchase Agreement.

Funding Date: Has the meaning specified in the Certificate Purchase Agreement.

Indenture: Means each of the separate trust indentures and mortgages relating to the Aircraft, each as specified or described in a Closing Notice delivered pursuant to the NPA or the related Participation Agreement, in each case as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.

Indenture Event of Default: Means an “Event of Default” as defined in any Indenture.

Initial Closing Date: Has the meaning specified in the NPA.

Initial Purchasers: Means the “Purchasers” as defined in the Certificate Purchase Agreement.

Intercreditor Agreement: Means the Intercreditor Agreement dated as of March 28, 2022 among the Trustee, the Other Trustees party thereto, and Wilmington Trust, National Association, as Subordination Agent and as trustee thereunder, as amended, supplemented or otherwise modified from time to time in accordance with its terms.

Investment Company Act: Means the U.S. Investment Company Act of 1940, as amended.

Investors: Means the Initial Purchasers, together with all subsequent beneficial owners of the Applicable Certificates.

 

5


Note Documents: Means the Equipment Notes with respect to the Applicable Certificates and, with respect to any such Equipment Note, the Indenture and the Participation Agreement relating to such Equipment Note.

NPA: Means the Note Purchase Agreement dated as of March 28, 2022 among the Trustee, the Other Trustees party thereto, the Company, Wilmington Trust, National Association, as the Subordination Agent, providing for, among other things, the purchase of Equipment Notes by the Trustee on behalf of the Applicable Trust, as the same may be amended, supplemented or otherwise modified from time to time, in accordance with its terms.

Other Agreements: Means (i) the Basic Agreement as supplemented by Trust Supplement No. 2022-1B dated as of the date hereof relating to Sun Country Pass Through Trust 2022-1B, (ii) the Basic Agreement, as supplemented by a Trust Supplement relating to any Additional Trust and (iii) the Basic Agreement as supplemented by a Trust Supplement relating to any Refinancing Trust.

Other Trustees: Means the trustees under the Other Agreements, and any successor or other trustee appointed as provided therein.

Other Trusts: Means the Sun Country Pass Through Trust 2022-1B, an Additional Trust or Trusts, if any, and a Refinancing Trust or Trusts, if any, created by the Other Agreements.

Participation Agreement: Means each Participation Agreement to be entered into, or entered into (as the case may be), by the Trustee pursuant to the NPA, as the same may be amended, supplemented or otherwise modified in accordance with its terms.

PIK Amounts: Means, as of any date of determination, interest on the Pool Balance of the Applicable Certificates that was scheduled for distribution on any applicable Regular Distribution Date and was not paid on such Regular Distribution Date (and remains unpaid as of such date of determination) together with any interest accrued thereon at the Stated Interest Rate (as defined in the Intercreditor Agreement) applicable to the Applicable Certificates.

Pool Balance: Means, as of any date, (i) the sum of the original principal amounts of the Equipment Notes relating to the Applicable Certificates purchased by the Applicable Trust on each Closing Date (as defined in the NPA) occurring on or prior to such date, less (ii) the aggregate amount of all payments made as of such date in respect of such Applicable Certificates other than payments made in respect of interest, PIK Amounts or premium (including Premium) thereon or reimbursement of any costs or expenses incurred in connection therewith (and disregarding any return of prefunded amounts or payment of commitment fees to the Initial Purchasers under the Certificate Purchase Agreement). The Pool Balance as of any date shall be computed after giving effect to any special distribution with respect to any payment of principal of the Equipment Notes or payment with respect to other Trust Property and the distribution thereof to be made on that date.

 

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Pool Factor: Means, as of any Distribution Date, the quotient (rounded to the seventh decimal place) computed by dividing (i) the Pool Balance by (ii) the sum of the original principal amounts of the Equipment Notes relating to the Applicable Certificates purchased by the Applicable Trust on each Closing Date occurring on or prior to such Distribution Date. The Pool Factor as of any Distribution Date shall be computed after giving effect to any special distribution with respect to any payment of principal of the Equipment Notes or payment with respect to other Trust Property and the distribution thereof to be made on that date.

Premium: Has the meaning specified in the Intercreditor Agreement.

QIB: Means a qualified institutional buyer as defined in Rule 144A.

Ratings Confirmation: Has the meaning specified in the Intercreditor Agreement.

Register: Has the meaning specified in Section 3.04 of this Trust Supplement.

Registrar: Has the meaning specified in Section 3.04 of this Trust Supplement.

Restricted Legend: Has the meaning specified in Section 3.02 of this Trust Supplement.

Rule 144A: Means Rule 144A under the Securities Act and any successor rule thereto.

Scheduled Closing Date: Has the meaning specified in the NPA.

Scheduled Payment: Means, with respect to any Equipment Note, any payment of principal or interest on such Equipment Note (other than any such payment which is not in fact received by the Trustee or the Subordination Agent within five days of the date on which such payment is scheduled to be made), which payment represents the installment of principal on such Equipment Note at the stated maturity of such installment, scheduled interest accrued on the unpaid principal amount of such Equipment Note, or both; provided, however, that any payment of principal, premium (including Premium), if any, or interest resulting from the redemption or purchase of any Equipment Note shall not constitute a Scheduled Payment.

Securities Act: Means the United States Securities Act of 1933, as amended from time to time, or any successor thereto.

Special Payment: Means any payment (other than a Scheduled Payment) in respect of, or any proceeds of, any Equipment Note or Collateral (as defined in each Indenture).

Triggering Event: Has the meaning assigned to such term in the Intercreditor Agreement.

 

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Trust Property: Means (i) subject to the Intercreditor Agreement, the Equipment Notes held as the property of the Applicable Trust, all monies at any time paid thereon and all monies due and to become due thereunder, (ii) funds from time to time deposited in the Certificate Account and the Special Payments Account and, subject to the Intercreditor Agreement, any proceeds from the sale by the Trustee pursuant to Article VI of the Basic Agreement of any Equipment Note and (iii) all rights of the Applicable Trust and the Trustee, on behalf of the Applicable Trust, under the Intercreditor Agreement and the NPA, including, without limitation, all rights to receive certain payments thereunder, and all monies paid to the Trustee on behalf of the Applicable Trust pursuant to the Intercreditor Agreement.

Trust Supplement: Has the meaning specified in the first paragraph of this trust supplement.

Trustee: Has the meaning specified in the first paragraph of this Trust Supplement.

ARTICLE III

ISSUANCE AND TRANSFER OF THE APPLICABLE CERTIFICATES

Section 3.01. Issuance of Applicable Certificates.

The Applicable Certificates shall be issued only as certificated securities in definitive, fully registered form without interest coupons substantially in the form of Exhibit A hereto with such legends thereon as are provided for in Section 3.02 (each, a “Definitive Certificate”) and only in denominations of $100,000 or integral multiples of $1,000 in excess thereof, except that one Applicable Certificate may be issued in a different denomination. Each Definitive Certificate shall be dated the date of its authentication. The initial Definitive Certificates delivered at the closing under the Certificate Purchase Agreement shall be registered in such names as are provided pursuant to the Certificate Purchase Agreement.

Section 3.02. Restrictive Legends. All Applicable Certificates issued pursuant to the Agreement shall bear a legend to the following effect (the “Restricted Legend”) except as provided in Section 3.05(a) or unless the Company and the Trustee determine otherwise consistent with applicable law:

THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). YOU, THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREE THAT THIS CERTIFICATE MAY NOT BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO AN INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (UPON DELIVERY TO THE TRUSTEE OF AN OPINION OF COUNSEL AND OTHER DOCUMENTATION AS THE TRUSTEE MAY REQUEST), (2) TO A

 

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PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 OF THE SECURITIES ACT OR ANY SUCCESSOR PROVISION, (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR (6) TO SUN COUNTRY, INC. AND, IN EACH OF THE FOREGOING CASES, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE REGISTRAR TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS.

WITHOUT LIMITING THE FOREGOING, IF SUCH HOLDER IS A UNITED STATES PERSON AS DEFINED UNDER SECTION 7701(A)(30) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS CERTIFICATE MAY ONLY BE TRANSFERRED TO ANOTHER UNITED STATES PERSON.

THIS CERTIFICATE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED IN VIOLATION OF SUCH ACT.

Section 3.03. Amendment of Sections 3.04 and 3.05 of the Basic Agreement. Sections 3.04 and 3.05 of this Trust Supplement supersede and replace Sections 3.04 and 3.05 of the Basic Agreement, with respect to the Applicable Trust.

Section 3.04. Transfer and Exchange. The Trustee shall cause to be kept at the office or agency to be maintained by it in accordance with the provisions of Section 7.12 of the Basic Agreement a register (the “Register”) of the Applicable Certificates in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of such Applicable Certificates and of transfers and exchanges of such Applicable Certificates as herein provided. The Trustee shall initially be the registrar (the “Registrar”) for the purpose of registering such Applicable Certificates and transfers and exchanges of such Applicable Certificates as herein provided.

All Applicable Certificates issued upon any registration of transfer or exchange of Applicable Certificates shall be valid obligations of the Applicable Trust, evidencing the same interest therein, and entitled to the same benefits under this Agreement, as the Applicable Certificates surrendered upon such registration of transfer or exchange.

 

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An Applicable Certificateholder may transfer an Applicable Certificate, in whole or in part in authorized denominations, or request that an Applicable Certificate be exchanged for Applicable Certificates in authorized denominations in an aggregate Fractional Undivided Interest equal to the Fractional Undivided Interest of such Applicable Certificate surrendered for exchange, by surrender of such Applicable Certificate to the Trustee with the form of transfer notice thereon duly completed and executed, and otherwise complying with the terms of the Agreement, including providing evidence of compliance with any restrictions on transfer, in form satisfactory to the Trustee and the Registrar. No such transfer shall be effected until, and such transferee shall succeed to the rights of an Applicable Certificateholder only upon, final acceptance and registration of the transfer by the Registrar in the Register. Prior to the registration of any transfer by an Applicable Certificateholder as provided herein, the Trustee shall treat the person in whose name the Applicable Certificate is registered as the owner thereof for all purposes, and the Trustee shall not be affected by notice to the contrary. When Applicable Certificates are presented to the Registrar with a request to register the transfer thereof or to exchange them for other authorized denominations of an Applicable Certificate in a Fractional Undivided Interest equal to the aggregate Fractional Undivided Interest of Applicable Certificates surrendered for exchange, the Registrar shall register the transfer or make the exchange as requested if its requirements for such transactions are met.

The Registrar shall not register the transfer or exchange of any Applicable Certificate in the name of any Person unless and until the conditions to any such transfer or exchange set forth in Section 3.05 shall have been satisfied.

To permit registrations of transfers and exchanges in accordance with the terms, conditions and restrictions hereof, the Trustee shall execute and authenticate Applicable Certificates at the Registrar’s request. No service charge shall be made to an Applicable Certificateholder for any registration of transfer or exchange of Applicable Certificates, but the Trustee shall require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of Applicable Certificates. All Applicable Certificates surrendered for registration of transfer or exchange shall be canceled and subsequently destroyed by the Trustee.

Section 3.05. Transfer Provisions.

(a) Restricted Legend. Upon the transfer, exchange or replacement of Applicable Certificates not bearing the Restricted Legend, the Registrar shall deliver Applicable Certificates that do not bear the Restricted Legend. Upon the transfer, exchange or replacement of Applicable Certificates bearing the Restricted Legend, the Registrar shall deliver only Applicable Certificates that bear the Restricted Legend unless there is delivered to the Registrar, the Trustee and the Company, such certifications, legal opinions or other information as the Registrar, the Trustee or the Company may reasonably require to confirm that neither such Restricted Legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act.

(b) General. By acceptance of any Applicable Certificate bearing the Restricted Legend, each Holder of such an Applicable Certificate acknowledges the restrictions on transfer of such Applicable Certificate set forth in the Agreement and agrees that it will

 

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transfer such Applicable Certificate only as provided in the Agreement. The Registrar shall not register a transfer of any Applicable Certificate unless such transfer complies with the restrictions on transfer, if any, of such Applicable Certificate set forth in this Agreement. In connection with any transfer of Applicable Certificates, each Applicable Certificateholder agrees by its acceptance of the Applicable Certificates to furnish the Registrar or the Trustee such certifications, legal opinions or other information as either of them may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or a transaction not subject to, the registration requirements of the Securities Act, and in accordance with the terms and provisions of this Article III; provided that the Registrar shall not be required to determine the sufficiency of any such certifications, legal opinions or other information.

Until such time as no Applicable Certificates remain Outstanding, the Registrar shall retain copies of all letters, notices and other written communications received pursuant to this Section 3.05. The Trustee, if not the Registrar at such time, shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar.

Section 3.06. [Reserved].

Section 3.07. Adjustments and Additional Restrictions on Transfer Prior to Final Pre-Funding Expiry Date.

(a) Adjustments to Initial Certificates. The face amount of the initial Applicable Certificates issued to the Initial Purchasers pursuant to the Certificate Purchase Agreement shall represent, in the aggregate for each such Initial Purchaser, the full purchase price to be paid under the Certificate Purchase Agreement by such Initial Purchaser for its Applicable Certificates on all Funding Dates, and such purchase prices in the aggregate for all Initial Purchasers equal the maximum aggregate principal amount of Equipment Notes which may be purchased by the Trustee pursuant to the NPA. Accordingly, such face amounts and the Fractional Undivided Interest as set forth in any such initial Applicable Certificate issued to the Initial Purchasers have been determined assuming each Initial Purchaser funds the full maximum amount of its purchase price, and that such purchase price is fully used for the purchase by the Trust of Equipment Notes. If, prior to the Final Prefunding Expiry Date, for any reason any Initial Purchaser does not fund its assumed full purchase price of Applicable Certificates under the Certificate Purchase Agreement, or any such purchase price, once funded, is required to be returned to such Initial Purchaser pursuant to the Certificate Purchase Agreement (any such event, a “Reduction Event” and any such contemplated purchase price amount so not funded by, or so required to be returned to, such Initial Purchaser in connection therewith, the “Reduction Amount”):

(i) the face amount of the initial Applicable Certificates issued to such Initial Purchaser shall, effective upon occurrence such Reduction Event, be deemed permanently reduced by such Reduction Amount (on a pro rata basis, if more than one such initial Applicable Certificate has been so issued to such Initial Purchaser);

(ii) if the Reduction Amount does not affect all Initial Purchasers on a pro rata basis, the Fractional Undivided Interest represented by each Applicable Certificate shall, effective upon occurrence of such Reduction Event, be correspondingly deemed adjusted (by such amount as confirmed by the Trustee); and

 

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(iii) promptly following any such Reduction Event, the Trustee will (A) notify the Company and each Initial Purchaser of the occurrence thereof, the related Reduction Amount and, as to any affected Applicable Certificates, the resulting reductions in face amount and changes to Fractional Undivided Interests, and (B) as to each affected Applicable Certificate, record any such reduction in face amount and change to Fractional Undivided Interests in the records maintained by the Trustee (which may be set forth in the Register).

(b) Replacement Applicable Certificates. At any time after the Final Prefunding Expiry Date, for any such affected Applicable Certificate (as to which the face amount has reduced or the Fractional Undivided Interest has been adjusted so as to no longer correspond to the applicable amounts specifically reflected in such Applicable Certificate), the applicable Investor shall have the right to exchange (and if requested by the Company or the Trustee, and otherwise in connection with the first transfer of such Applicable Certificate, shall so exchange) such Applicable Certificate for a replacement Applicable Certificate (or replacement Applicable Certificates in the aggregate) in the reduced face amount and adjusted Fractional Undivided Interest, as applicable, in each case after reflecting all such Reduction Events and applicable Reduction Amounts.

(c) Additional Restrictions on Transfer Prior to Final Prefunding Expiry Date. No transfer of the Applicable Certificates shall be permitted prior to occurrence of the Final Prefunding Expiry Date, unless the Company shall have consented thereto (including for purposes of transfer of applicable commitments under the Certificate Purchase Agreement).

(d) Trustee Records. For each Applicable Certificate issued prior to the Final Prefunding Expiry Date, the Trustee shall maintain applicable records (which may be included in the Register) indicating, and setting forth each applicable adjustment to, the face amount of and Fractional Undivided Interests represented by such Applicable Certificate pursuant to this Section 3.07 (and such face amounts and Fractional Undivided Interest amounts so reflected in the records maintained by the Trustee shall supersede any conflicting amounts set forth in such Applicable Certificate).

(e) Effect on Distributions. If any Reduction Event results in a change in Fractional Undivided Interests of any Applicable Certificates, the Trustee shall, in connection with any distributions by the Trustee to the Certificateholders of interest relating both to the period prior to such change in Fractional Undivided Interests and the period from and after such change, allocate applicable distributions taking into account the Fractional Undivided Interests in effect (and interest accruing) on each day during such period.

(f) Section 3.07 Paragraph. Any Applicable Certificate(s) issued prior to the Final Prefunding Expiry Date shall include the applicable notation (as indicated in the form thereof attached as Exhibit A hereto) indicating that the face amount and Fractional Undivided Interest set forth therein remain subject to adjustment pursuant to, and such Applicable Certificate is subject to the additional restrictions on transfer as set forth in, this Section 3.07 (the “Section 3.07 Paragraph”). Any Applicable Certificate issued pursuant to Section 3.07(c) above after the Final Prefunding Expiry Date shall be issued without such Section 3.07 Paragraph.

 

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ARTICLE IV

DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS

Section 4.01. Statements to Applicable Certificateholders. (a) On each Distribution Date, the Trustee will include with each distribution to Applicable Certificateholders of a Scheduled Payment or Special Payment, as the case may be, a statement setting forth the information provided below. Such statement shall set forth (per $1,000 face amount Applicable Certificate as to (ii), (iii), (iv) and (v) below) the following information:

(i) The aggregate amount of funds distributed on such Distribution Date under the Agreement, indicating the amount allocable to each source;

(ii) The amount of such distribution under the Agreement allocable to principal and the amount allocable to premium (including Premium), if any;

(iii) The amount of such distribution under the Agreement allocable to interest, and, in respect to the Applicable Certificates and Class B Certificates, the amount of such distribution allocated to PIK Amounts (separately indicating amount allocated to interest and principal of such PIK Amounts);

(iv) [Reserved];

(v) [Reserved]; and

(vi) The Pool Balance and the Pool Factor.

(b) Within a reasonable period of time after the end of each calendar year but not later than the latest date permitted by law, the Trustee shall furnish to each Person who at any time during such calendar year was an Applicable Certificateholder of record a statement containing the sum of the amounts determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and (a)(v) above for such calendar year or, in the event such Person was an Applicable Certificateholder of record during a portion of such calendar year, for such portion of such year, and such other items as are readily available to the Trustee and which an Applicable Certificateholder shall reasonably request as necessary for the purpose of such Applicable Certificateholder’s preparation of its U.S. federal income tax returns.

(c) If the aggregate principal payments scheduled for a Regular Distribution Date prior to the Final Prefunding Expiry Date differ from the amount thereof set forth for the Applicable Certificates on Exhibit C hereto, by no later than the 15th day prior to such Regular Distribution Date, the Trustee shall mail written notice of the actual amount of such scheduled payments to the Applicable Certificateholders of record as of a date within 15 Business Days prior to the date of mailing.

(d) Promptly following (i) the Final Prefunding Expiry Date, if there has been any change in the information set forth in clauses (y) and (z) below from that set forth on Exhibit

 

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C hereto, and (ii) the date of any early redemption or purchase of, or any default in the payment of principal or interest in respect of, any of the Equipment Notes held in the Applicable Trust, the Trustee shall furnish to Applicable Certificateholders of record on such date a statement setting forth (x) the expected Pool Balances for each subsequent Regular Distribution Date following the Final Prefunding Expiry Date, (y) the related Pool Factors for such Regular Distribution Dates and (z) the expected principal payment schedule of the Equipment Notes, in the aggregate, held as Trust Property at the date of such notice.

(e) The Trustee shall provide promptly to the Applicable Certificateholders all material non-confidential information received by the Trustee from the Company.

(f) This Section 4.01 supersedes and replaces Section 4.03 of the Basic Agreement, with respect to the Applicable Trust.

Section 4.02. Special Payments Account. (a) The Trustee shall establish and maintain on behalf of the Applicable Certificateholders a Special Payments Account as one or more accounts, which shall be non-interest bearing except as provided in Section 4.04 of the Basic Agreement. The Trustee shall hold the Special Payments Account in trust for the benefit of the Applicable Certificateholders and shall make or permit withdrawals therefrom only as provided in the Agreement. On each day when one or more Special Payments are made to the Trustee under the Intercreditor Agreement, the Trustee, upon receipt thereof, shall immediately deposit the aggregate amount of such Special Payments in the Special Payments Account.

(b) This Section 4.02 supersedes and replaces Section 4.01(b) of the Basic Agreement in its entirety, with respect to the Applicable Trust.

Section 4.03. Distributions from Special Payments Account. (a) On each Special Distribution Date with respect to any Special Payment or as soon thereafter as the Trustee has confirmed receipt of any Special Payments due on the Equipment Notes held (subject to the Intercreditor Agreement) in the Applicable Trust or realized upon the sale of such Equipment Notes, the Trustee shall distribute out of the Special Payments Account the entire amount of such Special Payment deposited therein pursuant to Section 4.02(a) of this Trust Supplement. There shall be so distributed to each Applicable Certificateholder of record on the Record Date with respect to such Special Distribution Date (other than as provided in Section 8.01 of this Trust Supplement concerning the final distribution) by check mailed to such Applicable Certificateholder, at the address appearing in the Register, such Applicable Certificateholder’s pro rata share (based on the Fractional Undivided Interest in the Applicable Trust held by such Applicable Certificateholder) of the total amount in the Special Payments Account on account of such Special Payment.

(b) The Trustee shall, at the expense of the Company, cause notice of each Special Payment to be mailed to each Applicable Certificateholder at his address as it appears in the Register. In the event of redemption or purchase of Equipment Notes held in the Applicable Trust, such notice shall be mailed not less than 15 days prior to the Special Distribution Date for the Special Payment resulting from such redemption or purchase, which Special Distribution Date shall be the date of such redemption or purchase. In the case of any other Special Payments, such notice shall be mailed as soon as practicable after the Trustee has confirmed that

 

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it has received funds for such Special Payment, stating the Special Distribution Date for such Special Payment which shall occur not less than 15 days after the date of such notice and as soon as practicable thereafter. Notices with respect to a Special Payment mailed by the Trustee shall set forth:

(i) The Special Distribution Date and the Record Date therefor (except as otherwise provided in Section 8.01 of this Trust Supplement),

(ii) The amount of the Special Payment for each $1,000 face amount Applicable Certificate and the amount thereof constituting principal, premium (including Premium), if any, and interest,

(iii) The reason for the Special Payment, and

(iv) If the Special Distribution Date is the same date as a Regular Distribution Date, the total amount to be received on such date for each $1,000 face amount Applicable Certificate.

If the amount of premium (including Premium), if any, payable upon the redemption or purchase of an Equipment Note has not been calculated at the time that the Trustee mails notice of a Special Payment, it shall be sufficient if the notice sets forth the other amounts to be distributed and states that any premium (including Premium) received will also be distributed.

If any redemption of the Equipment Notes held in the Applicable Trust is canceled, the Trustee, as soon as possible after learning thereof, shall cause notice thereof to be mailed to each Applicable Certificateholder at its address as it appears on the Register.

(c) This Section 4.03 supersedes and replaces Section 4.02(b) and Section 4.02(c) of the Basic Agreement in their entirety, with respect to the Applicable Trust.

ARTICLE V

DEFAULT

Section 5.01. Purchase Rights of Certificateholders. (a) By acceptance of its Applicable Certificate, each Applicable Certificateholder agrees that at any time after the occurrence and during the continuation of a Certificate Buyout Event:

(i) So long as no Additional Certificateholder has elected to exercise its rights to purchase Certificates pursuant to, and given notice of such election in accordance with, this Section 5.01(a) (upon such election and notification thereof, the right specified in this Section 5.01(a)(i) shall be suspended and (x) upon consummation of such purchase pursuant to such election, be terminated with respect to such Certificate Buyout Event, or (y) upon failure to consummate such purchase on the proposed purchase date, such right shall be reinstated), each Class B Certificateholder (other than the Company or any of its Affiliates) shall have the right to purchase all, but not less than all, of the Applicable Certificates upon 15 days’ written notice to the Trustee and each other Class B Certificateholder, on the third Business Day next following the expiry of such 15-day

 

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notice period, provided that (A) if prior to the end of such 15-day period any other Class B Certificateholder (other than the Company or any of its Affiliates) notifies such purchasing Class B Certificateholder that such other Class B Certificateholder wants to participate in such purchase, then such other Class B Certificateholder (other than the Company or any of its Affiliates) may join with the purchasing Class B Certificateholder to purchase all, but not less than all, of the Applicable Certificates pro rata based on the Fractional Undivided Interest in the Class B Trust held by each such Class B Certificateholder and (B) if prior to the end of such 15-day period any other Class B Certificateholder fails to notify the purchasing Class B Certificateholder of such other Class B Certificateholder’s desire to participate in such a purchase, then such other Class B Certificateholder shall lose its right to purchase the Applicable Certificates pursuant to this Section 5.01(a)(i);

(ii) If any Additional Certificates are issued pursuant to one or more Additional Trusts, each Additional Certificateholder (other than the Company or any of its Affiliates) shall have the right (which shall not expire as a result of any purchase of the Applicable Certificates pursuant to Clauses (i) above) to purchase all, but not less than all, of the Applicable Certificates, the Class B Certificates and any Additional Certificates ranked senior to the Additional Certificates held by the purchasing Additional Certificateholders upon 15 days’ written notice to the Trustee, the Class B Trustee, any Additional Trustee with respect to Additional Certificates that rank senior to the Additional Certificates held by the purchasing Additional Certificateholders and each other Additional Certificateholder of the same class, on the third Business Day next following the expiry of such 15-day notice period, provided that (A) if prior to the end of such 15-day period any other Additional Certificateholder of such class (other than the Company or any of its Affiliates) notifies such purchasing Additional Certificateholder that such other Additional Certificateholder wants to participate in such purchase, then such other Additional Certificateholder (other than the Company or any of its Affiliates) may join with the purchasing Additional Certificateholder to purchase all, but not less than all, of the Applicable Certificates, the Class B Certificates and such senior Additional Certificates pro rata based on the Fractional Undivided Interest in the applicable Additional Trust held by each such Additional Certificateholder and (B) if prior to the end of such 15-day period any other Additional Certificateholder of such class fails to notify the purchasing Additional Certificateholder of such other Additional Certificateholder’s desire to participate in such a purchase, then such other Additional Certificateholder shall lose its right to purchase the Applicable Certificates, the Class B Certificates and such senior Additional Certificates pursuant to this Section 5.01(a)(ii); and

(iii) If any Refinancing Certificates are issued, each Refinancing Certificateholder shall have the same right (subject to the same terms and conditions) to purchase Certificates pursuant to this Section 5.01(a) (and to receive notice in connection therewith) as the Certificateholders of the Class that such Refinancing Certificates refinanced.

 

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The purchase price with respect to the Applicable Certificates shall be equal to the Pool Balance of the Applicable Certificates, together with accrued and unpaid interest thereon to the date of such purchase, without premium (including Premium), but including any other amounts then due and payable to the Applicable Certificateholders under the Agreement, the Intercreditor Agreement or any Note Document or on or in respect of the Applicable Certificates; provided, however, that no such purchase of Applicable Certificates shall be effective unless the purchaser(s) shall certify to the Trustee that contemporaneously with such purchase, such purchaser(s) is (are) purchasing, pursuant to the terms of the Agreement and the Other Agreements, all of the Applicable Certificates, the Class B Certificates (unless such purchaser is a Class B Certificateholder) and, if applicable, the Additional Certificates that rank senior to the Additional Certificates held by the purchasing Additional Certificateholder(s). Each payment of the purchase price of the Applicable Certificates referred to in the first sentence hereof shall be made to an account or accounts designated by the Trustee and each such purchase shall be subject to the terms of this Section 5.01. Each Applicable Certificateholder agrees by its acceptance of its Applicable Certificate that (at any time after the occurrence of a Certificate Buyout Event) it will, upon payment from such Class B Certificateholder(s), Additional Certificateholder(s) or Refinancing Certificateholder(s), as the case may be, of the purchase price set forth in the first sentence of this paragraph, (i) forthwith sell, assign, transfer and convey to the purchaser(s) thereof (without recourse, representation or warranty of any kind except for its own acts), all of the right, title, interest and obligation of such Applicable Certificateholder in the Agreement, the Intercreditor Agreement, the NPA, the Note Documents and all Applicable Certificates held by such Applicable Certificateholder (excluding all right, title and interest under any of the foregoing to the extent such right, title or interest is with respect to an obligation not then due and payable as respects any action or inaction or state of affairs occurring prior to such sale) (and the purchaser shall assume all of such Applicable Certificateholder’s obligations under the Agreement, the Intercreditor Agreement, the NPA, the Note Documents and all such Applicable Certificates) and (ii) if such purchase occurs after a Record Date relating to any distribution and prior to or on the related Distribution Date, forthwith turn over to the purchaser(s) of its Applicable Certificate all amounts, if any, received by it on account of such distribution. The Applicable Certificates will be deemed to be purchased on the date payment of the purchase price is made notwithstanding the failure of the Applicable Certificateholders to deliver any Applicable Certificates and, upon such a purchase, (I) the only rights of the Applicable Certificateholders will be to deliver the Applicable Certificates to the purchaser(s) and receive the purchase price for such Applicable Certificates and (II) if the purchaser(s) shall so request, such Applicable Certificateholder will comply with all the provisions of Section 3.04 of the Basic Agreement to enable new Applicable Certificates to be issued to the purchaser in such denominations as it shall request. All charges and expenses in connection with the issuance of any such new Applicable Certificates shall be borne by the purchaser thereof.

Anything to the contrary herein notwithstanding, any purchase (and purchase price) of Applicable Certificates under this Section 5.01 shall exclude any remaining rights (and purchase price amounts attributable to such remaining rights) under the Certificate Purchase Agreement (including in relation to return of any prefunded amounts and payment of any commitment fees in respect thereof).

As used in this Section 5.01 and elsewhere in this Trust Supplement, the terms “Additional Certificate”, “Additional Certificateholder”, “Additional Trust”, “Class B Trust”, “Class B Trustee”, “Refinancing Certificates”, “Refinancing Certificateholder”, “Refinancing Equipment Notes” and “Refinancing Trust” shall have the respective meanings assigned to such terms in the Intercreditor Agreement.

 

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(b) This Section 5.01 supersedes and replaces Section 6.01(b) of the Basic Agreement, with respect to the Applicable Trust.

Section 5.02. Amendment of Section 6.05 of the Basic Agreement. Section 6.05 of the Basic Agreement shall be amended, with respect to the Applicable Trust, by deleting the phrase “and thereby annul any Direction given by such Certificateholders or the Trustee to such Loan Trustee with respect thereto,” set forth in the first sentence thereof.

