1
Exhibit 4.27
_______________________________________________________________________________
FIRST AMENDED AND RESTATED
TRUST INDENTURE AND SECURITY AGREEMENT
[GPA 1991 AWA-E1]
Dated as of November __, 1996
between
WILMINGTON TRUST COMPANY,
not in its individual capacity
except as expressly provided herein
but solely as Owner Trustee
and
FLEET NATIONAL BANK,
not in its individual capacity
except as expressly provided herein
but solely as Indenture Trustee
________________________________________________________________________________
Secured Equipment Notes Covering
One IAE International
Aero Engines AG V2500-A1 Engine
Manufacturer's Serial No. V0025
Leased by America West Airlines, Inc.
________________________________________________________________________________
2
TABLE OF CONTENTS
Page
----
GRANTING CLAUSE ........................................................... 3
HABENDUM CLAUSE ........................................................... 6
ARTICLE I
DEFINITIONS
SECTION 1.01. Special Definitions ........................................ 8
ARTICLE II
THE EQUIPMENT NOTES
SECTION 2.01. Form of Equipment Notes .................................... 20
SECTION 2.02. Issuance and Terms of Equipment Notes ...................... 26
SECTION 2.03. Payments from Trust Indenture Estate
Only ...................................................... 29
SECTION 2.04. Method of Payment .......................................... 31
SECTION 2.05. Application of Payments .................................... 33
SECTION 2.06. Termination of Interest in Trust Indenture Estate .......... 34
SECTION 2.07. Registration, Transfer and Exchange of Equipment Notes ..... 34
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Equipment Notes ....... 36
SECTION 2.09. Payment of Expenses on Transfer; Cancellation .............. 36
SECTION 2.10. Mandatory Redemptions of Equipment Notes ................... 37
SECTION 2.11. Redemptions; Notice of Redemption .......................... 37
SECTION 2.12. Option to Purchase Equipment Notes ......................... 38
SECTION 2.13. Subordination .............................................. 39
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
SECTION 3.01. Certain Rent Distributions ................................. 40
SECTION 3.02. Event of Loss and Replacement .............................. 42
SECTION 3.03. Payment After Indenture Event of Default, etc .............. 43
SECTION 3.04. Certain Payments ........................................... 46
SECTION 3.05. Other Payments ............................................. 47
SECTION 3.06. Payments to Owner Trustee .................................. 47
SECTION 3.07. Investment of Amounts Held by Indenture Trustee ............ 47
(i)
3
Page
----
ARTICLE IV
COVENANTS OF TRUST COMPANY AND OWNER
TRUSTEE; INDENTURE EVENTS OF DEFAULT;
REMEDIES OF INDENTURE TRUSTEE
SECTION 4.01. Covenants of Trust Company and Owner Trustee ......... 48
SECTION 4.02. Indenture Events of Default .......................... 50
SECTION 4.03. Certain Rights ....................................... 53
SECTION 4.04. Remedies ............................................. 55
SECTION 4.05. Return of the Engine, etc ............................ 58
SECTION 4.06. Remedies Cumulative .................................. 60
SECTION 4.07. Discontinuance of Proceedings ........................ 60
SECTION 4.08. Waiver of Past Indenture Defaults .................... 60
SECTION 4.09. Indenture Trustee May Prove Debt ..................... 61
SECTION 4.10. Limitations on Suits by Note Holders ................. 63
SECTION 4.11. Unconditional Right of Note Holders to Receive
Principal, Interest and Premium, and to Institute
Certain Suits ...................................... 63
ARTICLE V
DUTIES OF THE INDENTURE TRUSTEE
SECTION 5.01. Notice of Indenture Event of Default ................. 64
SECTION 5.02. Action Upon Instructions ............................. 65
SECTION 5.03. Indemnification ...................................... 65
SECTION 5.04. No Duties Except as Specified in Indenture or
Instructions ....................................... 66
SECTION 5.05. No Action Except Under Lease, Refunding Agreement,
Indenture or Instructions .......................... 66
SECTION 5.06. Replacement Engine ................................... 67
SECTION 5.07. Indenture Supplements for Replacements ............... 69
SECTION 5.08. Effect of Replacement ................................ 69
SECTION 5.09. Notices, etc.......................................... 69
SECTION 5.10. Certain Rights of Owner Trustee and Owner Participant. 70
SECTION 5.11. Evidence of Action Taken by Note Holder .............. 72
SECTION 5.12. Right of Revocation of Action Taken .................. 72
(ii)
4
Page
----
ARTICLE VI
THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE
SECTION 6.01. Acceptance of Trusts and Duties ................... 73
SECTION 6.02. Absence of Duties ................................. 74
SECTION 6.03. No Representations or Warranties as to Engine or
Documents ....................................... 74
SECTION 6.04. No Segregation of Moneys; No Interest ............. 75
SECTION 6.05. Reliance; Agents; Advice of Counsel ............... 75
SECTION 6.06. Capacity in Which Acting .......................... 76
SECTION 6.07. Compensation ...................................... 76
SECTION 6.08. May Become Note Holder ............................ 76
SECTION 6.09. Further Assurances; Financing Statements .......... 76
ARTICLE VII
INDEMNIFICATION OF INDENTURE TRUSTEE BY OWNER TRUSTEE
SECTION 7.01. Scope of Indemnification .......................... 77
SECTION 7.02. Exculpation and Release of Liability .............. 78
ARTICLE VIII
SUCCESSOR TRUSTEES AND SEPARATE TRUSTEES
SECTION 8.01. Notice of Successor Owner Trustee ................. 78
SECTION 8.02. Resignation and Removal of Indenture
Trustee; Appointment of Successor ............... 78
SECTION 8.03. Appointment of Separate Trustees .................. 80
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS TO THIS
INDENTURE AND OTHER DOCUMENTS
SECTION 9.01. Lease Amendments and Supplemental
Indentures ..................................... 82
SECTION 9.02. Effect of Supplemental Indenture .................. 85
SECTION 9.03. Documents to Be Given to Trustee .................. 85
SECTION 9.04. Notation on Notes in Respect of
Supplemental Indentures ......................... 85
SECTION 9.05. Trustees Protected ................................ 86
SECTION 9.06. Documents Mailed to Note Holders .................. 86
SECTION 9.07. No Request Necessary for Lease
Supplement or Indenture Supplement .............. 86
SECTION 9.08. Notices to Liquidity Provider ..................... 86
(iii)
5
Page
----
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Termination of Indenture ............................ 87
SECTION 10.02. No Legal Title to Trust Indenture Estate in Note
Holders ........................................... 87
SECTION 10.03. Sale of Engine by Indenture Trustee is Binding ...... 87
SECTION 10.04. Indenture for Benefit of Owner Trustee, Indenture
Trustee, Owner Participant, Lessee
and Note Holders .................................. 88
SECTION 10.05. No Action Contrary to Lessee's Rights
Under the Lease ................................... 88
SECTION 10.06. Notices ............................................. 88
SECTION 10.07. Severability ........................................ 89
SECTION 10.08. No Oral Modifications or Continuing
Waivers ........................................... 89
SECTION 10.09. Successors and Assigns .............................. 89
SECTION 10.10. Headings ............................................ 89
SECTION 10.11. Normal Commercial Relations ......................... 89
SECTION 10.12. Governing Law; Counterpart Form ..................... 90
SECTION 10.13. Section 1110 ........................................ 90
EXHIBIT A - Form of Trust Indenture Supplement
SCHEDULE I - Equipment Notes Amortization
SCHEDULE II - Pass Through Trust Agreements
(iv)
6
FIRST AMENDED AND RESTATED
TRUST INDENTURE AND SECURITY AGREEMENT
[GPA 1991 AWA-E1]
FIRST AMENDED AND RESTATED TRUST INDENTURE AND SECURITY AGREEMENT [GPA
1991 AWA-E1] (this "First Amended and Restated Indenture" or this "Indenture")
dated as of November , 1996, between WILMINGTON TRUST COMPANY, a Delaware
banking corporation, not in its individual capacity except as otherwise
specifically set forth herein, but solely as owner trustee under the Trust
Agreement referred to below (in such capacity, together with its successors,
the "Owner Trustee"), and FLEET NATIONAL BANK (formerly known as Fleet National
Bank of Connecticut, Shawmut Bank Connecticut, National Association, and The
Connecticut National Bank), a national banking association, not in its
individual capacity except as otherwise specifically set forth herein, but
solely as indenture trustee hereunder (in such capacity, together with its
successors, the "Indenture Trustee").
W I T N E S S E T H :
WHEREAS, all capitalized terms used herein shall have the respective
meanings set forth or referred to in Article I hereof;
WHEREAS, the Owner Participant and Wilmington Trust Company entered into
the Trust Agreement [GPA 1991 AWA-E1] dated as of March 15, 1991, as
supplemented by Trust Agreement Supplement [GPA 1991 AWA-E1] No. 1 dated March
27, 1991, and as further supplemented by Trust Agreement Supplement [GPA 1991
AWA-E1] No. 2 dated the date hereof (as amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof, hereof and of
the Refunding Agreement, the "Trust Agreement"), whereby, among other things,
Wilmington Trust Company has declared a certain trust for the use and benefit
of the Owner Participant, subject, however, to the Trust Indenture Estate
created pursuant hereto for the use and benefit of (to the extent set forth
herein), and with the priority of certain payments to, the Holders of Equipment
Notes issued hereunder, and the Owner Trustee is authorized and directed to
execute and deliver this Indenture;
WHEREAS, (i) the Owner Trustee and the Indenture Trustee entered into the
Trust Indenture and Security Agreement [GPA 1991 AWA-E1] dated as of March 15,
1991, as supplemented by Trust Indenture Supplement No. 1 dated March 27, 1991,
which were recorded by the Federal Aviation Administration on March 28, 1991 as
one instrument and assigned Conveyance No. 259534, as amended by Amendment No.
1 dated March 27, 1992, recorded by the Federal
Trust Indenture
7
- 2 -
Aviation Administration on April 30, 1992 and assigned Conveyance No. DD002565,
and as further amended by Amendment No. 2 dated as of July 29, 1993, recorded
by the Federal Aviation Administration on August 4, 1993 and assigned
Conveyance No. F59677 (collectively, as so amended, supplemented or otherwise
modified to the date hereof, the "Original Indenture"), (ii) the Owner Trustee
and the Original Head Lessee entered into the Engine Lease Agreement [GPA 1991
AWA-E1] dated as of March 15, 1991, as supplemented by Lease Supplement [GPA
1991 AWA-E1] No. 1 dated March 27, 1991, which were recorded by the Federal
Aviation Administration on March 28, 1991 as one instrument and assigned
Conveyance No. 259535 (collectively, as so amended, supplemented or otherwise
modified to the date hereof, the "Original Lease") and (iii) pursuant to the
Original Indenture, the Owner Trustee issued and sold to the Lenders (as
defined in the Original Indenture) the Original Loan Certificates;
WHEREAS, the parties have agreed to (i) amend and restate the Original
Lease pursuant to Amendment No. 1 to Engine Lease Agreement and Termination
dated as of the date hereof between the Original Head Lessee, as assignor and
the Original Sublessee, as assignee, the Owner Trustee and the Indenture
Trustee (as so amended and restated, the "Amended and Restated Lease" or the
"Lease") and to enter into Lease Supplement No. 2 and (ii) cause the
implementation of the Refinancing Transaction pursuant to which, among other
things, the Original Loan Certificates issued pursuant to the Original
Indenture shall be prepaid and new Equipment Notes shall be issued to the Pass
Through Trustees (or their designee);
WHEREAS, in light of the foregoing and in anticipation of the Refinancing
Transaction, the parties desire by this First Amended and Restated Indenture,
among other things, (i) to amend and restate in its entirety the Original
Indenture, (ii) to provide for the issuance by the Owner Trustee of the
Equipment Notes and (iii) to provide for the assignment, mortgage and pledge by
the Owner Trustee to the Indenture Trustee, as part of the Trust Indenture
Estate hereunder, among other things, of certain of the Owner Trustee's estate,
right, title and interest in and to the Engine and, except as hereinafter
expressly provided, all of the Owner Trustee's right, title and interest in, to
and under the Lease (as amended and restated to date and as the same may at any
time and from time to time be further amended, restated or otherwise modified
in accordance with the terms thereof and hereof) and all payments and other
amounts received hereunder or thereunder in accordance with the terms hereof or
thereof, as security for, among other things, the Owner Trustee's obligations
to the Indenture Trustee, for the ratable benefit and security of the Note
Holders, subject to Section 2.13 and Article III hereof;
Trust Indenture
8
- 3 -
WHEREAS, all things have been done to make the Equipment Notes, when
executed by the Owner Trustee and authenticated, issued and delivered by the
Indenture Trustee hereunder, the legal, valid and binding obligations of the
Owner Trustee; and
WHEREAS, all things necessary to make this First Amended and Restated
Indenture the legal, valid and binding obligation of the Owner Trustee, for the
uses and purposes herein set forth, in accordance with its terms, have been
done and performed and have happened;
GRANTING CLAUSE
NOW, THEREFORE, THIS FIRST AMENDED AND RESTATED TRUST INDENTURE AND
SECURITY AGREEMENT WITNESSETH, that, to secure the prompt payment of the
Principal Amount of, interest on, Make-Whole Amount, if any, and all other
amounts due with respect to, all Equipment Notes from time to time outstanding
hereunder and the performance and observance by the Owner Trustee of all the
agreements, covenants and provisions contained herein and in the Refunding
Agreement and the Equipment Notes, for the benefit of the Note Holders, and the
prompt payment of any and all amounts from time to time owing hereunder and
under the Refunding Agreement by the Owner Trustee, the Owner Participant and
the Lessee to the Note Holders and for the uses and purposes and subject to the
terms and provisions hereof, and in consideration of the premises and of the
covenants herein contained, and of the acceptance of the Equipment Notes by the
Holders thereof, and of the sum of $1 paid to the Owner Trustee by the
Indenture Trustee at or before the delivery hereof, the receipt whereof is
hereby acknowledged, the Owner Trustee has granted, bargained, sold, assigned,
transferred, conveyed, mortgaged, pledged and confirmed, and does hereby grant,
bargain, sell, assign, transfer, convey, mortgage, pledge and confirm, unto the
Indenture Trustee, its successors and assigns, for the security and benefit of
the Note Holders from time to time, a security interest in and mortgage Lien on
all estate, right, title and interest of the Owner Trustee in, to and under the
following described property, rights, interests and privileges, whether now or
hereafter acquired, other than Excepted Payments and Excepted Rights (which
collectively, excluding Excepted Payments and Excepted Rights but including all
property hereafter specifically subjected to the Lien of this Indenture by any
Indenture Supplement or any indenture supplemental hereto, are included within
the Trust Indenture Estate), to wit:
(1) the Engine and all replacements thereof and substitutions
therefor to which the Owner Trustee shall from time to time acquire an
interest under the Lease, all as
Trust Indenture
9
- 4 -
more particularly described in the Indenture Supplement executed and
delivered with respect to the Engine or any such replacements or
substitutions therefor, as provided in this Indenture, and all records,
logs and other documents to which the Owner Trustee shall from time to
time acquire an interest at any time maintained by the Lessee with
respect to the foregoing property;
(2) the Lease (including each Lease Supplement) and all Rent
thereunder, including, without limitation, all amounts of Basic Rent,
Supplemental Rent and payments of any kind thereunder; the Refunding
Agreement; the Purchase Agreement (to the extent assigned by the Purchase
Agreement Warranties Assignment); the Purchase Agreement Warranties
Assignment, with the Consents and Agreements attached thereto; and the
Warranty ▇▇▇▇ of Sale; in each case including, without limitation, (x)
all rights of the Owner Trustee to exercise any election or option or to
make any decision or determination or to give any notice, consent, waiver
or approval or to take any other action under or in respect of any such
document or to accept surrender or redelivery of the Engine or any part
thereof, as well as all the rights, powers and remedies on the part of
the Owner Trustee, whether arising under any such document or by statute
or at law or in equity, or otherwise, arising out of any Lease Event of
Default, and (y) any right to restitution from the Lessee, the
Manufacturer, or any other Person in respect of any determination of
invalidity of any such document;
(3) each Sublease Assignment and each Assigned Sublease (to the
extent assigned under such Sublease Assignment), and including, without
limitation, all rents or other payments of any kind made under such
Assigned Sublease (to the extent assigned under such Sublease
Assignment), all collateral security or credit support (in the nature of
a guarantee, letter of credit, credit insurance, Lien on or security
interest in any property or otherwise) for the obligations of the
Permitted Sublessee thereunder (to the extent assigned under such
Sublease Assignment) and all rights of the Owner Trustee to exercise any
election or option or to give any notice, consent, waiver, or approval
under or with respect of any thereof or to accept any surrender of the
Engine or any part thereof as well as any rights, powers or remedies on
the part of the Owner Trustee (in each case to the extent assigned to the
Owner Trustee), whether arising under any Assigned Sublease or any
Sublease Assignment or by statute or at law or in equity, or otherwise,
arising out of any default under any Assigned Sublease;
Trust Indenture
10
- 5 -
(4) all tolls, rents, issues, profits, revenues and other income of
the property subjected or required to be subjected to the Lien of this
Indenture, including, without limitation, all payments or proceeds
payable to the Owner Trustee after termination of the Lease with respect
to the Engine as the result of the sale, lease or other disposition
thereof, and all estate, right, title and interest of every nature
whatsoever of the Owner Trustee in and to the same and every part
thereof;
(5) all requisition proceeds with respect to the Engine or any part
thereof (to the extent of the Owner Trustee's interest therein pursuant
to the Lease), and all insurance proceeds with respect to the Engine or
any part thereof, including but not limited to the insurance required
under Section 12 of the Lease or under any comparable provision of any
Assigned Sublease (but excluding any excess insurance maintained by the
Lessee and not required under Section 12 of the Lease or any Assigned
Sublease);
(6) all moneys and securities now or hereafter paid or deposited or
required to be paid or deposited to or with the Indenture Trustee by or
for the account of the Owner Trustee pursuant to any term of any
Operative Document and held or required to be held by the Indenture
Trustee hereunder;
(7) all rights of the Owner Trustee to amounts paid or payable by
the Lessee to the Owner Trustee under the Refunding Agreement and all
rights of the Owner Trustee to enforce payments of any such amounts
thereunder; and
(8) all proceeds of the foregoing.
PROVIDED, HOWEVER, that the foregoing Granting Clause shall not subject to the
Lien of this Indenture any (i) Excepted Payments, (ii) Excepted Rights or (iii)
payment in amounts which have been distributed to the Owner Trustee or any
other Person in accordance with the provisions of this Agreement, AND SUBJECT
TO Sections 2.03, 5.10 and 9.01 hereof.
Concurrently with the delivery of the Original Indenture, the Owner Trustee
delivered to the Indenture Trustee the chattel paper original executed
counterparts of the Original Lease and Lease Supplement No. 1, certified copies
of the Purchase Agreement Warranties Assignment and the Consents and Agreements
attached thereto, and the original Warranty ▇▇▇▇ of Sale. Concurrently with
the delivery of this Indenture, the Owner Trustee is delivering to the
Indenture Trustee the chattel paper original executed counterparts of the
Amended and Restated Lease and Lease Supplement No. 2. All property referred
to in this Granting Clause, whenever acquired by the Owner Trustee, shall
Trust Indenture
11
- 6 -
secure all obligations under and with respect to the Equipment Notes at any
time outstanding. Any and all properties referred to in this Granting Clause
which are hereafter acquired by the Owner Trustee, shall, without further
conveyance, assignment or act by the Owner Trustee or the Indenture Trustee
thereby become and be subject to the security interest hereby granted as fully
and completely as though specifically described herein.
HABENDUM CLAUSE
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, in trust for the benefit and
security of the Note Holders from time to time, except as set forth in Section
2.13 and Article III hereof without any preference, distinction or priority of
any one Equipment Note over any other regardless of when issued, and for the
uses and purposes and subject to the terms and provisions set forth in this
Indenture.
It is expressly agreed that anything herein contained to the contrary
notwithstanding, the Owner Trustee shall remain liable under the Indenture
Documents to perform all of the obligations assumed by it thereunder, all in
accordance with and pursuant to the terms and provisions thereof, and the
Indenture Trustee and the Note Holders shall have no obligation or liability
under any thereof by reason of or arising out of the assignment hereunder, nor
shall the Indenture Trustee or the Note Holders be required or obligated in any
manner to perform or fulfill any obligations of the Owner Trustee under or
pursuant to any of the Indenture Documents, or except as herein expressly
provided, to make any payment, or to make any inquiry as to the nature or
sufficiency of any payment received by it, or present or file any claim or take
any action to collect or enforce the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
The Owner Trustee does hereby constitute the Indenture Trustee the true
and lawful attorney of the Owner Trustee, irrevocably, with full power (in the
name of the Owner Trustee or otherwise) to ask, require, demand, receive and
give acquittance for any and all moneys and claims for moneys (in each case
including insurance and requisition proceeds but excluding Excepted Payments
and Excepted Rights) due and to become due to the Owner Trustee under or
arising out of the Indenture Documents and all other property which now or
hereafter constitutes part of the Trust Indenture Estate, to endorse any checks
or other instruments or orders in connection therewith and to file any claims
or to take any action or to institute any proceedings which the Indenture
Trustee may deem to be necessary or advisable in the premises. Under the
Lease, the Lessee is directed to make
Trust Indenture
12
- 7 -
all payments of Rent (other than Excepted Payments) and all other amounts which
are required to be paid to or deposited with the Owner Trustee pursuant to the
Lease (other than Excepted Payments) directly to the Indenture Trustee at such
address or addresses as the Indenture Trustee shall specify, for application as
provided in this Indenture. Pursuant to each Sublease Assignment, each
Permitted Sublessee will be directed from and after (i) notice of the
occurrence of a Lease Event of Default and (ii) notice that the Lease is
declared or deemed in default, to make all payments of rent and all other
amounts which are required to be paid to or deposited with the Lessee pursuant
to the related Assigned Sublease and which are assigned thereunder directly to
the Indenture Trustee at such address or addresses as the Indenture Trustee
shall specify, for application or to be held as provided in this Indenture.
The Owner Trustee agrees that promptly on receipt thereof, it will transfer to
the Indenture Trustee any and all moneys from time to time received by it
constituting part of the Trust Indenture Estate, for distribution by the
Indenture Trustee pursuant to this Indenture, except (a) to the extent the
Owner Trustee is entitled to distribution of such moneys pursuant to this
Indenture and (b) that the Owner Trustee shall accept for distribution pursuant
to the Trust Agreement any amounts distributed to it by the Indenture Trustee
under this Indenture.
The Owner Trustee agrees that at any time and from time to time, upon the
written request of the Indenture Trustee, the Owner Trustee will promptly and
duly execute and deliver or cause to be duly executed and delivered any and all
such further instruments and documents as the Indenture Trustee may reasonably
deem desirable in obtaining the full benefits of the assignment hereunder and
of the rights and powers herein granted.
The Owner Trustee does hereby warrant and represent that it has not
assigned or pledged, and hereby covenants that it will not assign or pledge or
otherwise dispose of, so long as this Indenture shall remain in effect and the
Lien hereof shall not have been released pursuant to Section 10.01 hereof, any
of its estate, right, title or interest hereby assigned, to anyone other than
the Indenture Trustee, and that, with respect to such estate, right, title and
interest hereby assigned, subject to its rights pursuant to Section 5.10
hereof, it will not, except as provided in this Indenture (including, without
limitation, Section 9.01) and except as to Excepted Payments and Excepted
Rights, (i) accept any payment from the Lessee or any Permitted Sublessee under
any of the Indenture Documents, enter into any agreement amending, modifying or
supplementing any of the Indenture Documents, or execute any waiver or
modification of, or consent under, the terms of any of the Indenture Documents,
(ii) settle or compromise any claim arising under any of the Indenture
Documents, (iii) give any notice or exercise any right
Trust Indenture
13
- 8 -
or take any action under any of the Indenture Documents, or (iv) submit or
consent to the submission of any dispute, difference or other matter arising
under or in respect of any of the Indenture Documents to arbitration
thereunder. For purposes of Section 4.02(e) hereof, this is the fourth
paragraph following the Habendum Clause.
The Owner Trustee hereby ratifies and confirms its obligations under the
Indenture Documents and does hereby agree that (except as permitted herein) it
will not take, or omit to take, any action, the taking or omission of which
might result in an alteration or impairment of any of the Indenture Documents
or of any of the rights created by any thereof or the assignment hereunder.
Notwithstanding the Granting Clause or any of the preceding paragraphs,
there is hereby excluded from the foregoing sale, transfer, assignment, grant,
pledge and security interest all Excepted Payments and Excepted Rights.
Further, nothing in the Granting Clause or the preceding paragraphs shall
impair any of the rights of the Owner Trustee or the Owner Participant under
Section 5.10 hereof.
IT IS HEREBY COVENANTED AND AGREED by and between the parties hereto as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Special Definitions. The definitions contained in the
Lease shall apply for all purposes of this Indenture except that the following
terms shall have the following meanings (such definitions to be equally
applicable to both the singular and plural forms of the terms defined) for all
purposes of this Indenture. Except as otherwise indicated, all the agreements
or instruments defined herein or in the Lease shall mean such agreements or
instruments as the same may from time to time be supplemented or amended or the
terms thereof waived or modified to the extent permitted by, and in accordance
with, the terms thereof and of the other Operative Documents and references to
various Persons shall be deemed to be references to and include their
respective permitted successors and assigns.
"Amortization Amount" means, with respect to any Principal Amount
Repayment Date, the amount set forth opposite such Principal Amount
Repayment Date on the Amortization Schedule.
Trust Indenture
14
- 9 -
"Amortization Schedule" means the amortization schedule for the
Equipment Notes delivered pursuant to Section 2.02 hereof.
"Assigned Sublease" means a Permitted Sublease required to be
assigned to the Owner Trustee pursuant to Section 6(a) of the Lease.
"Average Life Date" for each Equipment Note to be redeemed shall be
the date which follows the redemption date by a period equal to the
Remaining Weighted Average Life at the redemption date of such Equipment
Note. "Remaining Weighted Average Life" of such Equipment Note, at the
redemption date of such Equipment Note, shall be the number of days equal
to the quotient obtained by dividing (a) the sum of the products obtained
by multiplying (i) the amount of each then remaining installment of
principal, including the payment due on the maturity date of such
Equipment Note, by (ii) the number of days from and including the
redemption date to but excluding the scheduled payment date of such
principal installment; by (b) the then unpaid Principal Amount of such
Equipment Note.
