Reg. No. 33-57192 Reg. No. 33-46033
Exhibit No. Exhibit No.
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Exhibit 4(n)(1) Exhibit 4(b)(42)
S&S DRAFT
1/27/96
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AMENDED AND RESTATED
TRUST INDENTURE AND MORTGAGE
(1995 777 C)
Dated as of January 1, 1996
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity except as expressly set forth herein,
but solely as Owner Trustee,
and
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION,
as Indenture Trustee
One Boeing 777-222 Aircraft N767UA
United Air Lines, Inc.
Series 1995 777 C Certificates
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TABLE OF CONTENTS
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Page
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RECITALS................................................................. 1
GRANTING CLAUSE.......................................................... 2
HABENDUM CLAUSE.......................................................... 5
ARTICLE 1 DEFINITIONS................................................... 7
1.01. Definitions................................................... 7
ARTICLE 2 THE CERTIFICATES.............................................. 19
2.01. Certificates; Title and Terms................................. 19
2.02. Execution and Authentication.................................. 19
2.03. Registrar and Paying Agent.................................... 20
2.04. Transfer and Exchange......................................... 20
2.05. Holder Lists; Ownership of Certificates....................... 21
2.06. Mutilated, Destroyed, Lost or Stolen Certificates............. 22
2.07. Cancellation.................................................. 22
2.08. Payment on Certificates; Defaulted Principal and Interest..... 22
2.09. Payment from Indenture Estate Only; Non-Recourse Obligations.. 24
2.10. Execution, Delivery and Dating of Certificates upon
Original Issuance............................................. 25
ARTICLE 3 RECEIPT, DISTRIBUTION AND APPLICATION
OF FUNDS IN THE INDENTURE ESTATE............................ 25
3.01. [Reserved for Potential Future Use]........................... 25
3.02. Payment in Case of Redemption or Purchase of Certificates..... 25
3.03. Application of Rent When No Indenture Event of Default
Is Continuing................................................. 26
3.04. Application of Certain Payments in Case of Requisition
or Event of Loss.............................................. 26
3.05. Payments During Continuance of Indenture Event of Default..... 27
3.06. Payments for Which Application Is Provided in Other
Documents..................................................... 28
3.07. Payments for Which No Application Is Otherwise Provided....... 28
3.08. Payments to Owner Trustee..................................... 29
ARTICLE 4 COVENANTS OF OWNER TRUSTEE.................................... 29
4.01. Covenants of Owner Trustee.................................... 29
ii
ARTICLE 5 DISPOSITION, SUBSTITUTION AND RELEASE OF
PROPERTY INCLUDED IN THE INDENTURE ESTATE
DURING CONTINUATION OF LEASE................................ 30
5.01. Disposition, Substitution and Release of Property Included
in the Indenture Estate During Continuation of Lease.......... 30
ARTICLE 6 REDEMPTION OF CERTIFICATES.................................... 31
6.01. Redemption of Certificates upon Certain Events................ 31
6.02. Redemption or Purchase of Certificates upon Certain Indenture
Events of Default............................................. 34
6.03. Notice of Redemption to Holders............................... 34
6.04. Deposit of Redemption Price................................... 35
6.05. Certificates Payable on Redemption Date....................... 35
ARTICLE 7 MATTERS CONCERNING THE COMPANY................................ 35
7.01. Notice of Monies Held by the Indenture Trustee................ 35
7.02. Change in Registration........................................ 35
7.03. Assumption of Obligations of Owner Trustee by the Company..... 37
ARTICLE 8 DEFAULTS AND REMEDIES......................................... 39
8.01. Indenture Events of Default................................... 39
8.02. Acceleration; Rescission and Annulment........................ 41
8.03. Other Remedies Available to Indenture Trustee................. 41
8.04. Waiver of Owner Trustee....................................... 48
8.05. Waiver of Existing Defaults................................... 48
8.06. Control by Majority........................................... 48
8.07. Limitation on Suits by Holders................................ 49
8.08. Rights of Holders to Receive Payment.......................... 50
8.09. Indenture Trustee May File Proofs of Claim.................... 50
ARTICLE 9 INDENTURE TRUSTEE............................................. 50
9.01. Duties of Indenture Trustee................................... 50
9.02. Rights of Indenture Trustee................................... 50
9.03. Individual Rights of Indenture Trustee........................ 51
9.04. Funds May Be Held by Indenture Trustee or Paying Agent;
Investments................................................... 51
9.05. Notice of Defaults............................................ 52
9.06. Compensation and Indemnity.................................... 52
9.07. Replacement of Indenture Trustee.............................. 53
9.08. Successor Indenture Trustee, Agents by ▇▇▇▇▇▇, etc............ 54
iii
9.09. Eligibility; Disqualification................................. 54
9.10. Trustee's Liens............................................... 54
9.11. Withholding Taxes; Information Reporting...................... 55
ARTICLE 10 SATISFACTION AND DISCHARGE; DEFEASANCE;
TERMINATION OF OBLIGATIONS.................................. 55
10.01. Satisfaction and Discharge of Agreement; Defeasance;
Termination of Obligations.................................... 55
10.02. Survival of Certain Obligations............................... 57
10.03. Monies to Be Held in Trust.................................... 57
10.04. Monies to Be Returned to Owner Trustee........................ 57
ARTICLE 11 AMENDMENTS AND WAIVERS........................................ 58
11.01. Amendments to this Indenture Without Consent of Holders....... 58
11.02. Amendments to this Indenture with Consent of Holders.......... 59
11.03. Revocation and Effect of Consents............................. 60
11.04. Notation on or Exchange of Certificates....................... 60
11.05. Indenture Trustee Protected................................... 60
11.06. Amendments, Waivers, etc. of Other Operative Documents........ 60
ARTICLE 12 MISCELLANEOUS................................................. 63
12.01. Notices....................................................... 63
12.02. [Reserved for Potential Future Use]........................... 65
12.03. [Reserved for Potential Future Use]........................... 65
12.04. Rules by Indenture Trustee and Agents......................... 65
12.05. Non-Business Days............................................. 65
12.06. GOVERNING LAW................................................. 66
12.07. No Recourse Against Others.................................... 66
12.08. Execution in Counterparts..................................... 66
ARTICLE 13 ACTIONS TO BE TAKEN UPON TERMINATION OF LEASE................. 66
13.01. Actions to Be Taken upon Termination of Lease................. 66
SIGNATURES............................................................... 71
Exhibit A-1 Form of Series 1995 777 C Installment Certificates
Exhibit A-2 Form of Series 1995 777 C Serial Certificates
Exhibit B Maturity Dates, Principal Amounts and Interest Rates of Series
1995 777 C Certificates
Exhibit B-1 Installment Payment Dates and Installment Payment Percentages
Exhibit B-2 Issuance of Series 1995 777 C Certificates
iv
Exhibit C Form of Supplement to the Trust Agreement and the
Amended and Restated Trust Indenture and Mortgage
AMENDED AND RESTATED
TRUST INDENTURE AND MORTGAGE (1995 777 C)
This AMENDED AND RESTATED TRUST INDENTURE AND MORTGAGE (1995 777 C), dated
as of January 1, 1996 and effective as of the Effective Date, between STATE
STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national
banking association, not in its individual capacity except as otherwise
expressly provided herein, but solely as Owner Trustee under the Trust Agreement
(capitalized terms used herein having the respective meanings specified therefor
in Article 1), and FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION, a national
banking association, as Indenture Trustee hereunder.
W I T N E S S E T H:
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WHEREAS, the Owner Participant and the Owner Trustee in its individual
capacity have entered into the Trust Agreement whereby, among other things, (i)
the Owner Trustee has established a certain trust for the use and benefit of the
Owner Participant, subject, however, to the Indenture Estate created pursuant
hereto for the use and benefit of, and with the priority of payment to, the
holders of the Certificates issued hereunder, and (ii) the Owner Trustee has
been authorized and directed pursuant to the Redemption and Refinancing
Agreement to execute and deliver this Amended and Restated Trust Indenture and
Mortgage;
WHEREAS, all capitalized terms used herein shall have the respective
meanings set forth or referred to in Article 1;
WHEREAS, the Owner Trustee and the Indenture Trustee entered into that
certain Trust Indenture and Security Agreement (1995 777 C), dated as of May 1,
1995 (the "Original Indenture"), which Original Indenture was recorded with the
Federal Aviation Administration on May 31, 1995 and was assigned Conveyance No.
P02548;
WHEREAS, the parties desire by this 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 Series 1995 777 C Certificates
evidencing the loans made by the Pass Through Trustees to finance the Owner
Trustee's payment of Lessor's Cost, as provided in the Redemption and
Refinancing Agreement, and (iii) to provide for the assignment, mortgage and
pledge by the Owner Trustee to the Indenture Trustee, as part of the Indenture
Estate hereunder, among other things, of certain of the Owner Trustee's right,
title and interest in and to the Aircraft and the Operative Documents and
certain payments and other amounts received hereunder or thereunder in
accordance with the terms hereof, as security
Indenture-2 (1995 777 C)
for, among other things, the Owner Trustee's obligations to the Indenture
Trustee, for the ratable benefit and security of the Holders;
WHEREAS, all things have been done to make the Certificates, when executed
by the Owner Trustee and authenticated and delivered by the Indenture Trustee
hereunder, the valid, binding and enforceable obligations of the Owner Trustee;
and
WHEREAS, all things necessary to make this Indenture the legal, valid and
binding obligation of the Owner Trustee and the Indenture 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 TRUST INDENTURE AND MORTGAGE WITNESSETH, that, to
secure the prompt payment of the principal of, premium, if any, and interest on,
and all other amounts due with respect to, all Certificates from time to time
Outstanding and the performance and observance by the Owner Trustee of all the
agreements, covenants and provisions contained herein and in the Operative
Documents to which it is a party, for the benefit of the 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 Certificates by the Holders, and of other good and valuable
consideration the receipt and adequacy whereof are 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 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 (which collectively, including all property
hereafter specifically subjected to the lien of this Indenture by any instrument
supplemental hereto, but excluding the Excluded Payments, are herein called the
"Indenture Estate"):
(1) the Airframe and Engines (each such Engine having 750 or more
rated take-off horsepower or the equivalent thereof) and all replacements
thereof and substitutions therefor in which the Owner Trustee shall from
time to time acquire an interest in accordance with the Lease, as more
particularly described in the Trust Supplement and the Lease Supplement
executed and delivered with respect to the Aircraft or any such
replacements or substitutions therefor, as provided in this Indenture and
the Lease;
Indenture-3 (1995 777 C)
(2) the Lease and all Rent thereunder, including, without limitation,
all amounts of Basic Rent, Supplemental Rent, and payments of any kind
required to be made by the Company thereunder; all amounts payable to the
Owner Trustee under the Participation Agreement that do not constitute
Excluded Payments; the Purchase Agreement (to the extent assigned by the
Owner Trustee's Purchase Agreement), the Owner Trustee's Purchase
Agreement, the Owner Trustee's Bill of Sale, the Owner Trustee's FAA Bill
of Sale and any and all contracts relating to the Airframe and Engines or
any rights or interest therein to which the Owner Trustee is now or may
hereafter be a party; in each case including, without limitation, all
rights of the Owner Trustee to receive any payments or other amounts or to
exercise any election or option or to make any decision or determination or
to give or receive 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 Aircraft or any part thereof, as well as all
the rights, powers and remedies on the part of the Owner Trustee, whether
acting under any such document or by statute or at law or in equity, or
otherwise, arising out of any Lease Event of Default (other than the rights
of the Owner Trustee provided for hereunder);
(3) all rents, issues, profits, revenues and other income of the
property subjected or required to be subjected to the Lien of this
Indenture;
(4) all requisition proceeds with respect to the Aircraft or any part
thereof (to the extent of the Owner Trustee's interest therein pursuant to
the terms of the Lease) and all insurance proceeds with respect to the
Aircraft or any part thereof from insurance required to be maintained by
the Company under Section 11 of the Lease, but excluding any insurance
maintained by the Company and not required under Section 11 of the Lease;
(5) 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; and
(6) all proceeds of the foregoing.
Notwithstanding the foregoing provisions:
(a) there shall be excluded from the security interest granted by this
Indenture all Excluded Payments;
(b) (i) whether or not a Lease Event of Default or an Indenture Event
of Default shall occur and be continuing, the Owner Trustee and the Owner
Participant
Indenture-4 (1995 777 C)
shall at all times retain the right, to the exclusion of the Indenture
Trustee (a) to Excluded Payments and to commence an action at law to obtain
such Excluded Payments, (b) to adjust Basic Rent and the percentages
relating to Stipulated Loss Value and Termination Value and the EBO
Percentage as provided in Section 3(c) of the Lease and Section 18 of the
Participation Agreement, (c) to exercise any election or option to make any
decision or determination, or to give or receive any notice, consent,
waiver or approval, or to take any other action in respect of, but in each
case only to the extent relating to, Excluded Payments, (d) to retain the
rights of the "Lessor" with respect to solicitations of bids, and the
election to retain the Aircraft pursuant to Section 9 of the Lease, (e) to
exercise the right of "Lessor" to determine the fair market rental value or
fair market sales value pursuant to Section 19 of the Lease and otherwise
to exercise all rights of "Lessor" under said Section 19 (except with
respect to Section 19(b)(1)) with respect to the retention of the Aircraft
by the "Lessee" or the "Lessee's" renewal or purchase option, (f) to
exercise all rights with respect to insurance maintained for its own
account which Section 11(e) of the Lease specifically confers on the
"Lessor", (g) to exercise, to the extent necessary to enable it to exercise
its rights under Section 8.03(e)(i), the rights of the "Lessor" under
Section 21 of the Lease and (h) to approve appraisers, reports, filings,
opinions and other documents in each case with respect to matters relating
solely to the Owner Participant's tax position;
(ii) whether or not a Lease Event of Default or Indenture Event of
Default shall occur and be continuing, the Owner Trustee and the Indenture
Trustee shall each have the right separately but not to the exclusion of
the other, (a) to receive from the Company all notices, certificates,
reports, filings, Opinions of Counsel, copies of all documents and all
information which the Company is permitted or required to give or furnish
to the "Lessor" pursuant to the Lease or to the Owner Trustee pursuant to
any other Operative Document, (b) to exercise inspection rights pursuant to
Section 12 of the Lease, (c) to maintain separate insurance pursuant to
Section 11(e) of the Lease and to retain all rights with respect to such
insurance maintained for its own account, (d) to give any notice of default
under Section 15 of the Lease and to declare the Lease in default in
respect thereof, (e) to cause the Company to take any action and execute
and deliver such documents and assurances as the "Lessor" may from time to
time reasonably request pursuant to Section 16 of the Lease, (f) to consent
(with the concurrent consent of the other such party to the extent such
consent is required) to changes to the list of countries on Exhibit F or G
to the Lease and (g) to purchase parts (as such term is used in Section
5(e) of the Lease) pursuant to such Section 5(3) of the Lease;
(iii) so long as no Indenture Event of Default shall have occurred
and be continuing (but subject to the provisions of Section 11.06), the
Owner Trustee shall retain the right, to the exclusion of the Indenture
Trustee, to exercise the following
Indenture-5 (1995 777 C)
rights of the "Lessor" under the Lease: (a) the right to approve as
satisfactory any accountants, engineers or counsel to render services for
or issue opinions to the Owner Trustee pursuant to express provisions of
the Operative Documents, (b) the right to waive the opinion required
pursuant to Section 8(e)(ii) of the Participation Agreement, (c) in
connection with an Event of Loss relating only to one or more Engines, the
right to elect (or not to elect) under Section 10(b) of the Lease to
require the Company to pay the amounts set forth in clauses (A) and (B) of
such Section 10(b) and (d) to exercise all rights of the "Lessor" upon the
return of the Aircraft under Section 5 of the Lease; and
(iv) so long as no Indenture Event of Default shall have occurred and
be continuing, the Owner Trustee shall have the right, together with the
Indenture Trustee, to exercise the rights that the Lease specifically
confers on the "Lessor" and that are not otherwise reserved to the
Indenture Trustee in this paragraph (b);
(c) the leasehold interest granted to the Company by the Lease shall
not be subject to the security interest granted by this Indenture, and
nothing in this Indenture shall affect the rights of the Company under the
Lease so long as no Lease Event of Default has occurred and is continuing;
and
(d) as between the Owner Trustee and the Indenture Trustee, nothing
contained in this Granting Clause shall prevent the Owner Trustee, as the
"Lessor" under the Lease, from seeking specific performance of the
covenants of the Company under the Lease relating to the protection,
insurance, maintenance, possession and use of the Aircraft and from
maintaining separate insurance with respect to the Aircraft to the extent
permitted by Section 11 of the Lease.
None of the payments and rights described in the foregoing clauses (a)
through (d) shall be included in the Indenture Estate.
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 Indenture Trustee and the Holders from time to time, without any
priority of any one Certificate over any other, and for the uses and purposes
and subject to the terms and provisions set forth in this Indenture.
1. It is expressly agreed that anything herein contained to the
contrary notwithstanding, the Owner Trustee shall remain liable under each of
the Operative Documents to which it is a party to perform all of its obligations
assumed by it thereunder,
Indenture-6 (1995 777 C)
all in accordance with and pursuant to the terms and provisions thereof, and the
Indenture Trustee, except as herein expressly provided, and the Holders shall
have no obligation or liability under any of the Operative Documents to which
the Owner Trustee is a party by reason of or arising out of the assignment
hereunder, nor shall the Indenture Trustee, except as herein expressly provided,
or the Holders be required or obligated in any manner to perform or fulfill any
obligations of the Owner Trustee under any of the Operative Documents to which
the Owner Trustee is a party, 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.
2. 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) subject to the terms and
conditions of this Indenture, to ask, require, demand, receive, compound and
give acquittance for any and all moneys and claims for moneys due and to become
due to the Owner Trustee (other than Excluded Payments) under or arising out of
the Lease (subject to Section 11.06(b)(1)), the Purchase Agreement and the Owner
Trustee's Purchase Agreement, to endorse any checks or other instruments or
orders in connection therewith and, to file any claims or take any action or
institute any proceedings which the Indenture Trustee may deem to be necessary
or advisable in the premises. The Owner Trustee has directed the Company to
make all payments of Rent (other than Excluded Payments) payable to the Owner
Trustee by the Company and all other amounts which are required to be paid to or
deposited with the Owner Trustee pursuant to the Lease directly to the Indenture
Trustee at such address as the Indenture Trustee shall specify, for application
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 Indenture Estate, for
distribution by the Indenture Trustee pursuant to this Indenture, except that
the Owner Trustee shall accept for distribution pursuant to the Trust Agreement
any amounts distributed to it by the Indenture Trustee as expressly provided in
this Indenture.
3. 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 parties hereto
acknowledge that neither the Owner Trustee nor the Owner Participant shall have
any obligation as to any recording, filing, refiling or rerecording of any
documents or instruments in regard to maintaining the perfection of the security
interests created hereunder, in the Indenture Estate or any security interests
that may be claimed to
Indenture-7 (1995 777 C)
have been created by the Lease or by the ownership interests of the Owner
Trustee in the Aircraft.
4. 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,
so long as the assignment hereunder shall remain in effect, any of its right,
title or interest hereby assigned, to any Person other than the Indenture
Trustee, and that it will not, except as provided in or permitted by this
Indenture, accept any payment from the Company, enter into an agreement amending
or supplementing any of the Operative Documents, execute any waiver or
modification of, or consent under the terms of any of the Operative Documents,
settle or compromise any claim (other than claims in respect of Excluded
Payments) against the Company arising under any of the Operative Documents, or
submit or consent to the submission of any dispute, difference or other matter
arising under or in respect of any of the Operative Documents, to arbitration
thereunder.
IT IS HEREBY FURTHER COVENANTED AND AGREED by and among the parties
hereto as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. (a) For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article 1 have the meanings assigned to
them in this Article 1, and include the plural as well as the singular;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States;
(3) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(4) all references in this Indenture to Articles, Sections and
Exhibits refer to Articles, Sections and Exhibits of this Indenture.
(b) For all purposes of this Indenture, the following capitalized
terms have the following respective meanings:
Indenture-8 (1995 777 C)
"Actual Knowledge" shall have the meaning specified therefor in the
Lease.
"Affiliate" shall have the meaning specified therefor in the Lease.
"Agent" means any Paying Agent or Registrar.
"Aircraft" shall have the meaning specified therefor in the Lease.
"Airframe" shall have the meaning specified therefor in the Lease.
"Appraiser" means a Person engaged in the business of making
appraisals and, in the case of the Aircraft, familiar with commercial aviation
equipment.
"Assignment and Assumption Agreement" means the Assignment and
Assumption Agreement (1995 777 C), dated as of January 1, 1996, between State
Street and State Street Connecticut.
"Assumption Date" shall have the meaning set forth in Section 7.03.
"Bankruptcy Code" means the United States Bankruptcy Reform Act of
1978, as amended from time to time, 11 U.S.C. (S)(S) 101 et seq.
"Basic Rent" shall have the meaning specified therefor in the Lease.
"Business Day" shall have the meaning specified therefor in the Lease.
"Certificate" or "Certificates" means any Certificate issued under
this Indenture, including the Series 1995 777 C Certificates issued hereunder
substantially in the form of Exhibits A-1 and A-2 as such form may be varied
pursuant to the terms hereof and any and all Certificates issued in replacement
or exchange therein in accordance with the provisions hereof.
"Certificate Holder" shall have the meaning specified for the term
"Holder" hereunder.
"Citizen of the United States" shall have the meaning specified
therefor in the Lease.
"Company" means United Air Lines, Inc., a Delaware corporation, and,
subject to the provisions of the Participation Agreement, its permitted
successors and assigns.
Indenture-9 (1995 777 C)
"Company Request" means a written request of the Company executed on
its behalf by a Responsible Company Officer.
"Co-Registrar" shall have the meaning specified therefor in Section
2.03.
"Debt" shall mean 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.
"Default" shall have the meaning specified therefor in the Lease.
"Defaulted Installment" shall have the meaning specified therefor in
Section 2.08.
"Defaulted Interest" shall have the meaning specified therefor in
Section 2.08.
"Delivery Date" shall have the meaning specified therefor in the
Lease.
"EBO Date" shall have the meaning specified therefor in the Lease.
"Effective Date" shall have the meaning specified therefor in the
Lease.
"Enforcement Date" shall have the meaning specified therefor in
Section 8.03(e)(i).
"Engine" shall have the meaning specified therefor in the Lease.
"Event of Loss" shall have the meaning specified therefor in the
Lease.
"Excess Payment" shall have the meaning specified therefor in Section
2.09(c).
"Excluded Payments" means (i) any right, title or interest of the
Owner Trustee in its individual capacity, the Owner Participant or their
respective Affiliates or of their respective successors, permitted assigns,
directors, officers, employees, servants and agents to any payment which by the
terms of Section 7(b) or 7(c) of the Participation Agreement, Section 5.03 or
7.01 of the Trust Agreement or any section of the Tax Indemnity Agreement or any
corresponding payment under Section 3(d) of the Lease is payable to such Person,
(ii) any insurance proceeds payable under insurance maintained by the Owner
Trustee in its individual capacity or the Owner Participant (whether directly or
through the Owner Trustee), or to their respective Affiliates, successors,
permitted assigns, directors, officers, employees, servants and agents, (iii)
any insurance proceeds (or proceeds of governmental indemnities in lieu thereof)
payable to the Owner Trustee in its individual
Indenture-10 (1995 777 C)
capacity or as Owner Trustee hereunder or to the Owner Participant, or to their
respective Affiliates, successors, permitted assigns, directors, officers,
employees, servants and agents, under any liability insurance maintained by the
Company pursuant to Section 11 of the Lease or by any other Person (or proceeds
of governmental indemnities in lieu thereof), (iv) any rights of the Owner
Participant or the Owner Trustee to demand, collect, sue for, or otherwise
receive and enforce payment of the foregoing amounts (including interest thereon
to the extent provided in the applicable provisions of the Operative Documents)
and the right to declare an Event of Default under the Lease in respect of any
of the foregoing amounts, but not including the right to exercise any remedies
under the Lease except for those specifically provided for in this clause (iv),
(v) if the Company has assumed the obligations of the Owner Trustee in respect
of the Certificates in accordance with Section 7.03 hereof and Section 8(l) of
the Participation Agreement, the amount payable as purchase price pursuant to
Section 9(b) or Section 19(b)(1) of the Lease, (vi) Transaction Expenses or
other amounts or expenses paid or payable to, or for the benefit of, the Owner
Participant pursuant to the Participation Agreement, (vii) the respective rights
of the Owner Trustee in its individual capacity or the Owner Participant to the
proceeds of the foregoing and (viii) any right to demand, collect or otherwise
receive and enforce the payment of any amount described in clauses (i) through
(vii) above.
"Federal Aviation Act" shall have the meaning specified therefor in
the Lease.
"Federal Aviation Administration" and "FAA" shall have the meaning
specified therefor in the Lease.
"Holder" means a person in whose name a Certificate is registered on
the Register including, so long as it holds any Certificate issued hereunder,
the respective Pass Through Trustee under each Pass Through Trust Agreement.
"Indenture Default" means any event which is, or after notice or
passage of time, or both, would be, an Indenture Event of Default.
"Indenture Estate" shall have the meaning specified therefor in the
Granting Clause hereof.
"Indenture Event of Default" shall have the meaning specified therefor
in Article 8.
"Indenture Trustee" means First Security Bank of Utah, National
Association, a national banking association, and each other Person which may
from time to time be acting as Indenture Trustee in accordance with the
provisions of this Indenture.
Indenture-11 (1995 777 C)
"Independent" when used with respect to an engineer, Appraiser or
other expert, means an engineer, Appraiser or other expert who (i) is in fact
independent, (ii) does not have any direct financial interest or any material
indirect financial interest in the Company or any Affiliate of the Company, and
(iii) is not connected with the Company or any Affiliate of the Company as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions.
"Independent Investment Banker" shall mean an independent investment
banking institution of national standing appointed by (i) the Company on behalf
of the Owner Trustee or (ii) in the case of a redemption or purchase of the
Certificates under Section 6.01(b) pursuant to Section 8.03(e)(ii), the Owner
Trustee; provided that, if the Indenture Trustee shall not have received written
notice of such an appointment at least 10 days prior to the relevant Redemption
Date or if a Lease Event of Default shall have occurred and be
continuing,"Independent Investment Banker" shall mean such an institution
appointed by the Indenture Trustee.
"Installment Certificate" shall mean a Certificate substantially in
the form of Exhibit A-1, should any such Certificate be issued hereunder.
"Installment Payment Amount" means, with respect to each Installment
Certificate, the amount of the installment payment of principal due and payable
on each Installment Payment Date, which amount shall be equal to the product of
the original principal amount of such Certificate and the Installment Payment
Percentage for such Installment Payment Date.
"Installment Payment Date" means each date on which an installment
payment of principal is due and payable on any Installment Certificate, as set
forth in Exhibit B-1.
"Installment Payment Percentage" means, with respect to each
Installment Payment Date, the percentage set forth opposite such Installment
Payment Date in Exhibit B-1; provided that, after the occurrence of any partial
redemption or redemptions pursuant to clause (ii) of Section 6.01(a), the
"Installment Payment Percentage" for each Installment Payment Date subsequent to
the applicable Redemption Date shall be equal to the percentage obtained from
the following calculation:
(p - n) x y
-----------
p x s
where, for Installment Certificates maturing on the same Maturity Date:
p = the sum of the original principal amounts of all Installment
Certificates maturing on such Maturity Date as reflected on
Exhibit B;
Indenture-12 (1995 777 C)
n = the sum of the principal amounts paid to all holders of
Installment Certificates maturing on such Maturity Date as a
result of all such partial redemptions (excluding any Installment
Payment Amounts paid on a Redemption Date as a result of any such
Redemption Date occurring on an Installment Payment Date) and all
payments of principal paid on Installment Payment Dates on or
prior to the applicable Redemption Date;
y = the Installment Payment Percentage set forth in such Exhibit B-1
applicable to the Installment Payment Date for which this
calculation is being performed; and
s = the sum of the Installment Payment Percentages for Installment
Payment Dates related to such Installment Certificates maturing
on such Maturity Date and subsequent to the applicable Redemption
Date.
"Interest Payment Date" means each January 30 and July 30, commencing
July 30, 1996.
"Lease" means (x) with respect to any time prior to the execution and
delivery of the Redemption and Refinancing Agreement, that certain Lease
Agreement (1995 777 C), dated as of May 1, 1995, between State Street
Connecticut (as successor to State Street), as lessor, and the Company, as
lessee, recorded by the FAA on May 31, 1995 and assigned Conveyance No. P02549,
and (y) at the time of the execution and delivery of the Redemption and
Refinancing Agreement and thereafter, such Lease Agreement (1995 777 C), as
amended by the First Amendment to Lease Agreement (1995 777 C), dated February
__, 1996, between State Street Connecticut (as successor to State Street), as
lessor, and the Company, as lessee, recorded by the FAA on February __, 1996 and
assigned Conveyance No. ______ , as such Lease Agreement may from time to time
be further supplemented, amended or modified in accordance with the terms
thereof and this Indenture. The term "Lease" shall also include each Lease
Supplement entered into pursuant to the terms of the Lease.
"Lease Event of Default" shall have the meaning specified for the term
"Event of Default" in the Lease.
"Lease Loss Payment Date" shall have the meaning specified for the
term "Loss Payment Date" in the Lease.
"Lease Supplement" shall have the meaning specified therefor in the
Lease.
"Lease Termination Date" shall have the meaning specified for the term
"Termination Date" in the Lease.
Indenture-13 (1995 777 C)
"Lessor Liens" shall have the meaning specified therefor in the Lease.
"Lien" means any mortgage, pledge, lien, charge, encumbrance, lease,
exercise of rights, security interest or claim.
"Loan Certificate" shall have the meaning specified for the term
"Certificate" hereunder.
"Maturity Date" means each of the dates specified in Exhibit B as a
maturity date of one or more of the Certificates.
"Officers' Certificate" means a certificate signed, in the case of the
Company, by (i) the Chairman of the Board of Directors, the President, or any
Senior Vice President of the Company, signing alone, or (ii) any Vice President
signing together with the Secretary, any Assistant Secretary, the Treasurer or
any Assistant Treasurer of the Company or, in the case of the Owner Trustee, a
Responsible Officer of the Owner Trustee.
"Operative Documents" means this Indenture, the Participation
Agreement, the Lease, the Tax Indemnity Agreement, the Consent and Agreement,
the Owner Trustee's Bill of Sale, the Owner Trustee's FAA Bill of Sale, the
Acceptance Certificate, the Purchase Agreement (to the extent assigned by the
Owner Trustee's Purchase Agreement), the Owner Trustee's Purchase Agreement, the
Certificates, the Trust Agreement, the Trust Supplement, the Assignment and
Assumption Agreement and the Redemption and Refinancing Agreement.
"Opinion of Counsel" means a written opinion of legal counsel, who in
the case of counsel for the Company may be (i) the senior attorney employed by
the Company, (ii) Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz or (iii) other counsel
designated by the Company and who shall be reasonably satisfactory to the
Indenture Trustee or, in the case of legal counsel for the Owner Trustee, may be
(x) ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ or (y) other counsel designated by the Owner Trustee
and who shall be reasonably satisfactory to the Indenture Trustee.
"Outstanding", when used with respect to Certificates, means, as of
the date of determination, all Certificates theretofore executed and delivered
under this Indenture other than:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to Section
2.07 or otherwise;
(ii) Certificates for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Indenture Trustee
in trust for the Holders of such Certificates; provided that if such
Certificates are to be redeemed,
Indenture-14 (1995 777 C)
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Indenture Trustee has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to this Indenture;
provided, however, that in determining whether the Holders of the requisite
aggregate principal amount of Certificates Outstanding have given any request,
demand, authorization, declaration, direction, notice, consent or waiver
hereunder, Certificates owned by or pledged to the Company or any Affiliate of
the Company or the Owner Trustee or the Owner Participant or any Affiliate
thereof, shall be disregarded and deemed not to be Outstanding unless, in case
of the Owner Trustee, the Owner Participant or any Affiliate thereof, all of the
Certificates are owned by or pledged to such Persons, except that, in
determining whether the Indenture Trustee shall be protected in relying upon any
such request, demand, authorization, declaration, direction, notice, consent or
waiver, only Certificates which the Indenture Trustee knows to be so owned or so
pledged shall be disregarded. Certificates owned by the Company, or the Owner
Trustee or the Owner Participant, which have been pledged in good faith may be
regarded as Outstanding if the Company, or the Owner Trustee or the Owner
Participant, as the case may be, establishes to the satisfaction of the
Indenture Trustee the pledgee's right to act with respect to such Certificates
and that the pledgee is not the Company, or the Owner Trustee or the Owner
Participant or any Affiliate thereof.
"Owner Participant" shall be the party specified as the "Owner
Participant" in the Participation Agreement, its successors and, to the extent
permitted by Article VIII of the Trust Agreement and Section 8(h) of the
Participation Agreement, its assigns.
"Owner Trustee" means (x) with respect to any time prior to the
execution and delivery of the Assignment and Assumption Agreement, State Street,
and (y) at the time of the execution and delivery of the Assignment and
Assumption Agreement and thereafter, State Street Connecticut, not in its
individual capacity, but solely as trustee under the Trust Agreement, and each
other Person which may from time to time be acting as Owner Trustee in
accordance with the provisions of the Operative Documents.
"Owner Trustee's Bill of Sale" shall have the meaning specified
therefor in the Lease.
"Owner Trustee's FAA Bill of Sale" shall have the meaning specified
therefor in the Lease.
"Owner Trustee's Purchase Agreement" shall have the meaning specified
therefor in the Lease.
Indenture-15 (1995 777 C)
"Participation Agreement" shall have the meaning specified therefor in
the Lease.
"Parts" shall have the meaning specified therefor in the Lease.
"Pass Through Certificates" means any of the Pass Through Certificates
issued pursuant to any of the Pass Through Trust Agreements.
"Pass Through Trust" means each pass through trust created pursuant to
the related Pass Through Trust Agreement.
"Pass Through Trust Agreements" means the Pass Through Trust
Agreement, dated as of February 1, 1992, as amended and restated as of May 1,
1995, between the Company and the Pass Through Trustee and as supplemented by
each of two Pass Through Trust Supplements Nos. 1996-A1 and 1996-A2, each dated
as of January 1, 1996, as the same may from time to time be further amended,
supplemented or otherwise modified.
"Pass Through Trust Supplement" shall have the meaning specified for
the term "Trust Supplement" in the Pass Through Trust Agreement.
"Pass Through Trustee" means First Security Bank of Utah, National
Association in its capacity as trustee under each Pass Through Trust Agreement,
and such other Person that may from time to time be acting as successor trustee
under any such Pass Through Trust Agreement.
"Paying Agent" means any person acting as Paying Agent hereunder
pursuant to Section 2.03.
"Permitted Investment" means each of (i) obligations of, or guaranteed
by, the United States Government or agencies thereof, (ii) open market
commercial paper of any corporation incorporated under the laws of the United
States of America or any State thereof rated at least P-1 or its equivalent by
▇▇▇▇▇'▇ Investors Service, Inc. or at least A-1 or its equivalent by Standard &
Poor's Ratings Services, (iii) certificates of deposit issued by commercial
banks organized under the laws of the United States or of any political
subdivision thereof having a combined capital and surplus in excess of
$750,000,000 which banks or their holding companies have a rating of A or its
equivalent by ▇▇▇▇▇'▇ Investors Service or Standard & Poor's Ratings Services;
provided, however, that the aggregate amount at any one time so invested in
certificates of deposit issued by any one bank shall not exceed 5% of such
bank's capital and surplus and (iv) repurchase agreements with any financial
institution having combined capital and surplus of at least $750,000,000 with
any of the obligations described in clauses (i) through (iii) as collateral.
Indenture-16 (1995 777 C)
"Permitted Lien" shall have the meaning specified therefor in the
Lease.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Premium" or "premium" shall have the meaning specified in Section
6.01(b).
"Premium Termination Date" means, with respect to a Certificate, the
date set forth below opposite the Maturity Date of such Certificate:
Premium
Certificates Maturity Date Termination Date
-------------------- ------------- ----------------
Series 1995 777 C1
Certificate
Series 1995 777 C2
Certificate
"Purchase Agreement" shall have the meaning specified therefor in the
Lease.
"Record Date" for the interest or Installment Payment Amount payable
on any Certificate on any Interest Payment Date or Installment Payment Date
(other than the Maturity Date) for such Certificate, as the case may be, means
the calendar day (whether or not a Business Day) which is 15 calendar days prior
to the related Interest Payment Date or the related Installment Payment Date.
"Redemption and Refinancing Agreement" shall have the meaning
specified therefor in the Lease.
"Redemption Date" means the date on which the Certificates are to be
redeemed or purchased pursuant to Section 6.01 or 6.02, as the case may be, as
specified in the notice delivered pursuant to Section 6.03.
"Redemption Price" means the price at which the Certificates are to be
redeemed or purchased, determined as of the applicable Redemption Date, pursuant
to Section 6.01 or 6.02, as the case may be.
"Refinancing Amount" shall have the meaning specified therefor in the
Redemption and Refinancing Agreement.
Indenture-17 (1995 777 C)
"Refinancing Date" shall mean the date designated by the Company as
the date for a refinancing of the Certificates in accordance with Section 17 of
the Participation Agreement.
"Register" shall have the meaning specified therefor in Section 2.03.
"Registrar" means any person acting as Registrar hereunder pursuant to
Section 2.03.
"Rent" shall have the meaning specified therefor in the Lease.
"Replacement Airframe" shall have the meaning specified therefor in
the Lease.
"Replacement Engine" shall have the meaning specified therefor in the
Lease.
"Responsible Company Officer" means, with respect to the Company, its
Chairman of the Board, its President, any Senior Vice President, the Chief
Financial Officer, any Vice President, the Treasurer or any other management
employee (a) working under the direct supervision of such Chairman of the Board,
President, Senior Vice President, Chief Financial Officer, Vice President or
Treasurer and (b) whose responsibilities include the administration of the
transactions and agreements, including the Lease, contemplated by the
Participation Agreement.
"Responsible Officer" means, with respect to the Owner Trustee or the
Indenture Trustee, any officer in its Corporate Trust Administration Department
or any officer of the Owner Trustee or the Indenture Trustee, as the case may
be, customarily performing functions similar to those performed by the persons
who at the time shall be such officers, respectively, or to whom any corporate
trust matter is referred because of his knowledge of and familiarity with a
particular subject.
"SEC" means the Securities and Exchange Commission.
"Serial Certificate" shall mean a Certificate substantially in the
form of Exhibit A-2, should any such Certificate be issued hereunder.
"Series 1995 777 C Certificate" means any Certificate issued by the
Owner Trustee under this Indenture substantially in the form of Exhibit A-1 or
A-2, and any and all of the Series 1995 777 C Certificates issued in replacement
or exchange thereof in accordance with the provisions hereof.
Indenture-18 (1995 777 C)
"State Street" means State Street Bank and Trust Company, a
Massachusetts trust company.
"State Street Connecticut" means State Street Bank and Trust Company
of Connecticut, National Association, a national banking association.
"Stipulated Loss Value" shall have the meaning specified therefor in
the Lease.
"Supplemental Rent" shall have the meaning specified therefor in the
Lease.
"Tax Indemnity Agreement" shall have the meaning specified therefor in
the Lease.
"Termination Value" shall have the meaning specified therefor in the
Lease.
"Treasury Yield" means, with respect to each Certificate to be
redeemed or purchased, (x) in the case of a Certificate having a maturity less
than one year after the applicable redemption or purchase date, the average
yield to stated maturity on a government bond equivalent basis of the applicable
United States Treasury Bill due the week of the maturity of such Certificate or
(y) in the case of a Certificate having a maturity of one year or more after the
applicable redemption or purchase date, the average yield to stated maturity of
the most comparable United States Treasury Notes or Bonds as identified by an
independent investment banker, corresponding in maturity to the Remaining
Weighted Average Life (as defined below) of such Certificate (or, if there is no
maturity corresponding to such Remaining Weighted Average Life, an interpolation
of maturities by such independent investment banker), in each case under (x) and
(y) above determined by such independent investment banker based on the average
of the yields to stated maturity determined from the bid prices on the fourth
Business Day preceding the applicable redemption or purchase date. For purposes
hereof, "Remaining Weighted Average Life" means, for any Certificate, at the
redemption or purchase date of such Certificate, the number of years obtained by
dividing (a) the sum of the products obtained by multiplying (i) the amount of
each then remaining scheduled payment of principal, including the payment due on
the maturity date of such Certificate, by (ii) the number of years (calculated
to the nearest one-twelfth) which will elapse between the redemption or purchase
date and the regular distribution dates as of such scheduled payments of
principal, by (b) the then outstanding principal amount of such Certificate.
"Trust Agreement" shall have the meaning specified therefor in the
Lease.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
Indenture-19 (1995 777 C)
"Trust Indenture and Mortgage" or "this Indenture" means this Amended
and Restated Trust Indenture and Mortgage (1995 777 C), as the same may from
time to time be supplemented, amended or modified.
"Trust Office" shall mean the principal corporate trust office of the
Owner Trustee located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Department, or at such other office at which
the Owner Trustee's corporate trust business shall be administered which the
Owner Trustee shall have specified by notice in writing to the Company, the
Indenture Trustee and each Holder.
"Trust Supplement" means a supplement to the Trust Agreement and this
Indenture in the form of Exhibit C.
"Trustee's Liens" shall have the meaning specified therefor in Section
9.10.
"United States" or "U.S." means the United States of America.
"U.S. Government Obligations" means securities that are direct
obligations of the United States or agencies or instrumentalities thereof for
the payment of which the full faith and credit of the United States are pledged
which are not callable or redeemable, and shall also include a depository
receipt issued by a bank or trust company as custodian with respect to any such
U.S. Government Obligation or a specific payment of interest on or principal of
any such U.S. Government Obligation held by such custodian for the account of
the holder of a depository receipt so long as such custodian is not authorized
to make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of interest on or principal of the
U.S. Government Obligation evidenced by such depository receipt.
ARTICLE 2
THE CERTIFICATES
Section 2.01. Certificates; Title and Terms. The Certificates issued
hereunder shall be designated as Series 1995 777 C Certificates. The
Installment Certificates and the Serial Certificates shall be substantially in
the form set forth in Exhibit A-1 or A-2, respectively. The Certificates
originally issued hereunder shall be dated the date of issuance thereof and
shall be issued in the maturities and principal amounts, and shall bear interest
at the rates per annum, in each case as specified in or determined pursuant to
Exhibit B. The principal of each Certificate, other than Installment
Certificates, shall be payable in full on the Maturity Date for such
Certificate. The principal of each Installment Certificate shall be
Indenture-20 (1995 777 C)
payable in installments, on each Installment Payment Date, in amounts equal to
the Installment Payment Amount for such Installment Payment Date. Each
Certificate shall be issued to the Pass Through Trustee under each of the Pass
Through Trust Agreements, as set forth in Exhibit B-2.