ARTICLE VI

THE TRUSTEE

Section 6.01. Delivery of Documents; Delivery Dates. (a) The Trustee is hereby directed (i) to execute and deliver the Certificate Purchase Agreement, the Intercreditor Agreement and the NPA on or prior to the Issuance Date (and in the timing contemplated under the Certificate Purchase Agreement), each in the form delivered to the Trustee by the Company, and (ii) subject to the respective terms thereof, to perform its obligations thereunder. Upon request of the Company and the satisfaction or waiver of the closing conditions specified in the Certificate Purchase Agreement, the Trustee shall execute, deliver, authenticate, issue and sell Applicable Certificates in authorized denominations equaling in the aggregate face amounts the amount set forth, with respect to the Applicable Trust, in Schedule I to the Certificate Purchase Agreement evidencing the entire ownership interest in the Applicable Trust, which amount equals the maximum aggregate principal amount of Equipment Notes which may be purchased by the Trustee pursuant to the NPA. Except as provided in Sections 3.03, 3.04, 3.05 and 3.06 of the Basic Agreement, the Trustee shall not execute, authenticate or deliver Applicable Certificates in excess of the aggregate face amount specified in this paragraph. The provisions of this Section 6.01(a) supersede and replace the first sentence of Section 3.02(a) of the Basic Agreement, with respect to the Applicable Trust.

(b) On or after the Initial Closing Date, the Company may deliver from time to time to the Trustee a Closing Notice relating to one or more Equipment Notes. After receipt of a Closing Notice and in any case no later than one Business Day prior to the date as to which such Closing Notice relates (including as any such Closing Date may be delayed in accordance with the Section 1(e) of the NPA and Section 2.1(d) of the Certificate Purchase Agreement) (the “Applicable Closing Date”), the Trustee shall (as and when specified in the Closing Notice), subject to the conditions set forth in Section 2 of the NPA, perform its obligations under the NPA enter into and perform its obligations under the Participation Agreement specified in such Closing Notice (the “Applicable Participation Agreement”) and cause such certificates, documents and legal opinion relating to the Trustee to be duly delivered as required by the NPA and the Applicable Participation Agreement. Upon satisfaction of the conditions specified in the NPA and subject to applicable terms set forth in the Certificate Purchase Agreement, the Trustee shall purchase the applicable Equipment Notes with the funds advanced by the Applicable Certificateholders on the applicable Funding Date in respect to such Applicable Closing Date in accordance with the terms of the NPA. The purchase price of such Equipment Notes shall equal the principal amount of such Equipment Notes. The provisions of this Section 6.01(b) supersede and replace the provisions of Section 2.02 of the Basic Agreement with respect to the Applicable Trust, and all provisions of the Basic Agreement relating to Postponed Notes and Section 2.02 of the Basic Agreement shall not apply to the Applicable Trust.

 

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(c) The Trustee acknowledges its acceptance of all right, title and interest in and to the Trust Property to be acquired pursuant to Section 6.01(b) of this Trust Supplement, the NPA and each Applicable Participation Agreement, and declares that it holds and will hold such right, title and interest for the benefit of all present and future Applicable Certificateholders, upon the trusts set forth in the Agreement. By its acceptance of an Applicable Certificate, each initial Applicable Certificateholder, as a grantor of the Applicable Trust, joins with the Trustee in the creation of the Applicable Trust. The provisions of this Section 6.01(c) supersede and replace the provisions of Section 2.03 of the Basic Agreement, with respect to the Applicable Trust.

Section 6.02. The Trustee. (a) Subject to Section 6.03 of this Trust Supplement and Section 7.15 of the Basic Agreement, the Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Trust Supplement, or the NPA or the due execution hereof or thereof by the Company or the other parties thereto (other than the Trustee), or for or in respect of the recitals and statements contained herein or therein, all of which recitals and statements are made solely by the Company, except that the Trustee hereby represents and warrants that each of this Trust Supplement, the Basic Agreement, each Applicable Certificate, the Intercreditor Agreement or the NPA has been executed and delivered by one of its officers who is duly authorized to execute and deliver such document on its behalf.

(b) Except as herein otherwise provided and except during the continuation of an Event of Default in respect of the Applicable Trust created hereby, no duties, responsibilities or liabilities are assumed, or shall be construed to be assumed, by the Trustee by reason of this Trust Supplement other than as set forth in the Agreement, and this Trust Supplement is executed and accepted on behalf of the Trustee, subject to all the terms and conditions set forth in the Agreement, as fully to all intents as if the same were herein set forth at length.

Section 6.03. Representations and Warranties of the Trustee. The Trustee hereby represents and warrants that:

(a) The Trustee has full power, authority and legal right to execute, deliver and perform this Trust Supplement, the Intercreditor Agreement, the NPA and the Note Documents to which it is or is to become a party and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Supplement, the Intercreditor Agreement, the NPA and the Note Documents to which it is or is to become a party;

(b) The execution, delivery and performance by the Trustee of this Trust Supplement, the Intercreditor Agreement, the NPA and the Note Documents to which it is or is to become a party (i) will not violate any provision of any United States federal law or the law of the state of the United States where it is located governing the banking and trust powers of the Trustee or any order, writ, judgment, or decree of any court, arbitrator or governmental authority applicable to the Trustee or any of its assets, (ii) will not violate any provision of the articles of association or by-laws of the Trustee, and (iii) will not violate any provision of, or constitute,

 

19


with or without notice or lapse of time, a default under, or result in the creation or imposition of any lien on any properties included in the Trust Property pursuant to the provisions of any mortgage, indenture, contract, agreement or other undertaking to which it is a party, which violation, default or lien could reasonably be expected to have an adverse effect on the Trustee’s performance or ability to perform its duties hereunder or thereunder or on the transactions contemplated herein or therein;

(c) The execution, delivery and performance by the Trustee of this Trust Supplement, the Intercreditor Agreement, the NPA and the Note Documents to which it is or is to become a party will not require the authorization, consent, or approval of, the giving of notice to, the filing or registration with, or the taking of any other action in respect of, any governmental authority or agency of the United States or the state of the United States where it is located regulating the banking and corporate trust activities of the Trustee; and

(d) This Trust Supplement, the Intercreditor Agreement, the NPA and the Note Documents to which it is or is to become a party have been, or will be, as applicable, duly executed and delivered by the Trustee and constitute, or will constitute, as applicable, the legal, valid and binding agreements of the Trustee, enforceable against it in accordance with their respective terms; provided, however, that enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and (ii) general principles of equity.

Section 6.04. Trustee Liens. The Trustee in its individual capacity agrees, in addition to the agreements contained in Section 7.17 of the Basic Agreement, that it will at its own cost and expense promptly take any action as may be necessary to duly discharge and satisfy in full any Trustee’s Liens on or with respect to the Trust Property which is attributable to the Trustee in its individual capacity and which is unrelated to the transactions contemplated by the Intercreditor Agreement or the NPA.

ARTICLE VII

ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS

Section 7.01. Amendment of Section 5.02 of the Basic Agreement. Section 5.02 of the Basic Agreement shall be amended, with respect to the Applicable Trust, by (i) replacing the phrase “of the Note Documents and of this Agreement” set forth in paragraph (b) thereof with the phrase “of the Note Documents, of the NPA and of this Agreement” and (ii) replacing the phrase “of this Agreement and any Note Document” set forth in the last paragraph of Section 5.02 with the phrase “of this Agreement, the NPA and any Note Document”.

Section 7.02. Supplemental Agreements Without Consent of Applicable Certificateholders. Without limitation of Section 9.01 of the Basic Agreement, under the terms of, and subject to the limitations contained in, Section 9.01 of the Basic Agreement, the Company may (but will not be required to), and the Trustee (subject to Section 9.03 of the Basic Agreement) shall, at the Company’s request, at any time and from time to time:

 

20


(i) Enter into one or more agreements supplemental to the NPA, for any of the purposes set forth in clauses (1) through (9) of such Section 9.01, and (without limitation of the foregoing or Section 9.01 of the Basic Agreement) (a) clauses (2) and (3) of such Section 9.01 shall also be deemed to include the Company’s obligations under (in the case of clause (2)), and the Company’s rights and powers conferred by (in the case of clause (3)), the NPA, and (b) references in clauses (4), (6) and (7) of such Section 9.01 to “any Intercreditor Agreement or any Liquidity Facility” shall also be deemed to refer to “the Intercreditor Agreement or the NPA”,

(ii) Enter into one or more agreements supplemental to the Agreement, the Intercreditor Agreement or the NPA to provide for the formation of one or more Additional Trusts, the issuance of Additional Certificates, the purchase by an Additional Trust (if any) of applicable Additional Equipment Notes (as defined in the Intercreditor Agreement) and other matters incidental thereto or otherwise contemplated by Section 2.01(b) of the Basic Agreement, subject to the provisions of Section 4(a)(vi) of the NPA and Section 9.1(d) of the Intercreditor Agreement, and

(iii) Enter into one or more agreements supplemental to the Agreement to provide for the formation of one or more Refinancing Trusts, the issuance of Refinancing Certificates, the purchase by any Refinancing Trust of applicable Refinancing Equipment Notes and other matters incidental thereto or as otherwise contemplated by Section 2.01(b) of the Basic Agreement, subject to the provisions of Section 4(a)(vi) of the NPA and Section 9.1(c) of the Intercreditor Agreement.

(iv) Enter into one or more agreements supplemental to the Agreement, the Intercreditor Agreement or the NPA to provide for the replacement of one or more airframes by one or more substitute airframes, subject to the provisions of Section 4.04(f) of the applicable Indentures, and the replacement of related engines and other matters incidental thereto.

Section 7.03. Supplemental Agreements with Consent of Applicable Certificateholders. Without limitation of Section 9.02 of the Basic Agreement, the provisions of Section 9.02 of the Basic Agreement shall apply to agreements or amendments for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the NPA or modifying in any manner the rights and obligations of the Applicable Certificateholders under the NPA.

Section 7.04. Consent of Holders of Certificates Issued under Other Trusts. Notwithstanding any provision in Section 7.02 or Section 7.03 of this Trust Supplement to the contrary, no amendment or modification of Section 5.01 of this Trust Supplement shall be effective unless the trustee for each Class of Certificates affected by such amendment or modification shall have consented thereto.

Section 7.05. Amendment of Section 8.03 of the Basic Agreement Section 7.06. Section 8.03 of the Basic Agreement shall be amended, with respect to the Applicable Trust, by replacing Section 8.03(a) in its entirety with the following:

“(a) The Company shall deliver to the Trustee:

 

21


(1) in respect of each financial year, audited financial statements of the Parent or Company, as determined pursuant to clause (3), which are prepared in accordance with GAAP which represent fairly and accurately in all material respects the financial position of the Parent or Company, as applicable, as at the end of the financial year and results of operations and cash flows for the period then ended; and deliver to the Trustee a copy of such financial statements as soon as practicable but not later than 120 days after the end of the financial year to which they relate;

(2) in respect of each quarterly period in each financial year (except the fourth), unaudited (or audited, if available) financial statements of the Parent or Company, as determined pursuant to clause (3), which are prepared in accordance with GAAP which represent fairly and accurately in all material respects the financial position of the Parent or Company, as applicable, as at the end of such quarterly period and results of operations and cash flows for the period then ended; and deliver to the Trustee a copy of such financial statements as soon as practicable but not later than 60 days after the end of the quarterly period to which they relate;

(3) if at any date of determination, the Parent-Only Net Worth is:

 

  i.

less than or equal to 5% of the Consolidated Net Worth, the Company shall deliver to the Trustee the financial statements as described in clauses (1) and (2) above in respect of the Parent;

 

  ii.

greater than 5% of the Consolidated Net Worth but less than or equal to10% of the Consolidated Net Worth, the Company shall provide (x) the financial statements as described in clauses (1) and (2) above in respect of the Parent and (y) a brief quantitative description of the assets and liabilities underlying the Parent-Only Net Worth; or

 

  iii.

greater than 10% of the Consolidated Net Worth, the Company shall provide standalone financial statements as described in clauses (1) and (2) above in respect of the Company to the Trustee; and

(4) in lieu of delivering to the Trustee the financial statements referred to in clauses (1) and (2) above, the Company may cause such financial statements to be publicly available on the internet within the time period set forth in clauses (1) and (2) above, respectively, at a location identified to Trustee in writing.”

Section 7.06. Amendment of Section 1.01 of the Basic Agreement

Section 7.07. Section 1.01 of the Basic Agreement shall be amended, with respect to the Applicable Trust, by adding the following new definitions thereto, in proper alphabetical order, to read as follows:

Consolidated Net Worth: Means, at any date of determination, the Net Worth of the Parent consolidated with the Net Worth of the Company.”

 

22


GAAP: Means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, consistently applied and as in effect from time to time.”

Net Worth: Means, at any date of determination, the excess of total assets over total liabilities, total assets and total liabilities each to be determined as to both classification of items and amounts in accordance with GAAP.”

Parent: Means Sun Country Airlines Holdings, Inc. and each of its successors.”

Parent-Only Net Worth: Means, at any date of determination, the Net Worth of the Parent less the Net Worth of the Company.”

ARTICLE VIII

TERMINATION OF TRUST

Section 8.01. Termination of the Applicable Trust. (a) The respective obligations and responsibilities of the Company and the Trustee with respect to the Applicable Trust shall terminate upon the earlier of (A) the completion of the assignment, transfer and discharge described in the first sentence of the immediately following paragraph and (B) distribution to all Applicable Certificateholders and the Trustee of all amounts required to be distributed to them pursuant to the Agreement and the disposition of all property held as part of the Trust Property; provided, however, that in no event shall the Applicable Trust continue beyond one hundred ten (110) years following the date of the execution of this Trust Supplement.

In connection with the occurrence of the event set forth in clause (B) above of the first paragraph of this Section 8.01(a), notice of such termination, specifying the Distribution Date upon which the Applicable Certificateholders may surrender their Applicable Certificates to the Trustee for payment of the final distribution and cancellation, shall be mailed promptly by the Trustee to Applicable Certificateholders not earlier than the 60th day and not later than the 15th day next preceding such final Distribution Date specifying (A) the Distribution Date upon which the proposed final payment of the Applicable Certificates will be made upon presentation and surrender of Applicable Certificates at the office or agency of the Trustee therein specified, (B) the amount of any such proposed final payment, and (C) that the Record Date otherwise applicable to such Distribution Date is not applicable, payments being made only upon presentation and surrender of the Applicable Certificates at the office or agency of the Trustee therein specified. The Trustee shall give such notice to the Registrar at the time such notice is given to Applicable Certificateholders. Upon presentation and surrender of the Applicable Certificates in accordance with such notice, the Trustee shall cause to be distributed to Applicable Certificateholders such final payments.

 

23


In the event that all of the Applicable Certificateholders shall not surrender their Applicable Certificates for cancellation within six months after the date specified in the above-mentioned written notice, the Trustee shall give a second written notice to the remaining Applicable Certificateholders to surrender their Applicable Certificates for cancellation and receive the final distribution with respect thereto. No additional interest shall accrue on the Applicable Certificates after the Distribution Date specified in the first written notice. In the event that any money held by the Trustee for the payment of distributions on the Applicable Certificates shall remain unclaimed for two years (or such lesser time as the Trustee shall be satisfied, after sixty days’ notice from the Company, is one month prior to the escheat period provided under applicable law) after the final distribution date with respect thereto, the Trustee shall pay to each Loan Trustee the appropriate amount of money relating to such Loan Trustee and shall give written notice thereof to the Company.

(b) The provisions of this Section 8.01 supersede and replace the provisions of Section 11.01 of the Basic Agreement in its entirety, with respect to the Applicable Trust.

ARTICLE IX

MISCELLANEOUS PROVISIONS

Section 9.01. Basic Agreement Ratified. Except and so far as herein expressly provided, all of the provisions, terms and conditions of the Basic Agreement are in all respects ratified and confirmed; and the Basic Agreement and this Trust Supplement shall be taken, read and construed as one and the same instrument. All replacements of provisions of, and other modifications of the Basic Agreement set forth in this Trust Supplement are solely with respect to the Applicable Trust.

Section 9.02. GOVERNING LAW. THE AGREEMENT AND THE APPLICABLE CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

Section 9.03. Execution in Counterparts. This Trust Supplement may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.

Section 9.04. Intention of Parties. The parties hereto intend that the Applicable Trust be classified for U.S. federal income tax purposes as a grantor trust under Subpart E, Part I of Subchapter J of the Internal Revenue Code of 1986, as amended, and not as a trust or association taxable as a corporation or as a partnership. Each Applicable Certificateholder and Investor, by its acceptance of its Applicable Certificate or a beneficial interest therein, agrees to treat the Applicable Trust as a grantor trust for all U.S. federal, state and local income tax purposes. The powers granted and obligations undertaken pursuant to the Agreement shall be so construed so as to further such intent.

 

24


IN WITNESS WHEREOF, the Company and the Trustee have caused this Trust Supplement to be duly executed by their respective officers thereto duly authorized, as of the day and year first written above.

 

SUN COUNTRY, INC.
By:  

 

  Name:
  Title:
WILMINGTON TRUST, NATIONAL ASSOCIATION,
  as Trustee
By:  

 

  Name:
  Title:

Signature Page to Trust Supplement 2022-1A

 

25


EXHIBIT A

FORM OF CERTIFICATE

 

Certificate    PPN No: [ ]

No.                    

SUN COUNTRY PASS THROUGH TRUST 2022-1A

Sun Country Pass Through Certificate, Series 2022-1A

Issuance Date:    [__], 2022

Final Legal Distribution Date: March 15, 2031

Evidencing A Fractional Undivided Interest In The Sun Country Pass Through Trust 2022-1A, The Property Of Which Shall Include Certain Equipment Notes Each Secured By An Aircraft Owned By Sun Country, Inc.

$[_____________] Fractional Undivided Interest

representing .[__]% of the Trust per $1,000 face amount

THIS CERTIFIES THAT __________, for value received, is the registered owner of a $___________ (___________________________________________________ DOLLARS) Fractional Undivided Interest in the Sun Country Pass Through Trust 2022-1A (the “Trust”) created by Wilmington Trust, National Association, as trustee (the “Trustee”), pursuant to a Pass Through Trust Agreement, dated as of December 9, 2019 (the “Basic Agreement”), between the Trustee and Sun Country, Inc., a Minnesota corporation (the “Company”), as supplemented by Trust Supplement No. 2022-1A thereto, dated as of March 28, 2022 (the “Trust Supplement” and, together with the Basic Agreement, the “Agreement”), between the Trustee and the Company, a summary of certain of the pertinent provisions of which is set forth below. To the extent not otherwise defined herein, the capitalized terms used herein have the meanings assigned to them in the Agreement. This Certificate is one of the duly authorized Certificates designated as “Sun Country Pass Through Certificates, Series 2022-1A” (herein called the “Certificates”). This Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement. By virtue of its acceptance hereof, the holder of this Certificate (the “Certificateholder” and, together with all other holders of Certificates issued by the Trust, the “Certificateholders”) assents to and agrees to be bound by the provisions of the Agreement and the Intercreditor Agreement. The property of the Trust includes certain Equipment Notes, and all rights of the Trust to receive payments under the Intercreditor Agreement (the “Trust Property”). Each issue of the Equipment Notes is secured by, among other things, a security interest in an Aircraft owned by the Company.

[AS OF THE DATE OF ISSUANCE OF THIS CERTIFICATE AND THROUGH THE OCCURRENCE OF THE FINAL PREFUNDING EXPIRY DATE (AND DISTRIBUTION OF ANY AMOUNTS IN RELATION THERETO PURSUANT TO THE CERTIFICATE PURCHASE AGREEMENT), THE FACE AMOUNT AND FRACTIONAL UNDIVIDED INTEREST SET FORTH ABOVE IN THIS CERTIFICATE REMAIN SUBJECT

 

26


TO ADJUSTMENT PURSUANT TO, AND THIS CERTIFICATE IS SUBJECT TO THE ADDITIONAL RESTRICTIONS ON TRANSFER SET FORTH IN, SECTION 3.07 OF THE TRUST SUPPLEMENT. THE ACTUAL FACE AMOUNT AND FRACTIONAL UNDIVIDED INTEREST REPRESENTED BY THIS CERTIFICATE, TAKING INTO ACCOUNT ANY SUCH ADJUSTMENTS, SHALL BE AS SET FORTH IN THE RECORDS MAINTAINED BY THE TRUSTEE PURSUANT TO SECTION 3.07 OF THE TRUST SUPPLEMENT.]1

The Certificates represent Fractional Undivided Interests in the Trust and the Trust Property and have no rights, benefits or interest in respect of any other separate trust established pursuant to the terms of the Basic Agreement for any other series of certificates issued pursuant thereto.

Subject to and in accordance with the terms of the Agreement and the Intercreditor Agreement, from funds then available to the Trustee, there will be distributed on March 15 and September 15 of each year (a “Regular Distribution Date”) commencing September 15, 2022, to the Person in whose name this Certificate is registered at the close of business on the 15th day preceding the Regular Distribution Date, an amount in respect of the Scheduled Payments on the Equipment Notes due on such Regular Distribution Date, the receipt of which has been confirmed by the Trustee, equal to the product of the percentage interest in the Trust evidenced by this Certificate and an amount equal to the sum of such Scheduled Payments. Subject to and in accordance with the terms of the Agreement and the Intercreditor Agreement, in the event that Special Payments on the Equipment Notes are received by the Trustee, from funds then available to the Trustee, there shall be distributed on the applicable Special Distribution Date, to the Person in whose name this Certificate is registered at the close of business on the 15th day preceding the Special Distribution Date, an amount in respect of such Special Payments on the Equipment Notes, the receipt of which has been confirmed by the Trustee, equal to the product of the percentage interest in the Trust evidenced by this Certificate and an amount equal to the sum of such Special Payments so received. If a Regular Distribution Date or Special Distribution Date is not a Business Day, distribution shall be made on the immediately following Business Day with the same force and effect as if made on such Regular Distribution Date or Special Distribution Date and no interest shall accrue during the intervening period. The Trustee shall mail notice of each Special Payment and the Special Distribution Date therefor to the Certificateholder of this Certificate.

Distributions on this Certificate will be made by the Trustee by check mailed to the Person entitled thereto, without presentation or surrender of this Certificate or the making of any notation hereon. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Certificate will be made after notice mailed by the Trustee of

the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency of the Trustee specified in such notice.

 

1 

This Section 3.07 Paragraph should be included in each Applicable Certificate issued prior to the Final Prefunding Expiry Date. This 3.07 Paragraph should be omitted from Applicable Certificates issued after the Final Prefunding Expiry Date (each of which should each be issued in the applicable face amounts and reflecting Fractional Undivided Interests after taking into account all applicable adjustments pursuant to Section 3.07 of the Trust Supplement).

 

A-2


The Certificates do not represent a direct obligation of, or an obligation guaranteed by, or an interest in, the Company or the Trustee or any affiliate thereof. The Certificates are limited in right of payment, all as more specifically set forth on the face hereof and in the Agreement. All payments or distributions made to Certificateholders under the Agreement shall be made only from the Trust Property and only to the extent that the Trustee shall have sufficient income or proceeds from the Trust Property to make such payments in accordance with the terms of the Agreement. Each Certificateholder of this Certificate, by its acceptance hereof, agrees that it will look solely to the income and proceeds from the Trust Property to the extent available for distribution to such Certificateholder as provided in the Agreement. This Certificate does not purport to summarize the Agreement and reference is made to the Agreement for information with respect to the interests, rights, benefits, obligations, privileges, and duties evidenced hereby. A copy of the Agreement may be examined during normal business hours at the principal office of the Trustee, and at such other places, if any, designated by the Trustee, by any Certificateholder upon request.

The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Certificateholders under the Agreement at any time by the Company and the Trustee with the consent of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust. Any such consent by the Certificateholder of this Certificate shall be conclusive and binding on such Certificateholder and upon all future Certificateholders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Certificateholders of any of the Certificates.

As provided in the Agreement and subject to certain limitations set forth therein, the transfer of this Certificate is registrable in the Register upon surrender of this Certificate for registration of transfer at the offices or agencies maintained by the Trustee in its capacity as Registrar, or by any successor Registrar, duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Trustee and the Registrar, duly executed by the Certificateholder hereof or such Certificateholder’s attorney duly authorized in writing, and thereupon one or more new Certificates of authorized denominations evidencing the same aggregate Fractional Undivided Interest in the Trust will be issued to the designated transferee or transferees.

The Certificates are issuable only as registered Certificates without coupons in minimum denominations of $100,000 Fractional Undivided Interest and integral multiples of $1,000 in excess thereof, except that one Certificate may be issued in a different denomination. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of authorized denominations evidencing the same aggregate Fractional Undivided Interest in the Trust, as requested by the Certificateholder surrendering the same.

 

A-3


No service charge will be made for any such registration of transfer or exchange, but the Trustee shall require payment of a sum sufficient to cover any tax or governmental charge payable in connection therewith.

Each Certificateholder and Investor, by its acceptance of this Certificate or a beneficial interest herein, agrees to treat the Trust as a grantor trust for all U.S. federal, state and local income tax purposes.

The Trustee, the Registrar, and any agent of the Trustee or the Registrar may treat the person in whose name this Certificate is registered as the owner hereof for all purposes, and neither the Trustee, the Registrar, nor any such agent shall be affected by any notice to the contrary.

The obligations and responsibilities created by the Agreement and the Trust created thereby shall terminate upon the distribution to Certificateholders of all amounts required to be distributed to them pursuant to the Agreement and the disposition of all property held as part of the Trust Property.

Any Person acquiring or accepting this Certificate or an interest herein will, by such acquisition or acceptance, be deemed to have represented and warranted to and for the benefit of the Company that either: (i) no assets of an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), a plan subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or a governmental, church or foreign plan subject to a law that is similar to Title I of ERISA or Section 4975 of the Code (a “Similar Law Plan”) have been used to purchase or hold this Certificate or an interest herein or (ii) the purchase and holding of this Certificate or an interest herein either (a) in the case of assets of an employee benefit plan subject to Title I of ERISA or a plan subject to Section 4975 of the Code, are exempt from the prohibited transaction restrictions of ERISA and the Code pursuant to one or more prohibited transaction statutory or administrative exemptions or (b) in the case of assets of a Similar Law Plan, will not violate any similar state, local or foreign law.

If the purchaser or transferee of this Certificate or an interest herein is an employee benefit plan subject to Title I of ERISA or a plan subject to Section 4975 of the Code, it will be deemed to represent, warrant and agree that (i) neither the Company nor any of its affiliates (or its or their agents) has provided any investment recommendation or investment advice on which it, or any fiduciary or other person investing the assets of such plan (“Plan Fiduciary”), has relied in connection with its decision to invest in this Certificate, and they are not otherwise acting as a fiduciary, as defined in Section 3(21) of ERISA or Section 4975(e)(3) of the Code, to such plan or the Plan Fiduciary in connection with such plan’s acquisition of this Certificate; and (ii) the Plan Fiduciary is exercising its own independent judgment in evaluating the transaction.

THIS CERTIFICATE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

 

A-4


Unless the certificate of authentication hereon has been executed by the Trustee, by manual signature, this Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose.

IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.

 

SUN COUNTRY PASS THROUGH TRUST 2022-1A
By:   WILMINGTON TRUST, NATIONAL ASSOCIATION,
  as Trustee
By:  

         

  Name:
  Title:

 

A-5


FORM OF THE TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Certificates referred to in the within-mentioned Agreement.

 

WILMINGTON TRUST, NATIONAL ASSOCIATION,
  as Trustee
By:  

         

  Name:
  Title:


TRANSFER NOTICE

FORM OF TRANSFER NOTICE

FOR VALUE RECEIVED the undersigned registered holder (the “Transferor”) hereby sell(s), assign(s) and transfer(s) unto

(the “Transferee”)

 

(Please print or typewrite name and address including zip code of assignee)

 

                                                                                

(Insert Taxpayer Identification No. of assignee)

the within Certificate and all rights thereunder, hereby irrevocably constituting and appointing

attorney to transfer said Certificate on the books of the Registrar with full power of substitution in the premises (the “Transfer”).

[THE FOLLOWING PROVISION TO BE INCLUDED

ON ALL CERTIFICATES]

In connection with any transfer of this Certificate, the undersigned confirms that without utilizing any general solicitation or general advertising that:


PART A [check either Item 1 or Item 2 of this Part A]

[ ] Item 1. Check if Transferor is a United States Person. The Transferor hereby certifies that the Transfer is being made to another United States Person.                

[ ] Item 2. Check if Transferor is not a United States Person.

As used in this Part A, “United States Person” has the meaning given to such term in the Internal Revenue Code of 1986, as amended.

PART B

[ ] (a) this Certificate is being transferred to an institution that is an “Accredited Investor” as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act in a transaction exempt from the registration requirements of the Securities Act.

[_] (b) this Certificate is being transferred to a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act and in compliance with the exemption from registration under the Securities Act provided by Rule 144A thereunder.

[_] (c) this Certificate is being transferred in an offshore transaction meeting the requirements of Rule 903 or Rule 904 of Regulation S under the Securities Act.

[_] (d) this Certificate is being transferred pursuant to an effective registration statement under the Securities Act.

[_] (e) this Certificate is being transferred to Sun Country, Inc.

[_] (f) the Certificate is being transferred other than in accordance with (a), (b), (c), (d) or (e) above in compliance with an exemption from registration under the Securities Act and documents are being furnished that comply with the conditions of transfer set forth in this Certificate and the Agreement.

If none of the foregoing boxes is checked, the Registrar shall not be obligated to register this Certificate in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 3.05 of the Trust Supplement shall have been satisfied.

 

Date:[                     ,         ]

                                                                               
  

[Name of Transferor]

 

  
  

NOTE: The signature must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever.

 

A-8


Signature Guarantee:                                                  

TO BE COMPLETED BY TRANSFEREE IF (b) ABOVE IS CHECKED.

The undersigned represents and warrants that it is purchasing this Certificate for its own account or an account with respect to which it exercises sole investment discretion and that it and any Person on whose behalf it is acting with respect to any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Applicable Trust and/or the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

Date:[                     ,         ]

                                                           
   

NOTE: To be executed by an executive officer.

 

A-9


EXHIBIT B

INITIAL AMORTIZATION SCHEDULE

 

Date

   Scheduled Principal Payments      Expected Pool Factor  

At Issuance

   $ 0.00        1.0000000  
EX-4.2

Exhibit 4.2

Execution Version

TRUST SUPPLEMENT No. 2022-1B

Dated as of March 28, 2022

between

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Trustee,

and

SUN COUNTRY, INC.

to

PASS THROUGH TRUST AGREEMENT

Dated as of December 9, 2019

$45,447,000

Sun Country Pass Through Trust 2022-1B

Sun Country Pass Through Certificates, Series 2022-1B


TABLE OF CONTENTS

 

     Page  

ARTICLE I THE CERTIFICATES

     2  

Section 1.01.

  The Certificates      2  

ARTICLE II DEFINITIONS

     3  

Section 2.01.

  Definitions      3  

ARTICLE III ISSUANCE AND TRANSFER OF THE APPLICABLE CERTIFICATES

     8  

Section 3.01.

  Issuance of Applicable Certificates      8  

Section 3.02.

  Restrictive Legends      8  

Section 3.03.

  Amendment of Sections 3.04 and 3.05 of the Basic Agreement      9  

Section 3.04.

  Transfer and Exchange      9  

Section 3.05.

  Special Transfer Provisions      10  

Section 3.06.

  [Reserved]      11  

Section 3.07.