"Bankruptcy Code" means Chapter 11 of Title 11 of the United States
Code, 11 U.S.C. Section Section 101 et seq., as amended.
"Business Day" means a day other than a Saturday, Sunday or a day on
which banks are required or authorized to close in either The City of New
York, New York or Hartford, Connecticut.
"Cash Collateral Account" means one or more Eligible Deposit
Accounts in the name of the Subordination Agent each maintained at the
Subordination Agent, into which all amounts drawn under one or more
Liquidity Facilities pursuant to Section 3.6(c) or 3.6(i) of the
Intercreditor Agreement shall be deposited.
"Code" means the Internal Revenue Code of 1986, as amended.
"Consents and Agreements" means the confirmations by the
Manufacturer included in the Purchase Agreement Warranties Assignment of
the transfer of rights under the Purchase Agreement.
"Continuous Stay Period" has the meaning specified in Section
4.04(a).
"Corporate Trust Office" means the principal corporate trust office
of the Indenture Trustee located at ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇
- ▇▇ -
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Administration, or such other office at which the Indenture Trustee's
corporate trust business shall be administered that the Indenture Trustee
shall have specified by notice in writing to the Lessee, the Owner
Trustee and the Note Holders.
"Debt" means any liability for borrowed money, or any liability for
the payment of money in connection with any letter of credit transaction,
or other liabilities evidenced or to be evidenced by bonds, debentures,
notes or other similar instruments.
"Debt Rate" means, with respect to Series A, Series B, Series C,
Series D and Series E, the rate per annum specified for such Series under
the heading "Debt Rate" in Schedule I to this Indenture.
"Delivery Date" means September 28, 1990.
"Dollars", "U.S. $" and "$" mean the lawful currency of the United
States of America.
"Downgrade Drawing" has the meaning assigned to such term in Section
3.6(c) of the Intercreditor Agreement.
"Eligible Deposit Account" means either (a) a segregated account
with an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution organized under
the laws of the United States of America or any one of the states thereof
or the District of Columbia (or any U.S. branch of a foreign bank),
having corporate trust powers and acting as trustee for funds deposited
in such account, so long as any of the securities of such depository
institution has a long-term unsecured debt rating from each Rating Agency
of at least A-3 or its equivalent.
"Eligible Institution" means (a) the corporate trust department of
the Subordination Agent or any Pass Through Trustee, as applicable, or
(b) a depository institution organized under the laws of the United
States of America or any one of the states thereof or the District of
Columbia (or any U.S. branch of a foreign bank), which has a long-term
unsecured debt rating from each Rating Agency of at least A-3 or its
equivalent.
"Equipment Notes" means the Equipment Notes, in substantially the
form set out in Section 2.01 hereof, issued by the Owner Trustee and
authenticated by the Indenture Trustee pursuant to the terms of this
Indenture.
Trust Indenture
16
- 11 -
"Equity Collateral" has the meaning assigned to such term in the
definition of "Excepted Payments."
"Excepted Payments" means (i) any and all indemnity payments and
interest in respect thereof paid or payable in respect of the Owner
Participant, the Trust Company, the Owner Trustee (and not in support of
any payment obligation of the Owner Trustee under any Indenture Document)
or any of their respective successors, permitted assigns (and, in the
case of a permitted assign of the Owner Participant that is a
partnership, the partners of such partnership), directors, officers,
employees, servants, agents, subsidiaries, affiliates or shareholders by
the Lessee pursuant to the Lease (including, without limitation, Section
13 thereof and any corresponding payment of Supplemental Rent under the
Lease), (ii) any proceeds of public liability insurance (or government
indemnities in lieu thereof) in respect of the Engine payable as a result
of insurance claims paid respecting, or losses suffered by, the Trust
Company or the Indenture Trustee in its individual capacity or the Owner
Participant, (iii) any proceeds of insurance maintained with respect to
the Engine by or for the benefit of the Owner Participant (whether
directly or through the Owner Trustee) and not required under Section 12
of the Lease, (iv) payments of Supplemental Rent by the Lessee in respect
of any amounts payable to the Owner Participant, the Trust Company, the
Owner Trustee (and not in support of any payment obligation of the Owner
Trustee under any Indenture Document), or any of their respective
successors, permitted assigns (and, in the case of a permitted assign of
the Owner Participant that is a partnership, the partners of such
partnership), directors, officers, employees, servants, agents,
subsidiaries, affiliates or shareholders under Section 10 of the Lease or
by the Lessee or the Parent Guarantor under the Tax Indemnification
Agreement or the Amended and Restated Head Lease TIA (as defined in the
Refunding Agreement), as the case may be, (v) Transaction Expenses paid
or payable by the Lessee or the Parent Guarantor to the Trust Company,
the Owner Trustee, the Indenture Trustee or the Owner Participant
pursuant to Section 21 of the Refunding Agreement or the Lease, (vi) to
the extent not applied to the payment of Rent in accordance with the
Lease, any letter of credit pursuant to Section 8(l) of the Lease
(including, without limitation, any replacement letter of credit (the
"Equity Collateral")) and any payment or proceeds of any such Equity
Collateral, (vii) any amount payable to the Owner Participant by any
transferee as the purchase price of the Owner Participant's interest in
the Trust Estate (or a portion thereof), (viii) any amount payable to the
Owner Trustee, the Trust Company or the Owner Participant or any of their
respective
Trust Indenture
17
- 12 -
successors, permitted assigns (and, in the case of a permitted assign of
the Owner Participant that is a partnership, the partners of such
partnership), directors, officers, employees, servants, agents,
subsidiaries, affiliates or shareholders attributable to the period prior
to the Restatement Date or under the Original Participation Agreement,
the Original Lease, the Parent Head Lease Guaranty or the Sublease (as
such terms are defined in the Refunding Agreement), and (ix) subject to
the last sentence of Section 5.10 hereof, any and all rights of the Owner
Trustee, the Owner Participant or the Trust Company under the Operative
Documents, whether or not a Lease Event of Default, a Lease Default, an
Indenture Default or an Indenture Trustee Event has occurred and is
continuing to demand, collect, ▇▇▇ for, give notices, make
determinations, enforce or exercise all rights with respect to and
otherwise obtain all amounts described in clauses (i) through (viii)
above and the proceeds thereof.
"Excepted Rights" means (i) those rights of the Owner Participant
and the Owner Trustee under Section 5.10 of this Indenture, (ii) all
rights under the Equity Collateral to make a claim for, collect and
retain all amounts payable with respect to any Equity Collateral, (iii)
all rights of the Owner Participant, the Trust Company or the Owner
Trustee to compromise or waive any such right or modify, amend or waive
any provision of any Operative Document conferring such rights with
respect to Excepted Payments, and (iv) all rights of the Owner Trustee to
exercise any election or option, or to make any decision or
determination, or to give or receive any notice, consent, waiver or
approval with respect to Excepted Payments.
"Excess Amount" has the meaning specified in Section 2.03(b) hereof.
"FAA" means the Federal Aviation Administration of the United States
Department of Transportation or any successor agency.
"Final Drawing" means, in respect of a Liquidity Facility, a
borrowing or drawing of all available and undrawn amounts under such
Liquidity Facility in accordance with the provisions thereof other than a
Downgrade Drawing.
"Government Obligations" means direct obligations of the United
States of America that are not callable, redeemable or payable prior to
maturity, in whole or in part, directly or indirectly, by any Person.
Trust Indenture
18
- 13 -
"Indenture," "this Indenture," and "the Indenture" mean this First
Amended and Restated Indenture, as it may from time to time be
supplemented or amended as herein provided, including as supplemented by
any Indenture Supplement pursuant hereto.
"Indenture Default" means an Indenture Event of Default or an event
or condition that, with the giving of notice or the lapse of time or
both, would become an Indenture Event of Default.
"Indenture Documents" means the Refunding Agreement; the Trust
Agreement (including any Trust Supplements); the Lease (including any
Lease Supplements); the Equipment Notes; this Indenture (including any
Indenture Supplements); any Sublease Assignment; any Assigned Sublease;
the Purchase Agreement (to the extent assigned by the Purchase Agreement
Warranties Assignment); the Purchase Agreement Warranties Assignment and
the Consents and Agreements attached thereto; and the Warranty ▇▇▇▇ of
Sale.
"Indenture Event of Default" has the meaning set forth in Section
4.02 hereof.
"Indentures" means, collectively, each Trust Indenture and Security
Agreement listed on Schedule 1 to the Intercreditor Agreement, as the
same may be amended, supplemented or otherwise modified from time to time
in accordance with its terms.
"Indenture Supplement" or "Trust Indenture Supplement" means a
supplement to this Indenture, in substantially the form of Exhibit A to
this Indenture, which shall particularly describe the Engine and
Replacement Engine included in the property of the Owner Trustee covered
by this Indenture, including, without limitation, Trust Indenture
Supplement No. 1 dated March 27, 1992, which was recorded as one
instrument by the FAA with the Original Indenture, and Trust Indenture
Supplement No. 2 dated November , 1996, which is being filed for
recordation as one instrument by the FAA with this First Amended and
Restated Indenture.
"Indenture Trustee Event" means either (i) the Equipment Notes shall
have become due and payable pursuant to Section 4.04(b) or (c) of this
Indenture or (ii) the Indenture Trustee has taken action or notified the
Owner Trustee that it intends to take action to foreclose the Lien of
this Indenture or otherwise commence the exercise of any significant
remedy under this Indenture or the Lease.
Trust Indenture
19
- 14 -
"Interest Drawing" has the meaning assigned to such term in Section
3.6(a) of the Intercreditor Agreement.
"Investment Earnings" means investment earnings on funds on deposit
in the Trust Accounts net of losses and investment expenses of the
Subordination Agent in making such investments.
"Lease" means the Original Lease, as the same may be modified,
supplemented or amended from time to time in accordance with the
provisions thereof and hereof and of the Refunding Agreement including,
without limitation, as amended and restated by Amendment No. 1 to Engine
Lease Agreement and Termination dated as of the date hereof and
supplemented by Lease Supplement [GPA 1991 AWA-E1] No. 2 dated November ,
1996, which are being filed for recordation as one instrument with the
FAA contemporaneously herewith.
"Lease Default" means an event or condition that, with the giving of
notice or the lapse of time or both, would become a Lease Event of
Default.
"Lease Event of Default" means any event or condition defined as an
"Event of Default" in Section 17 of the Lease.
"Lessee" means America West Airlines, Inc., a Delaware corporation,
in its capacity as lessee under the Amended and Restated Lease, and its
successors, and to the extent permitted by the Refunding Agreement, its
assigns thereunder.
"Lien" means any mortgage, chattel mortgage, pledge, lien, charge,
encumbrance, lease, exercise of rights, security interest, lease in the
nature of a security interest, statutory right in rem, or claim of any
kind, including any thereof arising under any conditional sale agreement,
equipment trust agreement or title retention agreement.
"Majority in Interest of Note Holders" means, as of a particular
date of determination and subject to Section 2.6 of the Intercreditor
Agreement, the Holders of more than 50% in aggregate unpaid Principal
Amount of all Equipment Notes outstanding as of such date. For purposes
of this definition, there shall be excluded any Equipment Notes held by
the Owner Trustee or the Owner Participant or any interests of the Owner
Participant therein by reason of subrogation pursuant to Section 4.03 of
the Indenture (unless all Equipment Notes then outstanding shall be held
by the Owner
Trust Indenture
20
- 15 -
Trustee or the Owner Participant) or any Equipment Notes held by the
Lessee or any Affiliate of any thereof.
"Make-Whole Amount" means, with respect to any Equipment Note, the
amount (as determined by an independent investment banker selected by
Lessee and reasonably acceptable to the Indenture Trustee and the Owner
Participant) by which (a) the present value of the remaining scheduled
payments of principal and interest from the redemption date to maturity
of such Equipment Note computed by discounting each such payment on a
semiannual basis from its respective Payment Date (assuming a 360-day
year of twelve 30-day months) using a discount rate equal to (i) in the
case of Series A Equipment Notes and Series B Equipment Notes, the
Treasury Yield and (ii) in the case of Series C Equipment Notes, Series D
Equipment Notes and Series E Equipment Notes, the Treasury Yield plus
0.75% exceeds (b) the outstanding principal amount of such Equipment Note
plus accrued interest. For purposes of determining the Make-Whole
Amount, "Treasury Yield" at the time of determination with respect to any
Equipment Note means the interest rate (expressed as a semiannual
equivalent and as a decimal and, in the case of United States Treasury
bills, converted to a bond equivalent yield) determined to be the per
annum rate equal to the semiannual yield to maturity for United States
Treasury securities maturing on the Average Life Date of such Equipment
Note and trading in the public securities market either as determined by
interpolation between the most recent weekly average yield to maturity
for two series of United States Treasury securities, trading in the
public securities markets, (A) one maturing as close as possible to, but
earlier than, the Average Life Date of such Equipment Note and (B) the
other maturing as close as possible to, but later than, the Average Life
Date of such Equipment Note, in each case as published in the most recent
H.15(519) or, if a weekly average yield to maturity for United States
Treasury securities maturing on the Average Life Date of such Equipment
Note is reported on the most recent H.15(519), such weekly average yield
to maturity as published in such H.15(519). "H.15(519)" means the weekly
statistical release designated as such, or any successor publication,
published by the Board of Governors of the Federal Reserve System. The
date of determination of a Make-Whole Amount shall be the third Business
Day prior to the applicable redemption date and the "most recent
H.15(519)" means the H.15(519) published prior to the close of business
on the third Business Day prior to the applicable redemption date.
"Non-U.S. Holder" or "Non-U.S. Person" means any Person other than a
U.S. Person or a U.S. Holder.
Trust Indenture
21
- 16 -
"Note Holder" or "Holder" means any registered holder from time to
time of one or more Equipment Notes as reflected in the Register
maintained by the Registrar.
"Officers' Certificate" means a certificate (i) signed by a
Responsible Officer of the Owner Trustee or the Lessee, as the case may
be, and (ii) signed by another officer of the Owner Trustee or the
Lessee, as the case may be, certifying as to the authority and signature
of such Responsible Officer, that is delivered to the Indenture Trustee.
"Opinion of Counsel" means a written opinion of legal counsel, who
in the case of legal counsel for the Lessee may be (i) an attorney
employed by the Lessee who is generally empowered to deliver such written
opinions or (ii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ or other counsel designated by the
Lessee and reasonably satisfactory to the Indenture Trustee or, in the
case of legal counsel for the Owner Trustee, may be Morris, James,
Hitchens & ▇▇▇▇▇▇▇▇ or other counsel designated by the Owner Trustee and
reasonably satisfactory to the Indenture Trustee.
"Original Head Lessee" means GPA Leasing USA Sub I, Inc., a
Connecticut corporation, in its capacity as lessee under the Original
Lease.
"Original Indenture" means the Trust Indenture and Security
Agreement [GPA 1991 AWA-E1] dated as of March 15, 1991, as supplemented
by Trust Indenture Supplement No. 1 dated March 27, 1991, which were
recorded as one instrument by the FAA on March 28, 1991 and assigned
Conveyance No. 259534, as amended by Amendment No. 1 dated March 27,
1992, recorded by the FAA on April 30, 1992 and assigned Conveyance No.
DD002565, and as further amended by Amendment No. 2 dated as of July 29,
1993, recorded by the FAA on August 4, 1993 and assigned Conveyance No.
F59677.
"Original Loan Certificates" means the Loan Certificates issued
under and as defined in the Original Indenture.
"Original Sublessee" means America West Airlines, Inc. ("AWA"), a
Delaware corporation, in its capacity as sublessee under the Engine
Sublease Agreement [GPA 1991 AWA-E1] dated as of December 12, 1990
between the Original Head Lessee in its capacity as sublessor thereunder
and AWA in its capacity as sublessee.
"Owner Participant" means ____________________, a _______
corporation, as Owner Participant under the Trust Agreement, and its
successors and permitted assigns.
Trust Indenture
22
- 17 -
"Parent Guarantor" means GPA Group plc, a public limited company
organized and existing under the laws of Ireland.
"Pass Through Trust" means each of the five Pass Through Trusts
established under the relevant Pass Through Trust Agreement.
"Pass Through Trust Agreement" means the Pass Through Trust
Agreements set forth on Schedule II hereto.
"Pass Through Trustee" means Fleet National Bank, a national banking
association, not in its individual capacity but solely as pass through
trustee under each of the five separate Pass Through Trust Agreements.
"Past Due Rate" means, with respect to any amount not paid when due
(whether at stated maturity, by acceleration or otherwise) under or in
respect of any Equipment Note, a rate of interest per annum (computed on
the basis of a year of 360 days comprised of twelve 30-day months) equal
to 1% in excess of the Debt Rate for such Equipment Note.
"Payment Date" means each January 2 and July 2, commencing on
January 2, 1997 (or, if any such day is not a Business Day, the
immediately succeeding Business Day) until the Equipment Notes have been
paid in full.
"Principal Amount" with respect to an Equipment Note means the
stated original principal amount of such Equipment Note and, with respect
to all Equipment Notes, means the aggregate stated original principal
amounts of all Equipment Notes.
"Principal Amount Repayment Date" means each Payment Date on which
any portion of the Principal Amount is due and payable in accordance with
the Amortization Schedule.
"Purchase Agreement Warranties Assignment" means the Purchase
Agreement Warranties Assignment [GPA 1991 AWA-E1], dated as of the
Delivery Date, among the Original Head Lessee, the Lessee and the Owner
Trustee, together with the Consents and Agreements attached thereto, as
the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"Rating Agencies" means, collectively, at any time, each nationally
recognized rating agency which shall have been requested to rate the
Certificates issued pursuant to the Pass Through Trust Agreements and
which shall then be rating the Certificates. Initially, the Rating
Agencies
Trust Indenture
23
- 18 -
shall consist of ▇▇▇▇▇'▇ Investors Service, Inc. and Standard & Poor's
Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇ Inc.
"Refinancing Transaction" means the transactions contemplated by the
Refunding Agreement and the other documents entered into on and in
connection with the Refunding Agreement on the Restatement Date.
"Refunding Agreement" means the Refunding Agreement [GPA 1991
AWA-E1] dated as of November , 1996, among the Lessee, the Original
Head Lessee, the Parent Guarantor, the Owner Trustee, the Pass Through
Trustee, the Owner Participant, the Subordination Agent and the Indenture
Trustee.
"Register" has the meaning set forth in Section 2.07 hereof.
"Registrar" has the meaning set forth in Section 2.07 hereof.
"Responsible Officer" means, in the case of the Lessee, the
president or any other officer with authority of at least a vice
president or, in the case of the Owner Trustee, an officer of the Owner
Trustee in its Corporate Trust Administration Department.
"Restatement Date" means November , 1996 or such other date agreed
to by the parties to the Refunding Agreement as the date for the
consummation of the Refinancing Transaction, as evidenced by the date of
the filing with the FAA of Trust Indenture Supplement No. 2.
"Secured Obligations" has the meaning set forth in Section 2.06
hereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Series A" or "Series A Equipment Notes" means Equipment Notes
issued and designated as "Series A" hereunder, in the Principal Amount
and maturities and bearing interest as specified in Section 2.02 and
Schedule I hereto under the heading "Series A."
"Series B" or "Series B Equipment Notes" means Equipment Notes
issued and designated as "Series B" hereunder, in the Principal Amount
and maturities and bearing interest as specified in Section 2.02 and
Schedule I hereto under the heading "Series B."
Trust Indenture
24
- 19 -
"Series C" or "Series C Equipment Notes" means Equipment Notes
issued and designated as "Series C" hereunder, in the Principal Amount
and maturities and bearing interest as specified in Section 2.02 and
Schedule I hereto under the heading "Series C."
"Series D" or "Series D Equipment Notes" means Equipment Notes
issued and designated as "Series D" hereunder, in the Principal Amount
and maturities and bearing interest as specified in Section 2.02 and
Schedule I hereto under the heading "Series D."
"Series E" or "Series E Equipment Notes" means Equipment Notes
issued and designated as "Series E" hereunder, in the Principal Amount
and maturities and bearing interest as specified in Section 2.02 and
Schedule I hereto under the heading "Series E."
"Sublease Assignment" means a sublease assignment by the Lessee in
favor of the Owner Trustee (including the consent thereto given by the
sublessee thereunder) with respect to the assignment of a Permitted
Sublease pursuant to Section 6(a) of the Lease.
"Transaction Expenses" means the costs, fees, expenses and
disbursements set forth in Section 21 of the Refunding Agreement.
"Trust Accounts" has the meaning assigned to such term in Section
2.2(a) of the Intercreditor Agreement.
"Trust Company" means Wilmington Trust Company, a Delaware banking
corporation, in its individual capacity and not as Owner Trustee, and its
successors under the Trust Agreement, in their respective individual
capacities and not as Owner Trustee.
"Trust Indenture Estate" or "Indenture Estate" means all estate,
right, title and interest of the Owner Trustee in and to the properties,
rights and interests covered by the Granting Clause of the Indenture,
excluding, however, in each case, Excepted Payments and Excepted Rights.
"U.S. Holder" or "U.S. Person" means any Person that is (i) a
citizen or resident of the United States, as defined in Section
7701(a)(9) of the Code (for purposes of this definition, the "United
States"), (ii) a corporation, partnership or other entity created or
organized under the laws of the United States or any political
subdivision thereof or therein or (iii) any estate or trust that is
subject to
Trust ▇▇▇▇▇▇▇▇▇
▇▇
- ▇▇ -
▇▇▇▇▇▇ ▇▇▇▇▇▇ federal income taxation regardless of the source of its
income.
"Warranty ▇▇▇▇ of Sale" means a full warranty (as to title) ▇▇▇▇ of
sale covering the Engine (excluding all Buyer Furnished Equipment)
executed by the Original Head Lessee in favor of the Owner Trustee dated
the Delivery Date.
ARTICLE II
THE EQUIPMENT NOTES
SECTION 2.01. Form of Equipment Notes. The Equipment Notes shall be
substantially in the form set forth below:
THIS EQUIPMENT NOTE HAS NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR PURSUANT TO THE SECURITIES LAWS OF ANY STATE.
ACCORDINGLY, THIS EQUIPMENT NOTE MAY NOT BE SOLD UNLESS EITHER REGISTERED UNDER
THE ACT AND SUCH APPLICABLE STATE LAWS OR AN EXEMPTION FROM SUCH REGISTRATIONS
IS AVAILABLE.
WILMINGTON TRUST COMPANY,
AS OWNER TRUSTEE UNDER TRUST AGREEMENT [GPA 1991 AWA-E1]
DATED AS OF MARCH 15, 1991, AS AMENDED.
SERIES [A/B/C/D/E] NON-RECOURSE EQUIPMENT NOTE DUE [ ] ISSUED IN
CONNECTION WITH ONE IAE INTERNATIONAL AERO ENGINES AG V2500-A1 ENGINE WITH
MANUFACTURER'S SERIAL NUMBER V0025
No.____________ Date: [________,1996]
$___________________
DEBT RATE MATURITY DATE
[ ] [ , ]
WILMINGTON TRUST COMPANY, not in its individual capacity but solely as
Owner Trustee (herein in such capacity called the "Owner Trustee") under that
certain Trust Agreement [GPA 1991 AWA-E1], dated as of March 15, 1991, as
amended, between the Owner Participant named therein and Wilmington Trust
Company (herein as such Trust Agreement may be supplemented or amended from
time to time called the "Trust Agreement"), hereby promises to pay to Fleet
National Bank, as Subordination Agent under the Intercreditor Agreement, or the
registered assignee thereof, the principal sum of $_______ (the "Principal
Amount"), together with interest on the Principal Amount remaining unpaid
Trust Indenture
26
- 21 -
from time to time (calculated on the basis of a year of 360 days comprised of
twelve 30-day months) from the date hereof until paid in full at a rate per
annum equal to the Debt Rate indicated above. The Principal Amount of this
Equipment Note shall be payable in installments on the dates set forth in
Schedule I hereto equal to the corresponding percentage of the Principal Amount
of this Equipment Note set forth in Schedule I hereto. Accrued but unpaid
interest shall be due and payable in semiannual installments commencing on
January 2, 1997, and thereafter on July 2 and January 2 of each year, to and
including ___________, ____.
Notwithstanding the foregoing or anything to the contrary contained
herein, (i) the final payment made on this Equipment Note shall be in an amount
sufficient to discharge in full the unpaid Principal Amount and all accrued and
unpaid interest on, and any other amounts due under, this Equipment Note; and
(ii) if any date on which a payment under this Equipment Note becomes due and
payable is not a Business Day, then such payment shall not be made on such
scheduled date but shall be made on the next succeeding Business Day and if
such payment is made on such next succeeding Business Day, no interest shall
accrue on the amount of such payment during such extension.
For purposes hereof, the term "Indenture" means the First Amended and
Restated Trust Indenture and Security Agreement [GPA 1991 AWA-E1], dated as of
November , 1996, between the Owner Trustee and Fleet National Bank (formerly
known as Fleet National Bank of Connecticut, Shawmut Bank Connecticut, National
Association, and The Connecticut National Bank) (the "Indenture Trustee"), as
the same may be amended or supplemented from time to time. All other
capitalized terms used in this Equipment Note and not defined herein shall have
the respective meanings assigned in the Indenture.
This Equipment Note shall bear interest, payable on demand, at the Past
Due Rate (calculated on the basis of a year of 360 days comprised of twelve
30-day months) on any overdue Principal Amount, any overdue Make-Whole Amount,
if any, and (to the extent permitted by applicable law) any overdue interest
and any other amounts payable hereunder which are overdue, in each case for the
period the same is overdue. Amounts shall be overdue if not paid when due
(whether at stated maturity, by acceleration or otherwise).
All payments of all or any portion of the Principal Amount, interest,
Make-Whole Amount, if any, and other amounts, if any, to be made by the Owner
Trustee hereunder and under the Indenture or the Refunding Agreement shall be
payable only from the income and proceeds from the Trust Estate to the extent
included in the Trust Indenture Estate and only to the extent
Trust Indenture
27
- 22 -
that the Owner Trustee shall have sufficient income or proceeds from the Trust
Estate to the extent included in the Trust Indenture Estate to enable the
Indenture Trustee to make such payments in accordance with the terms of Section
2.03 and Article III of the Indenture, and each Holder hereof, by its
acceptance of this Equipment Note, agrees that it will look solely to the
income and proceeds from the Trust Indenture Estate to the extent available for
distribution to the Holder hereof as above provided and that none of the Owner
Participant, the Owner Trustee and the Indenture Trustee is personally liable
or liable in any manner, including, without limitation, extending to any assets
other than the Trust Indenture Estate to the Holder hereof for any amounts
payable or any liability under this Equipment Note or, except as provided in
the Indenture or in the Refunding Agreement, for any liability under the
Indenture or the Refunding Agreement; provided, however, that nothing herein
contained shall limit, restrict or impair any and all rights or remedies of the
Indenture Trustee hereunder, subject always to the terms and provisions of the
Indenture.