The Certificates shall be issued in registered form only. The
Certificates shall be issued in denominations of $1,000 and integral multiples
thereof except that one Certificate of each maturity may be in an amount that is
not an integral multiple of $1,000.
The Certificates are not redeemable or subject to purchase prior to
maturity except as provided in this Indenture. Interest accrued on the
Certificates shall be calculated on the basis of a 360-day year consisting of
twelve 30-day months.
Section 2.02. Execution and Authentication. (a) Certificates shall
be executed on behalf of the Owner Trustee by the manual or facsimile signature
of its President, a senior vice president, a vice president, an assistant vice
president, its treasurer, its secretary, an assistant secretary or an assistant
treasurer.
(b) If any officer of the Owner Trustee executing the Certificates no
longer holds that office at the time the Certificate is executed on behalf of
the Owner Trustee, the Certificate shall be valid nevertheless.
(c) At any time and from time to time after the execution of the
Certificates, the Owner Trustee may deliver such Certificates to the Indenture
Trustee for authentication and, subject to the provisions of Section 2.10, the
Indenture Trustee shall authenticate the Certificates by manual signature upon
written orders of the Owner Trustee. Certificates shall be authenticated on
behalf of the Indenture Trustee by any authorized officer or signatory of the
Indenture Trustee.
(d) A Certificate shall not be valid or obligatory for any purpose or
entitled to any security or benefit hereunder until executed on behalf of the
Owner Trustee by the manual or facsimile signature of an officer of the Owner
Trustee as provided in Section 2.02(a) and until authenticated on behalf of the
Indenture Trustee by the manual signature of an authorized officer or signatory
of the Indenture Trustee as provided in Section 2.02(c). Such signatures shall
be conclusive evidence that such Certificate has been duly executed,
authenticated and issued under this Indenture.
Section 2.03. Registrar and Paying Agent. The Indenture Trustee
shall maintain an office or agency where the Certificates may be presented for
registration of transfer or for exchange (the "Registrar") and an office or
agency where (subject to Sections 2.04 and 2.08) the Certificates may be
presented for payment or for exchange (the "Paying Agent"). The Registrar shall
keep a register (the "Register") with respect to the Certificates
Indenture-21 (1995 777 C)
and to their transfer and exchange and the payments of Installment Payment
Amounts thereon, if any. The Indenture Trustee may appoint one or more co-
registrars (the "Co-Registrars") and one or more additional Paying Agents for
the Certificates and the Indenture Trustee may terminate the appointment of any
Co-Registrar or Paying Agent at any time upon written notice. The term
"Registrar" includes any Co-Registrar. The term "Paying Agent" includes any
additional Paying Agent.
The Indenture Trustee shall initially act as Registrar and Paying
Agent.
Section 2.04. Transfer and Exchange. At the option of the Holder
thereof, Certificates may be exchanged for an equal aggregate principal amount
of other Certificates of the same maturity and type and of any authorized
denominations or transferred upon surrender of the Certificates to be exchanged
or transferred at the principal corporate trust office of the Indenture Trustee,
or at any office or agency maintained for such purpose pursuant to Section 2.03.
Whenever any Certificates are so surrendered for exchange, the Owner Trustee
shall execute, and the Indenture Trustee shall authenticate and deliver, the
replacement Certificates, dated the same date as the Certificate or Certificates
being replaced which the Holder making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or exchange
of Certificates shall be the valid obligations of the Owner Trustee, evidencing
the same obligations, and entitled to the same security and benefits under this
Indenture, as the Certificates surrendered upon such registration of transfer or
exchange.
Every Certificate presented or surrendered for registration of
transfer or exchange shall (if so required by the Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in form satisfactory
to the Registrar duly executed by, the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Certificates, but the Registrar may, as a condition to
any transfer or exchange hereunder, 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 Certificates.
The Registrar shall not be required to register the transfer of or to
exchange any Certificate called for redemption or purchase pursuant to such
Section 6.01 or 6.02.
Section 2.05. Holder Lists; Ownership of Certificates. (a) The
Indenture Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders, which list shall be available to the Owner Trustee or its
representative (which may be the Owner Participant) and the Company
Indenture-22 (1995 777 C)
for inspection. If the Indenture Trustee is not the Registrar, the Registrar
shall be required to furnish to the Indenture Trustee semi-annually on or before
each Interest Payment Date, and at such other times as the Indenture Trustee may
request in writing, a list, in such form and as of such date as the Indenture
Trustee may reasonably require, containing all the information in the possession
or control of the Registrar as to the names and addresses of the Holders.
(b) Ownership of the Certificates shall be proved by the Register kept
by the Registrar. Prior to due presentment for registration of transfer of any
Certificate, the Owner Trustee, the Owner Participant, the Company, the
Indenture Trustee, the Paying Agent and the Registrar may deem and treat the
Person in whose name any Certificate is registered as the absolute owner of such
Certificate for the purpose of receiving payment of principal (including,
subject to the provisions herein regarding the applicable Record Dates,
Installment Payment Amounts) of, premium, if any, and interest on such
Certificate and for all other purposes whatsoever, whether or not such
Certificate is overdue, and none of the Owner Trustee, the Indenture Trustee,
the Paying Agent or the Registrar shall be affected by notice to the contrary.
Section 2.06. Mutilated, Destroyed, Lost or Stolen Certificates. If
any Certificate shall become mutilated, destroyed, lost or stolen, the Owner
Trustee shall, upon the written request of the Holder of such Certificate, issue
and execute, and the Indenture Trustee shall authenticate and deliver, in
replacement thereof, as applicable, a new Certificate of the same type and
having the same maturity, payable to the same Holder in the same principal
amount and dated the same date as the Certificate so mutilated, destroyed, lost
or stolen. If the Certificate being replaced has become mutilated, such
Certificate shall be surrendered to the Indenture Trustee. If the Certificate
being replaced has been destroyed, lost or stolen, the Holder of such
Certificate shall furnish to the Owner Trustee and the Indenture Trustee such
security or indemnity as may be required by it to save the Owner Trustee and the
Indenture Trustee harmless and evidence satisfactory to the Owner Trustee and
the Indenture Trustee of the destruction, loss or theft of such Certificate and
of the ownership thereof.
Section 2.07. Cancellation. The Registrar and any Paying Agent shall
forward to the Indenture Trustee all Certificates surrendered to them for
replacement, redemption, registration of transfer, exchange or payment. The
Indenture Trustee shall cancel all Certificates surrendered for replacement,
redemption, registration of transfer, exchange, payment or cancellation and
shall destroy cancelled Certificates.
Section 2.08. Payment on Certificates; Defaulted Principal and
Interest. (a) The Indenture Trustee will arrange directly with any Paying
Agent for the payment, or the Indenture Trustee will make payment, all pursuant
to Section 2.09, of the principal of, premium, if any, and interest on the
Certificates at the principal corporate trust office of the
Indenture-23 (1995 777 C)
Indenture Trustee or at any office or agency maintained for such purpose to
Section 2.03 hereof. All payments in respect of the Certificates shall be made
in such coin or currency of the United States as at the time of payment in legal
tender for payment of public and private debts. Payments (other than on the
Maturity Date therefor or on the Redemption Date in respect of the redemption in
whole thereof) on Certificates shall be made to the Holder thereof at the close
of business on the relevant Record Date; provided, however, that the Paying
Agent will, at the request of the Indenture Trustee and may, at its option, pay
such interest, premium or principal by check mailed to such Holder's address as
it appears on the Register. Principal of Certificates and premium, if any, with
respect thereto, shall (except as provided pursuant to the immediately preceding
sentence) be payable only against presentation and surrender thereof at the
principal corporate trust office of the Indenture Trustee or at the office of
the Paying Agent maintained for such purpose pursuant to Section 2.03.
A Holder shall have no further interest in, or other right with
respect to, the Indenture Estate when and if the principal amount of, premium,
if any, and interest on all Certificates held by such Holder and all other sums
payable to such Holder hereunder, under such Certificates and under the
Participation Agreement shall have been paid in full.
(b) Any Installment Payment Amount payable on an Installment Payment
Date (other than the Maturity Date with respect to a Certificate) or any
interest payable on an Interest Payment Date on any Certificate which is not
punctually paid on such Installment Payment Date or such Interest Payment Date,
as the case may be (herein called, respectively, a "Defaulted Installment" and
"Defaulted Interest"), shall forthwith cease to be payable to the Holder on the
relevant Record Date by virtue of his having been such Holder; and such
Defaulted Installment or Defaulted Interest may be paid by the Indenture
Trustee, at its election in each case, as provided in clause (1) or (2) below:
(1) The Indenture Trustee may elect to make payment of any Defaulted
Installment or Defaulted Interest, as the case may be, to the person in
whose name any Certificate is registered at the close of business on a
special record date for the payment of such Defaulted Installment or
Defaulted Interest, as the case may be, which shall be fixed in the
following manner. The Indenture Trustee shall notify the Paying Agent in
writing of the amount of Defaulted Installment or Defaulted Interest, as
the case may be, proposed to be paid on each such Certificate and the date
of the proposed payment, and at the same time the Indenture Trustee shall
make arrangements to set aside an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Installment or
Defaulted Interest, as the case may be, prior to the date of the proposed
payment, to be held in trust for the benefit of the Persons entitled to
such Defaulted Installment or Defaulted Interest, as the case may be, as
this clause provides and shall fix a special record date for the payment of
such Defaulted Installment or Defaulted Interest, as the case may be,
Indenture-24 (1995 777 C)
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment. The Indenture Trustee shall promptly notify
the Owner Trustee, the Company and the Registrar of such special record
date and shall cause notice of the proposed payment of such Defaulted
Installment or Defaulted Interest, as the case may be, and the special
record date therefor to be mailed, first class postage prepaid, to each
Holder at its address as it appears in the Register, not less than 10 days
prior to such special record date. Notice of the proposed payment of such
Defaulted Installment or Defaulted Interest, as the case may be, and the
special record date therefor having been mailed, as aforesaid, such
Defaulted Installment or Defaulted Interest, as the case may be, shall be
paid to the Persons in whose names the applicable Certificates are
registered on such special record date and shall no longer be payable
pursuant to the following clause (2).
(2) The Indenture Trustee may make, or cause to be made, payment of
any Defaulted Installment or Defaulted Interest, as the case may be, in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which Certificates may be listed, and upon such
notice as may be required by such exchange, if such payment shall be deemed
practicable by the Indenture Trustee.
(c) The Indenture Trustee shall require each Paying Agent to agree in
writing that such Paying Agent will hold in trust, for the benefit of the
Holders of the Certificates and the Indenture Trustee, all money held by the
Paying Agent for the payment of the principal of, premium, if any, or interest
and shall give to such Indenture Trustee notice of any default in the making of
any such payment upon the Certificates. The Indenture Trustee at any time may
require a Paying Agent to repay to the Indenture Trustee all money held by it.
Upon so doing the Paying Agent shall have no further liability for the money so
paid.
Section 2.09. Payment from Indenture Estate Only; Non-Recourse
Obligations. (a) All amounts payable by the Indenture Trustee and the Owner
Trustee under the Certificates and this Indenture shall be made only from the
income and proceeds of the Indenture Estate. Each Holder of a Certificate, by
its acceptance of such Certificate, agrees that (a) it will look solely to the
income and proceeds of the Indenture Estate for the payment of such amounts, to
the extent available for distribution to it as herein provided, and (b) none of
the Owner Trustee, the Owner Participant or the Indenture Trustee is or shall be
personally liable to the Holder of any Certificate for any amount payable under
such Certificate or this Indenture or, except as expressly provided in this
Indenture in the case of the Owner Trustee and the Indenture Trustee, for any
liability thereunder or hereunder.
(b) State Street Connecticut is entering into this Indenture solely
as Owner Trustee under the Trust Agreement and not in its individual capacity,
and in no case whatsoever shall State Street Connecticut (or any entity acting
as successor trustee under the
Indenture-25 (1995 777 C)
Trust Agreement) be personally liable for, or for any loss in respect of, any
statements, representations, warranties, agreements or obligations hereunder or
thereunder; provided that State Street Connecticut shall be liable hereunder in
its individual capacity, (i) for the performance of its agreements in its
individual capacity under Section 8 of the Participation Agreement, (ii) for its
own willful misconduct or gross negligence, and (iii) for the failure to use
ordinary care in the disbursement of funds. If a successor Owner Trustee is
appointed in accordance with the terms of the Trust Agreement and the
Participation Agreement, such successor Owner Trustee shall, without any further
act, succeed to all of the rights, duties, immunities and obligations hereunder,
and its predecessor Owner Trustee and State Street Connecticut shall be released
from all further duties and obligations hereunder, without prejudice to any
claims against State Street Connecticut or such predecessor Owner Trustee for
any default by State Street Connecticut or such predecessor Owner Trustee,
respectively, in the performance of its obligations hereunder prior to such
appointment.
(c) If (i) all or any part of the Trust Estate becomes the property
of, or the Owner Participant becomes, a debtor subject to the reorganization
provisions of the Bankruptcy Code, (ii) pursuant to such reorganization
provisions the Owner Trustee, in its individual capacity, or the Owner
Participant is required, by reason of the Owner Trustee, in its individual
capacity, or the Owner Participant being held to have recourse liability to the
Holders or to the Indenture Trustee, directly or indirectly, to make payment on
account of the principal of, premium, if any, or interest on the Certificates
and (iii) any Holders or the Indenture Trustee actually receives any Excess
Payment (as hereinafter defined) that reflects any payment by the Owner Trustee,
in its individual capacity, or the Owner Participant on account of (ii) above,
then such Holders or the Indenture Trustee, as the case may be, shall promptly
refund to the Owner Trustee or the Owner Participant (whichever shall have made
such payment) such Excess Payment. For purposes of this Section 2.09(c),
"Excess Payment" means the amount by which such payment exceeds the amount which
would have been received by the Holders of the Certificates or the Indenture
Trustee if the Owner Trustee, in its individual capacity, or the Owner
Participant had not become subject to the recourse liability referred to in (ii)
above. Nothing contained in this Section 2.09(c) shall prevent the holder of a
Certificate or the Indenture Trustee from enforcing any personal recourse
obligation (and retaining the proceeds thereof) of the Owner Trustee, in its
individual capacity, or the Owner Participant under the Participation Agreement
or this Indenture (and any exhibits or annexes hereto or thereto).
Section 2.10. Execution, Delivery and Dating of Certificates upon
Original Issuance. The Owner Trustee shall issue and execute, and the Indenture
Trustee shall authenticate and deliver, the Certificates for original issuance
upon payment to the Indenture Trustee of an amount equal to the Refinancing
Amount. Each Certificate shall (except for those issued pursuant to Section
2.04 or 2.06) be dated the date of its issuance.
Indenture-26 (1995 777 C)
ARTICLE 3
RECEIPT, DISTRIBUTION AND APPLICATION
OF FUNDS IN THE INDENTURE ESTATE
Section 3.01. [Reserved for Potential Future Use]
Section 3.02. Payment in Case of Redemption or Purchase of
Certificates. Except as otherwise provided in Section 3.05, in the event the
Certificates are redeemed or purchased in accordance with the provisions of
Section 6.01 or 6.02, the Indenture Trustee will apply on the Redemption Date
any amounts then held by it in the Indenture Estate and received by it from or
on behalf of the Company or the Owner Trustee in the following order of
priority:
first, so much thereof as was received by the Indenture Trustee with
respect to the amounts due to it pursuant to Section 9.06 shall be applied
to pay the Indenture Trustee such amounts;
second, so much thereof remaining as shall be required to pay an
amount equal to the Redemption Price on the Outstanding Certificates
pursuant to Section 6.01 or 6.02, as the case may be, on the Redemption
Date shall be applied to the redemption or purchase of the Certificates on
the Redemption Date; and
third, the balance, if any, thereof remaining thereafter shall be
distributed to the Owner Trustee to be held or distributed to the Owner
Participant in accordance with the terms of the Trust Agreement.
Section 3.03. Application of Rent When No Indenture Event of Default
Is Continuing. Except as otherwise provided in Section 3.02, 3.04, 3.05 or
3.06, each amount of Rent received by the Indenture Trustee from the Owner
Trustee or the Company, together with any amount received by the Indenture
Trustee pursuant to Section 8.03(e) shall be distributed by the Indenture
Trustee in the following order of priority:
first, so much of such aggregate amount as shall be required to pay in
full the interest, principal of, premium (to the extent received by the
Indenture Trustee from the Company as Supplemental Rent), if any, then due
on, all Outstanding Certificates shall be distributed to the Persons
entitled thereto; and in case such payments or amounts shall be
insufficient to pay in full the whole amount so due and unpaid, then to the
payment of such interest, principal and premium, if any, without any
preference or priority of one Certificate over another, ratably according
to the aggregate amount so due for interest, principal and premium, if any,
at the date fixed by the Indenture Trustee for the distribution of such
payments or amounts;
Indenture-27 (1995 777 C)
second, so much of such aggregate amount remaining as shall be
required to pay any amount due the Indenture Trustee pursuant to Section
9.06, to the extent received by the Indenture Trustee from the Company as
Supplemental Rent, shall be applied to pay the Indenture Trustee such
amounts; and
third, the balance, if any, of such aggregate amount remaining
thereafter shall be distributed to the Owner Trustee to be held or
distributed in accordance with the terms of the Trust Agreement.
Section 3.04. Application of Certain Payments in Case of Requisition
or Event of Loss. Except as otherwise provided in Section 3.02 (but solely with
respect to a redemption or purchase of all of the Outstanding Certificates) or
3.05, any amounts received directly or otherwise pursuant to the Lease from any
governmental authority or other party pursuant to Section 10 of the Lease with
respect to the Airframe or the Airframe and the Engines or engines then
installed on the Airframe as the result of an Event of Loss, to the extent that
such amounts are not at the time required to be paid to the Company pursuant to
said Section 10, and any amounts of insurance proceeds for damage to the
Indenture Estate received directly or otherwise pursuant to the Lease from any
insurer pursuant to Section 11 of the Lease with respect thereto as the result
of an Event of Loss, to the extent such amounts are not at the time required to
be paid to the Company pursuant to said Section 11, shall, except as otherwise
provided in the next sentence, be applied by the Indenture Trustee on behalf of
the Owner Trustee in reduction of the Company's obligations to pay Stipulated
Loss Value and the other amounts payable by the Company pursuant to Section 10
of the Lease and the remainder, if any, shall, except as provided in the next
sentence, be distributed to the Owner Trustee to be held or distributed in
accordance with the terms of the Lease. Any portion of any such amount referred
to in the preceding sentence which is not required to be so paid to the Company
pursuant to the Lease, solely because a Default or a Lease Event of Default
shall have occurred and be continuing, shall be held by the Indenture Trustee on
behalf of the Owner Trustee as security for the obligations of the Company under
the Lease and at such time as there shall not be continuing any Lease Event of
Default or such earlier time as shall be provided for in the Lease, such portion
shall be paid to the Owner Trustee to be held or distributed in accordance with
the terms of the Lease, unless the Indenture Trustee (as assignee from the Owner
Trustee of the Lease) shall have theretofore declared the Lease to be in default
pursuant to Section 15 thereof, in which event such portion shall be distributed
forthwith upon such declaration in accordance with the provisions of Section
3.05.
Section 3.05. Payments During Continuance of Indenture Event of
Default. All payments (except Excluded Payments) received and amounts held or
realized by the Indenture Trustee after an Indenture Event of Default shall have
occurred and be continuing (including any amounts realized by the Indenture
Trustee from the exercise of any remedies pursuant to Article 8), as well as all
payments or amounts then held or thereafter received by
Indenture-28 (1995 777 C)
the Indenture Trustee as part of the Indenture Estate while such Indenture Event
of Default shall be continuing, shall be distributed by the Indenture Trustee in
the following order of priority:
first, so much of such payments or amounts as shall be required to pay
the Indenture Trustee all amounts then due it pursuant to Section 9.06
shall be applied to pay the Indenture Trustee such amounts;
second, so much of such payments or amounts remaining as shall be
required to pay the expenses incurred (including unbilled expenses in
respect of property delivered or contracted for or services rendered or
contracted for if the amount of such expenses is liquidated) in using,
operating, storing, leasing, controlling or managing the Indenture Estate,
and of all maintenance, insurance, repairs, replacements, alterations,
additions and improvements of and to the Indenture Estate 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
Indenture Estate or any part thereof (including the employment of engineers
and accountants to examine and make reports upon the properties, books and
records of the Owner Trustee and, to the extent permitted under the Lease,
the Company), all in accordance with Section 8.03(c), shall be applied for
such purposes;
third, so much of such payments or amounts remaining as shall be
required to pay the principal of, premium, if any, to the extent payable by
the Owner Trustee pursuant to Section 6.01(b)(ii) or to the extent received
by the Indenture Trustee from the Company as Supplemental Rent, and accrued
interest, on all Certificates Outstanding, whether by declaration of
acceleration pursuant to Section 8.02 or otherwise, shall be applied to the
payment of such interest, principal and premium, if any, and in case such
payments or amounts shall be insufficient to pay in full the whole amount
so due and unpaid, then to the payment of such interest, principal and
premium, if any, without any preference or priority of one Certificate over
another, ratably according to the aggregate amount so due for interest,
principal and premium, if any, at the date fixed by the Indenture Trustee
for the distribution of such payments or amounts; and
fourth, the balance, if any, of such payments or amounts remaining
thereafter shall be held by the Indenture Trustee as collateral security
for the obligations secured hereby until such time as no Indenture Event of
Default shall be continuing hereunder or the Certificates have been
accelerated and all amounts due thereon have been paid, at which time such
payments or amounts shall be distributed to the Owner Trustee to be held or
distributed in accordance with the terms of the Trust Agreement; provided
that at such time as one or more Lease Events of Default shall have
occurred and any such Lease Event of Default shall have continued for a
period of 180 days during
Indenture-29 (1995 777 C)
which time the Certificates could, but shall not, have been accelerated
pursuant to Section 8.02, such amounts shall be distributed to the Owner
Trustee to be held or distributed in accordance with the terms of the Trust
Agreement so long as no Indenture Event of Default exists other than by
virtue of such Lease Event of Default.
Section 3.06. Payments for Which Application Is Provided in Other
Documents. Except as otherwise provided in this Indenture, any payment received
by the Indenture Trustee for which provision as to the application thereof is
made in the Lease or any other Operative Document shall be distributed to the
Person for whose benefit such payments were made. The Indenture Trustee shall
be obligated to distribute any Excluded Payments received by the Indenture
Trustee promptly upon receipt thereof by the Indenture Trustee to the Person
entitled thereto.
Section 3.07. Payments for Which No Application Is Otherwise
Provided. Except as otherwise provided in Section 3.05:
(a) any payment received by the Indenture Trustee for which no
provision as to the application thereof is made elsewhere in this
Indenture, and
(b) any payment received and amounts realized by the Indenture Trustee
with respect to the Aircraft to the extent received or realized at any time
after the conditions set forth in Article 10 for the satisfaction and
discharge of this Indenture or for the defeasance of the Certificates shall
have been satisfied, as well as any other amounts remaining as part of the
Indenture Estate after such satisfaction shall be distributed by the
Indenture Trustee in the following order of priority:
first, so much of such aggregate amount (to the extent such
amounts are not obligations of the Company under the Operative
Documents) as shall be required to pay the Indenture Trustee all
amounts then due it pursuant to Section 9.06 shall be applied to pay
the Indenture Trustee such amounts; and
second, the balance, if any, of such payments or amounts
remaining thereafter shall be distributed to the Owner Trustee.
Section 3.08. 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 this Indenture shall be distributed by wire transfer of
funds of the type received
Indenture-30 (1995 777 C)
by the Indenture Trustee to the Owner Participant's account specified in
Schedule I to the Participation Agreement.
ARTICLE 4
COVENANTS OF OWNER TRUSTEE
Section 4.01. Covenants of Owner Trustee. The Owner Trustee hereby
covenants and agrees that:
(i) the Owner Trustee will, in its individual capacity, not directly
or indirectly create, incur, assume or suffer to exist any Lessor Lien
attributable to it in its individual capacity with respect to any of the
properties or assets of the Indenture Estate;
(ii) in the event an officer in the Trust Office of the Owner Trustee
shall have Actual Knowledge of an Indenture Event of Default, the Owner
Trustee will give prompt written notice of such Indenture Event of Default
to the Indenture Trustee;
(iii) except as contemplated by the Operative Documents, the Owner
Trustee will not contract for, create, incur, assume or permit to exist any
Debt, and will not guarantee (directly or indirectly or by an instrument
having the effect of assuring another's payment or performance on any
obligation or capability of so doing, or otherwise), endorse or otherwise
be or become contingently liable, directly or indirectly, in connection
with the Debt of any other Person; and
(iv) the Owner Trustee will not enter into any business or other
activity other than owning the Aircraft, the leasing thereof to the Company
and the carrying out of the transactions contemplated hereby and by the
Participation Agreement, the Trust Agreement and the other Operative
Documents.
ARTICLE 5
DISPOSITION, SUBSTITUTION AND RELEASE
OF PROPERTY INCLUDED IN THE INDENTURE ESTATE DURING
CONTINUATION OF LEASE
Section 5.01. Disposition, Substitution and Release of Property
Included in the Indenture Estate During Continuation of Lease. So long as the
Lease is in effect:
Indenture-31 (1995 777 C)
(a) Parts. Any Parts and alterations, improvements and modifications
in and additions to the Aircraft shall, to the extent required or specified
by the Lease, become subject to the lien of this Indenture and be leased to
the Company under the Lease; provided that, to the extent permitted by and
as provided in the Lease, the Company shall have the right, at any time and
from time to time, without any release from or consent by the Owner Trustee
or the Indenture Trustee, to remove, replace and pool Parts and to make
alterations, improvements and modifications in, and additions to, the
Aircraft. The Indenture Trustee agrees that, to the extent permitted by and
as provided in the Lease, title to any such Part shall vest in the Company.
The Indenture Trustee shall from time to time execute an appropriate
written instrument or instruments to confirm the release of the security
interest of the Indenture Trustee in any Part as provided in this Section
5.01, in each case upon receipt by the Indenture Trustee of a Company
Request stating that said action was duly taken by the Company in
conformity with this Section 5.01 and that the execution of such written
instrument or instruments is appropriate to evidence such release of a
security interest under this Section 5.01.
(b) Substitution Under the Lease upon an Event of Loss Occurring to
Airframe or Engines or upon Voluntary Termination of Lease with Respect to
Engines. Upon (i) the occurrence of an Event of Loss occurring to the
Airframe or an Engine, or (ii) a voluntary termination of the Lease with
respect to an Engine, the Company, in accordance with the Lease, may, in
the case of an Event of Loss which has occurred to the Airframe, or shall,
except as provided in Section 10(b) of the Lease, in the case of an Event
of Loss which has occurred to or termination of the Lease with respect to
an Engine, substitute an airframe or engine, as the case may be, in which
case, upon satisfaction of all conditions to such substitution specified in
Section 10 of the Lease, the Indenture Trustee shall release all of its
right, interest and lien in and to the Airframe or such Engine in
accordance with the provisions of the following two sentences. The
Indenture Trustee shall execute and deliver to the Owner Trustee an
instrument releasing its lien in and to the Airframe or such Engine and
shall execute for recording in public offices, at the expense of the Owner
Trustee (if requested by the Owner Trustee) or the Company (if requested by
the Company), such instruments in writing as the Owner Trustee or the
Company shall reasonably request and as shall be reasonably acceptable to
the Indenture Trustee in order to make clear upon public records that such
lien has been released under the laws of the applicable jurisdiction.
Each of the Owner Trustee and the Company hereby waives and releases any and all
rights existing or that may be acquired to any penalties, forfeit or damages
from or against the Indenture Trustee for failure to execute and deliver any
document in connection with the release of a lien or to file any certificate in
compliance with any law or statute requiring the filing of the same in
connection with the release of a lien, except for failure by the Indenture
Indenture-32 (1995 777 C)
Trustee to execute and deliver any document or to file any certificate as may be
specifically requested in writing by the Owner Trustee or the Company.
ARTICLE 6
REDEMPTION OF CERTIFICATES
Section 6.01. Redemption of Certificates upon Certain Events. (a)
(i) If there shall be an Event of Loss to the Aircraft and the Aircraft is not
replaced pursuant to Section 10(a)(ii) of the Lease, each Outstanding
Certificate shall be redeemed in whole at a Redemption Price equal to 100% of
the outstanding principal amount of such Certificate plus accrued and unpaid
interest thereon to but excluding the applicable Redemption Date.
(ii) If there shall be an Event of Loss to any Engine under
circumstances in which there has not occurred an Event of Loss with respect to
the Airframe and, as a result of such an Event of Loss, the Owner Participant
elects to receive payment for such Engine from the Company pursuant to Section
10(b) of the Lease, a portion of the principal of each Outstanding Certificate
equal to the product obtained by multiplying the unpaid principal amount of such
Certificate on the Redemption Date applicable to such partial redemption
(assuming, only for the purposes of this calculation, that, if such Redemption
Date is coincident with a Maturity Date or an Installment Payment Date, the
scheduled principal payment due on such Redemption Date is paid prior to the
time the Redemption Price is calculated pursuant to this Section 6.01(a)(ii) and
applied to principal in accordance with Section 3.03) by _________________ shall
be redeemed on such Redemption Date. The Redemption Price for each such
Certificate shall be the sum of such portion of principal being redeemed plus
the amount of interest accrued and unpaid to such Redemption Date on the
principal amount of such Certificate to be redeemed on such Redemption Date
(assuming, only for the purposes of this calculation, that, if such Redemption
Date is coincident with an Interest Payment Date, the interest due on such
Interest Payment Date is paid prior to the time such Redemption Price is
calculated pursuant to this Section 6.01(a)(ii) and applied to interest in
accordance with Section 3.03); provided that each Certificate shall receive, as
to the principal thereof, the same portion of such Redemption Price as the
principal value of such Certificate at such Redemption Date represents of the
total principal value of all Certificates Outstanding at such Redemption Date.
Upon the occurrence of any partial redemption or redemptions pursuant to the
preceding sentence the principal amount of each Outstanding Certificate shall be
adjusted to take account of any such partial redemption or redemptions, and the
Installment Payment Percentages applicable to any Installment Certificates
issued hereunder shall be adjusted as provided for in the definition thereof.
The Redemption Date for Certificates to be redeemed pursuant to this Section
6.01(a) shall be the Lease Loss Payment Date.
Indenture-33 (1995 777 C)
(b) If (i) the Lease shall be terminated by the Company at its option
pursuant to Section 9(a) of the Lease or upon the purchase of the Aircraft by
the Company at its option on July 30, 2008, July 30, 2010, or July 30, 2012
pursuant to Section 9(b) of the Lease or on the EBO Date pursuant to Section
19(b)(1) of the Lease (unless the Company shall have elected to assume the
rights and obligations of the Owner Trustee hereunder to the extent and as
provided for in Section 8(l) of the Participation Agreement) or (ii) the Owner
Trustee or the Owner Participant shall have given notice of redemption or
purchase to the Indenture Trustee pursuant to Section 8.03(e)(ii) at any time
after one or more Lease Events of Default shall have occurred and be continuing
for a period of 180 days or more but less than one year and the Certificates
shall not have been accelerated, each Outstanding Certificate shall be redeemed
or purchased in whole on the Redemption Date and at the Redemption Price
determined below. Prior to the Premium Termination Date applicable to such
Certificate, the Redemption Price applicable to a redemption or purchase
pursuant to this Section 6.01(b) shall be equal to an amount which an
Independent Investment Banker (or, in the case of the deposit of estimated
premium pursuant to Section 8.03(e)(ii), the Owner Trustee) determines to be
equal to the greater of (x) the unpaid principal amount of such Certificate as
at such Redemption Date together (assuming, only for the purposes of this
calculation, that, if such Redemption Date is coincident with an Interest
Payment Date, the interest due on such Interest Payment Date is paid prior to
the time such Redemption Price is calculated pursuant to this Section 6.01(b)
and applied to interest in accordance with Section 3.03) with an amount equal to
the interest accrued thereon from the immediately preceding Interest Payment
Date to such Redemption Date and (y) the present value (computed in accordance
with generally accepted financial practices on a semiannual basis at a discount
rate equal to the Treasury Yield applicable to such Certificate as of such
Redemption Date) as at such Redemption Date of (A) the regularly scheduled
future payments of interest on such Certificate as required by the terms thereof
and of this Indenture and (B) the regularly scheduled future payments of
principal payable on such Certificate (the excess, if any, of the amount
referred to in clause (y) of this sentence over the amount referred to in clause
(x) constituting a "premium" or a "Premium"), plus, in either case, interest on
the principal of such Certificate accrued as at the immediately preceding
Interest Payment Date and unpaid as of such Redemption Date. On or after the
Premium Termination Date applicable to such Certificate, the Redemption Price
applicable to a redemption or purchase pursuant to this Section 6.01(b) shall
equal the unpaid principal amount of such Certificate as at such Redemption Date
together with an amount equal to the interest accrued thereon from the
immediately preceding Interest Payment Date to such Redemption Date plus
interest on the principal of such Certificate accrued as at the immediately
preceding Interest Payment Date and unpaid as of such Redemption Date and, in
the case of either of the two immediately preceding sentences (but without
duplication), if such Redemption Date is coincident with an Interest Payment
Date, the regularly scheduled interest payment due on such Interest Payment
Date. The Redemption Date for Certificates to be redeemed or purchased (x)
pursuant to clause (i) of this Section 6.01(b) shall be (A) in the case of a
termination of the Lease pursuant to Section 9(a) thereof, the third Business
Indenture-34 (1995 777 C)
Day following the Lease Termination Date, if any, or, in the case of purchase of
the Aircraft by the Company pursuant to Section 9(b) or 19(b)(1) of the Lease,
the date specified in the notice given by the Company pursuant to Section
9(a)(3) of the Lease or the EBO Date and (y) pursuant to clause (ii) of this
Section 6.01(b), shall be the same date as if the redemption had occurred
pursuant to Section 6.02. If the Owner Trustee elects to purchase the
Certificates under Section 8.03(e)(ii), nothing herein, including use of the
terms "Redemption Date" and "Redemption Price", shall be deemed to result in a
redemption of the Certificates.
(c) Certificates shall be redeemed if the Company shall have requested
the Owner Trustee and the Owner Participant to effect a redemption thereof
pursuant to Section 17 or 20 of the Participation Agreement as part of a
refunding or refinancing, and if all the conditions to such refunding or
refinancing set forth in such Section 17 or 20 of the Participation Agreement
shall have been satisfied. In such event, each Outstanding Certificate shall be
so redeemed at a Redemption Price determined in accordance with the procedures
described above in Section 6.01(b); provided, however, that the applicable
Redemption Date for Certificates to be redeemed pursuant to this Section 6.01(c)
shall be the applicable Refinancing Date under Section 17 of the Participation
Agreement.
Section 6.02. Redemption or Purchase of Certificates upon Certain
Indenture Events of Default. If the Owner Trustee or the Owner Participant
shall have given notice of redemption or purchase to the Indenture Trustee
pursuant to Section 8.03(e)(ii) at any time after the Certificates shall have
been accelerated pursuant to Section 8.02 or after one or more Lease Events of
Default shall have occurred and be continuing for a period of one year or more
and the Certificates shall not have been accelerated, each Outstanding
Certificate shall be redeemed or purchased in whole at a Redemption Price equal
to 100% of its principal amount plus accrued and unpaid interest thereon to but
excluding the applicable Redemption Date as determined below. The Redemption
Date for Certificates to be redeemed or purchased pursuant to this Section 6.02
shall be the date specified in the notice given by the Owner Trustee to the
Indenture Trustee pursuant to Section 8.03(e)(ii). If the Owner Trustee elects
to purchase the Certificates under Section 8.03(e)(ii), nothing herein,
including use of the terms "Redemption Date" and "Redemption Price" shall be
deemed to result in a redemption of the Certificates.
Section 6.03. Notice of Redemption to Holders. Notice of redemption
or purchase shall be given by first-class mail, postage prepaid, mailed not less
than 25 nor more than 60 days prior to the Redemption Date, to each Holder of
Certificates to be redeemed or purchased, at such Holder's address appearing in
the Register; provided that, in the case of a redemption pursuant to Section
6.01(b)(i) related to the Company's exercise of its option pursuant to Section
9(a)(2) of the Lease, such notice shall be revocable and shall be deemed revoked
in the event the Lease does not in fact terminate on the related Lease
Termination Date.
Indenture-35 (1995 777 C)
All notices of redemption shall state:
(1) the Redemption Date,
(2) the applicable basis for determining the Redemption Price,
(3) that on the Redemption Date, the Redemption Price will become due
and payable upon each such Certificate, and that interest on Certificates
shall cease to accrue on and after such Redemption Date, and
(4) the place or places where such Certificates are to be surrendered
for payment of the Redemption Price.
Notice of redemption or purchase of Certificates to be redeemed or purchased
shall be given by the Indenture Trustee.
Section 6.04. Deposit of Redemption Price. 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
Certificates to be redeemed or purchased on the Redemption Date shall not then
be held in the Indenture Estate, deposit or cause to be deposited with the
Indenture Trustee or the Paying Agent by 12:00 noon in immediately available
funds the Redemption Price of the Certificates to be redeemed or purchased on
the Redemption Date.
Section 6.05. Certificates Payable on Redemption Date. Notice of
redemption or purchase having been given as aforesaid (and not deemed revoked as
contemplated in the proviso to Section 6.03), the Certificates shall, on the
applicable Redemption Date, become due and payable at the principal corporate
trust office of the Indenture Trustee or at any office or agency maintained for
such purposes pursuant to Section 2.03, and from and after such Redemption Date
(unless there shall be a default in the payment of the Redemption Price) any
Certificates then Outstanding shall cease to bear interest. Upon surrender of
any such Certificate for redemption or purchase in accordance with said notice
such Certificate shall be paid at the Redemption Price.
If any Certificate called for redemption or purchase shall not be so
paid upon surrender thereof for redemption or purchase, the principal amount
thereof shall, until paid, continue to bear interest from the applicable
Redemption Date at the interest rate applicable to such Certificate.
Indenture-36 (1995 777 C)
ARTICLE 7
MATTERS CONCERNING THE COMPANY
Section 7.01. Notice of Monies Held by the Indenture Trustee. In the
event any money held by the Indenture Trustee or any Paying Agent in trust for
any payment of the principal of, premium, if any, or interest on any
Certificate, including without limitation any money deposited pursuant to
Article 10, shall remain unclaimed for two years after the due date for such
payment, the Indenture Trustee shall give notice thereof to the Company and the
Owner Trustee.
Section 7.02. Change in Registration. The Indenture Trustee shall,
upon the request of the Company, consent to the deregistration of the Aircraft
under the laws of the jurisdiction in which it is at the time registered and the
registration of the Aircraft under the laws of another jurisdiction (herein
called a "change in registration") provided that the following conditions are
met:
(a) such change in registration complies with the provisions of the
Participation Agreement and the Lease;
(b) no Lease Event of Default and no event which, with lapse of time
or notice, or both, would become a Lease Event of Default shall have
occurred and be continuing at the date of such request or at the effective
date of the change in registration, provided that it shall not be necessary
to comply with this condition (b) if the change in registration results in
the registration of the Aircraft under the laws of the United States or if
the Indenture Trustee in its discretion believes the change in registration
would be advantageous to the Holders; and
(c) the Indenture Trustee shall have received an opinion of counsel
reasonably satisfactory to the Indenture Trustee to the effect that:
(i) after giving effect to the change in registration, the Lien
on the Aircraft and the other property included in the Indenture
Estate shall continue as a fully perfected lien and that all filing,
recording or other action necessary to perfect and protect the lien of
this Indenture has been accomplished (or if such opinion cannot be
given at the time by which the Indenture Trustee has been requested to
consent to a change in registration, (x) the opinion shall detail what
filing, recording or other action is necessary and (y) the Indenture
Trustee shall have received a certificate from the Company that all
possible preparations to accomplish such filing, recording and other
action shall have been done, and such filing, recording and other
action shall be accomplished
Indenture-37 (1995 777 C)
and a supplemental opinion to that effect shall be delivered to the
Indenture Trustee on or prior to the effective date of the change in
registration); and
(ii) the terms of the Lease and this Indenture (including the
governing law clauses) being legal, valid and binding and enforceable
in such jurisdiction, except as the same may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally, and by general principles
of equity and except as limited by applicable laws which may affect
the remedies provided in the Lease and this Indenture, respectively,
which laws, however, do not in the opinion of such counsel make the
remedies provided in the Lease and this Indenture, respectively,
inadequate for the practical realization of the rights and benefits
provided thereby.
The Indenture Trustee shall execute such documents as the Company or the Owner
Trustee shall reasonably request in order to satisfy the above conditions and
upon satisfaction of such conditions to effect the change in registration.
Section 7.03. Assumption of Obligations of Owner Trustee by the
Company. In the event that the Company shall have elected to assume all of the
rights and obligations of the Owner Trustee under this Indenture in respect of
the Certificates in connection with the purchase by the Company of the Aircraft
pursuant to Section 8(l) of the Participation Agreement and, if on or prior to
the EBO Date or the date specified in the notice given by the Company pursuant
to Section 9(a)(3) of the Lease, as the case may be (each such date being an
"Assumption Date"):
(a) the Company shall have delivered to the Indenture Trustee a
certificate, dated the Assumption Date, of a Responsible Company Officer
stating that the Company has paid to the Owner Trustee all amounts required
to be paid to the Owner Trustee pursuant to Section 19(b)(1) of the Lease
in connection with such purchase and assumption;
(b) no event which constitutes or, with the lapse of time or notice,
or both, would become, an Event of Default under this Indenture after
giving effect to the indenture supplement referred to below shall have
occurred and be continuing immediately subsequent to such purchase or
assumption and the Indenture Trustee shall have received a certificate,
dated the Assumption Date, of a Responsible Company Officer to such effect;
(c) the Indenture Trustee shall have received, on or prior to the
Assumption Date, evidence of all filings, recordings and other action
referred to in the Opinion or Opinions of Counsel referred to below;
Indenture-38 (1995 777 C)
(d) the Indenture Trustee shall have received an Opinion or Opinions of
Counsel for the Company, dated the Assumption Date, which without unusual
qualification shall be to the effect that, after giving effect to the
indenture supplement referred to below:
(i) this Indenture constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by
general principles of equity, and except as limited by applicable laws
which may affect the remedies provided for in this Indenture, which
laws, however, do not in the opinion of such counsel make the remedies
provided for in this Indenture inadequate for the practical
realization of the rights and benefits provided for in this Indenture;
(ii) the Aircraft is duly registered in compliance with
applicable law;
(iii) the Lien on the Aircraft constitutes a fully perfected
Lien and all filing, recording or other action (specifying the same)
necessary to perfect and protect the Lien of this Indenture has been
accomplished;
(iv) the Indenture Trustee would be entitled to the benefits of
Section 1110 of the Bankruptcy Code with respect to the Aircraft;
provided that such opinion may contain qualifications of the tenor
contained in the opinion of special counsel for the Company delivered
pursuant to Section 4(a)(xi)(b) of the Participation Agreement on the
Delivery Date; and
(v) no Holder will be required to recognize gain or loss for tax
purposes in connection with such assumption; and
(e) an indenture supplement reasonably satisfactory to the Indenture
Trustee, dated the Assumption Date, shall have been executed by the
Indenture Trustee and any other parties necessary thereto and shall have
been delivered to the Indenture Trustee;
then, automatically and without the requirement of further action by any Person,
effective as of the Assumption Date, the Owner Trustee and the Owner Participant
shall be released from all of its obligations under this Indenture, the
Certificates and the other Operative Documents (other than any obligations or
liabilities of the Owner Trustee in its individual capacity incurred on or prior
to the Assumption Date or arising out of or based upon events occurring on or
prior to the Assumption Date, which obligations and liabilities shall remain the
sole
Indenture-39 (1995 777 C)
responsibility of the Owner Trustee) and the Indenture Trustee shall execute and
deliver such agreements, documents and instruments as either the Owner Trustee
or the Owner Participant shall reasonably request to evidence such release and
discharge.