  Adjustments and Additional Restrictions on Transfer Prior to Final Pre-Funding Expiry Date      11  

ARTICLE IV DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS

     13  

Section 4.01.

  Statements to Applicable Certificateholders      13  

Section 4.02.

  Special Payments Account      14  

Section 4.03.

  Distributions from Special Payments Account      14  

ARTICLE V DEFAULT

     15  

Section 5.01.

  Purchase Rights of Certificateholders      15  

Section 5.02.

  Amendment of Section 6.05 of the Basic Agreement      18  

ARTICLE VI THE TRUSTEE

     18  

Section 6.01.

  Delivery of Documents; Delivery Dates      18  

Section 6.02.

  The Trustee      19  

Section 6.03.

  Representations and Warranties of the Trustee      19  

Section 6.04.

  Trustee Liens      20  

ARTICLE VII ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS

     20  

Section 7.01.

  Amendment of Section 5.02 of the Basic Agreement      20  

Section 7.02.

  Supplemental Agreements Without Consent of Applicable Certificateholders      20  

Section 7.03.

  Supplemental Agreements with Consent of Applicable Certificateholders      21  

Section 7.04.

  Consent of Holders of Certificates Issued under Other Trusts      21  

ARTICLE VIII TERMINATION OF TRUST

     23  

Section 8.01.

  Termination of the Applicable Trust      23  


ARTICLE IX MISCELLANEOUS PROVISIONS

     24  

Section 9.01.

  Basic Agreement Ratified      24  

Section 9.02.

  GOVERNING LAW      24  

Section 9.03.

  Execution in Counterparts      24  

Section 9.04.

  Intention of Parties      24  

 

Exhibit A    -     

Form of Certificate

Exhibit B    -     

Initial Amortization Schedule

 

 

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This Trust Supplement No. 2022-1B, dated as of March 28, 2022 (herein called the “Trust Supplement”), between Sun Country, Inc., a Minnesota corporation (the “Company”), and Wilmington Trust, National Association (the “Trustee”), to the Pass Through Trust Agreement, dated as of December 9, 2019, between the Company and the Trustee (the “Basic Agreement”).

W I T N E S S E T H:

WHEREAS, the Basic Agreement, unlimited as to the aggregate face amount of Certificates (unless otherwise specified herein, capitalized terms used herein without definition having the respective meanings specified in the Basic Agreement) which may be issued thereunder, has heretofore been executed and delivered;

WHEREAS, the Company owns or will acquire 13 Boeing 737-800 aircraft (the “Applicable Aircraft”);

WHEREAS, the Company intends to finance each of the Applicable Aircraft;

WHEREAS, with respect to each Applicable Aircraft, the Company will issue pursuant to an Indenture, on a recourse basis, Equipment Notes to finance a portion of the purchase price of such Applicable Aircraft;

WHEREAS, the Trustee hereby declares the creation of the Sun Country Pass Through Trust 2022-1B (the “Applicable Trust”) for the benefit of the Applicable Certificateholders, and the initial Applicable Certificateholders as the grantors of the Applicable Trust, by their respective acceptances of the Applicable Certificates, join in the creation of the Applicable Trust with the Trustee;

WHEREAS, all Certificates to be issued by the Applicable Trust will evidence Fractional Undivided Interests in the Applicable Trust and will convey no rights, benefits or interests in respect of any property other than the Trust Property;

WHEREAS, pursuant to the terms and conditions of the Basic Agreement as supplemented by this Trust Supplement (the “Agreement”) and the NPA, upon the financing of an Applicable Aircraft under the NPA, the Trustee on behalf of the Applicable Trust, shall purchase one or more Equipment Notes having the same interest rate (on a weighted average basis) as, and final maturity date not later than the final Regular Distribution Date of, the Applicable Certificates issued hereunder and shall hold such Equipment Notes in trust for the benefit of the Applicable Certificateholders;

WHEREAS, all of the conditions and requirements necessary to make this Trust Supplement, when duly executed and delivered, a valid, binding and legal instrument in accordance with its terms and for the purposes herein expressed, have been done, performed and fulfilled, and the execution and delivery of this Trust Supplement in the form and with the terms hereof have been in all respects duly authorized;

NOW THEREFORE, in consideration of the premises herein, it is agreed between the Company and the Trustee as follows:


ARTICLE I

THE CERTIFICATES

Section 1.01. The Certificates. There is hereby created a series of Certificates to be issued under the Agreement to be distinguished and known as “Sun Country Pass Through Certificates, Series 2022-1B” (hereinafter defined as the “Applicable Certificates”). Each Applicable Certificate represents a Fractional Undivided Interest in the Applicable Trust created hereby. The Applicable Certificates shall be the only instruments evidencing a Fractional Undivided Interest in the Applicable Trust.

The terms and conditions applicable to the Applicable Certificates are as follows:

(a) The aggregate face amount of the Applicable Certificates that shall be authenticated under the Agreement (except for Applicable Certificates authenticated and delivered under Sections 3.03, 3.04, 3.05 and 3.06 of the Basic Agreement) is $45,447,000.

(b) The Regular Distribution Dates with respect to any distribution of Scheduled Payments means March 15 and September 15 of each year, commencing on September 15, 2022 until distribution of all of the Scheduled Payments to be made under the Equipment Notes has been made.

(c) The Special Distribution Dates with respect to the Applicable Certificates means any Business Day on which a Special Payment is to be distributed pursuant to the Agreement.

(d) [Reserved.].

(e) (i) The Applicable Certificates shall be in the form attached hereto as Exhibit A. Any Person acquiring or accepting an Applicable Certificate or an interest therein will, by such acquisition or acceptance, be deemed to have represented and warranted to and for the benefit of the Company that either (i) no assets of an employee benefit plan subject to Title I of ERISA, a plan subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or a governmental, church or foreign plan subject to a law that is similar to Title I of ERISA or Section 4975 of the Code (a “Similar Law Plan”) have been used to purchase or hold such Applicable Certificate or an interest therein or (ii) the purchase and holding of such Applicable Certificate or an interest therein either (a) in the case of assets of an employee benefit plan subject to Title I of ERISA or a plan subject to Section 4975 of the Code, are exempt from the prohibited transaction restrictions of ERISA and the Code pursuant to one or more prohibited transaction statutory or administrative exemptions or (b) in the case of assets of a Similar Law Plan, will not violate any similar state, local or foreign law.

(ii) The Applicable Certificates shall not be Book-Entry Certificates.

(f) If the purchaser or transferee of an Applicable Certificate or an interest therein is an employee benefit plan subject to Title I of ERISA or a plan subject to Section 4975 of the Code, it will be deemed to represent, warrant and agree that (i) neither the Company nor any of its affiliates (or its or their agents) has provided any investment recommendation or investment advice on which it, or any fiduciary or other person investing the assets of such plan

 

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(“Plan Fiduciary”), has relied in connection with its decision to invest in the Applicable Certificates, and they are not otherwise acting as a fiduciary, as defined in Section 3(21) of ERISA or Section 4975(e)(3) of the Code, to such plan or the Plan Fiduciary in connection with such plan’s acquisition of the Applicable Certificates; and (ii) the Plan Fiduciary is exercising its own independent judgment in evaluating the transaction.

(g) The “Participation Agreements” as defined in this Trust Supplement are the “Note Purchase Agreements” referred to in the Basic Agreement.

(h) The Applicable Certificates are subject to the Intercreditor Agreement.

(i) The Responsible Party is the Company.

(j) The definition of the term “PTC Event of Default” is as set forth in the Intercreditor Agreement.

(k) The “particular sections of the Note Purchase Agreement”, for purposes of clause (3) of Section 7.07 of the Basic Agreement, are Section 8.1 of each Participation Agreement.

(l) The Equipment Notes to be acquired and held in the Applicable Trust, and the related Aircraft and Note Documents, are described in the NPA.

ARTICLE II

DEFINITIONS

Section 2.01. Definitions. For all purposes of the Basic Agreement as supplemented by this Trust Supplement, the following capitalized terms have the following meanings (any term used herein which is defined in both this Trust Supplement and the Basic Agreement shall have the meaning assigned thereto in this Trust Supplement for purposes of the Basic Agreement as supplemented by this Trust Supplement):

Agreement: Has the meaning specified in the recitals hereto.

Aircraft: Means each of the Applicable Aircraft in respect of which a Participation Agreement is to be or is, as the case may be, entered into in accordance with the NPA (or any substitute aircraft, including engines therefor, owned by the Company and securing one or more Equipment Notes).

Aircraft Purchase Agreement: Has the meaning specified in the NPA.

Applicable Aircraft: Has the meaning specified in the recitals hereto.

Applicable Certificate: Has the meaning specified in Section 1.01 of this Trust Supplement.

Applicable Certificateholder: Means the Person in whose name an Applicable Certificate is registered on the Register for the Applicable Certificates.

 

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Applicable Closing Date: Has the meaning specified in Section 6.01(b) of this Trust Supplement.

Applicable Participation Agreement: Has the meaning specified in Section 6.01(b) of this Trust Supplement.

Applicable Trust: Has the meaning specified in the recitals hereto.

Bankruptcy Event: Has the meaning specified in the Intercreditor Agreement.

Basic Agreement: Has the meaning specified in the first paragraph of this Trust Supplement.

Business Day: Means any day other than a Saturday, a Sunday or a day on which commercial banks are required or authorized to close in Minneapolis, Minnesota, New York, New York, or, so long as any Applicable Certificate is Outstanding, the city and state in which the Trustee, the Subordination Agent or any Loan Trustee maintains its Corporate Trust Office or receives and disburses funds.

Certificate: Has the meaning specified in the Intercreditor Agreement.

Certificate Buyout Event: Means that a Bankruptcy Event has occurred and is continuing and either of the following events has occurred: (A) both (i) the 60-day period specified in Section 1110(a)(2)(A) of the U.S. Bankruptcy Code (the “60-Day Period”) has expired and (ii) the Company has not entered into one or more agreements under Section 1110(a)(2)(A) of the U.S. Bankruptcy Code to perform all of its obligations under all of the Indentures or, if it has entered into such agreements, has at any time thereafter failed to cure any default under any of the Indentures in accordance with Section 1110(a)(2)(B) of the Bankruptcy Code; or (B) if prior to the expiry of the 60-Day Period, the Company shall have abandoned any Aircraft.

Certificate Purchase Agreement: Means the Certificate Purchase Agreement, dated March 28, 2022, among the Company, the Trustee, the Other Trustees and the Initial Purchasers.

Class: Has the meaning specified in the Intercreditor Agreement.

Class A Certificate: Has the meaning specified in the Intercreditor Agreement.

Class A Certificateholder: Has the meaning specified in the Intercreditor Agreement.

Closing Notice: Has the meaning specified in the NPA.

Company: Has the meaning specified in the first paragraph of this Trust Supplement.

Controlling Party: Has the meaning specified in the Intercreditor Agreement.

 

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Cut-off Date: Means the earlier of (a) the Final Prefunding Expiry Date and (b) the date on which a Triggering Event occurs.

Definitive Certificate: Has the meaning specified in Section 3.01 of this Trust Supplement.

Distribution Date: Means any Regular Distribution Date or Special Distribution Date as the context requires.

Final Legal Distribution Date: Means March 15, 2029.

Final Prefunding Expiry Date: Means the earlier of (a) the final Prefunding Expiry Date permitted under and as defined in the Certificate Purchase Agreement, as the same may be extended pursuant to Section 2.1(d) thereof, and (b) the date on which Equipment Notes issued with respect to all of the Applicable Aircraft have been purchased by the Applicable Trust in accordance with the NPA and the Certificate Purchase Agreement.

Funding Date: Has the meaning specified in the Certificate Purchase Agreement.

Indenture: Means each of the separate trust indentures and mortgages relating to the Aircraft, each as specified or described in a Closing Notice delivered pursuant to the NPA or the related Participation Agreement, in each case as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.

Indenture Event of Default: Means an “Event of Default” as defined in any Indenture.

Initial Closing Date: Has the meaning specified in the NPA.

Initial Purchasers: Means the “Purchasers” as defined in the Certificate Purchase Agreement.

Intercreditor Agreement: Means the Intercreditor Agreement dated as of March 28, 2022 among the Trustee, the Other Trustees party thereto, and Wilmington Trust, National Association, as Subordination Agent and as trustee thereunder, as amended, supplemented or otherwise modified from time to time in accordance with its terms.

Investment Company Act: Means the U.S. Investment Company Act of 1940, as amended.

Investors: Means the Initial Purchasers, together with all subsequent beneficial owners of the Applicable Certificates.

Note Documents: Means the Equipment Notes with respect to the Applicable Certificates and, with respect to any such Equipment Note, the Indenture and the Participation Agreement relating to such Equipment Note.

 

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NPA: Means the Note Purchase Agreement dated as of March 28, 2022 among the Trustee, the Other Trustees party thereto, the Company, Wilmington Trust, National Association, as the Subordination Agent, providing for, among other things, the purchase of Equipment Notes by the Trustee on behalf of the Applicable Trust, as the same may be amended, supplemented or otherwise modified from time to time, in accordance with its terms.

Other Agreements: Means (i) the Basic Agreement as supplemented by Trust Supplement No. 2022-1B dated as of the date hereof relating to Sun Country Pass Through Trust 2022-1B, (ii) the Basic Agreement, as supplemented by a Trust Supplement relating to any Additional Trust and (iii) the Basic Agreement as supplemented by a Trust Supplement relating to any Refinancing Trust.

Other Trustees: Means the trustees under the Other Agreements, and any successor or other trustee appointed as provided therein.

Other Trusts: Means the Sun Country Pass Through Trust 2022-1A, an Additional Trust or Trusts, if any, and a Refinancing Trust or Trusts, if any, created by the Other Agreements.

Participation Agreement: Means each Participation Agreement to be entered into, or entered into (as the case may be), by the Trustee pursuant to the NPA, as the same may be amended, supplemented or otherwise modified in accordance with its terms.

PIK Amounts: Means, as of any date of determination, interest on the Pool Balance of the Applicable Certificates that was scheduled for distribution on any applicable Regular Distribution Date and was not paid on such Regular Distribution Date (and remains unpaid as of such date of determination) together with any interest accrued thereon at the Stated Interest Rate (as defined in the Intercreditor Agreement) applicable to the Applicable Certificates.

Pool Balance: Means, as of any date, (i) the sum of the original principal amounts of the Equipment Notes relating to the Applicable Certificates purchased by the Applicable Trust on each Closing Date (as defined in the NPA) occurring on or prior to such date, less (ii) the aggregate amount of all payments made as of such date in respect of such Applicable Certificates other than payments made in respect of interest, PIK Amounts or premium (including Premium) thereon or reimbursement of any costs or expenses incurred in connection therewith (and disregarding any return of prefunded amounts or payment of commitment fees to the Initial Purchasers under the Certificate Purchase Agreement). The Pool Balance as of any date shall be computed after giving effect to any special distribution with respect to any payment of principal of the Equipment Notes or payment with respect to other Trust Property and the distribution thereof to be made on that date.

 

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Pool Factor: Means, as of any Distribution Date, the quotient (rounded to the seventh decimal place) computed by dividing (i) the Pool Balance by (ii) the sum of the original principal amounts of the Equipment Notes relating to the Applicable Certificates purchased by the Applicable Trust on each Closing Date occurring on or prior to such Distribution Date. The Pool Factor as of any Distribution Date shall be computed after giving effect to any special distribution with respect to any payment of principal of the Equipment Notes or payment with respect to other Trust Property and the distribution thereof to be made on that date.

Premium: Has the meaning specified in the Intercreditor Agreement.

QIB: Means a qualified institutional buyer as defined in Rule 144A.

Ratings Confirmation: Has the meaning specified in the Intercreditor Agreement.

Register: Has the meaning specified in Section 3.04 of this Trust Supplement.

Registrar: Has the meaning specified in Section 3.04 of this Trust Supplement.

Restricted Legend: Has the meaning specified in Section 3.02 of this Trust Supplement.

Rule 144A: Means Rule 144A under the Securities Act and any successor rule thereto.

Scheduled Closing Date: Has the meaning specified in the NPA.

Scheduled Payment: Means, with respect to any Equipment Note, any payment of principal or interest on such Equipment Note (other than any such payment which is not in fact received by the Trustee or the Subordination Agent within five days of the date on which such payment is scheduled to be made), which payment represents the installment of principal on such Equipment Note at the stated maturity of such installment, scheduled interest accrued on the unpaid principal amount of such Equipment Note, or both; provided, however, that any payment of principal, premium (including Premium), if any, or interest resulting from the redemption or purchase of any Equipment Note shall not constitute a Scheduled Payment.

Securities Act: Means the United States Securities Act of 1933, as amended from time to time, or any successor thereto.

Special Payment: Means any payment (other than a Scheduled Payment) in respect of, or any proceeds of, any Equipment Note or Collateral (as defined in each Indenture).

Triggering Event: Has the meaning assigned to such term in the Intercreditor Agreement.

Trust Property: Means (i) subject to the Intercreditor Agreement, the Equipment Notes held as the property of the Applicable Trust, all monies at any time paid thereon and all monies due and to become due thereunder, (ii) funds from time to time deposited in the Certificate Account and the Special Payments Account and, subject to the

 

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Intercreditor Agreement, any proceeds from the sale by the Trustee pursuant to Article VI of the Basic Agreement of any Equipment Note and (iii) all rights of the Applicable Trust and the Trustee, on behalf of the Applicable Trust, under the Intercreditor Agreement and the NPA, including, without limitation, all rights to receive certain payments thereunder, and all monies paid to the Trustee on behalf of the Applicable Trust pursuant to the Intercreditor Agreement.

Trust Supplement: Has the meaning specified in the first paragraph of this trust supplement.

Trustee: Has the meaning specified in the first paragraph of this Trust Supplement.

ARTICLE III

ISSUANCE AND TRANSFER OF THE APPLICABLE CERTIFICATES

Section 3.01. Issuance of Applicable Certificates.

The Applicable Certificates shall be issued only as certificated securities in definitive, fully registered form without interest coupons substantially in the form of Exhibit A hereto with such legends thereon as are provided for in Section 3.02 (each, a “Definitive Certificate”) and only in denominations of $100,000 or integral multiples of $1,000 in excess thereof, except that one Applicable Certificate may be issued in a different denomination. Each Definitive Certificate shall be dated the date of its authentication. The initial Definitive Certificates delivered at the closing under the Certificate Purchase Agreement shall be registered in such names as are provided pursuant to the Certificate Purchase Agreement.

Section 3.02. Restrictive Legends. All Applicable Certificates issued pursuant to the Agreement shall bear a legend to the following effect (the “Restricted Legend”) except as provided in Section 3.05(a) or unless the Company and the Trustee determine otherwise consistent with applicable law:

THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). YOU, THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREE THAT THIS CERTIFICATE MAY NOT BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO AN INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (UPON DELIVERY TO THE TRUSTEE OF AN OPINION OF COUNSEL AND OTHER DOCUMENTATION AS THE TRUSTEE MAY REQUEST), (2) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A

 

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TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 OF THE SECURITIES ACT OR ANY SUCCESSOR PROVISION, (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR (6) TO SUN COUNTRY, INC. AND, IN EACH OF THE FOREGOING CASES, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE PASS THROUGH TRUST AGREEMENT CONTAINS A PROVISION REQUIRING THE REGISTRAR TO REFUSE TO REGISTER ANY TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE FOREGOING RESTRICTIONS.

WITHOUT LIMITING THE FOREGOING, IF SUCH HOLDER IS A UNITED STATES PERSON AS DEFINED UNDER SECTION 7701(A)(30) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS CERTIFICATE MAY ONLY BE TRANSFERRED TO ANOTHER UNITED STATES PERSON.

THIS CERTIFICATE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED IN VIOLATION OF SUCH ACT.

Section 3.03. Amendment of Sections 3.04 and 3.05 of the Basic Agreement. Sections 3.04 and 3.05 of this Trust Supplement supersede and replace Sections 3.04 and 3.05 of the Basic Agreement, with respect to the Applicable Trust.

Section 3.04. Transfer and Exchange. The Trustee shall cause to be kept at the office or agency to be maintained by it in accordance with the provisions of Section 7.12 of the Basic Agreement a register (the “Register”) of the Applicable Certificates in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of such Applicable Certificates and of transfers and exchanges of such Applicable Certificates as herein provided. The Trustee shall initially be the registrar (the “Registrar”) for the purpose of registering such Applicable Certificates and transfers and exchanges of such Applicable Certificates as herein provided.

All Applicable Certificates issued upon any registration of transfer or exchange of Applicable Certificates shall be valid obligations of the Applicable Trust, evidencing the same interest therein, and entitled to the same benefits under this Agreement, as the Applicable Certificates surrendered upon such registration of transfer or exchange.

 

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An Applicable Certificateholder may transfer an Applicable Certificate, in whole or in part in authorized denominations, or request that an Applicable Certificate be exchanged for Applicable Certificates in authorized denominations in an aggregate Fractional Undivided Interest equal to the Fractional Undivided Interest of such Applicable Certificate surrendered for exchange, by surrender of such Applicable Certificate to the Trustee with the form of transfer notice thereon duly completed and executed, and otherwise complying with the terms of the Agreement, including providing evidence of compliance with any restrictions on transfer, in form satisfactory to the Trustee and the Registrar. No such transfer shall be effected until, and such transferee shall succeed to the rights of an Applicable Certificateholder only upon, final acceptance and registration of the transfer by the Registrar in the Register. Prior to the registration of any transfer by an Applicable Certificateholder as provided herein, the Trustee shall treat the person in whose name the Applicable Certificate is registered as the owner thereof for all purposes, and the Trustee shall not be affected by notice to the contrary. When Applicable Certificates are presented to the Registrar with a request to register the transfer thereof or to exchange them for other authorized denominations of an Applicable Certificate in a Fractional Undivided Interest equal to the aggregate Fractional Undivided Interest of Applicable Certificates surrendered for exchange, the Registrar shall register the transfer or make the exchange as requested if its requirements for such transactions are met.

The Registrar shall not register the transfer or exchange of any Applicable Certificate in the name of any Person unless and until the conditions to any such transfer or exchange set forth in Section 3.05 shall have been satisfied.

To permit registrations of transfers and exchanges in accordance with the terms, conditions and restrictions hereof, the Trustee shall execute and authenticate Applicable Certificates at the Registrar’s request. No service charge shall be made to an Applicable Certificateholder for any registration of transfer or exchange of Applicable Certificates, but the Trustee shall require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of Applicable Certificates. All Applicable Certificates surrendered for registration of transfer or exchange shall be canceled and subsequently destroyed by the Trustee.

Section 3.05. Transfer Provisions.

(a) Restricted Legend. Upon the transfer, exchange or replacement of Applicable Certificates not bearing the Restricted Legend, the Registrar shall deliver Applicable Certificates that do not bear the Restricted Legend. Upon the transfer, exchange or replacement of Applicable Certificates bearing the Restricted Legend, the Registrar shall deliver only Applicable Certificates that bear the Restricted Legend unless there is delivered to the Registrar, the Trustee and the Company, such certifications, legal opinions or other information as the Registrar, the Trustee or the Company may reasonably require to confirm that neither such Restricted Legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act.

(b) General. By acceptance of any Applicable Certificate bearing the Restricted Legend, each Holder of such an Applicable Certificate acknowledges the restrictions on transfer of such Applicable Certificate set forth in the Agreement and agrees that it will transfer such Applicable Certificate only as provided in the Agreement. The Registrar shall not register a transfer of any Applicable Certificate unless such transfer complies with the restrictions on transfer, if any, of such Applicable Certificate set forth in this Agreement. In

 

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connection with any transfer of Applicable Certificates, each Applicable Certificateholder agrees by its acceptance of the Applicable Certificates to furnish the Registrar or the Trustee such certifications, legal opinions or other information as either of them may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or a transaction not subject to, the registration requirements of the Securities Act, and in accordance with the terms and provisions of this Article III; provided that the Registrar shall not be required to determine the sufficiency of any such certifications, legal opinions or other information.

Until such time as no Applicable Certificates remain Outstanding, the Registrar shall retain copies of all letters, notices and other written communications received pursuant to this Section 3.05. The Trustee, if not the Registrar at such time, shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar.

Section 3.06. [Reserved].

Section 3.07. Adjustments and Additional Restrictions on Transfer Prior to Final Pre-Funding Expiry Date.

(a) Adjustments to Initial Certificates. The face amount of the initial Applicable Certificates issued to the Initial Purchasers pursuant to the Certificate Purchase Agreement shall represent, in the aggregate for each such Initial Purchaser, the full purchase price to be paid under the Certificate Purchase Agreement by such Initial Purchaser for its Applicable Certificates on all Funding Dates, and such purchase prices in the aggregate for all Initial Purchasers equal the maximum aggregate principal amount of Equipment Notes which may be purchased by the Trustee pursuant to the NPA. Accordingly, such face amounts and the Fractional Undivided Interest as set forth in any such initial Applicable Certificate issued to the Initial Purchasers have been determined assuming each Initial Purchaser funds the full maximum amount of its purchase price, and that such purchase price is fully used for the purchase by the Trust of Equipment Notes. If, prior to the Final Prefunding Expiry Date, for any reason any Initial Purchaser does not fund its assumed full purchase price of Applicable Certificates under the Certificate Purchase Agreement, or any such purchase price, once funded, is required to be returned to such Initial Purchaser pursuant to the Certificate Purchase Agreement (any such event, a “Reduction Event” and any such contemplated purchase price amount so not funded by, or so required to be returned to, such Initial Purchaser in connection therewith, the “Reduction Amount”):

(i) the face amount of the initial Applicable Certificates issued to such Initial Purchaser shall, effective upon occurrence such Reduction Event, be deemed permanently reduced by such Reduction Amount (on a pro rata basis, if more than one such initial Applicable Certificate has been so issued to such Initial Purchaser);

(ii) if the Reduction Amount does not affect all Initial Purchasers on a pro rata basis, the Fractional Undivided Interest represented by each Applicable Certificate shall, effective upon occurrence of such Reduction Event, be correspondingly deemed adjusted (by such amount as confirmed by the Trustee); and

 

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(iii) promptly following any such Reduction Event, the Trustee will (A) notify the Company and each Initial Purchaser of the occurrence thereof, the related Reduction Amount and, as to any affected Applicable Certificates, the resulting reductions in face amount and changes to Fractional Undivided Interests, and (B) as to each affected Applicable Certificate, record any such reduction in face amount and change to Fractional Undivided Interests in the records maintained by the Trustee (which may be set forth in the Register).

(b) Replacement Applicable Certificates. At any time after the Final Prefunding Expiry Date, for any such affected Applicable Certificate (as to which the face amount has reduced or the Fractional Undivided Interest has been adjusted so as to no longer correspond to the applicable amounts specifically reflected in such Applicable Certificate), the applicable Investor shall have the right to exchange (and if requested by the Company or the Trustee, and otherwise in connection with the first transfer of such Applicable Certificate, shall so exchange) such Applicable Certificate for a replacement Applicable Certificate (or replacement Applicable Certificates in the aggregate) in the reduced face amount and adjusted Fractional Undivided Interest, as applicable, in each case after reflecting all such Reduction Events and applicable Reduction Amounts.

(c) Additional Restrictions on Transfer Prior to Final Prefunding Expiry Date. No transfer of the Applicable Certificates shall be permitted prior to occurrence of the Final Prefunding Expiry Date, unless the Company shall have consented thereto (including for purposes of transfer of applicable commitments under the Certificate Purchase Agreement).

(d) Trustee Records. For each Applicable Certificate issued prior to the Final Prefunding Expiry Date, the Trustee shall maintain applicable records (which may be included in the Register) indicating, and setting forth each applicable adjustment to, the face amount of and Fractional Undivided Interests represented by such Applicable Certificate pursuant to this Section 3.07 (and such face amounts and Fractional Undivided Interest amounts so reflected in the records maintained by the Trustee shall supersede any conflicting amounts set forth in such Applicable Certificate).

(e) Effect on Distributions. If any Reduction Event results in a change in Fractional Undivided Interests of any Applicable Certificates, the Trustee shall, in connection with any distributions by the Trustee to the Certificateholders of interest relating both to the period prior to such change in Fractional Undivided Interests and the period from and after such change, allocate applicable distributions taking into account the Fractional Undivided Interests in effect (and interest accruing) on each day during such period.

(f) Section 3.07 Paragraph. Any Applicable Certificate(s) issued prior to the Final Prefunding Expiry Date shall include the applicable notation (as indicated in the form thereof attached as Exhibit A hereto) indicating that the face amount and Fractional Undivided Interest set forth therein remain subject to adjustment pursuant to, and such Applicable Certificate is subject to the additional restrictions on transfer as set forth in, this Section 3.07 (the “Section 3.07 Paragraph”). Any Applicable Certificate issued pursuant to Section 3.07(c) above after the Final Prefunding Expiry Date shall be issued without such Section 3.07 Paragraph.

 

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ARTICLE IV

DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS

Section 4.01. Statements to Applicable Certificateholders. (a) On each Distribution Date, the Trustee will include with each distribution to Applicable Certificateholders of a Scheduled Payment or Special Payment, as the case may be, a statement setting forth the information provided below. Such statement shall set forth (per $1,000 face amount Applicable Certificate as to (ii), (iii), (iv) and (v) below) the following information:

(i) The aggregate amount of funds distributed on such Distribution Date under the Agreement, indicating the amount allocable to each source;

(ii) The amount of such distribution under the Agreement allocable to principal and the amount allocable to premium (including Premium), if any;

(iii) The amount of such distribution under the Agreement allocable to interest, and, in respect to the Class A Certificates and Applicable Certificates, the amount of such distribution allocated to PIK Amounts (separately indicating amount allocated to interest and principal of such PIK Amounts);

(iv) [Reserved];

(v) [Reserved]; and

(vi) The Pool Balance and the Pool Factor.

(b) Within a reasonable period of time after the end of each calendar year but not later than the latest date permitted by law, the Trustee shall furnish to each Person who at any time during such calendar year was an Applicable Certificateholder of record a statement containing the sum of the amounts determined pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) and (a)(v) above for such calendar year or, in the event such Person was an Applicable Certificateholder of record during a portion of such calendar year, for such portion of such year, and such other items as are readily available to the Trustee and which an Applicable Certificateholder shall reasonably request as necessary for the purpose of such Applicable Certificateholder’s preparation of its U.S. federal income tax returns.

(c) If the aggregate principal payments scheduled for a Regular Distribution Date prior to the Final Prefunding Expiry Date differ from the amount thereof set forth for the Applicable Certificates on Exhibit C hereto, by no later than the 15th day prior to such Regular Distribution Date, the Trustee shall mail written notice of the actual amount of such scheduled payments to the Applicable Certificateholders of record as of a date within 15 Business Days prior to the date of mailing.

 

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(d) Promptly following (i) the Final Prefunding Expiry Date, if there has been any change in the information set forth in clauses (y) and (z) below from that set forth on Exhibit C hereto, and (ii) the date of any early redemption or purchase of, or any default in the payment of principal or interest in respect of, any of the Equipment Notes held in the Applicable Trust, the Trustee shall furnish to Applicable Certificateholders of record on such date a statement setting forth (x) the expected Pool Balances for each subsequent Regular Distribution Date following the Final Prefunding Expiry Date, (y) the related Pool Factors for such Regular Distribution Dates and (z) the expected principal payment schedule of the Equipment Notes, in the aggregate, held as Trust Property at the date of such notice.