There shall be maintained a Register for the purpose of registering
transfers and exchanges of Equipment Notes at the Corporate Trust Office of the
Indenture Trustee or at the office of any successor in the manner provided in
Section 2.07 of the Indenture.
Any payment of any portion of the Principal Amount and interest and other
amounts due hereunder shall be payable in Dollars in immediately available
funds at the Corporate Trust Office of the Indenture Trustee, or as otherwise
provided in the Indenture. Each such payment shall be made on the date such
payment is due and without any presentment or surrender of this Equipment Note,
except that in the case of any final payment with respect to this Equipment
Note, the Equipment Note shall be surrendered promptly thereafter to the
Indenture Trustee for cancellation.
The Holder hereof, by its acceptance of this Equipment Note, agrees that,
except as provided in the Indenture, each payment received by it hereunder
shall be applied, first, to the payment of accrued interest on this Equipment
Note (as well as any interest on any overdue Principal Amount, any overdue
Make-Whole Amount, if any, and to the extent permitted by law, any overdue
interest and any other overdue amounts hereunder) to the date of such payment,
second, to the payment of the portion of the Principal Amount of this Equipment
Note then due, third, to the payment of Make-Whole Amount, if any, and any
other amount due hereunder or under the Indenture, and fourth, the balance, if
any, remaining thereafter, to the payment of the portion of the Principal
Amount of this Equipment Note remaining unpaid in the inverse order of its
normal maturity.
Trust Indenture
28
- 23 -
This Equipment Note is one of the Equipment Notes referred to in the
Indenture which have been or are to be issued by the Owner Trustee pursuant to
the terms of the Indenture. The Trust Indenture Estate is held by the
Indenture Trustee as security, in part, for the Equipment Notes. The
provisions of this Equipment Note are subject to the Indenture. Reference is
hereby made to the Indenture and the Refunding Agreement for a complete
statement of the rights and obligations of the Holder of, and the nature and
extent of the security for, this Equipment Note and the rights and obligations
of the Holders of, and the nature and extent of the security for, any other
Equipment Notes executed and delivered under the Indenture, as well as for a
statement of the terms and conditions of the trusts created by the Indenture,
to all of which terms and conditions in the Indenture and the Refunding
Agreement each Holder hereof agrees by its acceptance of this Equipment Note.
As provided in the Indenture and subject to certain limitations therein
set forth, this Equipment Note is exchangeable for a like aggregate unpaid
portion of the Principal Amount of Equipment Notes of different authorized
denominations, as requested by the Holder surrendering the same.
Prior to due presentment for registration of transfer of this Equipment
Note, the Owner Trustee and the Indenture Trustee shall treat the Person in
whose name this Equipment Note is registered as the owner hereof for all
purposes whether or not this Equipment Note be overdue, and neither of the
Owner Trustee nor the Indenture Trustee shall be affected by notice to the
contrary.
This Equipment Note is subject to redemption as provided in Sections 2.10
and 2.11 of the Indenture, to purchase by the Owner Participant or the Owner
Trustee as provided in Section 2.12 of the Indenture and to acceleration by the
Indenture Trustee as provided in Section 4.04 of the Indenture.
[The indebtedness evidenced by this Equipment Note is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of the Secured Obligations (as defined in
the Indenture) in respect of [Series A Equipment Notes](1) [Series B Equipment
Notes](2) [Series C Equipment Notes](3) [Series D Equipment Notes](4),
(1) To be inserted in the case of Series B Equipment Notes.
(2) To be inserted in the case of Series C Equipment Notes.
(3) To be inserted in the case of Series D Equipment Notes.
Trust Indenture
29
-24 -
and this Equipment Note is issued subject to such provisions. The Note Holder
of this Equipment Note, by accepting the same, (a) agrees to and shall be bound
by such provisions, (b) authorizes and directs the Indenture Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and (c) appoints the Indenture
Trustee his attorney-in-fact for such purpose.](5)
Unless the certificate of authentication hereon has been executed by or on
behalf of the Indenture Trustee by manual signature, this Equipment Note shall
not be entitled to any benefit under the Indenture or be valid or obligatory
for any purpose.
THIS EQUIPMENT NOTE 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.
* * *
(4) To be inserted in the case of Series E Equipment Notes.
(5) To be inserted in the case of a Series B, Series C, Series D or Series E
Equipment Note.
Trust Indenture
30
- 25 -
IN WITNESS WHEREOF, the Owner Trustee has caused this Equipment Note to be
executed in its corporate name by its officer thereunto duly authorized on the
date hereof.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:_______________________________
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Equipment Notes referred to in the within-mentioned
Indenture.
FLEET NATIONAL BANK,
as Indenture Trustee
By:_______________________________
Name:
Title:
Trust Indenture
31
- 26 -
SCHEDULE I
EQUIPMENT NOTES AMORTIZATION
Percentage of
Principal Amount Principal Amount
Repayment Date to be Paid
[SEE SCHEDULE I TO TRUST INDENTURE
WHICH IS INSERTED UPON ISSUANCE]
* * *
SECTION 2.02. Issuance and Terms of Equipment Notes. The Equipment Notes
shall be dated the date of issuance thereof, shall be issued in five separate
series consisting of Series A, Series B, Series C, Series D and Series E and in
the maturities and principal amounts and shall bear interest as specified in
Schedule I hereto. On the date of the consummation of the Refinancing
Transaction, (i) each Equipment Note shall be issued to the Pass Through
Trustees (or their designee) under the Pass Through Trust Agreements set forth
in Schedule II to be attached hereto in connection therewith and (ii) the
Original Loan Certificates issued under the Original Indenture shall be
concurrently prepaid. The Equipment Notes shall be issued in registered form
only. The Equipment Notes shall be issued in denominations of $1,000 and
integral multiples thereof, except that one Equipment Note of each Series may
be in an amount that is not an integral multiple of $1,000.
Each Equipment Note shall bear interest at the Debt Rate (calculated on
the basis of a year of 360 days comprised of twelve 30-day months) on the
unpaid Principal Amount thereof from time to time outstanding, payable in
arrears on January 2, 1997, and on each July 2 and January 2 thereafter until
maturity.
The Principal Amount of each Equipment Note shall be payable on the dates
and in the installments equal to the corresponding percentage of the Principal
Amount as set forth in Schedule I hereto which shall be attached as Schedule I
to the Equipment Notes. Notwithstanding the foregoing, the final payment made
under each Equipment Note shall be in an amount sufficient to discharge in full
the unpaid portion of the Principal Amount and all accrued and unpaid interest
on, and any other amounts due under, such Equipment Note. Each Equipment Note
shall bear interest at the Past Due Rate (calculated on the basis of a year of
360 days comprised of twelve 30-day months) on
Trust Indenture
32
- 27 -
any part of the Principal Amount, Make-Whole Amount, if any, and, to the extent
permitted by applicable law, interest and any other amounts payable thereunder
not paid when due for any period during which the same shall be overdue, in
each case for the period the same is overdue. Amounts shall be overdue if not
paid when due (whether at stated maturity, by acceleration or otherwise).
Notwithstanding anything to the contrary contained herein, if any date on which
a payment under any Equipment Note becomes due and payable is not a Business
Day then such payment shall not be made on such scheduled date but shall be
made on the next succeeding Business Day and if such payment is made on such
next succeeding Business Day, no interest shall accrue on the amount of such
payment during such extension.
The Owner Trustee agrees to pay to the Indenture Trustee for distribution
in accordance with Section 3.04 hereof (a) any and all indemnity amounts
received by the Owner Trustee which are payable by Lessee to (i) the Indenture
Trustee in its individual capacity, (ii) the Pass Through Trusts, (iii) the
Subordination Agent, (iv) the Liquidity Providers, or (v) the Pass Through
Trustees, in each case pursuant to Sections 10 and 13 of the Lease or Section
21 of the Refunding Agreement, (b) the Owner Trustee's pro rata share (as
defined below) of all amounts owed to the Liquidity Providers by the
Subordination Agent under each Liquidity Facility other than amounts due as (i)
repayments of the principal of advances thereunder, and (ii) interest on
Interest Drawings, Final Drawings and Applied Downgrade Drawings (as defined in
the Liquidity Facilities) under any Liquidity Facility except to the extent
included in Net Interest and Related Charges (as defined below), and (c) any
and all amounts received by the Owner Trustee which are payable by Lessee under
clause (vii) or (viii) of the definition of Supplemental Rent. The Indenture
Trustee shall have no duty or obligation to (i) verify or confirm the accuracy
of any of the amounts (other than the portion of the Principal Amount of, and
interest on, the Equipment Notes issued hereunder) paid to it by the Owner
Trustee or (ii) determine whether any amounts are owed by the Owner Trustee
under this Section 2.02. As used in this Section 2.02, "Owner Trustee's pro
rata share" means as of any time:
(A) with respect to all amounts other than Net Interest and Related
Charges, a fraction the numerator of which is the aggregate principal
balance then outstanding of the Equipment Notes issued hereunder and the
denominator of which is the aggregate principal balance then outstanding
of all Equipment Notes issued under the Indentures, plus
(B) with respect to all Net Interest and Related Charges (x) if
there exists a Payment Default (as defined below) under any Equipment
Note a fraction, the numerator of which is the aggregate principal
balance then outstanding of
Trust Indenture
33
- 28 -
the Equipment Notes and the denominator of which is the aggregate
principal balance then outstanding of all Equipment Notes issued under
Indentures under which there exists a Payment Default or (y) at all other
times, zero;
provided, however, neither the numerator nor the denominator of the fractions
in paragraphs (A) or (B) shall include any Series D Equipment Notes or Series E
Equipment Notes. As used in this Section 2.02, "Net Interest and Related
Charges" means the sum of (i) the amount, if any, by which interest payable to
any Liquidity Provider on any Interest Drawing, Final Drawing and/or Downgrade
Drawing (other than an unapplied Downgrade Drawing) (as defined in the
Liquidity Facilities) exceeds the amount which would be payable if such
advances bore interest at the Designated Interest Rate (as defined below), (ii)
the amount, if any, by which interest payable to any Liquidity Provider on any
unapplied Downgrade Drawing (as defined in the Liquidity Facilities) exceeds
the Investment Earnings on such unapplied Downgrade Drawing plus (iii) any
amounts payable under Section 2.3(b), Section 3.1, Section 3.2, Section 3.3,
Section 3.9 or Section 7.7 of each Liquidity Facility (or similar provisions of
any succeeding liquidity facility) which result from any Interest Drawing,
Final Drawing or Downgrade Drawing (as defined in the Liquidity Facilities).
As used in this Section 2.02, "Designated Interest Rate" means the weighted
average Past Due Rate (as defined in the applicable Indentures) except with
respect to that portion of any Final Drawing (or Downgrade Drawing which
becomes a Final Drawing) which remains in a Cash Collateral Account, Designated
Interest Rate means the weighted average Investment Earnings of funds in the
Cash Collateral Accounts. As used in this Section 2.02, a "Payment Default"
when used in connection with an Equipment Note or an equipment note issued
under another Indenture means a default in the payment of principal thereof or
interest thereon other than a default in the payment of principal or interest
on a Series D Equipment Note or Series E Equipment Note which has not been
cured other than solely because of acceleration. For purposes of Section
3.04(b) hereof, this is the fourth paragraph of Section 2.02.
The Equipment Notes shall be executed on behalf of the Owner Trustee by
its President or one of its Vice Presidents, Assistant Vice Presidents or
Assistant Secretaries or other authorized officer. Equipment Notes bearing the
signatures of individuals who were at any time the proper officers of the Owner
Trustee shall bind the Owner Trustee, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Equipment Notes or did not hold such offices at the respective
dates of such Equipment Notes. The Owner Trustee may from time to time execute
and deliver Equipment Notes with respect to the Engine to the Indenture Trustee
for authentication upon original issue and such
Trust Indenture
34
- 29 -
Equipment Notes shall thereupon be authenticated and delivered by the Indenture
Trustee upon the written request of the Owner Trustee signed by a Vice
President or Assistant Vice President or other authorized officer of the Owner
Trustee; provided, however, that each such request shall specify the aggregate
Principal Amount of all Equipment Notes to be authenticated hereunder on
original issue with respect to the Engine. No Equipment Note shall be secured
by or be entitled to any benefit under this Indenture or be valid or obligatory
for any purposes, unless there appears on such Equipment Note a certificate of
authentication in the form provided for herein executed by the Indenture
Trustee by the manual signature of one of its authorized officers and such
certificate upon any Equipment Notes shall be conclusive evidence, and the only
evidence, that such Equipment Note has been duly authenticated and delivered
hereunder.
SECTION 2.03. Payments from Trust Indenture Estate Only. Without
impairing any of the other rights, powers, remedies, privileges or Liens of the
Note Holders under this Indenture, each Note Holder, by its acceptance of an
Equipment Note, agrees that, except as expressly provided in this Indenture, the
Refunding Agreement or any other Operative Document, (i) the obligation to make
all payments of all or any portion of the Principal Amount of, interest on,
Make-Whole Amount, if any, and all other amounts due with respect to the
Equipment Notes, and the performance by the Owner Trustee of every obligation or
covenant contained in this Indenture and in the Refunding Agreement or any of
the other Operative Documents, shall be payable only from the income and
proceeds from the Trust Estate to the extent included in the Trust Indenture
Estate and only to the extent that the Owner Trustee shall have sufficient
income or proceeds from the Trust Estate to the extent included in the Trust
Indenture Estate to enable the Indenture Trustee to make such payments in
accordance with the terms of Article III hereof, and all of the statements,
representations, covenants and agreements made by the Owner Trustee (when made
in such capacity) contained in this Indenture and any other Operative Document
other than the Trust Agreement, unless expressly otherwise stated, are made and
intended only for the purpose of binding the Trust Estate and establishing the
existence of rights and remedies which can be exercised and enforced against the
Trust Estate; therefore, anything contained in this Indenture or such other
agreements to the contrary notwithstanding (except for any express provisions or
representations that the Trust Company is responsible for, or is making, for
which there would be personal liability of the Trust Company), no recourse shall
be had with respect to this Indenture or such other agreements against the Trust
Company or against any institution or Person which becomes a successor trustee
or co-trustee or any officer, director, trustee, servant or direct or indirect
parent or controlling
Trust Indenture
35
- 30 -
Person or Persons of any of them, and (ii) none of the Trust Company, the Owner
Participant, the Indenture Trustee and any officer, director, trustee, servant,
employee, agent or direct or indirect parent or controlling Person or Persons of
any of them shall have any personal liability for any amounts payable, or other
obligation owed, hereunder, under the Refunding Agreement or any of the other
Operative Documents or under the Equipment Notes except as expressly provided
herein (in the case of the Owner Trustee and the Indenture Trustee) or therein;
provided, however, nothing contained in this Section 2.03(a) shall be construed
to limit the exercise and enforcement in accordance with the terms of this
Indenture or such other agreements of rights and remedies against the Trust
Indenture Estate.
If (i) all or any part of the Trust Estate becomes the property of, or the
Owner Trustee or Owner Participant becomes, a debtor subject to the
reorganization provisions of the Bankruptcy Code, (ii) pursuant to such
reorganization provisions, including Section 1111(b) of the Bankruptcy Code, the
Trust Company, the Owner Trustee or the Owner Participant is required, by reason
of the Trust Company, the Owner Trustee or the Owner Participant being held to
have recourse liability to any Note Holder or the Indenture Trustee, directly or
indirectly (other than the recourse liability of the Trust Company, the Owner
Trustee or the Owner Participant under the Operative Documents), to make payment
on account of any amount payable as Principal Amount, Make-Whole Amount, if any,
interest or other amounts on the Equipment Notes or under this Indenture and
(iii) any Note Holder or the Indenture Trustee actually receives any Excess
Amount (as hereinafter defined) which reflects any payment by the Trust Company,
the Owner Trustee or the Owner Participant on account of clause (ii) above
(other than aforesaid), then such Note Holder or the Indenture Trustee, as the
case may be, shall promptly refund to the Trust Company, the Owner Trustee or
the Owner Participant (whichever shall have made such payment) such Excess
Amount.
For purposes of this Section 2.03(b), "Excess Amount" means the amount by
which such payment exceeds the amount that would have been received by a Note
Holder or the Indenture Trustee if the Trust Company, Owner Trustee or the
Owner Participant had not become subject to the recourse liability referred to
in clause (ii) above. Nothing contained in this Section 2.03(b) shall prevent
a Note Holder or the Indenture Trustee from enforcing any personal recourse
obligation (and retaining the proceeds thereof) of the Trust Company, the Owner
Trustee or the Owner Participant under the Refunding Agreement, this Indenture
(and any exhibits or annexes hereto or thereto) or any other Operative
Document.
Trust Indenture
36
- 31 -
SECTION 2.04. Method of Payment. (a) The Principal Amount of, interest
on, Make-Whole Amount, if any, and other amounts due under each Equipment Note
or hereunder will be payable in Dollars by wire transfer of immediately
available funds not later than 12:00 noon, New York City time, on the due date
of payment to the Indenture Trustee at the Corporate Trust Office for
distribution among the Note Holders in the manner provided herein. After
transferring (or causing the transfer of) the above amounts to the Indenture
Trustee, the Owner Trustee shall not have any responsibility for the
distribution of such payment to any Note Holder. Notwithstanding the foregoing
or any provision in any Equipment Note to the contrary, the Indenture Trustee
will use reasonable efforts to pay or cause to be paid, if so directed in
writing by any Note Holder (with a copy to the Owner Trustee), all amounts paid
by the Owner Trustee hereunder and under such Holder's Equipment Note or
Equipment Notes to such Holder or a nominee therefor (including all amounts
distributed pursuant to Article III of this Indenture) by transferring, or
causing to be transferred, by wire transfer of immediately available funds in
Dollars, prior to 2:00 p.m., New York City time, on the due date of payment, to
an account maintained by such Holder with a bank located in the continental
United States the amount to be distributed to such Holder, for credit to the
account of such Holder maintained at such bank. If the Indenture Trustee shall
fail to make any such payment as provided in the immediately preceding sentence
after its receipt of funds at the place and prior to the time specified above,
the Indenture Trustee, in its individual capacity and not as trustee and
without indemnification or right of reimbursement under any Operative Document,
agrees to compensate such Holders for loss of use of funds in accordance with
industry standards for this type of transaction until such payment is made and
the Indenture Trustee shall be entitled to any interest earned on such funds
until such payment is made. Any payment made hereunder shall be made free and
clear of and without reduction for or on account of all wire and like charges
and without any presentment or surrender of any Equipment Note, except that, in
the case of the final payment in respect of any Equipment Note, such Equipment
Note shall be surrendered to the Indenture Trustee for cancellation promptly
after such payment. Notwithstanding any other provision of this Indenture to
the contrary, the Indenture Trustee shall not be required to make, or cause to
be made, wire transfers as aforesaid prior to the first Business Day on which
it is practicable for the Indenture Trustee to do so if such funds were
received after 12:00 noon, New York City time, at the place of payment. Prior
to the due presentment for registration of transfer of any Equipment Note, the
Owner Trustee and the Indenture Trustee shall deem and treat the Person in
whose name any Equipment Note is registered on the Register as the absolute
owner and Holder of such Equipment Note for the purpose of receiving payment of
all amounts payable with respect to such
Trust Indenture
37
- 32 -
Equipment Note and for all other purposes, and neither the Owner Trustee nor
the Indenture Trustee shall be affected by any notice to the contrary, unless
and until such change is reflected in the Register. So long as any signatory
to the Refunding Agreement or nominee thereof shall be a registered Note
Holder, all payments to it shall be made to the account of such Note Holder
specified in Schedule III thereto and otherwise in the manner provided in or
pursuant to the Refunding Agreement unless it shall have specified some other
account or manner of payment by notice to the Indenture Trustee consistent with
this Section 2.04.
(b) The Indenture Trustee, as agent for the Owner Trustee, shall exclude
and withhold at the appropriate rate from each payment of Principal Amount of,
interest on, Make-Whole Amount, if any, and other amounts due hereunder or
under each Equipment Note (and such exclusion and withholding shall constitute
payment in respect of such Equipment Note) any and all United States
withholding taxes applicable thereto as required by law. The Indenture Trustee
agrees to act as such withholding agent and, in connection therewith, whenever
any present or future United States taxes or similar charges are required to be
withheld with respect to any amounts payable hereunder or in respect of the
Equipment Notes, to withhold such amounts (and such withholding shall
constitute payment in respect of such Equipment Note) and timely pay the same
to the appropriate authority in the name of and on behalf of the Note Holders,
that it will file any necessary United States withholding tax returns or
statements when due, and that as promptly as possible after the payment thereof
it will deliver to each Note Holder (with a copy to the Owner Trustee and the
Lessee) appropriate receipts showing the payment thereof, together with such
additional documentary evidence as any such Note Holder, the Owner Participant
and the Owner Trustee may reasonably request from time to time.
If a Note Holder which is a Non-U.S. Person has furnished to the Indenture
Trustee a properly completed and currently effective U.S. Internal Revenue
Service Form 1001 or W-8 (or such successor form or forms as may be required by
the United States Treasury Department) during the calendar year in which the
payment hereunder or under the Equipment Note(s) held by such Holder is made
(but prior to the making of such payment) or in either of the two preceding
calendar years, and has not notified the Indenture Trustee of the withdrawal or
inaccuracy of such form prior to the date of such payment (and the Indenture
Trustee has no reason to know that any information set forth in such form is
inaccurate), the Indenture Trustee shall withhold only the amount, if any,
required by law (after taking into account any applicable exemptions claimed by
the Note Holder) to be withheld from payments hereunder or under the Equipment
Notes held by such Holder in respect of United States federal income
Trust Indenture
38
- 33 -
tax (and such withholding shall constitute payment in respect of such Equipment
Note). If a Note Holder (x) which is a Non-U.S. Person has furnished to the
Indenture Trustee a properly completed and currently effective U.S. Internal
Revenue Service Form 4224 in duplicate (or such successor certificate, form or
forms as may be required by the United States Treasury Department as necessary
in order to avoid withholding of United States federal income tax), during the
calendar year in which the payment is made (but prior to the making of such
payment) or in either of the two preceding calendar years, and has not notified
the Indenture Trustee of the withdrawal or inaccuracy of such certificate or
form prior to the date of such payment (and the Indenture Trustee has no reason
to know that any information set forth in such form is inaccurate) or (y) which
is a U.S. Person has furnished to the Indenture Trustee a properly completed
and currently effective U.S. Internal Revenue Service Form W-9, if applicable,
prior to a payment hereunder or under the Equipment Notes held by such Holder,
no amount shall be withheld from payments in respect of United States federal
income tax. If any Note Holder has notified the Indenture Trustee that any of
the foregoing forms or certificates is withdrawn or inaccurate, or if such
Holder has not filed a form claiming an exemption from United States
withholding tax or if the Code or the regulations thereunder or the
administrative interpretation thereof are at any time after the date hereof
amended to require such withholding of United States federal income taxes from
payments under the Equipment Notes held by such Holder, the Indenture Trustee
agrees to withhold from each payment due to the relevant Note Holder
withholding taxes at the appropriate rate under law (and such withholding shall
constitute payment in respect of such Equipment Notes) and will, on a timely
basis as more fully provided above, deposit such amounts with an authorized
depository and make such returns, statements, receipts and other documentary
evidence in connection therewith as required by applicable law.
None of the Owner Trustee, the Owner Participant or the Lessee shall have
any liability for the failure of the Indenture Trustee to withhold taxes in the
manner provided for herein or for any false, inaccurate or untrue evidence
provided by a Holder hereunder.
SECTION 2.05. Application of Payments. In the case of each Equipment
Note, each payment of Principal Amount, Make-Whole Amount, if any, and interest
or other amounts due thereon shall be applied:
First: to the payment of accrued interest on such Equipment Note
(as well as any interest on any overdue Principal Amount, any overdue
Make-Whole Amount, if any, and, to the extent permitted by law, any
overdue interest
Trust Indenture
39
- 34 -
and any other overdue amounts thereunder) to the date of such payment;
Second: to the payment of the Principal Amount of such Equipment
Note (or a portion thereof) then due thereunder;
Third: to the payment of Make-Whole Amount, if any, and any other
amount due hereunder or under such Equipment Note; and
Fourth: the balance, if any, remaining thereafter, to the payment
of the Principal Amount of such Equipment Note remaining unpaid (provided
that such Equipment Note shall not be subject to redemption except as
provided in Sections 2.10 and 2.11 hereof).
The amounts paid pursuant to clause "Fourth" above shall be applied to the
installments of Principal Amount of such Equipment Note in the inverse order of
their normal maturity.
SECTION 2.06. Termination of Interest in Trust Indenture Estate. A Note
Holder shall not, as such, have any further interest in, or other right with
respect to, the Trust Indenture Estate when the Principal Amount of, Make-Whole
Amount, if any, and interest on and other amounts due under all Equipment Notes
held by such Note Holder and all other sums then payable to such Note Holder
hereunder and under the Lease and the Refunding Agreement by the Lessee, the
Owner Participant and the Owner Trustee (collectively, the "Secured
Obligations") shall have been paid in full.
SECTION 2.07. Registration, Transfer and Exchange of Equipment Notes.
The Indenture Trustee shall keep a register (the "Register") in which the
Indenture Trustee shall provide for the registration of Equipment Notes and the
registration of transfers of Equipment Notes. No such transfer shall be given
effect unless and until registration hereunder shall have occurred. The
Register shall be kept at the Corporate Trust Office of the Indenture Trustee.
The Indenture Trustee is hereby appointed "Registrar" for the purpose of
registering Equipment Notes and transfers of Equipment Notes as herein
provided. A Holder of any Equipment Note intending to exchange such Equipment
Note shall surrender such Equipment Note to the Indenture Trustee at the
Corporate Trust Office, together with a written request from the registered
Holder thereof for the issuance of a new Equipment Note, specifying, in the
case of a surrender for transfer, the name and address of the new Holder or
Holders. Upon surrender for registration of transfer of any Equipment Note,
the Owner Trustee shall execute, and the Indenture Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Equipment Notes of a
Trust Indenture
40
- 35 -
like aggregate unpaid portion of the Principal Amount and of the same series.