If, concurrent with an assumption pursuant to this Section 7.03, the
Aircraft is being reregistered the Company must comply with the provisions of
Section 7.02.
ARTICLE 8
DEFAULTS AND REMEDIES
Section 8.01. Indenture Events of Default. The following events
shall constitute "Indenture Events of Default" under this Indenture (whether any
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) and each such Indenture Event of Default shall be deemed to
exist so long as, but only so long as, it shall not be remedied:
(a) any amount of interest upon any Certificate or of principal of any
Certificate or of premium, if any, in respect of any Certificate shall not
be paid to the Indenture Trustee when due and payable (whether upon
redemption or purchase, final maturity, acceleration or otherwise) and such
default in payment shall continue for more than 10 days after such amount
shall have become due and payable;
(b) any failure by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, to observe or perform in any material
respect any covenant or obligation required pursuant to clause (i) of
Article 4 hereof or Section 8(b) or 8(g) of the Participation Agreement or
the failure by the Owner Participant to observe or perform in any material
respect any covenant or obligation of it contained in Section 8(b) or 8(g)
of the Participation Agreement, or, to the extent that the interest of the
Indenture Trustee or any Holder of an Outstanding Certificate is adversely
affected by such failure, in Section 11.01 of the Trust Agreement or by the
termination or revocation by the Owner Participant of the trust created by
the Trust Agreement without the Indenture Trustee's prior written consent
if, but only if, such failure or termination or revocation is not remedied
within a period of 30 days after there has been given to the Owner Trustee
and the Owner Participant by registered or certified mail a written notice
specifying such failure and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder by the Indenture Trustee or
by the Holders of at least 25% in principal amount of Outstanding
Certificates;
Indenture-40 (1995 777 C)
(c) any failure by the Owner Trustee, in its individual capacity or as
Owner Trustee, to observe or perform any other covenant or obligation of
the Owner Trustee contained in this Indenture or in the Participation
Agreement or any failure by the Owner Participant to observe or perform any
other covenant or obligation of the Owner Participant contained in the
Participation 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 Holders and is not
remedied within a period of 30 days after there has been given to the Owner
Trustee and the Owner Participant by registered or certified mail, a
written notice specifying such failure and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder, by the
Indenture Trustee or by the Holders of at least 25% in principal amount of
Outstanding Certificates; provided, however, that, if the Owner Trustee, in
its individual capacity or as Owner Trustee, or the Owner Participant shall
have undertaken to cure any such failure and, notwithstanding the
reasonable diligence of any of them in attempting to cure such failure,
such failure is not cured within said 30 day period but is curable with
future due diligence, there shall exist no Indenture Event of Default as a
consequence of such failure so long as the Owner Trustee in its individual
capacity or as Owner Trustee or the Owner Participant is proceeding with
due diligence to cure such failure, there exists no adverse effect on the
Lien of this Indenture and such failure is in fact cured within a further
period of 60 days;
(d) any representation or warranty made by the Owner Trustee, in its
individual capacity or as Owner Trustee, or by the Owner Participant under
the Participation Agreement or the Redemption and Refinancing Agreement, or
by the Owner Trustee hereunder, or by the Owner Trustee, in its individual
capacity or as Owner Trustee, or by the Owner Participant in any document
or certificate furnished to the Indenture Trustee in connection herewith or
therewith or pursuant hereto or hereto, shall prove at any time to have
been incorrect in any material respect as of the date made and such
incorrectness shall remain material at the date of the notice referred to
below and such incorrectness shall continue unremedied for a period of 30
days after there has been given to the Owner Trustee and the Owner
Participant by registered or certified mail, a written notice specifying
such incorrectness and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder, by the Indenture Trustee or by
the Holders of at least 25% in principal amount of Outstanding
Certificates;
(e) there shall be a Lease Event of Default other than any such Lease
Event of Default arising by reason of nonpayment of any Excluded Payments
when due; provided that any Lease Event of Default shall be deemed to exist
and continue so long as, but only so long as, it shall not be remedied;
Indenture-41 (1995 777 C)
(f) either the Trust Estate or the Owner Trustee with respect thereto
(and not in its individual capacity) or the Owner Participant, as the case
may be, shall (i) 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, (ii) make an assignment
for the benefit of its creditors, or (iii) 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
(g) a court or governmental authority of competent jurisdiction shall
enter an order appointing, without consent by the Indenture Estate or the
Owner Trustee with respect thereto (and not in its individual capacity) or
the Owner Participant, 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 Indenture Estate or the Owner Trustee with respect
thereto (and not in its individual capacity) or the Owner Participant, as
the case may be, and any such order or petition is not dismissed or stayed
within 60 days after the earlier of the entering of any such order or the
approval of any such petition.
Section 8.02. Acceleration; Rescission and Annulment. If an
Indenture Event of Default occurs and is continuing, either the Indenture
Trustee, by notice to the Company and the Owner Trustee, or the Holders of at
least 25% in aggregate principal amount of Outstanding Certificates, by notice
to the Company, the Indenture Trustee, the Owner Trustee and the Owner
Participant, may declare the principal of all the Certificates to be due and
payable; provided that the Certificates will automatically become immediately
due and payable without any action of the Indenture Trustee or of any Holder in
the case of an Indenture Event of Default under Section 8.01(f) or (g). Upon
such declaration, the principal of all Certificates together with accrued
interest thereon from the date in respect of which interest was last paid
hereunder to the date payment of such principal has been made or duly provided
for, shall be immediately due and payable. At any time after such declaration
and prior to the sale or disposition of the Indenture Estate, the Holders of a
majority in aggregate principal amount of all of the Outstanding Certificates,
by notice to the Indenture Trustee, the Company, the Owner Trustee and the Owner
Participant, may rescind such a declaration and thereby annul its consequences
if (i) an amount sufficient to pay all principal on any Certificates which have
become due otherwise than by such declaration and any interest thereon and
interest due or past due, if any, and all sums due and payable to the Indenture
Trustee have been deposited with the Indenture Trustee, (ii) the rescission
would not conflict with any judgment or decree and (iii) all existing Indenture
Defaults and Indenture Events of Default under this Indenture have been cured or
waived except
Indenture-42 (1995 777 C)
nonpayment of principal of, or interest on, the Certificates that has become due
solely because of such acceleration.
Any acceleration pursuant to this Section 8.02 shall be automatically
rescinded in the event that the Owner Trustee or the Owner Participant, as the
case may be, shall have cured, in accordance with Section 8.03(e)(i), the
Indenture Event of Default that resulted in such acceleration.
Section 8.03. Other Remedies Available to Indenture Trustee. (a)
After an Indenture Event of Default shall have occurred and so long as such
Indenture Event of Default shall be continuing, then and in every such case the
Indenture Trustee, as trustee of an express trust and as assignee hereunder of
the Lease or as holder of a security interest in the Aircraft or Engines or
otherwise, may, and when required pursuant to the provisions of Article 9 shall,
exercise, subject to Sections 8.03(b), 8.03(e), 8.03(f) and 8.03(h), any or all
of the rights and powers and pursue any and all of the remedies accorded to the
Owner Trustee pursuant to Section 15 of the Lease and this Article 8, may
recover judgment in its own name as Indenture Trustee against the Indenture
Estate and may take possession of all or any part of the Indenture Estate and
may exclude the Owner Trustee and the Owner Participant and all persons claiming
under any of them wholly or partly therefrom.
(b) After an Indenture Event of Default shall have occurred and so
long as such Indenture Event of Default shall be continuing, subject to Sections
8.03(e), 8.03(f) and 8.03(h), the Indenture Trustee may, if at the time such
action may be lawful and always subject to compliance with any mandatory legal
requirements, either with or without taking possession, and either before or
after taking possession and without instituting any legal proceedings
whatsoever, and having first given notice of such sale by registered mail to the
Owner Trustee, the Owner Participant and the Company once at least 30 days prior
to the date of such sale, and any other notice which may be required by law,
sell and dispose of the Indenture Estate, or any part thereof, or interest
therein, at public auction to the highest bidder, in one lot as an entirety or
in separate lots, and either for cash or on credit and on such terms as the
Indenture Trustee may determine, and at any place (whether or not it be the
location of the Indenture Estate or any part thereof) and time designated in the
notice above referred to; provided, however, that, notwithstanding any provision
herein to the contrary, the Indenture Trustee may not provide the notice
provided for above of its intention to sell any of the Indenture Estate,
exercise remedies under the Lease or exercise other remedies against the
Indenture Estate seeking to deprive the Owner Trustee or the Owner Participant
of its rights therein unless a declaration of acceleration has been made
pursuant to Section 8.02 or the Certificates have otherwise theretofore become
due and payable through redemption or otherwise. Any such sale or sales may be
adjourned from time to time by announcement at the time and place appointed for
such sale or sales, or for any such adjourned sale or sales, without further
notice, and the Indenture Trustee, the Holder or Holders of any Certificates or
any interest therein, the Owner Trustee and the Owner
Indenture-43 (1995 777 C)
Participant may bid and become the purchaser at any such sale. No such sale may
be consummated if the Owner Trustee shall, prior to the consummation thereof,
have given notice pursuant to and made the deposit required by Section
8.03(e)(ii). The Indenture Trustee may exercise such right without possession
or production of the Certificates or proof of ownership thereof, and as
representative of the Holders may exercise such right without notice to the
Holders or including the Holders as parties to any suit or proceeding relating
to foreclosure of any property in the Indenture Estate. The Owner Trustee
hereby irrevocably constitutes the Indenture Trustee the true and lawful
attorney-in-fact of the Owner Trustee (in the name of the Owner Trustee or
otherwise) for the purpose of effectuating any sale, assignment, transfer or
delivery for enforcement of the lien created under this Indenture, whether
pursuant to foreclosure or power of sale or otherwise, to execute and deliver
all such bills of sale, assignments and other instruments as the Indenture
Trustee may consider necessary or appropriate, with full power of substitution,
the Owner Trustee hereby ratifying and confirming all that such attorney or any
substitute shall lawfully do by virtue hereof. Nevertheless, if so requested by
the Indenture Trustee or any purchaser, the Owner Trustee shall ratify and
confirm any such sale, assignment, transfer or delivery, by executing and
delivering to the Indenture Trustee or such purchaser all bills of sale,
assignments, releases and other proper instruments to effect such ratification
and confirmation as may be designated in any such request.
(c) Subject to Sections 8.03(e) and 8.03(f), if an Indenture Event of
Default has occurred and is continuing, the Owner Trustee shall, at the request
of the Indenture Trustee, promptly execute and deliver to the Indenture Trustee
such instruments of title or 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 Indenture Estate. 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 shall be entitled, in a
proceeding to which the Owner Trustee will be a necessary party, to a judgment
for specific performance of the covenants contained in the foregoing sentence,
conferring upon 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. The Indenture Trustee shall also be
entitled to pursue all or any part of the Indenture Estate wherever it may be
found and may enter any of the premises of the Owner Trustee or any other Person
wherever the Indenture Estate may be or be supposed to be and search for the
Indenture Estate and take possession of any item of the Indenture Estate
pursuant to this Section 8.03(c). The Indenture Trustee may, from time to
time, at the expense of the Indenture Estate, make all such expenditures for
maintenance, insurance, repairs, replacements, alterations, additions and
improvements to and of the Indenture Estate, as it may deem proper. In each
such case, the Indenture Trustee shall have the right to use, operate, store,
lease, control or manage the Indenture Estate, and to exercise all rights and
powers of the Owner Trustee relating to the Indenture Estate as the
Indenture-44 (1995 777 C)
Indenture Trustee shall deem appropriate, including the right to enter into any
and all such agreements with respect to the use, operation, storage, leasing,
control or management of the Indenture Estate or any part thereof; and the
Indenture Trustee shall be entitled to collect and receive directly all tolls,
rents (including Rent), issues, profits, products, revenues and other income of
the Indenture Estate and every part thereof, 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. In accordance with the terms of this Section 8.03(c), such
tolls, rents (including Rent), issues, profits, products, revenues and other
income shall be applied to pay the expenses of using, operating, storing,
leasing, controlling or managing the Indenture Estate, and of all maintenance,
insurance, 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
Indenture Estate or any part thereof (including the employment of engineers and
accountants to examine, inspect and make reports upon the properties and books
and records of the Owner Trustee and, to the extent permitted by the Lease, the
Company), and all other payments which the Indenture Trustee may be required or
authorized to make under any provision of this Indenture, including this Section
8.03(c), 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.
If an Indenture Event of Default occurs and is continuing and the
Indenture Trustee shall have obtained possession of or title to the Aircraft,
the Indenture Trustee shall not be obligated to use or operate the Aircraft or
cause the Aircraft to be used or operated directly or indirectly by itself or
through agents or other representatives or to lease, license or otherwise permit
or provide for the use or operation of the Aircraft by any other Person unless
(i) the Indenture Trustee shall have been able to obtain insurance in kinds, at
rates and in amounts satisfactory to it in its discretion to protect the
Indenture Estate and the Indenture Trustee, as trustee and individually, against
any and all liability for loss or damage to the Aircraft and for public
liability and property damage resulting from use or operation of the Aircraft
and (ii) funds are available in the Indenture Estate to pay for all such
insurance or, in lieu of such insurance, the Indenture Trustee is furnished with
indemnification from the Holders or any other Person upon terms and in amounts
satisfactory to the Indenture Trustee in its discretion to protect the Indenture
Estate and the Indenture Trustee, as trustee and individually, against any and
all such liabilities.
(d) Subject to Sections 8.03(b), 8.03(e) and 8.03(f), the Indenture
Trustee may proceed to protect and enforce this Indenture and the Certificates
by suit or suits or proceedings in equity, at law or in bankruptcy, and whether
for the specific performance of any covenant or agreement herein contained or in
execution or aid of any power herein granted; or for foreclosure hereunder, or
for the appointment of a receiver or receivers for the Indenture Estate or any
part thereof, or for the recovery of judgment for the indebtedness
Indenture-45 (1995 777 C)
secured by the Lien created under this Indenture or for the enforcement of any
other proper, legal or equitable remedy available under applicable law.
(e) (i) If the Company shall fail to make any payment of Basic Rent
under the Lease when the same shall become due, and if such failure of the
Company to make such payment of Basic Rent shall not constitute the fourth
consecutive such failure or the seventh or subsequent cumulative such failure,
then as long as no Indenture Event of Default that is not also a Lease Event of
Default shall have occurred and be continuing, the Owner Participant or the
Owner Trustee may (but need not) pay to the Indenture Trustee, at any time prior
to the 11th day subsequent to the date on which the Indenture Trustee shall have
given written notice to the Owner Trustee and the Owner Participant of the date
on or after which the Indenture Trustee may commence the exercise of any remedy
described in this Indenture, taking into account the restrictions governing such
exercise (the date specified in such notice being the "Enforcement Date"), (and
the Indenture Trustee shall not (without the prior written consent of the Owner
Trustee) declare the Lease in default pursuant to Section 15 thereof or exercise
any of the rights, powers or remedies pursuant to such Section 15 or this
Article 8 prior to the occurrence of such date), an amount equal to the
Installment Payment Amounts and interest on the Certificates due on the
Installment Payment Date on which such Basic Rent became due, together with any
interest due thereon on account of the delayed payment thereof to the date of
such payment, and such payment by the Owner Participant or the Owner Trustee
shall be deemed to cure as of the date of such payment any Indenture Event of
Default which arose from such failure of the Company (including any Lease Event
of Default arising from the Company's failure to pay interest in respect of such
overdue Basic Rent for the period commencing on the date of such payment), but
such cure shall not relieve the Company of any of its obligations. It is
understood and agreed that the Owner Trustee or the Owner Participant may,
pursuant to the preceding sentence, exercise the rights specified in such
sentence with respect to Indenture Events of Default under Section 8.01(a) that
result from the failure of the Company to make any payment of Basic Rent or
Supplemental Rent. If the Company shall fail to perform or observe any
covenant, condition or agreement to be performed or observed by it under the
Lease, and if (but only if) the performance or observance thereof can be
effected by the payment of money alone (it being understood that actions such as
the obtaining of insurance and the procurement of maintenance services can be so
effected), then as long as no other Indenture Event of Default (other than those
arising from a Lease Event of Default) shall have occurred and be continuing,
the Owner Participant or the Owner Trustee may (but need not) pay to the
Indenture Trustee (or to such other person as may be entitled to receive the
same), at any time prior to the 11th day subsequent to the Enforcement Date (and
the Indenture Trustee shall not (without the prior written consent of the Owner
Trustee) declare the Lease in default pursuant to Section 15 thereof or exercise
any of the rights, powers or remedies pursuant to such Section 15 or this
Article 8 prior to the occurrence of such date), all sums necessary to effect
the performance or observance of such covenant or agreement of the Company,
together with any interest due thereon on account of the delayed payment thereof
Indenture-46 (1995 777 C)
to the date of such payments and such payment by the Owner Participant or the
Owner Trustee shall be deemed to cure as of the date of such payment any
Indenture Event of Default which arose from such failure of the Company
(including any Lease Event of Default arising from the Company's failure to pay
interest in respect of such overdue payment for the period commencing on the
date of such payment), but such cure shall not relieve the Company of any of its
obligations. Notwithstanding the foregoing, no remedy available to the
Indenture Trustee hereunder may be consummated on or prior to the date that is
twenty days after the Enforcement Date if the result of such consummation would
be to restrict the rights of the Owner Trustee and the Owner Participant to
remedy Lease Events of Default as set forth in this Section 8.03(e)(i). Upon
any payment of Basic Rent by the Owner Participant or the Owner Trustee in
accordance with the first sentence of this Section 8.03(e)(i), or upon any
payment of any other sums by the Owner Participant or the Owner Trustee in
accordance with the second sentence of this Section 8.03(e)(i), the Owner
Participant or the Owner Trustee shall, to the extent of their respective
payments, be subrogated, in the case of any such payment in accordance with such
first sentence, to the rights of the Indenture Trustee, as assignee hereunder of
the Owner Trustee, or, in the case of any such payment in accordance with such
second sentence, to the rights of the Indenture Trustee or such other person as
the case may be, which actually received such payment, to receive such payment
of Basic Rent or such other payment, as the case may be (and any interest due
thereon on account of the delayed payment thereof), and shall be entitled to
receive such payment upon its receipt by the Indenture Trustee or such other
person, as aforesaid (but in each case only if all amounts of principal of, and
interest at the time due and payable on, the Certificates together with interest
due thereon on account of the delayed payment thereof shall have been paid in
full); provided that neither the Owner Participant nor the Owner Trustee shall
attempt to recover any such amount paid by it on behalf of the Company pursuant
to this Section 8.03(e)(i) except by demanding of the Company payment of such
amount or by proceeding by appropriate court action against the Company to
enforce the payment of such amount pursuant to Section 15(f), but only said
Section 15(f), of the Lease.
(ii) In the event that (A) at any time one or more Lease Events of
Default shall have occurred and be continuing for a period of 180 days or more
but less than one year and the Certificates shall not have been accelerated or
(B) the Certificates shall have been accelerated pursuant to Section 8.02 or
after one or more Lease Events of Default shall have occurred and be continuing
for a period of one year or more, the Owner Trustee or the Owner Participant
may, at its option, give at least 30 days' prior irrevocable notice to the
Indenture Trustee that the Owner Trustee or the Owner Participant will redeem or
purchase all Certificates then outstanding on the Business Day specified in such
notice and, concurrently with such notice, the Owner Trustee or the Owner
Participant will deposit with the Indenture Trustee an amount sufficient to
redeem or purchase at the applicable Redemption Price determined consistently
with the applicable provisions of Article 6 all Certificates then outstanding
(including, if Section 6.01(b) is applicable, an estimate of the
Indenture-47 (1995 777 C)
premium to be paid on the Redemption Date computed using the Treasury Yield
determined as if the Redemption Date were the date of such notice) and to pay
the Indenture Trustee all amounts then due it hereunder, which funds shall be
held by the Indenture Trustee as provided in Section 9.04. Upon the giving of
such notice and the receipt by the Indenture Trustee of such deposit, the
Indenture Trustee shall deem all instructions received from the Owner Trustee as
having been given by the Holders of 100% of the outstanding principal amount of
Certificates for all purposes of this Indenture. If such notice is given, the
Owner Trustee further agrees that it will deposit or cause to be deposited with
the Indenture Trustee, on or prior to the Business Day preceding the applicable
Redemption Date, whether or not an Indenture Event of Default is then
continuing, funds sufficient, when added to the funds already held by the
Indenture Trustee for such purpose, to redeem or purchase at the applicable
Redemption Price (including the premium actually payable in respect thereof) on
such Redemption Date all Certificates then outstanding and to pay the Indenture
Trustee all amounts then due it hereunder.
(iii) Anything in this Indenture to the contrary notwithstanding the
Indenture Trustee shall not be entitled to exercise any remedy hereunder to
foreclose the lien of this Indenture as a result of an Indenture Event of
Default which arises solely by reason of one or more events or circumstances
which constitute a Lease Event of Default unless the Indenture Trustee has given
the prior written notice of the Enforcement Date as contemplated by Section
8.01(e)(i) and the Indenture Trustee as security assignee of the Owner Trustee
shall have exercised or concurrently be exercising one or more of the remedies
provided for in Section 15 of the Lease to take possession and/or sell the
Aircraft; 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)(l)(A) of the
Bankruptcy Code (such 60-day or other period being the "Section 1110 Period"),
involuntarily 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)(A-B) 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 Company'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. References in this subsection (iii) to particular sections of
the Bankruptcy Code as in effect on the date of
Indenture-48 (1995 777 C)
the amendment and restatement of this Indenture shall include any substantially
similar successor provisions.
(f) Notwithstanding any provision of this Indenture to the contrary,
including, without limitation, Sections 8.03(b), 8.03(c) and 8.03(d), as long as
no Lease Event of Default shall have occurred and be continuing, neither the
Indenture Trustee nor the Owner Trustee shall take any action in violation of
the Company's rights under the Lease, including, without limitation, (x) the
right to receive all monies due and payable to it in accordance with the
provisions of the Lease and (y) the Company's rights to possession and use of,
and of quiet enjoyment of, the Aircraft.
(g) Each and every right, power and remedy herein 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 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 pursuing 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 Company or to be an acquiescence therein.
(h) Notwithstanding anything contained herein to the contrary, so long
as the Pass Through Trustee is a Holder, the Indenture Trustee is not authorized
or empowered to acquire title to the Indenture Estate, or to take any action
with respect to any of the Indenture Estate so acquired by it, if such
acquisition or action would cause any Pass Through Trust to fail to qualify as a
"grantor trust" for federal income tax purposes.
Section 8.04. Waiver of Owner Trustee. To the extent now or at any
time hereafter enforceable under applicable law, the Owner Trustee covenants
that it will not at any time insist upon or plead, or in any manner whatsoever
claim or take any benefit or advantage of or from any law now or hereafter in
force providing for the valuation or appraisal of the Indenture Estate or any
part thereof, prior to any sale or sales thereof to be made pursuant to any
provision herein contained, or prior to any applicable decree, judgment or order
of any court of competent jurisdiction; nor, after such sale or sales, claim or
exercise any right under any statute now or hereafter made or enacted by any
state or otherwise to redeem the property so sold or any part thereof, and
hereby expressly waives for itself and on behalf of each and every Person,
except decree or judgment creditors of the Owner Trustee acquiring any interest
in or title to the Indenture Estate or any part thereof subsequent to the date
of this Indenture, all benefit and advantage of any such law or laws,
Indenture-49 (1995 777 C)
and covenants that it will not invoke or utilize any such law or laws, but will
suffer and permit the execution of every such power as though no such law or
laws had been made or enacted. Nothing in this Section 8.04 shall be deemed to
be a waiver by the Owner Trustee of its rights under Section 8.03(e).
The Indenture Trustee may maintain such a pleading, or, in any manner
whatsoever, claim or take any benefit or advantage of or from any law now or
hereafter in force even if it does not possess any of the Certificates or does
not produce any of them in the proceeding. A delay or omission by the Indenture
Trustee or any Holder in exercising any right or remedy accruing upon an
Indenture Event of Default under this Indenture shall not impair the right or
remedy or constitute a waiver of or acquiescence in such Indenture Event of
Default.
Section 8.05. Waiver of Existing Defaults. The Holders of a majority
in the aggregate principal amount of the Outstanding Certificates by notice to
the Indenture Trustee may waive on behalf of the Holders an existing Indenture
Default or Indenture Event of Default and its consequences except an Indenture
Default or Indenture Event of Default (i) in the payment of the principal of or
interest on any Certificate or (ii) in respect of a covenant or provision hereof
which pursuant to Section 11.02 cannot be amended or modified without the
consent of the Holder affected.
Section 8.06. Control by Majority. (a) The Holders of a majority in
aggregate principal amount of the Outstanding Certificates may direct the time,
method and place of conducting any proceeding for any remedy available to the
Indenture Trustee or exercising any trust or power conferred on it by this
Indenture. However, the Indenture Trustee may refuse to follow any direction
that conflicts with law or this Indenture, that is unduly prejudicial to the
rights of the Holders so affected, or that would subject the Indenture Trustee
to personal liability.
(b) The Owner Trustee may pursuant to the direction and instruction of
the Owner Participant by delivery of written notice to the Indenture Trustee set
a record date to determine the Holders entitled to give any consent, request,
demand, authorization, direction, notice, waiver or other act. Such record date
shall be the record date specified in such Officers' Certificate which shall be
a date not more than 30 days prior to the first solicitation of Holders in
connection therewith. If such a record date is fixed, such consent, request,
demand, authorization, direction, notice, waiver or other act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders holding the requisite proportion of certificates
have authorized or agreed or consented to such consent, request, demand,
authorization, direction, notice, waiver or other act, and for that purpose the
Outstanding Certificates shall be computed as of such record date; provided that
no such consent, request, demand, authorization, direction, notice, waiver or
other act by the Holders
Indenture-50 (1995 777 C)
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than one year after the
record date.
Section 8.07. Limitation on Suits by Holders. A Holder may pursue a
remedy under this Indenture or thereunder only if:
(1) the Holder gives to the Indenture Trustee written notice of a
continuing Indenture Event of Default under this Indenture;
(2) the Holders of at least 25% in aggregate principal amount of the
Outstanding Certificates make a written request to the Indenture Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Indenture Trustee indemnity
satisfactory to the Indenture Trustee against any loss, liability or
expense to be, or which may be, incurred by the Indenture Trustee in
pursuing the remedy;
(4) the Indenture Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in aggregate
principal amount of the Outstanding Certificates do not give the Indenture
Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
Section 8.08. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture the right of any Holder to receive payment
of principal of, premium, if any, and interest on such Certificate on or after
the respective due dates expressed in such Certificate, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
Section 8.09. Indenture Trustee May File Proofs of Claim. The
Indenture Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Indenture
Trustee and of the Holders allowed in any judicial proceedings relating to any
obligor on the Certificates, its creditors, or its property.
Indenture-51 (1995 777 C)
ARTICLE 9
INDENTURE TRUSTEE
Section 9.01. Duties of Indenture Trustee. (a) The Indenture
Trustee may refuse to perform any duty or exercise any right or power unless it
receives indemnity satisfactory to it against any loss, liability or expense.
(b) Subject to the provisions of Section 9.04, the Indenture Trustee
shall not be liable for interest on any money received except as otherwise
provided in any other Operative Document. Money held in trust by the Indenture
Trustee need not be segregated from other funds except to the extent required by
law.
(c) As promptly as possible following, and in any event within two
Business Days of notice or actual knowledge of, any failure of the Company to
make any payment of Basic Rent under the Lease when the same shall become due,
the Indenture Trustee shall provide the notice contemplated by Section
8.03(e)(i).
Section 9.02. Rights of Indenture Trustee. (a) The Indenture
Trustee may rely on any document believed by it to be genuine and to have been
signed or presented by the proper person. The Indenture Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
consult with counsel or require an Officer's Certificate or an Opinion of
Counsel from the Company or the Owner Trustee after which it will take such
action or refrain from acting as it deems appropriate. The Indenture Trustee
shall not be liable for any action it takes or omits to take in good faith and
in accordance herewith in reliance on a resolution of the Board of Directors of
the Company, the written advice of counsel acceptable to the Owner Trustee, the
Company and the Indenture Trustee, officer's certificates or opinions of counsel
provided by the Company or the Owner Trustee.
(c) The Indenture Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any such agent appointed with
due care; provided that, so long as no Lease Event of Default shall have
occurred and be continuing no such agents shall be appointed by the Indenture
Trustee without the consent of the Company and the Owner Trustee, which consent
shall, in each case, not be unreasonably withheld.
(d) The Indenture Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers.
Indenture-52 (1995 777 C)
(e) If an Indenture Event of Default under this Indenture has occurred
and is continuing, the Indenture Trustee shall exercise its rights and powers
under this Indenture, and shall use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
Section 9.03. Individual Rights of Indenture Trustee. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates and may otherwise deal with the Owner Trustee, the Company or an
Affiliate of the Owner Trustee or the Company or a subsidiary of the Owner
Trustee or the Company with the same rights it would have if it were not the
Indenture Trustee. Any Agent may do the same with like rights.
Section 9.04. Funds May Be Held by Indenture Trustee or Paying Agent;
Investments. Any monies (including without limitation for purpose of this
Section 9.04 Permitted Investments constituting the proceeds of the maturity,
sale or other disposition of any Permitted Investment) held by the Indenture
Trustee or the Paying Agent hereunder as part of the Indenture Estate, until
paid out by the Indenture Trustee or the Paying Agent as herein provided, (i)
subject to clause (ii) below, may be carried by the Indenture Trustee or the
Paying Agent on deposit with itself or on deposit to its account with any bank,
trust company or national banking association incorporated or doing business
under the laws of the United States of America or one of the States thereof
having combined capital and surplus and retained earnings of at least
$100,000,000, and neither the Indenture Trustee nor the Paying Agent shall have
any liability for interest upon any such monies except as otherwise agreed in
writing or (ii) at any time and from time to time, so long as no Lease Event of
Default shall have occurred and be continuing, at the request (given directly by
the Company to the Indenture Trustee) of the Company acting as the Agent of the
Owner Trustee, shall be invested and reinvested in Permitted Investments as
specified in such request (if such investments are reasonably available for
purchase) and sold, in any case at such prices, including accrued interest or
its equivalent, as are set forth in such request, and such Permitted Investments
shall be held by the Indenture Trustee in trust as part of the Indenture Estate
until so sold; provided that the Company pursuant to Section 22 of the Lease, on
behalf of the Owner Trustee, as agent of the Owner Trustee, shall upon demand
pay to the Indenture Trustee the amount of any loss realized upon maturity, sale
or other disposition of any such Permitted Investment and, so long as no Lease
Event of Default or Lease Default of the type described in Section 14(a), 14(b),
14(h) or 14(i) of the Lease shall have occurred and be continuing, be entitled
to receive from the Indenture Trustee, and the Indenture Trustee shall promptly
pay to the Company, on behalf of the Owner Trustee, any profit, income,
interest, dividend or gain realized upon maturity, sale or other disposition of
any Permitted Investment. If any Lease Event of Default shall have occurred and
be continuing, any net income, profit, interest, dividend or gain realized upon
maturity, sale or other disposition of any Permitted Investment shall be held as
part of the Indenture Estate and shall be applied by the Indenture Trustee at
the same time, on the same conditions and in the same
Indenture-53 (1995 777 C)
manner as the amounts in respect of which such income, profit, interest,
dividend or gain was realized are required to be distributed in accordance with
the provisions hereof or of the Lease pursuant to which such amounts were
required to be held. The Indenture Trustee shall not be responsible for any
losses on any investments or sales of Permitted Investments made pursuant to the
procedure specified in this Section 9.04.
Section 9.05. Notice of Defaults. If an Indenture Event of Default
under this Indenture occurs and is continuing and the Indenture Trustee has
Actual Knowledge of same, the Indenture Trustee shall (i) promptly send written
notice thereof by telecopier to the Company, the Owner Trustee and the Owner
Participant and (ii) within 90 days after it occurs, mail to each Holder notice
of all uncured Indenture Events of Default under this Indenture. Except in the
case of a default in the payment of the principal of, premium, if any, or
interest on any Certificate, the Indenture Trustee shall be protected in
withholding the notice required under clause (ii) above if and so long as the
executive committee or trust committee of directors of the Indenture Trustee
and/or Responsible Officers thereof in good faith determines that withholding
such notice is in the interest of the Holders. In addition, if an Indenture
Default under this Indenture occurs and is continuing and if the Indenture
Trustee has Actual Knowledge of same, the Indenture Trustee shall promptly send
written notice thereof by telecopier to the Company, the Owner Trustee and the
Owner Participant.
Section 9.06. Compensation and Indemnity. The Indenture Trustee
shall be entitled to reasonable compensation, including expenses and
disbursements, for all services rendered hereunder and shall have a priority
claim on the Indenture Estate for the payment of such compensation, to the
extent that such compensation shall not be paid by the Company, and shall have
the right to use or apply any monies held by it hereunder in the Indenture
Estate, except those held in trust to pay the principal of, premium, if any, or
interest on the Certificates, toward such payments. The Indenture Trustee
agrees that it shall have no right against the Holders, the Owner Trustee or the
Owner Participant for any fee as compensation for its services as trustee under
this Indenture.
Section 9.07. Replacement of Indenture Trustee. (a) The resignation
or removal of the Indenture Trustee and the appointment of a successor Indenture
Trustee shall become effective only upon the successor Indenture Trustee's
acceptance of appointment as provided in this Section.
(b) The Indenture Trustee may resign by giving at least 30 days' prior
written notice to the Company and the Owner Trustee. The Holders of a majority
in aggregate principal amount of the Outstanding Certificates may remove the
Indenture Trustee by giving at least 30 days' prior written notice to the
Indenture Trustee, the Owner Trustee and the Company and may appoint a successor
Indenture Trustee for such Certificates with the Owner Trustee's and (so long as
no Lease Event of Default is continuing) the Company's consent. The Owner
Trustee may remove the Indenture Trustee if:
Indenture-54 (1995 777 C)
(1) the Indenture Trustee fails to comply with Section 9.09;
(2) the Indenture Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or public officer takes charge of the Indenture Trustee
or its property; or
(4) the Indenture Trustee becomes incapable of acting.
(c) If the Indenture Trustee resigns or is removed, or if a vacancy
exists in the office of Indenture Trustee for any reason, the Owner Trustee
shall promptly appoint a successor Indenture Trustee which will (so long as no
Lease Event of Default is continuing) be approved by the Company.
(d) If a successor Indenture Trustee does not take office within 30
days after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Company, the Owner Trustee or the Holders of a majority
in aggregate principal amount of the Outstanding Certificates may petition any
court of competent jurisdiction for the appointment of a successor Indenture
Trustee.
(e) If the Indenture Trustee fails to comply with Section 9.09, any
Holder may petition any court of competent jurisdiction for the removal of such
Indenture Trustee and the appointment of a successor Indenture Trustee.
(f) A successor Indenture Trustee shall deliver a written acceptance
of its appointment to the retiring Indenture Trustee, to the Company and to the
Owner Trustee. Thereupon, the resignation or removal of the retiring Indenture
Trustee shall become effective, and the successor Indenture Trustee shall have
all the rights, powers and duties of the retiring Indenture Trustee for which
the successor Indenture Trustee is to be acting as Indenture Trustee under this
Indenture. The retiring Indenture Trustee shall promptly transfer all property
and all books and records relating to the administration of the Indenture Estate
held by it as Indenture Trustee to the successor Indenture Trustee subject to
the lien provided for in Section 9.06. The Company shall give notice of each
appointment of a successor Indenture Trustee if there are Certificates
outstanding, by mailing written notice of such event by first-class mail to the
Holders.
(g) All provisions of this Section 9.07 except subparagraphs (b)(1)
and (e) and the words "subject to the lien provided for in Section 9.06" in
subparagraph (f) shall apply also to any Paying Agent.
Section 9.08. Successor Indenture Trustee, Agents by ▇▇▇▇▇▇, etc. If
the Indenture Trustee or any Agent consolidates with, merges or converts into,
or transfers all or
Indenture-55 (1995 777 C)
substantially all of its corporate trust business assets to, another
corporation, the successor corporation, without any further act, shall be the
successor Indenture Trustee or Agent, as the case may be.
Section 9.09. Eligibility; Disqualification. This Indenture shall at
all times have an Indenture Trustee which (i) shall have a combined capital and
surplus of at least $75,000,000 or (ii) shall have a combined capital and
surplus in excess of $5,000,000 and the obligations of which, whether now in
existence or hereafter incurred, are fully and unconditionally guaranteed by a
corporation organized and doing business under the laws of the United States,
any State or Territory thereof or of the District of Columbia and having a
combined capital and surplus of at least $75,000,000, and which, in any case,
shall be a Citizen of the United States. If such corporation publishes reports
of conditions at least annually, pursuant to law or to the requirements of
Federal, State, Territorial, or District of Columbia supervising or examining
authority, then for the purposes of this Section 9.09, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of conditions so published.
In case at any time the Indenture Trustee shall cease to be eligible
in accordance with the provisions of this Section 9.09, the Indenture Trustee
shall resign immediately in the manner and with the effect specified in Section
9.07.
Section 9.10. Trustee's Liens. The Indenture Trustee in its
individual capacity agrees that it will at its own cost and expense promptly
take such action as may be necessary to duly discharge and satisfy in full all
Liens ("Trustee's Liens") on the Indenture Estate which are either (i)
attributable to the Indenture Trustee in its individual capacity and which are
unrelated to the transactions contemplated by the Operative Documents, or (ii)
which are attributable to the Indenture Trustee as trustee hereunder or in its
individual capacity and which arise out of acts or omissions which are not
expressly contemplated by this Indenture.
Section 9.11. Withholding Taxes; Information Reporting. The
Indenture Trustee shall exclude and withhold from each distribution of
principal, premium, if any, and interest and other amounts due hereunder or
under the Certificates any and all 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 taxes or similar
charges are required to be withheld with respect to any amounts payable in
respect to the Certificates, to withhold such amounts and timely pay the same to
the appropriate authority in the name of and on behalf of the Holders, that it
will file any necessary withholding tax returns or statements when due, and
that, as promptly as possible after the payment thereof, it will deliver to each
Holder appropriate documentation showing the payment thereof, together with such
additional documentary evidence as such Holders may reasonably request from time
to time. The Indenture Trustee agrees to file any other
Indenture-56 (1995 777 C)
information reports as it may be required to file under United States law. Such
withholding by the Indenture Trustee shall in no event give rise to an Indenture
Event of Default.
ARTICLE 10
SATISFACTION AND DISCHARGE; DEFEASANCE;
TERMINATION OF OBLIGATIONS
Section 10.01. Satisfaction and Discharge of Agreement; Defeasance;
Termination of Obligations. Subject to Section 10.02, this Indenture shall
cease to be of further effect, and the Owner Trustee and the Indenture Trustee
shall, except as herein provided, be deemed to have been discharged from their
respective obligations with respect to the Certificates (and the Indenture
Trustee, on demand of the Owner Trustee, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture in respect of the
Certificates), when
(a) (i) all Certificates theretofore executed and delivered (other
than (A) Certificates which have been mutilated, destroyed, lost or stolen
and which have been replaced or exchanged as provided in Section 2.06 and
(B) Certificates for the payment of which money held in trust hereunder has
been paid and discharged from such trust, as provided in Section 7.01) have
been delivered to the Indenture Trustee for cancellation; or
(ii) all Certificates not theretofore delivered to the Indenture
Trustee for cancellation
(A) have become due and payable (whether upon stated maturity or
as a result of redemption), or
(B) will become due and payable (including as a result of
redemption in respect of which irrevocable notice has been given to
the Indenture Trustee on or prior to the date of such deposit and such
redemption either is a redemption without possibility of premium or,
as of the date of such deposit, any premium which may be payable in
connection therewith has been actually determined) at maturity or on a
Redemption Date within one year,
and there has been deposited with the Indenture Trustee in trust for the
purpose of paying and discharging the entire indebtedness on the
Certificates not theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation, an amount sufficient
to discharge such indebtedness, including the principal of, the actual
premium, if any, and interest on the Certificates to the date of
Indenture-57 (1995 777 C)
such deposit (in the case of Certificates which have become due and
payable), or to the maturity thereof or to the Redemption Date thereof, as
the case may be; or
(iii) (A) the Owner Trustee, subsequent to the Commencement Date,
has deposited or caused to be deposited irrevocably (except as provided in
Section 10.04) with the Indenture Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders, (1) money in an amount, or (2) U.S. Government Obligations
which, through the payment of interest and principal in respect thereof in
accordance with their terms, will provide (not later than one Business Day
before the due date of any payment referred to below in this paragraph)
money in an amount, or (3) a combination of money and U.S. Government
Obligations referred to in the foregoing clause (2), sufficient, in the
opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the
Indenture Trustee, to pay and discharge each installment of principal of
and interest on the Outstanding Certificates on the dates such payments of
principal or interest are due (including as a result of redemption without
the possibility of the payment of premium in respect of which irrevocable
notice has been given to the Indenture Trustee on or prior to the date of
such deposit), and no Lease Event of Default under either Section 14(h) or
14(i) of the Lease shall have occurred and be continuing on the date of
such deposit or at any time during the period ending on the 91st day after
such date; provided, however, that, upon the making of the deposit referred
to above in this clause (A), the right of the Owner Trustee or the Company
to cause the redemption of Certificates (except a redemption in respect of
which irrevocable notice has theretofore been given) shall terminate;
(B) such deposit will not result in a breach or violation of, or
constitute an Indenture Default or Indenture Event of Default under, this
Indenture or a default or event of default under any other agreement or
instrument to which the Owner Trustee or the Company is a party or by which
it is bound; and
(C) the Company on behalf of the Owner Trustee has delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel to the
effect that there has been published by the Internal Revenue Service a
ruling to the effect that Holders will not recognize income, gain or loss
for Federal income tax purposes as a result of the exercise by the Owner
Trustee of its option under this Section 10.01(a)(iii) and will be subject
to Federal income tax on the same amount and in the same manner and at the
same times, as would have been the case if such option had not been
exercised;
Indenture-58 (1995 777 C)
(b) all other amounts then due and payable hereunder have been paid
and no notice of a redemption of the Certificates with the possibility of
the payment of premium has been delivered by the Indenture Trustee; and
(c) the Company on behalf of the Owner Trustee has delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for relating to the
satisfaction and discharge of this Indenture contemplated by this Section
10.01, have been complied with.