(e) The Trustee shall provide promptly to the Applicable Certificateholders all material non-confidential information received by the Trustee from the Company.

(f) This Section 4.01 supersedes and replaces Section 4.03 of the Basic Agreement, with respect to the Applicable Trust.

Section 4.02. Special Payments Account. (a) The Trustee shall establish and maintain on behalf of the Applicable Certificateholders a Special Payments Account as one or more accounts, which shall be non-interest bearing except as provided in Section 4.04 of the Basic Agreement. The Trustee shall hold the Special Payments Account in trust for the benefit of the Applicable Certificateholders and shall make or permit withdrawals therefrom only as provided in the Agreement. On each day when one or more Special Payments are made to the Trustee under the Intercreditor Agreement, the Trustee, upon receipt thereof, shall immediately deposit the aggregate amount of such Special Payments in the Special Payments Account.

(b) This Section 4.02 supersedes and replaces Section 4.01(b) of the Basic Agreement in its entirety, with respect to the Applicable Trust.

Section 4.03. Distributions from Special Payments Account. (a) On each Special Distribution Date with respect to any Special Payment or as soon thereafter as the Trustee has confirmed receipt of any Special Payments due on the Equipment Notes held (subject to the Intercreditor Agreement) in the Applicable Trust or realized upon the sale of such Equipment Notes, the Trustee shall distribute out of the Special Payments Account the entire amount of such Special Payment deposited therein pursuant to Section 4.02(a) of this Trust Supplement. There shall be so distributed to each Applicable Certificateholder of record on the Record Date with respect to such Special Distribution Date (other than as provided in Section 8.01 of this Trust Supplement concerning the final distribution) by check mailed to such Applicable Certificateholder, at the address appearing in the Register, such Applicable Certificateholder’s pro rata share (based on the Fractional Undivided Interest in the Applicable Trust held by such Applicable Certificateholder) of the total amount in the Special Payments Account on account of such Special Payment.

(b) The Trustee shall, at the expense of the Company, cause notice of each Special Payment to be mailed to each Applicable Certificateholder at his address as it appears in the Register. In the event of redemption or purchase of Equipment Notes held in the Applicable Trust, such notice shall be mailed not less than 15 days prior to the Special Distribution Date for the Special Payment resulting from such redemption or purchase, which Special Distribution Date shall be the date of such redemption or purchase. In the case of any other Special Payments, such notice shall be mailed as soon as practicable after the Trustee has confirmed that it has received funds for such Special Payment, stating the Special Distribution Date for such Special Payment which shall occur not less than 15 days after the date of such notice and as soon as practicable thereafter. Notices with respect to a Special Payment mailed by the Trustee shall set forth:

 

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(i) The Special Distribution Date and the Record Date therefor (except as otherwise provided in Section 8.01 of this Trust Supplement),

(ii) The amount of the Special Payment for each $1,000 face amount Applicable Certificate and the amount thereof constituting principal, premium (including Premium), if any, and interest,

(iii) The reason for the Special Payment, and

(iv) If the Special Distribution Date is the same date as a Regular Distribution Date, the total amount to be received on such date for each $1,000 face amount Applicable Certificate.

If the amount of premium (including Premium), if any, payable upon the redemption or purchase of an Equipment Note has not been calculated at the time that the Trustee mails notice of a Special Payment, it shall be sufficient if the notice sets forth the other amounts to be distributed and states that any premium (including Premium) received will also be distributed.

If any redemption of the Equipment Notes held in the Applicable Trust is canceled, the Trustee, as soon as possible after learning thereof, shall cause notice thereof to be mailed to each Applicable Certificateholder at its address as it appears on the Register.

(c) This Section 4.03 supersedes and replaces Section 4.02(b) and Section 4.02(c) of the Basic Agreement in their entirety, with respect to the Applicable Trust.

ARTICLE V

DEFAULT

Section 5.01. Purchase Rights of Certificateholders. (a) By acceptance of its Applicable Certificate, each Applicable Certificateholder agrees that at any time after the occurrence and during the continuation of a Certificate Buyout Event:

(i) So long as no Additional Certificateholder has elected to exercise its rights to purchase Certificates pursuant to, and given notice of such election in accordance with, this Section 5.01(a) (upon such election and notification thereof, the right specified in this Section 5.01(a)(i) shall be suspended and (x) upon consummation of such purchase pursuant to such election, be terminated with respect to such Certificate Buyout Event, or (y) upon failure to consummate such purchase on the proposed purchase date, such right shall be reinstated), each Applicable Certificateholder (other than the Company or any of its Affiliates) shall have the right to purchase, for the purchase price set forth in the Trust Agreement for the Class A Certificates, all, but not less than all, of the Class A Certificates upon 15 days’ written notice to the Class A Trustee, the Trustee and each other Applicable Certificateholder, on the third Business Day next following the expiry

 

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of such 15-day notice period, provided that (A) if prior to the end of such 15-day period any other Applicable Certificateholder (other than the Company or any of its Affiliates) notifies such purchasing Applicable Certificateholder that such other Applicable Certificateholder wants to participate in such purchase, then such other Applicable Certificateholder (other than the Company or any of its Affiliates) may join with the purchasing Applicable Certificateholder to purchase all, but not less than all, of the Class A Certificates pro rata based on the Fractional Undivided Interest in the Trust held by each such Applicable Certificateholder and (B) if prior to the end of such 15-day period any other Applicable Certificateholder fails to notify the purchasing Applicable Certificateholder of such other Applicable Certificateholder’s desire to participate in such a purchase, then such other Applicable Certificateholder shall lose its right to purchase the Class A Certificates pursuant to this Section 5.01(a)(i);

(ii) If any Additional Certificates are issued pursuant to one or more Additional Trusts, each Additional Certificateholder (other than the Company or any of its Affiliates) shall have the right (which shall not expire as a result of any purchase of the Applicable Certificates pursuant to Clause (i) above) to purchase all, but not less than all, of the Class A Certificates, the Applicable Certificates and any Additional Certificates ranked senior to the Additional Certificates held by the purchasing Additional Certificateholders upon 15 days’ written notice to the Trustee, the Class A Trustee, any Additional Trustee with respect to Additional Certificates that rank senior to the Additional Certificates held by the purchasing Additional Certificateholders and each other Additional Certificateholder of the same class, on the third Business Day next following the expiry of such 15-day notice period, provided that (A) if prior to the end of such 15-day period any other Additional Certificateholder of such class (other than the Company or any of its Affiliates) notifies such purchasing Additional Certificateholder that such other Additional Certificateholder wants to participate in such purchase, then such other Additional Certificateholder (other than the Company or any of its Affiliates) may join with the purchasing Additional Certificateholder to purchase all, but not less than all, of the Class A Certificates, the Applicable Certificates and such senior Additional Certificates pro rata based on the Fractional Undivided Interest in the applicable Additional Trust held by each such Additional Certificateholder and (B) if prior to the end of such 15-day period any other Additional Certificateholder of such class fails to notify the purchasing Additional Certificateholder of such other Additional Certificateholder’s desire to participate in such a purchase, then such other Additional Certificateholder shall lose its right to purchase the Class A Certificates, the Applicable Certificates and such senior Additional Certificates pursuant to this Section 5.01(a)(ii); and

(iii) If any Refinancing Certificates are issued, each Refinancing Certificateholder shall have the same right (subject to the same terms and conditions) to purchase Certificates pursuant to this Section 5.01(a) (and to receive notice in connection therewith) as the Certificateholders of the Class that such Refinancing Certificates refinanced.

 

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The purchase price with respect to the Applicable Certificates shall be equal to the Pool Balance of the Applicable Certificates, together with accrued and unpaid interest thereon to the date of such purchase, without premium (including Premium), but including any other amounts then due and payable to the Applicable Certificateholders under the Agreement, the Intercreditor Agreement or any Note Document or on or in respect of the Applicable Certificates; provided, however, that no such purchase of Applicable Certificates shall be effective unless the purchaser(s) shall certify to the Trustee that contemporaneously with such purchase, such purchaser(s) is (are) purchasing, pursuant to the terms of the Agreement and the Other Agreements, all of the Applicable Certificates, the Class A Certificates, and, if applicable, the Additional Certificates that rank senior to the Additional Certificates held by the purchasing Additional Certificateholder(s). Each payment of the purchase price of the Applicable Certificates referred to in the first sentence hereof shall be made to an account or accounts designated by the Trustee and each such purchase shall be subject to the terms of this Section 5.01. Each Applicable Certificateholder agrees by its acceptance of its Applicable Certificate that (at any time after the occurrence of a Certificate Buyout Event) it will, upon payment from such Additional Certificateholder(s) or Refinancing Certificateholder(s), as the case may be, of the purchase price set forth in the first sentence of this paragraph, (i) forthwith sell, assign, transfer and convey to the purchaser(s) thereof (without recourse, representation or warranty of any kind except for its own acts), all of the right, title, interest and obligation of such Applicable Certificateholder in the Agreement, the Intercreditor Agreement, the NPA, the Note Documents and all Applicable Certificates held by such Applicable Certificateholder (excluding all right, title and interest under any of the foregoing to the extent such right, title or interest is with respect to an obligation not then due and payable as respects any action or inaction or state of affairs occurring prior to such sale) (and the purchaser shall assume all of such Applicable Certificateholder’s obligations under the Agreement, the Intercreditor Agreement, the NPA, the Note Documents and all such Applicable Certificates) and (ii) if such purchase occurs after a Record Date relating to any distribution and prior to or on the related Distribution Date, forthwith turn over to the purchaser(s) of its Applicable Certificate all amounts, if any, received by it on account of such distribution. The Applicable Certificates will be deemed to be purchased on the date payment of the purchase price is made notwithstanding the failure of the Applicable Certificateholders to deliver any Applicable Certificates and, upon such a purchase, (I) the only rights of the Applicable Certificateholders will be to deliver the Applicable Certificates to the purchaser(s) and receive the purchase price for such Applicable Certificates and (II) if the purchaser(s) shall so request, such Applicable Certificateholder will comply with all the provisions of Section 3.04 of the Basic Agreement to enable new Applicable Certificates to be issued to the purchaser in such denominations as it shall request. All charges and expenses in connection with the issuance of any such new Applicable Certificates shall be borne by the purchaser thereof.

Anything to the contrary herein notwithstanding, any purchase (and purchase price) of Applicable Certificates under this Section 5.01 shall exclude any remaining rights (and purchase price amounts attributable to such remaining rights) under the Certificate Purchase Agreement (including in relation to return of any prefunded amounts and payment of any commitment fees in respect thereof).

As used in this Section 5.01 and elsewhere in this Trust Supplement, the terms “Additional Certificate”, “Additional Certificateholder”, “Additional Trust”, “Class A Trust”, “Class A Trustee”, “Refinancing Certificates”, “Refinancing Certificateholder”, “Refinancing Equipment Notes” and “Refinancing Trust” shall have the respective meanings assigned to such terms in the Intercreditor Agreement.

 

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(b) This Section 5.01 supersedes and replaces Section 6.01(b) of the Basic Agreement, with respect to the Applicable Trust.

Section 5.02. Amendment of Section 6.05 of the Basic Agreement. Section 6.05 of the Basic Agreement shall be amended, with respect to the Applicable Trust, by deleting the phrase “and thereby annul any Direction given by such Certificateholders or the Trustee to such Loan Trustee with respect thereto,” set forth in the first sentence thereof.

ARTICLE VI

THE TRUSTEE

Section 6.01. Delivery of Documents; Delivery Dates. (a) The Trustee is hereby directed (i) to execute and deliver the Certificate Purchase Agreement, the Intercreditor Agreement and the NPA on or prior to the Issuance Date (and in the timing contemplated under the Certificate Purchase Agreement), each in the form delivered to the Trustee by the Company, and (ii) subject to the respective terms thereof, to perform its obligations thereunder. Upon request of the Company and the satisfaction or waiver of the closing conditions specified in the Certificate Purchase Agreement, the Trustee shall execute, deliver, authenticate, issue and sell Applicable Certificates in authorized denominations equaling in the aggregate face amounts the amount set forth, with respect to the Applicable Trust, in Schedule I to the Certificate Purchase Agreement evidencing the entire ownership interest in the Applicable Trust, which amount equals the maximum aggregate principal amount of Equipment Notes which may be purchased by the Trustee pursuant to the NPA. Except as provided in Sections 3.03, 3.04, 3.05 and 3.06 of the Basic Agreement, the Trustee shall not execute, authenticate or deliver Applicable Certificates in excess of the aggregate face amount specified in this paragraph. The provisions of this Section 6.01(a) supersede and replace the first sentence of Section 3.02(a) of the Basic Agreement, with respect to the Applicable Trust.

(b) On or after the Initial Closing Date, the Company may deliver from time to time to the Trustee a Closing Notice relating to one or more Equipment Notes. After receipt of a Closing Notice and in any case no later than one Business Day prior to the date as to which such Closing Notice relates (including as any such Closing Date may be delayed in accordance with the Section 1(e) of the NPA and Section 2.1(d) of the Certificate Purchase Agreement) (the “Applicable Closing Date”), the Trustee shall (as and when specified in the Closing Notice), subject to the conditions set forth in Section 2 of the NPA, perform its obligations under the NPA enter into and perform its obligations under the Participation Agreement specified in such Closing Notice (the “Applicable Participation Agreement”) and cause such certificates, documents and legal opinion relating to the Trustee to be duly delivered as required by the NPA and the Applicable Participation Agreement. Upon satisfaction of the conditions specified in the NPA and subject to applicable terms set forth in the Certificate Purchase Agreement, the Trustee shall purchase the applicable Equipment Notes with the funds advanced by the Applicable Certificateholders on the applicable Funding Date in respect to such Applicable Closing Date in accordance with the terms of the NPA. The purchase price of such Equipment Notes shall equal the principal amount of such Equipment Notes. The provisions of this Section 6.01(b) supersede and replace the provisions of Section 2.02 of the Basic Agreement with respect to the Applicable Trust, and all provisions of the Basic Agreement relating to Postponed Notes and Section 2.02 of the Basic Agreement shall not apply to the Applicable Trust.

 

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(c) The Trustee acknowledges its acceptance of all right, title and interest in and to the Trust Property to be acquired pursuant to Section 6.01(b) of this Trust Supplement, the NPA and each Applicable Participation Agreement, and declares that it holds and will hold such right, title and interest for the benefit of all present and future Applicable Certificateholders, upon the trusts set forth in the Agreement. By its acceptance of an Applicable Certificate, each initial Applicable Certificateholder, as a grantor of the Applicable Trust, joins with the Trustee in the creation of the Applicable Trust. The provisions of this Section 6.01(c) supersede and replace the provisions of Section 2.03 of the Basic Agreement, with respect to the Applicable Trust.

Section 6.02. The Trustee. (a) Subject to Section 6.03 of this Trust Supplement and Section 7.15 of the Basic Agreement, the Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Trust Supplement, or the NPA or the due execution hereof or thereof by the Company or the other parties thereto (other than the Trustee), or for or in respect of the recitals and statements contained herein or therein, all of which recitals and statements are made solely by the Company, except that the Trustee hereby represents and warrants that each of this Trust Supplement, the Basic Agreement, each Applicable Certificate, the Intercreditor Agreement or the NPA has been executed and delivered by one of its officers who is duly authorized to execute and deliver such document on its behalf.

(b) Except as herein otherwise provided and except during the continuation of an Event of Default in respect of the Applicable Trust created hereby, no duties, responsibilities or liabilities are assumed, or shall be construed to be assumed, by the Trustee by reason of this Trust Supplement other than as set forth in the Agreement, and this Trust Supplement is executed and accepted on behalf of the Trustee, subject to all the terms and conditions set forth in the Agreement, as fully to all intents as if the same were herein set forth at length.

Section 6.03. Representations and Warranties of the Trustee. The Trustee hereby represents and warrants that:

(a) The Trustee has full power, authority and legal right to execute, deliver and perform this Trust Supplement, the Intercreditor Agreement, the NPA and the Note Documents to which it is or is to become a party and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Supplement, the Intercreditor Agreement, the NPA and the Note Documents to which it is or is to become a party;

(b) The execution, delivery and performance by the Trustee of this Trust Supplement, the Intercreditor Agreement, the NPA and the Note Documents to which it is or is to become a party (i) will not violate any provision of any United States federal law or the law of the state of the United States where it is located governing the banking and trust powers of the Trustee or any order, writ, judgment, or decree of any court, arbitrator or governmental authority applicable to the Trustee or any of its assets, (ii) will not violate any provision of the articles of association or by-laws of the Trustee, and (iii) will not violate any provision of, or constitute,

 

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with or without notice or lapse of time, a default under, or result in the creation or imposition of any lien on any properties included in the Trust Property pursuant to the provisions of any mortgage, indenture, contract, agreement or other undertaking to which it is a party, which violation, default or lien could reasonably be expected to have an adverse effect on the Trustee’s performance or ability to perform its duties hereunder or thereunder or on the transactions contemplated herein or therein;

(c) The execution, delivery and performance by the Trustee of this Trust Supplement, the Intercreditor Agreement, the NPA and the Note Documents to which it is or is to become a party will not require the authorization, consent, or approval of, the giving of notice to, the filing or registration with, or the taking of any other action in respect of, any governmental authority or agency of the United States or the state of the United States where it is located regulating the banking and corporate trust activities of the Trustee; and

(d) This Trust Supplement, the Intercreditor Agreement, the NPA and the Note Documents to which it is or is to become a party have been, or will be, as applicable, duly executed and delivered by the Trustee and constitute, or will constitute, as applicable, the legal, valid and binding agreements of the Trustee, enforceable against it in accordance with their respective terms; provided, however, that enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and (ii) general principles of equity.

Section 6.04. Trustee Liens. The Trustee in its individual capacity agrees, in addition to the agreements contained in Section 7.17 of the Basic Agreement, that it will at its own cost and expense promptly take any action as may be necessary to duly discharge and satisfy in full any Trustee’s Liens on or with respect to the Trust Property which is attributable to the Trustee in its individual capacity and which is unrelated to the transactions contemplated by the Intercreditor Agreement or the NPA.

ARTICLE VII

ADDITIONAL AMENDMENT; SUPPLEMENTAL AGREEMENTS

Section 7.01. Amendment of Section 5.02 of the Basic Agreement. Section 5.02 of the Basic Agreement shall be amended, with respect to the Applicable Trust, by (i) replacing the phrase “of the Note Documents and of this Agreement” set forth in paragraph (b) thereof with the phrase “of the Note Documents, of the NPA and of this Agreement” and (ii) replacing the phrase “of this Agreement and any Note Document” set forth in the last paragraph of Section 5.02 with the phrase “of this Agreement, the NPA and any Note Document”.

Section 7.02. Supplemental Agreements Without Consent of Applicable Certificateholders. Without limitation of Section 9.01 of the Basic Agreement, under the terms of, and subject to the limitations contained in, Section 9.01 of the Basic Agreement, the Company may (but will not be required to), and the Trustee (subject to Section 9.03 of the Basic Agreement) shall, at the Company’s request, at any time and from time to time:

 

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(i) Enter into one or more agreements supplemental to the NPA, for any of the purposes set forth in clauses (1) through (9) of such Section 9.01, and (without limitation of the foregoing or Section 9.01 of the Basic Agreement) (a) clauses (2) and (3) of such Section 9.01 shall also be deemed to include the Company’s obligations under (in the case of clause (2)), and the Company’s rights and powers conferred by (in the case of clause (3)), the NPA, and (b) references in clauses (4), (6) and (7) of such Section 9.01 to “any Intercreditor Agreement or any Liquidity Facility” shall also be deemed to refer to “the Intercreditor Agreement or the NPA”,

(ii) Enter into one or more agreements supplemental to the Agreement, the Intercreditor Agreement or the NPA to provide for the formation of one or more Additional Trusts, the issuance of Additional Certificates, the purchase by an Additional Trust (if any) of applicable Additional Equipment Notes (as defined in the Intercreditor Agreement) and other matters incidental thereto or otherwise contemplated by Section 2.01(b) of the Basic Agreement, subject to the provisions of Section 4(a)(vi) of the NPA and Section 9.1(d) of the Intercreditor Agreement, and

(iii) Enter into one or more agreements supplemental to the Agreement to provide for the formation of one or more Refinancing Trusts, the issuance of Refinancing Certificates, the purchase by any Refinancing Trust of applicable Refinancing Equipment Notes and other matters incidental thereto or as otherwise contemplated by Section 2.01(b) of the Basic Agreement, subject to the provisions of Section 4(a)(vi) of the NPA and Section 9.1(c) of the Intercreditor Agreement.

(iv) Enter into one or more agreements supplemental to the Agreement, the Intercreditor Agreement or the NPA to provide for the replacement of one or more airframes by one or more substitute airframes, subject to the provisions of Section 4.04(f) of the applicable Indentures, and the replacement of related engines and other matters incidental thereto.

Section 7.03. Supplemental Agreements with Consent of Applicable Certificateholders. Without limitation of Section 9.02 of the Basic Agreement, the provisions of Section 9.02 of the Basic Agreement shall apply to agreements or amendments for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the NPA or modifying in any manner the rights and obligations of the Applicable Certificateholders under the NPA.

Section 7.04. Consent of Holders of Certificates Issued under Other Trusts. Notwithstanding any provision in Section 7.02 or Section 7.03 of this Trust Supplement to the contrary, no amendment or modification of Section 5.01 of this Trust Supplement shall be effective unless the trustee for each Class of Certificates affected by such amendment or modification shall have consented thereto.

Section 7.05. Amendment of Section 8.03 of the Basic Agreement. Section 8.03 of the Basic Agreement shall be amended, with respect to the Applicable Trust, by replacing Section 8.03(a) in its entirety with the following:

“(a) The Company shall deliver to the Trustee:

 

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(1) in respect of each financial year, audited financial statements of the Parent or Company, as determined pursuant to clause (3), which are prepared in accordance with GAAP which represent fairly and accurately in all material respects the financial position of the Parent or Company, as applicable, as at the end of the financial year and results of operations and cash flows for the period then ended; and deliver to the Trustee a copy of such financial statements as soon as practicable but not later than 120 days after the end of the financial year to which they relate;

(2) in respect of each quarterly period in each financial year (except the fourth), unaudited (or audited, if available) financial statements of the Parent or Company, as determined pursuant to clause (3), which are prepared in accordance with GAAP which represent fairly and accurately in all material respects the financial position of the Parent or Company, as applicable, as at the end of such quarterly period and results of operations and cash flows for the period then ended; and deliver to the Trustee a copy of such financial statements as soon as practicable but not later than 60 days after the end of the quarterly period to which they relate;

(3) if at any date of determination, the Parent-Only Net Worth is:

i. less than or equal to 5% of the Consolidated Net Worth, the Company shall deliver to the Trustee the financial statements as described in clauses (1) and (2) above in respect of the Parent;

ii. greater than 5% of the Consolidated Net Worth but less than or equal to10% of the Consolidated Net Worth, the Company shall provide (x) the financial statements as described in clauses (1) and (2) above in respect of the Parent and (y) a brief quantitative description of the assets and liabilities underlying the Parent-Only Net Worth; or

iii. greater than 10% of the Consolidated Net Worth, the Company shall provide standalone financial statements as described in clauses (1) and (2) above in respect of the Company to the Trustee; and

(4) in lieu of delivering to the Trustee the financial statements referred to in clauses (1) and (2) above, the Company may cause such financial statements to be publicly available on the internet within the time period set forth in clauses (1) and (2) above, respectively, at a location identified to Trustee in writing.”

Section 7.6. Amendment of Section 1.01 of the Basic Agreement. Section 1.01 of the Basic Agreement shall be amended, with respect to the Applicable Trust, by adding the following new definitions thereto, in proper alphabetical order, to read as follows:

Consolidated Net Worth: Means, at any date of determination, the Net Worth of the Parent consolidated with the Net Worth of the Company.”

 

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GAAP: Means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, consistently applied and as in effect from time to time.”

Net Worth: Means, at any date of determination, the excess of total assets over total liabilities, total assets and total liabilities each to be determined as to both classification of items and amounts in accordance with GAAP.”

Parent: Means Sun Country Airlines Holdings, Inc. and each of its successors.”

Parent-Only Net Worth: Means, at any date of determination, the Net Worth of the Parent less the Net Worth of the Company.”

ARTICLE VIII

TERMINATION OF TRUST

Section 8.01. Termination of the Applicable Trust. (a) The respective obligations and responsibilities of the Company and the Trustee with respect to the Applicable Trust shall terminate upon the earlier of (A) the completion of the assignment, transfer and discharge described in the first sentence of the immediately following paragraph and (B) distribution to all Applicable Certificateholders and the Trustee of all amounts required to be distributed to them pursuant to the Agreement and the disposition of all property held as part of the Trust Property; provided, however, that in no event shall the Applicable Trust continue beyond one hundred ten (110) years following the date of the execution of this Trust Supplement.

In connection with the occurrence of the event set forth in clause (B) above of the first paragraph of this Section 8.01(a), notice of such termination, specifying the Distribution Date upon which the Applicable Certificateholders may surrender their Applicable Certificates to the Trustee for payment of the final distribution and cancellation, shall be mailed promptly by the Trustee to Applicable Certificateholders not earlier than the 60th day and not later than the 15th day next preceding such final Distribution Date specifying (A) the Distribution Date upon which the proposed final payment of the Applicable Certificates will be made upon presentation and surrender of Applicable Certificates at the office or agency of the Trustee therein specified, (B) the amount of any such proposed final payment, and (C) that the Record Date otherwise applicable to such Distribution Date is not applicable, payments being made only upon presentation and surrender of the Applicable Certificates at the office or agency of the Trustee therein specified. The Trustee shall give such notice to the Registrar at the time such notice is given to Applicable Certificateholders. Upon presentation and surrender of the Applicable Certificates in accordance with such notice, the Trustee shall cause to be distributed to Applicable Certificateholders such final payments.

 

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In the event that all of the Applicable Certificateholders shall not surrender their Applicable Certificates for cancellation within six months after the date specified in the above-mentioned written notice, the Trustee shall give a second written notice to the remaining Applicable Certificateholders to surrender their Applicable Certificates for cancellation and receive the final distribution with respect thereto. No additional interest shall accrue on the Applicable Certificates after the Distribution Date specified in the first written notice. In the event that any money held by the Trustee for the payment of distributions on the Applicable Certificates shall remain unclaimed for two years (or such lesser time as the Trustee shall be satisfied, after sixty days’ notice from the Company, is one month prior to the escheat period provided under applicable law) after the final distribution date with respect thereto, the Trustee shall pay to each Loan Trustee the appropriate amount of money relating to such Loan Trustee and shall give written notice thereof to the Company.

(b) The provisions of this Section 8.01 supersede and replace the provisions of Section 11.01 of the Basic Agreement in its entirety, with respect to the Applicable Trust.

ARTICLE IX

MISCELLANEOUS PROVISIONS

Section 9.01. Basic Agreement Ratified. Except and so far as herein expressly provided, all of the provisions, terms and conditions of the Basic Agreement are in all respects ratified and confirmed; and the Basic Agreement and this Trust Supplement shall be taken, read and construed as one and the same instrument. All replacements of provisions of, and other modifications of the Basic Agreement set forth in this Trust Supplement are solely with respect to the Applicable Trust.

Section 9.02. GOVERNING LAW. THE AGREEMENT AND THE APPLICABLE CERTIFICATES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

Section 9.03. Execution in Counterparts. This Trust Supplement may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.

Section 9.04. Intention of Parties. The parties hereto intend that the Applicable Trust be classified for U.S. federal income tax purposes as a grantor trust under Subpart E, Part I of Subchapter J of the Internal Revenue Code of 1986, as amended, and not as a trust or association taxable as a corporation or as a partnership. Each Applicable Certificateholder and Investor, by its acceptance of its Applicable Certificate or a beneficial interest therein, agrees to treat the Applicable Trust as a grantor trust for all U.S. federal, state and local income tax purposes. The powers granted and obligations undertaken pursuant to the Agreement shall be so construed so as to further such intent.

 

24


IN WITNESS WHEREOF, the Company and the Trustee have caused this Trust Supplement to be duly executed by their respective officers thereto duly authorized, as of the day and year first written above.

 

SUN COUNTRY, INC.
By:  

                                                      

  Name:
  Title:
WILMINGTON TRUST, NATIONAL ASSOCIATION,
  as Trustee
By:  

 

  Name:
  Title:

Signature Page to Trust Supplement 2022-1B


EXHIBIT A

FORM OF CERTIFICATE

 

Certificate    PPN No: [ ]

No. ___

SUN COUNTRY PASS THROUGH TRUST 2022-1B

Sun Country Pass Through Certificate, Series 2022-1B

Issuance Date:    [__], 2022

Final Legal Distribution Date: March 15, 2029

Evidencing A Fractional Undivided Interest In The Sun Country Pass Through Trust 2022-1B, The Property Of Which Shall Include Certain Equipment Notes Each Secured By An Aircraft Owned By Sun Country, Inc.

$[_____________] Fractional Undivided Interest

representing .[__]% of the Trust per $1,000 face amount

THIS CERTIFIES THAT __________, for value received, is the registered owner of a $___________ (___________________________________________________ DOLLARS) Fractional Undivided Interest in the Sun Country Pass Through Trust 2022-1B (the “Trust”) created by Wilmington Trust, National Association, as trustee (the “Trustee”), pursuant to a Pass Through Trust Agreement, dated as of December 9, 2019 (the “Basic Agreement”), between the Trustee and Sun Country, Inc., a Minnesota corporation (the “Company”), as supplemented by Trust Supplement No. 2022-1B thereto, dated as of March 28, 2022 (the “Trust Supplement” and, together with the Basic Agreement, the “Agreement”), between the Trustee and the Company, a summary of certain of the pertinent provisions of which is set forth below. To the extent not otherwise defined herein, the capitalized terms used herein have the meanings assigned to them in the Agreement. This Certificate is one of the duly authorized Certificates designated as “Sun Country Pass Through Certificates, Series 2022-1B” (herein called the “Certificates”). This Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement. By virtue of its acceptance hereof, the holder of this Certificate (the “Certificateholder” and, together with all other holders of Certificates issued by the Trust, the “Certificateholders”) assents to and agrees to be bound by the provisions of the Agreement and the Intercreditor Agreement. The property of the Trust includes certain Equipment Notes, and all rights of the Trust to receive payments under the Intercreditor Agreement (the “Trust Property”). Each issue of the Equipment Notes is secured by, among other things, a security interest in an Aircraft owned by the Company.