At the option of the Note Holder, Equipment Notes may be exchanged for other
Equipment Notes of any authorized denominations of a like aggregate unpaid
portion of the Principal Amount, upon surrender of the Equipment Notes to be
exchanged to the Indenture Trustee at the Corporate Trust Office. Whenever any
Equipment Notes are so surrendered for exchange, the Owner Trustee shall
execute, and the Indenture Trustee shall authenticate and deliver, the
Equipment Notes which the Note Holder making the exchange is entitled to
receive. All Equipment Notes issued upon any registration of transfer or
exchange of Equipment Notes (whether under this Section 2.07 or under Section
2.08 hereof or otherwise under this Indenture) shall be the valid obligations
of the Owner Trustee evidencing the same respective obligations, and entitled
to the same security and benefits under this Indenture, as the Equipment Notes
surrendered upon such registration of transfer or exchange. Every Equipment
Note presented or surrendered for registration of transfer or exchange shall
(if so required by the Indenture Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Indenture
Trustee duly executed by the Note Holder or such Holder's attorney duly
authorized in writing, and the Indenture Trustee shall require evidence
satisfactory to it as to the compliance of any such transfer with the
Securities Act and the securities laws of any applicable state. The Indenture
Trustee shall make a notation on each new Equipment Note of the amount of all
payments of Principal Amount previously made on the old Equipment Note or
Equipment Notes with respect to which such new Equipment Note is issued and the
date to which interest on such old Equipment Note or Equipment Notes has been
paid. Interest shall be deemed to have been paid on such new Equipment Note to
the date on which interest shall have been paid on such old Equipment Note, and
all payments of the Principal Amount marked on such new Equipment Note, as
provided above, shall be deemed to have been made thereon. Neither the
Indenture Trustee nor the Owner Trustee shall be required to exchange any
surrendered Equipment Notes as provided above during the ten-day period
preceding the Payment Date. The Indenture Trustee will promptly notify the
Owner Trustee, the Owner Participant and Lessee of each registration of a
transfer of an Equipment Note. Any such transferee of an Equipment Note, by
its acceptance of an Equipment Note, agrees to the provisions of the Refunding
Agreement applicable to Note Holders, and shall be deemed to have represented
and warranted to the parties to the Refunding Agreement as to the matters
represented and warranted by the Subordination Agent in its capacity as the
initial Holder of the Equipment Notes. Subject to compliance by the Note
Holder and its transferee (if any) of the requirements set forth in this
Section 2.07, the Indenture Trustee and the Owner Trustee shall use all
reasonable efforts to issue new Equipment Notes upon
Trust Indenture
41
- 36 -
transfer or exchange within 10 Business Days of the date an Equipment Note is
surrendered for transfer or exchange.
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Equipment Notes. If
any Equipment Note shall become mutilated, destroyed, lost or stolen, the Owner
Trustee shall, upon the written request of the Holder of such Equipment Note,
execute and the Indenture Trustee shall authenticate and deliver in replacement
thereof a new Equipment Note, payable in the same Principal Amount dated the
same date and captioned as originally issued. If the Equipment Note being
replaced has become mutilated, such Equipment Note shall be surrendered to the
Indenture Trustee and a copy thereof shall be furnished to the Owner Trustee.
If the Equipment Note being replaced has been destroyed, lost or stolen, the
Holder of such Equipment Note shall furnish to the Lessee, the Owner Trustee,
the Owner Participant and the Indenture Trustee such security or indemnity as
may be reasonably required by them to save the Lessee, the Owner Trustee, the
Owner Participant and the Indenture Trustee harmless and evidence satisfactory
to the Lessee, the Owner Trustee, the Owner Participant and the Indenture
Trustee of the destruction, loss or theft of such Equipment Note and of the
ownership thereof. If a bank or trust company with a net worth of $200,000,000
or more is the Holder of any such destroyed, lost or stolen Equipment Note,
then the written indemnity of such Person, signed by an authorized officer
thereof, in favor of, delivered to and in form reasonably satisfactory to the
Lessee, the Owner Participant, the Owner Trustee and the Indenture Trustee
shall be accepted as satisfactory indemnity and security and no further
indemnity or security shall be required as a condition to the execution and
delivery of such new Equipment Note. Subject to compliance by the Note Holder
of the requirements set forth in this Section 2.08, the Indenture Trustee and
the Owner Trustee shall use all reasonable efforts to issue new Equipment Notes
within 10 Business Days of the date of the written request therefor from the
Note Holder.
SECTION 2.09. Payment of Expenses on Transfer; Cancellation. (a) No
service charge shall be made to a Note Holder for any registration of transfer
or exchange of Equipment Notes, but the Indenture Trustee, as Registrar, may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Equipment Notes; provided, however, that none of the Lessee, the
Owner Trustee, the Indenture Trustee or the Owner Participant shall bear costs
of registration, transfer or exchange in connection with the consummation of
the Refinancing Transaction.
(b) The Indenture Trustee shall cancel all Equipment Notes surrendered
for replacement, redemption, transfer,
Trust Indenture
42
- 37 -
exchange, payment or cancellation and shall destroy the canceled Equipment
Notes.
SECTION 2.10. Mandatory Redemptions of Equipment Notes. The Equipment
Notes are subject to redemption as provided in this Section 2.10 and Section
2.11 and purchase as provided in Section 2.12. On the date on which Lessee is
required pursuant to Section 11(a) of the Lease to make payment for an Event of
Loss with respect to the Engine, all of the Equipment Notes shall be redeemed
in whole at a redemption price equal to 100% of the unpaid Principal Amount
thereof, together with all accrued interest thereon to, but not including, the
date of redemption and all other amounts payable hereunder or under the
Refunding Agreement to the Note Holders but without Make-Whole Amount, all in
the order of priority specified in Section 3.02 hereof.
SECTION 2.11. Redemptions; Notice of Redemption. (a) Neither any
redemption of any Equipment Note nor any purchase by the Owner Trustee of any
Equipment Note may be made except to the extent and in the manner expressly
permitted by this Indenture. No purchase of any Equipment Note may be made by
the Indenture Trustee.
(b) Notice of redemption or purchase with respect to the Equipment Notes
shall be given by the Indenture Trustee by first-class mail, postage prepaid,
mailed not less than 15 nor more than 60 days prior to the applicable
redemption date, to each Note Holder of such Equipment Notes to be redeemed or
purchased, at such Note Holder's address appearing in the Register. All
notices of redemption or purchase shall state: (1) the redemption date, (2)
the applicable basis for determining the redemption price, (3) that on the
redemption date, the redemption price will become due and payable upon each
such Equipment Note, and that interest on such Equipment Notes shall cease to
accrue on and after such redemption date, and (4) the place or places where
such Equipment Notes are to be surrendered for payment of the redemption price.
(c) On or before the redemption date, the Owner Trustee (or any Person on
behalf of the Owner Trustee) shall, to the extent an amount equal to the
redemption price for the Equipment Notes to be redeemed or purchased on the
redemption date shall not then be held in the Trust Indenture Estate, deposit
or cause to be deposited with the Indenture Trustee by 12:00 noon, New York
City time, on the redemption date in immediately available funds the redemption
price of the Equipment Notes to be redeemed or purchased.
(d) Notice of redemption or purchase having been given as aforesaid, the
Equipment Notes to be redeemed or purchased shall, on the redemption date,
become due and payable at the
Trust Indenture
43
- 38 -
Corporate Trust Office of the Indenture Trustee, and from and after such
redemption date (unless there shall be a default in the payment of the
redemption price) any such Equipment Notes then outstanding shall cease to bear
interest. Upon surrender of any such Equipment Note for redemption or purchase
in accordance with said notice, such Equipment Note shall be redeemed at the
redemption price. If any Equipment Note called for redemption or purchase
shall not be so paid upon surrender thereof for redemption, the principal
amount thereof shall, until paid, continue to bear interest from the applicable
redemption date at the interest rate in effect for such Equipment Note as of
such redemption date.
SECTION 2.12. Option to Purchase Equipment Notes. Either the Owner
Trustee or the Owner Participant may, upon the events and subject to the terms
and conditions and for the price set forth in this Section 2.12, purchase all
but not less than all of the Equipment Notes outstanding hereunder, and each
Note Holder agrees that it will, upon such events and subject to such terms and
conditions and upon receipt of such price, sell, assign, transfer and convey to
such purchaser or its nominee (without recourse or warranty of any kind except
as to its title to the Equipment Notes and except against Liens on such
Equipment Notes arising by, through or under such Holder), all of the right,
title and interest of such Note Holder in and to the Trust Indenture Estate,
this Indenture and the Equipment Notes held by it, and such purchaser or its
nominee shall assume all of such Holder's obligations under the Refunding
Agreement and hereunder.
Such option to purchase the Equipment Notes may be exercised by the Owner
Trustee or the Owner Participant upon any of the following events, and, in any
such event, the purchase price thereof shall equal for each Equipment Note the
aggregate unpaid Principal Amount thereof, plus accrued and unpaid interest
thereon to, but not including, the date of purchase and all other amounts
(other than the Make-Whole Amount, except as provided in the next sentence)
then payable hereunder or under the Refunding Agreement to the Holder thereof.
Such option to purchase the Equipment Notes may be exercised: (i) upon an
Indenture Trustee Event or (ii) in the event there shall have occurred and be
continuing a Lease Event of Default, provided that if such option is exercised
pursuant to this clause (ii) at a time when there shall have occurred and be
continuing for less than 120 days a Lease Event of Default (and there is no
Indenture Trustee Event), the purchase price thereof shall equal the price
provided in the preceding sentence plus the Make-Whole Amount, if any; provided
further, that under no circumstances shall the Make-Whole Amount be payable by
the Lessee.
Such option to purchase the Equipment Notes may be exercised by the Owner
Trustee or the Owner Participant giving
Trust Indenture
44
- 39 -
written notice of its election of such option to the Indenture Trustee, which
notice shall specify a date for such purchase not more than 30 days or less
than 15 days after the date of such notice. The Indenture Trustee shall not
exercise any of the remedies hereunder or, without the consent of the Owner
Trustee or the Owner Participant, under the Lease, during the period from the
time that a notice of exercise by the Owner Participant of such option to
purchase becomes irrevocable until the date on which such purchase is required
to occur pursuant to the terms of the preceding sentence. Such election to
purchase the Equipment Notes shall become irrevocable upon the fifteenth day
preceding the date specified in the written notice described in the first
sentence of this paragraph.
If the Owner Trustee or the Owner Participant on or before the date of
such purchase shall so request, the Note Holders will comply with all the
provisions of Section 2.07 to enable new Equipment Notes to be issued to the
Owner Trustee or the Owner Participant or its nominee in such denominations as
the Owner Trustee or the Owner Participant shall request. All taxes and
charges required pursuant to Section 2.09 in connection with the issuance of
such new Equipment Note shall be borne by the Owner Participant.
SECTION 2.13. Subordination. (a) The Owner Trustee and, by acceptance
of its Equipment Notes of any Series, each Note Holder of such Series, hereby
agree that no payment or distribution shall be made on or in respect of the
Secured Obligations owed to such Note Holder of such Series, including any
payment or distribution of cash, property or securities after the commencement
of a proceeding of the type referred to in Section 4.02(g), (h) or (i) hereof,
except as expressly provided in Articles II and III hereof.
(b) By the acceptance of its Equipment Notes of any Series (other than
Series A), each Note Holder of such Series agrees that in the event that such
Note Holder, in its capacity as a Note Holder, shall receive any payment or
distribution on any Secured Obligations in respect of such Series which it is
not entitled to receive under this Section 2.13 or Article III hereof, it will
hold any amount so received in trust for the Senior Holder or Senior Holders
(as defined in Section 2.13(c) hereof) and will forthwith turn over such
payment to the Indenture Trustee in the form received to be applied as provided
in Articles II and III hereof.
(c) As used in this Section 2.13, the term "Senior Holder" or "Senior
Holders" shall mean, (i) the Note Holders of Series A until the Secured
Obligations in respect of Series A Equipment Notes have been paid in full, (ii)
after the Secured Obligations in respect of Series A Equipment Notes have been
paid
Trust Indenture
45
- 40 -
in full, the Note Holders of Series B until the Secured Obligations in respect
of Series B Equipment Notes have been paid in full, (iii) after the Secured
Obligations in respect of Series B Equipment Notes have been paid in full, the
Note Holders of Series C until the Secured Obligations in respect of Series C
Equipment Notes have been paid in full and (iv) after the Secured Obligations
in respect of Series C Equipment Notes have been paid in full, the Note Holders
of Series D until the Secured Obligations in respect of Series D Equipment
Notes have been paid in full.
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
SECTION 3.01. Certain Rent Distributions. Except as otherwise provided
in Sections 3.02 or 3.03 hereof, each installment of Basic Rent, any payment of
Supplemental Rent, any payment received by the Indenture Trustee as
contemplated by the first sentence of Section 4.03 hereof, and any payment
received by the Indenture Trustee pursuant to any Sublease Assignment as rent
under any Assigned Sublease shall be promptly distributed in the following
order of priority:
first, (i) so much of such installment or payment as shall be
required to pay in full the aggregate amount of the payment or payments
of Principal Amount, and interest and other amounts (as well as any
interest on overdue Principal Amount, and to the extent permitted by
applicable law, on any overdue interest and any other overdue amounts)
then due to the Note Holders under all Series A Equipment Notes shall be
distributed to the Note Holders of Series A ratably, without priority of
one over the other, in the proportion that the amount of such payment or
payments then due under each Series A Equipment Note bears to the
aggregate amount of the payments then due under all Series A Equipment
Notes;
(ii) after giving effect to clause (i) above, so much of such
installment or payment remaining as shall be required to pay in full the
aggregate amount of the payment or payments of Principal Amount and
interest and other amounts (as well as any interest on any overdue
Principal Amount and, to the extent permitted by applicable law, on any
overdue interest and any other overdue amounts) then due to the Note
Holders under all Series B Equipment Notes shall be distributed to the
Note Holders of Series B ratably, without priority of one over the other,
in the proportion that the amount of such payment or payments then due
under each Series B Equipment Note bears to the aggregate amount
Trust Indenture
46
- 41 -
of the payments then due under all Series B Equipment Notes;
(iii) after giving effect to clause (ii) above, so much of such
installment or payment remaining as shall be required to pay in full the
aggregate amount of the payment or payments of Principal Amount and
interest and other amounts (as well as any interest on any overdue
Principal Amount and, to the extent permitted by applicable law, on any
overdue interest and any other overdue amounts) then due to the Note
Holders under all Series C Equipment Notes shall be distributed to the
Note Holders of Series C ratably, without priority of one over the other,
in the proportion that the amount of such payment or payments then due
under each Series C Equipment Note bears to the aggregate amount of the
payments then due under all Series C Equipment Notes;
(iv) after giving effect to clause (iii) above, so much of such
installment or payment remaining as shall be required to pay in full the
aggregate amount of the payment or payments of Principal Amount and
interest and other amounts (as well as any interest on any overdue
Principal Amount and, to the extent permitted by applicable law, on any
overdue interest and any other overdue amounts) then due to the Note
Holders under all Series D Equipment Notes shall be distributed to the
Note Holders of Series D ratably, without priority of one over the other,
in the proportion that the amount of such payment or payments then due
under each Series D Equipment Note bears to the aggregate amount of the
payments then due under all Series D Equipment Notes; and
(v) after giving effect to clause (iv) above, so much of such
installment or payment remaining as shall be required to pay in full the
aggregate amount of the payment or payments of Principal Amount and
interest and other amounts (as well as any interest on any overdue
Principal Amount and, to the extent permitted by applicable law, on any
overdue interest and any other overdue amounts) then due to the Note
Holders under all Series E Equipment Notes shall be distributed to the
Note Holders of Series E ratably, without priority of one over the other,
in the proportion that the amount of such payment or payments then due
under each Series E Equipment Note bears to the aggregate amount of the
payments then due under all Series E Equipment Notes; and
second, the balance, if any, of such installment or payment
remaining thereafter shall be distributed to the Owner Trustee for
distribution pursuant to the Trust Agreement; provided, however, that if
an Indenture Default shall have occurred and be continuing, then such
balance
Trust Indenture
47
- 42 -
shall not be distributed as provided in this clause "second" but shall be
held by the Indenture Trustee as part of the Trust Indenture Estate and
invested in accordance with Section 3.07 hereof until whichever of the
following shall first occur: (i) all Indenture Defaults shall have been
cured or waived, in which event such balance shall be distributed as
provided in this clause "second", or (ii) Section 3.03 hereof shall be
applicable, in which event such balance shall be distributed in
accordance with the provisions of said Section 3.03, or (iii) the 180th
day after receipt of such payment, in which event such balance shall be
distributed as provided in this clause "second" without reference to this
proviso.
SECTION 3.02. Event of Loss and Replacement. (a) Any payment received
by the Indenture Trustee with respect to the Engine as the result of an Event
of Loss thereto shall be applied to the redemption of the Equipment Notes and
to all other amounts payable hereunder by applying such funds in the following
order of priority:
first, to reimburse the Indenture Trustee for any reasonable
out-of-pocket costs or expenses incurred in connection with such Event of
Loss,
second, to pay in full the aggregate amount of the payment or
payments of unpaid Principal Amount, and unpaid interest and other
amounts (as well as any interest on overdue Principal Amount, and to the
extent permitted by applicable law, on any overdue interest and any other
overdue amounts) then due to the Note Holders under all Equipment Notes,
all in the order of priority specified in clause "first" of Section 3.01
hereof, and
third, if and to the extent required to be paid to the Lessee (or if
directed by the Lessee, any Permitted Sublessee) in reimbursement of
payment of Stipulated Loss Value pursuant to Section 11(d) of the Lease,
to the Lessee (or if directed by the Lessee, any Permitted Sublessee),
and otherwise as provided in clause "fourth" of Section 3.03 hereof;
provided that, if a Replacement Engine is to be substituted for the Engine
subject to such Event of Loss as provided in Section 11 of the Lease and
Section 5.06 hereof, any proceeds which result from such Event of Loss and are
paid to the Indenture Trustee shall be held by the Indenture Trustee as part of
the Trust Indenture Estate as security for the obligations of the Lessee under
the Operative Documents and invested in accordance with the terms of Section
3.07 hereof and, unless theretofore applied in accordance with the provisions
of the Lease and this
Trust Indenture
48
- 43 -
Indenture, such proceeds shall, to the extent payable to the Lessee under the
Lease, be released to the Lessee (or if directed by the Lessee, any Permitted
Sublessee) upon or in connection with the replacement thereof as provided in
such Sections.
(b) Any amounts received directly or indirectly from any governmental
authority or insurer or other party pursuant to any provision of Section 11 or
12 of the Lease (other than as the result of an Event of Loss with respect to
the Engine) shall be applied as provided in the applicable provisions of the
Lease; provided, however, that to the extent that any portion of such amounts
held for account of the Lessee are not at the time required to be paid to the
Lessee (or any Permitted Sublessee) pursuant to the applicable provisions of
Section 11 or 12 of the Lease, shall be held by the Indenture Trustee as
security for the obligations of the Lessee under the Operative Documents and
shall be invested in accordance with the terms of Section 3.07 hereof and at
such time as the conditions specified in the Lease for payment of such amounts
to the Lessee shall be fulfilled, such portion, and the net proceeds of any
investment thereof, shall, unless theretofore applied in accordance with the
provisions of the Lease and this Indenture, be paid to the Lessee to the extent
provided in the Lease.
SECTION 3.03. Payment After Indenture Event of Default, etc. Except as
otherwise provided in Sections 2.13, 3.02, 3.04(a) and (c) and 6.07 hereof, and
notwithstanding Section 2.05 hereof, all payments received and amounts held or
realized by the Indenture Trustee after an Indenture Event of Default shall
have occurred and be continuing or after the Indenture Trustee has given notice
to the Owner Trustee and the Owner Participant pursuant to Section 4.04(a)
hereof regarding its exercise of remedies under Section 18 of the Lease or of
the foreclosure of this Indenture, or after the Equipment Notes shall have
become due and payable as provided herein, and all payments or amounts then
held by the Indenture Trustee as part of the Trust Indenture Estate, shall, so
long as such Indenture Event of Default shall be continuing, be promptly
distributed by the Indenture Trustee in the following order of priority,
without duplication:
first, so much of such payments or amounts as shall be required to
reimburse the Indenture Trustee for all amounts due to it pursuant to
Section 6.07 hereof, plus any tax, expense, charge or other loss
(including, without limitation, all amounts to be expended at the expense
of, or charged upon the tolls, rents, revenues, issues, products and
profits of, the property included in the Trust Indenture Estate pursuant to
Section 4.05(b) hereof) incurred by the Indenture Trustee (to the extent
not previously reimbursed) (including, without limitation, the expenses of
any sale,
Trust Indenture
49
- 44 -
taking or other proceeding, reasonable attorneys' fees and expenses, court
costs, and any other expenditures incurred or expenditures or advances made
by the Indenture Trustee in the protection, exercise or enforcement of any
right, power or remedy or any damages sustained by the Indenture Trustee,
liquidated or otherwise, upon such Indenture Event of Default) shall be
applied by the Indenture Trustee in reimbursement of such expenses;
second, so much of such payments or amounts remaining as shall be
required to reimburse the then existing or prior Note Holders for
payments made pursuant to Section 5.03 hereof (to the extent not
previously reimbursed) shall be distributed to the then existing or prior
Note Holders, and if the aggregate amount remaining shall be insufficient
to pay all such amounts in full, it shall be distributed ratably, without
priority of one over any other, in accordance with the amount of the
payment or payments made by each such then existing or prior Note Holder
pursuant to said Section 5.03 and applicable (in the case of each such
then existing Note Holder) to the Equipment Notes held by such existing
Note Holder at the time of distribution by the Indenture Trustee;
third, (i) so much of such payments or amounts remaining as shall
be required to pay in full the aggregate unpaid Principal Amount of all
Series A Equipment Notes, and the accrued but unpaid interest and other
amounts due thereon and all other Secured Obligations in respect of the
Series A Equipment Notes (other than Make-Whole Amount, if any) to the
date of distribution, shall be distributed to the Note Holders of Series
A, and in case the aggregate amount so to be distributed shall be
insufficient to pay in full as aforesaid, then ratably, without priority
of one over the other, in the proportion that the aggregate unpaid
Principal Amount of all Series A Equipment Notes held by each Holder plus
the accrued but unpaid interest and other amounts due hereunder or
thereunder (other than Make-Whole Amount, if any) to the date of
distribution, bears to the aggregate unpaid Principal Amount of all
Series A Equipment Notes held by all such Holders plus the accrued but
unpaid interest and other amounts due thereon to the date of
distribution;
(ii) after giving effect to paragraph (i) above, so much of such
payments or amounts remaining as shall be required to pay in full the
aggregate unpaid Principal Amount of all Series B Equipment Notes, and
the accrued but unpaid interest and other amounts due thereon and all
other Secured Obligations in respect of the Series B Equipment Notes
(other than Make-Whole Amount, if any) to the date of
Trust Indenture
50
- 45 -
distribution, shall be distributed to the Note Holders of Series B, and
in case the aggregate amount so to be distributed shall be insufficient
to pay in full as aforesaid, then ratably, without priority of one over
the other, in the proportion that the aggregate unpaid Principal Amount
of all Series B Equipment Notes held by each Holder plus the accrued but
unpaid interest and other amounts due hereunder or thereunder (other than
Make-Whole Amount, if any) to the date of distribution, bears to the
aggregate unpaid Principal Amount of all Series B Equipment Notes held by
all such Holders plus the accrued but unpaid interest and other amounts
due thereon to the date of distribution;
(iii) after giving effect to paragraph (ii) above, so much of such
payments or amounts remaining as shall be required to pay in full the
aggregate unpaid Principal Amount of all Series C Equipment Notes, and
the accrued but unpaid interest and other amounts due thereon and all
other Secured Obligations in respect of the Series C Equipment Notes
(other than Make-Whole Amount, if any) to the date of distribution, shall
be distributed to the Note Holders of Series C, and in case the aggregate
amount so to be distributed shall be insufficient to pay in full as
aforesaid, then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all Series C
Equipment Notes held by each Holder plus the accrued but unpaid interest
and other amounts due hereunder or thereunder (other than Make-Whole
Amount, if any) to the date of distribution, bears to the aggregate
unpaid Principal Amount of all Series C Equipment Notes held by all such
Holders plus the accrued but unpaid interest and other amounts due
thereon to the date of distribution;
(iv) after giving effect to paragraph (iii) above, so much of such
payments or amounts remaining as shall be required to pay in full the
aggregate unpaid Principal Amount of all Series D Equipment Notes, and
the accrued but unpaid interest and other amounts due thereon and all
other Secured Obligations in respect of the Series D Equipment Notes
(other than Make-Whole Amount, if any) to the date of distribution, shall
be distributed to the Note Holders of Series D, and in case the aggregate
amount so to be distributed shall be insufficient to pay in full as
aforesaid, then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all Series D
Equipment Notes held by each Holder plus the accrued but unpaid interest
and other amounts due hereunder or thereunder (other than Make-Whole
Amount, if any) to the date of distribution, bears to the aggregate
unpaid Principal Amount of all Series D Equipment Notes held
Trust Indenture
51
- 46 -
by all such Holders plus the accrued but unpaid interest and other
amounts due thereon to the date of distribution; and
(v) after giving effect to paragraph (iv) above, so much of such
payments or amounts remaining as shall be required to pay in full the
aggregate unpaid Principal Amount of all Series E Equipment Notes, and
the accrued but unpaid interest and other amounts due thereon and all
other Secured Obligations in respect of the Series E Equipment Notes
(other than Make-Whole Amount, if any) to the date of distribution, shall
be distributed to the Note Holders of Series E, and in case the aggregate
amount so to be distributed shall be insufficient to pay in full as
aforesaid, then ratably, without priority of one over the other, in the
proportion that the aggregate unpaid Principal Amount of all Series E
Equipment Notes held by each holder plus the accrued but unpaid interest
and other amounts due hereunder and thereunder (other than Make-Whole
Amount, if any) to the date of distribution, bears to the aggregate
unpaid Principal Amount of all Series E Equipment Notes held by all such
holders plus the accrued but unpaid interest and other amounts due
thereon to the date of distribution; and
fourth, the balance, if any, of such payments or amounts remaining
thereafter shall be distributed to the Owner Trustee for distribution pursuant
to the Trust Agreement and the Lease.
No Make-Whole Amount shall be due and payable on the Equipment Notes as a
consequence of the acceleration of the Equipment Notes.
SECTION 3.04. Certain Payments. (a) Any payments received by the
Indenture Trustee for which provision as to the application thereof is made in
the Lease shall be applied forthwith to the purpose for which such payment was
made in accordance with or as otherwise provided by the terms of the Lease.