Section 10.02. Survival of Certain Obligations. Notwithstanding the
provisions of Section 10.01, the obligations of the Indenture Trustee contained
in Sections 2.01 through 2.08, Section 7.01, Section 9.11, Section 10.03 and
Section 10.04 and the rights, duties, immunities and privileges hereunder of the
Indenture Trustee shall survive.
Section 10.03. Monies to Be Held in Trust. All moneys and U.S.
Government Obligations deposited with the Indenture Trustee pursuant to Section
10.01 shall be held in trust and applied by it, in accordance with the
provisions of the Certificates and this Indenture, to the payment either
directly or through any Paying Agent, as the Indenture Trustee may determine, to
the Holders, of all sums due and to become due thereon for principal, premium,
if any, and interest, but such money need not be segregated from other funds
except to the extent required by law.
Section 10.04. Monies to Be Returned to Owner Trustee. The Indenture
Trustee and any Paying Agent shall promptly pay or return to the Owner Trustee
upon request of the Owner Trustee any money or U.S. Government Obligations held
by them at any time that are not required for the payment of the amounts
described above in Section 10.03 on the Certificates for which money or U.S.
Government Obligations have been deposited pursuant to Section 10.01.
ARTICLE 11
AMENDMENTS AND WAIVERS
Section 11.01. Amendments to this Indenture Without Consent of
Holders. The Owner Trustee and the Indenture Trustee may enter into one or more
agreements supplemental hereto without the consent of any Holder for any of the
following purposes:
(1) to correct any mistake or cure any ambiguity, defect or
inconsistency herein or in the Certificates or to make any change not
inconsistent with the provisions hereof; provided that such change does not
adversely affect the interests of any Holder;
Indenture-59 (1995 777 C)
(2) to evidence the succession of another party as the Owner Trustee
in accordance with the terms of the Trust Agreement or to evidence (in
accordance with Article 9) the succession of a new trustee hereunder, the
removal of the trustee hereunder or the appointment of any co-trustee or
co-trustees or any separate or additional trustee or trustees;
(3) to convey, 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 Holders;
(4) 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 or to subject to the lien of this
Indenture the Airframe or Engines or airframe or engines substituted for
the Airframe or Engines in accordance herewith or with the Lease; provided
that Trust Supplements entered into for the purpose of subjecting to the
lien of this Indenture the Airframe or Engines in accordance with the Lease
need only be executed by the Owner Trustee and the Indenture Trustee;
(5) to add to the covenants of the Owner Trustee, for the benefit of
the Holders, or to surrender any rights or power herein conferred upon the
Owner Trustee or the Owner Participant;
(6) to add to the rights of the Holders;
(7) to provide for the assumption by the Company of the obligations of
the Owner Trustee hereunder in accordance with the terms and conditions
applicable thereto specified in Section 7.03; or
(8) to include on the Certificates any legend as may be required by
applicable law.
Section 11.02. Amendments to this Indenture with Consent of Holders.
(a) With the written consent of the Holders of a majority of the aggregate
principal amount of the Outstanding Certificates, the Owner Trustee and the
Indenture Trustee may enter into such supplemental agreements to add any
provisions to or to change or eliminate any provisions of this Indenture or of
any such supplemental agreements or to modify the rights of the Holders;
provided, however, that, an amendment under this Section 11.02 may not:
(1) reduce the principal amount of, premium, if any, or any
installment of interest on, any Certificate; or
Indenture-60 (1995 777 C)
(2) change the date on which any principal amount of, any Installment
Payment Amount payable with respect to, premium, if any, or interest on any
Certificate, is due or payable; or
(3) create any Lien on the Indenture Estate prior to or pari passu
with the Lien thereon under this Indenture except such as are permitted by
this Indenture, or deprive any Holder of the benefit of the Lien on the
Indenture Estate created by this Indenture; or
(4) reduce the percentage in principal amount of the Outstanding
Certificates, the consent of whose holders is required for any such
supplemental agreement, or the consent of whose holders is required for any
waiver (of compliance with certain provisions of this Indenture or of
certain defaults hereunder or their consequences) provided for in this
Indenture; or
(5) make any change in Section 8.05 or 8.08 or this Section 11.02(a).
(b) It is not necessary under this Section 11.02 for the Holders to
consent to the particular form of any proposed supplemental agreement, but it is
sufficient if they consent to the substance thereof.
(c) Promptly after the execution by the Owner Trustee and the
Indenture Trustee of any supplemental agreement pursuant to the provisions of
this Section 11.02, the Indenture Trustee shall transmit by first-class mail a
notice, setting forth in general terms the substance of such supplemental
agreement, to all Holders, as the names and addresses of such Holders appear on
the Register. Any failure of the Indenture Trustee to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental agreement.
Section 11.03. Revocation and Effect of Consents. Until an amendment
or waiver becomes effective, a consent to it by a Holder is a continuing consent
by the Holder and every subsequent Holder, even if notation of the consent is
not made on any Certificate. However, any such Holder or subsequent Holder may
revoke the consent as to his Certificate if the Indenture Trustee receives the
notice of revocation before the date the amendment or waiver becomes effective.
After an amendment or waiver becomes effective, it shall bind every Holder
affected by such amendment or waiver.
Section 11.04. Notation on or Exchange of Certificates. The
Indenture Trustee may place an appropriate notation about an amendment or waiver
on any Certificate thereafter executed. The Indenture Trustee in exchange for
such Certificates may execute new Certificates that reflect the amendment or
waiver.
Indenture-61 (1995 777 C)
Section 11.05. Indenture Trustee Protected. The Indenture Trustee
need not sign any supplemental agreement that adversely affects its rights.
Section 11.06. Amendments, Waivers, etc. of Other Operative
Documents. (a) Subject to Section 11.01, without the consent of the Holders of
a majority in principal amount of Outstanding Certificates, the respective
parties to the Participation Agreement, the Lease and the Trust Agreement may
not modify, amend or supplement any of said agreements, or give any consent,
waiver, authorization or approval thereunder, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
thereof or of modifying in any manner the rights of the respective parties
thereunder; provided, however, that the actions specified in subsection (b) of
this Section 11.06 may be taken without the consent of the Indenture Trustee or
any Holder.
(b) Subject to the provisions of subsection (c) of this Section 11.06,
the respective parties to the Participation Agreement, the Lease and the Trust
Agreement, at any time and from time to time (in all cases, without the consent
of the Indenture Trustee or of any Holder) may:
(1) so long as no Indenture Event of Default shall have occurred and
be continuing, modify, amend or supplement the Lease, or give any consent,
waiver, authorization or approval with respect thereto, except that without
compliance with subsection (a) of this Section 11.06 the parties to the
Lease shall not modify, amend or supplement, or give any consent, waiver,
authorization or approval for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions thereof or of
modifying in any manner the rights of the respective parties thereunder,
with respect to the following provisions of the Lease: Section 2, Section
3(a) (if the result thereof would be to shorten the Term of the Lease to a
period shorter than the period ending with the Maturity Date of the
Certificates), Section 3(d) (except to the extent such Section relates to
amounts payable (whether directly or pursuant to this Indenture) to Persons
other than Holders and the Indenture Trustee in its individual capacity),
Section 3(e) (except insofar as it relates to the address or account
information of the Owner Trustee or the Indenture Trustee) (in each case,
other than as such Sections 3(a), 3(d) and 3(e) may be amended pursuant to
Section 3(c) of the Lease as originally executed), Section 4, Section 6,
Section 9 (except that further restrictions may be imposed on the Company),
Section 10 (except that additional requirements may be imposed on the
Company), Section 11 (except for Section 11(e) and except that additional
insurance requirements may be imposed on the Company), Section 12 (except
in order to increase the Company's liabilities or enhance Lessor's rights
thereunder), Section 13 (except in the case of an assignment by Lessor in
circumstances where the Aircraft shall remain registrable under the Federal
Aviation Act), Section 14 (except to impose additional or more stringent
Lease Events of Default), Section 15 (except to impose additional
remedies),
Indenture-62 (1995 777 C)
Section 16 (except to impose additional requirements on the Company),
Section 18, Section 20, Section 22 and any definition of terms used in the
Lease, to the extent that any modification of such definition would result
in a modification of the Lease not permitted pursuant to this subsection
(b); provided that in the event an Indenture Event of Default shall have
occurred and be continuing, the Indenture Trustee shall have all rights of
the Owner Trustee as "Lessor" under the Lease to modify, amend or
supplement the Lease or give any consent, waiver, authorization or approval
thereunder, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions thereof or of modifying in any
manner the rights of the "Lessor" thereunder; provided further that without
the prior consent of the Owner Trustee, and whether or not an Indenture
Event of Default shall have occurred and be continuing, no such action
shall be taken with respect to any of the provisions of Sections 1 (to the
extent any modification of a definition contained therein would result in a
modification of the Lease not permitted by this proviso), 3(c), 4, 5, 6 (to
the extent such action would reduce the Company's obligations), 7, 8, 9,
10, 11, 12, 13, 14, 15, 16 (insofar as it relates to Lessor), 18, 19 and 21
of the Lease, or any other Section of the Lease to the extent such action
shall affect the amount or timing of any amounts payable by the Company
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, will be distributable to the
Owner Trustee under Article 3; and provided further that the parties to the
Lease may take any such action without the consent of the Indenture Trustee
or any Holder to the extent such action relates to the payment of amounts
constituting, or the Owner Trustee's, the Owner Participant's or the
Company's rights or obligations with respect to, Excluded Payments;
(2) modify, amend or supplement the Trust Agreement, or give any
consent, waiver, authorization or approval with respect thereto, in each
case only to the extent any such action shall not adversely impact the
interests of the Holders;
(3) modify, amend or supplement the Participation Agreement, or give
any consent, waiver, authorization or approval with respect thereto, except
that without compliance with subsection (a) of this Section 11.06 the
parties to the Participation Agreement shall not modify, amend or
supplement, or give any consent, waiver, authorization or approval for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions thereof or of modifying in any manner the
rights of the respective parties thereunder, with respect to the following
provisions of the Participation Agreement as originally executed: Section
7 (insofar as such Section 7 relates to the Indenture Trustee and the
Holders), Section 8, Section 9(b), Section 9(c), Section 11 and any
definition of terms used in the Participation Agreement, to the extent that
any modification of such definition would result in a
Indenture-63 (1995 777 C)
modification of the Participation Agreement not permitted pursuant to this
subsection (b); and
(4) modify, amend or supplement any of said agreements in order to
cure any ambiguity, to correct or supplement any provisions thereof which
may be defective or inconsistent with any other provision thereof or of any
provision of this Indenture, or to make any other provision with respect to
matters or questions arising thereunder or under this Indenture which shall
not be inconsistent with the provisions of this Indenture, provided the
making of any such other provision shall not adversely affect the interests
of the Holders.
(c) No modification, amendment, supplement, consent, waiver,
authorization or approval with respect to the Lease or the Participation
Agreement, whether effected pursuant to subsection (a) or subsection (b) of this
Section 11.06 and anything in such subsections or elsewhere in this Indenture to
the contrary notwithstanding, shall, without the consent of the Holder of each
Outstanding Certificate affected thereby,
(1) modify, amend or supplement the Lease in such a way as to extend
the time of payment of Basic Rent or Stipulated Loss Value or any other
amounts payable to the Indenture Trustee for its own account or for the
account of the Holders (subject in any event to clause (iv) of Section 3(c)
of the Lease) upon the occurrence of an Event of Loss or Termination Value
and any other amounts payable to the Indenture Trustee for its own account
or for the account of the Holders (subject in any event to clause (iv) of
Section 3(c) of the Lease) upon termination of the Lease with respect to
the Aircraft, payable under, or as provided in, the Lease, or reduce the
amount of any installment of Basic Rent or Supplemental Rent so that the
same is less than the payment of principal of, premium, if any, and
interest on the Certificates, as the case may be, to be made from such
installment of Basic Rent or Supplemental Rent, or reduce the aggregate
amount of Stipulated Loss Value, EBO Percentage or any other amounts
payable under, or as provided in, the Lease as originally executed upon the
occurrence of an Event of Loss so that the same is less than the accrued
interest on and the principal as of the Lease Loss Payment Date, and
premium, if any, of the Certificates at the time Outstanding or reduce the
amount of Termination Value and any other amounts payable under, or as
provided in, the Lease as originally executed upon termination of the Lease
with respect to the Aircraft so that the same is less than the accrued
interest on and principal as of the Lease Termination Date and premium, if
any, of Certificates at the time Outstanding, or
(2) modify, amend or supplement the Lease in such a way as to, or
consent to any assignment of the Lease or give any consent, waiver,
authorization or approval which would, release the Company from its
obligations in respect of payment of Basic Rent or Supplemental Rent, or
Stipulated Loss Value and any other amounts payable
Indenture-64 (1995 777 C)
to the Indenture Trustee for its own account or the account of the Holders
(subject in any event to clause (iv) of Section 3(c) of the Lease) upon the
occurrence of an Event of Loss, or Termination Value and any other amounts
payable to the Indenture Trustee for its own account or the account of the
Holders (subject in any event to clause (iv) of Section 3(c) of the Lease)
of the Lease with respect to the Aircraft, payable under, or as provided
in, the Lease as originally executed, except for any such assignment
pursuant to Section 8(m) of the Participation Agreement, and except as
provided in the Lease as originally executed.
ARTICLE 12
MISCELLANEOUS
Section 12.01. Notices. (a) Unless otherwise specifically provided
for herein, all notices required under the terms and provisions of this
Indenture shall be in English and in writing, and any such notice may be given
by hand-delivery, overnight courier service, mail, telex or telecopier addressed
as indicated below and any such notice shall be effective, in the case of hand-
delivery, when delivered, in the case of overnight courier service, one Business
Day after delivery with charges paid to a courier service with instructions for
overnight delivery, in the case of mail, three Business Days after delivery to
the postal service with certified or registered mail charges paid, in the case
of telex, upon receipt of a telex answerback and, in the case of telecopier,
upon transmittal:
if to the Company, to:
United Air Lines, Inc.
P.O. Box 66100
Chicago, Illinois 60666
Attention: Vice President and Treasurer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
or if by overnight courier, to:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Indenture-65 (1995 777 C)
if to the Indenture Trustee, to:
First Security Bank of Utah,
National Association
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: 3789450
if to the Owner Trustee, to:
State Street Bank and Trust Company of Connecticut,
National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Owner Participant, to:
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
Attention: ----------------------
Telecopier: ----------------------
with a copy to:
White & Case
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(b) The Company, the Owner Trustee, the Indenture Trustee or the Owner
Participant by notice to the others may designate additional or different
addresses for subsequent notices or communications.
Indenture-66 (1995 777 C)
(c) Any notice or communication to Holders of the Certificates shall
be mailed by first-class mail to the addresses for Holders shown on the Register
kept by the Registrar and to addresses filed with the Indenture Trustee for
other Holders. Failure so to mail a notice or communication or any defect in
such notice or communication shall not affect its sufficiency with respect to
other Holders of such Certificates of that or any other Series entitled to
receive notice.
(d) If a notice or communication is mailed in the manner provided
above within the time prescribed, it is conclusively presumed to have been duly
given, whether or not the addressee receives it.
(e) If the Company mails a notice or communication to the Holders, it
shall mail a copy to the Indenture Trustee and to each Paying Agent at the same
time.
(f) Notwithstanding the foregoing, all communications or notices to
the Indenture Trustee shall be deemed to be given only when received by a
Responsible Officer of the Indenture Trustee.
Section 12.02. [Reserved for Potential Future Use]
Section 12.03. [Reserved for Potential Future Use]
Section 12.04. Rules by Indenture Trustee and Agents. The Indenture
Trustee may make reasonable rules for action by or a meeting of the Holders.
The Paying Agent or Registrar may make reasonable rules and set reasonable
requirements for its functions.
Section 12.05. Non-Business Days. If a payment date is not a
Business Day at a place of payment, payment may be made at such place on the
next succeeding day that is a Business Day, and no interest shall accrue for the
intervening period.
Section 12.06. GOVERNING LAW. THIS INDENTURE AND THE CERTIFICATES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ILLINOIS WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PROVISIONS OF THE STATE
OF ILLINOIS.
Section 12.07. No Recourse Against Others. No director, officer,
employee or stockholder, as such, of the Company, the Owner Trustee or the Owner
Participant, as the case may be, shall have any liability for any obligations of
the Company, the Owner Trustee or the Owner Participant, as the case may be,
under this Indenture or for any claim based on, in respect of or by reason of
such obligations or their creation. Each Holder by
Indenture-67 (1995 777 C)
accepting a Certificate waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Certificates.
Section 12.08. Execution in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original but
such counterparts shall together constitute but one instrument.
ARTICLE 13
ACTIONS TO BE TAKEN UPON TERMINATION OF LEASE
Section 13.01. Actions to Be Taken upon Termination of Lease. Upon
any of:
(a) the voluntary termination of the Lease by the Company pursuant to
Section 9(a)(2) thereof on the Lease Termination Date, and upon payment to
the Indenture Trustee of an amount equal to the Redemption Price of all
Outstanding Certificates,
(b) the purchase of the Aircraft by the Company at its option pursuant
to Section 19(b)(1) of the Lease on the EBO Date or pursuant to Section
9(b) of the Lease on the date specified in the notice given by the Company
pursuant to Section 9(a)(3), as the case may be (unless the Company shall
have elected to assume all of the rights and obligations of the Owner
Trustee hereunder as provided for in Section 8(l) of the Participation
Agreement), and upon payment to the Indenture Trustee of an amount equal to
the Redemption Price as at the applicable Redemption Date of all
Outstanding Certificates,
(c) the termination of the Lease, on the Lease Loss Payment Date,
following an Event of Loss suffered by the Airframe under circumstances
where the Company does not exercise its option to substitute a Replacement
Airframe therefor pursuant to Section 10(a)(ii) of the Lease, and upon
payment to the Indenture Trustee of an amount equal to the Redemption Price
as at the Redemption Date of all Outstanding Certificates,
(d) the satisfaction, discharge, defeasance and termination of
obligations under this Indenture in accordance with Section 10.01, or
(e) the voluntary termination of the Lease with respect to an Engine
pursuant to Section 10(b) thereof, and upon the payment of Stipulated Loss
Value with respect to such Engine,
Indenture-68 (1995 777 C)
the Lien of this Indenture on the Indenture Estate, in the case of (a), (b), (c)
or (d) above, and on such Engine, in the case of (e) above, shall terminate
(except for the Lien on funds held by the Indenture Trustee to pay the
Certificates and the Lien on amounts due from the Company under the Lease
necessary to pay the Certificates or the Indenture Trustee) and the Indenture
Trustee shall execute such instruments as may be requested by the Company or the
Owner Trustee to evidence such termination.
Indenture-69 (1995 777 C)
IN WITNESS WHEREOF, the Owner Trustee and the Indenture Trustee have
caused this Amended and Restated Trust Indenture and Mortgage to be duly
executed by their respective officers thereunto duly authorized.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not in its
individual capacity, except as expressly
provided herein, but solely as Owner Trustee
By:____________________________________________
Name:
Title:
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION,
as Indenture Trustee
By:_____________________________________________
Name:
Title:
Exhibit A-1 to
Amended and Restated
Trust Indenture and
Mortgage
Form of Series 1995 777 C Installment Certificates
--------------------------------------------------
$_______________ (Original Principal Amount)
SERIES 1995 777 C CERTIFICATE
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Not in its Individual Capacity
but Solely as Owner Trustee Under the
Trust Agreement (1995 777 C)
Dated as of May 1, 1995
Issued in connection with Aircraft N767UA
Leased to
UNITED AIR LINES, INC.
Date of Issuance: _________, 1996 MATURITY DATE
-------------
_______ ,____
INTEREST RATE PER ANNUM: __%
State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, but solely as owner trustee (the
"Owner Trustee") under that certain Trust Agreement (1995 777 C), dated as of
May 1, 1995, between the Owner Trustee in its individual capacity and the
institution referred to therein as the "Owner Participant" (herein as amended
and as such Trust Agreement may be amended or supplemented from time to time
called the "Trust Agreement") for value received, hereby promises to pay to
First Security Bank of Utah, National Association, or registered assigns the
principal sum in dollars equal to the Original Principal Amount specified above
in installments on each Installment Payment Date as provided for herein below
with the final installment due and payable on the Maturity Date specified above
commencing ________, _____ and ending on the date when the principal amount
hereof shall have been paid in full plus interest at the Interest Rate Per Annum
specified above on the Original Principal Amount specified above from time to
time outstanding on each January 30 and July 30. All amounts payable by the
Owner Trustee hereunder and under the Amended and Restated Trust Indenture and
Mortgage (1995 777 C), dated as of January 1, 1996 (as the same may hereafter be
further amended or supplemented from time to time, as the "Indenture", the
defined terms therein not otherwise defined herein being used herein with the
same meanings), by and between the
2
Owner Trustee and First Security Bank of Utah, National Association, as
Indenture Trustee thereunder, shall be made only from the income and proceeds of
the Indenture Estate. Each Holder hereof, by its acceptance of this
Certificate, agrees that (a) it will look solely to the income and proceeds of
the Indenture Estate for payment of such amounts, to the extent available for
distribution to the Holder hereof as provided in the Indenture and (b) none of
the Owner Participant, the Owner Trustee or the Indenture Trustee is or shall be
personally liable to the Holder hereof for any amount payable hereunder or under
the Indenture or, except as provided in the Indenture in the case of the
Indenture Trustee and the Owner Trustee, for any liability under the Indenture.
The interest or Installment Payment Amount (other than that payable on
the Maturity Date hereof) so payable, and punctually paid or duly provided for,
on the applicable Interest Payment Date or Installment Payment Date, as the case
may be, will, as provided in the Indenture, be paid to the Person in whose name
this Certificate (or one or more predecessor Certificates) is registered at the
close of business on the Record Date for payment of such interest or Installment
Payment Amount, which shall be the fifteenth day (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date or
Installment Payment Date, as the case may be. Any such interest or Installment
Payment Amount not so punctually paid or duly provided for shall forthwith cease
to be payable to the registered Holder hereof on the such Record Date (or to the
Person in whose name this Certificate is registered upon issuance) and may be
paid to the Person in whose name this Certificate (or one or more predecessor
Certificates) is registered at the close of business on a special record date
for the payment of such Defaulted Installment or Defaulted Interest to be fixed
by the Indenture Trustee pursuant to Section 2.08 of the Indenture, notice
whereof shall be given to Holders of Certificates entitled thereto not less than
10 days prior to such special record date, or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Certificates may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
Payment of the principal of, premium, if any, and interest on this
Certificate will be made at the principal corporate trust office of the
Indenture Trustee, or the office or agency maintained by the Indenture Trustee
for such purpose, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest and Installment Payment Amounts
(other than that payable on the Maturity Date hereof) may be made at the option
of the Indenture Trustee or the Paying Agent by check mailed to the address of
the Holder entitled thereto as such address shall appear on the Register.
This Certificate shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose unless this Certificate has
been executed on behalf of the Owner Trustee by the manual or facsimile
signature of an authorized officer of the Owner
3
Trustee, and authenticated by the Indenture Trustee by the manual signature of
an authorized officer or signatory of the Indenture Trustee, in each case as
specified in Section 2.02 of the Indenture.
Reference is made to the Indenture and all supplements and amendments
thereto (a copy of which is on file with the Indenture Trustee at its principal
corporate trust office) for a more complete statement of the terms and
provisions thereof, including a statement of the properties thereby conveyed,
pledged and assigned, the nature and extent of the security, the respective
rights thereunder of the Owner Trustee, the Indenture Trustee and the Holders of
the Certificates, and the terms upon which the Certificates are, and are to be,
executed and delivered, as well as for a statement of the terms and conditions
of the trust created by the Indenture, to all of which terms and conditions in
the Indenture each Holder hereof agrees by its acceptance of this Certificate.
As more fully provided in the Indenture, on each Installment Payment
Date, the Holder hereof will receive a payment of principal equal to the
Installment Payment Percentage for such Installment Payment Date as specified on
Exhibit B-1 thereto (provided that, after the occurrence of any partial
redemption or redemption pursuant to clause (ii) of Section 6.01(a) of the
Indenture, the "Installment Payment Percentage" for each Installment Payment
Date subsequent to the applicable Redemption Date shall be redetermined as
provided for in the Indenture) multiplied by the Original Principal Amount of
this Certificate specified above.
As more fully provided in the Indenture, the Certificates are subject
to redemption or partial redemption, on not less than 25 nor more than 60 days'
notice by mail, under the circumstances set forth in the Indenture, at a
redemption price equal to the unpaid principal amount thereof, premium, if any,
plus accrued interest thereon to the Redemption Date.
If an Indenture Event of Default shall occur and be continuing, the
principal amount remaining unpaid of the Certificates may be declared due and
payable in the manner and with the effect provided in the Indenture. If, and
only if, such an event of default constitutes an event of default by the Company
under the Lease, the Indenture Trustee may declare the Lease to be in default,
and may, to the exclusion of the Owner Trustee, exercise one or more of the
remedies of the Owner Trustee provided in the Lease. Such remedies include the
right to repossess and use or operate the Aircraft, to sell or relet the
Aircraft free and clear of the Company's rights and retain the proceeds and to
require the Company to pay as liquidated damages (i) any unpaid Basic Rent plus
an amount equal to the excess of the Stipulated Loss Value of the Aircraft over
the aggregate fair market rental value thereof for the remainder of the term for
the Aircraft, (ii) any unpaid Basic Rent plus the excess of the Stipulated Loss
Value of the Aircraft over the fair market sales value thereof or (iii) if the
4
Aircraft has been sold, any unpaid Basic Rent plus the excess of the Stipulated
Loss Value thereof over the net sales proceeds.
By acceptance of this Certificate, the Holder hereof agrees to be
bound by the provisions of the Participation Agreement applicable to Holders.
The Owner Trustee or the Owner Participant may, in their sole
discretion, in certain circumstances cure any default by the Company under the
Lease arising from the failure of the Company to make any payment of Basic Rent
under the Lease. The Owner Trustee or the Owner Participant may in their sole
discretion in certain circumstances cure any other default by the Company in the
performance of its obligations under the Lease which can be cured by the payment
of money, by making such payment on behalf of the Company.
The right of the Holder of this Certificate to institute action for
any remedy under the Indenture, including the enforcement of payment of any
amount due hereon, is subject to certain restrictions specified in the
Indenture.
The Owner Trustee and the Indenture Trustee will be discharged from
their respective obligations in respect of the Certificates (except for certain
matters, including obligations to register the transfer or exchange of
Certificates, replace stolen, lost or mutilated Certificates, maintain paying
agencies and hold moneys for payment in trust), and the Indenture Trustee may
thereupon cause the release of the Indenture Estate from the lien of the
Indenture, if (a) the Owner Trustee deposits or causes to be deposited
irrevocably with the Indenture Trustee, in trust, money or U.S. Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide money in an amount
sufficient to pay principal of, premium, if any, and interest on the Outstanding
Certificates on the dates such payments are due in accordance with the terms of
such Certificates and (b) certain other conditions are satisfied, including the
publication by the United States Internal Revenue Service of a ruling to the
effect that the deposit and related defeasance would not cause the Holders of
the Certificates to recognize income, gain or loss for Federal income tax
purposes.
As provided in the Indenture, in certain circumstances this
Certificate is transferable, and upon surrender of this Certificate for
registration of transfer at the principal corporate trust office of the
Registrar, or at the office or agency maintained for such purpose, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Registrar duly executed by, the Holder or his attorney duly authorized in
writing, one or more new Certificates of the same maturity and type and of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees.
5
The Certificates are issuable only as registered Certificates. The
Certificates are issuable in denominations of $1,000 and integral multiples
thereof except that one Certificate of each maturity may be in an amount that is
not an integral multiple of $1,000. As provided in the Indenture and subject to
certain limitations therein set forth, Certificates are exchangeable for a like
aggregate principal amount of Certificates of the same maturity and type and of
authorized denominations, as requested by the Holder surrendering the same, upon
presentation thereof for such purpose at the principal corporate trust office of
the Registrar, or at an office or agency maintained for such purpose.
No service charge shall be made for any such registration of transfer
or exchange, but the Registrar may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this
Certificate, the Owner Trustee, the Indenture Trustee, the Paying Agent, the
Registrar and the Company may deem and treat the person in whose name this
Certificate is registered as the absolute owner hereof for the purpose of
receiving payment of the principal of and interest on this Certificate and for
all other purposes whatsoever whether or not this Certificate be overdue, and
neither the Owner Trustee, the Indenture Trustee, the Paying Agent, the
Registrar nor the Company shall be affected by notice to the contrary.
AS PROVIDED IN THE INDENTURE, THE INDENTURE AND THIS CERTIFICATE SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
ILLINOIS WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PROVISIONS OF THE STATE
OF ILLINOIS.
IN WITNESS WHEREOF, the Owner Trustee has caused this instrument to be
duly executed.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not in its
individual capacity, but solely as Owner
Trustee
By:_____________________________________________
Title:
6
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Indenture.
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION,
as Indenture Trustee
By:____________________________________________
Authorized officer or signatory
Exhibit A-2 to
Amended and Restated
Trust Indenture and
Mortgage
Form of Series 1995 777 C Serial Certificates
---------------------------------------------
$_________ (Original Principal Amount) No. _____
SERIES 1995 777 C CERTIFICATE
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Not in its Individual Capacity
but Solely as Owner Trustee Under the
Trust Agreement (1995 777 C)
Dated as of May 1, 1995
Issued in connection with Aircraft N767UA
Leased to
UNITED AIR LINES, INC.
Date of Issuance: _________, 1996 MATURITY DATE
-------------
_______ , ____
INTEREST RATE PER ANNUM: ____%
State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, but solely as owner trustee (the
"Owner Trustee") under that certain Trust Agreement (1995 777 C), dated as of
May 1, 1995, between the Owner Trustee in its individual capacity and the
institution referred to therein as the "Owner Participant" (herein as such Trust
Agreement may be amended or supplemented from time to time called the "Trust
Agreement"), for value received, hereby promises to pay to First Security Bank
of Utah, National Association, or registered assigns the principal sum in
dollars equal to the Original Principal Amount specified above on the Maturity
Date specified above from time to time outstanding in respect of the period
commencing _________, ____ and ending on the date when the principal amount
hereof shall have been paid in full, payable on each January 30 and July 30 of
each year, commencing _________, 1996. All amounts payable by the Owner Trustee
hereunder and under the Amended and Restated Trust Indenture and
2
Mortgage (1995 777 C), dated as of January 1, 1996 (as the same may hereafter be
further amended or supplemented from time to time, as the "Indenture", the
defined terms therein not otherwise defined herein being used herein with the
same meanings), by and between the Owner Trustee and First Security Bank of
Utah, National Association, as Indenture Trustee thereunder, shall be made only
from the income and proceeds of the Indenture Estate. Each Holder hereof, by
its acceptance of this Certificate, agrees that (a) it will look solely to the
income and proceeds of the Indenture Estate for payment of such amounts, to the
extent available for distribution to the Holder hereof as provided in the
Indenture and (b) none of the Owner Participant, the Owner Trustee or the
Indenture Trustee is or shall be personally liable to the Holder hereof for any
amount payable hereunder or under the Indenture or, except as provided in the
Indenture in the case of the Indenture Trustee and the Owner Trustee, for any
liability under the Indenture.
The interest so payable and punctually paid or duly provided for, on
the applicable Interest Payment Date will, as provided in the Indenture, be paid
to the Person in whose name this Certificate (or one or more predecessor
Certificates) is registered at the close of business on the Record Date for
payment of such interest, which shall be the fifteenth day (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for shall forthwith
cease to be payable to the registered Holder hereof on the such Record Date (or
to the Person in whose name this Certificate is registered upon issuance) and
may be paid to the Person in whose name this Certificate (or one or more
predecessor Certificates) is registered at the close of business on a special
record date for the payment of such Defaulted Interest to be fixed by the
Indenture Trustee pursuant to Section 2.08 of the Indenture, notice whereof
shall be given to Holders of Certificates entitled thereto not less than 10 days
prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Certificates may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture.
Payment of the principal of, premium if any, and interest on this
Certificate will be made at the principal corporate trust office of the
Indenture Trustee, or the office or agency maintained by the Indenture Trustee
for such purpose in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
Indenture Trustee or the Paying Agent by check mailed to the address of the
Holder entitled thereto as such address shall appear on the Register.
This Certificate shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose unless this Certificate has
been executed on behalf of the Owner Trustee by the manual or facsimile
signature of an authorized officer of the Owner Trustee, and authenticated by
the Indenture Trustee by the manual signature of an authorized
3
officer or signatory of the Indenture Trustee, in each case as specified in
Section 2.02 of the Indenture.
Reference is made to the Indenture and all supplements and amendments
thereto (a copy of which is on file with the Indenture Trustee at its principal
corporate trust office) for a more complete statement of the terms and
provisions thereof, including a statement of the properties thereby conveyed,
pledged and assigned, the nature and extent of the security, the respective
rights thereunder of the Owner Trustee, the Indenture Trustee and the Holders of
the Certificates, and the terms upon which the Certificates are, and are to be,
executed and delivered, as well as for a statement of the terms and conditions
of the trust created by the Indenture, to all of which terms and conditions in
the Indenture each Holder hereof agrees by its acceptance of this Certificate.
As more fully provided in the Indenture, the Certificates are subject
to redemption or partial redemption, on not less than 25 nor more than 60 days'
notice by mail, under the circumstances set forth in the Indenture, at a
redemption price equal to the unpaid principal amount thereof, premium, if any,
plus accrued interest thereon to the Redemption Date.
If an Indenture Event of Default shall occur and be continuing, the
principal of the Certificates may be declared due and payable in the manner and
with the effect provided in the Indenture. If, and only if, such an event of
default constitutes an event of default by the Company under the Lease, the
Indenture Trustee may declare the Lease to be in default, and may, to the
exclusion of the Owner Trustee, exercise one or more of the remedies of the
Owner Trustee provided in the Lease. Such remedies include the right to
repossess and use or operate the Aircraft, to sell or relet the Aircraft free
and clear of the Company's rights and retain the proceeds and to require the
Company to pay as liquidated damages (i) any unpaid Basic Rent plus an amount
equal to the excess of the Stipulated Loss Value of the Aircraft over the
aggregate fair market rental value thereof for the remainder of the term for the
Aircraft, (ii) any unpaid Basic Rent plus the excess of the Stipulated Loss
Value of the Aircraft over the fair market sales value thereof or (iii) if the
Aircraft has been sold, any unpaid Basic Rent plus the excess of the Stipulated
Loss Value thereof over the net sales proceeds.
By acceptance of this Certificate, the Holder hereof agrees to be
bound by the provisions of the Participation Agreement applicable to Holders.
The Owner Trustee or the Owner Participant may, in their sole
discretion, in certain circumstances cure any default by the Company under the
Lease arising from the failure of the Company to make any payment of Basic Rent
under the Lease. The Owner Trustee or the Owner Participant may in their sole
discretion in certain circumstances cure any other default by the Company in the
performance of its obligations under the Lease
4
which can be cured by the payment of money, by making such payment on behalf of
the Company.
The right of the Holder of this Certificate to institute action for
any remedy under the Indenture, including the enforcement of payment of any
amount due hereon, is subject to certain restrictions specified in the
Indenture.
The Owner Trustee and the Indenture Trustee will be discharged from
their respective obligations in respect of the Certificates (except for certain
matters, including obligations to register the transfer or exchange of
Certificates, replace stolen, lost or mutilated Certificates, maintain paying
agencies and hold moneys for payment in trust), and the Indenture Trustee may
thereupon cause the release of the Indenture Estate from the lien of the
Indenture, if (a) the Owner Trustee deposits or causes to be deposited
irrevocably with the Indenture Trustee, in trust, money or U.S. Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide money in an amount
sufficient to pay principal of, premium, if any, and interest on the Outstanding
Certificates on the dates such payments are due in accordance with the terms of
such Certificates and (b) certain other conditions are satisfied, including the
publication by the United States Internal Revenue Service of a ruling to the
effect that the deposit and related defeasance would not cause the Holders of
the Certificates to recognize income, gain or loss for Federal income tax
purposes.
As provided in the Indenture, in certain circumstances this
Certificate is transferable, and upon surrender of this Certificate for
registration of transfer at the principal corporate trust office of the
Registrar, or at the office or agency maintained for such purpose, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Registrar duly executed by, the Holder or his attorney duly authorized in
writing, one or more new Certificates of the same maturity and type and of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates. The
Certificates are issuable in denominations of $1,000 and integral multiples
thereof except that one Certificate of each maturity may be in an amount that is
not an integral multiple of $1,000. As provided in the Indenture and subject to
certain limitations therein set forth, Certificates are exchangeable for a like
aggregate principal amount of Certificates of the same maturity and type and of
authorized denominations, as requested by the Holder surrendering the same, upon
presentation thereof for such purpose at the principal corporate trust office of
the Registrar, or at an office or agency maintained for such purpose.
5
No service charge shall be made for any such registration of transfer
or exchange, but the Registrar may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this
Certificate, the Owner Trustee, the Indenture Trustee, the Paying Agent, the
Registrar and the Company may deem and treat the person in whose name this
Certificate is registered as the absolute owner hereof for the purpose of
receiving payment of the principal of and interest on this Certificate and for
all other purposes whatsoever whether or not this Certificate be overdue, and
neither the Owner Trustee, the Indenture Trustee, the Paying Agent, the
Registrar nor the Company shall be affected by notice to the contrary.
6
AS PROVIDED IN THE INDENTURE, THE INDENTURE AND THIS CERTIFICATE SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
ILLINOIS WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PROVISIONS OF THE STATE
OF ILLINOIS.
IN WITNESS WHEREOF, the Owner Trustee has caused this instrument to be
duly executed.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not in its
individual capacity, but solely as Owner
Trustee
By:_____________________________________________
Title:
7
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Indenture.
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION,
as Indenture Trustee
By:____________________________________________
Authorized officer or signatory
Exhibit B to
Amended and Restated
Trust Indenture and
Mortgage
MATURITY DATES, PRINCIPAL AMOUNTS AND INTEREST
----------------------------------------------
RATES OF SERIES 1995 777 C CERTIFICATES
---------------------------------------
MATURITY PRINCIPAL INTEREST RATE
DATE AMOUNT PER ANNUM
-------- --------- --------------
Series 1995 777 C1 $ ___%
Series 1995 777 C2 $ ___%
Exhibit B-1 to
Amended and Restated
Trust Indenture and
Mortgage
Installment Payment Dates and Installment Payment Percentages
-------------------------------------------------------------
Installment Certificates shall be those
Certificates with the following Maturity Dates:
Installment Certificate No. 1 - Maturity Date:
Corresponding
Installment Payment Installment Payment Aggregate Installment
Date Percentage Payment Amount
--------------------- -------------------- ---------------------
TOTAL ________% $
B-1-2
Installment Certificate No. 2 - Maturity Date:
Corresponding
Installment Payment Installment Payment Aggregate Installment
Date Percentage Payment Amount
--------------------- -------------------- ---------------------
TOTAL %
Exhibit B-2 to
Amended and
Restated
Trust Indenture and
Mortgage
Issuance of Series 1995 777 C Certificates
------------------------------------------
The Series 1995 777 C Certificates issued hereunder shall be issued to
and shall be payable to each of the Pass Through Trustees under the Pass Through
Trust Agreements with respect to the grantor trusts created thereby, in each
case as set forth below:
1996-A1 Trust:
___% Certificate due _____, ____
1996-A2 Trust:
___% Certificate due _____, ____
[Trust Indenture and Mortgage (1995 777 C)]
Exhibit C to
Amended and Restated
Trust Indenture and
Mortgage
SUPPLEMENT TO THE TRUST AGREEMENT AND
THE AMENDED AND RESTATED TRUST INDENTURE AND MORTGAGE
(1995 777 C)
This SUPPLEMENT TO THE TRUST AGREEMENT AND THE AMENDED AND RESTATED
TRUST INDENTURE AND MORTGAGE (1995 777 C), dated as of January 1, 1996 (herein
called the "Trust Supplement") of STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not in its individual capacity, but solely as
Owner Trustee (herein called the "Owner Trustee"), under the Trust Agreement
(1995 777 C), dated as of May 1, 1995 (herein called the "Trust Agreement"),
between the Owner Trustee and the Owner Participant named therein.
WITNESSETH:
WHEREAS, the Trust Agreement provides for the execution and delivery
of one or more supplements thereto substantially in the form hereof, which shall
particularly describe the Aircraft (such term and other terms defined in the
Indenture referred to below used herein as therein defined) included in the
property covered by the Trust Agreement;
WHEREAS, State Street Bank and Trust Company of Connecticut, National
Association, as Owner Trustee (herein called the "Owner Trustee"), and First
Security Bank of Utah, National Association, as Indenture Trustee (herein called
the "Original Indenture Trustee"), have entered into that certain Trust
Indenture and Security Agreement (1995 777 C), dated as of May 1, 1995 (the
"Original Trust Indenture"), which Original Trust Indenture was recorded with
the Federal Aviation Administration on May 31, 1995 under Conveyance No. P02548,
as amended and restated by the Amended and Restated Trust Indenture and Mortgage
(1995 777 C), dated as of January 1, 1996 (the "Indenture"), which provides for
the execution and delivery of a supplement thereto substantially in the form
hereof, which shall particularly describe the Aircraft, and shall specifically
mortgage such Aircraft to the Indenture Trustee; and
WHEREAS, each of the Trust Agreement and the Indenture relates to the
Airframe and Engines described below, and a counterpart of the Indenture is
attached hereto and made a part hereof and this Trust Supplement, together with
such counterpart of the
C-2
[Trust Indenture and Mortgage (1995 777 C)]
Indenture, is being filed for recordation on the date hereof with the Federal
Aviation Administration as one document;
NOW, THEREFORE, this Trust Supplement Witnesseth, that the Owner
Trustee hereby confirms that the Lien of the Indenture over the Indenture Estate
includes the following described property:
AIRFRAME
One Airframe Identified as follows:
FAA
Registration Manufacturer's
Manufacturer Model Number Serial Number
------------ ----- ------ -------------
The Boeing Company 777-222 N767UA 26918
together with all Parts which are from time to time incorporated or installed in
or attached thereto or which have been removed therefrom but where title to
which remains vested in the Owner Trustee in accordance with the Lease.