[AS OF THE DATE OF ISSUANCE OF THIS CERTIFICATE AND THROUGH THE OCCURRENCE OF THE FINAL PREFUNDING EXPIRY DATE (AND DISTRIBUTION OF ANY AMOUNTS IN RELATION THERETO PURSUANT TO THE CERTIFICATE PURCHASE AGREEMENT), THE FACE AMOUNT AND FRACTIONAL UNDIVIDED INTEREST SET FORTH ABOVE IN THIS CERTIFICATE REMAIN SUBJECT


TO ADJUSTMENT PURSUANT TO, AND THIS CERTIFICATE IS SUBJECT TO THE ADDITIONAL RESTRICTIONS ON TRANSFER SET FORTH IN, SECTION 3.07 OF THE TRUST SUPPLEMENT. THE ACTUAL FACE AMOUNT AND FRACTIONAL UNDIVIDED INTEREST REPRESENTED BY THIS CERTIFICATE, TAKING INTO ACCOUNT ANY SUCH ADJUSTMENTS, SHALL BE AS SET FORTH IN THE RECORDS MAINTAINED BY THE TRUSTEE PURSUANT TO SECTION 3.07 OF THE TRUST SUPPLEMENT.]1

The Certificates represent Fractional Undivided Interests in the Trust and the Trust Property and have no rights, benefits or interest in respect of any other separate trust established pursuant to the terms of the Basic Agreement for any other series of certificates issued pursuant thereto.

Subject to and in accordance with the terms of the Agreement and the Intercreditor Agreement, from funds then available to the Trustee, there will be distributed on March 15 and September 15 of each year (a “Regular Distribution Date”) commencing September 15, 2022, to the Person in whose name this Certificate is registered at the close of business on the 15th day preceding the Regular Distribution Date, an amount in respect of the Scheduled Payments on the Equipment Notes due on such Regular Distribution Date, the receipt of which has been confirmed by the Trustee, equal to the product of the percentage interest in the Trust evidenced by this Certificate and an amount equal to the sum of such Scheduled Payments. Subject to and in accordance with the terms of the Agreement and the Intercreditor Agreement, in the event that Special Payments on the Equipment Notes are received by the Trustee, from funds then available to the Trustee, there shall be distributed on the applicable Special Distribution Date, to the Person in whose name this Certificate is registered at the close of business on the 15th day preceding the Special Distribution Date, an amount in respect of such Special Payments on the Equipment Notes, the receipt of which has been confirmed by the Trustee, equal to the product of the percentage interest in the Trust evidenced by this Certificate and an amount equal to the sum of such Special Payments so received. If a Regular Distribution Date or Special Distribution Date is not a Business Day, distribution shall be made on the immediately following Business Day with the same force and effect as if made on such Regular Distribution Date or Special Distribution Date and no interest shall accrue during the intervening period. The Trustee shall mail notice of each Special Payment and the Special Distribution Date therefor to the Certificateholder of this Certificate.

Distributions on this Certificate will be made by the Trustee by check mailed to the Person entitled thereto, without presentation or surrender of this Certificate or the making of any notation hereon. Except as otherwise provided in the Agreement and notwithstanding the above, the final distribution on this Certificate will be made after notice mailed by the Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency of the Trustee specified in such notice.

 

1 

This Section 3.07 Paragraph should be included in each Applicable Certificate issued prior to the Final Prefunding Expiry Date. This 3.07 Paragraph should be omitted from Applicable Certificates issued after the Final Prefunding Expiry Date (each of which should each be issued in the applicable face amounts and reflecting Fractional Undivided Interests after taking into account all applicable adjustments pursuant to Section 3.07 of the Trust Supplement).

 

A-2


The Certificates do not represent a direct obligation of, or an obligation guaranteed by, or an interest in, the Company or the Trustee or any affiliate thereof. The Certificates are limited in right of payment, all as more specifically set forth on the face hereof and in the Agreement. All payments or distributions made to Certificateholders under the Agreement shall be made only from the Trust Property and only to the extent that the Trustee shall have sufficient income or proceeds from the Trust Property to make such payments in accordance with the terms of the Agreement. Each Certificateholder of this Certificate, by its acceptance hereof, agrees that it will look solely to the income and proceeds from the Trust Property to the extent available for distribution to such Certificateholder as provided in the Agreement. This Certificate does not purport to summarize the Agreement and reference is made to the Agreement for information with respect to the interests, rights, benefits, obligations, privileges, and duties evidenced hereby. A copy of the Agreement may be examined during normal business hours at the principal office of the Trustee, and at such other places, if any, designated by the Trustee, by any Certificateholder upon request.

The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Certificateholders under the Agreement at any time by the Company and the Trustee with the consent of the Certificateholders holding Certificates evidencing Fractional Undivided Interests aggregating not less than a majority in interest in the Trust. Any such consent by the Certificateholder of this Certificate shall be conclusive and binding on such Certificateholder and upon all future Certificateholders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Certificateholders of any of the Certificates.

As provided in the Agreement and subject to certain limitations set forth therein, the transfer of this Certificate is registrable in the Register upon surrender of this Certificate for registration of transfer at the offices or agencies maintained by the Trustee in its capacity as Registrar, or by any successor Registrar, duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Trustee and the Registrar, duly executed by the Certificateholder hereof or such Certificateholder’s attorney duly authorized in writing, and thereupon one or more new Certificates of authorized denominations evidencing the same aggregate Fractional Undivided Interest in the Trust will be issued to the designated transferee or transferees.

The Certificates are issuable only as registered Certificates without coupons in minimum denominations of $100,000 Fractional Undivided Interest and integral multiples of $1,000 in excess thereof, except that one Certificate may be issued in a different denomination. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of authorized denominations evidencing the same aggregate Fractional Undivided Interest in the Trust, as requested by the Certificateholder surrendering the same.

 

A-3


No service charge will be made for any such registration of transfer or exchange, but the Trustee shall require payment of a sum sufficient to cover any tax or governmental charge payable in connection therewith.

Each Certificateholder and Investor, by its acceptance of this Certificate or a beneficial interest herein, agrees to treat the Trust as a grantor trust for all U.S. federal, state and local income tax purposes.

The Trustee, the Registrar, and any agent of the Trustee or the Registrar may treat the person in whose name this Certificate is registered as the owner hereof for all purposes, and neither the Trustee, the Registrar, nor any such agent shall be affected by any notice to the contrary.

The obligations and responsibilities created by the Agreement and the Trust created thereby shall terminate upon the distribution to Certificateholders of all amounts required to be distributed to them pursuant to the Agreement and the disposition of all property held as part of the Trust Property.

Any Person acquiring or accepting this Certificate or an interest herein will, by such acquisition or acceptance, be deemed to have represented and warranted to and for the benefit of the Company that either: (i) no assets of an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), a plan subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or a governmental, church or foreign plan subject to a law that is similar to Title I of ERISA or Section 4975 of the Code (a “Similar Law Plan”) have been used to purchase or hold this Certificate or an interest herein or (ii) the purchase and holding of this Certificate or an interest herein either (a) in the case of assets of an employee benefit plan subject to Title I of ERISA or a plan subject to Section 4975 of the Code, are exempt from the prohibited transaction restrictions of ERISA and the Code pursuant to one or more prohibited transaction statutory or administrative exemptions or (b) in the case of assets of a Similar Law Plan, will not violate any similar state, local or foreign law.

If the purchaser or transferee of this Certificate or an interest herein is an employee benefit plan subject to Title I of ERISA or a plan subject to Section 4975 of the Code, it will be deemed to represent, warrant and agree that (i) neither the Company nor any of its affiliates (or its or their agents) has provided any investment recommendation or investment advice on which it, or any fiduciary or other person investing the assets of such plan (“Plan Fiduciary”), has relied in connection with its decision to invest in this Certificate, and they are not otherwise acting as a fiduciary, as defined in Section 3(21) of ERISA or Section 4975(e)(3) of the Code, to such plan or the Plan Fiduciary in connection with such plan’s acquisition of this Certificate; and (ii) the Plan Fiduciary is exercising its own independent judgment in evaluating the transaction.

THIS CERTIFICATE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

 

A-4


Unless the certificate of authentication hereon has been executed by the Trustee, by manual signature, this Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose.

IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.

 

SUN COUNTRY PASS THROUGH TRUST 2022-1B
By:   WILMINGTON TRUST, NATIONAL ASSOCIATION,
  as Trustee
By:  

                                                  

  Name:
  Title:

 

A-5


FORM OF THE TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Certificates referred to in the within-mentioned Agreement.

 

WILMINGTON TRUST, NATIONAL ASSOCIATION,
  as Trustee
By:  

                                  

  Name:
  Title:


TRANSFER NOTICE

FORM OF TRANSFER NOTICE

FOR VALUE RECEIVED the undersigned registered holder (the “Transferor”) hereby sell(s), assign(s) and transfer(s) unto

                                                                                                                                                                            (the “Transferee”)

(Please print or typewrite name and address including zip code of assignee)

 

(Insert Taxpayer Identification No. of assignee)

the within Certificate and all rights thereunder, hereby irrevocably constituting and appointing

attorney to transfer said Certificate on the books of the Registrar with full power of substitution in the premises (the “Transfer”).

[THE FOLLOWING PROVISION TO BE INCLUDED

ON ALL CERTIFICATES]

In connection with any transfer of this Certificate, the undersigned confirms that without utilizing any general solicitation or general advertising that:


PART A [check either Item 1 or Item 2 of this Part A]

[     ] Item 1. Check if Transferor is a United States Person. The Transferor hereby certifies that the Transfer is being made to another United States Person.                

[     ] Item 2. Check if Transferor is not a United States Person.

As used in this Part A, “United States Person” has the meaning given to such term in the Internal Revenue Code of 1986, as amended.

PART B

[ ] (a) this Certificate is being transferred to an institution that is an “Accredited Investor” as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act in a transaction exempt from the registration requirements of the Securities Act.

[_] (b) this Certificate is being transferred to a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act and in compliance with the exemption from registration under the Securities Act provided by Rule 144A thereunder.

[_] (c) this Certificate is being transferred in an offshore transaction meeting the requirements of Rule 903 or Rule 904 of Regulation S under the Securities Act.

[_] (d) this Certificate is being transferred pursuant to an effective registration statement under the Securities Act.

[_] (e) this Certificate is being transferred to Sun Country, Inc.

[_] (f) the Certificate is being transferred other than in accordance with (a), (b), (c), (d) or (e) above in compliance with an exemption from registration under the Securities Act and documents are being furnished that comply with the conditions of transfer set forth in this Certificate and the Agreement.

If none of the foregoing boxes is checked, the Registrar shall not be obligated to register this Certificate in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 3.05 of the Trust Supplement shall have been satisfied.

 

Date:[___________, __]   

 

   [Name of Transferor]
   NOTE: The signature must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever.

 

A-8


Signature Guarantee: ______________________

TO BE COMPLETED BY TRANSFEREE IF (b) ABOVE IS CHECKED.

The undersigned represents and warrants that it is purchasing this Certificate for its own account or an account with respect to which it exercises sole investment discretion and that it and any Person on whose behalf it is acting with respect to any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Applicable Trust and/or the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

Date:[___________, __]  

                                                                   

  NOTE: To be executed by an executive officer.

 

A-9


EXHIBIT B

INITIAL AMORTIZATION SCHEDULE

 

Date

   Scheduled Principal Payments      Expected Pool Factor  

At Issuance

   $ 0.00        1.0000000  
EX-4.3

Exhibit 4.3

Execution Version

 

INTERCREDITOR AGREEMENT

(2022-1)

Dated as of

March 28, 2022

AMONG

WILMINGTON TRUST, NATIONAL ASSOCIATION,

not in its individual capacity

but solely as Trustee under the

Sun Country Pass Through Trust 2022-1A and

Sun Country Pass Through Trust 2022-1B,

AND

WILMINGTON TRUST, NATIONAL ASSOCIATION,

not in its individual capacity except

as expressly set forth herein but

solely as Subordination Agent and Trustee

 


TABLE OF CONTENTS

 

         Page  

ARTICLE I DEFINITIONS

     1  

SECTION 1.1.

  Definitions      1  

ARTICLE II TRUST ACCOUNTS; CONTROLLING PARTY

     14  

SECTION 2.1.

  Agreement to Terms of Subordination; Payments from Monies Received Only      14  

SECTION 2.2.

  Trust Accounts      15  

SECTION 2.3.

  Deposits to the Collection Account and Special Payments Account      15  

SECTION 2.4.

  Distributions of Special Payments      16  

SECTION 2.5.

  Designated Representatives      17  

SECTION 2.6.

  Controlling Party      17  

ARTICLE III RECEIPT, DISTRIBUTION AND APPLICATION OF AMOUNTS RECEIVED

     18  

SECTION 3.1.

  Written Notice of Distribution      18  

SECTION 3.2.

  Distribution of Amounts on Deposit in the Collection Account      20  

SECTION 3.3.

  Other Payments      21  

SECTION 3.4.

  Payments to the Trustees      21  

SECTION 3.5.

  [Reserved]      21  

ARTICLE IV EXERCISE OF REMEDIES

     22  

SECTION 4.1.

  Directions from the Controlling Party      22  

SECTION 4.2.

  Remedies Cumulative      24  

SECTION 4.3.

  Discontinuance of Proceedings      24  

SECTION 4.4.

  Right of Certificateholders to Receive Payments Not to Be Impaired      24  

SECTION 4.5.

  Undertaking for Costs      24  

ARTICLE V DUTIES OF THE SUBORDINATION AGENT; AGREEMENTS OF TRUSTEES, ETC.

     25  

SECTION 5.1.

  Notice of Indenture Default or Triggering Event      25  

SECTION 5.2.

  Indemnification      26  

SECTION 5.3.

  No Duties Except as Specified in this Intercreditor Agreement      26  

SECTION 5.4.

  Notice from the Trustees      26  

ARTICLE VI THE SUBORDINATION AGENT

     27  

SECTION 6.1.

  Authorization; Acceptance of Trusts and Duties      27  

SECTION 6.2.

  Absence of Duties      27  

 

i


         Page  

SECTION 6.3.

  No Representations or Warranties as to Documents      27  

SECTION 6.4.

  No Segregation of Monies; No Interest      27  

SECTION 6.5.

  Reliance; Agents; Advice of Counsel      27  

SECTION 6.6.

  Capacity in Which Acting      28  

SECTION 6.7.

  Compensation      28  

SECTION 6.8.

  May Become Certificateholder      28  

SECTION 6.9.

  Subordination Agent Required; Eligibility      28  

SECTION 6.10.

  Money to Be Held in Trust      29  

SECTION 6.11.

  Notice of Substitution of Airframe      29  

ARTICLE VII INDEMNIFICATION OF SUBORDINATION AGENT

     29  

SECTION 7.1.

  Scope of Indemnification      29  

ARTICLE VIII SUCCESSOR SUBORDINATION AGENT

     29  

SECTION 8.1.

  Replacement of Subordination Agent; Appointment of Successor      29  

ARTICLE IX SUPPLEMENTS AND AMENDMENTS

     30  

SECTION 9.1.

  Amendments, Waivers, Possible Future Issuance of an Additional Class of Certificates, etc      30  

SECTION 9.2.

  Subordination Agent Protected      33  

SECTION 9.3.

  Effect of Supplemental Agreements      34  

SECTION 9.4.

  Notice to Rating Agency      34  

ARTICLE X MISCELLANEOUS

     34  

SECTION 10.1.

  Termination of Intercreditor Agreement      34  

SECTION 10.2.

  Intercreditor Agreement for Benefit of Trustees and Subordination Agent      34  

SECTION 10.3.

  Notices      34  

SECTION 10.4.

  Severability      35  

SECTION 10.5.

  No Oral Modifications or Continuing Waivers      35  

SECTION 10.6.

  Successors and Assigns      35  

SECTION 10.7.

  Headings      35  

SECTION 10.8.

  Counterpart Form      35  

SECTION 10.9.

  Subordination      36  

SECTION 10.10.

  Governing Law      36  

SECTION 10.11.

  Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity      36  

 

 

ii


INTERCREDITOR AGREEMENT

INTERCREDITOR AGREEMENT (this “Agreement”) dated as of March 28, 2022, among WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association (“WTNA”), not in its individual capacity but solely as Trustee of each Trust (each as defined below); and WTNA, 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, Sun Country will issue on a recourse basis three series of Equipment Notes to finance the related Aircraft;

WHEREAS, pursuant to the Financing Agreements, each Trust will acquire Equipment Notes having an interest rate equal to the Stated Interest Rate applicable to the Certificates to be issued by such Trust;

WHEREAS, pursuant to each Trust Agreement, the Trust created thereby proposes to issue a single class of Certificates (a “Class”) having the interest rate and the final distribution date described in such Trust Agreement on the terms and subject to the conditions set forth therein;

WHEREAS, pursuant to the Certificate Purchase Agreement, the Purchasers propose to purchase the Class A Certificates issued by the Class A Trust and the Class B Certificates issued by the Class B Trust in the aggregate face amount set forth opposite the name of such Trust on Schedule I thereto on the terms and subject to the conditions set forth therein; and

WHEREAS, it is a condition precedent to the obligations of the Purchasers under the Certificate Purchase Agreement that the Subordination Agent and the Trustees agree to the terms of subordination set forth in this Agreement in respect of each Class of Certificates, and the Subordination Agent and the Trustees, by entering into this Agreement, hereby acknowledge and agree to such terms of subordination and the other provisions of this Agreement.

NOW, THEREFORE, in consideration of the mutual agreements herein contained, and for 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” means “including without limitation”.

Acceleration” means, with respect to the amounts payable in respect of the Equipment Notes issued under any Indenture, such amounts becoming immediately due and payable by declaration or otherwise. “Accelerate”, “Accelerated” and “Accelerating” have meanings correlative to the foregoing.

Actual Disposition Event means, in respect of any Equipment Note: (i) the disposition of the Aircraft securing such Equipment Note, (ii) the occurrence of the mandatory redemption date for such Equipment Note following an Event of Loss (as defined in such Indenture) with respect to the Aircraft which secured such Equipment Note or (iii) the sale of such Equipment Note.

Additional Certificateholders” has the meaning specified in Section 9.1(d).

Additional Certificates” has the meaning specified in Section 9.1(d).

Additional Equipment Notes” has the meaning specified in Section 9.1(d).

Additional Trust” has the meaning specified in Section 9.1(d).

Additional Trust Agreement” has the meaning specified in Section 9.1(d).

Additional Trustee” has the meaning specified in Section 9.1(d).

Administration Expenses” has the meaning specified in clause “first” of Section 3.2.

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.

Aircraft” means, with respect to each Indenture, the “Aircraft” referred to therein.

 

2


Appraisal” has the meaning specified in Section 4.1(a)(iv).

Appraised Current Market Value” of any Aircraft means the lower of the average and the median of the three most recent Post-Default Appraisals of such Aircraft.

Appraisers” means Aircraft Information Services, Inc., BK Associates, Inc. and Morten Beyer and Agnew, Inc. or, so long as the Person entitled or required hereunder to select such Appraiser acts reasonably, any other nationally recognized appraiser reasonably satisfactory to the Subordination Agent and the Controlling Party.

Bankruptcy Code” means the United States Bankruptcy Code, 11 U.S.C. Sections 101 et seq.

Bankruptcy Event” means the occurrence and continuation of any of the following:

(a) Sun Country shall consent to the appointment of or the taking of possession by a receiver, trustee or liquidator of itself or of a substantial part of its property, or Sun Country shall admit in writing its inability to pay its debts generally as they come due, or does not pay its debts generally as they become due or shall make a general assignment for the benefit of creditors, or Sun Country shall file a voluntary petition in bankruptcy or a voluntary petition or an answer seeking reorganization, liquidation or other relief in a case under any bankruptcy laws or other insolvency laws (as in effect at such time) or an answer admitting the material allegations of a petition filed against Sun Country in any such case, or Sun Country shall seek relief by voluntary petition, answer or consent, under the provisions of any other bankruptcy or other similar law providing for the reorganization or winding-up of corporations (as in effect at such time) or Sun Country shall seek an agreement, composition, extension or adjustment with its creditors under such laws, or Sun Country’s board of directors shall adopt a resolution authorizing corporate action in furtherance of any of the foregoing; or

(b) an order, judgment or decree shall be entered by any court of competent jurisdiction appointing, without the consent of Sun Country, a receiver, trustee or liquidator of Sun Country or of any substantial part of its property, or any substantial part of the property of Sun Country shall be sequestered, or granting any other relief in respect of Sun Country as a debtor under any bankruptcy laws or other insolvency laws (as in effect at such time), and any such order, judgment or decree of appointment or sequestration shall remain in force undismissed, unstayed and unvacated for a period of 60 days after the date of entry thereof; or

(c) a petition against Sun Country in a case under any bankruptcy laws or other insolvency laws (as in effect at such time) is filed and not withdrawn or dismissed within 60 days thereafter, or if, under the provisions of any law providing for reorganization or winding-up of corporations which may apply to Sun Country, any court of competent jurisdiction assumes jurisdiction, custody or control of Sun Country or of any substantial part of its property and such jurisdiction, custody or control remains in force unrelinquished, unstayed and unterminated for a period of 60 days.

 

3


Basic Agreement” means the Pass Through Trust Agreement dated as of December 9, 2019 between Sun Country and WTNA, not in its individual capacity, except as otherwise expressly provided therein, but solely as trustee.

Business Day” means any day other than a Saturday or Sunday or a day on which commercial banks are required or authorized to close in Eagan, Minnesota, New York, New York, or, so long as any Certificate is outstanding, the city and state in which any Trustee, the Subordination Agent or any Loan Trustee maintains its Corporate Trust Office.

Certificate” means a Class A Certificate or a Class B Certificate, as applicable.

Certificate Purchase Agreement” means the Certificate Purchase Agreement dated March 28, 2022 among the Purchasers, each Trustee, WTNA and Sun Country, relating to the purchase of the Certificates by the Purchasers, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.

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 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 Trust” means the Sun Country Pass Through Trust 2022-1A created and administered pursuant to the Class A Trust Agreement.

Class A Trust Agreement” means the Basic Agreement, as supplemented by the Trust Supplement No. 2022-1A thereto, governing the creation and administration of the Sun Country Pass Through Trust 2022-1A 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 WTNA, 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 Adjusted Interest means, as of any Current Distribution Date: (I) any interest described in clause (II) of this definition accruing prior to the immediately preceding Distribution Date which remains unpaid and (II) interest at the Stated Interest Rate for the Class B Certificates (A) for the number of days during the period commencing on, and including, the immediately preceding Distribution Date (or, if the Current Distribution Date is the first

 

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Distribution Date, the Initial Closing Date) and ending on, but excluding the Current Distribution Date, on the Preferred B Pool Balance on such Current Distribution Date and (B) on the principal amount calculated pursuant to clauses (B)(i), (ii), (iii) and (iv) of the definition of Preferred B Pool Balance for each Series B Equipment Note with respect to which a disposition, distribution, sale or Deemed Disposition Event has occurred since the immediately preceding Distribution Date (but only if no such event has previously occurred with respect to such Series B Equipment Note), for each day during the period, for each such Series B Equipment Note, commencing on, and including, the immediately preceding Distribution Date (or, if the Current Distribution Date is the first Distribution Date, the Initial Closing Date) and ending on, but excluding the date of disposition, distribution, sale or Deemed Disposition Event with respect to such Series B Equipment Note, Aircraft or Collateral, as the case may be.

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 Trust” means the Sun Country Pass Through Trust 2022-1B created and administered pursuant to the Class B Trust Agreement.

Class B Trust Agreement” means the Basic Agreement, as supplemented by the Trust Supplement No. 2022-1B thereto, governing the creation and administration of the Sun Country Pass Through Trust 2022-1B and the issuance of the Class B Certificates, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms.

Class B Trustee” means WTNA, 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.

Closing Date” has the meaning specified in the Note Purchase Agreement.

Code” means the Internal Revenue Code of 1986, as amended from time to time, and the Treasury Regulations promulgated thereunder.

Collateral” has the meaning specified in the Indentures.

Collection Account” means the Eligible Deposit Account established by the Subordination Agent pursuant to Section 2.2(a)(i) 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.

 

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Corporate Trust Office” means, with respect to any Trustee, the Subordination Agent or any Loan Trustee, the office of such Person in the city at which, at any particular time, its corporate trust business shall be principally administered.

Current Distribution Date” means a Distribution Date specified as a reference date for calculating the Expected Distributions with respect to the Certificates of any Trust as of such Distribution Date.

Deemed Disposition Event means, in respect of any Equipment Note, the continuation of an Indenture Default in respect of such Equipment Note without an Actual Disposition Event occurring in respect of such Equipment Note for a period of five years from the date of the occurrence of such Indenture Default.

Designated Representatives” means the Subordination Agent Representatives and the Trustee Representatives identified under Section 2.5.

Distribution Date” means a Regular Distribution Date or a Special Distribution Date.

Dollars” or “$” means United States dollars.

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 of at least A3 from Moody’s and a long-term issuer credit rating of at least A- from Fitch.

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 Moody’s of at least A3 or its equivalent or a long-term issuer credit rating from Fitch of at least A- 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 issuer credit rating issued by Moody’s and Fitch of at least P-1 and F1, respectively, having maturities no later than 90 days following the date of such investment or (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 a short-term unsecured debt rating by Moody’s of at least P-1 and a short-term issuer credit rating by Fitch of at least F1, having maturities no later than 90 days following the date of such investment; provided, however, that (x) all Eligible Investments that are bank obligations shall

 

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be denominated in 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 any investment of the types described in clauses (a), (b) and (c) 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; 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) above which is issued or guaranteed by Sun Country or any of its Affiliates, and no investment in the obligations of any one bank in excess of $10,000,000, shall be an Eligible Investment unless a Ratings Confirmation (if applicable) shall have been received with respect to the making of such investment.

Equipment Note Special Payment” means a Special Payment on account of the redemption, purchase or prepayment of Equipment Notes issued pursuant to an Indenture.

Equipment Notes” means, at any time, the Series A Equipment Notes and the Series B Equipment Notes, collectively, and in each case, any Equipment Notes issued in exchange therefor or replacement thereof pursuant to the terms of Indentures.

Expected Distributions” means, with respect to the Certificates of any Trust on any Current Distribution Date, the difference between (A) the Pool Balance of such Certificates as of the immediately preceding Distribution Date (or, if the Current Distribution Date is the first Distribution Date, for the Class A Trust or the Class B Trust, the sum of the original principal amounts of the Equipment Notes having been purchased on or before such date by such Trust relating to such Certificates and (B) the Pool Balance of such Certificates as of the Current Distribution Date calculated on the basis that (i) the principal of the Non-Performing Equipment Notes held in such Trust has been paid in full and such payments have been distributed to the holders of such Certificates, (ii) the principal of the Performing Equipment Notes held in such Trust has been paid when due (without giving effect to any Acceleration of Performing Equipment Notes) and such payments have been distributed to the holders of such Certificates and (iii) the principal of any Equipment Notes formerly held in such Trust that have been sold pursuant to the terms hereof has been paid in full and such payments have been distributed to the holders of such Certificates. For purposes of calculating Expected Distributions with respect to the Certificates of any Trust, any Premium paid on the Equipment Notes held in such Trust which has not been distributed to the Certificateholders of such Trust (other than such Premium or a portion thereof applied to the payment of interest, commitment fees, or PIK Amounts on the Certificates of such Trust or the reduction of the Pool Balance of such Trust) shall be added to the amount of such Expected Distributions.

Final Distributions” means, with respect to the Certificates of any Trust on any Distribution Date, the sum of (x) the aggregate amount of all accrued and unpaid interest on such Certificates (including any PIK Amounts) and (y) the Pool Balance of such Certificates as of the immediately preceding Distribution Date. For purposes of calculating Final Distributions with respect to the Certificates of any Trust, any Premium paid on the Equipment Notes held in such Trust which has not been distributed to the Certificateholders of such Trust (other than such Premium or a portion thereof applied to the payment of interest or PIK Amounts on the Certificates of such Trust or the reduction of the Pool Balance of such Trust) shall be added to the amount of such Final Distributions.

 

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Final Legal Distribution Date” means (i) with respect to the Class A Certificates, March 15, 2031 and (ii) with respect to the Class B Certificates, March 15, 2029.

Financing Agreement” means each of the Participation Agreements, the Indentures and the Note Purchase Agreement.

Fitch” means Fitch Ratings, Inc.

Indenture” means each of the Trust Indentures entered into by the Loan Trustee and Sun Country, pursuant to the Note Purchase Agreement, in each case 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 Event of Default (as such term is defined in such Indenture) thereunder.

Initial Closing Date” has the meaning specified in the Note Purchase Agreement.

Initial Funding Date” means March 30, 2022.

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.

Lien” means any mortgage, pledge, lien, charge, claim, disposition of title, encumbrance, lease, sublease, sub-sublease or security interest of any kind, including, without limitation, any thereof arising under any conditional sales or other title retention agreement.

Loan Trustee” means, with respect to any Indenture, the mortgagee thereunder.

Minimum Sale Price” means, with respect to any Aircraft or the Equipment Notes issued in respect of such Aircraft, at any time, in the case of the sale of an Aircraft, 75%, or in the case of the sale of related Equipment Notes, 85%, of the Appraised Current Market Value of such Aircraft.

Moody’s” means Moody’s Investors Service, Inc.

Non-Controlling Party” means, at any time, any Trustee or other Person which is not the Controlling Party at such time.

Non-Performing Equipment Note” means an Equipment Note issued pursuant to an Indenture that is not a Performing Equipment Note.

 

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Note Purchase Agreement” means the Note Purchase Agreement, dated as of the date hereof, among Sun Country, each Trustee and the Subordination Agent, as amended, supplemented or otherwise modified from time to time in accordance with its terms.

Operative Agreements” means this Agreement, the Trust Agreements, the Certificate Purchase Agreement, the Financing Agreements, the Equipment Notes and the Certificates, together with all exhibits and schedules included with any of the foregoing.

Outstanding” means, when used with respect to each Class of Certificates, as of the date of determination, all Certificates of such Class theretofore authenticated and delivered under the related Trust Agreement, except:

(i) Certificates of such Class theretofore canceled by the Registrar (as defined in such Trust Agreement) or delivered to the Trustee thereunder or such Registrar for cancellation;

(ii) 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 request, demand, authorization, direction, notice, consent or waiver hereunder, any Certificates owned by Sun Country or any of its Affiliates shall be disregarded and deemed not to be Outstanding, 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 such 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 Sun Country or any of its Affiliates.

Overdue Scheduled Payment” means any Scheduled Payment which is not in fact received by the Subordination Agent within five days after the Scheduled Payment Date relating thereto.

Participation Agreement” means, with respect to each Indenture, the “Participation Agreement” referred to therein.

Payees” has the meaning specified in Section 2.4(c).

 

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Performing Equipment Note” means an Equipment Note with respect to which no payment default has occurred and is continuing (without giving effect to any Acceleration); provided that in the event of a bankruptcy proceeding under the Bankruptcy Code in which Sun Country is a debtor any payment default existing during the 60-Day Period (or such longer period as may apply under Section 1110(b) of the Bankruptcy Code or as may apply for the cure of such payment default under Section 1110(a)(2)(B) of the Bankruptcy Code) shall not be taken into consideration until the expiration of the applicable period.

Performing Note Deficiency” means any time that less than 65% of the then aggregate outstanding principal amount of all Equipment Notes (other than any Additional Equipment Notes issued under any Indenture) are Performing Equipment Notes.

Person” means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, trustee, unincorporated organization or government or any agency or political subdivision thereof.

PIK Amounts” means, with respect to Class A Certificates and the Class B Certificates, as of any date of determination, any interest on the Pool Balance of the Certificates of such Class that was scheduled for distribution on any applicable Regular Distribution Date and was not paid on such Regular Distribution Date (and remains unpaid as of such date of determination) together with any interest accrued thereon at the Stated Interest Rate for the applicable Class.