(b) The Indenture Trustee will distribute promptly upon receipt any
indemnity payment received by it from the Owner Trustee or the Lessee in
respect of (i) the Indenture Trustee in its individual capacity, (ii) any Pass
Through Trust, (iii) the Subordination Agent, (iv) the Liquidity Providers, and
(v) the Pass Through Trustees, in each case whether pursuant to Section 10 or
13 of the Lease or Section 21 of the Refunding Agreement or as Supplemental
Rent, directly to the Person entitled thereto. Any payment received by the
Indenture Trustee under clause (b) of the fourth paragraph of Section 2.02
shall be distributed to the Subordination Agent to be distributed in accordance
with the terms of the Intercreditor Agreement, and any payment received by the
Indenture Trustee under clause (c) of the fourth paragraph of
Trust Indenture
52
- 47 -
Section 2.02 shall be distributed directly to the Persons entitled thereto.
(c) Notwithstanding anything to the contrary contained in this Article
III, any sums received by the Indenture Trustee that constitute Excepted
Payments shall be distributed promptly upon receipt by the Indenture Trustee
directly to the Person or Persons entitled thereto. Further, and
notwithstanding anything herein to the contrary, any sums received by the
Indenture Trustee under the Lease or any Sublease Assignment as security for
the obligations of the Lessee or the relevant Permitted Sublessee under the
Operative Documents shall be applied only to such obligations or as otherwise
provided in the Lease.
SECTION 3.05. Other Payments. Subject to Sections 3.03 and 3.04 hereof,
any payments received by the Indenture Trustee for which no provision as to the
application thereof is made elsewhere in this Indenture shall be distributed by
the Indenture Trustee, unless otherwise agreed in writing, subject to Section
6.07 hereof (i) to the extent received or realized at any time prior to the
payment in full of all obligations to the Note Holders secured by the Lien of
this Indenture, in the order of priority specified in Section 3.01 hereof, and
(ii) to the extent received or realized at any time after payment in full of
all obligations to the Note Holders secured by the Lien of this Indenture, in
the following order of priority:
first, to the extent payments or amounts described in clause "first"
of Section 3.03 hereof are otherwise obligations of Lessee under the
Operative Documents or for which Lessee is obligated to indemnify against
thereunder, in the manner provided in clause "first" of Section 3.03
hereof, and
second, in the manner provided in clause "fourth" of Section 3.03
hereof.
SECTION 3.06. Payments to Owner Trustee. Any amounts distributed
hereunder by the Indenture Trustee to the Owner Trustee shall be paid to the
Owner Trustee by wire transfer of funds of the type received by the Indenture
Trustee at such office and to such account or accounts of such entity or
entities as shall be designated by notice from the Owner Trustee to the
Indenture Trustee from time to time. The Owner Trustee hereby notifies the
Indenture Trustee that unless and until the Indenture Trustee receives notice
to the contrary from the Owner Trustee, all amounts to be distributed to the
Owner Trustee pursuant to clause "second" of Section 3.01 hereof shall be
distributed by wire transfer of funds of the type received by the Indenture
Trustee to the Owner Participant's account as may be specified pursuant to the
Refunding Agreement.
Trust Indenture
53
- 48 -
SECTION 3.07. Investment of Amounts Held by Indenture Trustee. Any
amounts held by the Indenture Trustee as assignee of the Owner Trustee's rights
to hold moneys for security pursuant to Section 21(h) of the Lease shall be
held in accordance with the terms of such Section; and the Indenture Trustee
hereby agrees to perform the duties of the Owner Trustee under such Section.
Except as provided in the preceding sentence, any amounts held by the Indenture
Trustee pursuant to the proviso to clause "second" of Section 3.01 hereof,
pursuant to Section 3.02 hereof, pursuant to the second sentence of Section
3.04(c) hereof, pursuant to the fourth sentence of Section 4.03 hereof,
pursuant to a Sublease Assignment, or pursuant to any provision of any other
Operative Document providing for amounts to be held by the Indenture Trustee
which are not distributed pursuant to the other provisions of Article III
hereof shall be invested by the Indenture Trustee from time to time in
Specified Investments selected in writing in a timely manner by the Owner
Trustee or, in the event the Owner Trustee shall so specify, by the Lessee.
Unless otherwise expressly provided in this Indenture or the Lease, any income
realized as a result of any such investment and any payments by or on behalf of
the Lessee pursuant to the Lease in respect of any losses or expenses, net of
the Indenture Trustee's reasonable fees and expenses in making such investment,
shall be held and applied by the Indenture Trustee in the same manner as the
principal amount of such investment is to be applied and any losses, net of
earnings and such reasonable fees and expenses, shall be charged against the
principal amount invested. The Indenture Trustee shall not be liable for any
loss resulting from any investment required to be made by it under this
Indenture other than by reason of its willful misconduct or gross negligence,
and any such investment may be sold (without regard to its maturity) by the
Indenture Trustee without instructions whenever the Indenture Trustee
reasonably believes such sale is necessary to make a distribution required by
this Indenture.
ARTICLE IV
COVENANTS OF TRUST COMPANY AND OWNER
TRUSTEE; INDENTURE EVENTS OF DEFAULT;
REMEDIES OF INDENTURE TRUSTEE
SECTION 4.01. Covenants of Trust Company and Owner Trustee. (a) The
Trust Company hereby covenants and agrees that it will not directly or
indirectly create, incur, assume or suffer to exist any Lessor's Lien
attributable to it in its individual capacity with respect to any of the
properties or assets of the Trust Indenture Estate and shall, at its own cost
and expense promptly take such action as may be necessary duly to discharge any
such Lessor's Lien, and the Trust Company will
Trust Indenture
54
- 49 -
cause restitution to be made to the Trust Indenture Estate in the amount of any
diminution of the value thereof as the result of any Lessor's Liens
attributable to it.
(b) The Owner Trustee hereby covenants and agrees as follows:
(i) the Owner Trustee will duly and punctually pay the Principal
Amount of, Make-Whole Amount, if any, and interest on and other amounts
due under the Equipment Notes and hereunder in accordance with the terms
of the Equipment Notes and this Indenture and all amounts payable by it
to the Note Holders under the Refunding Agreement and the other Operative
Documents;
(ii) the Owner Trustee will not directly or indirectly create,
incur, assume or suffer to exist any Lessor's Liens attributable to it
with respect to any of the properties or assets of the Trust Indenture
Estate, and shall, at its own cost and expense, promptly take such action
as may be necessary duly to discharge any such Lessor's Lien, and the
Owner Trustee will cause restitution to be made to the Trust Indenture
Estate in the amount of any diminution of the value thereof as the result
of any Lessor's Liens attributable to it;
(iii) in the event an officer with responsibility for or familiarity
with the transactions contemplated hereunder or under the other Operative
Documents (or any Vice President) in the Corporate Trust Administration
Department of the Owner Trustee shall have actual knowledge of an
Indenture Default or an Event of Loss, the Owner Trustee will give prompt
written notice of such Indenture Default or Event of Loss to the
Indenture Trustee, the Lessee and the Owner Participant;
(iv) the Owner Trustee will furnish to the Indenture Trustee,
promptly upon receipt thereof, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and other
instruments furnished to the Owner Trustee under the Lease, including,
without limitation, a copy of each report or notice received pursuant to
Section 12(f) of the Lease, to the extent that the same shall not have
been furnished, or is not required to be furnished by the Lessee, to the
Indenture Trustee pursuant to the Lease or otherwise;
(v) except as contemplated by the Operative Documents or with the
consent of the Indenture Trustee acting in accordance with Article IX
hereof, the Owner Trustee will not incur any indebtedness for borrowed
money; and
Trust Indenture
55
- 50 -
(vi) the Owner Trustee will not enter into any business or other
activity other than the business of owning the Engine, the leasing
thereof to the Lessee and the carrying out of the transactions
contemplated hereby and by the Lease, the Refunding Agreement, the Trust
Agreement and the other Operative Documents.
SECTION 4.02. Indenture Events of Default. "Indenture Event of Default"
means any of the following events (whatever the reason for such Indenture Event
of Default and whether such event shall be voluntary or involuntary or come
about or be effected by operation of law or pursuant to or in compliance with
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(a) any Lease Event of Default shall occur and be continuing (other
than a failure to pay when due any amount in respect of Excepted
Payments); or
(b) the failure of the Owner Trustee to pay when due any payment of
Principal Amount of, or interest on, any Equipment Note (other than as a
result of a Lease Default) and such failure shall have continued
unremedied for ten calendar days; or the failure of the Owner Trustee to
pay when due any other amount due and payable under any Equipment Note or
hereunder (other than as a result of a Lease Default) and such failure
shall have continued unremedied for 15 calendar days after notice thereof
being given to the Owner Trustee from the Indenture Trustee or any Note
Holder; or
(c) any Lessor's Lien required to be discharged by the Trust Company
pursuant to Section 4.01(a) hereof or Section 13 of the Refunding
Agreement or by the Owner Trustee as the Owner Trustee pursuant to
Section 4.01(b)(ii) hereof or Section 13 of the Refunding Agreement or
any Lessor's Lien required to be discharged by the Owner Participant
pursuant to Section 13 of the Refunding Agreement shall remain
undischarged for a period of 30 calendar days after, as the case may be,
an officer with responsibility for or familiarity with the transactions
contemplated hereunder or under the other Operative Documents (or any
Vice President) in the Corporate Trust Administration Department of the
Trust Company or an officer of the Owner Participant with responsibility
for or familiarity with the transactions contemplated hereunder and under
the other Operative Documents (or any Vice President) shall have actual
knowledge of such Lien; provided, that no Indenture Event of Default
shall arise under this Section 4.02(c) as a result of a failure by the
Owner Trustee or the Owner Participant to observe or perform any covenant
referred to in this Section
Trust Indenture
56
- 51 -
4.02(c) if the Lessee shall have discharged all Lessor's Liens required
to be discharged by the Owner Trustee or the Owner Participant pursuant
to such covenants and compensated the Indenture Trustee and the Trust
Indenture Estate for all claims, losses and expenses arising from the
failure of the Owner Trustee or the Owner Participant, as the case may
be, to observe and perform any such covenant; or
(d) any representation or warranty made by the Owner Participant,
the Owner Trustee or the Trust Company herein or in the Refunding
Agreement or by any Person (if any) guaranteeing or supporting the
obligations of the Owner Participant under the Operative Documents or in
any related guarantee or support agreement shall prove to have been false
or incorrect when made in any respect materially adverse to the rights
and interests of the Note Holders; and if such misrepresentation is
capable of being corrected as of a subsequent date and if such correction
is being sought diligently, such misrepresentation shall not have been
corrected as of a day within 30 calendar days following notice thereof
being given to the Owner Participant, the Owner Trustee, the Trust
Company or such Person (if any), as the case may be, by the Indenture
Trustee or a Majority in Interest of Note Holders; or
(e) any failure of the Owner Trustee to observe or perform any of
its covenants or agreements in the fourth paragraph following the
Habendum Clause hereof or in clauses (b)(v) and (b)(vi) of Section 4.01
hereof, or any failure by the Owner Participant or the Trust Company to
observe or perform any of its respective covenants in Section 9(b)(11),
10 or 14 of the Refunding Agreement; or
(f) except as provided in the following paragraph (j), any failure
by the Owner Trustee or the Trust Company to observe or perform any other
covenant or obligation of the Owner Trustee contained in this Indenture
or in the Refunding Agreement or any failure by the Owner Participant to
observe or perform any other covenant or obligation of the Owner
Participant contained in the Refunding Agreement or any failure of any
Person (if any) that may guarantee or support the obligations of an Owner
Participant not originally party to the Refunding Agreement under the
Operative Documents to observe or perform any covenant or obligation of
such Person contained in any such guarantee or support agreement, which
failure, in any case and either individually or together with other then
existing failures, shall have a material adverse effect on the rights and
interests of the Indenture Trustee or any Note Holder and is not remedied
within a period of 45 calendar days following notice being given to the
Owner Trustee, the Owner
Trust Indenture
57
- 52 -
Participant or such Person, as the case may be, by the Indenture Trustee
or a Majority in Interest of Note Holders; or
(g) either the Trust Estate or the Owner Trustee with respect
thereto (and not in its individual capacity) or the Owner Participant or
any Person (if any) that may guarantee or support the obligations of an
Owner Participant not originally party to the Refunding Agreement under
the Operative Documents shall (i) be unable to pay its debts generally as
they become due within the meaning of the Bankruptcy Code, (ii) file, or
consent by answer or otherwise to the filing against it of a petition for
relief or reorganization or arrangement or any other petition in
bankruptcy, for liquidation or to take advantage of any bankruptcy or
insolvency law of any jurisdiction, (iii) make an assignment for the
benefit of its creditors, (iv) consent to the appointment of a custodian,
receiver, trustee or other officer with similar powers of itself or any
substantial part of its property, or (v) take corporate or comparable
action for the purpose of any of the foregoing; or
(h) a court or governmental authority of competent jurisdiction
shall enter an order appointing, without consent by the Trust Estate or
the Owner Trustee with respect thereto (and not in its individual
capacity) or the Owner Participant or any Person (if any) that may
guarantee or support the obligations of an Owner Participant not
originally party to the Refunding Agreement under the Operative
Documents, as the case may be, a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect to any
substantial part of its property, or constituting an order for relief or
approving a petition for relief or reorganization or any other petition
in bankruptcy or for liquidation or to take advantage of any bankruptcy
or insolvency law of any jurisdiction, or ordering the dissolution,
winding-up or liquidation of the Trust Estate or the Owner Trustee with
respect thereto (and not in its individual capacity) or the Owner
Participant or such Person, as the case may be; or
(i) any petition for any relief specified in the foregoing paragraph
(h) shall be filed against the Trust Estate or the Owner Trustee with
respect thereto (and not in its individual capacity) or the Owner
Participant or any Person (if any) that may guarantee or support the
obligations of an Owner Participant not originally party to the Refunding
Agreement under the Operative Documents, as the case may be, and such
petition shall not be dismissed within 60 days; or
Trust Indenture
58
- 53 -
(j) at any time when the Engine shall be registered in a
jurisdiction outside the United States, the Owner Trustee, the Trust
Company or the Owner Participant shall breach any covenant as may be
agreed upon pursuant to Section 11 of the Refunding Agreement as the
result of which the Lien of this Indenture shall cease to be a valid and
duly perfected Lien on the Trust Indenture Estate.
SECTION 4.03. Certain Rights. In the event of any default by the Lessee
in the payment of any installment of Basic Rent due under the Lease, the Owner
Participant may, within ten calendar days (or such longer period ending on the
second day after the expiry of the applicable grace period specified in the
Lease with respect to such default) after notice from the Indenture Trustee or
the Lessee of such default, without the consent or concurrence of any Note
Holder, pay, as provided in Section 2.04 hereof, for application in accordance
with Section 3.01 hereof, a sum equal to the amount of all (but not less than
all) of the Principal Amount and interest as shall then (without regard to any
acceleration pursuant to Section 4.04(b) or (c) hereof) be due and payable on
the Equipment Notes. In the event of any default by the Lessee in any
obligation under the Lease other than the payment of Basic Rent, if such
default can be remedied by the payment of money and the Owner Trustee shall
have been furnished by the Owner Participant with all funds necessary for
remedying such default, the Owner Participant may, within fifteen calendar days
(or such longer period ending on the second day after the expiry of any
applicable grace period specified in the Lease with respect to such default)
after notice from the Indenture Trustee or the Lessee of such default, without
the consent or concurrence of any Note Holder, instruct the Owner Trustee to
exercise the Owner Trustee's rights under Section 21(d) of the Lease to perform
such obligation on behalf of the Lessee. Solely for the purpose of determining
whether there exists an Indenture Event of Default, (a) any timely payment by
the Owner Participant pursuant to, and in compliance with, the first sentence
of this Section 4.03 shall be deemed to remedy (but solely for purposes of this
Indenture) any default by the Lessee in the payment of Basic Rent theretofore
due and payable and to remedy (but solely for purposes of this Indenture) any
default by the Owner Trustee in the payment of any amount due and payable under
the Equipment Notes or hereunder, and (b) any timely performance by the Owner
Trustee of any obligation of the Lessee under the Lease pursuant to, and in
compliance with, the second sentence of this Section 4.03 shall be deemed to
remedy (but solely for purposes of this Indenture) any default by the Lessee
under the Lease to the same extent that like performance by the Lessee itself
would have remedied such default (but any such payment or performance shall not
relieve the Lessee of its duty to pay all Rent and perform all of its
obligations pursuant to the Lease). If, on the basis specified in the
preceding
Trust Indenture
59
- 54 -
sentence, such Lease Event of Default shall have been remedied, then any
declaration pursuant to the Lease that the Lease is in default, and any
declaration pursuant to this Indenture that the Equipment Notes are due and
payable or that an Indenture Event of Default exists hereunder, based upon such
Lease Event of Default, shall be deemed to be rescinded, and the Owner
Participant or the Owner Trustee, as the case may be, shall (to the extent of
any such payments made by it) be subrogated to the rights of the Note Holders
hereunder to receive such payment of Rent from the Indenture Trustee (and the
payment of interest on account of such Rent being overdue), and shall be
entitled, so long as no other Indenture Default or Indenture Event of Default
shall have occurred and be continuing, to receive, subject to the terms of this
Indenture, such payment upon receipt thereof by the Indenture Trustee; provided
that the Owner Participant shall not otherwise attempt to recover any such
amount paid by it on behalf of the Lessee pursuant to this Section 4.03 except
by demanding of the Lessee payment of such amount, or by commencing an action
at law against the Lessee and obtaining and enforcing a judgment against the
Lessee for the payment of such amount or taking appropriate action in a pending
action at law against the Lessee or by demanding Excepted Payments or Excepted
Rights; provided, however, that at no time while an Indenture Event of Default
shall have occurred and be continuing shall any such demand be made or shall
any such action be commenced (or continued) and any amounts nevertheless
received by the Owner Participant in respect thereof shall be held in trust for
the benefit of, and promptly paid to, the Indenture Trustee for distribution as
provided in Section 3.03 hereof; and provided, further, that
(x) this Section 4.03 shall not apply with respect to any default in
the payment of Basic Rent due under the Lease, if the Lessee itself shall
have theretofore failed to pay Basic Rent in the manner required under
the Lease (after giving effect to any applicable grace period) as to (i)
each of the three Basic Rent Payment Dates immediately preceding the date
of such default or (ii) in the aggregate more than six Basic Rent Payment
Dates,
(y) the second sentence of this Section 4.03 shall cease to apply,
and no payment by the Owner Participant in respect of Supplemental Rent
or performance of any obligation of the Lessee under the Lease by the
Owner Trustee shall be deemed to remedy or to have remedied any Lease
Event of Default for the purposes of this Indenture, if during the
12-month period immediately preceding the relevant default by the Lessee
there shall have been expended by the Owner Participant pursuant to the
second sentence of this Section 4.03 (and shall have not been reimbursed
by the Lessee or any Permitted Sublessee
Trust Indenture
60
- 55 -
themselves to the Owner Trustee for distribution to the Owner
Participant) an amount in excess of $3,500,000, and
(z) neither the Owner Trustee nor the Owner Participant shall
(without the prior written consent of a Majority in Interest of Note
Holders) have the right to cure any Lease Default or Lease Event of
Default except as specified in this Section 4.03.
SECTION 4.04. Remedies. (a) If an Indenture Event of Default shall have
occurred and be continuing and so long as the same shall be continuing
unremedied, and if the Equipment Notes shall have been accelerated pursuant to
Section 4.04(b) or 4.04(c) hereof, then and in every such case the Indenture
Trustee may (subject to the rights of the Owner Participant or the Owner
Trustee to cure any such Indenture Event of Default set forth in Section 4.03
hereof and the obligations of the Indenture Trustee set forth in this Section
4.04(a) and subject to Section 10.05 hereof) exercise any or all of the rights
and powers and pursue any and all of the remedies pursuant to this Article IV
and shall have and may exercise all of the rights and remedies of a secured
party under the Uniform Commercial Code and, in the event such Indenture Event
of Default is an Indenture Event of Default referred to in paragraph (a) of
Section 4.02 hereof, the Indenture Trustee may (subject as aforesaid), at the
direction of a Majority in Interest of Note Holders, exercise any and all of
the remedies pursuant to Section 18 of the Lease and pursuant to any Sublease
Assignment and may take possession of all or any part of the properties covered
or intended to be covered by the Lien and security interest created hereby or
pursuant hereto but, in the case of the Engine, only as permitted by Section 18
of the Lease, and may exclude the Owner Participant, the Owner Trustee and the
Lessee and all Persons claiming under any of them or wholly or partly
therefrom; provided, however, that the Indenture Trustee shall give the Owner
Trustee and the Owner Participant ten days' prior written notice of the initial
exercise of such remedies by the Indenture Trustee under the Lease (if not
stayed or otherwise precluded by applicable law from giving such notice);
provided, further, that the Indenture Trustee shall give the Owner Trustee and
the Owner Participant twenty days' prior written notice of its intention to
sell the Engine. Without limiting any of the foregoing, it is understood and
agreed that the Indenture Trustee may exercise any right of sale of the Engine
available to it, even though it shall not have taken possession of the Engine
and shall not have possession thereof at the time of such sale.
Anything in this Indenture to the contrary notwithstanding, the Indenture
Trustee shall not be entitled to exercise any remedy hereunder if there shall
have occurred or be continuing a Lease Event of Default unless the Indenture
Trustee
Trust Indenture
61
- 56 -
shall have exercised or concurrently be exercising one or more of the remedies
provided for in Section 18 of the Lease to terminate the Lease or take
possession and/or sell the Engine; provided, however, that such requirement to
exercise one or more of such remedies under the Lease shall not apply in
circumstances where the Indenture Trustee is, and has been, for a continuous
period in excess of 60 days or such other period as may be specified in Section
1110(a)(1)(A) of the Bankruptcy Code (such 60-day or other period being the
"Section 1110 Period"), stayed or prohibited by applicable law or court order
from exercising such remedies under the Lease (a "Continuous Stay Period");
provided further, however, that the requirement to exercise one or more of such
remedies under the Lease shall nonetheless be applicable during a Continuous
Stay Period subsequent to the expiration of the Section 1110 Period to the
extent that the continuation of such Continuous Stay Period subsequent to the
expiration of the Section 1110 Period (A) results from an agreement by the
trustee or the debtor-in-possession in such proceeding during the Section 1110
Period with the approval of the relevant court to perform the Lease in
accordance with Section 1110(a)(1)(A) of the Bankruptcy Code and continues to
perform as required by Section 1110(a)(1) of the Bankruptcy Code or (B) is an
extension of the Section 1110 Period with the consent of the Indenture Trustee
pursuant to Section 1110(b) of the Bankruptcy Code or (C) results from the
Lessee's assumption during the Section 1110 Period with the approval of the
relevant court of the Lease pursuant to Section 365 of the Bankruptcy Code or
(D) is the consequence of the Indenture Trustee's own failure to give any
requisite notice to any Person (unless the Indenture Trustee is stayed or
otherwise precluded by applicable law from giving such notice). In the event
that the applicability of Section 1110 of the Bankruptcy Code to the Engine is
being contested by the Lessee in judicial proceedings, so long as the Indenture
Trustee fails to participate in such proceedings, the Owner Trustee shall have
the right (without affecting in any way any right or remedy of the Indenture
Trustee hereunder) to participate in such proceedings.
The foregoing shall not preclude the Indenture Trustee from notifying any
Permitted Sublessee that payments under any Assigned Sublease are to be made
directly to it pursuant to the terms of the relevant Sublease Assignment, or,
except as expressly provided above, from exercising its rights or remedies
hereunder and under the other Operative Documents. For the avoidance of doubt,
it is expressly understood and agreed, subject only to the immediately
preceding paragraph, that the above-described inability of the Indenture
Trustee to exercise any right or remedy under the Lease shall in no event and
under no circumstance prevent the Indenture Trustee from otherwise exercising
all of its rights, powers and remedies under this Indenture, including without
limitation this Article IV.
Trust Indenture
62
- 57 -
(b) If an Indenture Event of Default referred to in clause (g), (h) or (i)
of Section 4.02 hereof shall have occurred, or a Lease Event of Default under
clause (e), (f) or (g) of Section 17 of the Lease shall have occurred, then and
in every such case the unpaid Principal Amount of all Equipment Notes then
outstanding, together with accrued but unpaid interest and all other amounts
due thereunder and hereunder, shall immediately and without further act become
due and payable without presentment, demand, protest or notice, all of which
are hereby waived.
(c) If any Indenture Event of Default not specified in Section 4.04(b)
hereof shall have occurred and be continuing, then and in every such case the
Indenture Trustee may (and shall, upon receipt of a written demand therefor
from a Majority in Interest of Note Holders), subject to Section 4.03 hereof,
at any time, by written notice or notices to the Owner Trustee, declare the
unpaid Principal Amount of all Equipment Notes to be due and payable, whereupon
the unpaid Principal Amount of all Equipment Notes then outstanding, together
with accrued but unpaid interest thereon and all other amounts due thereunder
and hereunder, shall immediately become due and payable without presentment,
demand, protest or further notice, all of which are hereby waived.
(d) Sections 4.04(b) and (c), however, are subject to the condition that,
if at any time after the Principal Amount of the Equipment Notes shall have
become so due and payable, and before any judgment or decree for the payment of
the money so due, or any thereof, shall be entered, all overdue payments of
interest upon the Equipment Notes and all other amounts payable under the
Equipment Notes (except the Principal Amount of the Equipment Notes which by
such declaration shall have become payable) shall have been duly paid and every
other Indenture Default and Indenture Event of Default with respect to any
covenant or provision of this Indenture shall have been cured, then and in
every such case a Majority in Interest of Note Holders may (but shall not be
obligated to), by written instrument filed with the Indenture Trustee, rescind
and annul the Indenture Trustee's declaration and its consequences; but no such
rescission or annulment shall extend to or affect any subsequent Indenture
Default or Indenture Event of Default or impair any right consequent thereon.
Any acceleration pursuant to Sections 4.04(b) and (c) shall be
automatically rescinded and any related declaration of an Indenture Event of
Default annulled in the event that the Owner Trustee or the Owner Participant,
as the case may be, shall have cured, in accordance with Section 4.03, the
Indenture Event of Default that resulted in such acceleration.
Trust Indenture
63
- 58 -
Except as otherwise provided in Section 2.12, no Make-Whole Amount shall
become payable on the Equipment Notes as a result of any acceleration under
Sections 4.04(b) or 4.04(c).