AIRCRAFT ENGINES
Two aircraft engines, each such engine having 750 or more rated take-
off horsepower or the equivalent thereof, whether or not such engines shall be
installed in or attached to the Airframe or any other airframe identified as
follows:
Manufacturer's
Manufacturer Model Serial Number
------------ ----- --------------
▇▇▇▇▇ & ▇▇▇▇▇▇▇ PW4077 P777020
▇▇▇▇▇ & ▇▇▇▇▇▇▇ PW4077 P777024
together with all Parts which are from time to time incorporated or installed in
or attached thereto or which have been removed therefrom but where title to
which remains vested in the Owner Trustee in accordance with the Lease.
As further security for the obligations referred to above and secured
by the Indenture and hereby, the Owner Trustee hereby confirms that the Lien of
the Indenture over the Indenture Estate includes the Lease Supplement of even
date herewith covering the property described above.
C-3
[Trust Indenture and Mortgage (1995 777 C)]
Notwithstanding any provision hereof, no Excluded Payment shall
constitute security for any of the aforementioned obligations.
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, for the equal and proportionate
benefit and security of holders from time to time of the Certificates
outstanding, without any preference, distinction or priority of any one
Certificate over any other by reason of series, priority of time of issue, sale,
negotiation, date of maturity thereof or otherwise for any reason whatsoever,
and for the uses and purposes and subject to the terms and provisions set forth
in the Indenture.
This Trust Supplement shall be construed as Supplemental to the
Indenture and to the Trust Agreement and shall form a part of each, and the
Trust Agreement and the Indenture are each hereby incorporated by reference
herein and each is hereby ratified, approved and confirmed.
* * *
[Trust Indenture and Mortgage (1995 777 C)]
IN WITNESS WHEREOF, the Owner Trustee has caused this Trust Supplement
to be duly executed by one of its officers, thereunto duly authorized, on the
day and year first above written.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Owner Trustee
By:_____________________________________
Title:
S&S DRAFT
1/27/96
===============================================================================
AMENDED AND RESTATED
TRUST INDENTURE AND MORTGAGE
(1994 747 B)
Dated as of January 1, 1996
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity except as expressly set forth herein,
but solely as Owner Trustee,
and
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION,
as Indenture Trustee
One Boeing 747-451 Aircraft N106UA
United Air Lines, Inc.
Series 1994 747 B Certificates
===============================================================================
TABLE OF CONTENTS
-----------------
Page
----
RECITALS........................................................... 1
GRANTING CLAUSE.................................................... 2
HABENDUM CLAUSE.................................................... 5
ARTICLE 1 DEFINITIONS............................................ 7
1.01. Definitions............................................ 7
ARTICLE 2 THE CERTIFICATES........................................ 20
2.01. Certificates; Title and Terms.......................... 20
2.02. Execution and Authentication........................... 21
2.03. Registrar and Paying Agent............................. 21
2.04. Transfer and Exchange.................................. 22
2.05. Holder Lists; Ownership of Certificates................ 22
2.06. Mutilated, Destroyed, Lost or Stolen Certificates...... 23
2.07. Cancellation........................................... 23
2.08. Payment on Certificates; Defaulted Principal
and Interest.......................................... 23
2.09. Payment from Indenture Estate Only;
Non-Recourse Obligations.............................. 25
2.10. Execution, Delivery and Dating of
Certificates upon Original Issuance................... 26
ARTICLE 3 RECEIPT, DISTRIBUTION
AND APPLICATION
OF FUNDS IN THE INDENTURE ESTATE................................... 26
3.01. [Reserved for Potential Future Use].................... 26
3.02. Payment in Case of Redemption or Purchase
of Certificates....................................... 26
3.03. Application of Rent When No Indenture Event
of Default Is Continuing.............................. 27
3.04. Application of Certain Payments in Case of
Requisition or Event of Loss.......................... 27
3.05. Payments During Continuance of Indenture
Event of Default...................................... 28
3.06. Payments for Which Application Is Provided
in Other Documents.................................... 29
3.07. Payments for Which No Application Is
Otherwise Provided.................................... 29
ARTICLE 4 COVENANTS OF OWNER TRUSTEE.............................. 30
4.01. Covenants of the Owner Trustee......................... 30
ii
ARTICLE 5 DISPOSITION, SUBSTITUTION AND RELEASE
OF PROPERTY INCLUDED IN THE INDENTURE ESTATE DURING
CONTINUATION OF LEASE.................................... 31
5.01. Disposition, Substitution and Release of Property
Included in the Indenture Estate During
Continuation of Lease................................... 31
ARTICLE 6 REDEMPTION OF CERTIFICATES................................ 32
6.01. Redemption of Certificates upon Certain
Events.................................................. 32
6.02. Redemption or Purchase of Certificates upon
Certain Indenture Events of Default..................... 34
6.03. Notice of Redemption to Holders.......................... 35
6.04. Deposit of Redemption Price.............................. 35
6.05. Certificates Payable on Redemption Date.................. 35
ARTICLE 7 MATTERS CONCERNING THE COMPANY............................ 36
7.01. Repayment of Monies for Certificate Payments Held
by the Indenture Trustee................................ 36
7.02. Change in Registration................................... 36
7.03. Assumption of Obligations of Owner Trustee
by the Company.......................................... 37
ARTICLE 8 DEFAULTS AND REMEDIES..................................... 39
8.01. Indenture Events of Default.............................. 39
8.02. Acceleration; Rescission and Annulment................... 42
8.03. Other Remedies Available to Indenture
Trustee................................................. 43
8.04. Waiver of Owner Trustee.................................. 50
8.05. Waiver of Existing Defaults.............................. 50
8.06. Control by Majority...................................... 51
8.07. Limitation on Suits by Holders........................... 51
8.08. Rights of Holders to Receive Payment..................... 52
8.09. Indenture Trustee May File Proofs of Claim............... 52
ARTICLE 9 INDENTURE TRUSTEE......................................... 52
9.01. Duties of Indenture Trustee.............................. 52
9.02. Rights of Indenture Trustee.............................. 52
9.03. Individual Rights of Indenture Trustee................... 53
9.04. Funds May Be Held by Indenture Trustee or
Paying Agent; Investments............................... 53
9.05. Notice of Defaults....................................... 54
9.06. Compensation and Indemnity............................... 54
9.07. Replacement of Indenture Trustee......................... 55
9.08. Successor Indenture Trustee, Agents by
▇▇▇▇▇▇, etc............................................. 56
iii
9.09. Eligibility; Disqualification............................ 57
9.10. Trustee's Liens.......................................... 57
9.11. Withholding Taxes; Information Reporting................. 57
ARTICLE 10 SATISFACTION AND DISCHARGE; DEFEASANCE;
TERMINATION OF OBLIGATIONS........................................... 58
10.01. Satisfaction and Discharge of Agreement;
Defeasance; Termination of Obligations................. 58
10.02. Survival of Certain Obligations......................... 60
10.03. Monies to Be Held in Trust.............................. 60
10.04. Monies to Be Returned to Owner Trustee.................. 60
ARTICLE 11 AMENDMENTS AND WAIVERS................................... 60
11.01. Amendments to this Indenture Without
Consent of Holders..................................... 60
11.02. Amendments to this Indenture with Consent
of Holders............................................. 61
11.03. Revocation and Effect of Consents....................... 62
11.04. Notation on or Exchange of Certificates................. 62
11.05. Indenture Trustee Protected............................. 63
11.06. Amendments, Waivers, etc. of Other
Operative Documents.................................... 63
ARTICLE 12 MISCELLANEOUS............................................ 66
12.01. Notices................................................. 66
12.02. [Reserved for Potential Future Use]..................... 68
12.03. [Reserved for Potential Future Use]..................... 68
12.04. Rules by Indenture Trustee and Agents................... 68
12.05. Non-Business Days....................................... 68
12.06. GOVERNING LAW........................................... 68
12.07. No Recourse Against Others.............................. 68
12.08. Execution in Counterparts............................... 69
ARTICLE 13 ACTIONS TO BE TAKEN UPON TERMINATION OF LEASE............ 69
13.01. Actions to Be Taken upon Termination of Lease........... 69
SIGNATURES........................................................... 71
iv
Exhibit A-1 Form of Series 1994 747 B Installment Certificates
Exhibit A-2 Form of Series 1994 747 B Serial Certificates
Exhibit B Maturity Dates, Principal Amounts and Interest Rates of
Series 1994 747 B Certificates
Exhibit B-1 Installment Payment Dates and Installment Payment Percentages
Exhibit B-2 Issuance of Series 1994 747 B Certificates
Exhibit C Form of Supplement to the Trust Agreement and Amended and
Restated Trust Indenture and Mortgage
AMENDED AND RESTATED
TRUST INDENTURE AND MORTGAGE (1994 747 B)
This AMENDED AND RESTATED TRUST INDENTURE AND MORTGAGE (1994 747 B), dated
as of January 1, 1996 and effective as of the Effective Date, between STATE
STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national
banking association, not in its individual capacity except as otherwise
expressly provided herein, but solely as Owner Trustee under the Trust Agreement
(capitalized terms used herein having the respective meanings specified therefor
in Article 1), and FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION, a national
banking association, as Indenture Trustee hereunder.
W I T N E S S E T H:
-------------------
WHEREAS, the Owner Participant and the Owner Trustee in its individual
capacity have entered into the Trust Agreement whereby, among other things, (i)
the Owner Trustee has established a certain trust for the use and benefit of the
Owner Participant, subject, however, to the Indenture Estate created pursuant
hereto for the use and benefit of, and with the priority of payment to, the
holders of the Certificates issued hereunder, and (ii) the Owner Trustee has
been authorized and directed pursuant to the Redemption and Refinancing
Agreement to execute and deliver this Amended and Restated Trust Indenture and
Mortgage;
WHEREAS, all capitalized terms used herein shall have the respective
meanings set forth or referred to in Article 1;
WHEREAS, the Owner Trustee and the Indenture Trustee entered into that
certain Trust Indenture and Security Agreement (1994 747 B), dated as of August
1, 1994 (the "Original Indenture"), which Original Indenture was recorded with
the Federal Aviation Administration on August 8, 1994 and was assigned
Conveyance No. Y39808;
WHEREAS, the parties desire by this 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 Series 1994 747 B Certificates
evidencing the loans made by the Pass Through Trustees to finance the Owner
Trustee's payment of Lessor's Cost, as provided in the Redemption and
Refinancing Agreement, and (iii) to provide for the assignment, mortgage and
pledge by the Owner Trustee to the Indenture Trustee, as part of the Indenture
Estate hereunder, among other things, of certain of the Owner Trustee's right,
title and interest in and to the Aircraft and the Operative Documents and
certain payments and other amounts received hereunder or thereunder in
accordance with the terms hereof, as security
Indenture-2 (1994 747 B)
for, among other things, the Owner Trustee's obligations to the Indenture
Trustee, for the ratable benefit and security of the Holders;
WHEREAS, all things have been done to make the Certificates, when executed
by the Owner Trustee and authenticated and delivered by the Indenture Trustee
hereunder, the valid, binding and enforceable obligations of the Owner Trustee;
and
WHEREAS, all things necessary to make this Indenture the legal, valid and
binding obligation of the Owner Trustee and the Indenture 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 TRUST INDENTURE AND MORTGAGE WITNESSETH, that, to
secure the prompt payment of the principal of, premium, if any, and interest on,
and all other amounts due with respect to, all Certificates from time to time
Outstanding and the performance and observance by the Owner Trustee of all the
agreements, covenants and provisions contained herein and in the Operative
Documents to which it is a party, for the benefit of the 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 Certificates by the Holders, and of other good and valuable
consideration the receipt and adequacy whereof are 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 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 (which collectively, including all property
hereafter specifically subjected to the lien of this Indenture by any instrument
supplemental hereto, but excluding the Excluded Payments, are herein called the
"Indenture Estate"):
(1) the Airframe and Engines (each such Engine having 750 or more
rated take-off horsepower or the equivalent thereof) and all replacements
thereof and substitutions therefor in which the Owner Trustee shall from
time to time acquire an interest in accordance with the Lease, as more
particularly described in the Trust Supplement and the Lease Supplement
executed and delivered with respect to the Aircraft or any such
replacements or substitutions therefor, as provided in this Indenture and
the Lease;
Indenture-3 (1994 747 B)
(2) the Lease and all Rent thereunder, including, without limitation,
all amounts of Basic Rent, Supplemental Rent, and payments of any kind
required to be made by the Company thereunder; all amounts payable to the
Owner Trustee under the Participation Agreement that do not constitute
Excluded Payments; the Purchase Agreement (to the extent assigned by the
Owner Trustee's Purchase Agreement), the Owner Trustee's Purchase
Agreement, the Owner Trustee's Bill of Sale, the Owner Trustee's FAA Bill
of Sale and any and all contracts relating to the Airframe and Engines or
any rights or interest therein to which the Owner Trustee is now or may
hereafter be a party; in each case including, without limitation, all
rights of the Owner Trustee to receive any payments or other amounts or to
exercise any election or option or to make any decision or determination or
to give or receive 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 Aircraft or any part thereof, as well as all
the rights, powers and remedies on the part of the Owner Trustee, whether
acting under any such document or by statute or at law or in equity, or
otherwise, arising out of any Lease Event of Default (other than the rights
of the Owner Trustee provided for hereunder);
(3) all rents, issues, profits, revenues and other income of the
property subjected or required to be subjected to the Lien of this
Indenture;
(4) all requisition proceeds with respect to the Aircraft or any part
thereof (to the extent of the Owner Trustee's interest therein pursuant to
the terms of the Lease) and all insurance proceeds with respect to the
Aircraft or any part thereof from insurance required to be maintained by
the Company under Section 11 of the Lease, but excluding any insurance
maintained by the Company and not required under Section 11 of the Lease;
(5) 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; and
(6) all proceeds of the foregoing.
Notwithstanding the foregoing provisions:
(a) there shall be excluded from the security interest granted by this
Indenture all Excluded Payments;
(b) (i) whether or not a Lease Event of Default or an Indenture Event
of Default shall occur and be continuing, the Owner Trustee and the Owner
Participant
Indenture-4 (1994 747 B)
shall at all times retain the right, to the exclusion of the Indenture
Trustee (a) to Excluded Payments and to commence an action at law to obtain
such Excluded Payments, (b) to adjust Basic Rent, Supplemental Rent (except
to the extent such Supplemental Rent relates to premium payable on the
Certificates) and the percentages relating to Stipulated Loss Value and
Termination Value and the EBO Percentage as provided in Section 3(c) of the
Lease and Section 18 of the Participation Agreement, (c) to exercise any
election or option to make any decision or determination, or to give or
receive any notice, consent, waiver or approval, or to take any other
action in respect of, but in each case only to the extent relating to,
Excluded Payments, (d) to retain the rights of the "Lessor" with respect to
solicitations of bids, and the election to retain the Aircraft pursuant to
Section 9 of the Lease, (e) to exercise the right of "Lessor" to determine
the fair market rental value or fair market sales value pursuant to Section
19 of the Lease, (f) to exercise all rights with respect to insurance
maintained for its own account which Section 11(e) of the Lease
specifically confers on the "Lessor" and (g) to exercise, to the extent
necessary to enable it to exercise its rights under Section 8.03(e)(i), the
rights of the "Lessor" under Section 21 of the Lease;
(ii) whether or not a Lease Event of Default or Indenture Event of
Default shall occur and be continuing, the Owner Trustee and the Indenture
Trustee shall each have the right separately but not to the exclusion of
the other, (a) to receive from the Company all notices, certificates,
reports, filings, opinions of counsel, copies of all documents and all
information which the Company is permitted or required to give or furnish
to the "Lessor" pursuant to the Lease or to the Owner Trustee pursuant to
any other Operative Document, (b) to exercise inspection rights pursuant to
Section 12 of the Lease, (c) to maintain separate insurance pursuant to
Section 11(e) of the Lease and to retain all rights with respect to such
insurance maintained for its own account, (d) to give any notice of default
under Section 15 of the Lease and to declare the Lease in default in
respect thereof, (e) to cause the Company to take any action and execute
and deliver such documents and assurances as the "Lessor" may from time to
time reasonably request pursuant to Section 16 of the Lease, (f) to consent
(with the concurrent consent of the other such party to the extent such
consent is required) to changes to the list of countries on Exhibit F or G
to the Lease and (g) to purchase Parts pursuant to Section 5(e) of the
Lease;
(iii) so long as no Indenture Event of Default shall have occurred
and be continuing (but subject to the provisions of Section 11.06), the
Owner Trustee shall retain the right, to the exclusion of the Indenture
Trustee, to exercise the following rights of the "Lessor" under the Lease:
(a) the right to approve as satisfactory any accountants, engineers or
counsel to render services for or issue opinions to the Owner Trustee
pursuant to express provisions of the Operative Documents, (b) the right to
waive the opinion required pursuant to Section 8(e)(ii)(C) of the
Participation
Indenture-5 (1994 747 B)
Agreement, (c) in connection with an Event of Loss relating only to one or
more Engines, the right to elect (or not to elect) under Section 10(b) of
the Lease to require the Company to pay the amounts set forth in clauses
(A) and (B) of such Section 10(b), (d) the right to exercise all rights of
the "Lessor" upon the return of the Aircraft under Section 5 of the Lease,
and (e) the right to exercise all rights of the Lessor under Section 19 of
the Lease (except with respect to Section 19(b)(1)) with respect to the
retention by the Company of the Aircraft or the exercise by the Company of
the Company''s renewal and purchase options;
(c) the leasehold interest granted to the Company by the Lease shall
not be subject to the security interest granted by this Indenture, and
nothing in this Indenture shall affect the rights of the Company under the
Lease so long as no Lease Event of Default has occurred and is continuing;
and
(d) as between the Owner Trustee and the Indenture Trustee, nothing
contained in this Granting Clause shall prevent the Owner Trustee, as the
"Lessor" under the Lease, from seeking specific performance of the
covenants of the Company under the Lease relating to the protection,
insurance, maintenance, possession and use of the Aircraft and from
maintaining separate insurance with respect to the Aircraft to the extent
permitted by Section 11 of the Lease.
[RIDER 5B OPEN]
None of the payments and rights described in the foregoing clauses (a)
through (d) shall be included in the Indenture Estate.
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 Indenture Trustee and the Holders from time to time, without any
priority of any one Certificate over any other, and for the uses and purposes
and subject to the terms and provisions set forth in this Indenture.
1. The Owner Trustee agrees that this Indenture creates and grants
and is intended to and shall create and grant a security interest in the
Aircraft to the Indenture Trustee, which security interest attached on the
Delivery Date. The security interest created by this Indenture and granted to
the Indenture Trustee hereunder in the Indenture Estate other than in the
Aircraft attached upon the delivery of the Original Indenture.
Indenture-6 (1994 747 B)
2. It is expressly agreed that anything herein contained to the
contrary notwithstanding, the Owner Trustee shall remain liable under each of
the Operative Documents to which it is a party to perform all of its obligations
assumed by it thereunder, all in accordance with and pursuant to the terms and
provisions thereof, and the Indenture Trustee and the Holders shall have no
obligation or liability under any of the Operative Documents to which the Owner
Trustee is a party by reason of or arising out of the assignment hereunder, nor
shall the Indenture Trustee (except as to the Indenture Trustee, if the
Indenture Trustee shall have become the "Lessor" under the Lease) or the Holders
be required or obligated in any manner to perform or fulfill any obligations of
the Owner Trustee under any of the Operative Documents to which the Owner
Trustee is a party, 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.
3. 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) subject to the terms and
conditions of this Indenture, to ask, require, demand, receive, compound and
give acquittance for any and all moneys and claims for moneys due and to become
due to the Owner Trustee (other than Excluded Payments) under or arising out of
the Lease (subject to Section 11.06(b)(1)), the Purchase Agreement and the Owner
Trustee's Purchase Agreement, to endorse any checks or other instruments or
orders in connection therewith and, to file any claims or take any action or
institute any proceedings which the Indenture Trustee may deem to be necessary
or advisable in the premises. The Owner Trustee has directed the Company to
make all payments of Rent (other than Excluded Payments) payable to the Owner
Trustee by the Company and all other amounts which are required to be paid to or
deposited with the Owner Trustee pursuant to the Lease directly to the Indenture
Trustee at such address as the Indenture Trustee shall specify, for application
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 Indenture Estate, for
distribution by the Indenture Trustee pursuant to this Indenture, except that
the Owner Trustee shall accept for distribution pursuant to the Trust Agreement
any amounts distributed to it by the Indenture Trustee as expressly provided in
this Indenture and any Excluded Payments.
4. 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; provided, however, that
the Owner Trustee shall have no obligation to execute and deliver or cause to be
executed or delivered to the Indenture Trustee any such instrument or
Indenture-7 (1994 747 B)
document if such execution and delivery would result in the imposition of
additional liabilities on the Owner Trustee or the Owner Participant and would
result in a burden on the Owner Participant's business activities, unless the
Owner Trustee or the Owner Participant, as the case may be, is indemnified to
its reasonable satisfaction against any losses, liabilities and expenses
incurred in connection with such execution and delivery pursuant to any
Operative Document.
5. 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,
so long as the assignment hereunder shall remain in effect, any of its right,
title or interest hereby assigned, to any Person other than the Indenture
Trustee, and that it will not, except as provided in or permitted by this
Indenture, accept any payment from the Company, enter into an agreement amending
or supplementing any of the Operative Documents, execute any waiver or
modification of, or consent under the terms of any of the Operative Documents,
settle or compromise any claim (other than claims in respect of Excluded
Payments) against the Company arising under any of the Operative Documents, or
submit or consent to the submission of any dispute, difference or other matter
arising under or in respect of any of the Operative Documents, to arbitration
thereunder.
IT IS HEREBY FURTHER COVENANTED AND AGREED by and among the parties
hereto as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. (a) For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article 1 have the meanings assigned to
them in this Article 1, and include the plural as well as the singular;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States;
(3) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
Indenture-8 (1994 747 B)
(4) all references in this Indenture to Articles, Sections and
Exhibits refer to Articles, Sections and Exhibits of this Indenture.
(b) For all purposes of this Indenture, the following capitalized
terms have the following respective meanings:
"Actual Knowledge" shall have the meaning specified therefor in the
Lease.
"Affiliate" shall have the meaning specified therefor in the Lease.
"Agent" means any Paying Agent or Registrar.
"Aircraft" shall have the meaning specified therefor in the Lease.
"Airframe" shall have the meaning specified therefor in the Lease.
"Appraiser" means a Person engaged in the business of making
appraisals and, in the case of the Aircraft, familiar with commercial aviation
equipment.
"Bankruptcy Code" means the United States Bankruptcy Reform Act of
1978, as amended from time to time, 11 U.S.C. (S)(S) 101 et seq.
"Basic Rent" shall have the meaning specified therefor in the Lease.
"Business Day" shall have the meaning specified therefor in the Lease.
"Certificate" or "Certificates" means any Certificate issued under
this Indenture, including the Series 1994 747 B Certificates issued hereunder
substantially in the form of Exhibits A-1 and A-2 as such form may be varied
pursuant to the terms hereof and any and all Certificates issued in replacement
or exchange therein in accordance with the provisions hereof.
"Certificate Holder" shall have the meaning specified for the term
"Holder" hereunder.
"Citizen of the United States" shall have the meaning specified
therefor in the Lease.
"Company" means United Air Lines, Inc., a Delaware corporation, and,
subject to the provisions of the Participation Agreement, its permitted
successors and assigns.
Indenture-9 (1994 747 B)
"Company Request" means a written request of the Company executed on
its behalf by a Responsible Company Officer.
"Co-Registrar" shall have the meaning specified therefor in Section
2.03.
"Debt" shall mean 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.
"Defaulted Installment" shall have the meaning specified therefor in
Section 2.08.
"Defaulted Interest" shall have the meaning specified therefor in
Section 2.08.
"Delivery Date" shall have the meaning specified therefor in the
Lease.
"EBO Date" shall have the meaning specified therefor in the Lease.
"Effective Date" shall have the meaning specified therefor in the
Lease.
"Engine" shall have the meaning specified therefor in the Lease.
"Event of Loss" shall have the meaning specified therefor in the
Lease.
"Excluded Payments" means (i) any right, title or interest of the
Owner Trustee in its individual capacity, the Owner Participant or their
respective Affiliates or of their respective successors, permitted assigns,
directors, officers, employees, servants and agents to any payment which by the
terms of Section 7(b) or 7(c) of the Participation Agreement, Section 5.03 or
7.01 of the Trust Agreement or any section of the Tax Indemnity Agreement or any
corresponding payment under Section 3(d) of the Lease is payable to such Person,
(ii) any insurance proceeds payable under insurance maintained by the Owner
Trustee in its individual capacity or the Owner Participant (whether directly or
through the Owner Trustee), or to their respective Affiliates, successors,
permitted assigns, directors, officers, employees, servants and agents, (iii)
any insurance proceeds (or proceeds of governmental indemnities in lieu thereof)
payable to the Owner Trustee in its individual capacity or to the Owner
Participant, or to their respective Affiliates, successors, permitted assigns,
directors, officers, employees, servants and agents, under any liability
insurance maintained by the Company pursuant to Section 11 of the Lease or by
any other Person (or proceeds of governmental indemnities in lieu thereof), (iv)
any rights of the Owner Participant or the Owner Trustee to demand, collect, sue
for, or otherwise receive and enforce payment of the foregoing amounts
(including interest thereon to the extent provided in the applicable provisions
of the Operative Documents) and the right to declare an Event of
Indenture-10 (1994 747 B)
Default under the Lease in respect of any of the foregoing amounts, but not
including the right to exercise any remedies under the Lease except for those
specifically provided for in this clause (iv), (v) if the Company has assumed
the obligations of the Owner Trustee in respect of the Certificates in
accordance with Section 7.03 hereof and Section 8(l) of the Participation
Agreement, the amount payable as purchase price pursuant to Section 19(b) of the
Lease, (vi) Transaction Expenses or other amounts or expenses paid or payable
to, or for the benefit of, the Owner Participant pursuant to the Participation
Agreement, (vii) the respective rights of the Owner Trustee in its individual
capacity or the Owner Participant to the proceeds of the foregoing and (viii)
any right to demand, collect or otherwise receive and enforce the payment of any
amount described in clauses (i) through (vii) above.
"Federal Aviation Act" shall have the meaning specified therefor in
the Lease.
"Federal Aviation Administration" and "FAA" shall have the meaning
specified therefor in the Lease.
"Holder" means a person in whose name a Certificate is registered on
the Register including, so long as it holds any Certificate issued hereunder,
the respective Pass Through Trustee under each Pass Through Trust Agreement.
"Indenture Default" means any event which is, or after notice or
passage of time, or both, would be, an Indenture Event of Default.
"Indenture Estate" shall have the meaning specified therefor in the
Granting Clause hereof.
"Indenture Event of Default" shall have the meaning specified therefor
in Article 8.
"Indenture Trustee" means (x) with respect to any time prior to the
execution and delivery of the Indenture Trustee Assignment and Assumption
Agreement, State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, and (y) at the time of the
execution and delivery of the Indenture Trustee Assignment and Assumption
Agreement and thereafter, First Security Bank of Utah, National Association, a
national banking association, and each other Person which may from time to time
be acting as Indenture Trustee in accordance with the provisions of this
Indenture.
"Indenture Trustee Assignment and Assumption Agreement" means the
Indenture Trustee Assignment and Assumption Agreement (1994 747 B), dated as of
January 1, 1996, between First Security Bank of Utah, National Association, and
State Street Bank and Trust Company of Connecticut, National Association.
Indenture-11 (1994 747 B)
"Independent" when used with respect to an engineer, Appraiser or
other expert, means an engineer, Appraiser or other expert who (i) is in fact
independent, (ii) does not have any direct financial interest or any material
indirect financial interest in the Company or any Affiliate of the Company, and
(iii) is not connected with the Company or any Affiliate of the Company as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions.
"Independent Investment Banker" shall mean an independent investment
banking institution of national standing appointed by (i) the Company on behalf
of the Owner Trustee or (ii) in the case of a redemption or purchase of the
Certificates under Section 6.01(b) pursuant to Section 8.03(e)(ii), the Owner
Trustee; provided that, if the Indenture Trustee shall not have received written
notice of such an appointment at least 10 days prior to the relevant Redemption
Date or if a Lease Event of Default shall have occurred and be
continuing,"Independent Investment Banker" shall mean such an institution
appointed by the Indenture Trustee.
"Installment Certificate" shall mean a Certificate substantially in
the form of Exhibit A-1, should any such Certificate be issued hereunder.
"Installment Payment Amount" means, with respect to each Installment
Certificate, the amount of the installment payment of principal due and payable
on each Installment Payment Date, which amount shall be equal to the product of
the original principal amount of such Certificate and the Installment Payment
Percentage for such Installment Payment Date.
"Installment Payment Date" means each date on which an installment
payment of principal is due and payable on any Installment Certificate, as set
forth in Exhibit B-1.
"Installment Payment Percentage" means, with respect to each
Installment Payment Date, the percentage set forth opposite such Installment
Payment Date in Exhibit B-1;
"Interest Payment Date" means each January 30 and July 30, commencing
July 30, 1996.
"Lease" means (x) with respect to any time prior to the execution and
delivery of the Redemption and Refinancing Agreement, that certain Lease
Agreement (1994 747 B), dated as of August 1, 1994, between the Owner Trustee,
as lessor, and the Company, as lessee, recorded by the FAA on August 8, 1994,
and assigned Conveyance No. Y39809, and (y) at the time of the execution and
delivery of the Redemption and Refinancing Agreement and thereafter, such Lease
Agreement (1994 747 B), as amended by the First Amendment to Lease Agreement
(1994 747 B), dated January 31, 1995, between the Owner Trustee, as
Indenture-12 (1994 747 B)
lessor, and the Company, as lessee, recorded by the FAA on April 12, 1995 and
assigned Conveyance No. KK19947 [, and as further amended by the Second
Amendment to Lease Agreement (1994 747 B), dated February ___, 1996 and assigned
Conveyance No. _______] and as such Lease Agreement may from time to time be
further supplemented, amended or modified in accordance with the terms thereof
and this Indenture. The term "Lease" shall also include each Lease Supplement
entered into pursuant to the terms of the Lease.
"Lease Default" shall have the meaning specified for the term
"Default" in the Lease.
"Lease Event of Default" shall have the meaning specified for the term
"Event of Default" in the Lease.
"Lease Loss Payment Date" shall have the meaning specified for the
term "Loss Payment Date" in Section 10(a) of the Lease.
"Lease Supplement" shall have the meaning specified therefor in the
Lease.
"Lease Termination Date" shall have the meaning specified for the term
"Termination Date" in the Lease.
"Lessor Liens" shall have the meaning specified therefor in the Lease.
"Lien" means any mortgage, pledge, lien, charge, encumbrance, lease,
exercise of rights, security interest or claim.
"Loan Certificate" shall have the meaning specified for the term
"Certificate" hereunder.
"Maturity Date" means each of the dates specified in Exhibit B as a
maturity date of one or more of the Certificates.
"Officers' Certificate" means a certificate signed, in the case of the
Company, by (i) the Chairman of the Board of Directors, the President, or any
Senior Vice President of the Company, signing alone, or (ii) any Vice President
signing together with the Secretary, any Assistant Secretary, the Treasurer or
any Assistant Treasurer of the Company or, in the case of the Owner Trustee, a
Responsible Officer of the Owner Trustee.
"Operative Documents" means this Indenture, the Participation
Agreement, the Indenture Trustee Assignment and Assumption Agreement, the Owner
Trustee Assignment and Assumption Agreement, the Lease, the Tax Indemnity
Agreement, the Consent and Agreement, the Owner Trustee's Bill of Sale, the
Owner Trustee's FAA Bill of Sale, the
Indenture-13 (1994 747 B)
Acceptance Certificate, the Purchase Agreement (to the extent assigned by the
Owner Trustee's Purchase Agreement), the Owner Trustee's Purchase Agreement, the
Certificates, the Trust Agreement, the Trust Supplement and the Redemption and
Refinancing Agreement.
"Opinion of Counsel" means a written opinion of legal counsel, who in
the case of counsel for the Company may be (i) the senior attorney employed by
the Company, (ii) Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz or (iii) other counsel
designated by the Company and who shall be reasonably satisfactory to the
Indenture Trustee or, in the case of legal counsel for the Owner Trustee, may be
(x) ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ or (y) other counsel designated by the Owner Trustee
and who shall be reasonably satisfactory to the Indenture Trustee.
"Outstanding", when used with respect to Certificates, means, as of
the date of determination, all Certificates theretofore executed and delivered
under this Indenture other than:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to Section
2.07 or otherwise;
(ii) Certificates for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Indenture Trustee
in trust for the Holders of such Certificates; provided that if such
Certificates are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Indenture Trustee has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to this Indenture;
provided, however, that in determining whether the Holders of the requisite
aggregate principal amount of Certificates Outstanding have given any request,
demand, authorization, declaration, direction, notice, consent or waiver
hereunder, Certificates owned by or pledged to the Company or any Affiliate of
the Company or the Owner Trustee or the Owner Participant or any Affiliate
thereof, shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Indenture Trustee shall be protected in relying upon any
such request, demand, authorization, declaration, direction, notice, consent or
waiver, only Certificates which the Indenture Trustee knows to be so owned or so
pledged shall be disregarded. Certificates owned by the Company, or the Owner
Trustee or the Owner Participant, which have been pledged in good faith may be
regarded as Outstanding if the Company, or the Owner Trustee or the Owner
Participant, as the case may be, establishes to the satisfaction of the
Indenture Trustee the pledgee's right to act with respect to such Certificates
and that the pledgee is not the Company, or the Owner Trustee or the Owner
Participant or any Affiliate thereof.
Indenture-14 (1994 747 B)
"Owner Participant" shall be the party specified as the "Owner
Participant" in the Participation Agreement, its successors and, to the extent
permitted by Article VIII of the Trust Agreement and Section 8(l) of the
Participation Agreement, its assigns.
"Owner Trustee" means (x) with respect to any time prior to the
execution and delivery of the Owner Trustee Assignment and Assumption Agreement,
First Security Bank of Utah, a national banking association, and (y) at the time
of the execution and delivery of the Owner Trustee Assignment and Assumption
Agreement and thereafter, State Street Bank and Trust Company of Connecticut,
National Association, a national banking association, not in its individual
capacity, but solely as trustee under the Trust Agreement, and each other Person
which may from time to time be acting as Owner Trustee in accordance with the
provisions of the Operative Documents.
"Owner Trustee Assignment and Assumption Agreement" means the Owner
Trustee Assignment and Assumption Agreement (1994 747 B), dated as of January 1,
1996, between First Security Bank of Utah, National Association, and State
Street Bank and Trust Company of Connecticut, National Association.
"Owner Trustee's Bill of Sale" shall have the meaning specified
therefor in the Lease.
"Owner Trustee's FAA Bill of Sale" shall have the meaning specified
therefor in the Lease.
"Owner Trustee's Purchase Agreement" shall have the meaning specified
therefor in the Lease.
"Participation Agreement" shall have the meaning specified therefor in
the Lease.
"Parts" shall have the meaning specified therefor in the Lease.
"Pass Through Certificates" means any of the Pass Through Certificates
issued pursuant to any of the Pass Through Trust Agreements.
"Pass Through Trust" means each pass through trust created pursuant to
the related Pass Through Trust Agreement.
"Pass Through Trust Agreements" means the Pass Through Trust
Agreement, dated as of February 1, 1992, as amended and restated as of May 1,
1995, between the Company and the Pass Through Trustee and as supplemented by
each of two Pass Through
Indenture-15 (1994 747 B)
Trust Supplements Nos. 1996 A1 and 1996 A2, each dated as of January 1, 1996, as
the same may from time to time be further amended, supplemented or otherwise
modified.
"Pass Through Trust Supplement" shall have the meaning specified for
the term "Trust Supplement" in the Pass Through Trust Agreement.
"Pass Through Trustee" means First Security Bank of Utah, National
Association in its capacity as trustee under each Pass Through Trust Agreement,
and such other Person that may from time to time be acting as successor trustee
under any such Pass Through Trust Agreement.
"Paying Agent" means any person acting as Paying Agent hereunder
pursuant to Section 2.03.
"Permitted Investment" means each of (i) obligations of, or guaranteed
by, the United States Government or agencies thereof, (ii) open market
commercial paper of any corporation incorporated under the laws of the United
States of America or any State thereof rated at least P-1 or its equivalent by
▇▇▇▇▇'▇ Investors Service, Inc. or at least A-1 or its equivalent by Standard &
Poor's Ratings Services, (iii) certificates of deposit issued by commercial
banks organized under the laws of the United States or of any political
subdivision thereof having a combined capital and surplus in excess of
$750,000,000 which banks or their holding companies have a rating of A or its
equivalent by ▇▇▇▇▇'▇ Investors Service or Standard & Poor's Ratings Services;
provided, however, that the aggregate amount at any one time so invested in
certificates of deposit issued by any one bank shall not exceed 5% of such
bank's capital and surplus, (iv) U.S. dollar denominated offshore certificates
of deposit issued by, or offshore time deposits with, any commercial bank
described in clause (iii) or any subsidiary thereof and (v) repurchase
agreements with any financial institution having combined capital and surplus of
at least $750,000,000 with any of the obligations described in clauses (i)
through (iv) as collateral.
"Permitted Lien" shall have the meaning specified therefor in the
Lease.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Premium" or "premium" shall have the meaning specified in Section
6.01(b).
Indenture-16 (1994 747 B)
"Premium Termination Date" means, with respect to a Certificate, the
date set forth below opposite the Maturity Date of such Certificate:
Premium
Certificates Maturity Date Termination Date
------------ ------------- ----------------
Series 1994 747 B
Certificate
Series 1994 747 B
Certificate
"Purchase Agreement" shall have the meaning specified therefor in the
Lease.
"Record Date" for the interest or Installment Payment Amount payable
on any Certificate on any Interest Payment Date or Installment Payment Date
(other than the Maturity Date) for such Certificate, as the case may be, means
the calendar day (whether or not a Business Day) which is 15 calendar days prior
to the related Interest Payment Date or the related Installment Payment Date.
"Redemption and Refinancing Agreement" shall have the meaning
specified therefor in the Lease.
"Redemption Date" means the date on which the Certificates are to be
redeemed or purchased pursuant to Section 6.01 or 6.02, as the case may be, as
specified in the notice delivered pursuant to Section 6.03.
"Redemption Price" means the price at which the Certificates are to be
redeemed or purchased, determined as of the applicable Redemption Date, pursuant
to Section 6.01 or 6.02, as the case may be.
"Refinancing Amount" shall have the meaning specified therefor in the
Redemption and Refinancing Agreement.
"Refinancing Date" shall mean the date designated by the Company as
the date for a refinancing of the Certificates in accordance with Section 17 of
the Participation Agreement.
"Register" shall have the meaning specified therefor in Section 2.03.
"Registrar" means any person acting as Registrar hereunder pursuant to
Section 2.03.
"Rent" shall have the meaning specified therefor in the Lease.
Indenture-17 (1994 747 B)
"Replacement Airframe" shall have the meaning specified therefor in
the Lease.
"Replacement Engine" shall have the meaning specified therefor in the
Lease.
"Responsible Company Officer" means, with respect to the Company, its
Chairman of the Board, its President, any Senior Vice President, the Chief
Financial Officer, any Vice President, the Treasurer or any other management
employee (a) working under the direct supervision of such Chairman of the Board,
President, Senior Vice President, Chief Financial Officer, Vice President or
Treasurer and (b) whose responsibilities include the administration of the
transactions and agreements, including the Lease, contemplated by the
Participation Agreement.
"Responsible Officer" means, with respect to the Owner Trustee or the
Indenture Trustee, any officer in its Corporate Trust Administration Department
or any officer of the Owner Trustee or the Indenture Trustee, as the case may
be, customarily performing functions similar to those performed by the persons
who at the time shall be such officers, respectively, or to whom any corporate
trust matter is referred because of his knowledge of and familiarity with a
particular subject.
"SEC" means the Securities and Exchange Commission.
"Serial Certificate" shall mean a Certificate substantially in the
form of Exhibit A-2, should any such Certificate be issued hereunder.
"Series 1994 747 B Certificate" means any Certificate issued by the
Owner Trustee under this Indenture substantially in the form of Exhibit A-1 or
A-2, and any and all of the Series 1994 747 B Certificates issued in replacement
or exchange thereof in accordance with the provisions hereof.
"Stipulated Loss Value" shall have the meaning specified therefor in
the Lease.
"Supplemental Rent" shall have the meaning specified therefor in the
Lease.
"Tax Indemnity Agreement" shall have the meaning specified therefor in
the Lease.
"Termination Value" shall have the meaning specified therefor in the
Lease.
"Treasury Yield" means, with respect to each Certificate to be
redeemed or purchased, (x) in the case of a Certificate having a maturity less
than one year after the applicable redemption or purchase date, the average
yield to stated maturity on a government
Indenture-18 (1994 747 B)
bond equivalent basis of the applicable United States Treasury Bill due the week
of the maturity of such Certificate or (y) in the case of a Certificate having a
maturity of one year or more after the applicable redemption or purchase date,
the average yield to stated maturity of the most comparable United States
Treasury Notes or Bonds as identified by an independent investment banker,
corresponding in maturity to the Remaining Weighted Average Life (as defined
below) of such Certificate (or, if there is no maturity corresponding to such
Remaining Weighted Average Life, an interpolation of maturities by such
independent investment banker), in each case under (x) and (y) above determined
by such independent investment banker based on the average of the yields to
stated maturity determined from the bid prices on the fourth Business Day
preceding the applicable redemption or purchase date. For purposes hereof,
"Remaining Weighted Average Life" means, for any Certificate, at the redemption
or purchase date of such Certificate, the number of years obtained by dividing
(a) the sum of the products obtained by multiplying (i) the amount of each then
remaining scheduled payment of principal, including the payment due on the
maturity date of such Certificate, by (ii) the number of years (calculated to
the nearest one-twelfth) which will elapse between the redemption or purchase
date and the regular distribution dates as of such scheduled payments of
principal, by (b) the then outstanding principal amount of such Certificate.