Pool Balance” means, with respect to each Trust or the Certificates issued by any Trust, as of any date, (i) (x) with respect to the Class A Trust (and Class A Certificates) or the Class B Trust (and Class B Certificates), the sum of the original principal amounts of the Equipment Notes having been purchased on or before such date by such Trust relating to such Certificates, less (ii) the aggregate amount of all payments made as of such date in respect of the Certificates of such Trust, other than payments made in respect of interest, commitment fees, PIK Amounts or Premium thereon or reimbursement of any costs and expenses in connection therewith. The Pool Balance for each Trust or for the Certificates issued by any Trust as of any date shall be computed after giving effect to any payment of principal of the Equipment Notes or payment with respect to other Trust Property held in such Trust and the distribution thereof to be made on that date.

Post-Default Appraisals” has the meaning specified in Section 4.1(a)(iv).

Preferred B Pool Balance means, as of any date, the excess of (A) the Pool Balance of the Class B Certificates as of the immediately preceding Distribution Date (or, if such date is on or before the first Distribution Date, the sum of the original principal amounts of the Series B Equipment Notes having been purchased on or before such date by the Class B Trust) (after giving effect to distributions made on such date) over (B) the sum of (i) the outstanding principal amount of each Series B Equipment Note that remains unpaid as of such date subsequent to the disposition of the Collateral under the Indenture pursuant to which such Series B Equipment Note was issued and after giving effect to any distributions of the proceeds of such disposition applied under such Indenture to the payment of each such Series B Equipment Note, (ii) the outstanding principal amount of each Series B Equipment Note that remains unpaid as of such date subsequent to the scheduled date of mandatory redemption of such Series B Equipment Note following an Event of Loss (as defined in such Indenture) with respect to the Aircraft which

 

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secured such Series B Equipment Note and after giving effect to the distributions of any proceeds in respect of such Event of Loss applied under such Indenture to the payment of each such Series B Equipment Note, (iii) the excess, if any, of (x) the outstanding amount of principal and interest as of the date of sale of each Series B Equipment Note previously sold over (y) the purchase price received with respect to the sale of such Series B Equipment Note (net of any applicable costs and expenses of sale) and (iv) the outstanding principal amount of any Series B Equipment Note with respect to which a Deemed Disposition Event has occurred; provided, however, that if more than one of the clauses (i), (ii), (iii) and (iv) is applicable to any one Series B Equipment Note, only the amount determined pursuant to the clause that first became applicable shall be counted with respect to such Series B Equipment Note.

Premium” means (i) any “Make-Whole Amount” as such term is defined in any Indenture and (ii) any redemption purchase price in respect of principal (disregarding interest) in excess of 100% in relation to a “Change of Control Prepayment” as such term is defined in any Indenture, and (iii) for any of MSNs 30332, 30637, 33017, 33971, 30683 and 33976, any redemption purchase price in respect of principal (disregarding interest) in excess of 100% pursuant to Section 2.11(e) of the applicable Indenture.

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 after 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) any PIK Amount on the earlier of (A) the Regular Distribution Date that is the third Regular Distribution Date following the Regular Distribution Date on which the interest represented by such PIK Amount was originally scheduled to be distributed and (B) the date that is 18 months prior to the Final Legal Distribution Date.

Purchaser” has the meaning assigned to such term in the Certificate Purchase Agreement.

Rating Agency” means, at any time, any nationally recognized rating agency which shall have been requested to rate the Certificates and which shall then be rating the Certificates. The initial Rating Agency will be Kroll Bond Rating Agency.

Ratings Confirmation” means, with respect to any action proposed to be taken, a written confirmation from each Rating Agency that such action would not result in (i) a reduction of the rating for any Class of Certificates then rated by such Rating Agency below the then current rating for such Class of Certificates or (ii) a withdrawal or suspension of the rating of any Class of Certificates then rated by such Rating Agency. For avoidance of doubt, no Ratings Confirmation shall be required in respect of any Class of Certificates that is not rated by a Rating Agency at the time of any such proposed action.

Refinancing Certificateholders” has the meaning specified in Section 9.1(c).

Refinancing Certificates” has the meaning specified in Section 9.1(c).

 

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Refinancing Equipment Notes” has the meaning specified in Section 9.1(c).

Refinancing Trust Agreement” has the meaning specified in Section 9.1(c).

Refinancing Trust” has the meaning specified in Section 9.1(c).

Refinancing Trustee” has the meaning specified in Section 9.1(c).

Regular Distribution Dates” means each March 15 and September 15, commencing on September 15, 2022; 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 distribution of interest for such additional period.

Responsible Officer” means, 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.

Scheduled Payment” means, with respect to any Equipment Note, any payment of principal or interest on such Equipment Note (other than an Overdue Scheduled Payment) due from the obligor thereon, 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 or; provided that any payment of principal of, Premium, if any, or interest resulting from the redemption or purchase of any Equipment Note shall not constitute a Scheduled Payment.

Scheduled Payment Date” means, with respect to any Scheduled Payment, the date on which such Scheduled Payment is scheduled to be made.

Series A Equipment Notes” means the Series A Equipment Notes issued pursuant to any Indenture by Sun Country and authenticated by the Loan Trustee thereunder, and any such Equipment Notes issued in exchange therefor or replacement thereof pursuant to the terms of such Indenture.

Series B Equipment Notes” means the Series B Equipment Notes issued pursuant to any Indenture by Sun Country and authenticated by the Loan Trustee thereunder, and any such Equipment Notes issued in exchange therefor or replacement thereof pursuant to the terms of such Indenture.

60-Day Period” means the 60-day period specified in Section 1110(a)(2)(A) of the Bankruptcy Code.

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, whether distributed pursuant to Section 2.4 or Section 3.2 hereof.

 

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Special Payment” means any payment (other than a Scheduled Payment) in respect of, or any proceeds of, any Equipment Note or Collateral.

Stated Interest Rate” means (i) with respect to the Class A Certificates, 4.84% per annum and (ii) with respect to the Class B Certificates, 5.75% per annum.

Subordination Agent” has the meaning specified in the preamble to this Agreement.

Subordination Agent Incumbency Certificate” has the meaning specified in Section 2.5(a).

Subordination Agent Representatives” has the meaning specified in Section 2.5(a).

Sun Country” means Sun Country, Inc., a Minnesota corporation, and its successors and assigns.

Sun Country Provisions” has the meaning specified in Section 9.1(a).

Tax” and “Taxes” mean any and all taxes, fees, levies, duties, tariffs, imposts, and other charges of any kind (together with any and all interest, penalties, loss, damage, liability, expense, additions to tax and additional amounts or costs incurred or imposed with respect thereto) imposed or otherwise assessed by the United States of America or by any state, local or foreign government (or any subdivision or agency thereof) or other taxing authority, including, without limitation: taxes or other charges on or with respect to income, franchises, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers’ compensation, unemployment compensation, or net worth and similar charges; taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value added, taxes on goods and services, gains taxes, license, registration and documentation fees, customs duties, tariffs, and similar charges.

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 all of the outstanding Equipment Notes or (z) the occurrence of a Bankruptcy Event.

Trust” means any of the Class A Trust or the Class B Trust.

Trust Accounts” has the meaning specified in Section 2.2(a).

Trust Agreement” means the Class A Trust Agreement or the Class B Trust Agreement.

 

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Trust Property”, with respect to any Trust, has the meaning set forth in the Trust Agreement for such Trust.

Trustee” means any of the Class A Trustee or the Class B Trustee.

Trustee Incumbency Certificate” has the meaning specified in Section 2.5(b).

Trustee Representatives” has the meaning specified in Section 2.5(b).

Written Notice” means, from the Subordination Agent or the any Trustee, a written instrument executed by the Designated Representative of such Person.

WTNA” has the meaning specified in the recitals to this Agreement.

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 and distribution 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 held by the Subordination Agent to be applied in accordance with the terms of this Agreement. In addition, each Trustee hereby agrees to cause the Equipment Notes purchased by the related Trust to be registered in the name of the Subordination Agent or its nominee, as agent and trustee for such Trustee, to be held in trust by the Subordination Agent solely for the purpose of facilitating the enforcement of the subordination and other provisions of this Agreement.

(b) Except as otherwise expressly provided in the next succeeding sentence of this Section 2.1(b), all payments to be made by the Subordination Agent hereunder shall be made only from amounts received by it that constitute Scheduled Payments, Special Payments, payments under Section 8.1 of the Participation Agreements, or payments under Section 6 of the Note Purchase Agreement 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, 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, the Loan Trustees and the Subordination Agent is personally liable to any of them for any amounts payable or any liability under this Agreement, any Trust Agreement, 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 Loan Trustees) as expressly provided in any Operative Agreement.

 

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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 and the Certificateholders 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 and the Certificateholders. The Special Payments Account and the Collection Account, constitute the “Trust Accounts” hereunder. Without limiting the foregoing, all monies credited to the Trust Accounts shall be, and shall remain, the property of the relevant Trust(s).

(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 the date of the related distribution pursuant to Section 2.4 hereof, as the case may be, next following the date of such investment; provided, however, that upon the occurrence and during the continuation of a Triggering Event, the Subordination Agent shall invest and reinvest such amounts in Eligible Investments in accordance with the written instructions of the Controlling Party. Unless otherwise expressly provided in this Agreement, any Investment Earnings shall be deposited in the Collection Account when received by the Subordination Agent and shall be applied by the Subordination Agent in the same manner as the other amounts on deposit in the Collection Account are to be applied and any losses shall be charged against the principal amount invested, in each case net of the Subordination Agent’s reasonable fees and expenses in making such investments. The Subordination Agent shall not be liable for any loss resulting from any investment, reinvestment or liquidation required to be made under this Agreement other than by reason of its willful misconduct or gross negligence (or, with respect to the handling or transfer of funds, its own negligence). Eligible Investments and any other investment required to be made hereunder shall be held to their maturities except that any such investment may be sold (without regard to its maturity) by the Subordination Agent without instructions whenever such sale is necessary to make a distribution required under this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.

(c) The Subordination Agent shall possess all right, title and interest in all funds on deposit from time to time in the Trust Accounts and in all proceeds thereof (including all income thereon, except as otherwise expressly provided in Section 3.3(b) 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 and the Certificateholders, 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, for which a Ratings Confirmation for each then rated Class of Certificates shall have been obtained) establish a new Collection Account or Special Payments 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 or Special Payments, as the case may be. So long as WTNA is an Eligible Institution, the Trust Accounts shall be maintained with it 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.

 

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(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. Except as provided in Section 2.4(c) below, 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. The Subordination Agent shall promptly calculate the amount of the redemption or purchase of Equipment Notes, the amount of any Overdue Scheduled Payment or the proceeds of Equipment Notes or Collateral, as the case may be, comprising such Special Payment under the applicable Indenture or Indentures and shall promptly send to each Trustee a Written Notice of such amount and the amount allocable to each Trust. Such Written Notice shall also set the distribution date for such Special Payment (a “Special Distribution Date”), which shall be the Business Day which immediately follows the later to occur of (x) the 15th day after the date of such Written Notice and (y) the date the Subordination Agent has received or expects to receive such Special Payment. Amounts on deposit in the Special Payments Account shall be distributed in accordance with Sections 2.4(b) and 2.4(c) and Article III hereof, as applicable.

For the purposes of the application of any Equipment Note Special Payment distributed on a Special Distribution Date in accordance with Section 3.2 hereof, so long as no Indenture Default shall have occurred and be continuing under any Indenture:

(i) clause “third” thereof shall be deemed to read as follows: “third, such amount as shall be required to pay any accrued and unpaid PIK Amounts (applied first to interest and then principal) in respect of the Class A Certificates and then accrued, due and unpaid interest at the Stated Interest Rate on the outstanding Pool Balance of the Class A Certificates, together with (without duplication) accrued and unpaid interest at the Stated Interest Rate on the outstanding principal amount of (and determined for such purposes based only on) the Series A Equipment Notes held in the Class A Trust being redeemed, purchased or prepaid, shall be distributed to the Class A Trustee”;

(ii) clause “fourth” thereof shall be deemed to read as follows: “fourth, such amount as shall be required to pay any accrued and unpaid PIK Amounts (applied first to interest and then principal) in respect of the Class B Certificates and then accrued, due and unpaid Class B Adjusted Interest, shall be distributed to the Class B Trustee”; and

(iii) clause “sixth” thereof shall be deemed to read as follows: “sixth, such amount as shall be required to pay in full accrued, due and unpaid interest at the Stated Interest Rate on the outstanding Pool Balance of the Class B Certificates which was not previously paid pursuant to clause “fourth” above, together with (without duplication) accrued and unpaid interest at the Stated Interest Rate on the outstanding principal amount of (and determined for such purposes based only on) the Series B Equipment Notes held in the Class B Trust and being redeemed, purchased or prepaid, shall be distributed to the Class B Trustee”.

 

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(b) Investment of Amounts in Special Payments Account. Any amounts on deposit in the Special Payments Account prior to the distribution thereof pursuant to Section 2.4 or 3.2 shall be invested in accordance with Section 2.2(b). Investment Earnings on such investments shall be distributed in accordance with Article III hereof.

(c) Certain Payments. The Subordination Agent will distribute promptly upon receipt thereof (i) any indemnity payment or expense reimbursement received by it from Sun Country in respect of any Trustee (the “Payees”) and (ii) any compensation received by it from Sun Country under any Operative Agreement in respect of any Payee, directly to the Payee entitled thereto.

SECTION 2.5. Designated Representatives. (a) With the delivery of this Agreement, the Subordination Agent shall furnish to each Trustee, and from time to time thereafter may furnish to each Trustee, at the Subordination Agent’s discretion, or upon any 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 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.

SECTION 2.6. Controlling Party. (a) The Trustees hereby agree that, with respect to any Indenture at any given time, the Loan Trustee thereunder will be directed in taking, or refraining from taking, any action under such Indenture or with respect to the Equipment Notes issued thereunder (i) 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 (in the case of each such Trustee, with respect to the Equipment Notes issued under such Indenture and held as Trust Property of such Trust) constituting, in the aggregate, directions with respect to at least a majority of outstanding principal amount of Equipment Notes except as provided in Section 9.1(b)), and (ii) after the occurrence and during the continuance of an Indenture Default thereunder, in taking, or refraining from taking, any action under such Indenture or with respect to such Equipment Notes, including exercising remedies thereunder (including Accelerating the Equipment Notes issued thereunder or foreclosing the Lien on the Aircraft securing such Equipment Notes), by the Controlling Party.

 

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(b) The “Controlling Party” shall be (i) the Class A Trustee and (ii) upon payment of Final Distributions to the holders of Class A Certificates, the Class B Trustee. For purposes of giving effect to the provisions of Section 2.6(a) and this Section 2.6(b), 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 so held by the Subordination Agent as directed by the Controlling Party and any vote so exercised shall be binding upon the Trustees and all Certificateholders.

The Subordination Agent shall give Written Notice to all of the other parties to this Agreement promptly upon a change in the identity of the Controlling Party. Each of the parties hereto agrees that it shall not exercise any of the rights of the Controlling Party at such time as it is not the Controlling Party hereunder; provided, however, that nothing herein contained shall prevent or prohibit any Non-Controlling Party from exercising such rights as shall be specifically granted to such Non-Controlling Party hereunder and under the other Operative Agreements.

(c) [Reserved].

(d) The exercise of remedies by the Controlling Party under this Agreement shall be expressly limited by Sections 4.1(a)(ii) and 4.1(a)(iii) 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, 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 “first” of Section 3.2 hereof (to reimburse payments made by such Trustee or the Class A Certificateholders, as the case may be, pursuant to subclause (ii) or (iii) of clause “first”), subclauses (ii) and (iii) of clause “second” of Section 3.2 hereof and clauses “third” and “fifth” of Section 3.2 hereof;

 

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(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 “first” of Section 3.2 hereof (to reimburse payments made by such Trustee or the Class B Certificateholders, as the case may be, pursuant to subclause (ii) or (iii) of clause “first”), subclauses (ii) and (iii) of clause “second” of Section 3.2 hereof and clauses “fourth”, “sixth” and “seventh” of Section 3.2 hereof; and

(iii) each Trustee shall set forth the amounts to be paid in accordance with clause “fifth” of Section 3.2 hereof.

(b) At such time as a Trustee 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 3.2 hereof, as applicable, such Person shall, by a Written Notice, so inform the Subordination Agent and each other party to this Agreement.

(c) 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 pursuant to paragraphs (a) and (b) 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.

(d) Any Written Notice delivered by a Trustee, or the Subordination Agent, as applicable, pursuant to Section 3.1(a) hereof, if made prior to 10:00 A.M. (New York City time) on any Business Day, shall be effective on the date delivered (or if delivered later on a Business Day or if delivered on a day which is not a Business Day shall be effective as of the next Business Day). Subject to the terms of this Agreement, the Subordination Agent shall as promptly as practicable comply with any such instructions; provided, however, that any transfer of funds pursuant to any instruction received after 10:00 A.M. (New York City time) on any Business Day may be made on the next succeeding Business Day.

(e) In the event the Subordination Agent shall not receive from any Person any information set forth in paragraph (a) above which is required to enable the Subordination Agent to make a distribution to such Person pursuant to Section 3.2 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 “eleventh” of Section 3.2 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.

(f) The notices required under 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.

 

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SECTION 3.2. Distribution of Amounts on Deposit in the Collection Account. Except as otherwise provided in Sections 2.4, 3.1(e), and 3.3, amounts on deposit in the Collection Account (including amounts on deposit in the Special Payments Account) shall be promptly distributed on each Regular Distribution Date (or, in the case of any amount described in Section 2.4(a), on the Special Distribution Date thereof) in the following order of priority and in accordance with the information provided to the Subordination Agent pursuant to Section 3.1(a) hereof:

first, such amount as shall be required to reimburse (i) the Subordination Agent for any reasonable out-of-pocket costs and expenses actually incurred by it (to the extent not previously reimbursed) or reasonably expected to be incurred by it for the period ending on the next succeeding Regular Distribution Date (which shall not exceed $150,000 unless approved in writing by the Controlling Party) in the protection of, or the realization of the value of, the Equipment Notes or any Collateral, shall be applied by the Subordination Agent in reimbursement of such costs and expenses, (ii) any 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 Certificateholder for payments, if any, made by it to the Subordination Agent or any Trustee in respect of amounts described in clause (i) above actually incurred by it (to the extent not previously reimbursed) (collectively, the “Administration Expenses”), shall be distributed to the applicable Trustee for the account of such Certificateholder, in each such case, pro rata on the basis of all amounts described in clauses (i) and (ii) above;

second, such amount as shall be required to reimburse or pay (i) the Subordination Agent for any Tax (other than Taxes imposed on compensation paid hereunder), expense, fee, charge or other loss incurred by or any other amount payable to the Subordination Agent in connection with the transactions contemplated hereby (to the extent not previously reimbursed), shall be applied by the Subordination Agent in reimbursement of such amount, (ii) each Trustee for any Tax (other than Taxes imposed on compensation paid under the applicable Trust Agreement), expense, fee, charge, loss or any other amount payable to such Trustee under the applicable Trust Agreement (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 case, pro rata on the basis of all amounts described in clauses (i) through (iii) above;

third, such amount as shall be required to pay in full (i) first, unpaid PIK Amounts (applied first to interest and then principal) in respect of the Class A Certificates, and (ii) second, accrued and unpaid interest at the Stated Interest Rate on the Pool Balance of the Class A Certificates, shall be distributed to the Class A Trustee;

fourth, such amount as shall be required to pay (i) first, all unpaid PIK Amounts (applied first to interest and then principal) in respect of the Class B Certificates, and (ii) second, unpaid Class B Adjusted Interest, shall be distributed to the Class B Trustee;

 

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fifth, 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;

sixth, such amount as shall be required to pay in full accrued and unpaid interest at the Stated Interest Rate on the Pool Balance of the Class B Certificates which was not previously paid pursuant to clause “fourth” above shall be distributed to the Class B Trustee;

seventh, 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;

eighth, the balance, if any, of any such amount remaining thereafter shall be held in the Collection Account for later distribution in accordance with this Article III.

With respect to clauses “first” and “second” above, no amounts shall be reimbursable to the Subordination Agent, any Trustee, or any Certificateholder for any payments made by any such Person in connection with any Equipment Note that is no longer held by the Subordination Agent (to the extent that such payments relate to periods after such Equipment Note ceases to be held by the Subordination Agent).

SECTION 3.3. Other Payments. (a) Any payments received by the Subordination Agent for which no provision as to the application thereof is made in this Agreement shall be distributed by the Subordination Agent (i) in the order of priority specified in Section 3.2 hereof and (ii) to the extent received or realized at any time after the Final Distributions for each Class of Certificates have been made, in the manner provided in clause “first” of Section 3.2 hereof.

(b) [Reserved].

(c) If the Subordination Agent receives any Scheduled Payment after the Scheduled Payment Date relating thereto, but prior to such payment becoming an Overdue Scheduled Payment, then the Subordination Agent shall deposit such Scheduled Payment in the Collection Account and promptly distribute such Scheduled Payment in accordance with the priority of distributions set forth in Section 3.2 hereof; provided that, for the purposes of this Section 3.3(c) only, each reference in clause “sixth, “eighth” or “tenth” of Section 3.2 to “Distribution Date” shall be deemed to refer to such Scheduled Payment Date.

SECTION 3.4. Payments to the Trustees . 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 to the account such Trustee shall provide to the Subordination Agent.

SECTION 3.5. [Reserved]

 

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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 Subordination Agent, as the holder of Equipment Notes issued under such Indenture, which in turn shall direct the Loan Trustee under such Indenture, in the exercise of remedies available to the holder of such Equipment Notes, including, without limitation, the ability to vote all such Equipment Notes held by the Subordination Agent in favor of Accelerating such Equipment Notes in accordance with the provisions of such Indenture. Subject to Section 4.1(a)(iii), if the Equipment Notes issued pursuant to any Indenture and held by the Subordination Agent have been Accelerated following an Indenture Default with respect thereto, the Controlling Party may direct the Subordination Agent to sell, assign, contract to sell or otherwise dispose of and deliver all (but not less than all) of such Equipment Notes or all or any portion of the Collateral under such Indenture to any Person at public or private sale, at any location at the option of the Controlling Party; provided that, in each case, such sale, assignment or other disposition shall be conducted in a commercially reasonable manner and in accordance with applicable law, including Article 9 of the Uniform Commercial Code as in effect in any applicable jurisdiction (including Sections 9-610 and 9-627 thereof) and, to the extent a Bankruptcy Event has occurred and is continuing, the Bankruptcy Code. If all or any portion of the Collateral is sold or otherwise disposed of following an Indenture Default, no break-up fees or other fees (excluding third-party broker fees) or similar amounts may be paid to any buyer, potential buyer or other Person from the proceeds of such sale or other disposition.

(ii) Following the occurrence and during the continuation of an Indenture Default under any Indenture, in the exercise of remedies pursuant to such Indenture, the Loan Trustee under such Indenture may be directed to lease the related Aircraft to any Person (including Sun Country) so long as the Loan Trustee in doing so acts in a “commercially reasonable” manner within the meaning of Article 9 of the Uniform Commercial Code as in effect in any applicable jurisdiction (including Sections 9-610 and 9-627 thereof).

(iii) 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 and (y) the occurrence of a Bankruptcy Event, without the consent of each Trustee, no Aircraft subject to the Lien of such Indenture or such Equipment Notes may be sold if the net proceeds from such sale would be less than the Minimum Sale Price for such Aircraft or such Equipment Notes.

(iv) Upon the occurrence and continuation of an Indenture Default under any Indenture, the Subordination Agent will obtain three desktop appraisals from the Appraisers selected by the Controlling Party setting forth the current market value, current lease rate and distressed value (in each case, as defined by the International Society of Transport Aircraft Trading or any successor organization) of the Aircraft subject to such Indenture (each such appraisal, an “Appraisal and the current market value appraisals being referred to herein as the “Post-Default Appraisals”). For so long as any Indenture Default shall be continuing under any

 

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Indenture, and without limiting the right of the Controlling Party to request more frequent Appraisals, the Subordination Agent will obtain updated Appraisals on the date that is 364 days from the date of the most recent Appraisal (or if a Bankruptcy Event shall have occurred and is continuing, on the date that is 180 days from the date of the most recent Appraisal) and will, acting on behalf of each Trustee, post such Appraisals on website accessible to the Certificateholders or make such other commercially reasonable efforts as the Subordination Agent may deem appropriate to make such Appraisals available to all Certificateholders.

(b) Following the occurrence and during the continuance of an Indenture Default under any Indenture, the Controlling Party shall take such actions as it may reasonably deem most effectual to complete the sale or other disposition of the relevant Aircraft or Equipment Notes. In addition, in lieu of any sale, assignment, contract to sell or other disposition, the Controlling Party may maintain or cause the Subordination Agent to 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, subject to the terms and conditions of the related Indenture, instruct the Loan Trustee under such Indenture to foreclose on the Lien on the related Aircraft or to take any other remedial action permitted under such Indenture or under any applicable law, including . Article 9 of the Uniform Commercial Code as in effect in any applicable jurisdiction (including Sections 9-610 and 9-627 thereof) and, to the extent a Bankruptcy Event has occurred and is continuing, the Bankruptcy Code.

(c) If following a Bankruptcy Event and during the pendency thereof, the Controlling Party receives a proposal from or on behalf of Sun Country to restructure the financing of any one or more of the Aircraft, the Controlling Party shall promptly thereafter give the Subordination Agent and each Trustee notice of the material economic terms and conditions of such restructuring proposal whereupon the Subordination Agent acting on behalf of each Trustee shall endeavor using reasonable commercial efforts to make such terms and conditions of such restructuring proposal available to all Certificateholders. Thereafter, neither the Subordination Agent nor any Trustee, whether acting on instructions of the Controlling Party or otherwise, may, without the consent of each Trustee, enter into any term sheet, stipulation or other agreement (whether in the form of an adequate protection stipulation, an extension under Section 1110(b) of the Bankruptcy Code or otherwise) to effect any such restructuring proposal with or on behalf of Sun Country unless and until the material economic terms and conditions of such restructuring shall have been made available to all Certificateholders for a period of not less than 15 calendar days (except that such requirement shall not apply to any such term sheet, stipulation or other agreement that is entered into on or prior to the expiry of the 60-Day Period and that is effective for a period not longer than three months from the expiry of the 60-Day Period). In the event that any Class B Certificateholder or Additional Certificateholder gives irrevocable notice of the exercise of its right to purchase all (but not less than all) of the Class of Certificates represented by the then Controlling Party pursuant to the applicable Trust Agreement prior to the expiry of the 15-day notice period specified above, such Controlling Party may not direct the Subordination Agent or any Trustee to enter into any such restructuring proposal with respect to any of the Aircraft unless and until such Certificateholder shall fail to purchase such Class of Certificates on the date that it is required to make such purchase.

 

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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.

SECTION 4.3. Discontinuance of Proceedings. In case any party to this Agreement (including the Controlling Party in such capacity) shall have instituted any Proceeding to enforce any right, power or remedy under this Agreement by foreclosure, entry or otherwise, and such Proceeding shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Person instituting such Proceeding, then and in every such case each such party shall, subject to any determination in such Proceeding, be restored to its former position and rights hereunder, and all rights, remedies and powers of such party shall continue as if no such Proceeding had been instituted.

SECTION 4.4. 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 to receive payments hereunder (including without limitation pursuant to Section 3.2 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.

SECTION 4.5. Undertaking for Costs. In any Proceeding for the enforcement of any right or remedy under this Agreement or in any Proceeding 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 or a Trustee or a suit by Certificateholders holding more than 10% of the original principal amount of any Class of Certificates.

 

 

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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. (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 or courier to each Rating Agency 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, or one or more Certificateholders.

(b) Other Notices. The Subordination Agent will furnish to each Trustee, promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates, financial statements and other instruments furnished to the Subordination Agent as registered holder of the Equipment Notes or otherwise in its capacity as Subordination Agent to the extent the same shall not have been otherwise directly distributed to such Trustee, pursuant to the express provision of any other Operative Agreement.

(c) Securities Position. Upon the occurrence of an Indenture Default, the Subordination Agent shall instruct the Trustees to, and the Trustees shall, make available to all Certificateholders a securities position listing setting forth the names of all the parties reflected in its records as holding interests in the Certificates.

(d) Reports. Promptly after the occurrence of a Triggering Event or an Indenture Default resulting from the failure of Sun Country to make payments on any Equipment Note and on every Regular Distribution Date while the Triggering Event or such Indenture Default shall be continuing, the Subordination Agent will provide to the Trustee, each Rating Agency and Sun Country a statement setting forth the following information:

(i) after a Bankruptcy Event, with respect to each Aircraft, whether such Aircraft is (A) subject to the 60-day period of Section 1110(a)(2)(A) of the Bankruptcy Code, (B) subject to an election by Sun Country under Section 1110(a) of the Bankruptcy Code, (C) covered by an agreement contemplated by Section 1110(b) of the Bankruptcy Code or (D) not subject to any of (A), (B) or (C);

(ii) to the best of the Subordination Agent’s knowledge, after requesting such information from Sun Country, (A) whether the Aircraft are currently in service or parked in storage, (B) the maintenance status of the Aircraft and (C) the location of the Engines (as defined in the Indentures);

(iii) the current Pool Balance of the Certificates, the Preferred B Pool Balance and the outstanding principal amount of all Equipment Notes;

(iv) the expected amount of interest which will have accrued on the Equipment Notes and on the Certificates as of the next Regular Distribution Date, and, as to the Certificates, the applicable PIK Amounts (including current principal amount and expected amount of interest which will have accrued thereon as of the next Regular Distribution Date);

 

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(v) the amounts paid to each Person on such Distribution Date pursuant to this Agreement;

(vi) details of the amounts paid on such Distribution Date identified by reference to the relevant provision of this Agreement and the source of payment (by Aircraft and party); and

(vii) after a Bankruptcy Event, any operational reports filed by Sun Country with the bankruptcy court which are available to the Subordination Agent on a non-confidential basis.

SECTION 5.2. Indemnification. The Subordination Agent shall not be required to take any action or refrain from taking any action under Section 5.1 (other than the first sentence thereof) or Article IV hereof unless the Subordination Agent shall have been indemnified (to the extent and in the manner reasonably satisfactory to the Subordination Agent) against any liability, cost or expense (including counsel fees and expenses) which may be incurred in connection therewith. The Subordination Agent shall not be under any obligation to take any action under this Agreement and nothing contained in this Agreement shall require the Subordination Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. The Subordination Agent shall not be required to take any action under Section 5.1 (other than the first sentence 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 this 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 5.2 or 7.1 hereof) promptly take such action as may be necessary to duly discharge 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 Trustees. If any Trustee has notice of an Indenture Default or a Triggering Event, such Person shall promptly give notice thereof to each other party hereto, provided, however, that no such Person shall have any liability hereunder as a result of its failure to deliver any such notice.