(e) Each Note Holder shall be entitled, at any sale pursuant to Section 18
of the Lease, to credit against any purchase price bid at such sale by such
Note Holder all or any part of the unpaid obligations owing to such Note Holder
and secured by the Lien of this Indenture. The Owner Trustee or Owner
Participant may be a cash purchaser at any such sale.
(f) Notwithstanding anything contained herein, so long as the Pass
Through Trustee under any Pass Through Trust Agreement or the Subordination
Agent on its behalf is a Note Holder, the Indenture Trustee will not be
authorized or empowered to acquire title to any property in the Trust Indenture
Estate or take any action with respect to any property in the Trust Indenture
Estate so acquired by it if such acquisition or action would cause any trust
created pursuant to the Trust Agreement to fail to qualify as a "grantor trust"
for federal income tax purposes.
SECTION 4.05. Return of the Engine, etc. (a) Subject to the rights of
the Owner Trustee and the Owner Participant under Section 4.03 hereof and
unless the Owner Participant shall have theretofore purchased the Equipment
Notes pursuant to Section 2.12 hereof, if an Indenture Event of Default shall
have occurred and be continuing and the Equipment Notes shall have been
accelerated pursuant to Section 4.04(b) or 4.04(c) hereof, at the request of
the Indenture Trustee the Owner Trustee shall promptly execute and deliver to
the Indenture Trustee such instruments of title and other documents as the
Indenture Trustee may deem necessary or advisable to enable the Indenture
Trustee or an agent or representative designated by the Indenture Trustee, at
such time or times and place or places as the Indenture Trustee may specify, to
obtain possession of all or any part of the Trust Indenture Estate; provided
that the Indenture Trustee shall at the time be entitled to obtain such
possession under Section 4.04(a) and the other applicable provisions of this
Indenture. If the Owner Trustee shall for any reason fail to execute and
deliver such instruments and documents after such request by the Indenture
Trustee, the Indenture Trustee may (i) obtain a judgment conferring on the
Indenture Trustee the right to immediate possession and requiring the Owner
Trustee to execute and deliver such instruments and documents to the Indenture
Trustee, to the entry of which judgment the Owner Trustee hereby specifically
consents to the fullest extent it may lawfully do so, and (ii) to the extent
permitted by law, pursue all or part of the Trust Indenture Estate wherever it
may be found (but not in violation of Section 10.05 hereof or of the Lease) and
may enter any of the premises of the Lessee wherever
Trust Indenture
64
- 59 -
such Trust Indenture Estate may be or be supposed to be and search for and take
possession of and remove the same (but not in violation of Section 10.05 hereof
or of the Lease). All expenses of obtaining such judgment or of pursuing,
searching for and taking such property shall, until paid, be secured by the
Lien of this Indenture.
(b) Upon a Lease Event of Default which is continuing, the Indenture
Trustee may, from time to time, at the expense of the Trust Indenture Estate,
make all such expenditures for maintenance, insurance, repairs, replacements,
alterations, additions and improvements to and of the Trust Indenture Estate,
as it may deem proper (it being understood and agreed that the provisions
hereof shall not be construed so as to expand the obligations of the Lessee
under the Lease). In each such case, the Indenture Trustee shall have the
right to maintain, use, operate, store, lease, control or manage the Trust
Indenture Estate and to carry on the business (without limiting the express
provisions of Section 5.10 hereof) and to exercise all rights and powers of the
Owner Participant and the Owner Trustee relating to the Trust Indenture Estate,
as the Indenture Trustee shall deem best, including the right to enter into any
and all such agreements with respect to the maintenance, insurance, use,
operation, storage, leasing, control, management or disposition of the Trust
Indenture Estate or any part thereof as the Indenture Trustee may determine;
and the Indenture Trustee shall be entitled to collect and receive directly all
tolls, rents (including Rent), revenues, issues, income, products and profits
of the Trust Indenture Estate and every part thereof, except Excepted Payments,
without prejudice, however, to the right of the Indenture Trustee under any
provision of this Indenture to collect and receive all cash held by, or
required to be deposited with, the Indenture Trustee hereunder, except Excepted
Payments. The Indenture Trustee shall, pursuant to the exercise of its
remedies under this Article IV, to the extent permitted by applicable law, be
entitled to the appointment of a receiver for all or any part of the Trust
Indenture Estate, whether such receivership be incidental to a proposed sale of
the Trust Indenture Estate or otherwise, and the Owner Trustee hereby consents
to the appointment of such receiver and will not oppose any such appointment.
Such tolls, rents (including Rent), revenues, issues, income, products and
profits shall be applied to pay the expenses of the use, operation, storage,
leasing, control, management or disposition of the Trust Indenture Estate and
of conducting the business thereof, and of all maintenance, repairs,
replacements, alterations, additions and improvements, and to make all payments
which the Indenture Trustee may be required or may elect to make, if any, for
taxes, assessments, insurance or other proper charges upon the Trust Indenture
Estate or any part thereof (including the employment of engineers and
accountants to examine, inspect and make reports upon the
Trust Indenture
65
- 60 -
properties and books and records of the Owner Trustee), and all other payments
that the Indenture Trustee may be required or authorized to make under any
provision of this Indenture, as well as just and reasonable compensation for
the services of the Indenture Trustee, and of all Persons properly engaged and
employed by the Indenture Trustee.
SECTION 4.06. Remedies Cumulative. Each and every right, power and
remedy given to the Indenture Trustee specifically or otherwise in this
Indenture 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 be exercised from time to
time and as often and in such order as may be deemed expedient by the Indenture
Trustee, and the exercise or the beginning of the exercise of any power or
remedy shall not be construed to be a waiver of the right to exercise at the
same time or thereafter any other right, power or remedy. No delay or omission
by the Indenture Trustee in the exercise of any right, remedy or power or in
the pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the Owner Trustee or the
Lessee or to be an acquiescence therein.
SECTION 4.07. Discontinuance of Proceedings. In case the Indenture
Trustee or any Note Holder shall have instituted any proceeding to enforce any
right, power or remedy under this Indenture by foreclosure, entry or otherwise,
and such proceedings shall have been discontinued or abandoned for any reason
or shall have been determined adversely to the Indenture Trustee or such Note
Holder, then and in every such case the Owner Trustee, the Indenture Trustee,
the Note Holders and the Lessee shall, subject to any determination in such
proceedings, be restored to their former positions and rights hereunder with
respect to the Trust Indenture Estate, and all rights, remedies and powers of
the Indenture Trustee and the Note Holders shall continue as if no such
proceedings had been instituted.
SECTION 4.08. Waiver of Past Indenture Defaults. Upon written
instructions from a Majority in Interest of Note Holders, the Indenture Trustee
shall waive any past Indenture Default hereunder and its consequences and upon
any such waiver such Indenture Default shall cease to exist and any Indenture
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other Indenture Default or impair any right consequent thereon; provided,
however, that in the absence of written instructions from the Holders of all
Equipment Notes then outstanding, the Indenture Trustee shall not waive any
Indenture Default (i) in the payment of the Principal Amount of or interest
Trust Indenture
66
- 61 -
on any Equipment Note then outstanding, or (ii) in respect of a covenant or
provision hereof which, under Article IX hereof, cannot be modified or amended
without the consent of each Note Holder.
SECTION 4.09. Indenture Trustee May Prove Debt. If the Owner Trustee
shall fail to pay any amount payable hereunder or under the Equipment Notes,
the Indenture Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Owner Trustee or other
obligor upon the Equipment Notes and collect in the manner provided by law out
of the property of the Owner Trustee or other obligor upon the Equipment Notes,
wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Owner Trustee
under the Bankruptcy Code or any other applicable Federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Owner Trustee or its
property, or in case of any other comparable judicial proceedings relative to
the Owner Trustee upon the Equipment Notes, or to the property of the Owner
Trustee, the Indenture Trustee, irrespective of whether the Principal Amount of
the Equipment Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee
shall have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
Principal Amount and interest owing and unpaid in respect of the
Equipment Notes, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation, expenses and
disbursements to the Indenture Trustee and each predecessor Indenture
Trustee, and their respective agents, attorneys and counsel, and for
reimbursement of the Indenture Trustee and each predecessor Indenture
Trustee, except as a result of negligence or bad faith) and of the Note
Holders allowed in any judicial proceedings relative to the Owner Trustee
or to the property of the Owner Trustee,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Note Holders in any election of a trustee or a standby
trustee in arrangement,
Trust Indenture
67
- 62 -
reorganization, liquidation or other bankruptcy or insolvency proceedings
or Person performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Note Holders and of the Indenture
Trustee on their behalf;
and any trustee, receiver, or liquidator, custodian or other similar official
is hereby authorized by each of the Note Holders (by such Note Holder's
acceptance of an Equipment Note) to make payments to the Indenture Trustee,
and, in the event that the Indenture Trustee shall consent to the making of
payments directly to the Note Holders, to pay to the Indenture Trustee such
amounts as shall be sufficient to cover reasonable compensation, expenses and
disbursements to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred by the Indenture Trustee and each predecessor Indenture
Trustee except as a result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Note Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Equipment Notes or the rights of any Holder thereof,
or to authorize the Indenture Trustee to vote in respect of the claim of any
Note Holder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar Person.
All rights of action and of asserting claims under this Indenture, or
under any of the Equipment Notes, may be prosecuted and enforced by the
Indenture Trustee without the possession of any of the Equipment Notes or the
production thereof in any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Indenture Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of judgment,
subject to the payment of the expenses, disbursements and compensation of the
Indenture Trustee, each predecessor Indenture Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the Note Holders.
In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all
Trust Indenture
68
- 63 -
the Note Holders, and it shall not be necessary to make any Note Holders
parties to any such proceedings.
SECTION 4.10. Limitations on Suits by Note Holders. No Note Holder shall
have any right to pursue a remedy under this Indenture or any Equipment Note,
unless such Note Holder previously shall have given to the Indenture Trustee
written notice of an Indenture Default and of the continuance thereof, as
hereinbefore provided, and unless also a Majority in Interest of Note Holders
shall have made a written request to the Indenture Trustee to pursue such
remedy and shall have offered to the Indenture Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby and the Indenture Trustee for 60 days after its
receipt of such notice, request and offer of indemnity shall have failed to
pursue such remedy and no direction inconsistent with such written request
shall have been given to the Indenture Trustee during such 60-day period
pursuant to Section 5.02 hereof; it being understood and intended, and being
expressly covenanted by each Note Holder and the Indenture Trustee, that no one
or more Note Holders shall have any right in any manner whatever by virtue or
by availing of any provision of this Indenture to affect, disturb or prejudice
the rights of any other Note Holder or, except as otherwise provided herein
(including, without limitation, Section 2.13), to obtain or seek to obtain
priority over or preference to any other such Note Holder or to enforce any
right under this Indenture, except in the manner herein provided. For the
protection and enforcement of the provisions of this Section 4.10, each and
every Note Holder and the Indenture Trustee shall be entitled to such relief as
can be given either at law or in equity.
SECTION 4.11. Unconditional Right of Note Holders to Receive Principal,
Interest and Premium, and to Institute Certain Suits. Notwithstanding any
other provision in this Indenture and any provision of any Equipment Note, the
right of any Note Holder to receive payment of the Principal Amount of and
interest on such Equipment Note on or after the respective due dates expressed
in such Equipment Note, or, subject to Section 4.10, to institute suit in a
manner consistent with the limitations contained in Section 4.04(a) hereof for
the enforcement of any such payment on or after such respective dates as herein
provided, shall not be impaired or affected without the consent of such Note
Holder.
Trust Indenture
69
- 64 -
ARTICLE V
DUTIES OF THE INDENTURE TRUSTEE
SECTION 5.01. Notice of Indenture Event of Default. In the event the
Indenture Trustee shall have knowledge of an Indenture Event of Default, or
shall have knowledge of an Indenture Default arising either from a failure to
pay Rent or a Lease Default of the type referred to in the second sentence of
Section 4.03, the Indenture Trustee shall give prompt notice thereof to the
Owner Trustee, the Owner Participant and the Lessee by facsimile, telex,
telegraph or telephone (confirmed by written notice in the manner provided by
Section 10.06 hereof), and to each Note Holder by first-class mail. Subject to
the terms of Sections 2.12, 4.03, 4.04, 4.08, 4.09, 5.03, 5.10 and 10.05 hereof
and of this Section 5.01, the Indenture Trustee shall take such action, or
refrain from taking such action, with respect to any Indenture Event of Default
or Indenture Default (including with respect to the exercise of any rights or
remedies hereunder) as the Indenture Trustee shall be instructed in writing by
a Majority in Interest of Note Holders. Subject to the provisions of Section
5.03 hereof, if the Indenture Trustee shall not have received instructions as
above provided within 20 calendar days after mailing notice of such Indenture
Default or Indenture Event of Default to the Note Holders, the Indenture
Trustee may, subject to instructions thereafter received pursuant to the
preceding provisions of this Section 5.01, take such action, or refrain from
taking such action, but shall be under no duty to take or refrain from taking
any action, with respect to such Indenture Default or Indenture Event of
Default as it shall determine to be advisable and in the best interests of the
Note Holders and shall use the same degree of care and skill in connection
therewith as a prudent person would use under the circumstances in the conduct
of its own affairs; provided that the Indenture Trustee may not sell the Engine
or any part thereof without the consent of a Majority in Interest of Note
Holders. In the event the Indenture Trustee shall at any time elect to
foreclose or otherwise enforce this Indenture, the Indenture Trustee shall
forthwith notify, to the extent (in the case of any such party) not stayed or
otherwise prohibited by applicable law, the Owner Participant, the Note
Holders, the Owner Trustee and the Lessee. For all purposes of this Indenture,
in the absence of actual knowledge on the part of an officer in the Corporate
Trust Office, in the case of the Indenture Trustee, or its Corporate Trust
Administration Department, in the case of the Owner Trustee, the Indenture
Trustee or the Owner Trustee, as the case may be, shall not be deemed to have
knowledge of an Indenture Event of Default (except, in the case of the
Indenture Trustee, the failure of the Lessee to pay any installment of Rent
when due, if any portion of such installment was then required to be paid to
the Indenture Trustee, which failure shall constitute
Trust Indenture
70
- 65 -
knowledge of an Indenture Default for purposes of the first sentence of this
Section 5.01) unless notified in writing by the Lessee, the Owner Trustee or
one or more Note Holders or, in the case of the Owner Trustee, by the Indenture
Trustee.
SECTION 5.02. Action Upon Instructions. Subject to the terms of Sections
2.12, 4.03, 4.04, 4.08, 4.09, 5.01, 5.03, 5.10, 9.01 and 10.05 hereof, upon the
written instructions at any time and from time to time of a Majority in
Interest of Note Holders, the Indenture Trustee shall take such of the
following actions as may be specified in such instructions: (i) exercise such
election or option, or make such decision or determination, or give such
notice, consent, waiver or approval or exercise such right, remedy or power to
take such other action hereunder or under any other Indenture Document or in
respect of any part or all of the Trust Indenture Estate as shall be specified
in such instructions; (ii) take such action with respect to, or to preserve or
protect, the Trust Indenture Estate (including the discharge of Liens) as shall
be specified in such instructions and as are consistent with this Indenture;
and (iii) take such other action in respect of the subject matter of this
Indenture as is consistent with the terms hereof and of the other Indenture
Documents. The Indenture Trustee will execute and the Owner Trustee will file
or cause to be filed such continuation statements with respect to financing
statements relating to the security interest created hereunder in the Trust
Indenture Estate as may be specified from time to time in written instructions
of a Majority in Interest of Note Holders (which instructions may, by their
terms, be operative only at a future date and which shall be accompanied by the
execution form of such continuation statement so to be filed); provided that,
notwithstanding the foregoing, the Indenture Trustee may, but shall not be
obligated to, execute and file or cause to be filed any financing statement
which it from time to time deems appropriate or any continuation statement that
the Lessee, in discharge of its obligations under Section 3(v) of the Refunding
Agreement or any other Operative Document, may so request. Notwithstanding the
foregoing or anything in this Indenture to the contrary, the Indenture Trustee
may, on the advice of its counsel and without the consent or approval of any
Note Holder, approve any counsel asked to opine on any matters under Section
11(b)(ii) of the Refunding Agreement, Section 6(a)(iii) of the Lease or under
this Indenture and approve any opinion issued by such counsel. None of the
Owner Participant, the Owner Trustee or the Lessee have any liability for the
failure of the Indenture Trustee to discharge its obligations hereunder.
SECTION 5.03. Indemnification. The Indenture Trustee shall not be
required to take any action or refrain from taking any action under Section
5.01 (other than the first sentence thereof) or 5.02 or Article IV hereof
unless the Indenture
Trust Indenture
71
- 66 -
Trustee shall have been indemnified against any liability, cost or expense
(including counsel fees) that may be incurred in connection therewith. The
Indenture Trustee shall not be under any obligation to take any action under
this Indenture and nothing in this Indenture contained shall require the
Indenture Trustee 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 Indenture Trustee shall not
be required to take any action under Section 5.01 (other than the first
sentence thereof) or 5.02 or Article IV hereof, nor shall any other provision
of this Indenture be deemed to impose a duty on the Indenture Trustee to take
any action, if the Indenture Trustee shall have been advised by counsel that
such action is contrary to the terms hereof or of the other Indenture Documents
or is otherwise contrary to law.
SECTION 5.04. No Duties Except as Specified in Indenture or Instructions.
The Indenture Trustee shall not have any duty or obligation to maintain, use,
operate, store, lease, control, manage, sell, dispose of, insure or otherwise
deal with the Engine or any other part of the Trust Indenture Estate, or to
otherwise take or refrain from taking any action under, or in connection with,
this Indenture or any Indenture Document or any part of the Trust Indenture
Estate, except as expressly provided by the terms of this Indenture or as
expressly provided in written instructions from Note Holders as provided in
this Indenture and no implied duties or obligations shall be read into this
Indenture against the Indenture Trustee. It is understood that, as between the
Indenture Trustee and the Note Holders, with respect to all matters left to the
discretion of the Indenture Trustee hereunder, or under any Indenture Document,
the Indenture Trustee shall have the right to request written instructions from
the Note Holders and, pending receipt of such instructions from the Note
Holders or the required percentage thereof as provided herein, the Indenture
Trustee shall not be required to take any such discretionary action hereunder.
The Indenture Trustee 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 Article VII hereof or any other Operative Document)
promptly take such action as may be necessary to duly discharge all Lenders'
Liens on any part of the Trust Indenture Estate attributable to it in its
individual capacity.
SECTION 5.05. No Action Except Under Lease, Refunding Agreement,
Indenture or Instructions. The Owner Trustee and the Indenture Trustee agree
that they will not use, operate, store, lease, control, manage, sell, dispose
of or otherwise deal with, or place Liens on, the Engine or any other part of
the Trust
Trust Indenture
72
- 67 -
Indenture Estate except (i) as required or permitted by the terms of the Lease
or the Refunding Agreement, or (ii) in accordance with the powers granted to,
or the authority conferred upon, the Owner Trustee and the Indenture Trustee
pursuant to this Indenture and in accordance with the terms hereof.
SECTION 5.06. Replacement Engine. (a) If at any time and from time to
time, the Engine may, or may be required to, be replaced under Section 6(a) or
11(a) of the Lease by a Replacement Engine, as the case may be, in accordance
with the provisions of this Section 5.06 and the provisions of said Sections of
the Lease, the Owner Trustee shall, at such time or times, but subject to
compliance with the conditions to such replacement set forth in the Lease,
direct the Indenture Trustee to execute and deliver to or as directed in
writing by the Owner Trustee an appropriate instrument releasing the Engine as
appropriate from the Lien of this Indenture and the Indenture Trustee shall
execute and deliver such instrument as aforesaid, but only upon receipt by or
deposit with the Indenture Trustee of the following:
(1) A written request from the Owner Trustee, requesting such release and
specifically describing the Engine so to be released and the Replacement
Engine.
(2) A certificate signed by a duly authorized officer of the Lessee
stating the following:
A. [Intentionally omitted]
B. With respect to the replacement of the Engine:
(i) a description of the Engine which shall be identified by
manufacturer's name and serial number;
(ii) a description of the Replacement Engine (including the
manufacturer's name and serial number) to be received as consideration
for the Engine;
(iii) that on the date of the Indenture Supplement relating to the
Replacement Engine the Owner Trustee will hold title to the Replacement
Engine free and clear of all Liens except Permitted Liens, that such
Replacement Engine will on such date be in good operating condition, and
that the Replacement Engine is the same or an improved model as the
Engine;
(iv) the value, remaining useful life and utility of the Replacement
Engine as of the date of such certificate (which value, remaining useful
life and utility shall not be less than the then value, remaining useful
life and utility
Trust Indenture
73
- 68 -
of the Engine, assuming the Engine was in the condition and repair
required to be maintained under the Lease (but without regard to hours
and cycles until overhaul));
(v) that no Lease Event of Default has occurred and is continuing or
would result from the making and granting of the request for release and
the addition of the Replacement Engine; and
(vi) that each of the conditions specified in Section 11(b) of the
Lease with respect to the Replacement Engine have been satisfied.
(3) The appropriate instrument or instruments (i) transferring to the
Owner Trustee title to the Replacement Engine to be received as consideration
for the Engine, (ii) assigning to the Owner Trustee the benefit of all
manufacturer's and vendor's warranties generally available with respect to such
Replacement Engine (if any) (which warranties may be assigned by the Owner
Trustee to Lessee pursuant to Section 5(d) of the Lease), and (iii) subjecting
such Replacement Engine to the Lien of this Indenture and subjecting to any
relevant Assigned Sublease and Sublease Assignment, including, without
limitation, an Indenture Supplement.
(4) [Intentionally omitted]
(5) The opinion of counsel to the Lessee, satisfactory to the Indenture
Trustee, stating that:
(i) the certificates, opinions and other instruments and/or property
that have been or are therewith delivered to and deposited with the
Indenture Trustee conform to the requirements of this Indenture and the
Lease and, upon the basis of such application, the property so sold or
disposed of may be properly released from the Lien of this Indenture and
all conditions precedent herein provided for relating to such release
have been complied with;
(ii) the Replacement Engine has been validly subjected to the Lien
of this Indenture and covered by the Lease, the instruments subjecting
the Replacement Engine to the Lien of this Indenture and the Lease, and
subjecting to any relevant Assigned Sublease and Sublease Assignment, as
the case may be, have been duly filed for recordation pursuant to the
Federal Aviation Act or any other law then applicable to the perfection
and the effect of perfection or non-perfection of a security interest in
the Engine or the Lien of this Indenture, and no further action, filing
or recording of any document is necessary in order to establish and
perfect, in the United States and, if the establishment of title and
Trust Indenture
74
- 69 -
perfection and the effect of perfection or non-perfection of a security
interest in such Replacement Engine or the Lien of this Indenture are
governed by the laws of a jurisdiction other than the United States, in
such jurisdiction, the legal title to such Replacement Engine and the
Lien of this Indenture on such Replacement Engine; and
(iii) the Owner Trustee and the Indenture Trustee (as assignee of
the Owner Trustee's rights under the Lease) shall be entitled to the
benefits and protections of Section 1110 of the Bankruptcy Code with
respect to the Replacement Engine.
(b) Upon the acquisition by the Owner Trustee of title to or other
interest in any Part under and as provided in the Lease, the same shall
automatically and without further act become subject to the Lien of this
Indenture, and to the extent the Owner Trustee is divested of title to or other
interest in any Part under and as provided in the Lease, the same shall
automatically and without further act cease to be subject to the Lien of this
Indenture. The Indenture Trustee shall at any time and from time to time at
the request of the Lessee execute an appropriate written instrument or
instruments to confirm the release of any Part from the Lien of this Indenture
as provided in this Section 5.06(b), but only upon receipt by the Indenture
Trustee of an Officers' Certificate of Lessee confirming such release is
authorized by the terms hereof.
SECTION 5.07. Indenture Supplements for Replacements. In the event of
the substitution of a Replacement Engine as contemplated by Section 11 of the
Lease, the Owner Trustee and the Indenture Trustee agree for the benefit of the
Note Holders and the Lessee, subject to fulfillment of the conditions precedent
and compliance by the Lessee with its obligations set forth in Section 11 of
the Lease, to execute and deliver the appropriate instruments as contemplated
by Section 5.06 hereof, and execute and deliver to the Lessee (or any relevant
Permitted Sublessee) an appropriate instrument releasing the Engine being
replaced from the Lien of this Indenture.
SECTION 5.08. Effect of Replacement. In the event of the substitution of
a Replacement Engine as contemplated by Section 11 of the Lease and Section
5.06 hereof, all provisions of this Indenture relating to the Engine being
replaced shall be applicable to such Replacement Engine with the same force and
effect as if such Replacement Engine was the same engine as the Engine being
replaced.
SECTION 5.09. Notices, etc. Where this Indenture expressly provides for
notice to Note Holders, such notice shall be sufficiently given (unless
otherwise herein expressly
Trust Indenture
75
- 70 -
provided) if in writing and mailed, first-class postage prepaid, to each Note
Holder entitled thereto, at his last address as it appears in the Register. In
any case where notice to Note Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Note Holder shall affect the sufficiency of such notice with respect to other
Note Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Note Holders shall be filed with the
Indenture Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Note Holders when such
notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be satisfactory to the Indenture
Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 5.10. Certain Rights of Owner Trustee and Owner Participant.