"Trust Agreement" shall have the meaning specified therefor in the
Lease.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Indenture and Mortgage" or "this Indenture" means this Amended
and Restated Trust Indenture and Mortgage (1994 747 B), as the same may from
time to time be supplemented, amended or modified.
"Trust Office" shall mean the principal corporate trust office of the
Owner Trustee located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Department, or at such other office at which
the Owner Trustee's corporate trust business shall be administered which the
Owner Trustee shall have specified by notice in writing to the Company, the
Indenture Trustee and each Holder.
"Trust Supplement" means a supplement to the Trust Agreement and this
Indenture in the form of Exhibit C.
"Trustee's Liens" shall have the meaning specified therefor in Section
9.10.
"United States" or "U.S." means the United States of America.
"U.S. Government Obligations" means securities that are direct
obligations of the United States or agencies or instrumentalities thereof for
the payment of which the full
Indenture-19 (1994 747 B)
faith and credit of the United States are pledged which are not callable or
redeemable, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such U.S. Government Obligation
or a specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt so long as such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or the
specific payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
ARTICLE 2
THE CERTIFICATES
Section 2.01. Certificates; Title and Terms. The Certificates issued
hereunder shall be designated as Series 1994 747 B Certificates. The
Installment Certificates and the Serial Certificates shall be substantially in
the form set forth in Exhibit A-1 or A-2, respectively. The Certificates
originally issued hereunder shall be dated the date of issuance thereof and
shall be issued in the maturities and principal amounts, and shall bear interest
at the rates per annum, in each case as specified in or determined pursuant to
Exhibit B. The principal of each Certificate, other than Installment
Certificates, shall be payable in full on the Maturity Date for such
Certificate. The principal of each Installment Certificate shall be payable in
installments, on each Installment Payment Date, in amounts equal to the
Installment Payment Amount for such Installment Payment Date. Each Certificate
shall be issued to the Pass Through Trustee under each of the Pass Through Trust
Agreements, as set forth in Exhibit B-2.
The Certificates shall be issued in registered form only. The
Certificates shall be issued in denominations of $1,000 and integral multiples
thereof except that one Certificate of each maturity may be in an amount that is
not an integral multiple of $1,000.
The Certificates are not redeemable or subject to purchase prior to
maturity except as provided in this Indenture. Interest accrued on the
Certificates shall be calculated on the basis of a 360-day year consisting of
twelve 30-day months.
Section 2.02. Execution and Authentication. (a) Certificates shall
be executed on behalf of the Owner Trustee by the manual or facsimile signature
of its President, a senior vice president, a vice president, an assistant vice
president, its treasurer, its secretary, an assistant secretary or an assistant
treasurer.
Indenture-20 (1994 747 B)
(b) If any officer of the Owner Trustee executing the Certificates no
longer holds that office at the time the Certificate is executed on behalf of
the Owner Trustee, the Certificate shall be valid nevertheless.
(c) At any time and from time to time after the execution of the
Certificates, the Owner Trustee may deliver such Certificates to the Indenture
Trustee for authentication and, subject to the provisions of Section 2.10, the
Indenture Trustee shall authenticate the Certificates by manual signature upon
written orders of the Owner Trustee. Certificates shall be authenticated on
behalf of the Indenture Trustee by any authorized officer or signatory of the
Indenture Trustee.
(d) A Certificate shall not be valid or obligatory for any purpose or
entitled to any security or benefit hereunder until executed on behalf of the
Owner Trustee by the manual or facsimile signature of an officer of the Owner
Trustee as provided in Section 2.02(a) and until authenticated on behalf of the
Indenture Trustee by the manual signature of an authorized officer or signatory
of the Indenture Trustee as provided in Section 2.02(c). Such signatures shall
be conclusive evidence that such Certificate has been duly executed,
authenticated and issued under this Indenture.
Section 2.03. Registrar and Paying Agent. The Indenture Trustee
shall maintain an office or agency where the Certificates may be presented for
registration of transfer or for exchange (the "Registrar") and an office or
agency where (subject to Sections 2.04 and 2.08) the Certificates may be
presented for payment or for exchange (the "Paying Agent"). The Registrar shall
keep a register (the "Register") with respect to the Certificates and to their
transfer and exchange and the payments of Installment Payment Amounts thereon,
if any. The Indenture Trustee may appoint one or more co-registrars (the "Co-
Registrars") and one or more additional Paying Agents for the Certificates and
the Indenture Trustee may terminate the appointment of any Co-Registrar or
Paying Agent at any time upon written notice. The term "Registrar" includes any
Co-Registrar. The term "Paying Agent" includes any additional Paying Agent.
The Indenture Trustee shall initially act as Registrar and Paying
Agent.
Section 2.04. Transfer and Exchange. At the option of the Holder
thereof, Certificates may be exchanged for an equal aggregate principal amount
of other Certificates of the same maturity and type and of any authorized
denominations or transferred upon surrender of the Certificates to be exchanged
or transferred at the principal corporate trust office of the Indenture Trustee,
or at any office or agency maintained for such purpose pursuant to Section 2.03.
Whenever any Certificates are so surrendered for exchange, the Owner Trustee
shall execute, and the Indenture Trustee shall authenticate and deliver, the
replacement Certificates, dated the same date as the Certificate or Certificates
being replaced which the Holder making the exchange is entitled to receive.
Indenture-21 (1994 747 B)
All Certificates issued upon any registration of transfer or exchange
of Certificates shall be the valid obligations of the Owner Trustee, evidencing
the same obligations, and entitled to the same security and benefits under this
Indenture, as the Certificates surrendered upon such registration of transfer or
exchange.
Every Certificate presented or surrendered for registration of
transfer or exchange shall (if so required by the Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in form satisfactory
to the Registrar duly executed by, the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Certificates, but the Registrar may, as a condition to
any transfer or exchange hereunder, 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 Certificates.
The Registrar shall not be required to register the transfer of or to
exchange any Certificate called for redemption or purchase pursuant to such
Section 6.01 or 6.02.
Section 2.05. Holder Lists; Ownership of Certificates. (a) The
Indenture Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders, which list shall be available to the Owner Trustee or its
representative (which may be the Owner Participant) and the Company for
inspection. If the Indenture Trustee is not the Registrar, the Registrar shall
be required to furnish to the Indenture Trustee semi-annually on or before each
Interest Payment Date, and at such other times as the Indenture Trustee may
request in writing, a list, in such form and as of such date as the Indenture
Trustee may reasonably require, containing all the information in the possession
or control of the Registrar as to the names and addresses of the Holders.
(b) Ownership of the Certificates shall be proved by the Register kept
by the Registrar. Prior to due presentment for registration of transfer of any
Certificate, the Owner Trustee, the Owner Participant, the Company, the
Indenture Trustee, the Paying Agent and the Registrar may deem and treat the
Person in whose name any Certificate is registered as the absolute owner of such
Certificate for the purpose of receiving payment of principal (including,
subject to the provisions herein regarding the applicable Record Dates,
Installment Payment Amounts) of, premium, if any, and interest on such
Certificate and for all other purposes whatsoever, whether or not such
Certificate is overdue, and none of the Owner Trustee, the Indenture Trustee,
the Paying Agent or the Registrar shall be affected by notice to the contrary.
Indenture-22 (1994 747 B)
Section 2.06. Mutilated, Destroyed, Lost or Stolen Certificates. If
any Certificate shall become mutilated, destroyed, lost or stolen, the Owner
Trustee shall, upon the written request of the Holder of such Certificate, issue
and execute, and the Indenture Trustee shall authenticate and deliver, in
replacement thereof, as applicable, a new Certificate of the same type and
having the same maturity, payable to the same Holder in the same principal
amount and dated the same date as the Certificate so mutilated, destroyed, lost
or stolen. If the Certificate being replaced has become mutilated, such
Certificate shall be surrendered to the Indenture Trustee. If the Certificate
being replaced has been destroyed, lost or stolen, the Holder of such
Certificate shall furnish to the Owner Trustee and the Indenture Trustee such
security or indemnity as may be required by it to save the Owner Trustee and the
Indenture Trustee harmless and evidence satisfactory to the Owner Trustee and
the Indenture Trustee of the destruction, loss or theft of such Certificate and
of the ownership thereof.
Section 2.07. Cancellation. The Registrar and any Paying Agent shall
forward to the Indenture Trustee all Certificates surrendered to them for
replacement, redemption, registration of transfer, exchange or payment. The
Indenture Trustee shall cancel all Certificates surrendered for replacement,
redemption, registration of transfer, exchange, payment or cancellation and
shall destroy cancelled Certificates.
Section 2.08. Payment on Certificates; Defaulted Principal and
Interest. (a) The Indenture Trustee will arrange directly with any Paying
Agent for the payment, or the Indenture Trustee will make payment, all pursuant
to Section 2.09, of the principal of, premium, if any, and interest on the
Certificates at the principal corporate trust office of the Indenture Trustee or
at any office or agency maintained for such purpose to Section 2.03 hereof. All
payments in respect of the Certificates shall be made in such coin or currency
of the United States as at the time of payment in legal tender for payment of
public and private debts. Payments (other than on the Maturity Date therefor or
on the Redemption Date in respect of the redemption in whole thereof) on
Certificates shall be made to the Holder thereof at the close of business on the
relevant Record Date; provided, however, that the Paying Agent will, at the
request of the Indenture Trustee and may, at its option, pay such interest,
premium or principal by check mailed to such Holder's address as it appears on
the Register. Principal of Certificates and premium, if any, with respect
thereto, shall (except as provided pursuant to the immediately preceding
sentence) be payable only against presentation and surrender thereof at the
principal corporate trust office of the Indenture Trustee or at the office of
the Paying Agent maintained for such purpose pursuant to Section 2.03.
A Holder shall have no further interest in, or other right with
respect to, the Indenture Estate when and if the principal amount of, premium,
if any, and interest on all Certificates held by such Holder and all other sums
payable to such Holder hereunder, under such Certificates and under the
Participation Agreement shall have been paid in full.
Indenture-23 (1994 747 B)
(b) Any Installment Payment Amount payable on an Installment Payment
Date (other than the Maturity Date with respect to a Certificate) or any
interest payable on an Interest Payment Date on any Certificate which is not
punctually paid on such Installment Payment Date or such Interest Payment Date,
as the case may be (herein called, respectively, a "Defaulted Installment" and
"Defaulted Interest"), shall forthwith cease to be payable to the Holder on the
relevant Record Date by virtue of his having been such Holder; and such
Defaulted Installment or Defaulted Interest may be paid by the Indenture
Trustee, at its election in each case, as provided in clause (1) or (2) below:
(1) The Indenture Trustee may elect to make payment of any Defaulted
Installment or Defaulted Interest, as the case may be, to the person in
whose name any Certificate is registered at the close of business on a
special record date for the payment of such Defaulted Installment or
Defaulted Interest, as the case may be, which shall be fixed in the
following manner. The Indenture Trustee shall notify the Paying Agent in
writing of the amount of Defaulted Installment or Defaulted Interest, as
the case may be, proposed to be paid on each such Certificate and the date
of the proposed payment, and at the same time the Indenture Trustee shall
make arrangements to set aside an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Installment or
Defaulted Interest, as the case may be, prior to the date of the proposed
payment, to be held in trust for the benefit of the Persons entitled to
such Defaulted Installment or Defaulted Interest, as the case may be, as
this clause provides and shall fix a special record date for the payment of
such Defaulted Installment or Defaulted Interest, as the case may be, which
shall be not more than 15 days and not less than 10 days prior to the date
of the proposed payment. The Indenture Trustee shall promptly notify the
Owner Trustee, the Company and the Registrar of such special record date
and shall cause notice of the proposed payment of such Defaulted
Installment or Defaulted Interest, as the case may be, and the special
record date therefor to be mailed, first class postage prepaid, to each
Holder at its address as it appears in the Register, not less than 10 days
prior to such special record date. Notice of the proposed payment of such
Defaulted Installment or Defaulted Interest, as the case may be, and the
special record date therefor having been mailed, as aforesaid, such
Defaulted Installment or Defaulted Interest, as the case may be, shall be
paid to the Persons in whose names the applicable Certificates are
registered on such special record date and shall no longer be payable
pursuant to the following clause (2).
(2) The Indenture Trustee may make, or cause to be made, payment of
any Defaulted Installment or Defaulted Interest, as the case may be, in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which Certificates may be listed, and upon such
notice as may be required by such exchange, if such payment shall be deemed
practicable by the Indenture Trustee.
Indenture-24 (1994 747 B)
(c) The Indenture Trustee shall require each Paying Agent to agree in
writing that such Paying Agent will hold in trust, for the benefit of the
Holders of the Certificates and the Indenture Trustee, all money held by the
Paying Agent for the payment of the principal of, premium, if any, or interest
on, and shall give to such Indenture Trustee notice of any default in the making
of any such payment upon, the Certificates. The Indenture Trustee at any time
may require a Paying Agent to repay to the Indenture Trustee all money held by
it. Upon so doing the Paying Agent shall have no further liability for the
money so paid.
Section 2.09. Payment from Indenture Estate Only; Non-Recourse
Obligations. All amounts payable by the Indenture Trustee and the Owner Trustee
under the Certificates and this Indenture shall be made only from the income and
proceeds of the Indenture Estate. Each Holder of a Certificate, by its
acceptance of such Certificate, agrees that (a) it will look solely to the
income and proceeds of the Indenture Estate for the payment of such amounts, to
the extent available for distribution to it as herein provided, and (b) none of
the Owner Trustee, the Owner Participant or the Indenture Trustee is or shall be
personally liable to the Holder of any Certificate for any amount payable under
such Certificate or this Indenture or, except as expressly provided in this
Indenture in the case of the Owner Trustee and the Indenture Trustee, for any
liability thereunder.
State Street Bank and Trust Company of Connecticut, National
Association, is entering into this Indenture solely as Owner Trustee under the
Trust Agreement and not in its individual capacity, and in no case whatsoever
shall State Street Bank and Trust Company of Connecticut, National Association
(or any entity acting as successor trustee under the Trust Agreement), be
personally liable for, or for any loss in respect of, any statements,
representations, warranties, agreements or obligations hereunder or thereunder;
provided that State Street Bank and Trust Company of Connecticut, National
Association, shall be liable hereunder in its individual capacity, (i) for the
performance of its agreements in its individual capacity under Section 8 of the
Participation Agreement, (ii) for its own willful misconduct or gross
negligence, and (iii) for the failure to use ordinary care in the disbursement
of funds. If a successor Owner Trustee is appointed in accordance with the
terms of the Trust Agreement and the Participation Agreement, such successor
Owner Trustee shall, without any further act, succeed to all of the rights,
duties, immunities and obligations hereunder, and its predecessor Owner Trustee
and State Street Bank and Trust Company of Connecticut, National Association,
shall be released from all further duties and obligations hereunder, without
prejudice to any claims against State Street Bank and Trust Company of
Connecticut, National Association, or such predecessor Owner Trustee for any
default by State Street Bank and Trust Company of Connecticut, National
Association, or such predecessor Owner Trustee, respectively, in the performance
of its obligations hereunder prior to such appointment.
Indenture-25 (1994 747 B)
Section 2.10. Execution, Delivery and Dating of Certificates upon
Original Issuance. The Owner Trustee shall issue and execute, and the Indenture
Trustee shall authenticate and deliver, the Certificates for original issuance
upon payment to the Indenture Trustee of an amount equal to the Refinancing
Amount. Each Certificate shall (except for those issued pursuant to Section
2.04 or 2.06) be dated the date of its issuance.
ARTICLE 3
RECEIPT, DISTRIBUTION AND APPLICATION
OF FUNDS IN THE INDENTURE ESTATE
Section 3.01. [Reserved for Potential Future Use]
Section 3.02. Payment in Case of Redemption or Purchase of
Certificates. Except as otherwise provided in Section 3.05, in the event the
Certificates are redeemed or purchased in accordance with the provisions of
Section 6.01 or 6.02, the Indenture Trustee will apply on the Redemption Date
any amounts then held by it in the Indenture Estate and received by it from or
on behalf of the Company or the Owner Trustee in the following order of
priority:
first, so much thereof as was received by the Indenture Trustee with
respect to the amounts due to it pursuant to Section 9.06 shall be applied
to pay the Indenture Trustee such amounts;
second, so much thereof remaining as shall be required to pay an
amount equal to the Redemption Price on the Outstanding Certificates
pursuant to Section 6.01 or 6.02, as the case may be, on the Redemption
Date shall be applied to the redemption or purchase of the Certificates on
the Redemption Date; and
third, the balance, if any, thereof remaining thereafter shall be
distributed to the Owner Trustee to be held or distributed to the Owner
Participant in accordance with the terms of the Lease, Participation
Agreement and Trust Agreement.
Section 3.03. Application of Rent When No Indenture Event of Default
Is Continuing. Except as otherwise provided in Section 3.02, 3.04, 3.05 or
3.06, each amount of Rent received by the Indenture Trustee from the Owner
Trustee or the Company, together with any amount received by the Indenture
Trustee pursuant to Section 8.03(e) shall be distributed by the Indenture
Trustee in the following order of priority:
first, so much of such aggregate amount as shall be required to pay in
full the interest, principal of, premium (to the extent received by the
Indenture Trustee from
Indenture-26 (1994 747 B)
the Company as Supplemental Rent), if any, then due on, all Outstanding
Certificates shall be distributed to the Persons entitled thereto; and in
case such payments or amounts shall be insufficient to pay in full the
whole amount so due and unpaid, then to the payment of such interest,
principal and premium, if any, without any preference or priority of one
Certificate over another, ratably according to the aggregate amount so due
for interest, principal and premium, if any, at the date fixed by the
Indenture Trustee for the distribution of such payments or amounts;
second, so much of such aggregate amount remaining as shall be
required to pay any amount due the Indenture Trustee pursuant to Section
9.06 shall be applied to pay the Indenture Trustee such amounts; and
third, the balance, if any, of such aggregate amount remaining
thereafter shall be distributed to the Owner Trustee to be held or
distributed in accordance with the terms of the Lease, the Participation
Agreement and the Trust Agreement.
Section 3.04. Application of Certain Payments in Case of Requisition
or Event of Loss. Except as otherwise provided in Section 3.05, any amounts
received directly or otherwise pursuant to the Lease from any governmental
authority or other party pursuant to Section 10 of the Lease with respect to the
Airframe or the Airframe and the Engines or engines then installed on the
Airframe as the result of an Event of Loss, to the extent that such amounts are
not at the time required to be paid to the Company pursuant to said Section 10,
and any amounts of insurance proceeds for damage to the Indenture Estate
received directly or otherwise pursuant to the Lease from any insurer pursuant
to Section 11 of the Lease with respect thereto as the result of an Event of
Loss, to the extent such amounts are not at the time required to be paid to the
Company pursuant to said Section 11, shall, except as otherwise provided in the
next sentence, be applied by the Indenture Trustee on behalf of the Owner
Trustee in reduction of the Company's obligations to pay Stipulated Loss Value
and the other amounts payable by the Company pursuant to Section 10 of the Lease
and the remainder, if any, shall, except as provided in the next sentence, be
distributed to the Owner Trustee to be held or distributed in accordance with
the terms of the Lease. Any portion of any such amount referred to in the
preceding sentence which is not required to be so paid to the Company pursuant
to the Lease, solely because a Lease Default or a Lease Event of Default shall
have occurred and be continuing, shall be held by the Indenture Trustee on
behalf of the Owner Trustee as security for the obligations of the Company under
the Lease and at such time as there shall not be continuing any Lease Event of
Default or such earlier time as shall be provided for in the Lease, such portion
shall be paid to the Owner Trustee to be held or distributed in accordance with
the terms of the Lease, unless the Indenture Trustee (as assignee from the Owner
Trustee of the Lease) shall have theretofore declared the Lease to be in default
pursuant to Section 15 thereof, in which event such portion shall be distributed
forthwith upon such declaration in accordance with the provisions of Section
3.05.
Indenture-27 (1994 747 B)
Section 3.05. Payments During Continuance of Indenture Event of
Default. All payments (except Excluded Payments) received and amounts held or
realized by the Indenture Trustee after an Indenture Event of Default shall have
occurred and be continuing (including any amounts realized by the Indenture
Trustee from the exercise of any remedies pursuant to Article 8), as well as all
payments or amounts then held or thereafter received by the Indenture Trustee as
part of the Indenture Estate while such Indenture Event of Default shall be
continuing, shall be distributed by the Indenture Trustee in the following order
of priority:
first, so much of such payments or amounts as shall be required to pay
the Indenture Trustee all amounts then due it pursuant to Section 9.06
shall be applied to pay the Indenture Trustee such amounts;
second, so much of such payments or amounts remaining as shall be
required to pay the expenses incurred (including unbilled expenses in
respect of property delivered or contracted for or services rendered or
contracted for if the amount of such expenses is liquidated) in using,
operating, storing, leasing, controlling or managing the Indenture Estate,
and of all maintenance, insurance, repairs, replacements, alterations,
additions and improvements of and to the Indenture Estate 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
Indenture Estate or any part thereof (including the employment of engineers
and accountants to examine and make reports upon the properties, books and
records of the Owner Trustee and, to the extent permitted under the Lease,
the Company), all in accordance with Section 8.03(c), shall be applied for
such purposes;
third, so much of such payments or amounts remaining as shall be
required to pay the principal of, premium, if any, to the extent payable by
the Owner Trustee pursuant to Section 6.0l(b)(ii) or to the extent received
by the Indenture Trustee from the Company as Supplemental Rent, and accrued
interest, on all Certificates Outstanding, whether by declaration of
acceleration pursuant to Section 8.02 or otherwise, shall be applied to the
payment of such interest, principal and premium, if any, and in case such
payments or amounts shall be insufficient to pay in full the whole amount
so due and unpaid, then to the payment of such interest principal and
premium, if any, without any preference or priority of one Certificate over
another, ratably according to the aggregate amount so due for interest,
principal and premium, if any, at the date fixed by the Indenture Trustee
for the distribution of such payments or amounts; and
fourth, the balance, if any, of such payments or amounts remaining
thereafter shall be held by the Indenture Trustee as collateral security
for the obligations secured hereby until such time as no Indenture Event of
Default shall be continuing hereunder
Indenture-28 (1994 747 B)
or the Certificates have been accelerated and all amounts due thereon have
been paid, at which time such payments or amounts shall be distributed to
the Owner Trustee to be held or distributed in accordance with the terms of
the Lease, the Participation Agreement and the Trust Agreement; provided
that at such time as one or more Lease Events of Default shall have
occurred and any such Lease Event of Default shall have continued for a
period of 180 days during which time the Certificates could, but shall not,
have been accelerated pursuant to Section 8.02, such amounts shall be
distributed to the Owner Trustee to be held or distributed in accordance
with the terms of the Lease, the Participation Agreement and the Trust
Agreement so long as no Indenture Event of Default exists other than by
virtue of such Lease Event of Default.
Section 3.06. Payments for Which Application Is Provided in Other
Documents. Except as otherwise provided in this Indenture, any payment received
by the Indenture Trustee for which provision as to the application thereof is
made in the Lease or any other Operative Document shall be distributed to the
Person for whose benefit such payments were made. The Indenture Trustee shall
be obligated to distribute any Excluded Payments received by the Indenture
Trustee promptly upon receipt thereof by the Indenture Trustee to the Person
entitled thereto.
Section 3.07. Payments for Which No Application Is Otherwise
Provided. Except as otherwise provided in Section 3.05:
(a) any payment received by the Indenture Trustee for which no
provision as to the application thereof is made elsewhere in this
Indenture, and
(b) any payment received and amounts realized by the Indenture Trustee
with respect to the Aircraft to the extent received or realized at any time
after the conditions set forth in Article 10 for the satisfaction and
discharge of this Indenture or for the defeasance of the Certificates shall
have been satisfied, as well as any other amounts remaining as part of the
Indenture Estate after such satisfaction shall be distributed by the
Indenture Trustee in the following order of priority:
first, so much of such aggregate amount as shall be required to
pay the Indenture Trustee all amounts then due it pursuant to Section
9.06 shall be applied to pay the Indenture Trustee such amounts; and
second, the balance if any, of such aggregate amount remaining
thereafter shall be distributed to the Owner Trustee to be held or
distributed in accordance with the terms of the Trust Agreement.
Indenture-29 (1994 747 B)
ARTICLE 4
COVENANTS OF OWNER TRUSTEE
Section 4.01. Covenants of the Owner Trustee. The Owner Trustee
hereby covenants and agrees that:
(i) the Owner Trustee will duly and punctually pay the principal of,
premium, if any, and interest on and other amounts due under the
Certificates, to the extent either the Owner Trustee or the Indenture
Trustee has funds in the Trust Estate for such purposes;
(ii) the Owner Trustee will, in its individual capacity, not directly
or indirectly create, incur, assume or suffer to exist any Lessor Lien
attributable to it in its individual capacity with respect to any of the
properties or assets of the Indenture Estate;
(iii) in the event an officer in the Corporate Trust Office of the
Owner Trustee shall have Actual Knowledge of an Indenture Event of Default
or Indenture Default or an Event of Loss, the Owner Trustee will give
prompt written notice of such Indenture Event of Default or Indenture
Default or Event of Loss to the Indenture Trustee, the Owner Participant
and the Company;
(iv) except as contemplated by the Operative Documents, the Owner
Trustee will not contract for, create, incur, assume or permit to exist any
Debt, and will not guarantee (directly or indirectly or by an instrument
having the effect of assuring another's payment or performance on any
obligation or capability of so doing, or otherwise), endorse or otherwise
be or become contingently liable, directly or indirectly, in connection
with the Debt of any other Person; and
(v) the Owner Trustee will not enter into any business or other
activity other than owning the Aircraft, the leasing thereof to the Company
and the carrying out of the transactions contemplated hereby and by the
Participation Agreement, the Trust Agreement and the other Operative
Documents.
ARTICLE 5
DISPOSITION, SUBSTITUTION AND RELEASE
OF PROPERTY INCLUDED IN THE INDENTURE ESTATE DURING
CONTINUATION OF LEASE
Indenture-30 (1994 747 B)
Section 5.01. Disposition, Substitution and Release of Property
Included in the Indenture Estate During Continuation of Lease. So long as the
Lease is in effect:
(a) Parts. Any Parts and alterations, improvements and modifications
in and additions to the Aircraft shall, to the extent required or specified
by the Lease, become subject to the lien of this Indenture and be leased to
the Company under the Lease; provided that, to the extent permitted by and
as provided in the Lease, the Company shall have the right, at any time and
from time to time, without any release from or consent by the Owner Trustee
or the Indenture Trustee, to remove, replace and pool Parts and to make
alterations, improvements and modifications in, and additions to, the
Aircraft. The Indenture Trustee agrees that, to the extent permitted by
and as provided in the Lease, title to any such Part shall vest in the
Company. The Indenture Trustee shall from time to time execute an
appropriate written instrument or instruments to confirm the release of the
security interest of the Indenture Trustee in any Part as provided in this
Section 5.01, in each case upon receipt by the Indenture Trustee of a
Company Request stating that said action was duly taken by the Company in
conformity with this Section 5.01 and that the execution of such written
instrument or instruments is appropriate to evidence such release of a
security interest under this Section 5.01.
(b) Substitution Under the Lease upon an Event of Loss Occurring to
Airframe or Engines or upon Voluntary Termination of Lease with Respect to
Engines. Upon (i) the occurrence of an Event of Loss occurring to the
Airframe or an Engine, or (ii) a voluntary termination of the Lease with
respect to an Engine, the Company, in accordance with the Lease, may, in
the case of an Event of Loss which has occurred to the Airframe, or shall,
except as provided in Section 10(b) of the Lease, in the case of an Event
of Loss which has occurred to or termination of the Lease with respect to
an Engine, substitute an airframe or engine, as the case may be, in which
case, upon satisfaction of all conditions to such substitution specified in
Section 10 of the Lease, the Indenture Trustee shall release all of its
right, interest and lien in and to the Airframe or such Engine in
accordance with the provisions of the following two sentences. The
Indenture Trustee shall execute and deliver to the Owner Trustee an
instrument releasing its lien in and to the Airframe or such Engine and
shall execute for recording in public offices, at the expense of the Owner
Trustee (if requested by the Owner Trustee) or the Company (if requested by
the Company), such instruments in writing as the Owner Trustee or the
Company shall reasonably request and as shall be reasonably acceptable to
the Indenture Trustee in order to make clear upon public records that such
lien has been released under the laws of the applicable jurisdiction.
Each of the Owner Trustee and the Company hereby waives and releases any and all
rights existing or that may be acquired to any penalties, forfeit or damages
from or against the
Indenture-31 (1994 747 B)
Indenture Trustee for failure to execute and deliver any document in connection
with the release of a lien or to file any certificate in compliance with any law
or statute requiring the filing of the same in connection with the release of a
lien, except for failure by the Indenture Trustee to execute and deliver any
document or to file any certificate as may be specifically requested in writing
by the Owner Trustee or the Company.
ARTICLE 6
REDEMPTION OF CERTIFICATES
Section 6.01. Redemption of Certificates upon Certain Events. (a)
If there shall be an Event of Loss to the Aircraft and the Aircraft is not
replaced pursuant to Section 10(a)(ii) of the Lease, each Outstanding
Certificate shall be redeemed in whole at a Redemption Price equal to 100% of
the outstanding principal amount of such Certificate plus accrued and unpaid
interest thereon to but excluding the applicable Redemption Date. The
Redemption Date for Certificates to be redeemed pursuant to this Section 6.01(a)
shall be the Lease Loss Payment Date.
(b) If (i) the Lease shall be terminated by the Company at its option
pursuant to Section 9(b) of the Lease or upon the purchase of the Aircraft by
the Company at its option on the EBO Date pursuant to Section 19(b)(1) of the
Lease (unless the Company shall have elected to assume the rights and
obligations of the Owner Trustee hereunder to the extent and as provided for in
Section 8 of the Participation Agreement) or (ii) the Owner Trustee or the Owner
Participant shall have given notice of redemption or purchase to the Indenture
Trustee pursuant to Section 8.03(e)(ii) at any time after one or more Lease
Events of Default shall have occurred and be continuing for a period of 180 days
or more but less than one year and the Certificates shall not have been
accelerated, each Outstanding Certificate shall be redeemed or purchased in
whole on the Redemption Date and at the Redemption Price determined below.
Prior to the Premium Termination Date applicable to such Certificate, the
Redemption Price applicable to a redemption or purchase pursuant to this Section
6.01(b) shall be equal to an amount which an Independent Investment Banker (or,
in the case of the deposit of estimated premium pursuant to Section 8.03(e)(ii),
the Owner Trustee) determines to be equal to the greater of (x) the unpaid
principal amount of such Certificate as at such Redemption Date together
(assuming, only for the purposes of this calculation, that, if such Redemption
Date is coincident with an Interest Payment Date, the interest due on such
Interest Payment Date is paid prior to the time such Redemption Price is
calculated pursuant to this Section 6.01(b) and applied to interest in
accordance with Section 3.03) with an amount equal to the interest accrued
thereon from the immediately preceding Interest Payment Date to such Redemption
Date and (y) the present value (computed in accordance with generally accepted
financial practices on a semiannual basis at a discount rate equal to the
Treasury Yield applicable to such Certificate as of such
Indenture-32 (1994 747 B)
Redemption Date) as at such Redemption Date of (A) the regularly scheduled
future payments of interest on such Certificate as required by the terms thereof
and of this Indenture and (B) the regularly scheduled future payments of
principal payable on such Certificate (the excess, if any, of the amount
referred to in clause (y) of this sentence over the amount referred to in clause
(x) constituting a "premium" or a "Premium"), plus, in either case, interest on
the principal of such Certificate accrued as at the immediately preceding
Interest Payment Date and unpaid as of such Redemption Date. On or after the
Premium Termination Date applicable to such Certificate, the Redemption Price
applicable to a redemption or purchase pursuant to this Section 6.01(b) shall
equal the unpaid principal amount of such Certificate as at such Redemption Date
together with an amount equal to the interest accrued thereon from the
immediately preceding Interest Payment Date to such Redemption Date plus
interest on the principal of such Certificate accrued as at the immediately
preceding Interest Payment Date and unpaid as of such Redemption Date and, in
the case of either of the two immediately preceding sentences (but without
duplication), if such Redemption Date is coincident with an Interest Payment
Date, the regularly scheduled interest payment due on such Interest Payment
Date. The Redemption Date for Certificates to be redeemed or purchased (x)
pursuant to clause (i) of this Section 6.01(b) shall be (A) in the case of a
termination of the Lease pursuant to Section 9(b) thereof, the third Business
Day following the Lease Termination Date, if any, or, in the case of purchase of
the Aircraft by the Company pursuant to Section 19(b) of the Lease, the EBO Date
and (y) pursuant to clause (ii) of this Section 6.01(b), shall be the same date
as if the redemption had occurred pursuant to Section 6.02. If the Owner
Trustee elects to purchase the Certificates under Section 8.03(e)(ii), nothing
herein, including use of the terms "Redemption Date" and "Redemption Price",
shall be deemed to result in a redemption of the Certificates.
(c) Certificates shall be redeemed if the Company shall have requested
the Owner Trustee and the Owner Participant to effect a redemption thereof
pursuant to Section 17 of the Participation Agreement as part of a refunding or
refinancing, and if all the conditions to such refunding or refinancing set
forth in such Section 17 of the Participation Agreement may have been satisfied.
In such event, each Outstanding Certificate shall be so redeemed at a Redemption
Price determined in accordance with the procedures described above in Section
6.01(b); provided, however, that the applicable Redemption Date for Certificates
to be redeemed pursuant to this Section 6.01(c) shall be the applicable
Refinancing Date under Section 17 of the Participation Agreement.
Section 6.02. Redemption or Purchase of Certificates upon Certain
Indenture Events of Default. If the Owner Trustee or the Owner Participant
shall have given notice of redemption or purchase to the Indenture Trustee
pursuant to Section 8.03(e)(ii) at any time after the Certificates shall have
been accelerated pursuant to Section 8.02 or after one or more Lease Events of
Default shall have occurred and be continuing for a period of one year or more
and the Certificates shall not have been accelerated, each Outstanding
Certificate shall be redeemed or purchased in whole at a Redemption Price equal
to 100% of its
Indenture-33 (1994 747 B)
principal amount plus accrued and unpaid interest thereon to but excluding the
applicable Redemption Date as determined below. The Redemption Date for
Certificates to be redeemed or purchased pursuant to this Section 6.02 shall be
the date specified in the notice given by the Owner Trustee to the Indenture
Trustee pursuant to Section 8.03(e)(ii). If the Owner Trustee elects to
purchase the Certificates under Section 8.03(e)(ii), nothing herein, including
use of the terms "Redemption Date" and "Redemption Price" shall be deemed to
result in a redemption of the Certificates.
Section 6.03. Notice of Redemption to Holders. Notice of redemption
or purchase shall be given by first-class mail, postage prepaid, mailed not less
than 25 nor more than 60 days prior to the Redemption Date, to each Holder of
Certificates to be redeemed or purchased, at such Holder's address appearing in
the Register; provided that, in the case of a redemption pursuant to Section
6.01(b)(i) related to the Company's exercise of its option pursuant to Section
9(b) of the Lease, such notice shall be revocable and shall be deemed revoked in
the event the Lease does not in fact terminate on the related Lease Termination
Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the applicable basis for determining the Redemption Price,
(3) that on the Redemption Date, the Redemption Price will become due
and payable upon each such Certificate, and that interest on Certificates
shall cease to accrue on and after such Redemption Date, and
(4) the place or places where such Certificates are to be surrendered
for payment of the Redemption Price.
Notice of redemption or purchase of Certificates to be redeemed or purchased
shall be given by the Indenture Trustee.
Section 6.04. Deposit of Redemption Price. 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
Certificates to be redeemed or purchased on the Redemption Date shall not then
be held in the Indenture Estate, deposit or cause to be deposited with the
Indenture Trustee or the Paying Agent by 12:00 noon in immediately available
funds the Redemption Price of the Certificates to be redeemed or purchased on
the Redemption Date.
Indenture-34 (1994 747 B)
Section 6.05. Certificates Payable on Redemption Date. Notice of
redemption or purchase having been given as aforesaid (and not deemed revoked as
contemplated in the proviso to Section 6.03), the Certificates shall, on the
applicable Redemption Date, become due and payable at the principal corporate
trust office of the Indenture Trustee or at any office or agency maintained for
such purposes pursuant to Section 2.03, and from and after such Redemption Date
(unless there shall be a default in the payment of the Redemption Price) any
Certificates then Outstanding shall cease to bear interest. Upon surrender of
any such Certificate for redemption or purchase in accordance with said notice
such Certificate shall be paid at the Redemption Price.
If any Certificate called for redemption or purchase shall not be so
paid upon surrender thereof for redemption or purchase, the principal amount
thereof shall, until paid, continue to bear interest from the applicable
Redemption Date at the interest rate applicable to such Certificate.
ARTICLE 7
MATTERS CONCERNING THE COMPANY
Section 7.01. Repayment of Monies for Certificate Payments Held by
the Indenture Trustee. Any money held by the Indenture Trustee or any Paying
Agent in trust for any payment of the principal of, premium, if any, or interest
on any Certificate, including without limitation any money deposited pursuant to
Article 10 and remaining unclaimed for two years and eleven months after the due
date for such payment, shall be paid to the Owner Trustee; and the Holders of
any Outstanding Certificates shall thereafter, as unsecured general creditors,
look only to the Company on behalf of the Owner Trustee for payment thereof, and
all liability of the Indenture Trustee or any such Paying Agent with respect to
such trust money shall thereupon cease; provided that the Indenture Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be mailed to each such Holder notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of mailing, any unclaimed balance of such
money then remaining will be repaid to the Owner Trustee as provided herein.
Section 7.02. Change in Registration. The Indenture Trustee shall,
upon the request of the Company, consent to the deregistration of the Aircraft
under the laws of the jurisdiction in which it is at the time registered and the
registration of the Aircraft under the laws of another jurisdiction (herein
called a "change in registration") provided that the following conditions are
met:
Indenture-35 (1994 747 B)
(a) such change in registration complies with the provisions of the
Participation Agreement and the Lease;
(b) no Lease Event of Default and no event which, with lapse of time
or notice, or both, would become a Lease Event of Default shall have
occurred and be continuing at the date of such request or at the effective
date of the change in registration, provided that it shall not be necessary
to comply with this condition (b) if the change in registration results in
the registration of the Aircraft under the laws of the United States or if
the Indenture Trustee in its discretion believes the change in registration
would be advantageous to the Holders; and
(c) the Indenture Trustee shall have received an opinion of counsel
reasonably satisfactory to the Indenture Trustee to the effect that:
(i) after giving effect to the change in registration, the Lien
on the Aircraft and the other property included in the Indenture
Estate shall continue as a fully perfected lien and that all filing,
recording or other action necessary to perfect and protect the lien of
this Indenture has been accomplished (or if such opinion cannot be
given at the time by which the Indenture Trustee has been requested to
consent to a change in registration, (x) the opinion shall detail what
filing, recording or other action is necessary and (y) the Indenture
Trustee shall have received a certificate from the Company that all
possible preparations to accomplish such filing, recording and other
action shall have been done, and such filing, recording and other
action shall be accomplished and a supplemental opinion to that effect
shall be delivered to the Indenture Trustee on or prior to the
effective date of the change in registration); and
(ii) the terms of the Lease and this Indenture (including the
governing law clauses) being legal, valid and binding and enforceable
in such jurisdiction, except as the same may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally, and by general principles
of equity and except as limited by applicable laws which may affect
the remedies provided in the Lease and this Indenture, respectively,
which laws, however, do not in the opinion of such counsel make the
remedies provided in the Lease and this Indenture, respectively,
inadequate for the practical realization of the rights and benefits
provided thereby.
The Indenture Trustee shall execute such documents as the Company or the Owner
Trustee shall reasonably request in order to satisfy the above conditions and
upon satisfaction of such conditions to effect the change in registration.
Indenture-36 (1994 747 B)
Section 7.03. Assumption of Obligations of Owner Trustee by the
Company. In the event that the Company shall have elected to assume all of the
rights and obligations of the Owner Trustee under this Indenture in respect of
the Certificates in connection with the purchase by the Company of the Aircraft
pursuant to Section 8(r) of the Participation Agreement and, if on or prior to
the EBO Date:
(a) the Company shall have delivered to the Indenture Trustee a
certificate, dated the EBO Date, of a Responsible Company Officer stating
that the Company has paid to the Owner Trustee all amounts required to be
paid to the Owner Trustee pursuant to Section 19(b) of the Lease in
connection with such purchase and assumption;
(b) no event which constitutes or, with the lapse of time or notice,
or both, would become, an Event of Default under this Indenture after
giving effect to the indenture supplement referred to below shall have
occurred and be continuing immediately subsequent to such purchase or
assumption and the Indenture Trustee shall have received a certificate,
dated the EBO Date, of a Responsible Company Officer to such effect;
(c) the Indenture Trustee shall have received, on or prior to the EBO
Date, evidence of all filings, recordings and other action referred to in
the Opinion or Opinions of Counsel referred to below;
(d) the Indenture Trustee shall have received an Opinion or Opinions
of Counsel for the Company, dated the EBO Date, which without unusual
qualification shall be to the effect that, after giving effect to the
indenture supplement referred to below:
(i) this Indenture constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by
general principles of equity, and except as limited by applicable laws
which may affect the remedies provided for in this Indenture, which
laws, however, do not in the opinion of such counsel make the remedies
provided for in this Indenture inadequate for the practical
realization of the rights and benefits provided for in this Indenture;
(ii) the Aircraft is duly registered in compliance with
applicable law;
Indenture-37 (1994 747 B)
(iii) the Lien on the Aircraft constitutes a fully perfected
Lien and all filing, recording or other action (specifying the same)
necessary to perfect and protect the Lien of this Indenture has been
accomplished;
(iv) the Indenture Trustee would be entitled to the benefits of
Section 1110 of the Bankruptcy Code with respect to the Aircraft;
provided that such opinion may contain qualifications of the tenor
contained in the opinion of special counsel for the Company delivered
pursuant to Section 4(a)(xi)(b) of the Participation Agreement on the
Delivery Date; and
(v) no Holder will be required to recognize gain or loss for tax
purposes in connection with such assumption; and
(e) an indenture supplement reasonably satisfactory to the Indenture
Trustee, dated the EBO Date, shall have been executed by the Indenture
Trustee and any other parties necessary thereto and shall have been
delivered to the Indenture Trustee;
then, automatically and without the requirement of further action by any Person,
effective as of the EBO Date, the Owner Trustee shall be released from all of
its obligations under the Agreement in respect of the Certificates or otherwise
(other than any obligations or liabilities of the Owner Trustee in its
individual capacity incurred on or prior to the EBO Date or arising out of or
based upon events occurring on or prior to the EBO Date, which obligations and
liabilities shall remain the sole responsibility of the Owner Trustee).