 

 

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ARTICLE VI

THE SUBORDINATION AGENT

SECTION 6.1. Authorization; Acceptance of Trusts and Duties. Each of the Trustees hereby designates and appoints the Subordination Agent as the Subordination Agent under this Agreement. WTNA hereby accepts the duties hereby created and applicable to it as the Subordination Agent and agrees to perform the same but only upon the terms of this Agreement and agrees to receive and disburse all monies received by it in accordance with the terms hereof. The Subordination Agent shall not be answerable or accountable under any circumstances, except (a) for its own willful misconduct or gross negligence (or ordinary negligence in the handling of funds), (b) as provided in Sections 2.2 or 5.3 hereof and (c) 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 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 and the Trustees 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 as provided in Articles II and III hereof or deposited into one or more Trust Accounts need not be segregated in any manner except to the extent required by such Articles II and III and by law, and the Subordination Agent shall not (except as otherwise provided in Section 2.2 hereof) be liable for any interest thereon; provided, however, that any payments received or applied hereunder by the Subordination Agent shall be accounted for by the Subordination Agent so that any portion thereof paid or applied pursuant hereto shall be identifiable as to the source thereof.

SECTION 6.5. Reliance; Agents; Advice of Counsel. The Subordination Agent shall not incur liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper believed by it to be genuine and believed by it to be signed by the proper party or parties. As to the Pool Balance of any Trust as of any date, the Subordination Agent may for all purposes hereof rely on a certificate signed by any Responsible Officer of the applicable Trustee, and such certificate shall constitute full protection to the Subordination Agent for any action taken or omitted to be taken by it in good faith in reliance thereon. As to any fact or matter relating to the 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 Trustee as to such fact or matter, and such certificate shall constitute

 

27


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 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 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 for any fee as compensation for its services as agent under this Agreement. The provisions of this Section 6.7 shall survive the termination of this Agreement.

SECTION 6.8. May Become Certificateholder. The institution acting as Subordination Agent hereunder may become a Certificateholder and have all rights and benefits of a Certificateholder to the same extent as if it were not the institution acting as the Subordination Agent.

SECTION 6.9. Subordination Agent Required; Eligibility. There shall at all times be a Subordination Agent hereunder which shall be a corporation or national banking association 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 or national banking association organized and doing business under the laws of the United States of America, 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 or national banking association 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 or national banking association 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 or national banking association shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.

 

28


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.

SECTION 6.11. Notice of Substitution of Airframe. If the Subordination Agent, in its capacity as a holder of Equipment Notes issued under an Indenture, receives a notice of substitution of a Substitute Airframe (as defined in such Indenture) pursuant to Section 4.04(f) of such Indenture, the Subordination Agent shall promptly (i) provide a copy of such notice to each Trustee and each Rating Agency and (ii) on behalf of each Trustee make available such notice to all Certificateholders.

ARTICLE VII

INDEMNIFICATION OF SUBORDINATION AGENT

SECTION 7.1. Scope of Indemnification. The Subordination Agent shall be indemnified hereunder to the extent and in the manner described in Section 8.1 of the Participation Agreements and Section 6 of the Note Purchase Agreement. The indemnities contained in such Sections of such agreements shall survive the termination of this Agreement.

ARTICLE VIII

SUCCESSOR SUBORDINATION AGENT

SECTION 8.1. Replacement of Subordination Agent; Appointment of Successor. The Subordination Agent may resign at any time by so notifying each other party hereto. The Controlling Party may remove the Subordination Agent for cause by so notifying the Subordination Agent and may appoint a successor Subordination Agent. The Controlling Party 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 shall promptly appoint a successor Subordination Agent.

 

29


A successor Subordination Agent shall deliver (x) a written acceptance of its appointment as Subordination Agent hereunder to the retiring Subordination Agent and (y) a written assumption of its obligations hereunder to each party hereto, upon which the resignation or removal of the retiring Subordination Agent shall become effective, and the successor Subordination Agent shall have all the rights, powers and duties of the Subordination Agent under this Agreement. The successor Subordination Agent shall mail a notice of its succession to each other party hereto. The retiring Subordination Agent shall promptly transfer its rights to 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 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. If any Class of Certificates is then rated, no appointment of a successor Subordination Agent shall be effective unless and until each Rating Agency shall have delivered a Ratings Confirmation.

ARTICLE IX

SUPPLEMENTS AND AMENDMENTS

SECTION 9.1. Amendments, Waivers, Possible Future Issuance of an Additional Class of Certificates, etc . (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment contemplated by the last sentence of this Section 9.1(a), 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 or as otherwise authorized pursuant to the relevant Trust Agreement), and the Subordination Agent; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee if such supplement, amendment or modification (i) is in accordance with Section 9.1(c) or Section 9.1(d) hereof or (ii) cures an ambiguity or inconsistency or does not materially adversely affect such Trustee, the holders of the related Class of Certificates; provided further, however, that, if such supplement, amendment or modification (A) would (x) directly or indirectly modify or supersede, or otherwise conflict with, Section 2.2(b), the last sentence of this Section 9.1(a), Section 9.1(c), Section 9.1(d), the second sentence of Section 10.6 or this proviso (collectively, the “Sun Country Provisions”) or (y) otherwise adversely affect the interests of Sun Country with respect to its payment obligations under any Operative Agreement, or (B) is made pursuant to the last sentence of this Section 9.1(a) or pursuant to Section 9.1(c) or Section 9.1(d), then such

 

30


supplement, amendment or modification shall not be effective without the additional written consent of Sun Country or (iii) if such supplement, amendment or modification would directly or indirectly amend, modify or supersede, or otherwise conflict with, the last two sentences of Section 4.1(a)(i), then such supplement, amendment or modification shall not be effective without the unanimous consent of each Certificateholder. Notwithstanding the foregoing, without the consent of each Certificateholder, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii) except as provided in this Section 9.1(a), Section 9.1(c) or Section 9.1(d), modify Section 2.4 or 3.2 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes. 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 the giving of any notice or for its consent to any amendment, supplement, modification, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued, or the related Participation Agreement or other related document, (i) if no Indenture Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee, and (ii) if any Indenture Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights with respect to such Equipment Notes as directed by the Controlling Party (subject to Sections 4.1 and 4.4 hereof); provided that no such amendment, supplement, modification, consent or waiver shall, without the consent of each affected Certificateholder, (A) reduce the amount of principal or interest payable by Sun Country under any Equipment Note, (B) change the time of payment or method of calculation of any amount under any Equipment Note or (C) directly or indirectly amend, modify or supersede, or otherwise conflict with, the requirement that any disposition shall be conducted in a commercially reasonable manner and in accordance with applicable law, including Article 9 of the Uniform Commercial Code as in effect in any applicable jurisdiction (including Sections 9-610 and 9-627 thereof) and, to the extent a Bankruptcy Event has occurred and is continuing, the Bankruptcy Code.

(c) If the Series B Equipment Notes issued with respect to all of the Aircraft are repaid and re-issued in accordance with the terms of Section 4(a)(vi) of the Note Purchase Agreement, or any series of Additional Equipment Notes issued pursuant to Section 9.1(d) are repaid and re-issued in accordance with Section 4(a)(vi) of the Note Purchase Agreement, such series of re-issued Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Class B Trust or the applicable Additional Trust, the Class B Trustee or the applicable Additional Trustee and the Class B Certificates or the applicable Additional Certificates, whichever

 

31


corresponds to the series of the refinanced Equipment Notes, including the subordination of the Refinancing Certificates to the Administration Expenses, and the Class A Certificates and, if applicable, the Class B Certificates and, if applicable, any previously issued class of Additional Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation (if any Class is then rated) and shall not materially adversely affect any of the Trustees. This Agreement shall be amended by written agreement of Sun Country and the Subordination Agent to give effect to the issuance of any Refinancing Certificates subject to the following terms and conditions:

(i) the Refinancing Trustee shall be added as a party to this Agreement;

(ii) the definitions of “Certificate”, “Class”, “Class B Certificates” (if applicable), “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);

(iii) the Refinancing Certificates may be rated by one or more Rating Agencies, and may allow for payment in kind of interest in a manner similar to the PIK Amounts;

(iv) the Refinancing Certificates cannot be issued to Sun Country but may be issued to any of Sun Country’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Sun Country shall be similarly restricted; and

(v) the scheduled payment dates on the Refinancing Equipment Notes shall be on the Regular Distribution Dates.

The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 9.1(c) shall not require the consent of any of the Trustees or the holders of any Class of Certificates.

(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(vi) of the Note Purchase Agreement, one or more additional series of Equipment Notes (the “Additional Equipment Notes”), which shall be subordinated in right of payment to the Series A Equipment Notes and the Series B Equipment Notes under such Indenture, may be issued at any time, and from time to time, on or after the final Closing Date. If any series of Additional Equipment Notes are issued under one or more of the Indentures, each such series of Additional Equipment Notes shall be issued to a new pass through trust (an “Additional Trust”) that issues a class of pass through certificates (the “Additional Certificates”) to certificateholders (the “Additional Certificateholders”) pursuant to a pass through trust agreement (an “Additional Trust Agreement”) with a trustee (an “Additional Trustee”). In such case, this Agreement shall be amended by written agreement of Sun Country and the Subordination Agent to provide for the subordination of the Additional Certificates to the Administration Expenses, the Class A

 

32


Certificates and the Class B Certificates, if applicable, any previously issued class of Additional Certificates (subject to clause (iii) below). Such issuance and the amendment of this Agreement as provided below shall require Ratings Confirmation (if applicable) and shall not materially adversely affect any of the Trustees. This Agreement shall be amended by written agreement of Sun Country and the Subordination Agent to give effect to the issuance of any Additional Certificates subject to the following terms and conditions:

(i) the Additional Trustee shall be added as a party to this Agreement;

(ii) the definitions of “Certificate”, “Class”, “Equipment Notes”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect the issuance of the Additional Certificates (and the subordination thereof);

(iii) Section 3.2 may be revised to provide for the distribution of “PIK Amounts” (calculated in a manner similar to the calculation of PIK Amounts for the Class B Certificates) and “Adjusted Interest” (calculated in a manner substantially similar to the calculation of Class B Adjusted Interest) for such class of Additional Certificates after the Class B Adjusted Interest (and, if applicable, after any “Adjusted Interest” for any previously issued class of Additional Certificates) but before Expected Distributions on the Class A Certificates;

(iv) the Additional Certificates may be rated by one or more Rating Agencies;

(v) the Additional Certificates may allow for payment in kind of interest as “PIK Amounts” in a manner similar to the PIK Amounts in respect of the Class B Certificates;

(vi) the Additional Certificates cannot be issued to Sun Country but may be issued to any of Sun Country’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Additional Certificates to any Affiliate of Sun Country shall be similarly restricted;

(vii) the provisions of this Agreement governing payments with respect to Certificates and related notices, including Sections 2.4, 3.1 and 3.2, shall be revised to provide for distributions on such class of the Additional Certificates after payment of Administration Expenses, the Class A Certificates and the Class B Certificates (and, if applicable, any previously issued class of Additional Certificates), subject to clause (iii) above; and

(viii) the scheduled payment dates on such series of Additional Equipment Notes shall be on the Regular Distribution Dates.

The issuance of the Additional Certificates in compliance with all of the foregoing terms of this Section 9.1(d) shall not require the consent of any of the Trustees or the holders of any Class of Certificates.

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, the Subordination Agent may in its discretion decline to execute such document.

 

33


SECTION 9.3. Effect of Supplemental Agreements. Upon the execution of any amendment, consent 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 amendment, consent or supplement 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 amendment, consent or supplement 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 stating that the execution of such amendment, consent or supplement is authorized or permitted by this Agreement.

SECTION 9.4. Notice to Rating Agency. Promptly upon receipt of any amendment, consent, modification, supplement or waiver contemplated by this Article IX and prior to taking any action required to be taken thereunder, 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 provided that there shall then be no other amounts due to the Certificateholders, the Trustees and the Subordination Agent hereunder or under the Trust Agreements, 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 and Subordination Agent. Subject to the second sentence of Section 10.6 and the provisions of Sections 4.4 and 9.1, nothing in this Agreement, whether express or implied, shall be construed to give to any Person other than the Trustees 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:

Wilmington Trust, National Association

1100 N. Market Street

 

34


Wilmington, DE 19890-1605

Attention: Corporate Trust Administration

Telecopy: (302) 636-4140

Email: cmay@wilmingtontrust.com

 

  (ii)

if to any Trustee, addressed to it at its office at:

Wilmington Trust, National Association

1100 N. Market Street

Wilmington, DE 19890-1605

Attention: Corporate Trust Administration

Telecopy: (302) 636-4140

Email: cmay@wilmingtontrust.com

Whenever any notice in writing is required to be given by any Trustee 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. In addition, the Sun Country Provisions shall inure to the benefit of Sun Country and its successors and assigns, and (without limitation of the foregoing) Sun Country is hereby constituted, and agreed to be, an express third party beneficiary of the Sun Country Provisions.

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.

 

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SECTION 10.9. Subordination. (a) If any Trustee or the Subordination Agent receives any payment in respect of any obligations owing hereunder, 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 intended to be satisfied shall be revived and continue in full force and effect as if such payment had not been received.

(b) Each of the Trustees (on behalf of themselves and the holders of the Certificates) and the Subordination Agent may take any of the following actions without impairing their rights under this Agreement:

(i) obtain a Lien on any property to secure any amounts owing to it hereunder,

(ii) obtain the primary or secondary obligation of any other obligor with respect to any amounts owing to it hereunder,

(iii) renew, extend, increase, alter or exchange any amounts owing to it hereunder, 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;

provided, however, that the taking of any such actions by any of the Trustees or the Subordination Agent shall not prejudice the rights or adversely affect the obligations of any other party under this Agreement.

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.

SECTION 10.11. Submission to Jurisdiction; Waiver of Jury Trial; Waiver of Immunity.

(a) Each of the parties hereto hereby irrevocably and unconditionally:

(i) submits for itself and its property in any legal action or proceeding relating to this Agreement or any other Operative Agreement, or for recognition and enforcement of any judgment in respect hereof or thereof, to the nonexclusive general jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New York, and the appellate courts from any thereof;

(ii) consents that any such action or proceeding may be brought in such courts, and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;

 

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(iii) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to each party hereto at its address set forth in Section 10.3 hereof, or at such other address of which the other parties shall have been notified pursuant thereto; and

(iv) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction.

(b) EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS BEING ESTABLISHED, including, without limitation, contract claims, tort claims, breach of duty claims and all other common law and statutory claims. Each of the parties warrants and represents that it has reviewed this waiver with its legal counsel, and that it knowingly and voluntarily waives its jury trial rights following consultation with such legal counsel. THIS WAIVER IS IRREVOCABLE, AND CANNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.

 

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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.

 

WILMINGTON TRUST, NATIONAL ASSOCIATION, not in its individual capacity but solely as Trustee for each of the Trusts
By  

 

Name:  
Title:  
WILMINGTON TRUST, NATIONAL ASSOCIATION, not in its individual capacity except as expressly set forth herein but solely as Subordination Agent and Trustee
By  

 

Name:  
Title:  
EX-4.4

Exhibit 4.4

Execution Version

 

 

NOTE PURCHASE AGREEMENT

Dated as of March 28, 2022

Among

SUN COUNTRY, INC.

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Pass Through Trustee under each of the

Pass Through Trust Agreements

and

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Subordination Agent

 

 

 


INDEX TO NOTE PURCHASE AGREEMENT

Page

 

SECTION 1. Financing of Aircraft

     2  

SECTION 2. Conditions Precedent

     4  

SECTION 3. Representations and Warranties

     4  

SECTION 4. Covenants

     7  

SECTION 5. Notices

     8  

SECTION 6. Expenses

     8  

SECTION 7. Further Assurances

     8  

SECTION 8. Miscellaneous

     8  

SECTION 9. Governing Law

     9  

Schedules

 

Schedule I    Aircraft and Scheduled Closing Dates
Schedule II    Trust Supplements
Schedule III    Required Terms

Annex

 

Annex A    Definitions

Exhibits

 

Exhibit A    Form of Closing Notice
Exhibit B    Form of Participation Agreement
Exhibit C    Form of Indenture

 


NOTE PURCHASE AGREEMENT

This NOTE PURCHASE AGREEMENT, dated as of March 28, 2022 (this “Agreement”), is among (i) SUN COUNTRY, INC., a Minnesota corporation (the “Company”), (ii) WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association (“WTNA”), not in its individual capacity except as otherwise expressly provided herein, but solely as trustee (in such capacity together with its successors in such capacity, the “Pass Through Trustee”) under each of the two separate Pass Through Trust Agreements (as defined below) and (iii) WTNA, as subordination agent and trustee (in such capacity together with its successors in such capacity, the “Subordination Agent”) under the Intercreditor Agreement (as defined below).

W I T N E S S E T H:

WHEREAS, capitalized terms used but not defined herein shall have the meanings ascribed to such terms in Annex A hereto;

WHEREAS, the Company owns, or has agreed to acquire, the thirteen Boeing 737-800 aircraft listed in Schedule I hereto (the “Aircraft”);

WHEREAS, pursuant to this Agreement the Company wishes to finance each of the Aircraft hereunder;

WHEREAS, pursuant to the Basic Pass Through Trust Agreement and each of the Trust Supplements set forth in Schedule II hereto, and concurrently with the execution and delivery of this Agreement, separate grantor trusts (the “Class A Pass Through Trust” and the “Class B Pass Through Trust”, collectively, the “Pass Through Trusts” and, individually, a “Pass Through Trust”) have been created to facilitate certain of the transactions contemplated hereby, including, without limitation, the issuance and sale of pass through certificates pursuant thereto (collectively, the “Certificates”) to provide for a portion of the financing of the Aircraft contemplated hereby;

WHEREAS, the Company has entered into the Certificate Purchase Agreement, dated as of the date hereof (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Purchase Agreement”) with the investors named therein (each an “Investor” and collectively, the “Investors”), pursuant to which the Company will cause the Pass Through Trustee under the Class A Pass Through Trust (the “Class A Pass Through Trustee”) and the Pass Through Trustee under the Class B Pass Through Trust (the “Class B Pass Through Trustee) to issue and sell the Class A Certificates and the Class B Certificates, respectively, to the Investors on and subject to the terms set out in the Purchase Agreement;

WHEREAS, upon receipt of a Closing Notice with respect to an Aircraft, subject to the terms and conditions of this Agreement, the applicable Pass Through Trustees will enter into the applicable Financing Agreements relating to such Aircraft; and

WHEREAS, in order to effect the financing of each Aircraft, the Class A Pass Through Trustee and the Class B Pass Through Trustee, each will fund its purchase of Equipment Notes with the proceeds of the sale of the Certificates by the related Pass Through Trust pursuant to the Purchase Agreement.

 


NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Financing of Aircraft. (a) The Company confirms that it currently owns, or has agreed to acquire, the Aircraft. The Company agrees to finance the Aircraft in the manner provided herein, all on and subject to the terms and conditions hereof and of the relevant Financing Agreements.

(b) In furtherance of the foregoing, the Company agrees to give the parties hereto and each of the Rating Agencies not less than one Business Day’s prior notice substantially in the form of Exhibit A hereto (a “Closing Notice”) of the date on which the Company expects to finance an Aircraft hereunder, which shall be the Scheduled Closing Date for such Aircraft (and the Company shall endeavor to finance each Aircraft on its Scheduled Delivery Date, provided the Company may, concurrently with the delivery of any Closing Notice, deliver a notice of postponement in accordance with Section 1(e)) or a Business Day thereafter and before the Cut-off Date for such Aircraft, which notice shall:

(i) specify the expected Closing Date of such Aircraft;

(ii) instruct each Pass Through Trustee being requested to purchase Equipment Notes pursuant to such Closing Notice (the “Applicable Pass Through Trustees”) to enter into the Participation Agreement included in the Financing Agreements with respect to such Aircraft in such form and at such a time on or before the expected Closing Date specified in such Closing Notice and to perform its obligations thereunder;

(iii) [Reserved]; and

(iv) specify the aggregate principal amount of each series of Equipment Notes, if any, to be issued, and purchased by the Applicable Pass Through Trustees, in connection with the financing of such Aircraft scheduled on such expected Closing Date (which shall in all respects comply with the Required Terms).

Notwithstanding the foregoing, in the case of any Aircraft to be financed hereunder on the Initial Closing Date, the Closing Notice therefor may be delivered to the parties hereto on the Initial Closing Date.

(c) Upon receipt of a Closing Notice, the Applicable Pass Through Trustees shall, and shall cause the Subordination Agent to, enter into and perform their respective obligations under each Participation Agreement specified in such Closing Notice, provided that such Participation Agreement and the Indenture to be entered into pursuant to such Participation Agreement shall be in the forms thereof annexed hereto in all material respects and, if modified in any material respect, as to which Rating Agency Confirmation shall have been obtained from each Rating Agency by the Company (to be delivered by the Company to the Applicable Pass Through Trustees on or before the Closing Date on which such Participation Agreement is to be

 

2


entered into, it being understood that if a Rating Agency Confirmation shall have been received with respect to any Financing Agreements and such Financing Agreements are utilized for subsequent Aircraft without material modifications, no additional Rating Agency Confirmation shall be required); provided, however, that the relevant Financing Agreements as executed and delivered shall not vary the Required Terms. Notwithstanding the foregoing, an Indenture may be modified to the extent required for the issuance of Equipment Notes pursuant to Section 4(a)(vi) of this Agreement, subject to the terms of such Section and Section 9.1(c) or 9.1(d) of the Intercreditor Agreement, whichever may be applicable. The Company shall pay the reasonable costs and expenses of the Rating Agencies in connection with obtaining any such Rating Agency Confirmation. With respect to each Aircraft, the Company shall cause WTNA (or such other person that meets the eligibility requirements to act as loan trustee under the Indenture) to execute as Loan Trustee the Financing Agreements relating to such Aircraft to which such Loan Trustee is intended to be a party, and shall concurrently therewith execute such Financing Agreements to which the Company is intended to be a party and perform its respective obligations thereunder. Upon the request of any Rating Agency, the Company shall deliver or cause to be delivered to such Rating Agency a true and complete copy of each Financing Agreement relating to the financing of each Aircraft together with a true and complete set of the closing documentation (including legal opinions) delivered to the related Loan Trustee, Subordination Agent and Pass Through Trustee under the related Participation Agreement.

(d) The Company agrees that all Equipment Notes issued pursuant to any Indenture shall initially be registered in the name of the Subordination Agent on behalf of the Applicable Pass Through Trustees (or, in the case of any Additional Series Equipment Notes, on behalf of the Additional Series Pass Through Trustee with respect to the corresponding Additional Series Pass Through Certificates).

(e) If after giving any Closing Notice, the financing of any Aircraft referred to therein (the “Delayed Aircraft”) in the manner contemplated hereby shall not be consummated for any reason the Company shall give the parties hereto prompt notice thereof. Concurrently with the giving of such notice of postponement or subsequently, the Company shall give the parties hereto a substitute Closing Notice specifying the date to which the financing of such Delayed Aircraft shall have been re-scheduled, which shall be a Business Day before the Cut-off Date for such Aircraft. Following the giving of such notice of postponement, the unapplied funds advanced by the Class A Certificateholders and the Class B Certificateholders under the Purchase Agreement intended to fund the purchase of the Equipment Notes relating to such Delayed Aircraft, shall, pursuant to Section 2.1(d) of the Purchase Agreement, be held in a separate account with WTNA for the benefit of such Certificateholders with respect to such Equipment Notes until the earlier of (x) the application of such funds to purchase the relevant Equipment Notes with respect to such Delayed Aircraft and (y) the date that is 30 days after the Scheduled Closing Date with respect to such Delayed Aircraft or, in the case of any Extension Aircraft, such later day prior to the 60th day after such Scheduled Closing Date to which such 30th day has most recently been postponed by written notice from the Company to the Pass Through Trustees given prior to expiration of the deadline in effect under this clause (y) when such notice is given (such 30th day or, if applicable, later day, the “Prefunding Expiry Date”); provided that if the Equipment Notes relating to such Delayed Aircraft have not been purchased prior to the applicable Prefunding Expiry Date (which, for the avoidance of doubt, may be the Cut-off Date), such unapplied funds shall be paid as provided in the Purchase Agreement. If a

 

3


notice of postponement has been given with respect to an Aircraft, the financing of such Aircraft, as specified in a substitute Closing Notice, shall take place on the re-scheduled Closing Date therefor (all on and subject to the terms and conditions of the relevant Financing Agreements) unless further postponed as provided herein.

(f) The Company shall have no liability for the failure of the Pass Through Trustees to purchase Equipment Notes with respect to any Aircraft.

SECTION 2. Conditions Precedent. The obligation of the Applicable Pass Through Trustees to enter into, and to cause the Subordination Agent to enter into, any Participation Agreement as directed pursuant to a Closing Notice and to perform its obligations thereunder is subject to satisfaction of the following conditions:

(a) no Triggering Event shall have occurred; and

(b) the Company shall have delivered a certificate to each such Pass Through Trustee stating (i) that such Participation Agreement and the other Financing Agreements to be entered into pursuant to such Participation Agreement do not vary the Required Terms and (ii) that any substantive modification of such Financing Agreements from the forms of Financing Agreements attached to this Agreement do not materially and adversely affect the Certificateholders, and such certification shall be true and correct.

Anything herein to the contrary notwithstanding, the obligation of each Pass Through Trustee to purchase Equipment Notes with respect to an Aircraft shall terminate on the Cut-off Date with respect to such Aircraft.

SECTION 3. Representations and Warranties. (a) The Company represents and warrants that:

(i) the Company is duly incorporated, validly existing and in good standing under the laws of the State of Minnesota and is a “citizen of the United States” as defined in Section 40102(a)(15) of the Act, and has the full corporate power, authority and legal right under the laws of the State of Minnesota to execute and deliver this Agreement and each Financing Agreement to which it will be a party and to carry out the obligations of the Company under this Agreement and each Financing Agreement to which it will be a party;

(ii) the execution and delivery by the Company of this Agreement and the performance by the Company of its obligations under this Agreement have been duly authorized by the Company and will not violate its Certificate of Incorporation or by-laws or the provisions of any indenture, mortgage, contract or other agreement to which it is a party or by which it is bound; and

(iii) this Agreement constitutes the legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity, whether considered in a proceeding at law or in equity.

 

4


(b) WTNA represents and warrants that:

(i) WTNA is a national banking association duly incorporated, validly existing and in good standing under the laws of the United States and is a “citizen of the United States” as defined in Section 40102(a)(15) of the Act, and has the full corporate power, authority and legal right under the laws of the United States and of the state of the United States in which it is located pertaining to its banking, trust and fiduciary powers to execute and deliver this Agreement and each Financing Agreement to which it will be a party and to carry out the obligations of WTNA, in its capacity as Subordination Agent or Pass Through Trustee, as the case may be, under this Agreement and each Financing Agreement to which it will be a party;

(ii) the execution and delivery by WTNA, in its capacity as Subordination Agent or Pass Through Trustee, as the case may be, of this Agreement and the performance by WTNA, in its capacity as Subordination Agent or Pass Through Trustee, as the case may be, of its obligations under this Agreement have been duly authorized by WTNA, in its capacity as Subordination Agent or Pass Through Trustee, as the case may be, and will not violate its articles of association or by-laws or the provisions of any indenture, mortgage, contract or other agreement to which it is a party or by which it is bound; and

(iii) this Agreement constitutes the legal, valid and binding obligations of WTNA, in its capacity as Subordination Agent or Pass Through Trustee, as the case may be, enforceable against it in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity, whether considered in a proceeding at law or in equity.

(c) The Pass Through Trustee hereby confirms to each of the other parties hereto that its representations and warranties set forth in Section 7.15 of the Basic Pass Through Trust Agreement and Section 6.03 of each Trust Supplement are true and correct as of the date hereof.

(d) The Subordination Agent represents and warrants that:

(i) the Subordination Agent is a national banking association duly incorporated, validly existing and in good standing under the laws of the United States, and has the full corporate power, authority and legal right under the laws of the United States and of the state of the United States in which it is located pertaining to its banking, trust and fiduciary powers to execute and deliver this Agreement and each Financing Agreement to which it is or will be a party and to perform its obligations under this Agreement and each Financing Agreement to which it is or will be a party;

 

5


(ii) this Agreement has been duly authorized, executed and delivered by the Subordination Agent; this Agreement constitutes the legal, valid and binding obligations of the Subordination Agent enforceable against it in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity, whether considered in a proceeding at law or in equity;

(iii) none of the execution, delivery and performance by the Subordination Agent of this Agreement contravenes any law, rule or regulation of the state of the United States in which it is located or any United States governmental authority or agency regulating the Subordination Agent’s banking, trust or fiduciary powers or any judgment or order applicable to or binding on the Subordination Agent and do not contravene the Subordination Agent’s articles of association or by-laws or result in any breach of, or constitute a default under, any agreement or instrument to which the Subordination Agent is a party or by which it or any of its properties may be bound;

(iv) neither the execution and delivery by the Subordination Agent of this Agreement nor the consummation by the Subordination Agent of any of the transactions contemplated hereby requires the consent or approval of, the giving of notice to, the registration with, or the taking of any other action with respect to, any governmental authority or agency of the state of the United States in which it is located or any federal governmental authority or agency regulating the Subordination Agent’s banking, trust or fiduciary powers;

(v) there are no Taxes payable by the Subordination Agent imposed by any state of the United States in which it is located or any political subdivision or Taxing Authority thereof in connection with the execution, delivery and performance by the Subordination Agent of this Agreement (other than franchise or other taxes based on or measured by any fees or compensation received by the Subordination Agent for services rendered in connection with the transactions contemplated by the Intercreditor Agreement), and there are no Taxes payable by the Subordination Agent imposed by any state of the United States in which it is located or any political subdivision thereof in connection with the acquisition, possession or ownership by the Subordination Agent of any of the Equipment Notes (other than franchise or other taxes based on or measured by any fees or compensation received by the Subordination Agent for services rendered in connection with the transactions contemplated by the Intercreditor Agreement); and

(vi) there are no pending or threatened actions or proceedings against the Subordination Agent before any court or administrative agency which individually or in the aggregate, if determined adversely to it, would materially adversely affect the ability of the Subordination Agent to perform its obligations under this Agreement.

 

6


SECTION 4. Covenants. (a) The Company covenants with each of the other parties hereto that:

(i) [Intentionally Omitted];

(ii) subject to Section 4(a)(iv) of this Agreement, the Company shall at all times maintain its corporate existence and shall not wind up, liquidate or dissolve or take any action, or fail to take any action, that would have the effect of any of the foregoing;

(iii) the Company shall at all times remain a U.S. Air Carrier (as defined in the Financing Agreements) and shall at all times be otherwise certificated and registered to the extent necessary to entitle the Loan Trustee to the rights afforded to secured parties of aircraft equipment under Section 1110;

(iv) Section 4.07 of each Indenture is hereby incorporated by reference herein;

(v) [Reserved.];

(vi) the Company shall not repay and re-issue any Series B Equipment Notes or issue (or repay and reissue) any Additional Series Equipment Notes pursuant to any Indenture, unless it shall have obtained written confirmation from each Rating Agency that the reissuance or issuance of such Equipment Notes, as the case may be, will not result in (1) a reduction of the rating for any Class of Certificates then rated by such Rating Agency that will remain outstanding below the then current rating for such Class of Certificates or (2) a withdrawal or suspension of the rating of any Class of Certificates then rated by such Rating Agency that will remain outstanding. Any reissuance of any Series B Equipment Notes and issuance (or repayment and reissuance) of Additional Series Equipment Notes shall be subject to the terms of Section 9.1(c) and 9.1(d), respectively, of the Intercreditor Agreement; and

(vii) promptly after the occurrence of a Triggering Event or an Indenture Default resulting from the failure of the Company to make payments on any Equipment Note and on every Regular Distribution Date while the Triggering Event or such Indenture Default shall be continuing, the Company will, at the Subordination Agent’s request from time to time but in any event no more frequently than once every three months, provide to the Subordination Agent a statement setting forth the following information with respect to each Aircraft then subject to the lien of an Indenture: (A) whether the Aircraft are currently in service or parked in storage, (B) the maintenance status of the Aircraft and (C) the location of the Engines (as defined in the respective Indentures to which such Aircraft are subject). As used in the preceding sentence, the terms “Triggering Event”, “Indenture Default”, and “Regular Distribution Date” shall have the respective meanings set forth in the Intercreditor Agreement as originally executed.

(b) WTNA, in its individual capacity, covenants with each of the other parties to this Agreement that it will, immediately upon obtaining knowledge of any facts that would cast doubt upon its continuing status as a “citizen of the United States” as defined in Section 40102(a)(15) of the Act and promptly upon public disclosure of negotiations in respect of any transaction which would or might adversely affect such status, notify in writing all parties hereto of all relevant matters in connection therewith. Upon WTNA giving any such notice, WTNA shall, subject to Section 9.01 of any Indenture then entered into, resign as Loan Trustee in respect of such Indenture.

 

7


SECTION 5. Notices. Unless otherwise specifically provided herein, all notices required or permitted by the terms of this Agreement shall be in English and in writing, and any such notice shall become effective upon being delivered personally or, if promptly confirmed by mail, when dispatched by facsimile or other written telecommunication, addressed to such party hereto at its address or facsimile number set forth below the signature of such party at the foot of this Agreement or to such other address or facsimile number as such party may hereafter specify by notice to the other parties.

SECTION 6. Expenses. So long as no Equipment Notes have been issued in respect of any Aircraft, the Company agrees to pay, (i) all compensation and reimbursement of expenses, disbursements and advances payable by the Company under the Pass Through Trust Agreements and (ii) all compensation and reimbursement of expenses and disbursements payable to the Subordination Agent under the Intercreditor Agreement except with respect to any income or franchise taxes incurred by the Subordination Agent in connection with the transactions contemplated by the Intercreditor Agreement.

SECTION 7. Further Assurances. Each party hereto shall duly execute, acknowledge and deliver, or shall cause to be executed, acknowledged and delivered, all such further agreements, instruments, certificates or documents, and shall do and cause to be done such further acts and things, in any case, as any other party hereto shall reasonably request in connection with its administration of, or to carry out more effectually the purposes of, or to better assure and confirm unto it the rights and benefits to be provided under, this Agreement.

SECTION 8. Miscellaneous. (a) Provided that the transactions contemplated hereby have been consummated, in whole or in part, and except as otherwise provided for herein, the representations, warranties and agreements herein of the Company, the Subordination Agent and the Pass Through Trustee, and the Company’s, the Subordination Agent’s and the Pass Through Trustee’s obligations under any and all thereof, shall survive the expiration or other termination of this Agreement and the other agreements referred to herein.

(b) This Agreement may be executed in any number of counterparts (and each of the parties hereto shall not be required to execute the same counterpart). Each counterpart of this Agreement, including a signature page executed by each of the parties hereto, shall be an original counterpart of this Agreement, but all of such counterparts together shall constitute one instrument. Neither this Agreement nor any of the terms hereof may be terminated, amended, supplemented, waived or modified orally, but only by an instrument in writing signed by the party against which the enforcement of the termination, amendment, supplement, waiver or modification is sought. The index preceding this Agreement and the headings of the various Sections of this Agreement are for convenience of reference only and shall not modify, define, expand or limit any of the terms or provisions hereof. The terms of this Agreement shall be binding upon, and shall inure to the benefit of, the Company and its successors and permitted assigns, the Pass Through Trustee and its successors as Pass Through Trustee (and any additional trustee appointed) under any of the Pass Through Trust Agreements and the Subordination Agent and its successors as Subordination Agent under the Intercreditor Agreement.

 

8


(c) This Agreement is not intended to, and shall not, provide any person not a party hereto (other than the Investors, and each of the beneficiaries of Section 6 hereof) with any rights of any nature whatsoever against any of the parties hereto, and no person not a party hereto (other than the Investors and each of the beneficiaries of Section 6 hereof) shall have any right, power or privilege in respect of, or have any benefit or interest arising out of, this Agreement. To the extent that this Agreement expressly confers upon, gives or grants any right, power, privilege, benefit, interest, remedy or claim to any of the beneficiaries of Section 6 hereof (including, but not limited to rights, powers, privileges, benefits, interests, remedies and claims under Section 6), each such party is hereby recognized as a third party beneficiary hereunder and may enforce any such right, power, privilege, benefit, interest, remedy or claim.

SECTION 9. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THIS AGREEMENT IS BEING DELIVERED IN THE STATE OF NEW YORK.

 

9


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.

 

SUN COUNTRY, INC.
By  

 

Name:
Title:
Address:
2005 Cargo Rd.
Minneapolis, MN 55450
Attn: Assistant General Counsel and Vice President
Email: rose.neale@suncountry.com
WILMINGTON TRUST, NATIONAL ASSOCIATION, not in its individual capacity, except as otherwise provided herein, but solely as Pass Through Trustee
By  

 

Name:
Title:
Address:

Wilmington Trust, National Association

1100 North Market Street

Wilmington, DE 19890-1605
Attn: Corporate Trust Administration
Email: cmay@wilmingtontrust.com

 

10


WILMINGTON TRUST, NATIONAL ASSOCIATION, not in its individual capacity, except as otherwise provided herein, but solely as Subordination Agent
By  

 

Name:
Title:
Address:

Wilmington Trust, National Association

1100 North Market Street

Wilmington, DE 19890-1605
Attn: Corporate Trust Administration
Email: cmay@wilmingtontrust.com

 

 

11


SCHEDULE I to

Note Purchase Agreement

AIRCRAFT AND EXPECTED CLOSING DATES

 

Aircraft Type

   Manufacturer’s
Serial Number
     Scheduled Closing Date  

737-8Q8

     30332        March 30, 2022  

737-8Q8

     30637        March 30, 2022  

737-8BK

     33017        March 30, 2022  

737-85P

     33971        March 30, 2022  

737-85P

     33976        March 30, 2022  

737-8K5

     37244        March 30, 2022  

737-8K5

     37240        March 30, 2022  

737-8JP

     39025        March 30, 2022  

737-8JP

     39028        March 30, 2022  

737-8JP

     41128        March 30, 2022  

737-8JP

     41131        March 30, 2022  

737-8JP

     30683        March 30, 2022  

737-8JP

     40865        September 15, 2022  


SCHEDULE II to

Note Purchase Agreement

TRUST SUPPLEMENTS

Trust Supplement dated as of the Agreement Date between the Company and the Pass Through Trustee in respect of Sun Country Pass Through Trust, Series 2022-1A.

Trust Supplement dated as of the Agreement Date between the Company and the Pass Through Trustee in respect of Sun Country Pass Through Trust, Series 2022-1B.


SCHEDULE III to

Note Purchase Agreement

REQUIRED TERMS

Equipment Notes

Obligor: Sun Country

Maximum Principal Amount:

The initial principal amount and amortization schedule of the Series A and Series B Equipment Notes issued with respect to an Aircraft shall be as set forth in the following table for that Aircraft (it being understood that if the Equipment Notes are issued on or after a scheduled payment date set forth below, such payment date will not be included in the amortization schedule and the initial principal amount shall be reduced by the amount otherwise due on such payment date):


Boeing 737-800

 

MSN 30332            
     Debt Balances      Principal Amortization  

Date

   Class A      Class B      Class A      Class B  

At Issuance

     7,541,000.00        2,399,000.00        —          —    

September 15, 2022

     6,841,000.00        2,176,250.00        700,000.00        222,750.00  

March 15, 2023

     6,141,000.00        1,953,500.00        700,000.00        222,750.00  

September 15, 2023

     5,441,000.00        1,730,750.00        700,000.00        222,750.00  

March 15, 2024

     4,741,000.00        1,508,000.00        700,000.00        222,750.00  

September 15, 2024

     4,041,000.00        1,285,250.00        700,000.00        222,750.00  

March 15, 2025

     3,341,000.00        1,062,500.00        700,000.00        222,750.00  

September 15, 2025

     2,641,000.00        839,750.00        700,000.00        222,750.00  

March 15, 2026

     —          —          2,641,000.00        839,750.00  

September 15, 2026

     —          —          —          —    

March 15, 2027

     —          —          —          —    

September 15, 2027

     —          —          —          —    

March 15, 2028

     —          —          —          —    

September 15, 2028

     —          —          —          —    

March 15, 2029

     —          —          —          —    

September 15, 2029

     —          —          —          —    

March 15, 2030

     —          —          —          —    

September 15, 2030

     —          —          —          —    

March 15, 2031

     —          —          —          —    

September 15, 2031

     —          —          —          —    

March 15, 2032

     —          —          —          —    

September 15, 2032

     —          —          —          —    

March 15, 2033

     —          —          —          —    

September 15, 2033

     —          —          —          —    

March 15, 2034

     —          —          —          —    

 

MSN 30637            
     Debt Balances      Principal Amortization  

Date

   Class A      Class B      Class A      Class B  

At Issuance

     4,411,000.00        1,404,000.00        —          —    

September 15, 2022

     4,001,500.00        1,273,750.00        409,500.00        130,250.00  

March 15, 2023

     3,592,000.00        1,143,500.00        409,500.00        130,250.00  

September 15, 2023

     3,182,500.00        1,013,250.00        409,500.00        130,250.00  

March 15, 2024

     2,773,000.00        883,000.00        409,500.00        130,250.00  

September 15, 2024

     2,363,500.00        752,750.00        409,500.00        130,250.00  

March 15, 2025

     1,954,000.00        622,500.00        409,500.00        130,250.00  

September 15, 2025

     1,544,500.00        492,250.00        409,500.00        130,250.00  

March 15, 2026

     —          —          1,544,500.00        492,250.00  


September 15, 2026

     —          —          —          —    

March 15, 2027

     —          —          —          —    

September 15, 2027

     —          —          —          —    

March 15, 2028

     —          —          —          —    

September 15, 2028

     —          —          —          —    

March 15, 2029

     —          —          —          —    

September 15, 2029

     —          —          —          —    

March 15, 2030

     —          —          —          —    

September 15, 2030

     —          —          —          —    

March 15, 2031

     —          —          —          —    

September 15, 2031

     —          —          —          —    

March 15, 2032

     —          —          —          —    

September 15, 2032

     —          —          —          —    

March 15, 2033

     —          —          —          —    

September 15, 2033

     —          —          —          —    

March 15, 2034

     —          —          —          —    

 

MSN 40865            
     Debt Balances      Principal Amortization  

Date

   Class A      Class B      Class A      Class B  

At Issuance

     11,963,000.00        3,807,000.00        —          —    

September 15, 2022

     11,963,000.00        3,807,000.00        —          —    

March 15, 2023

     11,337,500.00        3,569,000.00        625,500.00        238,000.00  

September 15, 2023

     10,712,000.00        3,331,000.00        625,500.00        238,000.00  

March 15, 2024

     10,086,500.00        3,093,000.00        625,500.00        238,000.00  

September 15, 2024

     9,461,000.00        2,855,000.00        625,500.00        238,000.00  

March 15, 2025

     8,835,500.00        2,617,000.00        625,500.00        238,000.00  

September 15, 2025

     8,210,000.00        2,379,000.00        625,500.00        238,000.00  

March 15, 2026

     7,584,500.00        2,141,000.00        625,500.00        238,000.00  

September 15, 2026

     6,959,000.00        1,903,000.00        625,500.00        238,000.00  

March 15, 2027

     6,333,500.00        1,665,000.00        625,500.00        238,000.00  

September 15, 2027

     5,708,000.00        1,427,000.00        625,500.00        238,000.00  

March 15, 2028

     5,082,500.00        1,189,000.00        625,500.00        238,000.00  

September 15, 2028

     4,457,000.00        951,000.00        625,500.00        238,000.00  

March 15, 2029

     3,831,500.00        —          625,500.00        951,000.00  

September 15, 2029

     3,206,000.00        —          625,500.00        —    

March 15, 2030

     2,580,500.00        —          625,500.00        —    

September 15, 2030

     1,955,000.00        —          625,500.00        —    

March 15, 2031

     —          —          1,955,000.00        —    

September 15, 2031

     —          —          —          —    

March 15, 2032

     —          —          —          —    

September 15, 2032

     —          —          —          —    

March 15, 2033

     —          —          —          —    

September 15, 2033

     —          —          —          —    

March 15, 2034

     —          —          —          —    

 

2

Note Purchase Agreement 07-1


MSN 33017            
     Debt Balances      Principal Amortization  

Date

   Class A      Class B      Class A      Class B  

At Issuance

     5,995,000.00        1,908,000.00        —          —    

September 15, 2022

     5,731,500.00        1,798,000.00        263,500.00        110,000.00  

March 15, 2023

     5,468,000.00        1,688,000.00        263,500.00        110,000.00  

September 15, 2023

     5,204,500.00        1,578,000.00        263,500.00        110,000.00  

March 15, 2024

     4,941,000.00        1,468,000.00        263,500.00        110,000.00  

September 15, 2024

     4,677,500.00        1,358,000.00        263,500.00        110,000.00  

March 15, 2025

     4,414,000.00        1,248,000.00        263,500.00        110,000.00  

September 15, 2025

     4,150,500.00        1,138,000.00        263,500.00        110,000.00  

March 15, 2026

     3,887,000.00        1,028,000.00        263,500.00        110,000.00  

September 15, 2026

     3,623,500.00        918,000.00        263,500.00        110,000.00  

March 15, 2027

     3,360,000.00        808,000.00        263,500.00        110,000.00  

September 15, 2027

     3,096,500.00        698,000.00        263,500.00        110,000.00  

March 15, 2028

     2,833,000.00        588,000.00        263,500.00        110,000.00  

September 15, 2028

     2,569,500.00        478,000.00        263,500.00        110,000.00  

March 15, 2029

     —          —          2,569,500.00        478,000.00  

September 15, 2029

     —          —          —          —    

March 15, 2030

     —          —          —          —    

September 15, 2030

     —          —          —          —    

March 15, 2031

     —          —          —          —    

September 15, 2031

     —          —          —          —    

March 15, 2032

     —          —          —          —    

September 15, 2032

     —          —          —          —    

March 15, 2033

     —          —          —          —    

September 15, 2033

     —          —          —          —    

March 15, 2034

     —          —          —          —    

 

MSN 33971            
     Debt Balances      Principal Amortization  

Date

   Class A      Class B      Class A      Class B  

At Issuance

     6,804,000.00        2,165,000.00        —          —    

September 15, 2022

     6,464,000.00        2,040,150.00        340,000.00        124,850.00  

March 15, 2023

     6,124,000.00        1,915,300.00        340,000.00        124,850.00  

September 15, 2023

     5,784,000.00        1,790,450.00        340,000.00        124,850.00  

March 15, 2024

     5,444,000.00        1,665,600.00        340,000.00        124,850.00  

September 15, 2024

     5,104,000.00        1,540,750.00        340,000.00        124,850.00  

 

3

Note Purchase Agreement 07-1


March 15, 2025

     4,764,000.00        1,415,900.00        340,000.00        124,850.00  

September 15, 2025

     4,424,000.00        1,291,050.00        340,000.00        124,850.00  

March 15, 2026

     4,084,000.00        1,166,200.00        340,000.00        124,850.00  

September 15, 2026

     3,744,000.00        1,041,350.00        340,000.00        124,850.00  

March 15, 2027

     3,404,000.00        916,500.00        340,000.00        124,850.00  

September 15, 2027

     3,064,000.00        791,650.00        340,000.00        124,850.00  

March 15, 2028

     2,724,000.00        666,800.00        340,000.00        124,850.00  

September 15, 2028

     2,384,000.00        541,950.00        340,000.00        124,850.00  

March 15, 2029

     2,044,000.00        —          340,000.00        541,950.00  

September 15, 2029

     1,704,000.00        —          340,000.00        —    

March 15, 2030

     —          —          1,704,000.00        —    

September 15, 2030

     —          —          —          —    

March 15, 2031

     —          —          —          —    

September 15, 2031

     —          —          —          —    

March 15, 2032

     —          —          —          —    

September 15, 2032

     —          —          —          —    

March 15, 2033

     —          —          —          —    

September 15, 2033

     —          —          —          —    

March 15, 2034

     —          —          —          —    

 

MSN 33976            
     Debt Balances      Principal Amortization  

Date

   Class A      Class B      Class A      Class B  

At Issuance

     6,969,000.00        2,217,000.00        —          —    

September 15, 2022

     6,610,500.00        2,089,150.00        358,500.00        127,850.00  

March 15, 2023

     6,252,000.00        1,961,300.00        358,500.00        127,850.00  

September 15, 2023

     5,893,500.00        1,833,450.00        358,500.00        127,850.00  

March 15, 2024

     5,535,000.00        1,705,600.00        358,500.00        127,850.00  

September 15, 2024

     5,176,500.00        1,577,750.00        358,500.00        127,850.00  

March 15, 2025

     4,818,000.00        1,449,900.00        358,500.00        127,850.00  

September 15, 2025

     4,459,500.00        1,322,050.00        358,500.00        127,850.00  

March 15, 2026

     4,101,000.00        1,194,200.00        358,500.00        127,850.00  

September 15, 2026

     3,742,500.00        1,066,350.00        358,500.00        127,850.00  

March 15, 2027

     3,384,000.00        938,500.00        358,500.00        127,850.00  

September 15, 2027

     3,025,500.00        810,650.00        358,500.00        127,850.00  

March 15, 2028

     2,667,000.00        682,800.00        358,500.00        127,850.00  

September 15, 2028

     2,308,500.00        554,950.00        358,500.00        127,850.00  

March 15, 2029

     1,950,000.00        —          358,500.00        554,950.00  

September 15, 2029

     1,591,500.00        —          358,500.00        —    

March 15, 2030

     1,233,000.00        —          358,500.00        —    

September 15, 2030

     —          —          1,233,000.00        —    

March 15, 2031

     —          —          —          —    

September 15, 2031

     —          —          —          —    

 

4

Note Purchase Agreement 07-1


March 15, 2032

     —          —          —          —    

September 15, 2032

     —          —          —          —    

March 15, 2033

     —          —          —          —    

September 15, 2033

     —          —          —          —    

March 15, 2034

     —          —          —          —    

 

MSN 37244            
     Debt Balances      Principal Amortization  

Date

   Class A      Class B      Class A      Class B  

At Issuance

     12,788,000.00        4,069,000.00        —          —    

September 15, 2022

     12,119,500.00        3,834,250.00        668,500.00        234,750.00  

March 15, 2023

     11,451,000.00        3,599,500.00        668,500.00        234,750.00  

September 15, 2023

     10,782,500.00        3,364,750.00        668,500.00        234,750.00  

March 15, 2024

     10,114,000.00        3,130,000.00        668,500.00        234,750.00  

September 15, 2024

     9,445,500.00        2,895,250.00        668,500.00        234,750.00  

March 15, 2025

     8,777,000.00        2,660,500.00        668,500.00        234,750.00  

September 15, 2025

     8,108,500.00        2,425,750.00        668,500.00        234,750.00  

March 15, 2026

     7,440,000.00        2,191,000.00        668,500.00        234,750.00  

September 15, 2026

     6,771,500.00        1,956,250.00        668,500.00        234,750.00  

March 15, 2027

     6,103,000.00        1,721,500.00        668,500.00        234,750.00  

September 15, 2027

     5,434,500.00        1,486,750.00        668,500.00        234,750.00  

March 15, 2028

     4,766,000.00        1,252,000.00        668,500.00        234,750.00  

September 15, 2028

     4,097,500.00        1,017,250.00        668,500.00        234,750.00  

March 15, 2029

     3,429,000.00        —          668,500.00        1,017,250.00  

September 15, 2029

     2,760,500.00        —          668,500.00        —    

March 15, 2030

     2,092,000.00        —          668,500.00        —    

September 15, 2030

     1,423,500.00        —          668,500.00        —    

March 15, 2031

     —          —          1,423,500.00        —    

September 15, 2031

     —          —          —          —    

March 15, 2032

     —          —          —          —    

September 15, 2032

     —          —          —          —    

March 15, 2033

     —          —          —          —    

September 15, 2033

     —          —          —          —    

March 15, 2034

     —          —          —          —    

 

MSN 37240            
     Debt Balances      Principal Amortization  

Date

   Class A      Class B      Class A      Class B  

At Issuance

     14,654,000.00        4,662,000.00        —          —    

September 15, 2022

     13,983,500.00        4,393,000.00        670,500.00        269,000.00  

March 15, 2023

     13,313,000.00        4,124,000.00        670,500.00        269,000.00  

September 15, 2023

     12,642,500.00        3,855,000.00        670,500.00        269,000.00  

 

5

Note Purchase Agreement 07-1


March 15, 2024

     11,972,000.00        3,586,000.00        670,500.00        269,000.00  

September 15, 2024

     11,301,500.00        3,317,000.00        670,500.00        269,000.00  

March 15, 2025

     10,631,000.00        3,048,000.00        670,500.00        269,000.00  

September 15, 2025

     9,960,500.00        2,779,000.00        670,500.00        269,000.00  

March 15, 2026

     9,290,000.00        2,510,000.00        670,500.00        269,000.00  

September 15, 2026

     8,619,500.00        2,241,000.00        670,500.00        269,000.00  

March 15, 2027

     7,949,000.00        1,972,000.00        670,500.00        269,000.00  

September 15, 2027

     7,278,500.00        1,703,000.00        670,500.00        269,000.00  

March 15, 2028

     6,608,000.00        1,434,000.00        670,500.00        269,000.00  

September 15, 2028

     5,937,500.00        1,165,000.00        670,500.00        269,000.00  

March 15, 2029

     5,267,000.00        —          670,500.00        1,165,000.00  

September 15, 2029

     4,596,500.00        —          670,500.00        —    

March 15, 2030

     3,926,000.00        —          670,500.00        —    

September 15, 2030

     3,255,500.00        —          670,500.00        —    

March 15, 2031

     —          —          3,255,500.00        —    

September 15, 2031

     —          —          —          —    

March 15, 2032

     —          —          —          —    

September 15, 2032

     —          —          —          —    

March 15, 2033

     —          —          —          —    

September 15, 2033

     —          —          —          —    

March 15, 2034

     —          —          —          —    

 

MSN 39025            
     Debt Balances      Principal Amortization  

Date

   Class A      Class B      Class A      Class B  

At Issuance

     15,338,000.00        4,880,000.00        —          —    

September 15, 2022

     14,636,250.00        4,598,600.00        701,750.00        281,400.00  

March 15, 2023

     13,934,500.00        4,317,200.00        701,750.00        281,400.00  

September 15, 2023

     13,232,750.00        4,035,800.00        701,750.00        281,400.00  

March 15, 2024

     12,531,000.00        3,754,400.00        701,750.00        281,400.00  

September 15, 2024

     11,829,250.00        3,473,000.00        701,750.00        281,400.00  

March 15, 2025

     11,127,500.00        3,191,600.00        701,750.00        281,400.00  

September 15, 2025

     10,425,750.00        2,910,200.00        701,750.00        281,400.00  

March 15, 2026

     9,724,000.00        2,628,800.00        701,750.00        281,400.00  

September 15, 2026

     9,022,250.00        2,347,400.00        701,750.00        281,400.00  

March 15, 2027

     8,320,500.00        2,066,000.00        701,750.00        281,400.00  

September 15, 2027

     7,618,750.00        1,784,600.00        701,750.00        281,400.00  

March 15, 2028

     6,917,000.00        1,503,200.00        701,750.00        281,400.00  

September 15, 2028

     6,215,250.00        1,221,800.00        701,750.00        281,400.00  

March 15, 2029

     5,513,500.00        —          701,750.00        1,221,800.00  

September 15, 2029

     4,811,750.00        —          701,750.00        —    

March 15, 2030

     4,110,000.00        —          701,750.00        —    

September 15, 2030

     3,408,250.00        —          701,750.00        —    

 

6

Note Purchase Agreement 07-1


March 15, 2031

     —          —          3,408,250.00        —    

September 15, 2031

     —          —          —          —    

March 15, 2032

     —          —          —          —    

September 15, 2032

     —          —          —          —    

March 15, 2033

     —          —          —          —    

September 15, 2033

     —          —          —          —    

March 15, 2034

     —          —          —          —    

 

MSN 39028            
     Debt Balances      Principal Amortization  

Date

   Class A      Class B      Class A      Class B  

At Issuance

     15,827,000.00        5,036,000.00        —          —    

September 15, 2022

     15,103,000.00        4,745,500.00        724,000.00        290,500.00  

March 15, 2023

     14,379,000.00        4,455,000.00        724,000.00        290,500.00  

September 15, 2023

     13,655,000.00        4,164,500.00        724,000.00        290,500.00  

March 15, 2024

     12,931,000.00        3,874,000.00        724,000.00        290,500.00  

September 15, 2024

     12,207,000.00        3,583,500.00        724,000.00        290,500.00  

March 15, 2025

     11,483,000.00        3,293,000.00        724,000.00        290,500.00  

September 15, 2025

     10,759,000.00        3,002,500.00        724,000.00        290,500.00  

March 15, 2026

     10,035,000.00        2,712,000.00        724,000.00        290,500.00  

September 15, 2026

     9,311,000.00        2,421,500.00        724,000.00        290,500.00  

March 15, 2027

     8,587,000.00        2,131,000.00        724,000.00        290,500.00  

September 15, 2027

     7,863,000.00        1,840,500.00        724,000.00        290,500.00  

March 15, 2028

     7,139,000.00        1,550,000.00        724,000.00        290,500.00  

September 15, 2028

     6,415,000.00        1,259,500.00        724,000.00        290,500.00  

March 15, 2029

     5,691,000.00        —          724,000.00        1,259,500.00  

September 15, 2029

     4,967,000.00        —          724,000.00        —    

March 15, 2030

     4,243,000.00        —          724,000.00        —    

September 15, 2030

     3,519,000.00        —          724,000.00        —    

March 15, 2031

     —          —          3,519,000.00        —    

September 15, 2031

     —          —          —          —    

March 15, 2032

     —          —          —          —    

September 15, 2032

     —          —          —          —    

March 15, 2033

     —          —          —          —    

September 15, 2033

     —          —          —          —    

March 15, 2034

     —          —          —          —    

 

7

Note Purchase Agreement 07-1


MSN 41128            
     Debt Balances      Principal Amortization  

Date

   Class A      Class B      Class A      Class B  

At Issuance

     15,664,000.00        4,984,000.00        —          —    

September 15, 2022

     14,947,500.00        4,696,500.00        716,500.00        287,500.00  

March 15, 2023

     14,231,000.00        4,409,000.00        716,500.00        287,500.00  

September 15, 2023

     13,514,500.00        4,121,500.00        716,500.00        287,500.00  

March 15, 2024

     12,798,000.00        3,834,000.00        716,500.00        287,500.00  

September 15, 2024

     12,081,500.00        3,546,500.00        716,500.00        287,500.00  

March 15, 2025

     11,365,000.00        3,259,000.00        716,500.00        287,500.00  

September 15, 2025

     10,648,500.00        2,971,500.00        716,500.00        287,500.00  

March 15, 2026

     9,932,000.00        2,684,000.00        716,500.00        287,500.00  

September 15, 2026

     9,215,500.00        2,396,500.00        716,500.00        287,500.00  

March 15, 2027

     8,499,000.00        2,109,000.00        716,500.00        287,500.00  

September 15, 2027

     7,782,500.00        1,821,500.00        716,500.00        287,500.00  

March 15, 2028

     7,066,000.00        1,534,000.00        716,500.00        287,500.00  

September 15, 2028

     6,349,500.00        1,246,500.00        716,500.00        287,500.00  

March 15, 2029

     5,633,000.00        —          716,500.00        1,246,500.00  

September 15, 2029

     4,916,500.00        —          716,500.00        —    

March 15, 2030

     4,200,000.00        —          716,500.00        —    

September 15, 2030

     3,483,500.00        —          716,500.00        —    

March 15, 2031

     —          —          3,483,500.00        —    

September 15, 2031

     —          —          —          —    

March 15, 2032

     —          —          —          —    

September 15, 2032

     —          —          —          —    

March 15, 2033

     —          —          —          —    

September 15, 2033

     —          —          —          —    

March 15, 2034

     —          —          —          —    

 

MSN 41131            
     Debt Balances      Principal Amortization  

Date

   Class A      Class B      Class A      Class B  

At Issuance

     15,823,000.00        5,035,000.00        —          —    

September 15, 2022

     15,099,000.00        4,744,500.00        724,000.00        290,500.00  

March 15, 2023

     14,375,000.00        4,454,000.00        724,000.00        290,500.00  

September 15, 2023

     13,651,000.00        4,163,500.00        724,000.00        290,500.00  

March 15, 2024

     12,927,000.00        3,873,000.00        724,000.00        290,500.00  

September 15, 2024

     12,203,000.00        3,582,500.00        724,000.00        290,500.00  

March 15, 2025

     11,479,000.00        3,292,000.00        724,000.00        290,500.00  

September 15, 2025

     10,755,000.00        3,001,500.00        724,000.00        290,500.00  

March 15, 2026

     10,031,000.00        2,711,000.00        724,000.00        290,500.00  

September 15, 2026

     9,307,000.00        2,420,500.00        724,000.00        290,500.00  

March 15, 2027

     8,583,000.00        2,130,000.00        724,000.00        290,500.00  

September 15, 2027

     7,859,000.00        1,839,500.00        724,000.00        290,500.00  

March 15, 2028

     7,135,000.00        1,549,000.00        724,000.00        290,500.00  

September 15, 2028

     6,411,000.00        1,258,500.00        724,000.00        290,500.00  

March 15, 2029

     5,687,000.00        —          724,000.00        1,258,500.00  

September 15, 2029

     4,963,000.00        —          724,000.00        —    

 

8

Note Purchase Agreement 07-1


March 15, 2030

     4,239,000.00        —          724,000.00        —    

September 15, 2030

     3,515,000.00        —          724,000.00        —    

March 15, 2031

     —          —          3,515,000.00        —    

September 15, 2031

     —          —          —          —    

March 15, 2032

     —          —          —          —    

September 15, 2032

     —          —          —          —    

March 15, 2033

     —          —          —          —    

September 15, 2033

     —          —          —          —    

March 15, 2034

     —          —          —          —    

 

MSN 30683            
     Debt Balances      Principal Amortization  

Date

   Class A      Class B      Class A      Class B  

At Issuance

     9,053,000.00        2,881,000.00        —          —    

September 15, 2022

     8,607,000.00        2,714,800.00        446,000.00        166,200.00  

March 15, 2023

     8,161,000.00        2,548,600.00        446,000.00        166,200.00  

September 15, 2023

     7,715,000.00        2,382,400.00        446,000.00        166,200.00