Notwithstanding any other provisions of this Indenture, including the Granting
Clause, but subject always to the final paragraph of this Section 5.10, the
following rights shall be reserved to the Owner Trustee or Owner Participant,
as the case may be (as separate and independent rights) to the extent described
herein:
(a) the Owner Trustee or the Owner Participant may, without the
consent of the Indenture Trustee, demand, collect, ▇▇▇ for or otherwise
obtain all amounts included in Excepted Payments from the Lessee,
exercise any election or option or make any decision or determination or
give or receive any notice, consent, waiver or approval in respect of any
Excepted Payment and seek legal or equitable remedies to require the
Lessee to maintain the insurance coverage referred to in Section 12 of
the Lease (or the comparable provisions of any Assigned Sublease) and
such specific performance of the covenants of the Lessee under the Lease
(or the comparable provisions of any Assigned Sublease) relating to the
protection, maintenance, possession and use of the Engine; provided, that
the rights referred to in this clause (a) shall not be deemed to include
the exercise of any remedies provided for in Section 18 of the Lease (or
the comparable provisions of any Assigned Sublease) other than the right
to proceed by appropriate court action, either at law or in equity, to
enforce payment by the Lessee of such amounts included in Excepted
Payments or performance by the
Trust Indenture
76
- 71 -
Lessee of such insurance covenant or to recover damages for the breach
thereof or for specific performance of any covenant of the Lessee;
(b) unless an Indenture Event of Default and an Indenture Trustee
Event shall have occurred and be continuing, the Indenture Trustee shall
not, without the consent of the Owner Trustee, which consent shall not be
withheld if no right or interest of the Owner Trustee or the Owner
Participant shall be materially diminished or impaired thereby, (i) enter
into, execute and deliver amendments, modifications, waivers or consents
in respect of any of the provisions of the Lease, any Assigned Sublease
or any Sublease Assignment, or (ii) approve any accountants, engineers,
appraisers or counsel as satisfactory to render services for or issue
opinions to the Owner Trustee pursuant to the Operative Documents;
provided that, whether or not an Indenture Event of Default has occurred
and is continuing, the Owner Trustee's consent shall be required with
respect to any amendments, modifications, waivers or consents in respect
of any of the provisions of Sections 6, 12 or 16 of the Lease, or of any
other Section of the Lease to the extent such action shall affect (y) the
amount or timing of, or the right to enforce payment of any Excepted
Payment or (z) the amount or timing of any amounts payable by the Lessee
under the Lease as originally executed (or as subsequently modified with
the consent of the Owner Trustee) which, absent the occurrence and
continuance of an Indenture Event of Default hereunder, would be
distributable to the Owner Trustee under Article III hereof;
(c) at all times whether or not an Indenture Event of Default has
occurred and is continuing, the Owner Trustee and the Owner Participant
shall have the right, together with the Indenture Trustee, (i) to receive
from the Lessee or any Permitted Sublessee all notices, certificates,
reports, filings, opinions of counsel and other documents and all
information which any thereof is permitted or required to give or furnish
to the Owner Trustee pursuant to any Operative Document (including
pursuant to Section 10 of the Lease), (ii) to exercise inspection rights
pursuant to Section 7 of the Lease, (iii) to retain all rights with
respect to insurance maintained for its own account which Section 12 of
the Lease specifically confers on the Owner Participant and (iv) to
exercise, to the extent necessary to enable it to exercise its rights
under Section 4.03 hereof, the rights of the Owner Trustee under Section
21(d) of the Lease and to give notices of default under Section 17 of the
Lease; and
Trust Indenture
77
- 72 -
(d) except as expressly provided to the contrary in clauses (a),
(b) and (c) above, so long as no Indenture Event of Default has occurred
and is continuing, all rights (including options, elections,
determinations, consents, approvals, waivers and the giving of notices)
of the Owner Trustee and the Owner Participant under the Lease shall be
exercised by the Owner Trustee and/or the Owner Participant, as the case
may be, to the exclusion of the Indenture Trustee and any Note Holder and
without the consent of the Indenture Trustee or any Note Holder; provided
that the foregoing shall not, nor shall any other provision of this
Section 5.10, limit (A) any rights separately and expressly granted to
the Indenture Trustee or any Note Holder under the Lease or the other
Operative Documents (including, without limitation, Section 15 of the
Refunding Agreement) or (B) the right of the Indenture Trustee or any
Note Holder to receive any funds to be delivered to the Owner Trustee
under the Lease (except with respect to Excepted Payments).
Notwithstanding the foregoing provisions of this Section 5.10, but subject
always to Section 10.05 hereof and to the rights of the Owner Participant under
Sections 2.12 and 4.03 hereof, the Indenture Trustee shall at all times have
the right, to the exclusion of the Owner Trustee and the Owner Participant, to
(A) demand, collect, ▇▇▇ for or otherwise receive and enforce the payment of
all Rent due and payable under the Lease (other than any thereof constituting
an Excepted Payment or Excepted Right), (B) declare the Lease to be in default
under Section 18 thereof and (C) subject only to the provisions of Sections
4.03 and 4.04(a) hereof, exercise the remedies set forth in such Section 18
(other than in connection with Excepted Payments) and in Article IV hereof.
SECTION 5.11. Evidence of Action Taken by Note Holder. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Note Holders may be embodied
in and evidenced by one or more instruments of substantially similar tenor
signed by such Note Holders in person or by agent duly appointed in writing,
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Indenture
Trustee and, if expressly required herein, to the Owner Trustee. Proof of
execution of any instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Sections 5.04,
5.05, 6.02 and 6.05) conclusive in favor of the Indenture Trustee and the Owner
Trustee if made in the manner provided in this Indenture.
SECTION 5.12. Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Indenture
Trust Indenture
78
- 73 -
Trustee, as provided in Section 5.11 hereof, of the taking of any action by the
Note Holders of the percentage in aggregate Principal Amount of the Equipment
Notes specified in this Indenture in connection with such action, any Note
Holder which has consented to such action may, by filing written notice at the
Corporate Trust Office and upon proof of holding an Equipment Note, revoke such
action so far as concerns such Equipment Note. Except as aforesaid any such
action taken by the Note Holder shall be conclusive and binding upon such Note
Holder and upon all future Note Holders and owners of such Equipment Note and
of any Equipment Notes issued in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon any
such Equipment Note. Any action taken by the Note Holders of the percentage in
aggregate Principal Amount of the Equipment Notes specified in this Indenture
in connection with such action shall be conclusively binding upon the Owner
Trustee, the Indenture Trustee and the Note Holders.
ARTICLE VI
THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE
SECTION 6.01. Acceptance of Trusts and Duties. The Indenture Trustee in
its individual capacity accepts the trust hereby created and agrees to perform
the same but only upon the terms of this Indenture. The Indenture Trustee
agrees for the benefit of the Note Holders, the Owner Trustee and the Owner
Participant to receive and disburse all moneys constituting part of the Trust
Indenture Estate in accordance with the terms hereof; and neither the Trust
Company nor the Indenture Trustee in its individual capacity shall be
answerable or accountable under any circumstances, except for its own willful
misconduct or gross negligence (other than for the handling of funds, for which
the standard of accountability shall be negligence), or as provided in the
fourth sentence of Section 2.04(a) hereof and in the last sentence of Section
5.04 hereof, and except for liabilities that may result, in the case of the
Trust Company, from the inaccuracy of any representation or warranty of the
Trust Company in the Refunding Agreement or in the Trust Agreement or in
Section 6.03 hereof or the failure to perform any covenant of the Trust Company
pursuant to Section 4.01(a) hereof or in the Trust Agreement, the Refunding
Agreement, or, in the case of the Indenture Trustee, from the inaccuracy of any
representation or warranty, or failure to perform any covenant, of the
Indenture Trustee made in its individual capacity herein, in the Refunding
Agreement or in any other document. None of the Owner Participant, the Trust
Company or the Indenture Trustee shall be liable for any action or inaction of
any other one of such parties, except, in the case of the Owner Participant,
for any action or omission of the Owner Trustee performed or omitted
Trust Indenture
79
- 74 -
on the instructions of the Owner Participant. The Owner Trustee shall not be
deemed a trustee for the Note Holders for any purpose.
SECTION 6.02. Absence of Duties. In the case of the Indenture Trustee,
except in accordance with written instructions furnished pursuant to Section
5.01, 5.02 or 9.01 hereof, and except as provided in, and without limiting the
generality of, Sections 5.03, 5.04 and 6.09 hereof and, in the case of the
Owner Trustee, except as provided in Section 4.01(b), 6.09 or 9.01 hereof and
in the Trust Agreement, the Lease and the Refunding Agreement, the Owner
Trustee and the Indenture Trustee shall have no duty (i) to see to any
recording or filing of the Lease or of this Indenture or any other document, or
to see to the maintenance of any such recording or filing, (ii) to see to any
insurance on the Engine, whether or not the Lessee shall be in default with
respect thereto, (iii) to see to the payment or discharge of any Lien of any
kind against any part of the Trust Estate or the Trust Indenture Estate, (iv)
to confirm, verify or inquire into the failure to receive any financial
statements of the Lessee or (v) to inspect the Engine at any time or ascertain
or inquire as to the performance or observance of any of the Lessee's covenants
under the Lease or any of the Permitted Sublessee's covenants under any
Assigned Sublease with respect to the Engine.
SECTION 6.03. No Representations or Warranties as to Engine or Documents.
NEITHER THE INDENTURE TRUSTEE (INDIVIDUALLY OR AS INDENTURE TRUSTEE) NOR THE
OWNER TRUSTEE NOR THE TRUST COMPANY MAKES OR SHALL BE DEEMED TO HAVE MADE, AND
EACH HEREBY EXPRESSLY DISCLAIMS, ANY REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, AS TO THE TITLE, AIRWORTHINESS, VALUE, WORKMANSHIP, COMPLIANCE WITH
SPECIFICATIONS, CONDITION, DESIGN, QUALITY, DURABILITY, OPERATION,
MERCHANTABILITY OR FITNESS FOR USE OR PURPOSE OF THE ENGINE OR ANY PART
THEREOF, AS TO THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT
DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR
COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT,
OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE ENGINE, except that
the Trust Company warrants that (i) on the Delivery Date for the Engine the
Owner Trustee shall have received whatever interest in the Engine was conveyed
to it under the Warranty ▇▇▇▇ of Sale subject to the rights of the parties to
the Indenture Documents and (ii) the Engine shall be free and clear of Lessor's
Liens attributable to the Trust Company. Neither the Trust Company nor the
Indenture Trustee makes or shall be deemed to have made any representation or
warranty as to the validity, legality or enforceability of this Indenture, the
Trust Agreement, the Equipment Notes or any Indenture Documents or as to the
correctness of any statement contained in any thereof, except for the
representations and
Trust Indenture
80
- 75 -
warranties of the Trust Company and the Indenture Trustee in its individual
capacity or as Indenture Trustee made under this Indenture or in the other
Operative Documents.
SECTION 6.04. No Segregation of Moneys; No Interest. Any moneys paid to
or retained by the Indenture Trustee pursuant to any provision hereof and not
then required to be distributed to any Note Holder, the Lessee or the Owner
Trustee as provided in Article III hereof need not be segregated in any manner
except to the extent required by law, and may be deposited under such general
conditions as may be prescribed by law, and the Indenture Trustee shall not
(except as otherwise provided in Section 3.07 hereof) be liable for any
interest thereon; provided that any payments received or applied hereunder by
the Indenture Trustee shall be accounted for by the Indenture Trustee so that
any portion thereof paid or applied pursuant hereto shall be identifiable as to
the source thereof.
SECTION 6.05. Reliance; Agents; Advice of Counsel. Neither the Owner
Trustee nor the Indenture Trustee shall incur any liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee and the Indenture Trustee may accept a copy of a resolution of
the Board of Directors of any party to the Refunding Agreement, certified by
the Secretary or an Assistant Secretary thereof as duly adopted and in full
force and effect, as conclusive evidence that such resolution has been duly
adopted and that the same is in full force and effect. As to the aggregate
unpaid Principal Amount of Equipment Notes outstanding as of any date, the
Owner Trustee may for all purposes hereof rely on a certificate signed by any
Vice President or other authorized corporate trust officer of the Indenture
Trustee. As to any fact or matter relating to the Lessee the manner of
ascertainment of which is not specifically described herein, the Owner Trustee
and the Indenture Trustee may for all purposes hereof rely on a certificate,
signed by a duly authorized officer of the Lessee, as to such fact or matter,
and such certificate shall constitute full protection to the Owner Trustee and
the Indenture Trustee for any action taken or omitted to be taken by them in
good faith in reliance thereon, but in the case of any such certificate, the
Owner Trustee and the Indenture Trustee shall be under a duty to examine the
same to determine whether or not it conforms to the requirements of this
Indenture. The Indenture Trustee shall assume, and shall be fully protected in
assuming, that the Owner Trustee is authorized by the Trust Agreement to enter
into this Indenture and to take all action to be taken by it pursuant to the
provisions hereof, and shall not inquire into the authorization of the Owner
Trustee with respect thereto. In the administration of the trusts hereunder,
the
Trust Indenture
81
- 76 -
Owner Trustee and the Indenture Trustee each may execute any of the trusts or
powers hereof and perform its powers and duties hereunder directly or (except
in the case of the Indenture Trustee's obligations under the third sentence of
Section 2.04(a)) through agents or attorneys and shall not be responsible for
any misconduct or negligence on the part of any such agent or attorney
appointed with due care hereunder. The Indenture Trustee may, at the expense
of the Trust Indenture Estate, consult with counsel, accountants and other
skilled Persons to be selected and retained by it, and the Owner Trustee and
the Indenture Trustee shall not be liable for anything done, suffered or
omitted in good faith by them in accordance with the written advice or written
opinion of any such counsel, accountants or other skilled Persons.
SECTION 6.06. Capacity in Which Acting. The Owner Trustee acts hereunder
solely as trustee under the Trust Agreement provided, and not in its individual
capacity, except as otherwise expressly provided herein.
SECTION 6.07. Compensation. The Indenture Trustee shall be entitled to
reasonable compensation (which compensation shall not (to the extent permitted
by applicable law) be limited by any provision of law in regard to the
compensation of a trustee of an express trust), including expenses, advances
and disbursements, for all services rendered hereunder, and shall have a first
priority claim (prior to the Note Holders) on the Trust Indenture Estate for
the payment of such compensation, to the extent that such compensation shall
not be paid by the Lessee, and shall have the right to use or apply any moneys
held by it hereunder in the Trust Indenture Estate toward such payments. The
Indenture Trustee agrees that it shall have no right against any Note Holder or
the Owner Participant for any fee as compensation for its services as trustee
under this Indenture.
SECTION 6.08. May Become Note Holder. Each of the institutions acting as
Owner Trustee and Indenture Trustee hereunder may become a Note Holder and have
all rights and benefits of a Note Holder to the same extent as if it were not
the institution acting as Owner Trustee or Indenture Trustee, as the case may
be.
SECTION 6.09. Further Assurances; Financing Statements. At any time and
from time to time, upon the request of the Indenture Trustee, the Owner Trustee
shall promptly and duly execute and deliver any and all such further
instruments and documents as may be specified in such request and as are
necessary or desirable to perfect, preserve or protect the mortgage, security
interests and assignments created or intended to be created hereby, or to
obtain for the Indenture Trustee the full
Trust Indenture
82
- 77 -
benefit of the specific rights and powers herein granted, including, without
limitation, the execution and delivery of Uniform Commercial Code financing
statements and continuation statements with respect thereto, or similar
instruments relating to the perfection of the mortgage, security interests or
assignments created or intended to be created hereby.
ARTICLE VII
INDEMNIFICATION OF INDENTURE TRUSTEE BY OWNER TRUSTEE
SECTION 7.01. Scope of Indemnification. The Owner Trustee, not
individually but solely in its capacity as owner trustee under the Trust
Agreement, hereby agrees, whether or not any of the transactions contemplated
hereby shall be consummated but except as otherwise provided in Section 2.03
hereof, to assume liability for, and does hereby indemnify, protect, save and
keep harmless the Indenture Trustee, in its individual capacity and as
Indenture Trustee, and its successors, permitted assigns, agents and servants
solely from the Trust Estate, from and against any and all liabilities,
obligations, losses, damages, penalties, taxes (excluding any taxes payable by
the Indenture Trustee on or measured by any compensation received by the
Indenture Trustee for its services under this Indenture), claims, actions,
suits, and reasonable out-of-pocket costs, expenses or disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever which may
be imposed on, incurred by or asserted against the Indenture Trustee (in its
individual capacity and as trustee) from and after the Restatement Date
(whether or not also agreed to be indemnified against by any other Person under
any other document) in any way relating to or arising out of this Indenture,
the Trust Agreement, the Equipment Notes, the other Indenture Documents or the
enforcement of any of the terms of any thereof, or in any way relating to or
arising out of the manufacture, purchase, acceptance, nonacceptance, rejection,
ownership, delivery, lease, sublease, possession, use, operation, condition,
sale, return or other disposition of the Engine (including, without limitation,
latent and other defects, whether or not discoverable, and any claim for
patent, trademark or copyright infringement), or in any way relating to or
arising out of the administration of the Trust Indenture Estate or the action
or inaction of the Indenture Trustee hereunder, except only (i) in the case of
willful misconduct or gross negligence (or negligence in the case of handling
of funds) of the Indenture Trustee in the performance of its duties hereunder,
(ii) as may result from the inaccuracy of any representation or warranty of the
Indenture Trustee made in the Refunding Agreement, (iii) as otherwise provided
in Section 2.04(a) hereof or in the last sentence of Section 5.04 hereof or
(iv) as otherwise excluded by the terms of Sections 10(b) and 13
Trust Indenture
83
- 78 -
of the Lease from the Lessee's indemnities to the Indenture Trustee thereunder;
provided that so long as the Lease is in effect, the Indenture Trustee shall
not make any claim under this Section 7.01 for any amount indemnified against
by the Lessee under the Lease without first (but only to the extent not stayed
or otherwise prevented by operation of law) making demand on the Lessee for
payment of such amount. The Indenture Trustee shall notify the Owner Trustee
and the Lessee promptly of any claim for which it may seek indemnity. The
Lessee shall be entitled to defend any claim by the Indenture Trustee to the
extent provided in Section 10 or 13 of the Lease. The Indenture Trustee shall
be entitled to indemnification from the Trust Indenture Estate for any
liability, obligation, loss, damage, penalty, claim, action, suit, cost,
expense or disbursement indemnified against pursuant to this Section 7.01 to
the extent not reimbursed by the Lessee or others, but without releasing any of
them from their respective agreements of reimbursement; and to secure the same
the Indenture Trustee shall have a prior Lien on the Trust Indenture Estate.
The indemnities contained in this Section 7.01 shall survive the termination of
this Indenture.
SECTION 7.02. Exculpation and Release of Liability. Without in any way
affecting the limitations on liability set forth in the Operative Documents,
the Indenture Trustee, and each Note Holder by accepting any Equipment Note
hereunder, hereby acknowledge and agree that none of the Trust Company, the
Owner Participant or any director, officer, employee, stockholder, agent or
affiliate of the Trust Company or the Owner Participant (the "Exculpated Equity
Persons") shall have any obligation, duty or liability of any kind whatsoever
to the Indenture Trustee or any such Note Holder in connection with the
exercise by any Exculpated Equity Person of any rights of the Owner Trustee or
the taking of any action or the failure to take any action by any Exculpated
Equity Person in connection with any rights of the Owner Trustee under this
Indenture or the Lease, and each such Note Holder hereby waives and releases,
to the extent permitted by applicable law, each Exculpated Equity Person of any
and all such obligations, duties or liabilities.
ARTICLE VIII
SUCCESSOR TRUSTEES AND SEPARATE TRUSTEES
SECTION 8.01. Notice of Successor Owner Trustee. In the case of any
appointment of a successor to the Owner Trustee pursuant to the Trust Agreement
or any merger, conversion, consolidation or sale of substantially all of the
corporate trust business of the Trust Company pursuant to the Trust Agreement,
the successor Owner Trustee shall give prompt written notice thereof to the
Indenture Trustee and to each Note Holder.
Trust Indenture
84
- 79 -
SECTION 8.02. Resignation and Removal of Indenture Trustee; Appointment
of Successor. (a) The Indenture Trustee or any successor thereto may resign at
any time without cause by giving at least 30 calendar days' prior written
notice to the Owner Trustee, the Owner Participant, each Note Holder and the
Lessee, such resignation to be effective upon the acceptance of the trusteeship
by a successor Indenture Trustee. In addition, a Majority in Interest of Note
Holders may at any time remove the Indenture Trustee without cause by an
instrument in writing delivered to the Owner Trustee, the Lessee and the
Indenture Trustee, and the Indenture Trustee shall promptly notify each Note
Holder thereof in writing, such removal to be effective upon the acceptance of
the trusteeship by a successor Indenture Trustee. In the case of the
resignation or removal of the Indenture Trustee, a Majority in Interest of Note
Holders may appoint, with the consent of the Lessee, a successor Indenture
Trustee by an instrument signed by such Holders (whose fees shall be reasonably
acceptable to the Lessee). If a successor Indenture Trustee shall not have
been appointed within 30 calendar days after such notice of resignation or
removal, the Indenture Trustee, any Note Holder, the Owner Trustee, the Lessee
or the Owner Participant may apply to any court of competent jurisdiction to
appoint a successor Indenture Trustee to act until such time, if any, as a
successor shall have been appointed as above provided. The successor Indenture
Trustee so appointed by such court shall immediately and without further act be
superseded by any successor Indenture Trustee appointed as above provided
within one year from the date of the appointment by such court.
(b) Any successor Indenture Trustee, however appointed, shall execute and
deliver to the Owner Trustee and to the predecessor Indenture Trustee an
instrument accepting and assuming such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Indenture Trustee, without further act, shall become vested with and
bound by all the estates, properties, rights, powers, duties and obligations of
the predecessor Indenture Trustee hereunder and under the other Indenture
Documents in the trusts hereunder applicable to it with like effect as if
originally named the Indenture Trustee herein; but nevertheless upon the
written request of such successor Indenture Trustee, such predecessor Indenture
Trustee shall execute and deliver an instrument transferring to such successor
Indenture Trustee, upon the trusts herein expressed applicable to it, all the
estates, properties, rights and powers of such predecessor Indenture Trustee,
and such predecessor Indenture Trustee shall duly assign, transfer, deliver and
pay over to such successor Indenture Trustee all moneys or other property then
held by such predecessor Indenture Trustee hereunder, subject nevertheless to
its claim provided for in Section 6.07 hereof.
Trust Indenture
85
- 80 -
(c) Any successor Indenture Trustee, however appointed, shall be a bank or
trust company having a combined capital and surplus of at least $200,000,000 if
there be such an institution willing, able and legally qualified to perform the
duties of the Indenture Trustee hereunder upon reasonable or customary terms.
(d) Any corporation into which the Indenture Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Indenture Trustee
shall be a party, or any corporation to which substantially all the corporate
trust business of the Indenture Trustee may be transferred, shall, subject to
the terms of paragraph (c) of this Section 8.02, be the Indenture Trustee under
this Indenture without further act. Notwithstanding the foregoing, upon the
request of the Owner Trustee or the Lessee, any such successor corporation
referred to in this Section 8.02(d) shall deliver to the Owner Trustee and the
Lessee an instrument confirming its status as the Indenture Trustee hereunder
and under the other Indenture Documents.
SECTION 8.03. Appointment of Separate Trustees. (a) At any time or times,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Indenture Estate may at the time be located or in which
any action of the Indenture Trustee may be required to be performed or taken,
the Indenture Trustee, by an instrument in writing signed by it, may appoint
one or more individuals or corporations to act as separate trustee or separate
trustees or co-trustee, acting jointly with the Indenture Trustee, of all or
any part of the Trust Indenture Estate to the full extent that local law makes
it necessary for such separate trustee or separate trustees or co-trustee
acting jointly with the Indenture Trustee to act.
(b) The Indenture Trustee and, at the request of the Indenture Trustee,
the Owner Trustee, shall execute, acknowledge and deliver all such instruments
as may be required by the legal requirements of any jurisdiction or by any such
separate trustee or separate trustees or co-trustee for the purpose of more
fully confirming such title, rights or duties to such separate trustee or
separate trustees or co-trustee. Upon the acceptance in writing of such
appointment by any such separate trustee or separate trustees or co-trustee,
it, he, she or they shall be vested with such title to the Trust Indenture
Estate or any part thereof, and with such rights and duties, as shall be
specified in the instrument of appointment, jointly with the Indenture Trustee
(except insofar as local law makes it necessary for any such separate trustee
or separate trustees to act alone) subject to all the terms of this Indenture.
Any separate trustee or separate trustees or co-trustee may, at any time by an
instrument in writing, constitute the Indenture Trustee its, his or her
Trust Indenture
86
- 81 -
attorney-in-fact and agent with full power and authority to do all acts and
things and to exercise all discretion on its, his or her behalf and in its, his
or her name. In case any such separate trustee or co-trustee shall die, become
incapable of acting, resign or be removed, the title to the Trust Indenture
Estate and all assets, property, rights, powers, trusts, obligations and duties
of such separate trustee or co-trustee shall, so far as permitted by law, vest
in and be exercised by the Indenture Trustee, without the appointment of a
successor to such separate trustee or co-trustee unless and until a successor
is appointed.
(c) All provisions of this Indenture which are for the benefit of the
Indenture Trustee shall extend to and apply to each separate trustee or
co-trustee appointed pursuant to the foregoing provisions of this Section 8.03,
including without limitation Article VII hereof.
(d) Every additional trustee and separate trustee hereunder shall, to the
extent permitted by law, be appointed and act, and the Indenture Trustee shall
act, subject to the following provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Indenture Trustee in respect of the receipt, custody, investment and
payment of moneys shall be exercised solely by the Indenture Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed and
exercised or performed by the Indenture Trustee and such additional
trustee or trustees and separate trustee or trustees jointly except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Indenture Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of
title to the Trust Indenture Estate in any such jurisdiction) shall be
exercised and performed by such additional trustee or trustees or
separate trustee or trustees;
(iii) no power hereby given to, or with respect to which it is
hereby provided may be exercised by, any such additional trustee or
separate trustee shall be exercised hereunder by such additional trustee
or separate trustee except jointly with, or with the consent of, the
Indenture Trustee; and
Trust Indenture
87
- 82 -
(iv) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder.
If at any time the Indenture Trustee shall deem it no longer necessary or
prudent in order to conform to any such law, the Indenture Trustee shall
execute and deliver an indenture supplemental hereto and all other instruments
and agreements necessary or proper to remove any additional trustee or separate
trustee.
(e) Any request, approval or consent in writing by the Indenture Trustee
to any additional trustee or separate trustee shall be sufficient warrant to
such additional trustee or separate trustee, as the case may be, to take such
action as may be so requested, approved or consented to.
(f) Notwithstanding any other provision of this Section 8.03, the powers
of any additional trustee or separate trustee appointed pursuant to this
Section 8.03 shall not in any case exceed those of the Indenture Trustee
hereunder.
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS TO THIS
INDENTURE AND OTHER DOCUMENTS
SECTION 9.01. Lease Amendments and Supplemental Indentures. (a) Except
as otherwise provided in Section 5.10 hereof, and except with respect to
Excepted Payments, the Owner Trustee agrees that it shall not enter into any
amendment of or supplement to the Lease, or execute and deliver any written
waiver or modification of, or consent under, the terms of the Lease, unless
such supplement, amendment, waiver, modification or consent is consented to in
writing by the Indenture Trustee acting on instructions of a Majority in
Interest of Note Holders. Anything to the contrary contained in this Section
9.01 notwithstanding, without the necessity of the consent of any of the Note
Holders or (as respects clauses (i) and (ii) below) the Indenture Trustee, (i)
any Excepted Rights or Excepted Payments payable to the Owner Trustee or Owner
Participant may be modified, amended, changed or waived in such manner as shall
be agreed to by the Owner Participant and Lessee, (ii) the Owner Trustee and
Lessee may, so long as no Indenture Event of Default has occurred and is
continuing, enter into amendments of or additions to the Lease to modify
Sections 6(d), 9 and 16 and Exhibits B and E (except to the extent that such
amendment would adversely affect the rights or exercise of remedies under
Section 18 of the Lease) so long as such amendments, modifications and changes
do not and would not (A) affect the time of, or reduce
Trust Indenture
88
- 83 -
the amount of, Basic Rent or Stipulated Loss Value payments until after the
payment in full of all Secured Obligations, (B) impair the Lien of this
Indenture, (C) adversely affect the value, utility or useful life of the Engine
or (D) otherwise adversely affect the Note Holders, and (iii) the Indenture
Trustee may approve any Permitted Sublessee as provided in clause (c) of the
definition of such term set forth in the Lease and may exercise the rights of
the Indenture Trustee under Section 15 of the Refunding Agreement. For the
avoidance of doubt, nothing in this Section 9.01 shall limit in any way the
rights of the Owner Trustee and/or the Owner Participant under Section 5.10(d)
to exercise certain rights and powers under the Lease to the exclusion of the
Indenture Trustee and any Note Holder and without the consent of the Indenture
Trustee or any Note Holder.
The Indenture Trustee is hereby authorized to join in the execution of any
supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Indenture Trustee shall not be obligated to enter into any such supplemental
indenture which adversely affects the Indenture Trustee's own rights, duties or
immunities under this Indenture or otherwise, whether in its official or
individual capacity.
Any supplemental indenture authorized by the provisions of this Section
9.01 may be executed without the consent of the Note Holders notwithstanding
any of the provisions of this Section 9.01.
(b) Without limiting the provisions of Section 9.01(a) hereof and subject
to Sections 5.10(b) and 5.10(d) hereof, the Indenture Trustee agrees with the
Note Holders that it shall not enter into any amendment, waiver or modification
of, supplement or consent to this Indenture, the Lease, the Refunding Agreement
or the other Indenture Documents, or any other agreement included in the Trust
Indenture Estate, unless such supplement, amendment, waiver, modification or
consent is consented to in writing by a Majority in Interest of Note Holders,
or does not adversely affect the Note Holders in any material respect. Upon
the written request of a Majority in Interest of Note Holders, the Indenture
Trustee shall from time to time enter into any such supplement or amendment, or
execute and deliver any such waiver, modification or consent, as may be
specified in such request and as may be (in the case of any such amendment,
supplement or modification), to the extent such agreement is required, agreed
to by the Owner Trustee and Lessee or, as may be appropriate, the Manufacturer;
provided, however, that, without the consent of each Holder of an affected
Equipment Note then outstanding and of each Liquidity Provider, no such
amendment of or supplement to
Trust Indenture
89
- 84 -
this Indenture, the Lease, the Refunding Agreement or any other Indenture
Document or waiver or modification of the terms of, or consent under, any
thereof, shall (i) modify any of the provisions of this Section 9.01, or of
Section 2.02, 2.10, 2.13, 4.02, 4.04(e), 5.06 or 5.10 hereof, Section 17
(except to add a Lease Event of Default) of the Lease, the definitions of
"Indenture Event of Default", "Indenture Default", "Indenture Trustee Event",
"Lease Event of Default", "Lease Default", "Majority in Interest of Note
Holders", "Make-Whole Amount" or "Note Holder", or the percentage of Note
Holders required to take or approve any action hereunder, (ii) reduce the
amount, or change the time of payment or method of calculation of any amount,
of Principal Amount, Make-Whole Amount, if any, or interest with respect to any
Equipment Note, or alter or modify the provisions of Article III hereof with
respect to the order of priorities in which distribution thereunder shall be
made as among the Note Holders, the Owner Trustee and the Lessee, (iii) reduce,
modify or amend any indemnities in favor of the Note Holders, (iv) consent to
any change in this Indenture or the Lease which would permit redemption of
Equipment Notes earlier than permitted under Section 2.10 hereof, (v) modify
any of the provisions of Section 4(b) of the Lease, or modify, amend or
supplement the Lease, any Assigned Sublease or any Sublease Assignment, or
consent to any assignment of any thereof, in either case releasing the Lessee
(or Permitted Sublessee) from its obligations in respect of the payment of
Basic Rent or Stipulated Loss Value for the Engine or altering the absolute and
unconditional character of the obligations of Lessee to pay Rent as set forth
in Sections 4(b) and 4(d) of the Lease (or comparable provisions in any
Assigned Sublease) or (vi) permit the creation of any Lien on the Trust
Indenture Estate or any part thereof other than Permitted Liens or deprive any
Note Holder of the benefit of the Lien of this Indenture on the Trust Indenture
Estate, except as provided in connection with the exercise of remedies under
Article IV hereof.
(c) At any time after the date of the consummation of the Refinancing
Transaction, the Owner Trustee and the Indenture Trustee may enter into one or
more agreements supplemental hereto without the consent of any Note Holder for
any of the following purposes: (i)(A) to cure any defect or inconsistency
herein or in the Equipment Notes, or to make any change not inconsistent with
the provisions hereof (provided that such change does not adversely affect the
interests of any Note Holder in its capacity solely as Note Holder) or (B) to
cure any ambiguity or correct any mistake; (ii) to evidence the succession of
another party as the Owner Trustee in accordance with the terms of the Trust
Agreement or to evidence the succession of a new trustee hereunder pursuant
hereto, the removal of the trustee hereunder or the appointment of any
co-trustee or co-trustees or any separate or additional trustee or trustees;
(iii) to convey,
Trust Indenture
90
- 85 -
transfer, assign, mortgage or pledge any property to or with the Indenture
Trustee or to make any other provisions with respect to matters or questions
arising hereunder so long as such action shall not adversely affect the
interests of the Note Holders in its capacity solely as Note Holder or impose
upon the Lessee any additional indemnification obligations; (iv) to correct or
amplify the description of any property at any time subject to the Lien of this
Indenture or better to assure, convey and confirm unto the Indenture Trustee
any property subject or required to be subject to the Lien of this Indenture,
the Engine or any Replacement Engine; (v) to add to the covenants of the Owner
Trustee for the benefit of the Note Holders, or to surrender any rights or
powers herein conferred upon the Owner Trustee, the Owner Participant or the
Lessee; (vi) to add to the rights of the Note Holders; and (vii) to include on
the Equipment Notes any legend as may be required by law.
(d) So long as no Lease Event of Default has occurred and is continuing,
without the consent of the Lessee no amendment or supplement to this Indenture
or waiver or modification of the terms hereof shall adversely affect the Lessee
in any material respect or impose upon the Lessee any additional
indemnification obligations.
(e) So long as no Indenture Event of Default has occurred and is
continuing, the Indenture Trustee shall not enter into any amendment or
supplement to the Lease or waiver or modification of the terms thereof.
SECTION 9.02. Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Indenture Trustee, the Owner Trustee and
the Note Holders shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for all and any
purposes.
SECTION 9.03. Documents to Be Given to Trustee. The Indenture Trustee
shall be entitled to receive and shall be fully protected in relying upon an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture referred to in Section 9.01 complies with the applicable
provisions of this Indenture.
SECTION 9.04. Notation on Notes in Respect of Supplemental Indentures.
Equipment Notes authenticated and
Trust Indenture
91
- 86 -
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article IX may bear a notation in form approved by the
Indenture Trustee as to any matter provided for by such supplemental indenture.
If the Owner Trustee or the Indenture Trustee shall so determine, new Equipment
Notes so modified as to conform, in the opinion of the Owner Trustee and the
Indenture Trustee, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Owner Trustee, authenticated by
the Indenture Trustee and delivered in exchange for the Equipment Notes then
outstanding.
SECTION 9.05. Trustees Protected. If, in the opinion of the institution
acting as Owner Trustee under the Trust Agreement or the institution acting as
Indenture Trustee hereunder, any document required to be executed by it
pursuant to the terms of this Article IX affects adversely any right, duty,
immunity or indemnity with respect to such institution under this Indenture,
such institution may in its discretion decline to execute such document.
SECTION 9.06. Documents Mailed to Note Holders. Promptly after the
execution by the Owner Trustee or the Indenture Trustee of any document entered
into pursuant to this Article IX, the Owner Trustee shall mail, by certified
mail, postage prepaid, conformed copies thereof to the Indenture Trustee (in
such quantities as will permit the Indenture Trustee to distribute one copy to
each Note Holder, and the Indenture Trustee shall mail one such copy to each
Note Holder), but the failure of the Owner Trustee or the Indenture Trustee to
mail such conformed copies shall not impair or affect the validity of such
document. The Indenture Trustee will furnish to each Note Holder, promptly
upon receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates and other instruments furnished to the Indenture Trustee
under the Lease or hereunder to the extent that the same were not required to
have been furnished to such Note Holder pursuant hereto or to the Lease.
SECTION 9.07. No Request Necessary for Lease Supplement or Indenture
Supplement. Notwithstanding anything contained in this Article IX, no written
request or consent of the Indenture Trustee, any Note Holder or the Owner
Participant pursuant to this Article IX shall be required to enable the Owner
Trustee to enter into any Lease Supplement with the Lessee pursuant to the
terms of the Lease to subject the Engine or other property thereto or to
release the Engine or other property therefrom or to execute and deliver an
Indenture Supplement, in each case pursuant to the terms hereof.
Trust Indenture
92
- 87 -
SECTION 9.08. Notices to Liquidity Provider. Any request made to any
Note Holder for consent to any amendment or supplement pursuant to this Article
IX shall be promptly furnished by the Indenture Trustee to each Liquidity
Provider.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Termination of Indenture. Upon payment in full of the
Principal Amount of, Make-Whole Amount, if any, and all accrued and unpaid
interest on and other amounts then due with respect to the Equipment Notes and
provided that there shall then be no other amounts then due to the Note Holders
and the Indenture Trustee hereunder or under the Lease or the Refunding
Agreement or otherwise secured hereby, the Lien of this Indenture shall be
deemed discharged and the security interests in favor of the Indenture Trustee
and the Note Holders hereunder shall terminate, and the Owner Trustee shall
direct the Indenture Trustee to execute and deliver to or as directed in
writing by the Owner Trustee, an appropriate instrument evidencing the
discharge of such Lien and the termination of such security interest in the
Engine and release of the Indenture Documents from the assignment and pledge
thereof hereunder, and the Indenture Trustee shall execute and deliver such
instrument as aforesaid and, at the Owner Trustee's expense, will execute and
deliver such other instruments or documents as may be reasonably requested by
the Owner Trustee to give effect to such discharge, termination and release;
provided, however, that this Indenture and the trusts created hereby shall
earlier terminate and this Indenture shall be of no further force or effect as
expressly provided pursuant to Article X hereof or upon any sale or other final
disposition by the Indenture Trustee of all property part of the Trust
Indenture Estate and the final distribution by the Indenture Trustee of all
moneys or other property or proceeds constituting part of the Trust Indenture
Estate in accordance with the terms hereof. Except as aforesaid otherwise
provided, this Indenture and the trusts created hereby shall continue in full
force and effect in accordance with the terms hereof.
SECTION 10.02. No Legal Title to Trust Indenture Estate in Note Holders.
No Note Holder shall have legal title to any part of the Trust Indenture
Estate. No transfer, by operation of law or otherwise, of any Equipment Note
or other right, title and interest of any Note Holder in and to the Trust
Indenture Estate or hereunder shall operate to terminate this Indenture or
entitle such Note Holder or any successor or transferee of such Holder to an
accounting or to the transfer to it of legal title to any part of the Trust
Indenture Estate.
Trust Indenture
93
- 88 -
SECTION 10.03. Sale of Engine by Indenture Trustee is Binding. Any sale
or other conveyance of the Engine by the Indenture Trustee made pursuant to the
terms of this Indenture or of the Lease shall bind the Note Holders and shall
be effective to transfer or convey all right, title and interest of the
Indenture Trustee, the Owner Trustee, the Owner Participant and such Holders in
and to the Engine. No purchaser or other grantee shall be required to inquire
as to the authorization, necessity, expediency or regularity of such sale or
conveyance or as to the application of any sale or other proceeds with respect
thereto by the Indenture Trustee.
SECTION 10.04. Indenture for Benefit of Owner Trustee, Indenture Trustee,
Owner Participant, Lessee and Note Holders. Nothing in this Indenture, whether
express or implied, shall be construed to give to any Person other than the
Owner Trustee, the Indenture Trustee, the Owner Participant, the Note Holders,
the Lessee and, with respect to any provisions hereof requiring payment to any
Permitted Sublessee, such Permitted Sublessee, any legal or equitable right,
remedy or claim under or in respect of this Indenture.
SECTION 10.05. No Action Contrary to Lessee's Rights Under the Lease.
Notwithstanding any of the provisions of this Indenture or the Trust Agreement
to the contrary, each of the Note Holders, the Indenture Trustee and the Owner
Trustee agrees for the benefit of the Lessee that it will not take any action
contrary to the Lessee's rights under the Lease, including the right of the
Lessee to possession and use and quiet enjoyment of the Engine, except in
accordance with the provisions of the Lease.
SECTION 10.06. Notices. Unless otherwise expressly specified herein, all
notices, requests, demands, authorizations, directions, consents, waivers or
documents required or permitted by the terms of this Indenture shall be in
English and in writing, mailed by first-class registered or certified mail,
postage prepaid, or by confirmed telex or telecopy, and (i) if to the Owner
Trustee, addressed to it at its office at ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration Department (telex:
835437; answerback: WILMTR; telecopy: (▇▇▇) ▇▇▇-▇▇▇▇/8882), with a copy to the
Owner Participant at its address set forth in the Refunding Agreement, (ii) if
to the Indenture Trustee, addressed to it at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration (telex:
99339; answerback: CTNB-HTFD; telecopy: (▇▇▇) ▇▇▇-▇▇▇▇) or (iii) if to the
Owner Participant, the Lessee or any Note Holder, addressed to such party at
such address as such party shall have furnished by notice to the Owner Trustee
and the Indenture Trustee, or, until an address is so furnished, addressed to
the address of such
Trust Indenture
94
- 89 -
party (if any) set forth on the signature pages to the Refunding Agreement or
in the Register. Whenever any notice in writing is required to be given by the
Owner Trustee or the Indenture Trustee or any Note Holder to any of the other
of them, such notice shall be deemed 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 Indenture.
SECTION 10.07. Severability. Any provision of this Indenture 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 10.08. No Oral Modifications or Continuing Waivers. No terms or
provisions of this Indenture or the Equipment Notes 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 waiver of the terms hereof or of
any Equipment Note shall be effective only in the specific instance and for the
specific purpose given.
SECTION 10.09. 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 permitted assigns of each, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by any Note Holder shall bind the successors and assigns
of such Note Holder. This Indenture and the Trust Indenture Estate shall not
be affected by any amendment or supplement to the Trust Agreement or by any
other action taken under or in respect of the Trust Agreement, except that each
reference in this Indenture to the Trust Agreement shall mean the Trust
Agreement as amended and supplemented from time to time to the extent permitted
hereby and thereby. Each Note Holder by its acceptance of an Equipment Note
agrees to be bound by this Indenture and all provisions of the Refunding
Agreement applicable to a Note Holder.
SECTION 10.10. Headings. The headings of the various Articles and
Sections herein and in the table of contents hereto are for the convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
SECTION 10.11. Normal Commercial Relations. Anything contained in this
Indenture to the contrary notwithstanding, the Indenture Trustee, the Owner
Trustee, the Owner Participant, any
Trust Indenture
95
- 90 -
Note Holder or any bank or other Affiliate of any of them may conduct any
banking or other financial transactions, and have banking or other commercial
relationships, with the Lessee or any Permitted Sublessee fully to the same
extent as if this Indenture were not in effect, including without limitation
the making of loans or other extensions of credit to the Lessee for any purpose
whatsoever, whether related to any of the transactions contemplated hereby or
otherwise.
SECTION 10.12. Governing Law; Counterpart Form. THIS INDENTURE AND THE
EQUIPMENT NOTES ISSUED HEREUNDER 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. This Indenture 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 instrument.
SECTION 10.13. Section 1110. It is the intention of the parties that the
Owner Trustee, as lessor under the Lease (and the Indenture Trustee as assignee
of the Owner Trustee's rights hereunder), shall be entitled to the benefits of
Section 1110 of the Bankruptcy Code with respect to the right to take
possession of the Engine and Parts as provided in the Lease in the event of a
case under Chapter 11 of the Bankruptcy Code in which Lessee is a debtor, and
in any instance where more than one construction is possible of the terms and
conditions hereof or of any other pertinent Operative Document, each such party
agrees that a construction which would preserve such benefits shall control
over any construction which would not preserve such benefits.
Trust Indenture
96
IN WITNESS WHEREOF, the parties hereto have caused this Indenture, as
amended and restated, to be duly executed by their respective officers
thereunto duly authorized, as of the day and year first above written, and
acknowledge that this Indenture has been made and delivered in The City of New
York.
WILMINGTON TRUST COMPANY,
not in its individual capacity,
except as expressly provided
herein, but solely as Owner
Trustee
By _____________________________________
Title:
FLEET NATIONAL BANK,
not in its individual capacity,
except as expressly provided
herein, but solely as Indenture
Trustee
By _____________________________________
Title:
Trust Indenture
97
EXHIBIT A
TO
FIRST AMENDED AND RESTATED
TRUST INDENTURE AND SECURITY AGREEMENT
[GPA 1991 AWA-E1]
TRUST INDENTURE SUPPLEMENT NO. _____
[GPA 1991 AWA-E1]
TRUST INDENTURE SUPPLEMENT NO. _____ dated __________, ___ of WILMINGTON
TRUST COMPANY, not in its individual capacity but solely as owner trustee (the
"Owner Trustee") under the Trust Agreement [GPA 1991 AWA-E1] dated as of March
15, 1991 (as amended, the "Trust Agreement") between Wilmington Trust Company
and the Owner Participant named therein.
W I T N E S S E T H :
WHEREAS, the Trust Indenture and Security Agreement [GPA 1991 AWA-E1] dated
as of March 15, 1991, as amended and restated as of November ___ , 1996 (as so
amended and restated, the "Indenture") between the Owner Trustee and Fleet
National Bank (formerly known as Fleet National Bank of Connecticut, Shawmut
Bank Connecticut, National Association, and The Connecticut National Bank), as
Indenture Trustee (the "Indenture Trustee"), provides for the execution and
delivery of a supplement thereto substantially in the form hereof which shall
particularly describe the Engine (such term and other defined terms in the
Indenture being herein used with the same meanings) and any Replacement Engine
included in the Trust Indenture Estate, and shall specifically mortgage such
Engine or Replacement Engine, as the case may be, to the Indenture Trustee.
WHEREAS, the Original Indenture, as supplemented by Trust Indenture
Supplement No. 1 dated March 27, 1991, as amended by Amendment No. 1 dated
March 27, 1992, and as further amended by Amendment No. 2 dated as of July 29,
1993, subjected to the Lien of such Trust Indenture and Security Agreement the
engine therein described, which Trust Indenture and Security Agreement and
Trust Indenture Supplement No. 1 have been duly recorded with the Federal
Aviation Administration as one document on March 28, 1991 and assigned
Conveyance No. 259534, which Amendment No. 1 has been duly recorded with the
Federal Aviation Administration on April 30, 1992 and assigned Conveyance No.
DD002565 and which Amendment No. 2 has been duly recorded with the Federal
Aviation Administration on August 4, 1993 and assigned Conveyance No. F59677.
Trust Indenture
98
- 2 -
WHEREAS(1), the Indenture relates to the Engine described below and a
counterpart of the Indenture is attached hereto and made a part hereof and this
Indenture Supplement, together with such counterpart of the Indenture, is being
filed for recordation on the date hereof with the Federal Aviation
Administration as one document.
WHEREAS(2), the Owner Trustee has, as provided in the Indenture, heretofore
executed and delivered to the Indenture Trustee [3] Indenture Supplement(s) for
the purpose of specifically subjecting to the Lien of the Indenture one or more
engines therein described, which Indenture Supplement(s) is (are) dated and has
(have) been duly recorded with the Federal Aviation Administration as set forth
below, to wit:
Date Recordation Date FAA Document No.
NOW, THEREFORE, This Supplement Witnesseth, that, to secure the prompt
payment of the Principal Amount of, interest on, Make-Whole Amount, if any, and
all other amounts due with respect to, all Equipment Notes from time to time
outstanding under the Indenture and the performance and observance by the Owner
Trustee of all the agreements, covenants and provisions contained in the
Indenture and the Refunding Agreement and the Equipment Notes, for the benefit
of the Note Holders, and the prompt payment of any and all amounts from time to
time owing under the Refunding Agreement by the Owner Trustee, the Owner
Participant and the Lessee in each case to the Note Holders and for the uses
and purposes and subject to the terms and provisions of the Indenture, and in
consideration of the premises and of the covenants contained in the Indenture,
and of the acceptance of the Equipment Notes by the Holders thereof, and of the
sum of $1 paid to the Owner Trustee by the Indenture Trustee at or before the
delivery of the Indenture, the receipt whereof is hereby acknowledged, the
Owner Trustee has granted, bargained, sold, assigned, transferred, conveyed,
mortgaged, pledged and confirmed, and does hereby grant, bargain, sell, assign,
--------------------
(1) This recital is to be included only in the first Indenture Supplement
(including the first Indenture Supplement filed with respect to the
Indenture).
(2) This recital not to be included in the first Indenture Supplement.
(3) Insert appropriate number.
Form of Trust Indenture Supplement
99
- 3 -
transfer, convey, mortgage, pledge and confirm, unto the Indenture Trustee, its
successors and assigns, for the security and benefit of the Note Holders from
time to time, in the trust created by the Indenture, a first priority security
interest in and mortgage Lien on all estate, right, title and interest of the
Owner Trustee in, to and under the following described property:
AIRCRAFT ENGINE
one aircraft engine having 750 or more rated takeoff horsepower or
the equivalent thereof, identified as follows:
Manufacturer's
Manufacturer Model Serial Number
together with all equipment and accessories thereto belonging, by whomsoever
manufactured, owned by the Owner Trustee and installed in or appurtenant to
said aircraft engine.
Together with all substitutions, replacements and renewals of the property
above described, and all property which shall hereafter become physically
attached to or incorporated in the property above described, whether the same
are now owned by the Owner Trustee or shall hereafter be acquired by it.
As further security for the obligations referred to above and secured by
the Indenture and hereby, the Owner Trustee has granted, bargained, sold,
assigned, transferred, conveyed, mortgaged, pledged and confirmed, and does
hereby grant, bargain, sell, assign, transfer, convey, mortgage, pledge and
confirm, unto the Indenture Trustee, its successors and assigns, for the
security and benefit of the Note Holders from time to time, in the trust
created by the Indenture, all of the estate, right, title and interest of the
Owner Trustee in, to and under the Lease and Lease Supplement [GPA 1991 AWA-E1]
No. 2 of even date herewith (other than Excepted Payments and Excepted Rights)
covering the property described above.
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, for the benefit and security of
the Note Holders from time to time for the uses and purposes and subject to the
terms and provisions set forth in the Indenture.
This Supplement shall be construed as supplemental to the Indenture and
shall form a part of it, and the Indenture is
Form of Trust Indenture Supplement
100
- 4 -
hereby incorporated by reference herein and is hereby ratified, approved and
confirmed.
This Supplement is being delivered in the State of New York.
AND, FURTHER, the Owner Trustee hereby acknowledges that the Engine
referred to in this Supplement and the aforesaid Lease Supplement has been
delivered to the Owner Trustee and is included in the property of the Owner
Trustee covered by all the terms and conditions of the Trust Agreement, subject
to the pledge and mortgage thereof under the Indenture.
Form of Trust Indenture Supplement
101
- 5 -
IN WITNESS WHEREOF, the Owner Trustee has caused this Supplement to be
duly executed by one of its officers thereunto duly authorized on the day and
year first above written.
WILMINGTON TRUST COMPANY, not in its
individual capacity, except as
otherwise expressly provided herein,
but solely as Owner Trustee
By ____________________________
Title:
Form of Trust Indenture Supplement
102
SCHEDULE I
TO
FIRST AMENDED AND RESTATED
TRUST INDENTURE AND SECURITY AGREEMENT
[GPA 1991 AWA-E1]
MATURITY
PRINCIPAL AMOUNT DATE DEBT RATE
Series A ........ $
Series B ........ $
Series C ........ $
Series D ........ $
Series E ........ $
103
EQUIPMENT NOTES AMORTIZATION
SERIES A
Engine: V0025
Principal Amount Percentage of Original
Repayment Date Amount to be Paid
104
- 2 -
SERIES B
Engine: V0025
Principal Amount Percentage of Original
Repayment Date Amount to be Paid
105
- 3 -
SERIES C
Engine: V0025
Principal Amount Percentage of Original
Repayment Date Amount to be Paid
106
- 4 -
SERIES D
Engine: V0025
Principal Amount Percentage of Original
Repayment Date Amount to be Paid
107
- 5 -
SERIES E
Engine: V0025
Principal Amount Percentage of Original
Repayment Date Amount to be Paid
108
SCHEDULE II
TO
FIRST AMENDED AND RESTATED
TRUST INDENTURE AND SECURITY AGREEMENT
[GPA 1991 AWA-E1]
PASS THROUGH TRUST AGREEMENTS
1. Pass Through Trust Agreement, dated as of November __, 1996, among America
West Airlines, Inc., and Fleet National Bank, as supplemented by Trust
Supplement No. 1996-1A, dated November __, 1996.
2. Pass Through Trust Agreement, dated as of November __, 1996, among America
West Airlines, Inc., and Fleet National Bank, as supplemented by Trust
Supplement No. 1996-1B, dated November __, 1996.
3. Pass Through Trust Agreement, dated as of November __, 1996, among America
West Airlines, Inc., and Fleet National Bank, as supplemented by Trust
Supplement No. 1996-1C, dated November __, 1996.
4. Pass Through Trust Agreement, dated as of November __, 1996, among America
West Airlines, Inc., and Fleet National Bank, as supplemented by Trust
Supplement No. 1996-1D, dated November __, 1996.
5. Pass Through Trust Agreement, dated as of November __, 1996, among America
West Airlines, Inc., and Fleet National Bank, as supplemented by Trust
Supplement No. 1996-1E, dated November __, 1996.
Schedule II