If, concurrent with an assumption pursuant to this Section 7.03, the
Aircraft is being reregistered the Company must comply with the provisions of
Section 7.02.
ARTICLE 8
DEFAULTS AND REMEDIES
Section 8.01. Indenture Events of Default. The following events
shall constitute "Indenture Events of Default" under this Indenture (whether any
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) and each such Indenture Event of Default shall be deemed to
exist so long as, but only so long as, it shall not be remedied:
(a) any amount of interest upon any Certificate or of principal of any
Certificate or of premium, if any, in respect of any Certificate shall not
be paid when
Indenture-38 (1994 747 B)
due and payable (whether upon redemption or purchase, final maturity,
acceleration or otherwise) and such default in payment shall continue for
more than 10 days after such amount shall have become due and payable;
(b) any failure by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, to observe or perform in any material
respect any covenant or obligation required pursuant to clauses (i) and
(ii) of Article 4 hereof or Section 8(b) or 8(g) of the Participation
Agreement or the failure by the Owner Participant to observe or perform in
any material respect any covenant or obligation of it contained in Section
8(b) or 8(g) of the Participation Agreement, or, to the extent that the
interest of the Indenture Trustee or any Holder of an Outstanding
Certificate is adversely affected by such failure, in Section 11.01 of the
Trust Agreement or by the termination or revocation by the Owner
Participant of the trust created by the Trust Agreement without the
Indenture Trustee's prior written consent if, but only if, such failure or
termination or revocation is not remedied within a period of 30 days after
there has been given to the Owner Trustee and the Owner Participant by
registered or certified mail a written notice specifying such failure and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder by the Indenture Trustee or by the Holders of at least
25% in principal amount of Outstanding Certificates;
(c) any failure by the Owner Trustee, in its individual capacity or as
Owner Trustee, to observe or perform any other covenant or obligation of
the Owner Trustee contained in this Indenture or in the Participation
Agreement or any failure by the Owner Participant to observe or perform any
other covenant or obligation of the Owner Participant contained in the
Participation 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 Holders and is not
remedied within a period of 30 days after there has been given to the Owner
Trustee and the Owner Participant by registered or certified mail, a
written notice specifying such failure and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder, by the
Indenture Trustee or by the Holders of at least 25% in principal amount of
Outstanding Certificates; provided, however, that, if the Owner Trustee, in
its individual capacity or as Owner Trustee, or the Owner Participant shall
have undertaken to cure any such failure and, notwithstanding the
reasonable diligence of any of them in attempting to cure such failure,
such failure is not cured within said 30 day period but is curable with
future due diligence, there shall exist no Indenture Event of Default as a
consequence of such failure so long as the Owner Trustee in its individual
capacity or as Owner Trustee or the Owner Participant is proceeding with
due diligence to cure such failure, there exists no adverse effect on the
Lien of this Indenture and such failure is in fact cured within a further
period of 90 days;
Indenture-39 (1994 747 B)
(d) any representation or warranty made by the Owner Trustee, in its
individual capacity or as Owner Trustee, or by the Owner Participant under
the Participation Agreement or the Redemption and Refinancing Agreement, or
by the Owner Trustee hereunder, or by the Owner Trustee, in its individual
capacity or as Owner Trustee, or by the Owner Participant in any document
or certificate furnished to the Indenture Trustee in connection herewith or
therewith or pursuant hereto or thereto, shall prove at any time to have
been incorrect in any material respect as of the date made and such
incorrectness shall remain material at the date of the notice referred to
below and such incorrectness shall continue unremedied for a period of 30
days after there has been given to the Owner Trustee and the Owner
Participant by registered or certified mail, a written notice specifying
such incorrectness and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder, by the Indenture Trustee or by
the Holders of at least 25% in principal amount of Outstanding
Certificates;
(e) there shall be a Lease Event of Default other than any such Lease
Event of Default arising by reason of nonpayment of any Excluded Payments
when due; provided that any Lease Event of Default shall be deemed to exist
and continue so long as, but only so long as, it shall not be remedied;
(f) either the Trust Estate or the Owner Trustee with respect thereto
(and not in its individual capacity) or the Owner Participant, as the case
may be, shall (i) 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, (ii) make an assignment
for the benefit of its creditors, or (iii) 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
(g) a court or governmental authority of competent jurisdiction shall
enter an order appointing, without consent by the Indenture Estate or the
Owner Trustee with respect thereto (and not in its individual capacity) or
the Owner Participant, 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 Indenture Estate or the Owner Trustee with respect
thereto (and not in its individual capacity) or the Owner Participant, as
the case may be, and any such order or petition is not dismissed or stayed
within 60 days after the earlier of the entering of any such order or the
approval of any such petition.
Indenture-40 (1994 747 B)
Section 8.02. Acceleration; Rescission and Annulment. If an
Indenture Event of Default occurs and is continuing, either the Indenture
Trustee, by notice to the Company and the Owner Trustee, or the Holders of at
least 25% in aggregate principal amount of Outstanding Certificates, by notice
to the Company, the Indenture Trustee, the Owner Trustee and the Owner
Participant, may declare the principal of all the Certificates to be due and
payable; provided that the Certificates will automatically become immediately
due and payable without any action of the Indenture Trustee or of any Holder in
the case of an Indenture Event of Default under Section 8.01(f) or (g). Upon
such declaration, the principal of all Certificates together with accrued
interest thereon from the date in respect of which interest was last paid
hereunder to the date payment of such principal has been made or duly provided
for, shall be immediately due and payable. At any time after such declaration
and prior to the sale or disposition of the Indenture Estate, the Holders of a
majority in aggregate principal amount of all of the Outstanding Certificates,
by notice to the Indenture Trustee, the Company, the Owner Trustee and the Owner
Participant, may rescind such a declaration and thereby annul its consequences
if (i) an amount sufficient to pay all principal on any Certificates which have
become due otherwise than by such declaration and any interest thereon and
interest due or past due, if any, and all sums due and payable to the Indenture
Trustee have been deposited with the Indenture Trustee, (ii) the rescission
would not conflict with any judgment or decree and (iii) all existing Indenture
Defaults and Indenture Events of Default under this Indenture have been cured or
waived except nonpayment of principal of, or interest on, the Certificates that
has become due solely because of such acceleration.
Section 8.03. Other Remedies Available to Indenture Trustee. (a)
After an Indenture Event of Default shall have occurred and so long as such
Indenture Event of Default shall be continuing, then and in every such case the
Indenture Trustee, as trustee of an express trust and as assignee hereunder of
the Lease or as holder of a security interest in the Aircraft or Engines or
otherwise, may, and when required pursuant to the provisions of Article 9 shall,
exercise, subject to Sections [8.02(a)], 8.03(b), 8.03(e), 8.03(f) and 8.03(h),
any or all of the rights and powers and pursue any and all of the remedies
accorded to the Owner Trustee pursuant to Section 15 of the Lease and this
Article 8, may recover judgment in its own name as Indenture Trustee against the
Indenture Estate and may take possession of all or any part of the Indenture
Estate and may exclude the Owner Trustee and the Owner Participant and all
persons claiming under any of them wholly or partly therefrom.
(b) After an Indenture Event of Default shall have occurred and so
long as such Indenture Event of Default shall be continuing, subject to Sections
8.03(e), 8.03(f) and 8.03(h), the Indenture Trustee may, if at the time such
action may be lawful and always subject to compliance with any mandatory legal
requirements, either with or without taking possession, and either before or
after taking possession and without instituting any legal proceedings
whatsoever, and having first given notice of such sale by registered mail to the
Owner Trustee, the Owner Participant and the Company once at least 30 days prior
to the
Indenture-41 (1994 747 B)
date of such sale, and any other notice which may be required by law, sell and
dispose of the Indenture Estate, or any part thereof, or interest therein, at
public auction to the highest bidder, in one lot as an entirety or in separate
lots, and either for cash or on credit and on such terms as the Indenture
Trustee may determine, and at any place (whether or not it be the location of
the Indenture Estate or any part thereof) and time designated in the notice
above referred to; provided, however, that, notwithstanding any provision herein
to the contrary, the Indenture Trustee may not provide the notice provided for
above of its intention to sell any of the Indenture Estate, exercise remedies
under the Lease or exercise other remedies against the Indenture Estate seeking
to deprive the Owner Trustee or the Owner Participant of its rights therein
unless a declaration of acceleration has been made pursuant to Section 8.02 or
the Certificates have otherwise theretofore become due and payable through
redemption or otherwise. Any such sale or sales may be adjourned from time to
time by announcement at the time and place appointed for such sale or sales, or
for any such adjourned sale or sales, without further notice, and the Indenture
Trustee, the Holder or Holders of any Certificates or any interest therein, the
Owner Trustee and the Owner Participant may bid and become the purchaser at any
such sale. No such sale may be consummated if the Owner Trustee shall, prior to
the consummation thereof, have given notice pursuant to and made the deposit
required by Section 8.03(e)(ii). The Indenture Trustee may exercise such right
without possession or production of the Certificates or proof of ownership
thereof, and as representative of the Holders may exercise such right without
notice to the Holders or including the Holders as parties to any suit or
proceeding relating to foreclosure of any property in the Indenture Estate. The
Owner Trustee hereby irrevocably constitutes the Indenture Trustee the true and
lawful attorney-in-fact of the Owner Trustee (in the name of the Owner Trustee
or otherwise) for the purpose of effectuating any sale, assignment, transfer or
delivery for enforcement of the lien created under this Indenture, whether
pursuant to foreclosure or power of sale or otherwise, to execute and deliver
all such bills of sale, assignments and other instruments as the Indenture
Trustee may consider necessary or appropriate, with full power of substitution,
the Owner Trustee hereby ratifying and confirming all that such attorney or any
substitute shall lawfully do by virtue hereof. Nevertheless, if so requested by
the Indenture Trustee or any purchaser, the Owner Trustee shall ratify and
confirm any such sale, assignment, transfer or delivery, by executing and
delivering to the Indenture Trustee or such purchaser all bills of sale,
assignments, releases and other proper instruments to effect such ratification
and confirmation as may be designated in any such request.
(c) Subject to Sections 8.03(e) and 8.03(f), if an Indenture Event of
Default has occurred and is continuing, the Owner Trustee shall, at the request
of the Indenture Trustee, promptly execute and deliver to the Indenture Trustee
such instruments of title or 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 Indenture Estate. If the Owner Trustee shall for any
Indenture-42 (1994 747 B)
reason fail to execute and deliver such instruments and documents after such
request by the Indenture Trustee, the Indenture Trustee shall be entitled, in a
proceeding to which the Owner Trustee will be a necessary party, to a judgment
for specific performance of the covenants contained in the foregoing sentence,
conferring upon 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. The Indenture Trustee shall also be
entitled to pursue all or any part of the Indenture Estate wherever it may be
found and may enter any of the premises of the Owner Trustee or any other Person
wherever the Indenture Estate may be or be supposed to be and search for the
Indenture Estate and take possession of any item of the Indenture Estate
pursuant to this Section 8.03(c). The Indenture Trustee may, from time to time,
at the expense of the Indenture Estate, make all such expenditures for
maintenance, insurance, repairs, replacements, alterations, additions and
improvements to and of the Indenture Estate, as it may deem proper. In each
such case, the Indenture Trustee shall have the right to use, operate, store,
lease, control or manage the Indenture Estate, and to exercise all rights and
powers of the Owner Trustee relating to the Indenture Estate as the Indenture
Trustee shall deem appropriate, including the right to enter into any and all
such agreements with respect to the use, operation, storage, leasing, control or
management of the Indenture Estate or any part thereof; and the Indenture
Trustee shall be entitled to collect and receive directly all tolls, rents
(including Rent), issues, profits, products, revenues and other income of the
Indenture Estate and every part thereof, 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. In accordance with the terms of this Section 8.03(c), such
tolls, rents (including Rent), issues, profits, products, revenues and other
income shall be applied to pay the expenses of using, operating, storing,
leasing, controlling or managing the Indenture Estate, and of all maintenance,
insurance, 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
Indenture Estate or any part thereof (including the employment of engineers and
accountants to examine, inspect and make reports upon the properties and books
and records of the Owner Trustee and, to the extent permitted by the Lease, the
Company), and all other payments which the Indenture Trustee may be required or
authorized to make under any provision of this Indenture, including this Section
8.03(c), 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.
If an Indenture Event of Default occurs and is continuing and the
Indenture Trustee shall have obtained possession of or title to the Aircraft,
the Indenture Trustee shall not be obligated to use or operate the Aircraft or
cause the Aircraft to be used or operated directly or indirectly by itself or
through agents or other representatives or to lease, license or otherwise permit
or provide for the use or operation of the Aircraft by any other Person unless
(i) the Indenture Trustee shall have been able to obtain insurance in kinds, at
rates and
Indenture-43 (1994 747 B)
in amounts satisfactory to it in its discretion to protect the Indenture Estate
and the Indenture Trustee, as trustee and individually, against any and all
liability for loss or damage to the Aircraft and for public liability and
property damage resulting from use or operation of the Aircraft and (ii) funds
are available in the Indenture Estate to pay for all such insurance or, in lieu
of such insurance, the Indenture Trustee is furnished with indemnification from
the Holders or any other Person upon terms and in amounts satisfactory to the
Indenture Trustee in its discretion to protect the Indenture Estate and the
Indenture Trustee, as trustee and individually, against any and all such
liabilities.
(d) Subject to Sections 8.03(b), 8.03(e) and 8.03(f), the Indenture
Trustee may proceed to protect and enforce this Indenture and the Certificates
by suit or suits or proceedings in equity, at law or in bankruptcy, and whether
for the specific performance of any covenant or agreement herein contained or in
execution or aid of any power herein granted; or for foreclosure hereunder, or
for the appointment of a receiver or receivers for the Indenture Estate or any
part thereof, or for the recovery of judgment for the indebtedness secured by
the Lien created under this Indenture or for the enforcement of any other
proper, legal or equitable remedy available under applicable law.
(e) (i) If the Company shall fail to make any payment of Basic Rent
under the Lease when the same shall become due, and if such failure of the
Company to make such payment of Basic Rent shall not constitute the fourth
consecutive such failure or the seventh or subsequent cumulative such failure,
then as long as no Indenture Event of Default (other than arising from a Lease
Event of Default not involving any failure to make any payments to which the
Indenture Trustee or any Holder is entitled hereunder when due) shall have
occurred and be continuing, the Owner Participant or the Owner Trustee may (but
need not) pay to the Indenture Trustee, at any time prior to the sixth day
subsequent to the expiration of the grace period provided for in Section 14(a)
of the Lease with respect to the payment of Basic Rent (and the Indenture
Trustee shall not (without the prior written consent of the Owner Trustee)
declare the Lease in default pursuant to Section 15 thereof or exercise any of
the rights, powers or remedies pursuant to such Section 15 or this Article 8
prior to the occurrence of such date), an amount equal to the full amount of
such payment of Basic Rent, together with any interest due thereon on account of
the delayed payment thereof to the date of such payment, and such payment by the
Owner Participant or the Owner Trustee shall be deemed to cure as of the date of
such payment any Indenture Event of Default which arose from such failure of the
Company (including any Lease Event of Default arising from the Company's failure
to pay interest in respect of such overdue Basic Rent for the period commencing
on the date of such payment), but such cure shall not relieve the Company of any
of its obligations. If the Company shall fail to perform or observe any
covenant, condition or agreement to be performed or observed by it under the
Lease, and if (but only if) the performance or observance thereof can be
effected by the payment of money alone (it being understood that actions such as
the obtaining of insurance and the procurement of maintenance services can be so
effected), then as long as no other Indenture Event of Default
Indenture-44 (1994 747 B)
(other than those arising from a Lease Event of Default) shall have occurred and
be continuing, the Owner Participant or the Owner Trustee may (but need not) pay
to the Indenture Trustee (or to such other person as may be entitled to receive
the same), at any time prior to the 11th day subsequent the expiration of the
grace period, if any, provided with respect to such failure on the part of the
Company in Section 14 of the Lease (and the Indenture Trustee shall not (without
the prior written consent of the Owner Trustee) declare the Lease in default
pursuant to Section 15 thereof or exercise any of the rights, powers or remedies
pursuant to such Section 15 or this Article 8 prior to the occurrence of such
date), all sums necessary to effect the performance or observance of such
covenant or agreement of the Company, together with any interest due thereon on
account of the delayed payment thereof to the date of such payments and such
payment by the Owner Participant or the Owner Trustee shall be deemed to cure as
of the date of such payment any Indenture Event of Default which arose from such
failure of the Company (including any Lease Event of Default arising from the
Company's failure to pay interest in respect of such overdue payment for the
period commencing on the date of such payment), but such cure shall not relieve
the Company of any of its obligations. Upon any payment of Basic Rent by the
Owner Participant or the Owner Trustee in accordance with the first sentence of
this Section 8.03(e)(i), or upon any payment of any other sums by the Owner
Participant or the Owner Trustee in accordance with the second sentence of this
Section 8.03(e)(i), the Owner Participant or the Owner Trustee shall, to the
extent of their respective payments, be subrogated, in the case of any such
payment in accordance with such first sentence, to the rights of the Indenture
Trustee, as assignee hereunder of the Owner Trustee, or, in the case of any such
payment in accordance with such second sentence, to the rights of the Indenture
Trustee or such other person as the case may be, which actually received such
payment, to receive such payment of Basic Rent or such other payment, as the
case may be (and any interest due thereon on account of the delayed payment
thereof), and shall be entitled to receive such payment upon its receipt by the
Indenture Trustee or such other person, as aforesaid (but in each case only if
all amounts of principal of, and interest at the time due and payable on, the
Certificates together with interest due thereon on account of the delayed
payment thereof shall have been paid in full); provided that neither the Owner
Participant nor the Owner Trustee shall attempt to recover any
such amount paid by it on behalf of the Company pursuant to this Section
8.03(e)(i) except by demanding of the Company payment of such amount or by
proceeding by appropriate court action against the Company to enforce the
payment of such amount pursuant to Section 15(g), but only said Section 15(g),
of the Lease.
(ii) In the event that (A) at any time one or more Lease Events of
Default shall have occurred and be continuing for a period of 180 days or more
but less than one year and the Certificates shall not have been accelerated or
(B) the Certificates shall have been accelerated pursuant to Section 8.02 or
after one or more Lease Events of Default shall have occurred and be continuing
for a period of one year or more, the Owner Trustee or the Owner Participant
may, at its option, give at least 30 days' prior irrevocable notice to the
Indenture-45 (1994 747 B)
Indenture Trustee that the Owner Trustee or the Owner Participant will redeem or
purchase all Certificates then outstanding on the Business Day specified in such
notice and, concurrently with such notice, the Owner Trustee or the Owner
Participant will deposit with the Indenture Trustee an amount sufficient to
redeem or purchase at the applicable Redemption Price determined consistently
with the applicable provisions of Article 6 all Certificates then outstanding
(including, if Section 6.01(b) is applicable, an estimate of the premium to be
paid on the Redemption Date computed using the Treasury Yield determined as if
the Redemption Date were the date of such notice) and to pay the Indenture
Trustee all amounts then due it hereunder, which funds shall be held by the
Indenture Trustee as provided in Section 9.04. Upon the giving of such notice
and the receipt by the Indenture Trustee of such deposit, the Indenture Trustee
shall deem all instructions received from the Owner Trustee as having been given
by the Holders of 100% of the outstanding principal amount of Certificates for
all purposes of this Indenture. If such notice is given, the Owner Trustee
further agrees that it will deposit or cause to be deposited with the Indenture
Trustee, on or prior to the Business Day preceding the applicable Redemption
Date, whether or not an Indenture Event of Default is then continuing, funds
sufficient, when added to the funds already held by the Indenture Trustee for
such purpose, to redeem or purchase at the applicable Redemption Price
(including the premium actually payable in respect thereof) on such Redemption
Date all Certificates then outstanding and to pay the Indenture Trustee all
amounts then due it hereunder.
(iii) Anything in this Indenture to the contrary notwithstanding the
Indenture Trustee shall not be entitled to exercise any remedy hereunder as a
result of an Indenture Event of Default which arises solely by reason of one or
more events or circumstances which constitute a Lease Event of Default unless
the Indenture Trustee as security assignee of the Owner Trustee shall have
exercised or concurrently be exercising one or more of the remedies provided for
in Sections 15(a)-(f) of the Lease with respect to the Aircraft; 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)(l)(A) of the Bankruptcy Code (such 60-day or
other period being the "Section 1110 Period"), involuntarily 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)(A-B) 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
Indenture-46 (1994 747 B)
Code or (C) results from the Company'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. References in this
subsection (iii) to particular sections of the Bankruptcy Code as in effect on
the date of the amendment and restatement of this Indenture shall include any
substantially similar successor provisions.
(f) Notwithstanding any provision of this Indenture to the contrary,
including, without limitation, Sections 8.03(b), 8.03(c) and 8.03(d), as long as
no Lease Event of Default shall have occurred and be continuing, neither the
Indenture Trustee nor the Owner Trustee shall take any action in violation of
the Company's rights under the Lease, including, without limitation, (x) the
right to receive all monies due and payable to it in accordance with the
provisions of the Lease and (y) the Company's rights to possession and use of,
and of quiet enjoyment of, the Aircraft.
(g) Each and every right, power and remedy herein 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 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 pursuing 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 Company or to be an acquiescence therein.
(h) Notwithstanding anything contained herein to the contrary, so long
as the Pass Through Trustee is a Holder, the Indenture Trustee is not authorized
or empowered to acquire title to the Indenture Estate, or to take any action
with respect to any of the Indenture Estate so acquired by it, if such
acquisition or action would cause any Pass Through Trust to fail to qualify as a
"grantor trust" for federal income tax purposes.
Section 8.04. Waiver of Owner Trustee. To the extent now or at any
time hereafter enforceable under applicable law, the Owner Trustee covenants
that it will not at any time insist upon or plead, or in any manner whatsoever
claim or take any benefit or advantage of or from any law now or hereafter in
force providing for the valuation or appraisal of the Indenture Estate or any
part thereof, prior to any sale or sales thereof to be made pursuant to any
provision herein contained, or prior to any applicable decree, judgment or order
of any court of competent jurisdiction; nor, after such sale or sales, claim or
exercise any right under any statute now or hereafter made or enacted by any
state or
Indenture-47 (1994 747 B)
otherwise to redeem the property so sold or any part thereof, and hereby
expressly waives for itself and on behalf of each and every Person, except
decree or judgment creditors of the Owner Trustee acquiring any interest in or
title to the Indenture Estate or any part thereof subsequent to the date of this
Indenture, all benefit and advantage of any such law or laws, and covenants that
it will not invoke or utilize any such law or laws, but will suffer and permit
the execution of every such power as though no such law or laws had been made or
enacted. Nothing in this Section 8.04 shall be deemed to be a waiver by the
Owner Trustee of its rights under Section 8.03(e).
The Indenture Trustee may maintain such a pleading, or, in any manner
whatsoever, claim or take any benefit or advantage of or from any law now or
hereafter in force even if it does not possess any of the Certificates or does
not produce any of them in the proceeding. A delay or omission by the Indenture
Trustee or any Holder in exercising any right or remedy accruing upon an
Indenture Event of Default under this Indenture shall not impair the right or
remedy or constitute a waiver of or acquiescence in such Indenture Event of
Default.
Section 8.05. Waiver of Existing Defaults. The Holders of a majority
in the aggregate principal amount of the Outstanding Certificates by notice to
the Indenture Trustee may waive on behalf of the Holders an existing Indenture
Default or Indenture Event of Default and its consequences except an Indenture
Default or Indenture Event of Default (i) in the payment of the principal of or
interest on any Certificate or (ii) in respect of a covenant or provision hereof
which pursuant to Section 11.02 cannot be amended or modified without the
consent of the Holder affected.
Section 8.06. Control by Majority. (a) The Holders of a majority in
aggregate principal amount of the Outstanding Certificates may direct the time,
method and place of conducting any proceeding for any remedy available to the
Indenture Trustee or exercising any trust or power conferred on it by this
Indenture. However, the Indenture Trustee may refuse to follow any direction
that conflicts with law or this Indenture, that is unduly prejudicial to the
rights of the Holders so affected, or that would subject the Indenture Trustee
to personal liability.
(b) The Owner Trustee may pursuant to the direction and instruction of
the Owner Participant by delivery of written notice to the Indenture Trustee set
a record date to determine the Holders entitled to give any consent, request,
demand, authorization, direction, notice, waiver or other act. Such record date
shall be the record date specified in such Officers' Certificate which shall be
a date not more than 30 days prior to the first solicitation of Holders in
connection therewith. If such a record date is fixed, such consent, request,
demand, authorization, direction, notice, waiver or other act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders holding the
Indenture-48 (1994 747 B)
requisite proportion of certificates have authorized or agreed or consented to
such consent, request, demand, authorization, direction, notice, waiver or other
act, and for that purpose the Outstanding Certificates shall be computed as of
such record date; provided that no such consent, request, demand, authorization,
direction, notice, waiver or other act by the Holders on such record date shall
be deemed effective unless it shall become effective pursuant to the provisions
of this Indenture not later than one year after the record date.
Section 8.07. Limitation on Suits by Holders. A Holder may pursue a
remedy under this Indenture or thereunder only if:
(1) the Holder gives to the Indenture Trustee written notice of a
continuing Indenture Event of Default under this Indenture;
(2) the Holders of at least 25% in aggregate principal amount of the
Outstanding Certificates make a written request to the Indenture Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Indenture Trustee indemnity
satisfactory to the Indenture Trustee against any loss, liability or
expense to be, or which may be, incurred by the Indenture Trustee in
pursuing the remedy;
(4) the Indenture Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in aggregate
principal amount of the Outstanding Certificates do not give the Indenture
Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
Section 8.08. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture the right of any Holder to receive payment
of principal of, premium, if any, and interest on such Certificate on or after
the respective due dates expressed in such Certificate, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
Section 8.09. Indenture Trustee May File Proofs of Claim. The
Indenture Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Indenture
Trustee and of the Holders allowed in
Indenture-49 (1994 747 B)
any judicial proceedings relating to any obligor on the Certificates, its
creditors, or its property.
ARTICLE 9
INDENTURE TRUSTEE
Section 9.01. Duties of Indenture Trustee. (a) The Indenture
Trustee may refuse to perform any duty or exercise any right or power unless it
receives indemnity satisfactory to it against any loss, liability or expense.
(b) Subject to the provisions of Section 9.04, the Indenture Trustee
shall not be liable for interest on any money received except as otherwise
provided in any other Operative Document. Money held in trust by the Indenture
Trustee need not be segregated from other funds except to the extent required by
law.
Section 9.02. Rights of Indenture Trustee. (a) The Indenture
Trustee may rely on any document believed by it to be genuine and to have been
signed or presented by the proper person. The Indenture Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
consult with counsel or require an Officer's Certificate or an Opinion of
Counsel from the Company or the Owner Trustee after which it will take such
action or refrain from acting as it deems appropriate. The Indenture Trustee
shall not be liable for any action it takes or omits to take in good faith and
in accordance herewith in reliance on a resolution of the Board of Directors of
the Company, the written advice of counsel acceptable to the Owner Trustee, the
Company and the Indenture Trustee, officer's certificates or opinions of counsel
provided by the Company or the Owner Trustee.
(c) The Indenture Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any such agent appointed with
due care; provided that, so long as no Lease Event of Default shall have
occurred and be continuing no such agents shall be appointed by the Indenture
Trustee without the consent of the Company and the Owner Trustee, which consent
shall, in each case, not be unreasonably withheld.
(d) The Indenture Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers.
(e) If an Indenture Event of Default under this Indenture has occurred
and is continuing, the Indenture Trustee shall exercise its rights and powers
under this Indenture,
Indenture-50 (1994 747 B)
and shall use the same degree of care and skill in their exercise, as a prudent
man would exercise or use under the circumstances in the conduct of his own
affairs.
Section 9.03. Individual Rights of Indenture Trustee. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates and may otherwise deal with the Owner Trustee, the Company or an
Affiliate of the Owner Trustee or the Company or a subsidiary of the Owner
Trustee or the Company with the same rights it would have if it were not the
Indenture Trustee. Any Agent may do the same with like rights.
Section 9.04. Funds May Be Held by Indenture Trustee or Paying Agent;
Investments. Any monies (including without limitation for purpose of this
Section 9.04 Permitted Investments constituting the proceeds of the maturity,
sale or other disposition of any Permitted Investment) held by the Indenture
Trustee or the Paying Agent hereunder as part of the Indenture Estate, until
paid out by the Indenture Trustee or the Paying Agent as herein provided, (i)
subject to clause (ii) below, may be carried by the Indenture Trustee or the
Paying Agent on deposit with itself or on deposit to its account with any bank,
trust company or national banking association incorporated or doing business
under the laws of the United States of America or one of the States thereof
having combined capital and surplus and retained earnings of at least
$100,000,000, and neither the Indenture Trustee nor the Paying Agent shall have
any liability for interest upon any such monies except as otherwise agreed in
writing or (ii) at any time and from time to time, so long as no Lease Event of
Default shall have occurred and be continuing, at the request (given directly by
the Company to the Indenture Trustee) of the Company acting as the Agent of the
Owner Trustee, shall be invested and reinvested in Permitted Investments as
specified in such request (if such investments are reasonably available for
purchase) and sold, in any case at such prices, including accrued interest or
its equivalent, as are set forth in such request, and such Permitted Investments
shall be held by the Indenture Trustee in trust as part of the Indenture Estate
until so sold; provided that the Company pursuant to Section 22 of the Lease, on
behalf of the Owner Trustee, as agent of the Owner Trustee, shall upon demand
pay to the Indenture Trustee the amount of any loss realized upon maturity, sale
or other disposition of any such Permitted Investment and, so long as no Lease
Event of Default or Lease Default of the type described in Section 14(a), 14(b),
14(f) or 14(g) of the Lease shall have occurred and be continuing, be entitled
to receive from the Indenture Trustee, and the Indenture Trustee shall promptly
pay to the Company, on behalf of the Owner Trustee, any profit, income,
interest, dividend or gain realized upon maturity, sale or other disposition of
any Permitted Investment. If any Lease Event of Default shall have occurred and
be continuing, any net income, profit, interest, dividend or gain realized upon
maturity, sale or other disposition of any Permitted Investment shall be held as
part of the Indenture Estate and shall be applied by the Indenture Trustee at
the same time, on the same conditions and in the same manner as the amounts in
respect of which such income, profit, interest, dividend or gain was realized
are required to be distributed in accordance with the provisions hereof or of
the
Indenture-51 (1994 747 B)
Lease pursuant to which such amounts were required to be held. The Indenture
Trustee shall not be responsible for any losses on any investments or sales of
Permitted Investments made pursuant to the procedure specified in this Section
9.04.
Section 9.05. Notice of Defaults. If an Indenture Event of Default
under this Indenture occurs and is continuing and the Indenture Trustee has
Actual Knowledge of same, the Indenture Trustee shall (i) promptly send written
notice thereof by telecopier to the Company, the Owner Trustee and the Owner
Participant and (ii) within 90 days after it occurs, mail to each Holder notice
of all uncured Indenture Events of Default under this Indenture. Except in the
case of a default in the payment of the principal of, premium, if any, or
interest on any Certificate, the Indenture Trustee shall be protected in
withholding the notice required under clause (ii) above if and so long as the
executive committee or trust committee of directors of the Indenture Trustee
and/or Responsible Officers thereof in good faith determines that withholding
such notice is in the interest of the Holders. In addition, if an Indenture
Default under this Indenture occurs and is continuing and if the Indenture
Trustee has Actual Knowledge of same, the Indenture Trustee shall promptly send
written notice thereof by telecopier to the Company, the Owner Trustee and the
Owner Participant.
Section 9.06. Compensation and Indemnity. The Indenture Trustee
shall be entitled to reasonable compensation, including expenses and
disbursements, for all services rendered hereunder and shall have a priority
claim on the Indenture Estate for the payment of such compensation, to the
extent that such compensation shall not be paid by the Company, and shall have
the right to use or apply any monies held by it hereunder in the Indenture
Estate, except those held in trust to pay the principal of, premium, if any, or
interest on the Certificates, toward such payments. The Indenture Trustee
agrees that it shall have no right against the Holders, the Owner Trustee or the
Owner Participant for any fee as compensation for its services as trustee under
this Indenture.
Section 9.07. Replacement of Indenture Trustee. (a) The resignation
or removal of the Indenture Trustee and the appointment of a successor Indenture
Trustee shall become effective only upon the successor Indenture Trustee's
acceptance of appointment as provided in this Section.
(b) The Indenture Trustee may resign by giving at least 30 days' prior
written notice to the Company and the Owner Trustee. The Holders of a majority
in aggregate principal amount of the Outstanding Certificates may remove the
Indenture Trustee by giving at least 30 days' prior written notice to the
Indenture Trustee, the Owner Trustee and the Company and may appoint a successor
Indenture Trustee for such Certificates with the Owner Trustee's and (so long as
no Lease Event of Default is continuing) the Company's consent. The Owner
Trustee may remove the Indenture Trustee if:
(1) the Indenture Trustee fails to comply with Section 9.09;
Indenture-52 (1994 747 B)
(2) the Indenture Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or public officer takes charge of the Indenture Trustee
or its property; or
(4) the Indenture Trustee becomes incapable of acting.
(c) If the Indenture Trustee resigns or is removed, or if a vacancy
exists in the office of Indenture Trustee for any reason, the Owner Trustee
shall promptly appoint a successor Indenture Trustee which will (so long as no
Lease Event of Default is continuing) be approved by the Company.
(d) If a successor Indenture Trustee does not take office within 30
days after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Company, the Owner Trustee or the Holders of a majority
in aggregate principal amount of the Outstanding Certificates may petition any
court of competent jurisdiction for the appointment of a successor Indenture
Trustee.
(e) If the Indenture Trustee fails to comply with Section 9.09, any
Holder may petition any court of competent jurisdiction for the removal of such
Indenture Trustee and the appointment of a successor Indenture Trustee.
(f) A successor Indenture Trustee shall deliver a written acceptance
of its appointment to the retiring Indenture Trustee, to the Company and to the
Owner Trustee. Thereupon, the resignation or removal of the retiring Indenture
Trustee shall become effective, and the successor Indenture Trustee shall have
all the rights, powers and duties of the retiring Indenture Trustee for which
the successor Indenture Trustee is to be acting as Indenture Trustee under this
Indenture. The retiring Indenture Trustee shall promptly transfer all property
and all books and records relating to the administration of the Indenture Estate
held by it as Indenture Trustee to the successor Indenture Trustee subject to
the lien provided for in Section 9.06. The Company shall give notice of each
appointment of a successor Indenture Trustee if there are Certificates
outstanding, by mailing written notice of such event by first-class mail to the
Holders.
(g) All provisions of this Section 9.07 except subparagraphs (b)(1)
and (e) and the words "subject to the lien provided for in Section 9.06" in
subparagraph (f) shall apply also to any Paying Agent.
Section 9.08. Successor Indenture Trustee, Agents by ▇▇▇▇▇▇, etc. If
the Indenture Trustee or any Agent consolidates with, merges or converts into,
or transfers all or substantially all of its corporate trust business assets to,
another corporation, the successor
Indenture-53 (1994 747 B)
corporation, without any further act, shall be the successor Indenture Trustee
or Agent, as the case may be.
Section 9.09. Eligibility; Disqualification. This Indenture shall at
all times have an Indenture Trustee which (i) shall have a combined capital and
surplus of at least $75,000,000 or (ii) shall have a combined capital and
surplus in excess of $5,000,000 and the obligations of which, whether now in
existence or hereafter incurred, are fully and unconditionally guaranteed by a
corporation organized and doing business under the laws of the United States,
any State or Territory thereof or of the District of Columbia and having a
combined capital and surplus of at least $75,000,000, and which, in any case,
shall be a Citizen of the United States. If such corporation publishes reports
of conditions at least annually, pursuant to law or to the requirements of
Federal, State, Territorial, or District of Columbia supervising or examining
authority, then for the purposes of this Section 9.09, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of conditions so published.
In case at any time the Indenture Trustee shall cease to be eligible
in accordance with the provisions of this Section 9.09, the Indenture Trustee
shall resign immediately in the manner and with the effect specified in Section
9.07.
Section 9.10. Trustee's Liens. The Indenture Trustee in its
individual capacity agrees that it will at its own cost and expense promptly
take such action as may be necessary to duly discharge and satisfy in full all
Liens ("Trustee's Liens") on the Indenture Estate which are either (i)
attributable to the Indenture Trustee in its individual capacity and which are
unrelated to the transactions contemplated by the Operative Documents, or (ii)
which are attributable to the Indenture Trustee as trustee hereunder or in its
individual capacity and which arise out of acts or omissions which are not
expressly contemplated by this Indenture.
Section 9.11. Withholding Taxes; Information Reporting. The
Indenture Trustee shall exclude and withhold from each distribution of
principal, premium, if any, and interest and other amounts due hereunder or
under the Certificates any and all 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 taxes or similar
charges are required to be withheld with respect to any amounts payable in
respect to the Certificates, to withhold such amounts and timely pay the same to
the appropriate authority in the name of and on behalf of the Holders, that it
will file any necessary withholding tax returns or statements when due, and
that, as promptly as possible after the payment thereof, it will deliver to each
Holder appropriate documentation showing the payment thereof, together with such
additional documentary evidence as such Holders may reasonably request from time
to time. The Indenture Trustee agrees to file any other
Indenture-54 (1994 747 B)
information reports as it may be required to file under United States law. Such
withholding by the Indenture Trustee shall in no event give rise to an Indenture
Event of Default.
ARTICLE 10
SATISFACTION AND DISCHARGE; DEFEASANCE;
TERMINATION OF OBLIGATIONS
Section 10.01. Satisfaction and Discharge of Agreement; Defeasance;
Termination of Obligations. Subject to Section 10.02, this Indenture shall
cease to be of further effect, and the Owner Trustee and the Indenture Trustee
shall, except as herein provided, be deemed to have been discharged from their
respective obligations with respect to the Certificates (and the Indenture
Trustee, on demand and at the expense of the Owner Trustee, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture in
respect of the Certificates), when
(a) (i) all Certificates theretofore executed and delivered (other
than (A) Certificates which have been mutilated, destroyed, lost or stolen
and which have been replaced or exchanged as provided in Section 2.06 and
(B) Certificates for the payment of which money held in trust hereunder has
been paid and discharged from such trust, as provided in Section 7.01) have
been delivered to the Indenture Trustee for cancellation; or
(ii) all Certificates not theretofore delivered to the Indenture
Trustee for cancellation
(A) have become due and payable (whether upon stated maturity or
as a result of redemption), or
(B) will become due and payable (including as a result of
redemption in respect of which irrevocable notice has been given to
the Indenture Trustee on or prior to the date of such deposit and such
redemption either is a redemption without possibility of premium or,
as of the date of such deposit, any premium which may be payable in
connection therewith has been actually determined) at maturity or on a
Redemption Date within one year,
and there has been deposited with the Indenture Trustee in trust for the
purpose of paying and discharging the entire indebtedness on the
Certificates not theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation, an amount sufficient
to discharge such indebtedness, including the principal of, the actual
premium, if any, and interest on the Certificates to the date of
Indenture-55 (1994 747 B)
such deposit (in the case of Certificates which have become due and
payable), or to the maturity thereof or to the Redemption Date thereof, as
the case may be; or
(iii) (A) the Owner Trustee, subsequent to the Commencement Date,
has deposited or caused to be deposited irrevocably (except as provided in
Section 10.04) with the Indenture Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders, (1) money in an amount, or (2) U.S. Government Obligations
which, through the payment of interest and principal in respect thereof in
accordance with their terms, will provide (not later than one Business Day
before the due date of any payment referred to below in this paragraph)
money in an amount, or (3) a combination of money and U.S. Government
Obligations referred to in the foregoing clause (2), sufficient, in the
opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the
Indenture Trustee, to pay and discharge each installment of principal of
and interest on the Outstanding Certificates on the dates such payments of
principal or interest are due (including as a result of redemption without
the possibility of the payment of premium in respect of which irrevocable
notice has been given to the Indenture Trustee on or prior to the date of
such deposit), and no Lease Event of Default under either Section 14(f) or
14(g) of the Lease shall have occurred and be continuing on the date of
such deposit or at any time during the period ending on the 91st day after
such date; provided, however, that, upon the making of the deposit referred
to above in this clause (A), the right of the Owner Trustee or the Company
to cause the redemption of Certificates (except a redemption in respect of
which irrevocable notice has theretofore been given) shall terminate;
(B) such deposit will not result in a breach or violation of, or
constitute an Indenture Default or Indenture Event of Default under, this
Indenture or a default or event of default under any other agreement or
instrument to which the Owner Trustee or the Company is a party or by which
it is bound; and
(C) the Company on behalf of the Owner Trustee has delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel to the
effect that there has been published by the Internal Revenue Service a
ruling to the effect that Holders will not recognize income, gain or loss
for Federal income tax purposes as a result of the exercise by the Owner
Trustee of its option under this Section 10.01(a)(iii) and will be subject
to Federal income tax on the same amount and in the same manner and at the
same times, as would have been the case if such option had not been
exercised;
Indenture-56 (1994 747 B)
(b) all other amounts then due and payable hereunder have been paid
and no notice of a redemption of the Certificates with the possibility of
the payment of premium has been delivered by the Indenture Trustee; and
(c) the Company on behalf of the Owner Trustee has delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for relating to the
satisfaction and discharge of this Indenture contemplated by this Section
10.01, have been complied with.
Section 10.02. Survival of Certain Obligations. Notwithstanding the
provisions of Section 10.01, the obligations of the Indenture Trustee contained
in Sections 2.01 through 2.08, Section 7.01, Section 9.11, Section 10.03 and
Section 10.04 and the rights, duties, immunities and privileges hereunder of the
Indenture Trustee shall survive.
Section 10.03. Monies to Be Held in Trust. All moneys and U.S.
Government Obligations deposited with the Indenture Trustee pursuant to Section
10.01 shall be held in trust and applied by it, in accordance with the
provisions of the Certificates and this Indenture, to the payment either
directly or through any Paying Agent, as the Indenture Trustee may determine, to
the Holders, of all sums due and to become due thereon for principal, premium,
if any, and interest, but such money need not be segregated from other funds
except to the extent required by law.
Section 10.04. Monies to Be Returned to Owner Trustee. The Indenture
Trustee and any Paying Agent shall promptly pay or return to the Owner Trustee
upon request of the Owner Trustee any money or U.S. Government Obligations held
by them at any time that are not required for the payment of the amounts
described above in Section 10.03 on the Certificates for which money or U.S.
Government Obligations have been deposited pursuant to Section 10.01.
ARTICLE 11
AMENDMENTS AND WAIVERS
Section 11.01. Amendments to this Indenture Without Consent of
Holders. The Owner Trustee and the Indenture Trustee may enter into one or more
agreements supplemental hereto without the consent of any Holder for any of the
following purposes:
(1) to correct any mistake or cure any ambiguity, defect or
inconsistency herein or in the Certificates or to make any change not
inconsistent with the provisions hereof; provided that such change does not
adversely affect the interests of any Holder;
Indenture-57 (1994 747 B)
(2) to evidence the succession of another party as the Owner Trustee
in accordance with the terms of the Trust Agreement or to evidence (in
accordance with Article 9) the succession of a new trustee hereunder, the
removal of the trustee hereunder or the appointment of any co-trustee or
co-trustees or any separate or additional trustee or trustees;
(3) to convey, 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 Holders;
(4) 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 or to subject to the lien of this
Indenture the Airframe or Engines or airframe or engines substituted for
the Airframe or Engines in accordance herewith or with the Lease; provided
that Trust Supplements entered into for the purpose of subjecting to the
lien of this Indenture the Airframe or Engines in accordance with the Lease
need only be executed by the Owner Trustee and the Indenture Trustee;
(5) to add to the covenants of the Owner Trustee, for the benefit of
the Holders, or to surrender any rights or power herein conferred upon the
Owner Trustee or the Owner Participant;
(6) to add to the rights of the Holders;
(7) to provide for the assumption by the Company of the obligations of
the Owner Trustee hereunder in accordance with the terms and conditions
applicable thereto specified in Section 7.03; or
(8) to include on the Certificates any legend as may be required by
applicable law.
Section 11.02. Amendments to this Indenture with Consent of Holders.
(a) With the written consent of the Holders of a majority of the aggregate
principal amount of the Outstanding Certificates, the Owner Trustee and the
Indenture Trustee may enter into such supplemental agreements to add any
provisions to or to change or eliminate any provisions of this Indenture or of
any such supplemental agreements or to modify the rights of the Holders;
provided, however, that, an amendment under this Section 11.02 may not:
(1) reduce the principal amount of, premium, if any, or any
installment of interest on, any Certificate; or
Indenture-58 (1994 747 B)
(2) change the date on which any principal amount of, any Installment
Payment Amount payable with respect to, premium, if any, or interest on any
Certificate, is due or payable; or
(3) create any Lien on the Indenture Estate prior to or pari passu
with the Lien thereon under this Indenture except such as are permitted by
this Indenture, or deprive any Holder of the benefit of the Lien on the
Indenture Estate created by this Indenture; or
(4) reduce the percentage in principal amount of the Outstanding
Certificates, the consent of whose holders is required for any such
supplemental agreement, or the consent of whose holders is required for any
waiver (of compliance with certain provisions of this Indenture or of
certain defaults hereunder or their consequences) provided for in this
Indenture; or
(5) make any change in Section 8.05 or 8.08 or this Section 11.02(a).
(b) It is not necessary under this Section 11.02 for the Holders to
consent to the particular form of any proposed supplemental agreement, but it is
sufficient if they consent to the substance thereof.
(c) Promptly after the execution by the Owner Trustee and the
Indenture Trustee of any supplemental agreement pursuant to the provisions of
this Section 11.02, the Indenture Trustee shall transmit by first-class mail a
notice, setting forth in general terms the substance of such supplemental
agreement, to all Holders, as the names and addresses of such Holders appear on
the Register. Any failure of the Indenture Trustee to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental agreement.
Section 11.03. Revocation and Effect of Consents. Until an amendment
or waiver becomes effective, a consent to it by a Holder is a continuing consent
by the Holder and every subsequent Holder, even if notation of the consent is
not made on any Certificate. However, any such Holder or subsequent Holder may
revoke the consent as to his Certificate if the Indenture Trustee receives the
notice of revocation before the date the amendment or waiver becomes effective.
After an amendment or waiver becomes effective, it shall bind every Holder
affected by such amendment or waiver.
Section 11.04. Notation on or Exchange of Certificates. The
Indenture Trustee may place an appropriate notation about an amendment or waiver
on any Certificate thereafter executed. The Indenture Trustee in exchange for
such Certificates may execute new Certificates that reflect the amendment or
waiver.
Indenture-59 (1994 747 B)
Section 11.05. Indenture Trustee Protected. The Indenture Trustee
need not sign any supplemental agreement that adversely affects its rights.
Section 11.06. Amendments, Waivers, etc. of Other Operative
Documents. (a) Subject to Section 11.01, without the consent of the Holders of
a majority in principal amount of Outstanding Certificates, the respective
parties to the Participation Agreement, the Lease and the Trust Agreement may
not modify, amend or supplement any of said agreements, or give any consent,
waiver, authorization or approval thereunder, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
thereof or of modifying in any manner the rights of the respective parties
thereunder; provided, however, that the actions specified in subsection (b) of
this Section 11.06 may be taken without the consent of the Indenture Trustee or
any Holder.
(b) Subject to the provisions of subsection (c) of this Section 11.06,
the respective parties to the Participation Agreement, the Lease and the Trust
Agreement, at any time and from time to time (without the consent of the
Indenture Trustee (except with respect to the Participation Agreement) or of any
Holder) may:
(1) so long as no Indenture Event of Default shall have occurred and
be continuing, modify, amend or supplement the Lease, or give any consent,
waiver, authorization or approval with respect thereto, except that without
compliance with subsection (a) of this Section 11.06 the parties to the
Lease shall not modify, amend or supplement, or give any consent, waiver,
authorization or approval for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions thereof or of
modifying in any manner the rights of the respective parties thereunder,
with respect to the following provisions of the Lease as originally
executed: Section 2, Section 3(a) (if the result thereof would be to
shorten the Term of the Lease to a period shorter than the period ending
with the Maturity Date of the Certificates), Section 3(d) (except to the
extent such Section relates to amounts payable (whether directly or
pursuant to the Indenture) to Persons other than Holders and the Indenture
Trustee in its individual capacity), Section 3(e) (except insofar as it
relates to the address or account information of the Owner Trustee or the
Indenture Trustee) (other than as such Sections 3(a), 3(d) and 3(e) may be
amended pursuant to Section 3(c) of the Lease as originally executed),
Section 4, Section 6, Sections 9(b) through (d) (except that further
restrictions may be imposed on the Company), Section 10 (except that
additional requirements may be imposed on the Company), Section 11 (except
for Section 11(e) and except that additional insurance requirements may be
imposed on the Company), Section 12 (except in order to increase the
Company's liabilities or enhance Lessor's rights thereunder), Section 13
(except in the case of an assignment by Lessor in circumstances where the
Aircraft shall remain registrable under the Federal Aviation Act), Section
14 (except to impose additional or more stringent Lease Events of Default),
Section 15 (except to impose additional
Indenture-60 (1994 747 B)
remedies), Section 16 (except to impose additional requirements on the
Company), Section 18, Section 20, Section 22 and any definition of terms
used in the Lease, to the extent that any modification of such definition
would result in a modification of the Lease not permitted pursuant to this
subsection (b); provided that in the event an Indenture Event of Default
shall have occurred and be continuing, the Indenture Trustee shall have all
rights of the Owner Trustee as "Lessor" under the Lease to modify, amend or
supplement the Lease or give any consent, waiver, authorization or approval
thereunder, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions thereof or of modifying in any
manner the rights of the "Lessor" thereunder; provided further that without
the prior consent of the Owner Trustee, and whether or not an Indenture
Event of Default shall have occurred and be continuing, no such action
shall be taken with respect to any of the provisions of Sections 1 (to the
extent any modification of a definition contained therein would result in a
modification of the Lease not permitted by this proviso), 3(c), 4, 5, 6 (to
the extent such action would reduce the Company's obligations), 7, 8, 9,
10, 11, 12, 13, 14, 15, 16 (insofar as it relates to Lessor), 18, 19 and 21
of the Lease, or any other Section of the Lease to the extent such action
shall affect the amount or timing of any amounts payable by the Company
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, will be distributable to the
Owner Trustee under Article 3; and provided further that the parties to the
Lease may take any such action without the consent of the Indenture Trustee
or any Holder to the extent such action relates to the payment of amounts
constituting, or the Owner Trustee's, the Owner Participant's or the
Company's rights or obligations with respect to, Excluded Payments;
(2) modify, amend or supplement the Trust Agreement, or give any
consent, waiver, authorization or approval with respect thereto, in each
case only to the extent any such action shall not adversely impact the
interests of the Holders;
(3) modify, amend or supplement the Participation Agreement, or give
any consent, waiver, authorization or approval with respect thereto, except
that without compliance with subsection (a) of this Section 11.06 the
parties to the Participation Agreement shall not modify, amend or
supplement, or give any consent, waiver, authorization or approval for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions thereof or of modifying in any manner the
rights of the respective parties thereunder, with respect to the following
provisions of the Participation Agreement as originally executed: Section
7 (insofar as such Section 7 relates to the Indenture Trustee and the
Holders), Section 8, Section 9(b), Section 9(c), Section 11 and any
definition of terms used in the Participation Agreement, to the extent that
any modification of such definition would result in a
Indenture-61 (1994 747 B)
modification of the Participation Agreement not permitted pursuant to this
subsection (b); and
(4) modify, amend or supplement any of said agreements in order to
cure any ambiguity, to correct or supplement any provisions thereof which
may be defective or inconsistent with any other provision thereof or of any
provision of this Indenture, or to make any other provision with respect to
matters or questions arising thereunder or under this Indenture which shall
not be inconsistent with the provisions of this Indenture, provided the
making of any such other provision shall not adversely affect the interests
of the Holders.
(c) No modification, amendment, supplement, consent, waiver,
authorization or approval with respect to the Lease or the Participation
Agreement, whether effected pursuant to subsection (a) or subsection (b) of this
Section 11.06 and anything in such subsections or elsewhere in this Indenture to
the contrary notwithstanding, shall, without the consent of the Holder of each
Outstanding Certificate affected thereby,
(1) modify, amend or supplement the Lease in such a way as to extend
the time of payment of Basic Rent or Stipulated Loss Value or any other
amounts payable to the Indenture Trustee for its own account or for the
account of the Holders (subject in any event to clause (iv) of Section 3(c)
of the Lease) upon the occurrence of an Event of Loss or Termination Value
and any other amounts payable to the Indenture Trustee for its own account
or for the account of the Holders (subject in any event to clause (iv) of
Section 3(c) of the Lease) upon termination of the Lease with respect to
the Aircraft, payable under, or as provided in, the Lease, or reduce the
amount of any installment of Basic Rent or Supplemental Rent so that the
same is less than the payment of principal of, premium, if any, and
interest on the Certificates, as the case may be, to be made from such
installment of Basic Rent or Supplemental Rent, or reduce the aggregate
amount of Stipulated Loss Value, EBO Percentage or any other amounts
payable under, or as provided in, the Lease as originally executed upon the
occurrence of an Event of Loss so that the same is less than the accrued
interest on and the principal as of the Lease Loss Payment Date, and
premium, if any, of the Certificates at the time Outstanding or reduce the
amount of Termination Value and any other amounts payable under, or as
provided in, the Lease as originally executed upon termination of the Lease
with respect to the Aircraft so that the same is less than the accrued
interest on and principal as of the Lease Termination Date and premium, if
any, of Certificates at the time Outstanding, or
(2) modify, amend or supplement the Lease in such a way as to, or
consent to any assignment of the Lease or give any consent, waiver,
authorization or approval which would, release the Company from its
obligations in respect of payment of Basic Rent or Supplemental Rent, or
Stipulated Loss Value and any other amounts payable
Indenture-62 (1994 747 B)
to the Indenture Trustee for its own account or the account of the Holders
(subject in any event to clause (iv) of Section 3(c) of the Lease) upon the
occurrence of an Event of Loss, or Termination Value and any other amounts
payable to the Indenture Trustee for its own account or the account of the
Holders (subject in any event to clause (iv) of Section 3(c) of the Lease)
of the Lease with respect to the Aircraft, payable under, or as provided
in, the Lease as originally executed, except for any such assignment
pursuant to Section 8(s) of the Participation Agreement, and except as
provided in the Lease as originally executed.
ARTICLE 12
MISCELLANEOUS
Section 12.01. Notices. (a) Unless otherwise specifically provided
for herein, all notices required under the terms and provisions of this
Indenture shall be in English and in writing, and any such notice may be given
by hand-delivery, overnight courier service, mail, telex or telecopier addressed
as indicated below and any such notice shall be effective, in the case of hand-
delivery, when delivered, in the case of overnight courier service, one Business
Day after delivery with charges paid to a courier service with instructions for
overnight delivery, in the case of mail, three Business Days after delivery to
the postal service with certified or registered mail charges paid, in the case
of telex, upon receipt of a telex answerback and, in the case of telecopier,
upon transmittal:
if to the Company, to:
United Air Lines, Inc.
P.O. Box 66100
Chicago, Illinois 60666
Attention: Vice President and Treasurer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
or if by overnight courier, to:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Indenture-63 (1994 747 B)
if to the Indenture Trustee, to:
First Security Bank of Utah,
National Association
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: 3789450
if to the Owner Trustee, to:
State Street Bank and Trust Company of Connecticut,
National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Owner Participant, to:
--------------------------------
--------------------------------
--------------------------------
--------------------------------
Attention: ---------------------
Telecopier: --------------------
with a copy to:
Hunton & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(b) The Company, the Owner Trustee, the Indenture Trustee or the Owner
Participant by notice to the others may designate additional or different
addresses for subsequent notices or communications.
Indenture-64 (1994 747 B)
(c) Any notice or communication to Holders of the Certificates shall
be mailed by first-class mail to the addresses for Holders shown on the Register
kept by the Registrar and to addresses filed with the Indenture Trustee for
other Holders. Failure so to mail a notice or communication or any defect in
such notice or communication shall not affect its sufficiency with respect to
other Holders of such Certificates of that or any other Series entitled to
receive notice.
(d) If a notice or communication is mailed in the manner provided
above within the time prescribed, it is conclusively presumed to have been duly
given, whether or not the addressee receives it.
(e) If the Company mails a notice or communication to the Holders, it
shall mail a copy to the Indenture Trustee and to each Paying Agent at the same
time.
(f) Notwithstanding the foregoing, all communications or notices to
the Indenture Trustee shall be deemed to be given only when received by a
Responsible Officer of the Indenture Trustee.
Section 12.02. [Reserved for Potential Future Use]
Section 12.03. [Reserved for Potential Future Use]
Section 12.04. Rules by Indenture Trustee and Agents. The Indenture
Trustee may make reasonable rules for action by or a meeting of the Holders.
The Paying Agent or Registrar may make reasonable rules and set reasonable
requirements for its functions.
Section 12.05. Non-Business Days. If a payment date is not a
Business Day at a place of payment, payment may be made at such place on the
next succeeding day that is a Business Day, and no interest shall accrue for the
intervening period.
Section 12.06. GOVERNING LAW. THIS INDENTURE AND THE CERTIFICATES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ILLINOIS WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PROVISIONS OF THE STATE
OF ILLINOIS.
Section 12.07. No Recourse Against Others. No director, officer,
employee or stockholder, as such, of the Company, the Owner Trustee or the Owner
Participant, as the case may be, shall have any liability for any obligations of
the Company, the Owner Trustee or the Owner Participant, as the case may be,
under this Indenture or for any claim based on, in respect of or by reason of
such obligations or their creation. Each Holder by
Indenture-65 (1994 747 B)
accepting a Certificate waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Certificates.
Section 12.08. Execution in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original but
such counterparts shall together constitute but one instrument.
ARTICLE 13
ACTIONS TO BE TAKEN UPON TERMINATION OF LEASE
Section 13.01. Actions to Be Taken upon Termination of Lease. Upon
any of:
(a) the voluntary termination of the Lease by the Company pursuant to
Section 9(b) thereof on the Lease Termination Date, and upon payment to the
Indenture Trustee of an amount equal to the Redemption Price of all
Outstanding Certificates, or
(b) the purchase of the Aircraft by the Company at its option pursuant
to Section 19(b) of the Lease on the EBO Date (unless the Company shall
have elected to assume all of the rights and obligations of the Owner
Trustee hereunder as provided for in Section 8(r) of the Participation
Agreement), and upon payment to the Indenture Trustee of an amount equal to
the Redemption Price as at the applicable Redemption Date of all
Outstanding Certificates,
(c) the termination of the Lease, on the Lease Loss Payment Date,
following an Event of Loss suffered by the Airframe under circumstances
where the Company does not exercise its option to substitute a Replacement
Airframe therefor pursuant to Section 10(a)(ii) of the Lease, and upon
payment to the Indenture Trustee of an amount equal to the Redemption Price
as at the Redemption Date of all Outstanding Certificates,
(d) the satisfaction, discharge, defeasance and termination of
obligations under this Indenture in accordance with Section 10.01, or
(e) the voluntary termination of the Lease with respect to an Engine
pursuant to Section 10(b) thereof, and upon the payment of Stipulated Loss
Value with respect to such Engine,
Indenture-66 (1994 747 B)
the Lien of this Indenture on the Indenture Estate, in the case of (a), (b), (c)
or (d) above, and on such Engine, in the case of (e) above, shall terminate
(except for the Lien on funds held by the Indenture Trustee to pay the
Certificates and the Lien on amounts due from the Company under the Lease
necessary to pay the Certificates or the Indenture Trustee) and the Indenture
Trustee shall execute such instruments as may be requested by the Company or the
Owner Trustee to evidence such termination.
IN WITNESS WHEREOF, the Owner Trustee and the Indenture Trustee have
caused this Amended and Restated Trust Indenture and Mortgage to be duly
executed by their respective officers thereunto duly authorized.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not in its
individual capacity, except as expressly
provided herein, but solely as Owner Trustee
By:
---------------------------------------------
Name:
Title:
FIRST SECURITY BANK OF UTAH,
NATIONAL ASSOCIATION, as Indenture
Trustee
By:
---------------------------------------------
Name:
Title:
Exhibit A-1 to
Amended and
Restated
Trust Indenture and
Mortgage
Form of Series 1994 747 B Installment Certificates
--------------------------------------------------
$____________ (Original Principal Amount)
SERIES 1994 747 B CERTIFICATE
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
Not in its Individual Capacity
but Solely as Owner Trustee Under the
Trust Agreement (1994 747 B)
Dated as of August 1, 1994
Issued in connection with Aircraft N106UA
Leased to
UNITED AIR LINES, INC.
Date of Issuance: _________, 1996 MATURITY DATE
-------------
-------, ----
INTEREST RATE PER ANNUM: __%
State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, but solely as owner trustee (the
"Owner Trustee") under that certain Trust Agreement (1994 747 B), dated as of
August 1, 1994, between the Owner Trustee in its individual capacity and the
institution referred to therein as the "Owner Participant" (herein as amended
and as such Trust Agreement may be amended or supplemented from time to time
called the "Trust Agreement") for value received, hereby promises to pay to
First Security Bank of Utah, National Association, or registered assigns the
principal sum in dollars equal to the Original Principal Amount specified above
in installments on each Installment Payment Date as provided for herein below
with the final installment due and payable on the Maturity Date specified above
commencing __________, ___ and ending on the date when the principal amount
hereof shall have been paid in full plus interest at the Interest Rate Per Annum
specified above on the Original Principal Amount specified above from time to
time outstanding on each January 30 and July 30. All amounts payable by the
Owner Trustee hereunder and under the Amended and Restated Trust Indenture and
Mortgage (1994 747 B), dated as of January 1, 1996 (as the same may hereafter be
further amended or supplemented from time to time, as the "Indenture", the
2
defined terms therein not otherwise defined herein being used herein with the
same meanings), by and between the Owner Trustee and First Security Bank of
Utah, National Association, as Indenture Trustee thereunder, shall be made only
from the income and proceeds of the Indenture Estate. Each Holder hereof, by
its acceptance of this Certificate, agrees that (a) it will look solely to the
income and proceeds of the Indenture Estate for payment of such amounts, to the
extent available for distribution to the Holder hereof as provided in the
Indenture and (b) none of the Owner Participant, the Owner Trustee or the
Indenture Trustee is or shall be personally liable to the Holder hereof for any
amount payable hereunder or under the Indenture or, except as provided in the
Indenture in the case of the Indenture Trustee and the Owner Trustee, for any
liability under the Indenture.
The interest or Installment Payment Amount (other than that payable on
the Maturity Date hereof) so payable, and punctually paid or duly provided for,
on the applicable Interest Payment Date or Installment Payment Date, as the case
may be, will, as provided in the Indenture, be paid to the Person in whose name
this Certificate (or one or more predecessor Certificates) is registered at the
close of business on the Record Date for payment of such interest or Installment
Payment Amount, which shall be the fifteenth day (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date or
Installment Payment Date, as the case may be. Any such interest or Installment
Payment Amount not so punctually paid or duly provided for shall forthwith cease
to be payable to the registered Holder hereof on the such Record Date (or to the
Person in whose name this Certificate is registered upon issuance) and may be
paid to the Person in whose name this Certificate (or one or more predecessor
Certificates) is registered at the close of business on a special record date
for the payment of such Defaulted Installment or Defaulted Interest to be fixed
by the Indenture Trustee pursuant to Section 2.08 of the Indenture, notice
whereof shall be given to Holders of Certificates entitled thereto not less than
10 days prior to such special record date, or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Certificates may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
Payment of the principal of, premium, if any, and interest on this
Certificate will be made at the principal corporate trust office of the
Indenture Trustee, or the office or agency maintained by the Indenture Trustee
for such purpose, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest and Installment Payment Amounts
(other than that payable on the Maturity Date hereof) may be made at the option
of the Indenture Trustee or the Paying Agent by check mailed to the address of
the Holder entitled thereto as such address shall appear on the Register.
This Certificate shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose unless this Certificate has
been executed on behalf of the
3
Owner Trustee by the manual or facsimile signature of an authorized officer of
the Owner Trustee, and authenticated by the Indenture Trustee by the manual
signature of an authorized officer or signatory of the Indenture Trustee, in
each case as specified in Section 2.02 of the Indenture.
Reference is made to the Indenture and all supplements and amendments
thereto (a copy of which is on file with the Indenture Trustee at its principal
corporate trust office) for a more complete statement of the terms and
provisions thereof, including a statement of the properties thereby conveyed,
pledged and assigned, the nature and extent of the security, the respective
rights thereunder of the Owner Trustee, the Indenture Trustee and the Holders of
the Certificates, and the terms upon which the Certificates are, and are to be,
executed and delivered, as well as for a statement of the terms and conditions
of the trust created by the Indenture, to all of which terms and conditions in
the Indenture each Holder hereof agrees by its acceptance of this Certificate.
As more fully provided in the Indenture, on each Installment Payment
Date, the Holder hereof will receive a payment of principal equal to the
Installment Payment Percentage for such Installment Payment Date as specified
on Exhibit B-1 thereto multiplied by the Original Principal Amount of this
Certificate specified above.
As more fully provided in the Indenture, the Certificates are subject
to redemption, on not less than 25 nor more than 60 days' notice by mail, under
the circumstances set forth in the Indenture, at a redemption price equal to the
unpaid principal amount thereof, premium, if any, plus accrued interest thereon
to the Redemption Date.
If an Indenture Event of Default shall occur and be continuing, the
principal amount remaining unpaid of the Certificates may be declared due and
payable in the manner and with the effect provided in the Indenture. If, and
only if, such an event of default constitutes an event of default by the Company
under the Lease, the Indenture Trustee may declare the Lease to be in default,
and may, to the exclusion of the Owner Trustee, exercise one or more of the
remedies of the Owner Trustee provided in the Lease. Such remedies include the
right to repossess and use or operate the Aircraft, to sell or relet the
Aircraft free and clear of the Company's rights and retain the proceeds and to
require the Company to pay as liquidated damages (i) any unpaid Basic Rent plus
an amount equal to the excess of the Stipulated Loss Value of the Aircraft over
the aggregate fair market rental value thereof for the remainder of the term for
the Aircraft, (ii) any unpaid Basic Rent plus the excess of the Stipulated Loss
Value of the Aircraft over the fair market sales value thereof or (iii) if the
Aircraft has been sold, any unpaid Basic Rent plus the excess of the Stipulated
Loss Value thereof over the net sales proceeds.
By acceptance of this Certificate, the Holder hereof agrees to be
bound by the provisions of the Participation Agreement applicable to Holders.
4
The Owner Trustee or the Owner Participant may, in their sole
discretion, in certain circumstances cure any default by the Company under the
Lease arising from the failure of the Company to make any payment of Basic Rent
under the Lease. The Owner Trustee or the Owner Participant may in their sole
discretion in certain circumstances cure any other default by the Company in the
performance of its obligations under the Lease which can be cured by the payment
of money, by making such payment on behalf of the Company.
The right of the Holder of this Certificate to institute action for
any remedy under the Indenture, including the enforcement of payment of any
amount due hereon, is subject to certain restrictions specified in the
Indenture.
The Owner Trustee and the Indenture Trustee will be discharged from
their respective obligations in respect of the Certificates (except for certain
matters, including obligations to register the transfer or exchange of
Certificates, replace stolen, lost or mutilated Certificates, maintain paying
agencies and hold moneys for payment in trust), and the Indenture Trustee may
thereupon cause the release of the Indenture Estate from the lien of the
Indenture, if (a) the Owner Trustee deposits or causes to be deposited
irrevocably with the Indenture Trustee, in trust, money or U.S. Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide money in an amount
sufficient to pay principal of, premium, if any, and interest on the Outstanding
Certificates on the dates such payments are due in accordance with the terms of
such Certificates and (b) certain other conditions are satisfied, including the
publication by the United States Internal Revenue Service of a ruling to the
effect that the deposit and related defeasance would not cause the Holders of
the Certificates to recognize income, gain or loss for Federal income tax
purposes.
As provided in the Indenture, in certain circumstances this
Certificate is transferable, and upon surrender of this Certificate for
registration of transfer at the principal corporate trust office of the
Registrar, or at the office or agency maintained for such purpose, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Registrar duly executed by, the Holder or his attorney duly authorized in
writing, one or more new Certificates of the same maturity and type and of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates. The
Certificates are issuable in denominations of $1,000 and integral multiples
thereof except that one Certificate of each maturity may be in an amount that is
not an integral multiple of $1,000. As provided in the Indenture and subject to
certain limitations therein set forth, Certificates are exchangeable for a like
aggregate principal amount of Certificates of the same maturity and type and of
authorized denominations, as requested by the Holder surrendering the same,
upon presentation thereof for such purpose at the principal corporate trust
office of the Registrar, or at an office or agency maintained for such purpose.
No service charge shall be made for any such registration of transfer
or exchange, but the Registrar may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this
Certificate, the Owner Trustee, the Indenture Trustee, the Paying Agent, the
Registrar and the Company may deem and treat the person in whose name this
Certificate is registered as the absolute owner hereof for the purpose of
receiving payment of the principal of and interest on this Certificate and for
all other purposes whatsoever whether or not this Certificate be overdue, and
neither the Owner Trustee, the Indenture Trustee, the Paying Agent, the
Registrar nor the Company shall be affected by notice to the contrary.
AS PROVIDED IN THE INDENTURE, THE INDENTURE AND THIS CERTIFICATE SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
ILLINOIS WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PROVISIONS OF THE STATE
OF ILLINOIS.
IN WITNESS WHEREOF, the Owner Trustee has caused this instrument to be
duly executed.
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, not in its
individual capacity, but solely as Owner
Trustee
By:
-------------------------------------------
Title:
6
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Indenture.
FIRST SECURITY BANK OF UTAH,
NATIONAL ASSOCIATION, as Indenture
Trustee
By:
---------------------------------------
Authorized officer or signatory
Exhibit A-2 to
Amended and
Restated
Trust Indenture and
Mortgage
Form of Series 1994 747 B Serial Certificates
---------------------------------------------
$_________ (Original Principal Amount) No. _____
SERIES 1994 747 B CERTIFICATE
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
Not in its Individual Capacity
but Solely as Owner Trustee Under the
Trust Agreement (1994 747 B)
Dated as of August 1, 1994
Issued in connection with Aircraft N106UA
Leased to
UNITED AIR LINES, INC.
Date of Issuance: _________, 1996 MATURITY DATE
-------------
-------, ----
INTEREST RATE PER ANNUM: ____%
State Street Bank and Trust Company of Connecticut, National
Association, not in its individual capacity, but solely as owner trustee (the
"Owner Trustee") under that certain Trust Agreement (1994 747 B), dated as of
August 1, 1994, between the Owner Trustee in its individual capacity and the
institution referred to therein as the "Owner Participant" (herein as such Trust
Agreement may be amended or supplemented from time to time called the "Trust
Agreement"), for value received, hereby promises to pay to First Security Bank
of Utah, National Association, or registered assigns the principal sum in
dollars equal to the Original Principal Amount specified above on the Maturity
Date specified above from time to time outstanding in respect of the period
commencing _________, ___ and ending on the date when the principal amount
hereof shall have been paid in full, payable on each January 30 and July 30 of
each year, commencing _________, 1996. All
2
amounts payable by the Owner Trustee hereunder and under the Amended and
Restated Trust Indenture and Mortgage (1994 747 B), dated as of January 1, 1996
(as the same may hereafter be further amended or supplemented from time to time,
as the "Indenture", the defined terms therein not otherwise defined herein being
used herein with the same meanings), by and between the Owner Trustee and First
Security Bank of Utah, National Association, as Indenture Trustee thereunder,
shall be made only from the income and proceeds of the Indenture Estate. Each
Holder hereof, by its acceptance of this Certificate, agrees that (a) it will
look solely to the income and proceeds of the Indenture Estate for payment of
such amounts, to the extent available for distribution to the Holder hereof as
provided in the Indenture and (b) none of the Owner Participant, the Owner
Trustee or the Indenture Trustee is or shall be personally liable to the Holder
hereof for any amount payable hereunder or under the Indenture or, except as
provided in the Indenture in the case of the Indenture Trustee and the Owner
Trustee, for any liability under the Indenture.
The interest so payable and punctually paid or duly provided for, on
the applicable Interest Payment Date will, as provided in the Indenture, be paid
to the Person in whose name this Certificate (or one or more predecessor
Certificates) is registered at the close of business on the Record Date for
payment of such interest, which shall be the fifteenth day (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for shall forthwith
cease to be payable to the registered Holder hereof on the such Record Date (or
to the Person in whose name this Certificate is registered upon issuance) and
may be paid to the Person in whose name this Certificate (or one or more
predecessor Certificates) is registered at the close of business on a special
record date for the payment of such Defaulted Interest to be fixed by the
Indenture Trustee pursuant to Section 2.08 of the Indenture, notice whereof
shall be given to Holders of Certificates entitled thereto not less than 10 days
prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Certificates may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture.
Payment of the principal of, premium if any, and interest on this
Certificate will be made at the principal corporate trust office of the
Indenture Trustee, or the office or agency maintained by the Indenture Trustee
for such purpose in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
Indenture Trustee or the Paying Agent by check mailed to the address of the
Holder entitled thereto as such address shall appear on the Register.
This Certificate shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose unless this Certificate has
been executed on behalf of the Owner Trustee by the manual or facsimile
signature of an authorized officer of the Owner
3
Trustee, and authenticated by the Indenture Trustee by the manual signature of
an authorized officer or signatory of the Indenture Trustee, in each case as
specified in Section 2.02 of the Indenture.
Reference is made to the Indenture and all supplements and amendments
thereto (a copy of which is on file with the Indenture Trustee at its principal
corporate trust office) for a more complete statement of the terms and
provisions thereof, including a statement of the properties thereby conveyed,
pledged and assigned, the nature and extent of the security, the respective
rights thereunder of the Owner Trustee, the Company, the Indenture Trustee and
the Holders of the Certificates, and the terms upon which the Certificates are,
and are to be, executed and delivered, as well as for a statement of the terms
and conditions of the trust created by the Indenture, to all of which terms and
conditions in the Indenture each Holder hereof agrees by its acceptance of this
Certificate.
As more fully provided in the Indenture, the Certificates are subject
to redemption, on not less than 25 nor more than 60 days' notice by mail, under
the circumstances set forth in the Indenture, at a redemption price equal to the
unpaid principal amount thereof, premium, if any, plus accrued interest thereon
to the Redemption Date.
If an Indenture Event of Default shall occur and be continuing, the
principal of the Certificates may be declared due and payable in the manner and
with the effect provided in the Indenture. If, and only if, such an event of
default constitutes an event of default by the Company under the Lease, the
Indenture Trustee may declare the Lease to be in default, and may, to the
exclusion of the Owner Trustee, exercise one or more of the remedies of the
Owner Trustee provided in the Lease. Such remedies include the right to
repossess and use or operate the Aircraft, to sell or relet the Aircraft free
and clear of the Company's rights and retain the proceeds and to require the
Company to pay as liquidated damages (i) any unpaid Basic Rent plus an amount
equal to the excess of the Stipulated Loss Value of the Aircraft over the
aggregate fair market rental value thereof for the remainder of the term for the
Aircraft, (ii) any unpaid Basic Rent plus the excess of the Stipulated Loss
Value of the Aircraft over the fair market sales value thereof or (iii) if the
Aircraft has been sold, any unpaid Basic Rent plus the excess of the Stipulated
Loss Value thereof over the net sales proceeds.
By acceptance of this Certificate, the Holder hereof agrees to be
bound by the provisions of the Participation Agreement applicable to Holders.
The Owner Trustee or the Owner Participant may, in their sole
discretion, in certain circumstances cure any default by the Company under the
Lease arising from the failure of the Company to make any payment of Basic Rent
under the Lease. The Owner Trustee or the Owner Participant may in their sole
discretion in certain circumstances cure any other default by the Company in the
performance of its obligations under the Lease
4
which can be cured by the payment of money, by making such payment on behalf of
the Company.
The right of the Holder of this Certificate to institute action for
any remedy under the Indenture, including the enforcement of payment of any
amount due hereon, is subject to certain restrictions specified in the
Indenture.
The Owner Trustee and the Indenture Trustee will be discharged from
their respective obligations in respect of the Certificates (except for certain
matters, including obligations to register the transfer or exchange of
Certificates, replace stolen, lost or mutilated Certificates, maintain paying
agencies and hold moneys for payment in trust), and the Indenture Trustee may
thereupon cause the release of the Indenture Estate from the lien of the
Indenture, if (a) the Owner Trustee deposits or causes to be deposited
irrevocably with the Indenture Trustee, in trust, money or U.S. Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide money in an amount
sufficient to pay principal of, premium, if any, and interest on the Outstanding
Certificates on the dates such payments are due in accordance with the terms of
such Certificates and (b) certain other conditions are satisfied, including the
publication by the United States Internal Revenue Service of a ruling to the
effect that the deposit and related defeasance would not cause the Holders of
the Certificates to recognize income, gain or loss for Federal income tax
purposes.
5
As provided in the Indenture, in certain circumstances this
Certificate is transferable, and upon surrender of this Certificate for
registration of transfer at the principal corporate trust office of the
Registrar, or at the office or agency maintained for such purpose, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Registrar duly executed by, the Holder or his attorney duly authorized in
writing, one or more new Certificates of the same maturity and type and of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates. The
Certificates are issuable in denominations of $1,000 and integral multiples
thereof except that one Certificate of each maturity may be in an amount that is
not an integral multiple of $1,000. As provided in the Indenture and subject to
certain limitations therein set forth, Certificates are exchangeable for a like
aggregate principal amount of Certificates of the same maturity and type and of
authorized denominations, as requested by the Holder surrendering the same, upon
presentation thereof for such purpose at the principal corporate trust office of
the Registrar, or at an office or agency maintained for such purpose.
No service charge shall be made for any such registration of transfer
or exchange, but the Registrar may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this
Certificate, the Owner Trustee, the Indenture Trustee, the Paying Agent, the
Registrar and the Company may deem and treat the person in whose name this
Certificate is registered as the absolute owner hereof for the purpose of
receiving payment of the principal of and interest on this Certificate and for
all other purposes whatsoever whether or not this Certificate be overdue, and
neither the Owner Trustee, the Indenture Trustee, the Paying Agent, the
Registrar nor the Company shall be affected by notice to the contrary.
AS PROVIDED IN THE INDENTURE, THE INDENTURE AND THIS CERTIFICATE SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
ILLINOIS WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PROVISIONS OF THE STATE
OF ILLINOIS.
IN WITNESS WHEREOF, the Owner Trustee has caused this instrument to be
duly executed.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not in its
individual capacity, but solely as Owner
Trustee
By:___________________________________________
Title:
7
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Indenture.
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION,
as Indenture Trustee
By:____________________________________________
Authorized officer or signatory
Exhibit B to
Amended and Restated
Trust Indenture and
Mortgage
MATURITY DATES, PRINCIPAL AMOUNTS AND INTEREST
----------------------------------------------
RATES OF SERIES 1994 747 B CERTIFICATES
---------------------------------------
MATURITY PRINCIPAL INTEREST RATE
DATE AMOUNT PER ANNUM
-------- --------- -------------
Series 1994 747 B1 $ %
Series 1994 747 B2 $ %
Exhibit B-1 to
Amended and
Restated Trust
Indenture and
Mortgage
Installment Payment Dates and Installment Payment Percentages
-------------------------------------------------------------
Installment Certificates shall be those
Certificates with the following Maturity Dates:
Installment Certificate No. 1 - Maturity Date: ________
Corresponding
Installment Payment Installment Payment Aggregate Installment
Date Percentage Payment Amount
--------------------- -------------------- ---------------------
TOTAL _____% $
B-1-2
Installment Certificate No. 2 - Maturity Date: _________
Corresponding
Installment Payment Installment Payment Aggregate Installment
Date Percentage Payment Amount
--------------------- -------------------- ---------------------
TOTAL %
Exhibit B-2 to
Amended and
Restated Trust
Indenture and
Mortgage
Issuance of Series 1994 747 B Certificates
------------------------------------------
The Series 1994 747 B Certificates issued hereunder shall be issued to
and shall be payable to each of the Pass Through Trustees under the Pass Through
Trust Agreements with respect to the grantor trusts created thereby, in each
case as set forth below:
1996 - A1 Trust:
___% Certificate due ______, ____
1996 - A2 Trust:
___% Certificate due ______, ____
C-1
[Trust Indenture and Mortgage (1994 747 B)]
Exhibit C to
Amended and
Restated Trust
Indenture and
Mortgage
SUPPLEMENT TO THE TRUST AGREEMENT
AND THE AMENDED AND RESTATED
TRUST INDENTURE AND MORTGAGE
(1994 747 B)
This SUPPLEMENT TO THE TRUST AGREEMENT AND THE AMENDED AND RESTATED
TRUST INDENTURE AND MORTGAGE (1994 747 B), dated as of January 1, 1996 (herein
called the "Trust Supplement") of STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not in its individual capacity, but solely as
Owner Trustee (herein called the "Owner Trustee"), under the Trust Agreement
(1994 747 B), dated as of August 1, 1994 (herein called the "Trust Agreement"),
between the Owner Trustee and the Owner Participant named therein.
WITNESSETH:
WHEREAS, the Trust Agreement provides for the execution and delivery
of one or more supplements thereto substantially in the form hereof, which shall
particularly describe the Aircraft (such term and other terms defined in the
Indenture referred to below used herein as therein defined) included in the
property covered by the Trust Agreement;
WHEREAS, State Street Bank and Trust Company of Connecticut, National
Association, as Owner Trustee (herein called the "Owner Trustee"), and First
Security Bank of Utah, National Association, as Indenture Trustee (herein called
the "Indenture Trustee"), have entered into that certain Trust Indenture and
Security Agreement (1994 747 B), dated as of August 1, 1994 (the "Original Trust
Indenture"), which Original Trust Indenture was recorded with the Federal
Aviation Administration on August 8, 1994 under Conveyance No. Y39808, as
amended and restated by the Amended and Restated Trust Indenture and Mortgage
(1994 747 B), dated as of January 1, 1996 (the "Indenture"), which provides for
the execution and delivery of a supplement thereto substantially in the form
hereof, which shall particularly describe the Aircraft, and shall specifically
mortgage such Aircraft to the Indenture Trustee; and
WHEREAS, each of the Trust Agreement and the Indenture relates to the
Airframe and Engines described below, and a counterpart of the Indenture is
attached hereto
C-2
[Trust Indenture and Mortgage (1994 747 B)]
and made a part hereof and this Trust 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;
NOW, THEREFORE, this Trust Supplement Witnesseth, that the Owner
Trustee hereby confirms that the Lien of the Indenture over the Trust Indenture
Estate includes the following described property:
AIRFRAME
One Airframe Identified as follows:
FAA
Registration Manufacturer's
Manufacturer Model Number Serial Number
------------ ----- ------ -------------
The Boeing Company 747-451 N106UA 26474
together with all Parts which are from time to time incorporated or installed in
or attached thereto or which have been removed therefrom but where title to
which remains vested in the Owner Trustee in accordance with the Lease.
AIRCRAFT ENGINES
Four aircraft engines, each such engine having 750 or more rated take-
off horsepower or the equivalent thereof, whether or not such engines shall be
installed in or attached to the Airframe or any other airframe identified as
follows:
Manufacturer's
Manufacturer Model Serial Number
------------ ------ --------------
▇▇▇▇▇ & ▇▇▇▇▇▇▇ PW4056 P727348
▇▇▇▇▇ & ▇▇▇▇▇▇▇ PW4056 P727349
▇▇▇▇▇ & ▇▇▇▇▇▇▇ PW4056 P727350
▇▇▇▇▇ & ▇▇▇▇▇▇▇ PW4056 P727351
together with all Parts which are from time to time incorporated or installed in
or attached thereto or which have been removed therefrom but where title to
which remains vested in the Owner Trustee in accordance with the Lease.
As further security for the obligations referred to above and secured
by the Indenture and hereby, the Owner Trustee hereby confirms that the Lien of
the Indenture over the Trust Indenture Estate includes the Lease Supplement of
even date herewith covering the property described above.
C-3
[Trust Indenture and Mortgage (1994 747 B)]
Notwithstanding any provision hereof, no Excluded Payment shall
constitute security for any of the aforementioned obligations.
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, for the equal and proportionate
benefit and security of holders from time to time of the Certificates
outstanding, without any preference, distinction or priority of any one
Certificate over any other by reason of series, priority of time of issue, sale,
negotiation, date of maturity thereof or otherwise for any reason whatsoever,
and for the uses and purposes and subject to the terms and provisions set forth
in the Indenture.
This Trust Supplement shall be construed as Supplemental to the
Indenture and to the Trust Agreement and shall form a part of each, and the
Trust Agreement and the Indenture are each hereby incorporated by reference
herein and each is hereby ratified, approved and confirmed.
* * *
[Trust Indenture and Mortgage (1994 747 B)]
IN WITNESS WHEREOF, the Owner Trustee has caused this Trust Supplement
to be duly executed by one of its officers, thereunto duly authorized, on the
day and year first above written.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Owner Trustee
By:________________________________________
Title: