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Exhibit 4.19
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FIRST AMENDED AND RESTATED
TRUST INDENTURE AND SECURITY AGREEMENT
[GPA 1989 BN-11]
Dated as of June __, 1997
between
WILMINGTON TRUST COMPANY,
not in its individual capacity
except as expressly provided herein
but solely as Owner Trustee
and
THE CHASE MANHATTAN BANK,
not in its individual capacity
except as expressly provided herein
but solely as Indenture Trustee
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Secured Equipment Notes Covering
One Airbus A320-231 Aircraft
Manufacturer's Serial ▇▇. ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇
Leased by America West Airlines, Inc.
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TABLE OF CONTENTS
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GRANTING CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . 3
HABENDUM CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . 8
SECTION 1.01. Special Definitions . . . . . . . . . . . . . . . . 8
ARTICLE II
THE EQUIPMENT NOTES . . . . . . . . . . . . 19
SECTION 2.01. Form of Equipment Notes . . . . . . . . . . . . . . 19
SECTION 2.02. Issuance and Terms of Equipment Notes . . . . . . . 24
SECTION 2.03. Payments from Trust Indenture Estate
Only . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.04. Method of Payment. . . . . . . . . . . . . . . . . . 28
SECTION 2.05. Application of Payments . . . . . . . . . . . . . . 31
SECTION 2.06. Termination of Interest in Trust
Indenture Estate . . . . . . . . . . . . . . . . . 31
SECTION 2.07. Registration, Transfer and Exchange of
Equipment Notes . . . . . . . . . . . . . . . . . 32
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen
Equipment Notes . . . . . . . . . . . . . . . . . 33
SECTION 2.09. Payment of Expenses on Transfer;
Cancellation . . . . . . . . . . . . . . . . . . . 34
SECTION 2.10. Mandatory Redemptions of Equipment
Notes . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 2.11. Redemptions; Notice of Redemption. . . . . . . . . . 34
SECTION 2.12. Option to Purchase Equipment Notes . . . . . . . . . 35
SECTION 2.13. Subordination. . . . . . . . . . . . . . . . . . . . 36
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE . . . . . . . 37
SECTION 3.01. Certain Rent Distributions . . . . . . . . . . . . . 37
SECTION 3.02. Event of Loss and Replacement . . . . . . . . . . . 38
SECTION 3.03. Payment After Indenture Event of
Default, etc . . . . . . . . . . . . . . . . . . . 40
SECTION 3.04. Certain Payments . . . . . . . . . . . . . . . . . . 42
SECTION 3.05. Other Payments . . . . . . . . . . . . . . . . . . . 43
SECTION 3.06. Payments to Owner Trustee . . . . . . . . . . . . . 43
SECTION 3.07. Investment of Amounts Held by Indenture
Trustee . . . . . . . . . . . . . . . . . . . . . 43
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ARTICLE IV
COVENANTS OF TRUST COMPANY AND OWNER
TRUSTEE; INDENTURE EVENTS OF DEFAULT;
REMEDIES OF INDENTURE TRUSTEE . . . . . . . . . . 44
SECTION 4.01. Covenants of Trust Company and Owner
Trustee . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.02. Indenture Events of Default . . . . . . . . . . . . 45
SECTION 4.03. Certain Rights . . . . . . . . . . . . . . . . . . . 48
SECTION 4.04. Remedies . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 4.05. Return of the Aircraft, etc . . . . . . . . . . . . 53
SECTION 4.06. Remedies Cumulative . . . . . . . . . . . . . . . . 55
SECTION 4.07. Discontinuance of Proceedings . . . . . . . . . . . 55
SECTION 4.08. Waiver of Past Indenture Defaults . . . . . . . . . 55
SECTION 4.09. Exercise of Remedies by Foreign Note
Holders . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE V
DUTIES OF THE INDENTURE TRUSTEE . . . . . . . . . 56
SECTION 5.01. Notice of Indenture Event of Default . . . . . . . . 56
SECTION 5.02. Action Upon Instructions . . . . . . . . . . . . . . 57
SECTION 5.03. Indemnification . . . . . . . . . . . . . . . . . . 58
SECTION 5.04. No Duties Except as Specified in
Indenture or Instructions . . . . . . . . . . . . 58
SECTION 5.05. No Action Except Under Lease, Refunding
Agreement, Indenture or Instructions . . . . . . . 59
SECTION 5.06. Replacement Airframes, Replacement
Engines and Replacement Parts . . . . . . . . . . 59
SECTION 5.07. Indenture Supplements for Replacements . . . . . . . 62
SECTION 5.08. Effect of Replacement . . . . . . . . . . . . . . . 63
SECTION 5.09. Notices, etc. . . . . . . . . . . . . . . . . . . . 63
SECTION 5.10. Certain Rights of Owner Trustee and
Owner Participant . . . . . . . . . . . . . . . . 63
SECTION 5.11. Evidence of Action Taken by Note Holder . . . . . . 65
SECTION 5.12. Right of Revocation of Action Taken . . . . . . . . 66
ARTICLE VI
THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE . . . . . . 66
SECTION 6.01. Acceptance of Trusts and Duties . . . . . . . . . . 66
SECTION 6.02. Absence of Duties . . . . . . . . . . . . . . . . . 67
SECTION 6.03. No Representations or Warranties as to
Aircraft or Documents . . . . . . . . . . . . . . 67
SECTION 6.04. No Segregation of Moneys; No Interest . . . . . . . 68
SECTION 6.05. Reliance; Agents; Advice of Counsel . . . . . . . . 68
SECTION 6.06. Capacity in Which Acting . . . . . . . . . . . . . . 69
SECTION 6.07. Compensation . . . . . . . . . . . . . . . . . . . . 69
SECTION 6.08. May Become Note Holder . . . . . . . . . . . . . . . 69
SECTION 6.09. Further Assurances; Financing
Statements . . . . . . . . . . . . . . . . . . . . 69
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ARTICLE VII
INDEMNIFICATION OF INDENTURE TRUSTEE BY OWNER TRUSTEE . . . . 70
SECTION 7.01. Scope of Indemnification . . . . . . . . . . . . . . 70
SECTION 7.02. Exculpation and Release of Liability . . . . . . . . 71
ARTICLE VIII
SUCCESSOR TRUSTEES AND SEPARATE TRUSTEES . . . . . . . 71
SECTION 8.01. Notice of Successor Owner Trustee . . . . . . . . . 71
SECTION 8.02. Resignation and Removal of Indenture
Trustee; Appointment of Successor . . . . . . . . 71
SECTION 8.03. Appointment of Separate Trustees . . . . . . . . . . 73
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS TO THIS
INDENTURE AND OTHER DOCUMENTS . . . . . . . . . . 75
SECTION 9.01. Lease Amendments and Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . 75
SECTION 9.02. Effect of Supplemental Indenture . . . . . . . . . . 77
SECTION 9.03. Documents to Be Given to Trustee . . . . . . . . . . 78
SECTION 9.04. Notation on Notes in Respect of
Supplemental Indentures . . . . . . . . . . . . . 78
SECTION 9.05. Trustees Protected . . . . . . . . . . . . . . . . . 78
SECTION 9.06. Documents Mailed to Note Holders . . . . . . . . . . 78
SECTION 9.07. No Request Necessary for Lease
Supplement or Indenture Supplement . . . . . . . . 79
SECTION 9.08. Notices to Liquidity Provider . . . . . . . . . . . 79
ARTICLE X
MISCELLANEOUS . . . . . . . . . . . . . . 79
SECTION 10.01. Termination of Indenture . . . . . . . . . . . . . 79
SECTION 10.02. No Legal Title to Trust Indenture
Estate in Note Holders . . . . . . . . . . . . . 79
SECTION 10.03. Sale of Aircraft by Indenture Trustee
is Binding . . . . . . . . . . . . . . . . . . . 80
SECTION 10.04. Indenture for Benefit of Owner Trustee,
Indenture Trustee, Owner Participant,
Lessee and Note Holders . . . . . . . . . . . . . 80
SECTION 10.05. No Action Contrary to Lessee's Rights
Under the Lease . . . . . . . . . . . . . . . . . 80
SECTION 10.06. Notices . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 10.07. Severability . . . . . . . . . . . . . . . . . . . 81
SECTION 10.08. No Oral Modifications or Continuing
Waivers . . . . . . . . . . . . . . . . . . . . . 81
SECTION 10.09. Successors and Assigns . . . . . . . . . . . . . . 81
SECTION 10.10. Headings . . . . . . . . . . . . . . . . . . . . . 81
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SECTION 10.11. Normal Commercial Relations . . . . . . . . . . . . 81
SECTION 10.12. Governing Law; Counterpart Form . . . . . . . . . . 82
SECTION 10.13. Section 1110 . . . . . . . . . . . . . . . . . . . 82
EXHIBIT A - Form of Trust Indenture Supplement
SCHEDULE I - Equipment Notes Amortization
SCHEDULE II - Pass Through Trust Agreements
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FIRST AMENDED AND RESTATED
TRUST INDENTURE AND SECURITY AGREEMENT
[GPA 1989 BN-11]
FIRST AMENDED AND RESTATED TRUST INDENTURE AND SECURITY AGREEMENT
[GPA 1989 BN-11] (this "First Amended and Restated Indenture" or this
"Indenture") dated as of June __, 1997, between WILMINGTON TRUST COMPANY, a
Delaware banking corporation, not in its individual capacity except as
otherwise specifically set forth herein, but solely as owner trustee under the
Trust Agreement referred to below (in such capacity, together with its
successors, the "Owner Trustee"), and THE CHASE MANHATTAN BANK (formerly known
as Chemical Bank, successor by merger to Manufacturers Hanover Trust Company),
a New York corporation, not in its individual capacity except as otherwise
specifically set forth herein, but solely as indenture trustee hereunder (in
such capacity, together with its successors, the "Indenture Trustee").
W I T N E S S E T H:
WHEREAS, all capitalized terms used herein shall have the
respective meanings set forth or referred to in Article I hereof;
WHEREAS, the Owner Participant and Wilmington Trust Company
entered into the Trust Agreement [GPA 1989 BN-11] dated as of December 19,
1989, as supplemented by Trust Agreement Supplement [GPA 1989 BN-11] No. 1
dated December 29, 1989, and as further supplemented by Trust Agreement
Supplement [GPA 1989 BN-11] No. 2 dated the date hereof (as amended, assigned,
supplemented or otherwise modified from time to time in accordance with the
terms thereof, hereof and of the Refunding Agreement, the "Trust Agreement"),
whereby, among other things, Wilmington Trust Company has declared a certain
trust for the use and benefit of the Owner Participant, subject, however, to
the Trust Indenture Estate created pursuant hereto for the use and benefit of
(to the extent set forth herein), and with the priority of certain payments to,
the Holders of Equipment Notes issued hereunder, and the Owner Trustee is
authorized and directed to execute and deliver this Indenture;
WHEREAS, (i) the Owner Trustee and the Indenture Trustee entered
into the Trust Indenture and Security Agreement [GPA 1989 BN-11] dated as of
December 19, 1989, as supplemented by Trust Indenture Supplement No. 1 dated
December 29, 1989, which were recorded by the Federal Aviation Administration
on January 3, 1990 as one instrument and assigned Conveyance No. V78689 (as so
supplemented, the "Original Indenture"), (ii) the Owner Trustee and the
Original Head Lessee entered into the Aircraft Lease Agreement [GPA 1989 BN-11]
dated as of December 19, 1989, as supplemented by Lease Supplement [GPA 1989
BN-11] No. 1 dated December 29, 1989, which were recorded by the Federal
Aviation Administration on January 3, 1990 as one instrument and assigned
Conveyance No. V78690 and as further supplemented by Lease Supplement [GPA 1989
BN-11] No. 2 dated
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January 5, 1995, which was recorded by the Federal Aviation Administration on
March 9, 1995 and assigned Conveyance No. DD007547 (collectively, as so
supplemented, the "Original Lease") and (iii) pursuant to the Original
Indenture, the Owner Trustee issued and sold to the Lenders (as defined in the
Original Indenture) the Original Loan Certificates;
WHEREAS, the parties have agreed to (i) assign, amend and restate
the Original Lease pursuant to Assignment and Amendment No. 1 and Sublease
Termination Agreement [GPA 1989 BN-11] dated as of the date hereof among the
Original Head Lessee, as assignor, and the Original Sublessee, as assignee, the
Owner Trustee and the Indenture Trustee and the Amended and Restated Aircraft
Lease Agreement [GPA 1989 BN-11] dated as of the date hereof between the Owner
Trustee and the Lessee (as so assigned, amended and restated, the "Amended and
Restated Lease" or the "Lease") and to enter into Lease Supplement No. 3 and
(ii) cause the implementation of the Refinancing Transaction pursuant to which,
among other things, the Original Loan Certificates issued pursuant to the
Original Indenture shall be prepaid and new Equipment Notes shall be issued to
the Pass Through Trustees (or their designee);
WHEREAS, in light of the foregoing and in anticipation of the
Refinancing Transaction, the parties desire by this First Amended and Restated
Indenture, among other things, (i) to amend and restate in its entirety the
Original Indenture, (ii) to provide for the issuance by the Owner Trustee of
the Equipment Notes and (iii) to provide for the assignment, mortgage and
pledge by the Owner Trustee to the Indenture Trustee, as part of the Trust
Indenture Estate hereunder, among other things, of certain of the Owner
Trustee's estate, right, title and interest in and to the Aircraft and, except
as hereinafter expressly provided, all of the Owner Trustee's right, title and
interest in, to and under the Lease (as amended and restated to date and as the
same may at any time and from time to time be further amended, restated or
otherwise modified in accordance with the terms thereof and hereof) and all
payments and other amounts received hereunder or thereunder in accordance with
the terms hereof or thereof, as security for, among other things, the Owner
Trustee's obligations to the Indenture Trustee, for the ratable benefit and
security of the Note Holders, subject to Section 2.13 and Article III hereof;
WHEREAS, all things have been done to make the Equipment Notes,
when executed by the Owner Trustee and authenticated, issued and delivered by
the Indenture Trustee hereunder, the legal, valid and binding obligations of
the Owner Trustee; and
WHEREAS, all things necessary to make this First Amended and
Restated Indenture the legal, valid and binding obligation of the Owner
Trustee, for the uses and purposes herein set forth, in accordance with its
terms, have been done and performed and have happened;
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GRANTING CLAUSE
NOW, THEREFORE, THIS FIRST AMENDED AND RESTATED TRUST INDENTURE
AND SECURITY AGREEMENT WITNESSETH, that, to secure the prompt payment of the
Principal Amount of, interest on, Make-Whole Amount, if any, and all other
amounts due with respect to, all Equipment Notes from time to time outstanding
hereunder and the performance and observance by the Owner Trustee of all the
agreements, covenants and provisions contained herein and in the Refunding
Agreement and the Equipment Notes, for the benefit of the Note Holders, and the
prompt payment of any and all amounts from time to time owing hereunder and
under the Refunding Agreement by the Owner Trustee, the Owner Participant and
the Lessee to the Note Holders and for the uses and purposes and subject to the
terms and provisions hereof, and in consideration of the premises and of the
covenants herein contained, and of the acceptance of the Equipment Notes by the
Holders thereof, and of the sum of $1 paid to the Owner Trustee by the
Indenture Trustee at or before the delivery hereof, the receipt whereof is
hereby acknowledged, the Owner Trustee has granted, bargained, sold, assigned,
transferred, conveyed, mortgaged, pledged and confirmed, and does hereby grant,
bargain, sell, assign, transfer, convey, mortgage, pledge and confirm, unto the
Indenture Trustee, its successors and assigns, for the security and benefit of
the Note Holders from time to time, a security interest in and mortgage Lien on
all estate, right, title and interest of the Owner Trustee in, to and under the
following described property, rights, interests and privileges, whether now or
hereafter acquired, other than Excepted Payments and Excepted Rights (which
collectively, excluding Excepted Payments and Excepted Rights but including all
property hereafter specifically subjected to the Lien of this Indenture by any
Indenture Supplement or any indenture supplemental hereto, are included within
the Trust Indenture Estate), to wit:
(1) the Aircraft (including the Airframe and the Engines) and
all replacements thereof and substitutions therefor to which the Owner
Trustee shall from time to time acquire an interest under the Lease, all
as more particularly described in the Indenture Supplement executed and
delivered with respect to the Aircraft or any such replacements or
substitutions therefor, as provided in this Indenture, and all records,
logs and other documents to which the Owner Trustee shall from time to
time acquire an interest at any time maintained by the Lessee with
respect to the foregoing property;
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(2) the Lease (including each Lease Supplement) and all Rent
thereunder, including, without limitation, all amounts of Basic Rent,
Supplemental Rent and payments of any kind thereunder; the Refunding
Agreement; the Purchase Agreement (to the extent assigned to or for the
benefit of the Owner Trustee); the Purchase Agreement Warranty
Assignment; the Second Aircraft Warranty ▇▇▇▇ of Sale; the BFE ▇▇▇▇ of
Sale; each notice, letter agreement or other document related to any of
the foregoing entered into by or for the benefit of the Owner Trustee
(or assigned to the Owner Trustee); in each case including, without
limitation, (x) all rights of the Owner Trustee to exercise any election
or option or to make any decision or determination or to give any
notice, consent, waiver or approval or to take any other action under or
in respect of any such document or to accept surrender or redelivery of
the Aircraft or any part thereof, as well as all the rights, powers and
remedies on the part of the Owner Trustee, whether arising under any
such document or by statute or at law or in equity, or otherwise,
arising out of any Lease Event of Default, and (y) any right to
restitution from the Lessee, the Manufacturer or any other Person in
respect of any determination of invalidity of any such document;
(3) each Sublease Assignment and each Assigned Sublease (to
the extent assigned under such Sublease Assignment), and including,
without limitation, all rents or other payments of any kind made under
such Assigned Sublease (to the extent assigned under such Sublease
Assignment), all collateral security or credit support (in the nature of
a guarantee, letter of credit, credit insurance, Lien on or security
interest in any property or otherwise) for the obligations of the
Permitted Sublessee thereunder (to the extent assigned under such
Sublease Assignment) and all rights of the Owner Trustee to exercise any
election or option or to give any notice, consent, waiver, or approval
under or with respect of any thereof or to accept any surrender of the
Aircraft or any part thereof as well as any rights, powers or remedies
on the part of the Owner Trustee (in each case to the extent assigned to
the Owner Trustee), whether arising under any Assigned Sublease or any
Sublease Assignment or by statute or at law or in equity, or otherwise,
arising out of any default under any Assigned Sublease;
(4) all tolls, rents, issues, profits, revenues and other
income of the property subjected or required to be subjected to the Lien
of this Indenture, including, without limitation, all payments or
proceeds payable to the Owner Trustee after termination of the Lease
with respect to the Aircraft as the result of the sale, lease or other
disposition thereof, and all estate, right, title and interest of every
nature whatsoever of the Owner Trustee in and to the same and every part
thereof;
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(5) 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 Lease), and all insurance proceeds with respect to the
Aircraft or any part thereof, including but not limited to the insurance
required under Section 12 of the Lease or under any comparable provision
of any Assigned Sublease (but excluding any excess insurance maintained
by the Lessee and not required under Section 12 of the Lease or any
Assigned Sublease);
(6) all moneys and securities now or hereafter paid or
deposited or required to be paid or deposited to or with the Indenture
Trustee by or for the account of the Owner Trustee pursuant to any term
of any Operative Document and held or required to be held by the
Indenture Trustee hereunder;
(7) all rights of the Owner Trustee to amounts paid or payable
by the Lessee to the Owner Trustee under the Refunding Agreement and all
rights of the Owner Trustee to enforce payments of any such amounts
thereunder; and
(8) all proceeds of the foregoing.
PROVIDED, HOWEVER, that the foregoing Granting Clause shall not subject to the
Lien of this Indenture any (i) Excepted Payments, (ii) Excepted Rights or (iii)
payment in amounts which have been distributed to the Owner Trustee or any
other Person in accordance with the provisions of this Agreement, AND SUBJECT
TO Sections 2.03, 5.10 and 9.01 hereof.
Concurrently with the delivery of the Original Indenture, the
Owner Trustee delivered to the Indenture Trustee the chattel paper original
executed counterparts of the Original Lease and Lease Supplement No. 1,
certified copies of the Purchase Agreement Warranty Assignment, and the
original Second Aircraft Warranty ▇▇▇▇ of Sale and the BFE ▇▇▇▇ of Sale.
Concurrently with the delivery of this Indenture, the Owner Trustee is
delivering to the Indenture Trustee the chattel paper original executed
counterparts of the Amended and Restated Lease and Lease Supplement No. 3. All
property referred to in this Granting Clause, whenever acquired by the Owner
Trustee, shall secure all obligations under and with respect to the Equipment
Notes at any time outstanding. Any and all properties referred to in this
Granting Clause which are hereafter acquired by the Owner Trustee, shall,
without further conveyance, assignment or act by the Owner Trustee or the
Indenture Trustee thereby become and be subject to the security interest hereby
granted as fully and completely as though specifically described herein.
HABENDUM CLAUSE
TO HAVE AND TO HOLD all and singular the aforesaid property unto
the Indenture Trustee, its successors and assigns, in trust for the benefit and
security of the Note Holders from
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time to time, except as set forth in Section 2.13 and Article III hereof
without any preference, distinction or priority of any one Equipment Note over
any other regardless of when issued, and for the uses and purposes and subject
to the terms and provisions set forth in this Indenture.
It is expressly agreed that anything herein contained to the
contrary notwithstanding, the Owner Trustee shall remain liable under the
Indenture Documents to perform all of the obligations assumed by it thereunder,
all in accordance with and pursuant to the terms and provisions thereof, and
the Indenture Trustee and the Note Holders shall have no obligation or
liability under any thereof by reason of or arising out of the assignment
hereunder, nor shall the Indenture Trustee or the Note Holders be required or
obligated in any manner to perform or fulfill any obligations of the Owner
Trustee under or pursuant to any of the Indenture Documents, or except as
herein expressly provided, to make any payment, or to make any inquiry as to
the nature or sufficiency of any payment received by it, or present or file any
claim or take any action to collect or enforce the payment of any amounts which
may have been assigned to it or to which it may be entitled at any time or
times.
The Owner Trustee does hereby constitute the Indenture Trustee
the true and lawful attorney of the Owner Trustee, irrevocably, with full power
(in the name of the Owner Trustee or otherwise) to ask, require, demand,
receive and give acquittance for any and all moneys and claims for moneys (in
each case including insurance and requisition proceeds but excluding Excepted
Payments and Excepted Rights) due and to become due to the Owner Trustee under
or arising out of the Indenture Documents and all other property which now or
hereafter constitutes part of the Trust Indenture Estate, to endorse any checks
or other instruments or orders in connection therewith and to file any claims
or to take any action or to institute any proceedings which the Indenture
Trustee may deem to be necessary or advisable in the premises. Under the
Lease, the Lessee is directed to make all payments of Rent (other than Excepted
Payments) and all other amounts which are required to be paid to or deposited
with the Owner Trustee pursuant to the Lease (other than Excepted Payments)
directly to the Indenture Trustee at such address or addresses as the Indenture
Trustee shall specify, for application as provided in this Indenture. Pursuant
to each Sublease Assignment, each Permitted Sublessee will be directed from and
after (i) notice of the occurrence of a Lease Event of Default and (ii) notice
that the Lease is declared or deemed in default, to make all payments of rent
and all other amounts which are required to be paid to or deposited with the
Lessee pursuant to the related Assigned Sublease and which are assigned
thereunder directly to the Indenture Trustee at such address or addresses as
the Indenture Trustee shall specify, for application or to be held as provided
in this Indenture. The Owner Trustee agrees that promptly on receipt thereof,
it will transfer to the Indenture Trustee any and all moneys from time to time
received by it constituting part of the Trust Indenture Estate, for
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distribution by the Indenture Trustee pursuant to this Indenture, except (a) to
the extent the Owner Trustee is entitled to distribution of such moneys
pursuant to this Indenture and (b) that the Owner Trustee shall accept for
distribution pursuant to the Trust Agreement any amounts distributed to it by
the Indenture Trustee under this Indenture.
The Owner Trustee agrees that at any time and from time to time,
upon the written request of the Indenture Trustee, the Owner Trustee will
promptly and duly execute and deliver or cause to be duly executed and
delivered any and all such further instruments and documents as the Indenture
Trustee may reasonably deem desirable in obtaining the full benefits of the
assignment hereunder and of the rights and powers herein granted.
The Owner Trustee does hereby warrant and represent that it has
not assigned or pledged, and hereby covenants that it will not assign or pledge
or otherwise dispose of, so long as this Indenture shall remain in effect and
the Lien hereof shall not have been released pursuant to Section 10.01 hereof,
any of its estate, right, title or interest hereby assigned, to anyone other
than the Indenture Trustee, and that, with respect to such estate, right, title
and interest hereby assigned, subject to its rights pursuant to Section 5.10
hereof, it will not, except as provided in this Indenture (including, without
limitation, Section 9.01) and except as to Excepted Payments and Excepted
Rights, (i) accept any payment from the Lessee or any Permitted Sublessee under
any of the Indenture Documents, enter into any agreement amending, modifying or
supplementing any of the Indenture Documents, or execute any waiver or
modification of, or consent under, the terms of any of the Indenture Documents,
(ii) settle or compromise any claim arising under any of the Indenture
Documents, (iii) give any notice or exercise any right or take any action under
any of the Indenture Documents, or (iv) submit or consent to the submission of
any dispute, difference or other matter arising under or in respect of any of
the Indenture Documents to arbitration thereunder. For purposes of Section
4.02(e) hereof, this is the fourth paragraph following the Habendum Clause.
The Owner Trustee hereby ratifies and confirms its obligations
under the Indenture Documents and does hereby agree that (except as permitted
herein) it will not take, or omit to take, any action, the taking or omission
of which might result in an alteration or impairment of any of the Indenture
Documents or of any of the rights created by any thereof or the assignment
hereunder.
Notwithstanding the Granting Clause or any of the preceding
paragraphs, there is hereby excluded from the foregoing sale, transfer,
assignment, grant, pledge and security interest all Excepted Payments and
Excepted Rights. Further, nothing in the Granting Clause or the preceding
paragraphs shall impair any of the rights of the Owner Trustee or the Owner
Participant under Section 5.10 hereof.
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IT IS HEREBY COVENANTED AND AGREED by and between the parties
hereto as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Special Definitions. The definitions contained in
the Lease shall apply for all purposes of this Indenture except that the
following terms shall have the following meanings (such definitions to be
equally applicable to both the singular and plural forms of the terms defined)
for all purposes of this Indenture. Except as otherwise indicated, all the
agreements or instruments defined herein or in the Lease shall mean such
agreements or instruments (including all annexes, appendices, exhibits,
schedules and supplements thereto) as the same may from time to time be
supplemented or amended or the terms thereof waived or modified to the extent
permitted by, and in accordance with, the terms thereof and of the other
Operative Documents and references to various Persons shall be deemed to be
references to and include their respective permitted successors and assigns.
"Amortization Amount" means, with respect to any Principal Amount
Repayment Date, the amount set forth opposite such Principal Amount
Repayment Date on the Amortization Schedule.
"Amortization Schedule" means the amortization schedule for the
Equipment Notes delivered pursuant to Section 2.02 hereof.
"Assigned Sublease" means a Permitted Sublease required to be
assigned to the Owner Trustee pursuant to Section 6(a) of the Lease.
"Average Life Date" for each Equipment Note to be redeemed shall
be the date which follows the redemption date by a period equal to the
Remaining Weighted Average Life at the redemption date of such Equipment
Note. "Remaining Weighted Average Life" of such Equipment Note, at the
redemption date of such Equipment Note, shall be the number of days
equal to the quotient obtained by dividing (a) the sum of the products
obtained by multiplying (i) the amount of each then remaining
installment of principal, including the payment due on the maturity date
of such Equipment Note, by (ii) the number of days from and including
the redemption date to but excluding the scheduled payment date of such
principal installment; by (b) the then unpaid Principal Amount of such
Equipment Note.
"Bankruptcy Code" means Chapter 11 of Title 11 of the United
States Code, 11 U.S.C. Sections 101 et seq., as amended.
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"BFE ▇▇▇▇ of Sale" means the full warranty (as to title) ▇▇▇▇ of
sale covering the Buyer Furnished Equipment, transferring all right,
title and interest therein to the Owner Trustee.
"Business Day" means a day other than a Saturday, Sunday or a day
on which banks are required or authorized to close in either The City of
New York, New York or Hartford, Connecticut.
"Cash Collateral Account" means one or more Eligible Deposit
Accounts in the name of the Subordination Agent each maintained at the
Subordination Agent, into which all amounts drawn under one or more
Liquidity Facilities pursuant to Section 3.6(c) or 3.6(i) of the
Intercreditor Agreement shall be deposited.
"Code" means the Internal Revenue Code of 1986, as amended.
"Continuous Stay Period" has the meaning specified in Section
4.04(a).
"Corporate Trust Office" means the principal corporate trust
office of the Indenture Trustee located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Department, or such
other office at which the Indenture Trustee's corporate trust business
shall be administered that the Indenture Trustee shall have specified by
notice in writing to the Lessee, the Owner Trustee and the Note Holders.
"Debt" means any liability for borrowed money, or any liability
for the payment of money in connection with any letter of credit
transaction, or other liabilities evidenced or to be evidenced by bonds,
debentures, notes or other similar instruments.
"Debt Rate" means, with respect to Series A, Series B, Series C
and Series D, the rate per annum specified for such Series under the
heading "Debt Rate" in Schedule I to this Indenture.
"Delivery Date" means December 29, 1989.
"Dollars", "U.S. $" and "$" mean the lawful currency of the
United States of America.
"Downgrade Drawing" has the meaning assigned to such term in
Section 3.6(c) of the Intercreditor Agreement.
"Eligible Deposit Account" means either (a) a segregated account
with an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution organized under
the laws of the
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United States of America or any one of the states thereof or the
District of Columbia (or any U.S. branch of a foreign bank), having
corporate trust powers and acting as trustee for funds deposited in such
account, so long as any of the securities of such depository institution
has a long-term unsecured debt rating from each Rating Agency of at
least A-3 or its equivalent.
"Eligible Institution" means (a) the corporate trust department
of the Subordination Agent or any Pass Through Trustee, as applicable,
or (b) a depository institution organized under the laws of the United
States of America or any one of the states thereof or the District of
Columbia (or any U.S. branch of a foreign bank), which has a long-term
unsecured debt rating from each Rating Agency of at least A-3 or its
equivalent.
"Equipment Notes" means the Equipment Notes, in substantially the
form set out in Section 2.01 hereof, issued by the Owner Trustee and
authenticated by the Indenture Trustee pursuant to the terms of this
Indenture.
"Equity Collateral" has the meaning assigned to such term in the
definition of "Excepted Payments."
"Excepted Payments" means (i) any and all indemnity payments and
interest in respect thereof paid or payable in respect of the Owner
Participant, the partners of the Owner Participant, the Trust Company,
the Owner Trustee (and not in support of any payment obligation of the
Owner Trustee under any Indenture Document) or any of their respective
successors, permitted assigns (and, in the case of a permitted assign of
the Owner Participant that is a partnership, the partners of such
partnership), directors, officers, employees, servants, agents,
subsidiaries, affiliates or shareholders by the Lessee pursuant to the
Lease (including, without limitation, Section 13 thereof and any
corresponding payment of Supplemental Rent under the Lease), (ii) any
proceeds of public liability insurance (or government indemnities in
lieu thereof) in respect of the Aircraft payable as a result of
insurance claims paid respecting, or losses suffered by, the Trust
Company or the Indenture Trustee in its individual capacity or the Owner
Participant, or any partner of the Owner Participant, (iii) any proceeds
of insurance maintained with respect to the Aircraft by or for the
benefit of the Owner Participant (whether directly or through the Owner
Trustee) and not required under Section 12 of the Lease, (iv) payments
of Supplemental Rent by the Lessee in respect of any amounts payable to
the Owner Participant, any partner of the Owner Participant, the Trust
Company, the Owner Trustee (and not in support of any payment obligation
of the Owner Trustee under any Indenture Document), or any of their
respective successors, permitted assigns (and, in the case of a
permitted assign of the Owner Participant that is a
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partnership, the partners of such partnership), directors, officers,
employees, servants, agents, subsidiaries, affiliates or shareholders
under Section 10 of the Lease or by the Lessee or the Parent Guarantor
under the Tax Indemnification Agreement or the Amended and Restated Head
Lease TIA (as defined in the Refunding Agreement), as the case may be,
(v) Transaction Expenses paid or payable by the Lessee or the Parent
Guarantor to the Trust Company, the Owner Trustee, the Indenture Trustee
or the Owner Participant pursuant to Section 21 of the Refunding
Agreement or the Lease, (vi) any letter of credit contemplated by
Section 8(l) of the Lease (including, without limitation, any
replacement letter of credit (the "Equity Collateral")) and any payment
or proceeds of any such Equity Collateral to the extent retained or
applied as provided in Section 8(l) of the Lease, (vii) any amount
payable to the Owner Participant by any transferee as the purchase price
of the Owner Participant's interest in the Trust Estate (or a portion
thereof), (viii) any amount payable to the Owner Trustee, the Trust
Company, the Owner Participant or any of their respective successors,
permitted assigns (and, in the case of a permitted assign of the Owner
Participant or any partner of the Owner Participant that is a
partnership, the partners of such partnership), directors, officers,
employees, servants, agents, subsidiaries, affiliates or shareholders
attributable to the period prior to or on the Restatement Date or under
the Original Participation Agreement, the Original Lease, the Parent
Head Lease Guaranty, the Sublease, the Amended and Restated Head Lease
TIA or the Amended and Restated Sublease TIA (as such terms are defined
in the Refunding Agreement) or Retained Head Lease Rights and
Obligations (as such term is defined in the Refunding Agreement), and
(ix) subject to the last sentence of Section 5.10 hereof, any and all
rights of the Owner Trustee, the Owner Participant or the Trust Company
under the Operative Documents, whether or not a Lease Event of Default,
a Lease Default, an Indenture Default or an Indenture Trustee Event has
occurred and is continuing, to demand, collect, ▇▇▇ for, give notices,
make determinations, enforce or exercise all rights with respect to and
otherwise obtain all amounts described in clauses (i) through (viii)
above and the proceeds thereof.
"Excepted Rights" means (i) those rights of the Owner Participant
and the Owner Trustee under Section 5.10 of this Indenture, (ii) all
rights under the Equity Collateral to make a claim for, collect and
retain all amounts payable with respect to any Equity Collateral, (iii)
all rights of the Owner Participant, the Trust Company or the Owner
Trustee to compromise or waive any such right or modify, amend or waive
any provision of any Operative Document conferring such rights with
respect to Excepted Payments, and (iv) all rights of the Owner Trustee
to exercise any election or option, or to make any decision or
determination,
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or to give or receive any notice, consent, waiver or approval with
respect to Excepted Payments.
"Excess Amount" has the meaning specified in Section 2.03(b)
hereof.
"FAA" means the Federal Aviation Administration of the United
States Department of Transportation or any successor agency.
"Final Drawing" means, in respect of a Liquidity Facility, a
borrowing or drawing of all available and undrawn amounts under such
Liquidity Facility in accordance with the provisions thereof other than
a Downgrade Drawing.
"Government Obligations" means direct obligations of the United
States of America that are not callable, redeemable or payable prior to
maturity, in whole or in part, directly or indirectly, by any Person.
"Indenture," "this Indenture," and "the Indenture" mean this
First Amended and Restated Indenture, as it may from time to time be
supplemented or amended as herein provided, including as supplemented by
any Indenture Supplement pursuant hereto.
"Indenture Default" means an Indenture Event of Default or an
event or condition that, with the giving of notice or the lapse of time
or both, would become an Indenture Event of Default.
"Indenture Documents" means the Refunding Agreement; the Trust
Agreement (including any Trust Supplements); the Lease (including any
Lease Supplements); the Equipment Notes; this Indenture (including any
Indenture Supplements); any Sublease Assignment; any Assigned Sublease;
the Purchase Agreement (to the extent assigned to or for the benefit of
the Owner Trustee); the Purchase Agreement Warranty Assignment; the
Second Aircraft Warranty ▇▇▇▇ of Sale and the BFE ▇▇▇▇ of Sale.
"Indenture Event of Default" has the meaning set forth in Section
4.02 hereof.
"Indentures" means, collectively, each Trust Indenture and
Security Agreement listed on Schedule 1 to the Intercreditor Agreement,
as the same may be amended, supplemented or otherwise modified from time
to time in accordance with its terms.
"Indenture Supplement" or "Trust Indenture Supplement" means a
supplement to this Indenture, in substantially the form of Exhibit A to
this Indenture, which shall particularly describe the Aircraft and any
Replacement Airframe and Replacement Engine included in the property of
the Owner
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Trustee covered by this Indenture, including, without limitation, Trust
Indenture Supplement No. 1 dated December 29, 1989, which was recorded
as one instrument by the FAA with the Original Indenture, and Trust
Indenture Supplement No. 2 dated the date hereof, which is being filed
for recordation as one instrument by the FAA with this First Amended and
Restated Indenture.
"Indenture Trustee Event" means either (i) the Equipment Notes
shall have become due and payable pursuant to Section 4.04(b) or (c) of
this Indenture or (ii) the Indenture Trustee has taken action or
notified the Owner Trustee that it intends to take action to foreclose
the Lien of this Indenture or otherwise commence the exercise of any
significant remedy under this Indenture or the Lease.
"Interest Drawing" has the meaning assigned to such term in
Section 3.6(a) of the Intercreditor Agreement.
"Investment Earnings" means investment earnings on funds on
deposit in the Trust Accounts net of losses and investment expenses of
the Subordination Agent in making such investments.
"Lease" means the Original Lease, as the same may be modified,
supplemented or amended from time to time in accordance with the
provisions thereof and hereof and of the Refunding Agreement including,
without limitation, as supplemented by Lease Supplement No. 1 dated the
Delivery Date and Lease Supplement No. 2 dated January 5, 1995, and as
further assigned, amended, restated and supplemented by Assignment and
Amendment No. 1 and Sublease Termination Agreement [GPA 1989 BN-11]
dated as of the date hereof and Amended and Restated Aircraft Lease
Agreement [GPA 1989 BN-11] dated as of the date hereof and supplemented
by Lease Supplement [GPA 1989 BN-11] No. 3 dated the date hereof, which
are being filed for recordation with the FAA contemporaneously herewith.
"Lease Default" means an event or condition that, with the giving
of notice or the lapse of time or both, would become a Lease Event of
Default.
"Lease Event of Default" means any event or condition defined as
an "Event of Default" in Section 17 of the Lease.
"Lessee" means America West Airlines, Inc., a Delaware
corporation, in its capacity as lessee under the Amended and Restated
Lease, and its successors, and, to the extent permitted by the Refunding
Agreement, its assigns thereunder.
"Lien" means any mortgage, chattel mortgage, pledge, lien,
charge, encumbrance, lease, exercise of rights, security interest, lease
in the nature of a security
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interest, statutory right in rem, or claim of any kind, including any
thereof arising under any conditional sale agreement, equipment trust
agreement or title retention agreement.
"Majority in Interest of Note Holders" means, as of a particular
date of determination and subject to Section 2.6 of the Intercreditor
Agreement, the Holders of more than 50% in aggregate unpaid Principal
Amount of all Equipment Notes outstanding as of such date. For purposes
of this definition, there shall be excluded any Equipment Notes held by
the Owner Trustee or the Owner Participant or any interests of the Owner
Participant therein by reason of subrogation pursuant to Section 4.03 of
the Indenture (unless all Equipment Notes then outstanding shall be held
by the Owner Trustee and/or the Owner Participant) or any Equipment
Notes held by the Lessee or any Affiliate of any thereof.
"Make-Whole Amount" means, with respect to any Equipment Note,
the amount (as determined by an independent investment banker selected
by Lessee and reasonably acceptable to the Indenture Trustee and the
Owner Participant) by which (a) the present value of the remaining
scheduled payments of principal and interest from the redemption date to
maturity of such Equipment Note computed by discounting each such
payment on a semiannual basis from its respective Payment Date (assuming
a 360-day year of twelve 30-day months) using a discount rate equal to
(i) in the case of Series A Equipment Notes and Series B Equipment
Notes, the Treasury Yield and (ii) in the case of Series C Equipment
Notes and Series D Equipment Notes, the Treasury Yield plus 0.75%
exceeds (b) the outstanding principal amount of such Equipment Note plus
accrued interest. For purposes of determining the Make-Whole Amount,
"Treasury Yield" at the time of determination with respect to any
Equipment Note means the interest rate (expressed as a semiannual
equivalent and as a decimal and, in the case of United States Treasury
bills, converted to a bond equivalent yield) determined to be the per
annum rate equal to the semiannual yield to maturity for United States
Treasury securities maturing on the Average Life Date of such Equipment
Note and trading in the public securities market either as determined by
interpolation between the most recent weekly average yield to maturity
for two series of United States Treasury securities, trading in the
public securities markets, (A) one maturing as close as possible to, but
earlier than, the Average Life Date of such Equipment Note and (B) the
other maturing as close as possible to, but later than, the Average Life
Date of such Equipment Note, in each case as published in the most
recent H.15(519) or, if a weekly average yield to maturity for United
States Treasury securities maturing on the Average Life Date of such
Equipment Note is reported on the most recent H.15(519), such weekly
average yield to maturity as published in such H.15(519). "H.15(519)"
means the weekly
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statistical release designated as such, or any successor publication,
published by the Board of Governors of the Federal Reserve System. The
date of determination of a Make-Whole Amount shall be the third Business
Day prior to the applicable redemption date and the "most recent
H.15(519)" means the H.15(519) published prior to the close of business
on the third Business Day prior to the applicable redemption date.
"Non-U.S. Holder" or "Non-U.S. Person" means any Person other
than a U.S. Person or a U.S. Holder.
"Note Holder" or "Holder" means any registered holder from time
to time of one or more Equipment Notes as reflected in the Register
maintained by the Registrar.
"Officers' Certificate" means a certificate (i) signed by a
Responsible Officer of the Owner Trustee or the Lessee, as the case may
be, and (ii) signed by another officer of the Owner Trustee or the
Lessee, as the case may be, certifying as to the authority and signature
of such Responsible Officer, that is delivered to the Indenture Trustee.
"Opinion of Counsel" means a written opinion of legal counsel,
who in the case of legal counsel for the Lessee may be (i) an attorney
employed by the Lessee who is generally empowered to deliver such
written opinions or (ii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ or other counsel designated by
the Lessee and reasonably satisfactory to the Indenture Trustee or, in
the case of legal counsel for the Owner Trustee, may be Morris, James,
Hitchens & ▇▇▇▇▇▇▇▇ or other counsel designated by the Owner Trustee and
reasonably satisfactory to the Indenture Trustee.
"Original Head Lessee" means GPA Leasing USA Sub I, Inc., a
Connecticut corporation, in its capacity as lessee under the Original
Lease.
"Original Indenture" means the Trust Indenture and Security
Agreement [GPA 1989 BN-11] dated as of December 19, 1989, as
supplemented by Trust Indenture Supplement No. 1 dated December 29,
1989, which were recorded as one instrument by the FAA on January 3,
1990 and assigned Conveyance No. V78689.
"Original Loan Certificates" means the Loan Certificates issued
under and as defined in the Original Indenture.
"Original Sublessee" means America West Airlines, Inc. ("AWA"), a
Delaware corporation, in its capacity as sublessee under the Aircraft
Sublease Agreement [GPA 1989 BN-11] dated as of September 21, 1990, as
supplemented and amended to the date hereof, between the Original Head
Lessee
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in its capacity as sublessor thereunder and AWA in its capacity as
sublessee.
"Owner Participant" means ___________________, as Owner
Participant under the Trust Agreement, and its successors and permitted
assigns.
"Parent Guarantor" means GPA Group plc, a public limited company
organized and existing under the laws of Ireland.
"Pass Through Trust" means each of the four Pass Through Trusts
established under the relevant Pass Through Trust Agreement.
"Pass Through Trust Agreement" means the Pass Through Trust
Agreements set forth on Schedule II hereto.
"Pass Through Trustee" means Fleet National Bank, a national
banking association, not in its individual capacity but solely as pass
through trustee under each of the four separate Pass Through Trust
Agreements.
"Past Due Rate" means, with respect to any amount not paid when
due (whether at stated maturity, by acceleration or otherwise) under or
in respect of any Equipment Note, a rate of interest per annum (computed
on the basis of a year of 360 days comprised of twelve 30-day months)
equal to 1% in excess of the Debt Rate for such Equipment Note.
"Payment Date" means each January 2 and July 2, commencing on
July 2, 1997 (or, if any such day is not a Business Day, the immediately
succeeding Business Day) until the Equipment Notes have been paid in
full.
"Principal Amount" with respect to an Equipment Note means the
stated original principal amount of such Equipment Note and, with
respect to all Equipment Notes, means the aggregate stated original
principal amounts of all Equipment Notes.
"Principal Amount Repayment Date" means each Payment Date on
which any portion of the Principal Amount is due and payable in
accordance with the Amortization Schedule.
"Purchase Agreement Warranty Assignment" means the Purchase
Agreement Warranty Assignment [GPA 1989 BN-11], dated the Delivery Date,
between the Original Head Lessee and the Owner Trustee.
"Rating Agencies" means, collectively, at any time, each
nationally recognized rating agency which shall have been requested to
rate the Certificates issued pursuant to the Pass Through Trust
Agreements and which shall then be rating the Certificates. Initially,
the Rating Agencies
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shall consist of ▇▇▇▇▇'▇ Investors Service, Inc. and Standard & Poor's
Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇ Inc.
"Refinancing Transaction" means the transactions contemplated by
the Refunding Agreement and the other documents entered into on and in
connection with the Refunding Agreement on the Restatement Date.
"Refunding Agreement" means the Refunding Agreement [GPA 1989 BN-
11] dated as of June __, 1997, among the Lessee, the Original Head
Lessee, the Parent Guarantor, the Owner Trustee, the Pass Through
Trustee, the Owner Participant, the Subordination Agent and the
Indenture Trustee.
"Register" has the meaning set forth in Section 2.07 hereof.
"Registrar" has the meaning set forth in Section 2.07 hereof.
"Responsible Officer" means, in the case of the Lessee, the
president or any other officer with authority of at least a vice
president or, in the case of the Owner Trustee, an officer of the Owner
Trustee in its Corporate Trust Administration Department.
"Restatement Date" means June __, 1997 or such other date agreed
to by the parties to the Refunding Agreement as the date for the
consummation of the Refinancing Transaction, as evidenced by the date of
the filing with the FAA of Trust Indenture Supplement No. 2.
"Second Aircraft Warranty ▇▇▇▇ of Sale" means the full warranty
(as to title) ▇▇▇▇ of sale covering the Aircraft (excluding all of the
Buyer Furnished Equipment to be covered by the BFE ▇▇▇▇ of Sale)
executed by the Original Head Lessee in favor of the Owner Trustee,
dated the Delivery Date.
"Secured Obligations" has the meaning set forth in Section 2.06
hereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Series A" or "Series A Equipment Notes" means Equipment Notes
issued and designated as "Series A" hereunder, in the Principal Amount
and maturities and bearing interest as specified in Section 2.02 and
Schedule I hereto under the heading "Series A."
"Series B" or "Series B Equipment Notes" means Equipment Notes
issued and designated as "Series B" hereunder, in the Principal Amount
and maturities and
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bearing interest as specified in Section 2.02 and Schedule I hereto
under the heading "Series B."
"Series C" or "Series C Equipment Notes" means Equipment Notes
issued and designated as "Series C" hereunder, in the Principal Amount
and maturities and bearing interest as specified in Section 2.02 and
Schedule I hereto under the heading "Series C."
"Series D" or "Series D Equipment Notes" means Equipment Notes
issued and designated as "Series D" hereunder, in the Principal Amount
and maturities and bearing interest as specified in Section 2.02 and
Schedule I hereto under the heading "Series D."
"Sublease Assignment" means a sublease assignment by the Lessee
in favor of the Owner Trustee (including the consent thereto given by
the sublessee thereunder) with respect to the assignment of a Permitted
Sublease pursuant to Section 6(a) of the Lease.
"Transaction Expenses" means the costs, fees, expenses and
disbursements set forth in Section 21 of the Refunding Agreement.
"Trust Accounts" has the meaning assigned to such term in Section
2.2(a) of the Intercreditor Agreement.
"Trust Company" means Wilmington Trust Company, a Delaware
banking corporation, in its individual capacity and not as Owner
Trustee, and its successors under the Trust Agreement, in their
respective individual capacities and not as Owner Trustee.
"Trust Indenture Estate" or "Indenture Estate" means all estate,
right, title and interest of the Owner Trustee in and to the properties,
rights and interests covered by the Granting Clause of the Indenture,
excluding, however, in each case, Excepted Payments and Excepted Rights.
"U.S. Holder" or "U.S. Person" means any Person that is a "United
States Person" as that term is defined in Section 7701(a)(30) of the
Code.
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ARTICLE II
THE EQUIPMENT NOTES
SECTION 2.01. Form of Equipment Notes. The Equipment Notes
shall be substantially in the form set forth below:
THIS EQUIPMENT NOTE HAS NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR PURSUANT TO THE SECURITIES LAWS OF ANY STATE.
ACCORDINGLY, THIS EQUIPMENT NOTE MAY NOT BE SOLD UNLESS EITHER REGISTERED
UNDER THE ACT AND SUCH APPLICABLE STATE LAWS OR AN EXEMPTION FROM SUCH
REGISTRATIONS
IS AVAILABLE.
WILMINGTON TRUST COMPANY,
AS OWNER TRUSTEE UNDER TRUST AGREEMENT [GPA 1989 BN-11]
DATED AS OF DECEMBER 19, 1989, AS AMENDED.
SERIES [A/B/C/D] NON-RECOURSE EQUIPMENT NOTE DUE [ ]
ISSUED IN CONNECTION WITH ONE AIRBUS 320-231 AIRCRAFT BEARING UNITED STATES
REGISTRATION NUMBER N632AW
No. $ Date: [ , 1997]
------------ ------------------- --------
DEBT RATE MATURITY DATE
--------- -------------
[ ] [ , ]
--------- ------- ---
WILMINGTON TRUST COMPANY, not in its individual capacity but
solely as Owner Trustee (herein in such capacity called the "Owner Trustee")
under that certain Trust Agreement [GPA 1989 BN-11], dated as of December 19,
1989, as amended, between the Owner Participant named therein and Wilmington
Trust Company (herein as such Trust Agreement may be supplemented or amended
from time to time called the "Trust Agreement"), hereby promises to pay to
Fleet National Bank, as Subordination Agent under the Intercreditor Agreement,
or the registered assignee thereof, the principal sum of $_______ (the
"Principal Amount"), together with interest on the Principal Amount remaining
unpaid from time to time (calculated on the basis of a year of 360 days
comprised of twelve 30-day months) from the date hereof until paid in full at a
rate per annum equal to the Debt Rate indicated above. The Principal Amount of
this Equipment Note shall be payable in installments on the dates set forth in
Schedule I hereto equal to the corresponding percentage of the Principal Amount
of this Equipment Note set forth in Schedule I hereto. Accrued but unpaid
interest shall be due and payable in semiannual installments commencing on July
2, 1997, and thereafter on July 2 and January 2 of each year, to and including
___________, ____.
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Notwithstanding the foregoing or anything to the contrary
contained herein, (i) the final payment made on this Equipment Note shall be in
an amount sufficient to discharge in full the unpaid Principal Amount and all
accrued and unpaid interest on, and any other amounts due under, this Equipment
Note; and (ii) if any date on which a payment under this Equipment Note becomes
due and payable is not a Business Day, then such payment shall not be made on
such scheduled date but shall be made on the next succeeding Business Day and
if such payment is made on such next succeeding Business Day, no interest shall
accrue on the amount of such payment during such extension.
For purposes hereof, the term "Indenture" means the First Amended
and Restated Trust Indenture and Security Agreement [GPA 1989 BN-11], dated as
of June __, 1997, between the Owner Trustee and The Chase Manhattan Bank
(formerly known as Chemical Bank, successor by merger to Manufacturers Hanover
Trust Company) (the "Indenture Trustee"), as the same may be amended or
supplemented from time to time. All other capitalized terms used in this
Equipment Note and not defined herein shall have the respective meanings
assigned in the Indenture.
This Equipment Note shall bear interest, payable on demand, at
the Past Due Rate (calculated on the basis of a year of 360 days comprised of
twelve 30-day months) on any overdue Principal Amount, any overdue Make-Whole
Amount, if any, and (to the extent permitted by applicable law) any overdue
interest and any other amounts payable hereunder which are overdue, in each
case for the period the same is overdue. Amounts shall be overdue if not paid
when due (whether at stated maturity, by acceleration or otherwise).
All payments of all or any portion of the Principal Amount,
interest, Make-Whole Amount, if any, and other amounts, if any, to be made by
the Owner Trustee hereunder and under the Indenture or the Refunding Agreement
shall be payable only from the income and proceeds from the Trust Estate to the
extent included in the Trust Indenture Estate and only to the extent that the
Owner Trustee shall have sufficient income or proceeds from the Trust Estate to
the extent included in the Trust Indenture Estate to enable the Indenture
Trustee to make such payments in accordance with the terms of Section 2.03 and
Article III of the Indenture, and each Holder hereof, by its acceptance of this
Equipment Note, agrees that it will look solely to the income and proceeds from
the Trust Indenture Estate to the extent available for distribution to the
Holder hereof as above provided and that none of the Owner Participant, the
Owner Trustee and the Indenture Trustee is personally liable or liable in any
manner, including, without limitation, extending to any assets other than the
Trust Indenture Estate to the Holder hereof for any amounts payable or any
liability under this Equipment Note or, except as provided in the Indenture or
in the Refunding Agreement, for any liability under the Indenture or the
Refunding Agreement; provided, however, that nothing herein contained shall
limit, restrict or impair any and all rights or remedies of the
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Indenture Trustee hereunder, subject always to the terms and provisions of the
Indenture.
There shall be maintained a Register for the purpose of
registering transfers and exchanges of Equipment Notes at the Corporate Trust
Office of the Indenture Trustee or at the office of any successor in the manner
provided in Section 2.07 of the Indenture.
Any payment of any portion of the Principal Amount and interest
and other amounts due hereunder shall be payable in Dollars in immediately
available funds at the Corporate Trust Office of the Indenture Trustee, or as
otherwise provided in the Indenture. Each such payment shall be made on the
date such payment is due and without any presentment or surrender of this
Equipment Note, except that in the case of any final payment with respect to
this Equipment Note, the Equipment Note shall be surrendered promptly
thereafter to the Indenture Trustee for cancellation.
The Holder hereof, by its acceptance of this Equipment Note,
agrees that, except as provided in the Indenture, each payment received by it
hereunder shall be applied, first, to the payment of accrued interest on this
Equipment Note (as well as any interest on any overdue Principal Amount, any
overdue Make-Whole Amount, if any, and, to the extent permitted by law, any
overdue interest and any other overdue amounts hereunder) to the date of such
payment, second, to the payment of the portion of the Principal Amount of this
Equipment Note then due, third, to the payment of Make-Whole Amount, if any,
and any other amount due hereunder or under the Indenture, and fourth, the
balance, if any, remaining thereafter, to the payment of the portion of the
Principal Amount of this Equipment Note remaining unpaid in the inverse order
of its normal maturity.
This Equipment Note is one of the Equipment Notes referred to in
the Indenture which have been or are to be issued by the Owner Trustee pursuant
to the terms of the Indenture. The Trust Indenture Estate is held by the
Indenture Trustee as security, in part, for the Equipment Notes. The
provisions of this Equipment Note are subject to the Indenture. Reference is
hereby made to the Indenture and the Refunding Agreement for a complete
statement of the rights and obligations of the Holder of, and the nature and
extent of the security for, this Equipment Note and the rights and obligations
of the Holders of, and the nature and extent of the security for, any other
Equipment Notes executed and delivered under the Indenture, as well as for a
statement of the terms and conditions of the trusts created by the Indenture,
to all of which terms and conditions in the Indenture and the Refunding
Agreement each Holder hereof agrees by its acceptance of this Equipment Note.
As provided in the Indenture and subject to certain limitations
therein set forth, this Equipment Note is exchangeable for a like aggregate
unpaid portion of the Principal
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Amount of Equipment Notes of different authorized denominations, as requested
by the Holder surrendering the same.
Prior to due presentment for registration of transfer of this
Equipment Note, the Owner Trustee and the Indenture Trustee shall treat the
Person in whose name this Equipment Note is registered as the owner hereof for
all purposes whether or not this Equipment Note be overdue, and neither of the
Owner Trustee nor the Indenture Trustee shall be affected by notice to the
contrary.
This Equipment Note is subject to redemption as provided in
Sections 2.10 and 2.11 of the Indenture, to purchase by the Owner Participant
or the Owner Trustee as provided in Section 2.12 of the Indenture and to
acceleration by the Indenture Trustee as provided in Section 4.04 of the
Indenture.
[The indebtedness evidenced by this Equipment Note is, to the
extent and in the manner provided in the Indenture, subordinate and subject in
right of payment to the prior payment in full of the Secured Obligations (as
defined in the Indenture) in respect of [Series A Equipment Notes](1) [Series B
Equipment Notes](2) [Series C Equipment Notes](3), and this Equipment Note is
issued subject to such provisions. The Note Holder of this Equipment Note, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Indenture Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination as provided
in the Indenture and (c) appoints the Indenture Trustee his attorney-in-fact
for such purpose.](4)
Unless the certificate of authentication hereon has been executed
by or on behalf of the Indenture Trustee by manual signature, this Equipment
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
THIS EQUIPMENT NOTE SHALL IN ALL RESPECTS BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
* * *
----------------------------------
(1) To be inserted in the case of Series B Equipment Notes.
(2) To be inserted in the case of Series C Equipment Notes.
(3) To be inserted in the case of Series D Equipment Notes.
(4) To be inserted in the case of a Series B, Series C or Series D Equipment
Note.
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IN WITNESS WHEREOF, the Owner Trustee has caused this Equipment
Note to be executed in its corporate name by its officer thereunto duly
authorized on the date hereof.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:
-------------------------------
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Equipment Notes referred to in the within-
mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By:
-------------------------------
Name:
Title:
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SCHEDULE I
EQUIPMENT NOTES AMORTIZATION
Percentage of
Principal Amount Principal Amount
Repayment Date to be Paid
[SEE SCHEDULE I TO TRUST INDENTURE
WHICH IS INSERTED UPON ISSUANCE]
* * *
SECTION 2.02. Issuance and Terms of Equipment Notes. The
Equipment Notes shall be dated the date of issuance thereof, shall be issued in
four separate series consisting of Series A, Series B, Series C and Series D
and in the maturities and principal amounts and shall bear interest as
specified in Schedule I hereto. On the date of the consummation of the
Refinancing Transaction, (i) each Equipment Note shall be issued to the Pass
Through Trustees (or their designee) under the Pass Through Trust Agreements
set forth in Schedule II to be attached hereto in connection therewith and (ii)
the Original Loan Certificates issued under the Original Indenture shall be
concurrently prepaid. The Equipment Notes shall be issued in registered form
only. The Equipment Notes shall be issued in denominations of $1,000 and
integral multiples thereof, except that one Equipment Note of each Series may
be in an amount that is not an integral multiple of $1,000.
Each Equipment Note shall bear interest at the Debt Rate
(calculated on the basis of a year of 360 days comprised of twelve 30-day
months) on the unpaid Principal Amount thereof from time to time outstanding,
payable in arrears on July 2, 1997, and on each July 2 and January 2 thereafter
until maturity.
The Principal Amount of each Equipment Note shall be payable on
the dates and in the installments equal to the corresponding percentage of the
Principal Amount as set forth in Schedule I hereto which shall be attached as
Schedule I to the Equipment Notes. Notwithstanding the foregoing, the final
payment made under each Equipment Note shall be in an amount sufficient to
discharge in full the unpaid portion of the Principal Amount and all accrued
and unpaid interest on, and any other amounts due under, such Equipment Note.
Each Equipment Note shall bear interest at the Past Due Rate (calculated on the
basis of a year of 360 days comprised of twelve 30-day months) on any part of
the Principal Amount, Make-Whole Amount, if any, and, to the extent permitted
by applicable law, interest and any other amounts payable thereunder not paid
when due for any period during which the same shall be overdue, in each case
for the
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period the same is overdue. Amounts shall be overdue if not paid when due
(whether at stated maturity, by acceleration or otherwise). Notwithstanding
anything to the contrary contained herein, if any date on which a payment under
any Equipment Note becomes due and payable is not a Business Day then such
payment shall not be made on such scheduled date but shall be made on the next
succeeding Business Day and if such payment is made on such next succeeding
Business Day, no interest shall accrue on the amount of such payment during
such extension.
The Owner Trustee agrees to pay to the Indenture Trustee for
distribution in accordance with Section 3.04 hereof (a) any and all indemnity
amounts received by the Owner Trustee which are payable by Lessee to (i) the
Indenture Trustee in its individual capacity, (ii) the Pass Through Trusts,
(iii) the Subordination Agent, (iv) the Liquidity Providers, or (v) the Pass
Through Trustees, in each case pursuant to Sections 10 and 13 of the Lease or
Section 21 of the Refunding Agreement, (b) any and all amounts received by the
Owner Trustee which are payable by Lessee in respect of and equal to the Owner
Trustee's pro rata share (as defined below) of all amounts owed to the
Liquidity Providers by the Subordination Agent under each Liquidity Facility
(as determined by the Subordination Agent in consultation with the Liquidity
Providers and notified to the Indenture Trustee) other than amounts due as (i)
repayments of the principal of advances thereunder, and (ii) interest on
Interest Drawings, Final Drawings and Applied Downgrade Drawings under any
Liquidity Facility except to the extent included in Net Interest and Related
Charges (as defined below), and (c) any and all amounts received by the Owner
Trustee which are payable by Lessee under clause (vii) or (viii) of the
definition of Supplemental Rent. The Indenture Trustee shall have no duty or
obligation to (i) verify or confirm the accuracy of any of the amounts (other
than the portion of the Principal Amount of, and interest on, the Equipment
Notes issued hereunder) paid to it by the Owner Trustee or (ii) determine
whether any amounts are owed by the Owner Trustee under this Section 2.02. As
used in this Section 2.02, "Owner Trustee's pro rata share" means as of any
time:
(A) with respect to all amounts other than Net Interest and
Related Charges, a fraction the numerator of which is the aggregate
principal balance then outstanding of the Equipment Notes issued
hereunder and the denominator of which is the aggregate principal
balance then outstanding of all "Equipment Notes" issued under the
Indentures, and
(B) with respect to all Net Interest and Related Charges (x) if
there exists a Payment Default (as defined below) under any Equipment
Note a fraction, the numerator of which is the aggregate principal
balance then outstanding of the Equipment Notes issued hereunder and the
denominator of which is the aggregate principal balance then outstanding
of all "Equipment Notes" issued under the Indentures under
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which there exists a Payment Default or (y) at all other times, zero;
provided, however, neither the numerator nor the denominator of the fractions
in paragraphs (A) or (B) shall include any "Series D Equipment Notes" issued
under the Indentures. As used in this Section 2.02, "Net Interest and Related
Charges" means (as determined by the Subordination Agent in consultation with
the Liquidity Providers and notified to the Indenture Trustee except that the
Past Due Rate shall be determined by the Indenture Trustee and notified to the
Subordination Agent) the sum of (i) the amount, if any, by which interest
payable to any Liquidity Provider on any Interest Drawing, Final Drawing and/or
Downgrade Drawing (other than a Downgrade Drawing that is not an Applied
Downgrade Drawing (as defined in the Liquidity Facilities)) exceeds the amount
which would be payable if such advances bore interest at the Designated
Interest Rate (as defined below) plus (ii) any amounts payable under Section
3.1, Section 3.2, Section 3.3, Section 3.9 or Section 7.7 of each Liquidity
Facility (or similar provisions of any succeeding liquidity facility) which
result from any Interest Drawing, Final Drawing or Downgrade Drawing. As used
in this Section 2.02, "Designated Interest Rate" means the weighted average
Past Due Rate (as defined in the applicable Indentures) in respect of "Series A
Equipment Notes," "Series B Equipment Notes" and "Series C Equipment Notes"
issued under the Indentures, except with respect to that portion of any Final
Drawing (or Downgrade Drawing which becomes a Final Drawing) which remains in a
Cash Collateral Account, Designated Interest Rate means the weighted average
Investment Earnings of funds in the Cash Collateral Accounts. As used in this
Section 2.02, a "Payment Default" when used in connection with an "Equipment
Note" issued under an Indenture means a default in the payment of principal
thereof or interest thereon, other than a default in the payment of principal
or interest on a "Series D Equipment Note" issued under the Indentures which
has not been cured other than solely because of acceleration. For purposes of
Section 3.04(b) hereof, this is the fourth paragraph of Section 2.02.
The Equipment Notes shall be executed on behalf of the Owner
Trustee by its President or one of its Vice Presidents, Assistant Vice
Presidents or Assistant Secretaries or other authorized officer. Equipment
Notes bearing the signatures of individuals who were at any time the proper
officers of the Owner Trustee shall bind the Owner Trustee, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Equipment Notes or did not hold such
offices at the respective dates of such Equipment Notes. The Owner Trustee may
from time to time execute and deliver Equipment Notes with respect to the
Aircraft to the Indenture Trustee for authentication upon original issue and
such Equipment Notes shall thereupon be authenticated and delivered by the
Indenture Trustee upon the written request of the Owner Trustee signed by a
Vice President or Assistant Vice President or other authorized officer of the
Owner Trustee; provided, however,
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that each such request shall specify the aggregate Principal Amount of all
Equipment Notes to be authenticated hereunder on original issue with respect to
the Aircraft. No Equipment Note shall be secured by or be entitled to any
benefit under this Indenture or be valid or obligatory for any purposes, unless
there appears on such Equipment Note a certificate of authentication in the
form provided for herein executed by the Indenture Trustee by the manual
signature of one of its authorized officers and such certificate upon any
Equipment Notes shall be conclusive evidence, and the only evidence, that such
Equipment Note has been duly authenticated and delivered hereunder.
SECTION 2.03. Payments from Trust Indenture Estate Only. (a)
Without impairing any of the other rights, powers, remedies, privileges or
Liens of the Note Holders under this Indenture, each Note Holder, by its
acceptance of an Equipment Note, agrees that, except as expressly provided in
this Indenture, the Refunding Agreement or any other Operative Document, (i)
the obligation to make all payments of all or any portion of the Principal
Amount of, interest on, Make-Whole Amount, if any, and all other amounts due
with respect to the Equipment Notes, and the performance by the Owner Trustee
of every obligation or covenant contained in this Indenture and in the
Refunding Agreement or any of the other Operative Documents, shall be payable
only from the income and proceeds from the Trust Estate to the extent included
in the Trust Indenture Estate and only to the extent that the Owner Trustee
shall have sufficient income or proceeds from the Trust Estate to the extent
included in the Trust Indenture Estate to enable the Indenture Trustee to make
such payments in accordance with the terms of Article III hereof, and all of
the statements, representations, covenants and agreements made by the Owner
Trustee (when made in such capacity) contained in this Indenture and any other
Operative Document other than the Trust Agreement, unless expressly otherwise
stated, are made and intended only for the purpose of binding the Trust Estate
and establishing the existence of rights and remedies which can be exercised
and enforced against the Trust Estate; therefore, anything contained in this
Indenture or such other agreements to the contrary notwithstanding (except for
any express provisions or representations that the Trust Company is responsible
for, or is making, for which there would be personal liability of the Trust
Company), no recourse shall be had with respect to this Indenture or such other
agreements against the Trust Company or against any institution or Person which
becomes a successor trustee or co-trustee or any officer, director, trustee,
servant or direct or indirect parent or controlling Person or Persons of any of
them, and (ii) none of the Trust Company, the Owner Participant, any partner of
the Owner Participant, the Indenture Trustee and any officer, director,
trustee, servant, employee, agent or direct or indirect parent or controlling
Person or Persons of any of them shall have any personal liability for any
amounts payable, or other obligation owed, hereunder, under the Refunding
Agreement or any of the other Operative Documents or under the Equipment Notes
except as
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expressly provided herein (in the case of the Owner Trustee and the Indenture
Trustee) or therein; provided, however, nothing contained in this Section
2.03(a) shall be construed to limit the exercise and enforcement in accordance
with the terms of this Indenture or such other agreements of rights and
remedies against the Trust Indenture Estate.
(b) If (i) all or any part of the Trust Estate becomes the
property of, or the Owner Trustee or Owner Participant becomes, a debtor
subject to the reorganization provisions of the Bankruptcy Code, (ii) pursuant
to such reorganization provisions, including Section 1111(b) of the Bankruptcy
Code, the Trust Company, the Owner Trustee or the Owner Participant is
required, by reason of the Trust Company, the Owner Trustee or the Owner
Participant being held to have recourse liability to any Note Holder or the
Indenture Trustee, directly or indirectly (other than the recourse liability of
the Trust Company, the Owner Trustee or the Owner Participant under the
Operative Documents), to make payment on account of any amount payable as
Principal Amount, Make-Whole Amount, if any, interest or other amounts on the
Equipment Notes or under this Indenture and (iii) any Note Holder or the
Indenture Trustee actually receives any Excess Amount (as hereinafter defined)
which reflects any payment by the Trust Company, the Owner Trustee or the Owner
Participant on account of clause (ii) above (other than aforesaid), then such
Note Holder or the Indenture Trustee, as the case may be, shall promptly refund
to the Trust Company, the Owner Trustee or the Owner Participant (whichever
shall have made such payment) such Excess Amount.
For purposes of this Section 2.03(b), "Excess Amount" means the
amount by which such payment exceeds the amount that would have been received
by a Note Holder or the Indenture Trustee if the Trust Company, the Owner
Trustee or the Owner Participant had not become subject to the recourse
liability referred to in clause (ii) above. Nothing contained in this Section
2.03(b) shall prevent a Note Holder or the Indenture Trustee from enforcing any
personal recourse obligation (and retaining the proceeds thereof) of the Trust
Company, the Owner Trustee or the Owner Participant under the Refunding
Agreement, this Indenture (and any exhibits or annexes hereto or thereto) or
any other Operative Document.
SECTION 2.04. Method of Payment. (a) The Principal Amount of,
interest on, Make-Whole Amount, if any, and other amounts due under each
Equipment Note or hereunder will be payable in Dollars by wire transfer of
immediately available funds not later than 12:00 noon, New York City time, on
the due date of payment to the Indenture Trustee at the Corporate Trust Office
for distribution among the Note Holders in the manner provided herein. After
transferring (or causing the transfer of) the above amounts to the Indenture
Trustee, the Owner Trustee shall not have any responsibility for the
distribution of such payment to any Note Holder. Notwithstanding the foregoing
or any provision in any Equipment Note to the contrary, the Indenture
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Trustee will use reasonable efforts to pay or cause to be paid, if so directed
in writing by any Note Holder (with a copy to the Owner Trustee), all amounts
paid by the Owner Trustee hereunder and under such Holder's Equipment Note or
Equipment Notes to such Holder or a nominee therefor (including all amounts
distributed pursuant to Article III of this Indenture) by transferring, or
causing to be transferred, by wire transfer of immediately available funds in
Dollars, prior to 2:00 p.m., New York City time, on the due date of payment, to
an account maintained by such Holder with a bank located in the continental
United States the amount to be distributed to such Holder, for credit to the
account of such Holder maintained at such bank. If the Indenture Trustee shall
fail to make any such payment as provided in the immediately preceding sentence
after its receipt of funds at the place and prior to the time specified above,
the Indenture Trustee, in its individual capacity and not as trustee and
without indemnification or right of reimbursement under any Operative Document,
agrees to compensate such Holders for loss of use of funds in accordance with
industry standards for this type of transaction until such payment is made and
the Indenture Trustee shall be entitled to any interest earned on such funds
until such payment is made. Any payment made hereunder shall be made free and
clear of and without reduction for or on account of all wire and like charges
and without any presentment or surrender of any Equipment Note, except that, in
the case of the final payment in respect of any Equipment Note, such Equipment
Note shall be surrendered to the Indenture Trustee for cancellation promptly
after such payment. Notwithstanding any other provision of this Indenture to
the contrary, the Indenture Trustee shall not be required to make, or cause to
be made, wire transfers as aforesaid prior to the first Business Day on which
it is practicable for the Indenture Trustee to do so if such funds were
received after 12:00 noon, New York City time, at the place of payment. Prior
to the due presentment for registration of transfer of any Equipment Note, the
Owner Trustee and the Indenture Trustee shall deem and treat the Person in
whose name any Equipment Note is registered on the Register as the absolute
owner and Holder of such Equipment Note for the purpose of receiving payment of
all amounts payable with respect to such Equipment Note and for all other
purposes, and neither the Owner Trustee nor the Indenture Trustee shall be
affected by any notice to the contrary, unless and until such change is
reflected in the Register. So long as any signatory to the Refunding Agreement
or nominee thereof shall be a registered Note Holder, all payments to it shall
be made to the account of such Note Holder specified in Schedule III thereto
and otherwise in the manner provided in or pursuant to the Refunding Agreement
unless it shall have specified some other account or manner of payment by
notice to the Indenture Trustee consistent with this Section 2.04.
(b) The Indenture Trustee, as agent for the Owner Trustee, shall
exclude and withhold at the appropriate rate from each payment of Principal
Amount of, interest on, Make-Whole Amount, if any, and other amounts due
hereunder or under each Equipment Note (and such exclusion and withholding
shall
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constitute payment in respect of such Equipment Note) any and all United States
withholding taxes applicable thereto as required by law. The Indenture Trustee
agrees to act as such withholding agent and, in connection therewith, whenever
any present or future United States taxes or similar charges are required to be
withheld with respect to any amounts payable hereunder or in respect of the
Equipment Notes, to withhold such amounts (and such withholding shall
constitute payment in respect of such Equipment Note) and timely pay the same
to the appropriate authority in the name of and on behalf of the Note Holders,
that it will file any necessary United States withholding tax returns or
statements when due, and that as promptly as possible after the payment thereof
it will deliver to each Note Holder (with a copy to the Owner Trustee and the
Lessee) appropriate receipts showing the payment thereof, together with such
additional documentary evidence as any such Note Holder, the Owner Participant
and the Owner Trustee may reasonably request from time to time.
If a Note Holder which is a Non-U.S. Person has furnished to the
Indenture Trustee a properly completed and currently effective U.S. Internal
Revenue Service Form 1001 or W-8 (or such successor form or forms as may be
required by the United States Treasury Department) during the calendar year in
which the payment hereunder or under the Equipment Note(s) held by such Holder
is made (but prior to the making of such payment) or in either of the two
preceding calendar years, and has not notified the Indenture Trustee of the
withdrawal or inaccuracy of such form prior to the date of such payment (and
the Indenture Trustee has no reason to know that any information set forth in
such form is inaccurate), the Indenture Trustee shall withhold only the amount,
if any, required by law (after taking into account any applicable exemptions
claimed by the Note Holder) to be withheld from payments hereunder or under the
Equipment Notes held by such Holder in respect of United States federal income
tax (and such withholding shall constitute payment in respect of such Equipment
Note). If a Note Holder (x) which is a Non-U.S. Person has furnished to the
Indenture Trustee a properly completed and currently effective U.S. Internal
Revenue Service Form 4224 in duplicate (or such successor certificate, form or
forms as may be required by the United States Treasury Department as necessary
in order to avoid withholding of United States federal income tax), during the
calendar year in which the payment is made (but prior to the making of such
payment) or in either of the two preceding calendar years, and has not notified
the Indenture Trustee of the withdrawal or inaccuracy of such certificate or
form prior to the date of such payment (and the Indenture Trustee has no reason
to know that any information set forth in such form is inaccurate) or (y) which
is a U.S. Person has furnished to the Indenture Trustee a properly completed
and currently effective U.S. Internal Revenue Service Form W-9, if applicable,
prior to a payment hereunder or under the Equipment Notes held by such Holder,
no amount shall be withheld from payments in respect of United States federal
income tax. If any Note Holder has notified the Indenture Trustee that any of
the
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foregoing forms or certificates is withdrawn or inaccurate, or if such Holder
has not filed a form claiming an exemption from United States withholding tax
or if the Code or the regulations thereunder or the administrative
interpretation thereof are at any time after the date hereof amended to require
such withholding of United States federal income taxes from payments under the
Equipment Notes held by such Holder, the Indenture Trustee agrees to withhold
from each payment due to the relevant Note Holder withholding taxes at the
appropriate rate under law (and such withholding shall constitute payment in
respect of such Equipment Notes) and will, on a timely basis as more fully
provided above, deposit such amounts with an authorized depository and make
such returns, statements, receipts and other documentary evidence in connection
therewith as required by applicable law.
None of the Owner Trustee, the Owner Participant or the Lessee
shall have any liability for the failure of the Indenture Trustee to withhold
taxes in the manner provided for herein or for any false, inaccurate or untrue
evidence provided by a Holder hereunder.
SECTION 2.05. Application of Payments. In the case of each
Equipment Note, each payment of Principal Amount, Make-Whole Amount, if any,
and interest or other amounts due thereon shall, except as otherwise expressly
provided herein, be applied:
First: to the payment of accrued interest on such Equipment Note
(as well as any interest on any overdue Principal Amount, any overdue
Make-Whole Amount, if any, and, to the extent permitted by law, any
overdue interest and any other overdue amounts thereunder) to the date
of such payment;
Second: to the payment of the Principal Amount of such Equipment
Note (or a portion thereof) then due thereunder;
Third: to the payment of Make-Whole Amount, if any, and any
other amount due hereunder or under such Equipment Note; and
Fourth: the balance, if any, remaining thereafter, to the
payment of the Principal Amount of such Equipment Note remaining unpaid
(provided that such Equipment Note shall not be subject to redemption
except as provided in Sections 2.10 and 2.11 hereof).
The amounts paid pursuant to clause "Fourth" above shall be applied to the
installments of Principal Amount of such Equipment Note in the inverse order of
their normal maturity.
SECTION 2.06. Termination of Interest in Trust Indenture Estate.
A Note Holder shall not, as such, have any further interest in, or other right
with respect to, the Trust Indenture Estate when the Principal Amount of,
▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇
▇▇
if any, and interest on and other amounts due under all Equipment Notes held by
such Note Holder and all other sums then payable to such Note Holder hereunder
and under the Lease and the Refunding Agreement by the Lessee, the Owner
Participant and the Owner Trustee (collectively, the "Secured Obligations")
shall have been paid in full.
SECTION 2.07. Registration, Transfer and Exchange of Equipment
Notes. The Indenture Trustee shall keep a register (the "Register") in which
the Indenture Trustee shall provide for the registration of Equipment Notes and
the registration of transfers of Equipment Notes. No such transfer shall be
given effect unless and until registration hereunder shall have occurred. The
Register shall be kept at the Corporate Trust Office of the Indenture Trustee.
The Indenture Trustee is hereby appointed "Registrar" for the purpose of
registering Equipment Notes and transfers of Equipment Notes as herein
provided. A Holder of any Equipment Note intending to exchange such Equipment
Note shall surrender such Equipment Note to the Indenture Trustee at the
Corporate Trust Office, together with a written request from the registered
Holder thereof for the issuance of a new Equipment Note, specifying, in the
case of a surrender for transfer, the name and address of the new Holder or
Holders. Upon surrender for registration of transfer of any Equipment Note,
the Owner Trustee shall execute, and the Indenture Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Equipment Notes of a like aggregate unpaid portion of the Principal
Amount and of the same series. At the option of the Note Holder, Equipment
Notes may be exchanged for other Equipment Notes of any authorized
denominations of a like aggregate unpaid portion of the Principal Amount, upon
surrender of the Equipment Notes to be exchanged to the Indenture Trustee at
the Corporate Trust Office. Whenever any Equipment Notes are so surrendered
for exchange, the Owner Trustee shall execute, and the Indenture Trustee shall
authenticate and deliver, the Equipment Notes which the Note Holder making the
exchange is entitled to receive. All Equipment Notes issued upon any
registration of transfer or exchange of Equipment Notes (whether under this
Section 2.07 or under Section 2.08 hereof or otherwise under this Indenture)
shall be the valid obligations of the Owner Trustee evidencing the same
respective obligations, and entitled to the same security and benefits under
this Indenture, as the Equipment Notes surrendered upon such registration of
transfer or exchange. Every Equipment Note presented or surrendered for
registration of transfer or exchange shall (if so required by the Indenture
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by the
Note Holder or such Holder's attorney duly authorized in writing, and the
Indenture Trustee shall require evidence satisfactory to it as to the
compliance of any such transfer with the Securities Act and the securities laws
of any applicable state. The Indenture Trustee shall make a notation on each
new Equipment Note of the amount of all payments of Principal Amount previously
made on the old Equipment Note or Equipment Notes with respect to which such
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new Equipment Note is issued and the date to which interest on such old
Equipment Note or Equipment Notes has been paid. Interest shall be deemed to
have been paid on such new Equipment Note to the date on which interest shall
have been paid on such old Equipment Note, and all payments of the Principal
Amount marked on such new Equipment Note, as provided above, shall be deemed to
have been made thereon. Neither the Indenture Trustee nor the Owner Trustee
shall be required to exchange any surrendered Equipment Notes as provided above
during the ten-day period preceding the Payment Date. The Indenture Trustee
will promptly notify the Owner Trustee, the Owner Participant and Lessee of
each registration of a transfer of an Equipment Note. Any such transferee of
an Equipment Note, by its acceptance of an Equipment Note, agrees to the
provisions of the Refunding Agreement applicable to Note Holders, and shall be
deemed to have represented and warranted to the parties to the Refunding
Agreement as to the matters represented and warranted by the Subordination
Agent in its capacity as the initial Holder of the Equipment Notes. Subject to
compliance by the Note Holder and its transferee (if any) of the requirements
set forth in this Section 2.07, the Indenture Trustee and the Owner Trustee
shall use all reasonable efforts to issue new Equipment Notes upon transfer or
exchange within 10 Business Days of the date an Equipment Note is surrendered
for transfer or exchange.
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Equipment
Notes. If any Equipment Note shall become mutilated, destroyed, lost or
stolen, the Owner Trustee shall, upon the written request of the Holder of such
Equipment Note, execute and the Indenture Trustee shall authenticate and
deliver in replacement thereof a new Equipment Note, payable in the same
Principal Amount dated the same date and captioned as originally issued. If
the Equipment Note being replaced has become mutilated, such Equipment Note
shall be surrendered to the Indenture Trustee and a copy thereof shall be
furnished to the Owner Trustee. If the Equipment Note being replaced has been
destroyed, lost or stolen, the Holder of such Equipment Note shall furnish to
the Lessee, the Owner Trustee, the Owner Participant and the Indenture Trustee
such security or indemnity as may be reasonably required by them to save the
Lessee, the Owner Trustee, the Owner Participant and the Indenture Trustee
harmless and evidence satisfactory to the Lessee, the Owner Trustee, the Owner
Participant and the Indenture Trustee of the destruction, loss or theft of such
Equipment Note and of the ownership thereof. If a bank or trust company with a
net worth of $200,000,000 or more is the Holder of any such destroyed, lost or
stolen Equipment Note, then the written indemnity of such Person, signed by an
authorized officer thereof, in favor of, delivered to and in form reasonably
satisfactory to the Lessee, the Owner Participant, the Owner Trustee and the
Indenture Trustee shall be accepted as satisfactory indemnity and security and
no further indemnity or security shall be required as a condition to the
execution and delivery of such new Equipment Note. Subject to compliance by
the Note Holder of the requirements set forth in this Section 2.08, the
Indenture
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Trustee and the Owner Trustee shall use all reasonable efforts to issue new
Equipment Notes within 10 Business Days of the date of the written request
therefor from the Note Holder.
SECTION 2.09. Payment of Expenses on Transfer; Cancellation.
(a) No service charge shall be made to a Note Holder for any registration of
transfer or exchange of Equipment Notes, but the Indenture Trustee, as
Registrar, may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Equipment Notes; provided, however, that none of the
Lessee, the Owner Trustee, the Indenture Trustee or the Owner Participant shall
bear costs of registration, transfer or exchange in connection with the
consummation of the Refinancing Transaction.
(b) The Indenture Trustee shall cancel all Equipment Notes
surrendered for replacement, redemption, transfer, exchange, payment or
cancellation and shall destroy the canceled Equipment Notes.
SECTION 2.10. Mandatory Redemptions of Equipment Notes. The
Equipment Notes are subject to redemption as provided in this Section 2.10 and
Section 2.11 and purchase as provided in Section 2.12. On the date on which
Lessee is required pursuant to Section 11(a) of the Lease to make payment for
an Event of Loss with respect to the Aircraft, all of the Equipment Notes shall
be redeemed in whole at a redemption price equal to 100% of the unpaid
Principal Amount thereof, together with all accrued interest thereon to, but
not including, the date of redemption and all other amounts payable hereunder
or under the Refunding Agreement to the Note Holders but without Make-Whole
Amount, all in the order of priority specified in Section 3.02 hereof.
SECTION 2.11. Redemptions; Notice of Redemption. (a) Neither
any redemption of any Equipment Note nor any purchase by the Owner Trustee of
any Equipment Note may be made except to the extent and in the manner expressly
permitted by this Indenture. No purchase of any Equipment Note may be made by
the Indenture Trustee.
(b) Notice of redemption or purchase with respect to the
Equipment Notes shall be given by the Indenture Trustee by first-class mail,
postage prepaid, mailed not less than 15 nor more than 60 days prior to the
applicable redemption date, to each Note Holder of such Equipment Notes to be
redeemed or purchased, at such Note Holder's address appearing in the Register.
All notices of redemption or purchase shall state: (1) the redemption date,
(2) the applicable basis for determining the redemption price, (3) that on the
redemption date, the redemption price will become due and payable upon each
such Equipment Note, and that interest on such Equipment Notes shall cease to
accrue on and after such redemption date, and (4) the place or places where
such Equipment Notes are to be surrendered for payment of the redemption price.
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(c) On or before the redemption date, the Owner Trustee (or any
Person on behalf of the Owner Trustee) shall, to the extent an amount equal to
the redemption price for the Equipment Notes to be redeemed or purchased on the
redemption date shall not then be held in the Trust Indenture Estate, deposit
or cause to be deposited with the Indenture Trustee by 12:00 noon, New York
City time, on the redemption date in immediately available funds the redemption
price of the Equipment Notes to be redeemed or purchased.
(d) Notice of redemption or purchase having been given as
aforesaid, the Equipment Notes to be redeemed or purchased shall, on the
redemption date, become due and payable at the Corporate Trust Office of the
Indenture Trustee, and from and after such redemption date (unless there shall
be a default in the payment of the redemption price) any such Equipment Notes
then outstanding shall cease to bear interest. Upon surrender of any such
Equipment Note for redemption or purchase in accordance with said notice, such
Equipment Note shall be redeemed at the redemption price. If any Equipment
Note called for redemption or purchase shall not be so paid upon surrender
thereof for redemption, the principal amount thereof shall, until paid,
continue to bear interest from the applicable redemption date at the interest
rate in effect for such Equipment Note as of such redemption date.
SECTION 2.12. Option to Purchase Equipment Notes. Either the
Owner Trustee or the Owner Participant may, upon the events and subject to the
terms and conditions and for the price set forth in this Section 2.12, purchase
all but not less than all of the Equipment Notes outstanding hereunder, and
each Note Holder agrees that it will, upon such events and subject to such
terms and conditions and upon receipt of such price, sell, assign, transfer and
convey to such purchaser or its nominee (without recourse or warranty of any
kind except as to its title to the Equipment Notes and except against Liens on
such Equipment Notes arising by, through or under such Holder), all of the
right, title and interest of such Note Holder in and to the Trust Indenture
Estate, this Indenture and the Equipment Notes held by it, and such purchaser
or its nominee shall assume all of such Holder's obligations under the
Refunding Agreement and hereunder.
Such option to purchase the Equipment Notes may be exercised by
the Owner Trustee or the Owner Participant upon any of the following events,
and, in any such event, the purchase price thereof shall equal for each
Equipment Note the aggregate unpaid Principal Amount thereof, plus accrued and
unpaid interest thereon to, but not including, the date of purchase and all
other amounts (other than the Make-Whole Amount, except as provided in the next
sentence) then payable hereunder or under the Refunding Agreement to the Holder
thereof. Such option to purchase the Equipment Notes may be exercised: (i)
upon an Indenture Trustee Event or (ii) in the event there shall have occurred
and be continuing a Lease Event of Default, provided that if such option is
exercised pursuant to this clause (ii) at a time when there
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shall have occurred and be continuing for less than 120 days a Lease Event of
Default (and there is no Indenture Trustee Event), the purchase price thereof
shall equal the price provided in the preceding sentence plus the Make-Whole
Amount, if any; provided further, that under no circumstances shall the Make-
Whole Amount be payable by the Lessee.
Such option to purchase the Equipment Notes may be exercised by
the Owner Trustee or the Owner Participant giving written notice of its
election of such option to the Indenture Trustee, which notice shall specify a
date for such purchase not more than 30 days or less than 15 days after the
date of such notice. The Indenture Trustee shall not exercise any of the
remedies hereunder or, without the consent of the Owner Trustee or the Owner
Participant, under the Lease, during the period from the time that a notice of
exercise by the Owner Participant of such option to purchase becomes
irrevocable until the date on which such purchase is required to occur pursuant
to the terms of the preceding sentence. Such election to purchase the
Equipment Notes shall become irrevocable upon the fifteenth day preceding the
date specified in the written notice described in the first sentence of this
paragraph.
If the Owner Trustee or the Owner Participant on or before the
date of such purchase shall so request, the Note Holders will comply with all
the provisions of Section 2.07 to enable new Equipment Notes to be issued to
the Owner Trustee or the Owner Participant or its nominee in such denominations
as the Owner Trustee or the Owner Participant shall request. All taxes and
charges required pursuant to Section 2.09 in connection with the issuance of
such new Equipment Note shall be borne by the Owner Participant.
SECTION 2.13. Subordination. (a) The Owner Trustee and, by
acceptance of its Equipment Notes of any Series, each Note Holder of such
Series, hereby agree that no payment or distribution shall be made on or in
respect of the Secured Obligations owed to such Note Holder of such Series,
including any payment or distribution of cash, property or securities after the
commencement of a proceeding of the type referred to in Section 4.02(g), (h) or
(i) hereof, except as expressly provided in Articles II and III hereof.
(b) By the acceptance of its Equipment Notes of any Series
(other than Series A), each Note Holder of such Series agrees that in the event
that such Note Holder, in its capacity as a Note Holder, shall receive any
payment or distribution on any Secured Obligations in respect of such Series
which it is not entitled to receive under this Section 2.13 or Article III
hereof, it will hold any amount so received in trust for the Senior Holder or
Senior Holders (as defined in Section 2.13(c) hereof) and will forthwith turn
over such payment to the Indenture Trustee in the form received to be applied
as provided in Articles II and III hereof.
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(c) As used in this Section 2.13, the term "Senior Holder" or
"Senior Holders" shall mean, (i) the Note Holders of Series A until the Secured
Obligations in respect of Series A Equipment Notes have been paid in full, (ii)
after the Secured Obligations in respect of Series A Equipment Notes have been
paid in full, the Note Holders of Series B until the Secured Obligations in
respect of Series B Equipment Notes have been paid in full and (iii) after the
Secured Obligations in respect of Series B Equipment Notes have been paid in
full, the Note Holders of Series C until the Secured Obligations in respect of
Series C Equipment Notes have been paid in full.
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
SECTION 3.01. Certain Rent Distributions. Except as otherwise
provided in Section 3.02, 3.03 or 3.04 hereof, each installment of Basic Rent,
any payment of Supplemental Rent, any payment received by the Indenture Trustee
as contemplated by the first sentence of Section 4.03 hereof, and any payment
received by the Indenture Trustee pursuant to any Sublease Assignment as rent
under any Assigned Sublease shall be promptly distributed in the following
order of priority:
first, (i) so much of such installment or payment as shall be
required to pay in full the aggregate amount of the payment or payments
of Principal Amount, and interest and other amounts (as well as any
interest on overdue Principal Amount, and to the extent permitted by
applicable law, on any overdue interest and any other overdue amounts)
then due to the Note Holders under all Series A Equipment Notes shall be
distributed to the Note Holders of Series A ratably, without priority of
one over the other, in the proportion that the amount of such payment or
payments then due under each Series A Equipment Note bears to the
aggregate amount of the payments then due under all Series A Equipment
Notes;
(ii) after giving effect to clause (i) above, so much of such
installment or payment remaining as shall be required to pay in full the
aggregate amount of the payment or payments of Principal Amount and
interest and other amounts (as well as any interest on any overdue
Principal Amount and, to the extent permitted by applicable law, on any
overdue interest and any other overdue amounts) then due to the Note
Holders under all Series B Equipment Notes shall be distributed to the
Note Holders of Series B ratably, without priority of one over the
other, in the proportion that the amount of such payment or payments
then due under each Series B Equipment Note bears to the aggregate
amount of the payments then due under all Series B Equipment Notes;
(iii) after giving effect to clause (ii) above, so much of such
installment or payment remaining as shall be
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required to pay in full the aggregate amount of the payment or payments
of Principal Amount and interest and other amounts (as well as any
interest on any overdue Principal Amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue amounts)
then due to the Note Holders under all Series C Equipment Notes shall be
distributed to the Note Holders of Series C ratably, without priority of
one over the other, in the proportion that the amount of such payment or
payments then due under each Series C Equipment Note bears to the
aggregate amount of the payments then due under all Series C Equipment
Notes; and
(iv) after giving effect to clause (iii) above, so much of such
installment or payment remaining as shall be required to pay in full the
aggregate amount of the payment or payments of Principal Amount and
interest and other amounts (as well as any interest on any overdue
Principal Amount and, to the extent permitted by applicable law, on any
overdue interest and any other overdue amounts) then due to the Note
Holders under all Series D Equipment Notes shall be distributed to the
Note Holders of Series D ratably, without priority of one over the
other, in the proportion that the amount of such payment or payments
then due under each Series D Equipment Note bears to the aggregate
amount of the payments then due under all Series D Equipment Notes; and
second, the balance, if any, of such installment or payment
remaining thereafter shall be distributed to the Owner Trustee for
distribution pursuant to the Trust Agreement; provided, however, that if
an Indenture Default shall have occurred and be continuing, then such
balance shall not be distributed as provided in this clause "second" but
shall be held by the Indenture Trustee as part of the Trust Indenture
Estate and invested in accordance with Section 3.07 hereof until
whichever of the following shall first occur: (i) all Indenture
Defaults shall have been cured or waived, in which event such balance
shall be distributed as provided in this clause "second", or (ii)
Section 3.03 hereof shall be applicable, in which event such balance
shall be distributed in accordance with the provisions of said Section
3.03, or (iii) the 180th day after receipt of such payment, in which
event such balance shall be distributed as provided in this clause
"second" without reference to this proviso.
SECTION 3.02. Event of Loss and Replacement. (a) Any payment
received by the Indenture Trustee with respect to the Airframe or the Airframe
and one or both Engines as the result of an Event of Loss thereto shall be
applied to the redemption of the Equipment Notes and to all other amounts
payable hereunder by applying such funds in the following order of priority:
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first, to reimburse the Indenture Trustee for any reasonable out-
of-pocket costs or expenses incurred in connection with such Event of
Loss,
second, to pay in full the aggregate amount of the payment or
payments of unpaid Principal Amount, and unpaid interest and other
amounts (as well as any interest on overdue Principal Amount, and to the
extent permitted by applicable law, on any overdue interest and any
other overdue amounts) then due to the Note Holders under all Equipment
Notes, all in the order of priority specified in clause "first" of
Section 3.01 hereof, and
third, if and to the extent required to be paid to the Lessee (or
if directed by the Lessee, any Permitted Sublessee) in reimbursement of
payment of Stipulated Loss Value pursuant to Section 11(d) of the Lease,
to the Lessee (or if directed by the Lessee, any Permitted Sublessee),
and otherwise as provided in clause "fourth" of Section 3.03 hereof;
provided that, if a Replacement Airframe or a Replacement Airframe and one or
more Replacement Engines are to be substituted for the Airframe or the Airframe
and one or both Engines subject to such Event of Loss as provided in Section 11
of the Lease and Section 5.06 hereof, any proceeds which result from such Event
of Loss and are paid to the Indenture Trustee shall be held by the Indenture
Trustee as part of the Trust Indenture Estate as security for the obligations
of the Lessee under the Operative Documents and invested in accordance with the
terms of Section 3.07 hereof and, unless theretofore applied in accordance with
the provisions of the Lease and this Indenture, such proceeds shall, to the
extent payable to the Lessee under the Lease, be released to the Lessee (or if
directed by the Lessee, any Permitted Sublessee) upon or in connection with the
replacement thereof as provided in such Sections.
(b) Any amounts received directly or indirectly from any
governmental authority or insurer or other party pursuant to any provision of
Section 11 or 12 of the Lease (other than as the result of an Event of Loss
with respect to the Airframe or the Airframe and one or both Engines) shall be
applied as provided in the applicable provisions of the Lease; provided,
however, that to the extent that any portion of such amounts held for account
of the Lessee are not at the time required to be paid to the Lessee (or any
Permitted Sublessee) pursuant to the applicable provisions of Section 11 or 12
of the Lease, shall be held by the Indenture Trustee as security for the
obligations of the Lessee under the Operative Documents and shall be invested
in accordance with the terms of Section 3.07 hereof and at such time as the
conditions specified in the Lease for payment of such amounts to the Lessee
shall be fulfilled, such portion, and the net proceeds of any investment
thereof, shall, unless theretofore applied in accordance with the provisions of
the Lease and this Indenture, be paid to the Lessee to the extent provided in
the Lease.
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SECTION 3.03. Payment After Indenture Event of Default, etc.
Except as otherwise provided in Sections 2.13, 3.02, 3.04(a) and (c) and 6.07
hereof, and notwithstanding Section 2.05 hereof, all payments received and
amounts held or realized by the Indenture Trustee after an Indenture Event of
Default shall have occurred and be continuing or after the Indenture Trustee
has given notice to the Owner Trustee and the Owner Participant pursuant to
Section 4.04(a) hereof regarding its exercise of remedies under Section 18 of
the Lease or of the foreclosure of this Indenture, or after the Equipment Notes
shall have become due and payable as provided herein, and all payments or
amounts then held by the Indenture Trustee as part of the Trust Indenture
Estate, shall, so long as such Indenture Event of Default shall be continuing,
be promptly distributed by the Indenture Trustee in the following order of
priority, without duplication:
first, so much of such payments or amounts as shall be required
to reimburse the Indenture Trustee for all amounts due to it pursuant to
Section 6.07 hereof, plus any tax, expense, charge or other loss
(including, without limitation, all amounts to be expended at the
expense of, or charged upon the tolls, rents, revenues, issues, products
and profits of, the property included in the Trust Indenture Estate
pursuant to Section 4.05(b) hereof) incurred by the Indenture Trustee
(to the extent not previously reimbursed) (including, without
limitation, the expenses of any sale, taking or other proceeding,
reasonable attorneys' fees and expenses, court costs, and any other
expenditures incurred or expenditures or advances made by the Indenture
Trustee in the protection, exercise or enforcement of any right, power
or remedy or any damages sustained by the Indenture Trustee, liquidated
or otherwise, upon such Indenture Event of Default) shall be applied by
the Indenture Trustee in reimbursement of such expenses;
second, so much of such payments or amounts remaining as shall be
required to reimburse the then existing or prior Note Holders for
payments made pursuant to Section 5.03 hereof (to the extent not
previously reimbursed) shall be distributed to the then existing or
prior Note Holders, and if the aggregate amount remaining shall be
insufficient to pay all such amounts in full, it shall be distributed
ratably, without priority of one over any other, in accordance with the
amount of the payment or payments made by each such then existing or
prior Note Holder pursuant to said Section 5.03 and applicable (in the
case of each such then existing Note Holder) to the Equipment Notes held
by such existing Note Holder at the time of distribution by the
Indenture Trustee;
third, (i) so much of such payments or amounts remaining as
shall be required to pay in full the aggregate unpaid Principal Amount
of all Series A Equipment Notes, and the accrued but unpaid interest and
other amounts due
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thereon and all other Secured Obligations in respect of the Series A
Equipment Notes (other than Make-Whole Amount, if any) to the date of
distribution, shall be distributed to the Note Holders of Series A, and
in case the aggregate amount so to be distributed shall be insufficient
to pay in full as aforesaid, then ratably, without priority of one over
the other, in the proportion that the aggregate unpaid Principal Amount
of all Series A Equipment Notes held by each Holder plus the accrued but
unpaid interest and other amounts due hereunder or thereunder (other
than Make-Whole Amount, if any) to the date of distribution, bears to
the aggregate unpaid Principal Amount of all Series A Equipment Notes
held by all such Holders plus the accrued but unpaid interest and other
amounts due thereon to the date of distribution;
(ii) after giving effect to paragraph (i) above, so much of such
payments or amounts remaining as shall be required to pay in full the
aggregate unpaid Principal Amount of all Series B Equipment Notes, and
the accrued but unpaid interest and other amounts due thereon and all
other Secured Obligations in respect of the Series B Equipment Notes
(other than Make-Whole Amount, if any) to the date of distribution,
shall be distributed to the Note Holders of Series B, and in case the
aggregate amount so to be distributed shall be insufficient to pay in
full as aforesaid, then ratably, without priority of one over the other,
in the proportion that the aggregate unpaid Principal Amount of all
Series B Equipment Notes held by each Holder plus the accrued but unpaid
interest and other amounts due hereunder or thereunder (other than
Make-Whole Amount, if any) to the date of distribution, bears to the
aggregate unpaid Principal Amount of all Series B Equipment Notes held
by all such Holders plus the accrued but unpaid interest and other
amounts due thereon to the date of distribution;
(iii) after giving effect to paragraph (ii) above, so much of such
payments or amounts remaining as shall be required to pay in full the
aggregate unpaid Principal Amount of all Series C Equipment Notes, and
the accrued but unpaid interest and other amounts due thereon and all
other Secured Obligations in respect of the Series C Equipment Notes
(other than Make-Whole Amount, if any) to the date of distribution,
shall be distributed to the Note Holders of Series C, and in case the
aggregate amount so to be distributed shall be insufficient to pay in
full as aforesaid, then ratably, without priority of one over the other,
in the proportion that the aggregate unpaid Principal Amount of all
Series C Equipment Notes held by each Holder plus the accrued but unpaid
interest and other amounts due hereunder or thereunder (other than
Make-Whole Amount, if any) to the date of distribution, bears to the
aggregate unpaid Principal Amount of all Series C Equipment Notes held
by all such Holders plus the accrued but unpaid interest and other
amounts due thereon to the date of distribution; and
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(iv) after giving effect to paragraph (iii) above, so much of such
payments or amounts remaining as shall be required to pay in full the
aggregate unpaid Principal Amount of all Series D Equipment Notes, and
the accrued but unpaid interest and other amounts due thereon and all
other Secured Obligations in respect of the Series D Equipment Notes
(other than Make-Whole Amount, if any) to the date of distribution,
shall be distributed to the Note Holders of Series D, and in case the
aggregate amount so to be distributed shall be insufficient to pay in
full as aforesaid, then ratably, without priority of one over the other,
in the proportion that the aggregate unpaid Principal Amount of all
Series D Equipment Notes held by each Holder plus the accrued but unpaid
interest and other amounts due hereunder or thereunder (other than
Make-Whole Amount, if any) to the date of distribution, bears to the
aggregate unpaid Principal Amount of all Series D Equipment Notes held
by all such Holders plus the accrued but unpaid interest and other
amounts due thereon to the date of distribution; and
fourth, the balance, if any, of such payments or amounts remaining
thereafter shall be distributed to the Owner Trustee for distribution pursuant
to the Trust Agreement and the Lease.
No Make-Whole Amount shall be due and payable on the Equipment
Notes as a consequence of the acceleration of the Equipment Notes.
SECTION 3.04. Certain Payments. (a) Any payments received by
the Indenture Trustee for which provision as to the application thereof is made
in the Lease and not otherwise provided for herein shall be applied forthwith
to the purpose for which such payment was made in accordance with or as
otherwise provided by the terms of the Lease.
(b) The Indenture Trustee will distribute promptly upon receipt
any indemnity payment received by it from the Owner Trustee or the Lessee in
respect of (i) the Indenture Trustee in its individual capacity, (ii) any Pass
Through Trust, (iii) the Subordination Agent, (iv) the Liquidity Providers, and
(v) the Pass Through Trustees, in each case whether pursuant to Section 10 or
13 of the Lease or Section 21 of the Refunding Agreement or as Supplemental
Rent, directly to the Person entitled thereto. Any payment received by the
Indenture Trustee under clause (b) of the fourth paragraph of Section 2.02
shall be distributed to the Subordination Agent to be distributed in accordance
with the terms of the Intercreditor Agreement, and any payment received by the
Indenture Trustee under clause (c) of the fourth paragraph of Section 2.02
shall be distributed directly to the Persons entitled thereto.
(c) Notwithstanding anything to the contrary contained in this
Article III, any sums received by the Indenture Trustee that constitute
Excepted Payments shall be distributed promptly upon receipt by the Indenture
Trustee directly to the Person or
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Persons entitled thereto. Further, and notwithstanding anything herein to the
contrary, any sums received by the Indenture Trustee under the Lease or any
Sublease Assignment as security for the obligations of the Lessee or the
relevant Permitted Sublessee under the Operative Documents shall be applied
only to such obligations or as otherwise provided in the Lease.
SECTION 3.05. Other Payments. Subject to Sections 3.03 and 3.04
hereof, any payments received by the Indenture Trustee for which no provision
as to the application thereof is made elsewhere in this Indenture shall be
distributed by the Indenture Trustee, unless otherwise agreed in writing,
subject to Section 6.07 hereof (i) to the extent received or realized at any
time prior to the payment in full of all obligations to the Note Holders
secured by the Lien of this Indenture, in the order of priority specified in
Section 3.01 hereof, and (ii) to the extent received or realized at any time
after payment in full of all obligations to the Note Holders secured by the
Lien of this Indenture, in the following order of priority:
first, to the extent payments or amounts described in clause
"first" of Section 3.03 hereof are otherwise obligations of Lessee under
the Operative Documents or for which Lessee is obligated to indemnify
against thereunder, in the manner provided in clause "first" of Section
3.03 hereof, and
second, in the manner provided in clause "fourth" of Section 3.03
hereof.
SECTION 3.06. Payments to Owner Trustee. Any amounts
distributed hereunder by the Indenture Trustee to the Owner Trustee shall be
paid to the Owner Trustee by wire transfer of funds of the type received by the
Indenture Trustee at such office and to such account or accounts of such entity
or entities as shall be designated by notice from the Owner Trustee to the
Indenture Trustee from time to time. The Owner Trustee hereby notifies the
Indenture Trustee that unless and until the Indenture Trustee receives notice
to the contrary from the Owner Trustee, all amounts to be distributed to the
Owner Trustee pursuant to clause "second" of Section 3.01 hereof shall be
distributed by wire transfer of funds of the type received by the Indenture
Trustee to the Owner Participant's account as may be specified pursuant to the
Refunding Agreement.
SECTION 3.07. Investment of Amounts Held by Indenture Trustee.
Any amounts held by the Indenture Trustee as assignee of the Owner Trustee's
rights to hold moneys for security pursuant to Section 21(h) of the Lease shall
be held in accordance with the terms of such Section; and the Indenture Trustee
hereby agrees to perform the duties of the Owner Trustee under such Section.
Except as provided in the preceding sentence, any amounts held by the Indenture
Trustee pursuant to the proviso to clause "second" of Section 3.01 hereof,
pursuant to Section 3.02 hereof, pursuant to the second sentence of
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Section 3.04(c) hereof, pursuant to the fourth sentence of Section 4.03 hereof,
pursuant to a Sublease Assignment, or pursuant to any provision of any other
Operative Document providing for amounts to be held by the Indenture Trustee
which are not distributed pursuant to the other provisions of Article III
hereof shall be invested by the Indenture Trustee from time to time in
Specified Investments selected in writing in a timely manner by the Owner
Trustee or, in the event the Owner Trustee shall so specify, by the Lessee.
Unless otherwise expressly provided in this Indenture or the Lease, any income
realized as a result of any such investment and any payments by or on behalf of
the Lessee pursuant to the Lease in respect of any losses or expenses, net of
the Indenture Trustee's reasonable fees and expenses in making such investment,
shall be held and applied by the Indenture Trustee in the same manner as the
principal amount of such investment is to be applied and any losses, net of
earnings and such reasonable fees and expenses, shall be charged against the
principal amount invested. The Indenture Trustee shall not be liable for any
loss resulting from any investment required to be made by it under this
Indenture other than by reason of its willful misconduct or gross negligence,
and any such investment may be sold (without regard to its maturity) by the
Indenture Trustee without instructions whenever the Indenture Trustee
reasonably believes such sale is necessary to make a distribution required by
this Indenture.
ARTICLE IV
COVENANTS OF TRUST COMPANY AND OWNER
TRUSTEE; INDENTURE EVENTS OF DEFAULT;
REMEDIES OF INDENTURE TRUSTEE
SECTION 4.01. Covenants of Trust Company and Owner Trustee. (a)
The Trust Company hereby covenants and agrees that it will not directly or
indirectly create, incur, assume or suffer to exist any Lessor's Lien
attributable to it in its individual capacity with respect to any of the
properties or assets of the Trust Indenture Estate and shall, at its own cost
and expense promptly take such action as may be necessary duly to discharge any
such Lessor's Lien, and the Trust Company will cause restitution to be made to
the Trust Indenture Estate in the amount of any diminution of the value thereof
as the result of any Lessor's Liens attributable to it.
(b) The Owner Trustee hereby covenants and agrees as follows:
(i) the Owner Trustee will duly and punctually pay the
Principal Amount of, Make-Whole Amount, if any, and interest on and
other amounts due under the Equipment Notes and hereunder in accordance
with the terms of the Equipment Notes and this Indenture and all amounts
payable by it to the Note Holders under the Refunding Agreement and the
other Operative Documents;
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(ii) the Owner Trustee will not directly or indirectly create,
incur, assume or suffer to exist any Lessor's Liens attributable to it
with respect to any of the properties or assets of the Trust Indenture
Estate, and shall, at its own cost and expense, promptly take such
action as may be necessary duly to discharge any such Lessor's Lien, and
the Owner Trustee will cause restitution to be made to the Trust
Indenture Estate in the amount of any diminution of the value thereof as
the result of any Lessor's Liens attributable to it;
(iii) in the event an officer with responsibility for or
familiarity with the transactions contemplated hereunder or under the
other Operative Documents (or any Vice President) in the Corporate Trust
Administration Department of the Owner Trustee shall have actual
knowledge of an Indenture Default or an Event of Loss, the Owner Trustee
will give prompt written notice of such Indenture Default or Event of
Loss to the Indenture Trustee, the Lessee and the Owner Participant;
(iv) the Owner Trustee will furnish to the Indenture Trustee,
promptly upon receipt thereof, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and other
instruments furnished to the Owner Trustee under the Lease, including,
without limitation, a copy of each report or notice received pursuant to
Section 12(f) of the Lease, to the extent that the same shall not have
been furnished, or is not required to be furnished by the Lessee, to the
Indenture Trustee pursuant to the Lease or otherwise;
(v) except as contemplated by the Operative Documents or with
the consent of the Indenture Trustee acting in accordance with Article
IX hereof, the Owner Trustee will not incur any indebtedness for
borrowed money; and
(vi) the Owner Trustee will not enter into any business or
other activity other than the business of owning the Aircraft, the
leasing thereof to the Lessee and the carrying out of the transactions
contemplated hereby and by the Lease, the Refunding Agreement, the Trust
Agreement and the other Operative Documents.
SECTION 4.02. Indenture Events of Default. "Indenture Event of
Default" means any of the following events (whatever the reason for such
Indenture Event of Default and whether such event shall be voluntary or
involuntary or come about or be effected by operation of law or pursuant to or
in compliance with any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(a) any Lease Event of Default shall occur and be continuing
(other than a failure to pay when due any amount in respect of Excepted
Payments); or
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(b) the failure of the Owner Trustee to pay when due any
payment of Principal Amount of, or interest on, any Equipment Note
(other than as a result of a Lease Default) and such failure shall have
continued unremedied for ten calendar days; or the failure of the Owner
Trustee to pay when due any other amount due and payable under any
Equipment Note or hereunder (other than as a result of a Lease Default)
and such failure shall have continued unremedied for 15 calendar days
after notice thereof being given to the Owner Trustee from the Indenture
Trustee or any Note Holder; or
(c) any Lessor's Lien required to be discharged by the Trust
Company pursuant to Section 4.01(a) hereof or Section 13 of the
Refunding Agreement or by the Owner Trustee as the Owner Trustee
pursuant to Section 4.01(b)(ii) hereof or Section 13 of the Refunding
Agreement or any Lessor's Lien required to be discharged by the Owner
Participant pursuant to Section 13 of the Refunding Agreement shall
remain undischarged for a period of 30 calendar days after, as the case
may be, an officer with responsibility for or familiarity with the
transactions contemplated hereunder or under the other Operative
Documents (or any Vice President) in the Corporate Trust Administration
Department of the Trust Company or an officer of the managing partner of
the Owner Participant with responsibility for or familiarity with the
transactions contemplated hereunder and under the other Operative
Documents (or any Vice President of the managing partner of the Owner
Participant) shall have actual knowledge of such Lien; provided, that no
Indenture Event of Default shall arise under this Section 4.02(c) as a
result of a failure by the Owner Trustee or the Owner Participant to
observe or perform any covenant referred to in this Section 4.02(c) if
the Lessee shall have discharged all Lessor's Liens required to be
discharged by the Owner Trustee or the Owner Participant pursuant to
such covenants and compensated the Indenture Trustee and the Trust
Indenture Estate for all claims, losses and expenses arising from the
failure of the Owner Trustee or the Owner Participant, as the case may
be, to observe and perform any such covenant; or
(d) any representation or warranty made by the Owner
Participant, the Owner Trustee or the Trust Company herein or in the
Refunding Agreement (other than the representation made in Section
9(b)(8) thereof) or by any Person guaranteeing or supporting the
obligations of the Owner Participant under the Operative Documents in
any related guarantee or support agreement shall prove to have been
false or incorrect when made in any respect materially adverse to the
rights and interests of the Note Holders; and if such misrepresentation
is capable of being corrected as of a subsequent date and if such
correction is being sought diligently, such misrepresentation shall not
have been corrected as of a day within 30 calendar days following
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notice thereof being given to the Owner Participant, the Owner Trustee,
the Trust Company or such Person, as the case may be, by the Indenture
Trustee or a Majority in Interest of Note Holders; or
(e) any failure of the Owner Trustee to observe or perform any
of its covenants or agreements in the fourth paragraph following the
Habendum Clause hereof or in clauses (b)(v) and (b)(vi) of Section 4.01
hereof, or any failure by the Owner Participant or the Trust Company to
observe or perform any of its respective covenants in Section 9(b)(10),
10 or 14 of the Refunding Agreement, or the disaffirmance or repudiation
by any Person that has guaranteed or may guarantee or support the
obligations of the Owner Participant under the Operative Documents; or
(f) except as provided in the following paragraph (j), any
failure by the Owner Trustee or the Trust Company to observe or perform
any other covenant or obligation of the Owner Trustee contained in this
Indenture or in the Refunding Agreement or any failure by the Owner
Participant to observe or perform any other covenant or obligation of
the Owner Participant contained in the Refunding Agreement or any
failure of any Person that has guaranteed or may guarantee or support
the obligations of the Owner Participant under the Operative Documents
to observe or perform any covenant or obligation of such Person
contained in any such guarantee or support agreement, which failure, in
any case and either individually or together with other then existing
failures, shall have a material adverse effect on the rights and
interests of the Indenture Trustee or any Note Holder and is not
remedied within a period of 45 calendar days following notice being
given to the Owner Trustee, the Owner Participant or such Person, as the
case may be, by the Indenture Trustee or a Majority in Interest of Note
Holders; or
(g) either the Trust Estate or the Owner Trustee with respect
thereto (and not in its individual capacity) or the Owner Participant,
any of its partners, or any Person that has guaranteed or may guarantee
or support the obligations of the Owner Participant under the Operative
Documents shall (i) be unable to pay its debts generally as they become
due within the meaning of the Bankruptcy Code, (ii) file, or consent by
answer or otherwise to the filing against it of a petition for relief or
reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy or insolvency law of
any jurisdiction, (iii) make an assignment for the benefit of its
creditors, (iv) consent to the appointment of a custodian, receiver,
trustee or other officer with similar powers of itself or any
substantial part of its property, or (v) take corporate or comparable
action for the purpose of any of the foregoing; or
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(h) a court or governmental authority of competent
jurisdiction shall enter an order appointing, without consent by the
Trust Estate or the Owner Trustee with respect thereto (and not in its
individual capacity) or the Owner Participant, any of its partners, or
any Person that has guaranteed or may guarantee or support the
obligations of the Owner Participant under the Operative Documents, as
the case may be, a custodian, receiver, trustee or other officer with
similar powers with respect to it or with respect to any substantial
part of its property, or constituting an order for relief or approving a
petition for relief or reorganization or any other petition in
bankruptcy or for liquidation or to take advantage of any bankruptcy or
insolvency law of any jurisdiction, or ordering the dissolution,
winding-up or liquidation of the Trust Estate or the Owner Trustee with
respect thereto (and not in its individual capacity) or the Owner
Participant, any of its partners, or such Person, as the case may be; or
(i) any petition for any relief specified in the foregoing
paragraph (h) shall be filed against the Trust Estate or the Owner
Trustee with respect thereto (and not in its individual capacity) or the
Owner Participant, any of its partners, or any Person that has
guaranteed or may guarantee or support the obligations of the Owner
Participant under the Operative Documents, as the case may be, and such
petition shall not be dismissed within 60 days; or
(j) at any time when the Aircraft shall be registered in a
jurisdiction outside the United States, the Owner Trustee, the Trust
Company or the Owner Participant shall breach any covenant as may be
agreed upon pursuant to Section 11 of the Refunding Agreement as the
result of which the Lien of this Indenture shall cease to be a valid and
duly perfected Lien on the Trust Indenture Estate.
SECTION 4.03. Certain Rights. In the event of any default by
the Lessee in the payment of any installment of Basic Rent due under the Lease,
the Owner Participant may, within ten calendar days (or such longer period
ending on the second day after the expiry of the applicable grace period
specified in the Lease with respect to such default) after notice from the
Indenture Trustee or the Lessee of such default, without the consent or
concurrence of any Note Holder, pay, as provided in Section 2.04 hereof, for
application in accordance with Section 3.01 hereof, a sum equal to the amount
of all (but not less than all) of the Principal Amount and interest as shall
then (without regard to any acceleration pursuant to Section 4.04(b) or (c)
hereof) be due and payable on the Equipment Notes. In the event of any default
by the Lessee in any obligation under the Lease other than the payment of Basic
Rent, if such default can be remedied by the payment of money and the Owner
Trustee shall have been furnished by the Owner Participant with all funds
necessary for remedying such default, the Owner Participant may, within
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fifteen calendar days (or such longer period ending on the second day after the
expiry of any applicable grace period specified in the Lease with respect to
such default) after notice from the Indenture Trustee or the Lessee of such
default, without the consent or concurrence of any Note Holder, instruct the
Owner Trustee to exercise the Owner Trustee's rights under Section 21(d) of the
Lease to perform such obligation on behalf of the Lessee. Solely for the
purpose of determining whether there exists an Indenture Event of Default, (a)
any timely payment by the Owner Participant pursuant to, and in compliance
with, the first sentence of this Section 4.03 shall be deemed to remedy (but
solely for purposes of this Indenture) any default by the Lessee in the payment
of Basic Rent theretofore due and payable and to remedy (but solely for
purposes of this Indenture) any default by the Owner Trustee in the payment of
any amount due and payable under the Equipment Notes or hereunder, and (b) any
timely performance by the Owner Trustee of any obligation of the Lessee under
the Lease pursuant to, and in compliance with, the second sentence of this
Section 4.03 shall be deemed to remedy (but solely for purposes of this
Indenture) any default by the Lessee under the Lease to the same extent that
like performance by the Lessee itself would have remedied such default (but any
such payment or performance shall not relieve the Lessee of its duty to pay all
Rent and perform all of its obligations pursuant to the Lease). If, on the
basis specified in the preceding sentence, such Lease Event of Default shall
have been remedied, then any declaration pursuant to the Lease that the Lease
is in default, and any declaration pursuant to this Indenture that the
Equipment Notes are due and payable or that an Indenture Event of Default
exists hereunder, based upon such Lease Event of Default, shall be deemed to be
rescinded, and the Owner Participant or the Owner Trustee, as the case may be,
shall (to the extent of any such payments made by it) be subrogated to the
rights of the Note Holders hereunder to receive such payment of Rent from the
Indenture Trustee (and the payment of interest on account of such Rent being
overdue), and shall be entitled, so long as no other Indenture Default or
Indenture Event of Default shall have occurred and be continuing, to receive,
subject to the terms of this Indenture, such payment upon receipt thereof by
the Indenture Trustee; provided that the Owner Participant shall not otherwise
attempt to recover any such amount paid by it on behalf of the Lessee pursuant
to this Section 4.03 except by demanding of the Lessee payment of such amount,
or by commencing an action at law against the Lessee and obtaining and
enforcing a judgment against the Lessee for the payment of such amount or
taking appropriate action in a pending action at law against the Lessee or by
demanding Excepted Payments or Excepted Rights; provided, however, that at no
time while an Indenture Event of Default shall have occurred and be continuing
shall any such demand be made or shall any such action be commenced (or
continued) and any amounts nevertheless received by the Owner Participant in
respect thereof shall be held in trust for the benefit of, and promptly
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paid to, the Indenture Trustee for distribution as provided in Section 3.03
hereof; and provided, further, that
(x) this Section 4.03 shall not apply with respect to any
default in the payment of Basic Rent due under the Lease, if the Lessee
itself shall have theretofore failed to pay Basic Rent in the manner
required under the Lease (after giving effect to any applicable grace
period) as to (i) each of the three Basic Rent Payment Dates immediately
preceding the date of such default or (ii) in the aggregate more than
six Basic Rent Payment Dates,
(y) the second sentence of this Section 4.03 shall cease to
apply, and no payment by the Owner Participant in respect of
Supplemental Rent or performance of any obligation of the Lessee under
the Lease by the Owner Trustee shall be deemed to remedy or to have
remedied any Lease Event of Default for the purposes of this Indenture,
if during the 12-month period immediately preceding the relevant default
by the Lessee there shall have been expended by the Owner Participant
pursuant to the second sentence of this Section 4.03 (and shall have not
been reimbursed by the Lessee or any Permitted Sublessee themselves to
the Owner Trustee for distribution to the Owner Participant) an amount
in excess of $3,500,000, and
(z) neither the Owner Trustee nor the Owner Participant shall
(without the prior written consent of a Majority in Interest of Note
Holders) have the right to cure any Lease Default or Lease Event of
Default except as specified in this Section 4.03.
SECTION 4.04. Remedies. (a) If an Indenture Event of Default
shall have occurred and be continuing and so long as the same shall be
continuing unremedied, and if the Equipment Notes shall have been accelerated
pursuant to Section 4.04(b) or 4.04(c) hereof, then and in every such case the
Indenture Trustee may (subject to the rights of the Owner Participant or the
Owner Trustee to cure any such Indenture Event of Default set forth in Section
4.03 hereof and the obligations of the Indenture Trustee set forth in this
Section 4.04(a) and subject to Section 10.05 hereof) exercise any or all of the
rights and powers and pursue any and all of the remedies pursuant to this
Article IV and shall have and may exercise all of the rights and remedies of a
secured party under the Uniform Commercial Code and, in the event such
Indenture Event of Default is an Indenture Event of Default referred to in
paragraph (a) of Section 4.02 hereof, the Indenture Trustee may (subject as
aforesaid), at the direction of a Majority in Interest of Note Holders,
exercise any and all of the remedies pursuant to Section 18 of the Lease and
pursuant to any Sublease Assignment and may take possession of all or any part
of the properties covered or intended to be covered by the Lien and security
interest created hereby or pursuant hereto but, in the case of the Aircraft,
only as permitted by Section 18 of the Lease, and may exclude the Owner
Participant, the Owner
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Trustee and the Lessee and all Persons claiming under any of them or wholly or
partly therefrom; provided, however, that the Indenture Trustee shall give the
Owner Trustee and the Owner Participant ten days' prior written notice of the
initial exercise of such remedies by the Indenture Trustee under the Lease (if
not stayed or otherwise precluded by applicable law from giving such notice);
provided, further, that the Indenture Trustee shall give the Owner Trustee and
the Owner Participant thirty days' prior written notice of its intention to
sell the Aircraft. Without limiting any of the foregoing, it is understood and
agreed that the Indenture Trustee may exercise any right of sale of the
Aircraft available to it, even though it shall not have taken possession of the
Aircraft and shall not have possession thereof at the time of such sale.
Anything in this Indenture to the contrary notwithstanding, the
Indenture Trustee shall not be entitled to exercise any remedy hereunder if
there shall have occurred or be continuing a Lease Event of Default unless the
Indenture Trustee shall have exercised or concurrently be exercising one or
more of the remedies provided for in Section 18 of the Lease to terminate the
Lease or take possession and/or sell the 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)(1)(A) of the Bankruptcy Code (such 60-day or other period
being the "Section 1110 Period"), stayed or prohibited by applicable law or
court order from exercising such remedies under the Lease (a "Continuous Stay
Period"); provided further, however, that the requirement to exercise one or
more of such remedies under the Lease shall nonetheless be applicable during a
Continuous Stay Period subsequent to the expiration of the Section 1110 Period
to the extent that the continuation of such Continuous Stay Period subsequent
to the expiration of the Section 1110 Period (A) results from an agreement by
the trustee or the debtor-in-possession in such proceeding during the Section
1110 Period with the approval of the relevant court to perform the Lease in
accordance with Section 1110(a)(1)(A) of the Bankruptcy Code and continues to
perform as required by Section 1110(a)(1) of the Bankruptcy Code or (B) is an
extension of the Section 1110 Period with the consent of the Indenture Trustee
pursuant to Section 1110(b) of the Bankruptcy Code or (C) results from the
Lessee's assumption during the Section 1110 Period with the approval of the
relevant court of the Lease pursuant to Section 365 of the Bankruptcy Code or
(D) is the consequence of the Indenture Trustee's own failure to give any
requisite notice to any Person (unless the Indenture Trustee is stayed or
otherwise precluded by applicable law from giving such notice). In the event
that the applicability of Section 1110 of the Bankruptcy Code to the Aircraft
is being contested by the Lessee in judicial proceedings, so long as the
Indenture Trustee fails to participate in such proceedings, the Owner Trustee
shall have the right (without affecting in any way any right or remedy of
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the Indenture Trustee hereunder) to participate in such proceedings.
The foregoing shall not preclude the Indenture Trustee from
notifying any Permitted Sublessee that payments under any Assigned Sublease are
to be made directly to it pursuant to the terms of the relevant Sublease
Assignment, or, except as expressly provided above, from exercising its rights
or remedies hereunder and under the other Operative Documents. For the
avoidance of doubt, it is expressly understood and agreed, subject only to the
immediately preceding paragraph, that the above-described inability of the
Indenture Trustee to exercise any right or remedy under the Lease shall in no
event and under no circumstance prevent the Indenture Trustee from otherwise
exercising all of its rights, powers and remedies under this Indenture,
including without limitation this Article IV.
(b) If an Indenture Event of Default referred to in clause
(g), (h) or (i) of Section 4.02 hereof shall have occurred, or a Lease Event of
Default under clause (e), (f) or (g) of Section 17 of the Lease shall have
occurred, then and in every such case the unpaid Principal Amount of all
Equipment Notes then outstanding, together with accrued but unpaid interest and
all other amounts due thereunder and hereunder, shall immediately and without
further act become due and payable without presentment, demand, protest or
notice, all of which are hereby waived.
(c) If any Indenture Event of Default not specified in Section
4.04(b) hereof shall have occurred and be continuing, then and in every such
case the Indenture Trustee may (and shall, upon receipt of a written demand
therefor from a Majority in Interest of Note Holders), subject to Section 4.03
hereof, at any time, by written notice or notices to the Owner Trustee, declare
the unpaid Principal Amount of all Equipment Notes to be due and payable,
whereupon the unpaid Principal Amount of all Equipment Notes then outstanding,
together with accrued but unpaid interest thereon and all other amounts due
thereunder and hereunder, shall immediately become due and payable without
presentment, demand, protest or further notice, all of which are hereby waived.
(d) Sections 4.04(b) and (c), however, are subject to the
condition that, if at any time after the Principal Amount of the Equipment
Notes shall have become so due and payable, and before any judgment or decree
for the payment of the money so due, or any thereof, shall be entered, all
overdue payments of interest upon the Equipment Notes and all other amounts
payable under the Equipment Notes (except the Principal Amount of the Equipment
Notes which by such declaration shall have become payable) shall have been duly
paid and every other Indenture Default and Indenture Event of Default with
respect to any covenant or provision of this Indenture shall have been cured,
then and in every such case a Majority in Interest of Note Holders may (but
shall not be obligated to), by written instrument filed with the Indenture
Trustee, rescind and annul
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the Indenture Trustee's declaration and its consequences; but no such
rescission or annulment shall extend to or affect any subsequent Indenture
Default or Indenture Event of Default or impair any right consequent thereon.
Any acceleration pursuant to Sections 4.04(b) and (c) shall be
automatically rescinded and any related declaration of an Indenture Event of
Default annulled in the event that the Owner Trustee or the Owner Participant,
as the case may be, shall have cured, in accordance with Section 4.03, the
Indenture Event of Default that resulted in such acceleration.
No Make-Whole Amount shall become payable on the Equipment Notes
as a result of any acceleration under Section 4.04(b) or 4.04(c).
(e) Each Note Holder shall be entitled, at any sale pursuant
to Section 18 of the Lease, to credit against any purchase price bid at such
sale by such Note Holder all or any part of the unpaid obligations owing to
such Note Holder and secured by the Lien of this Indenture. The Owner Trustee
or Owner Participant may be a cash purchaser at any such sale.
(f) Notwithstanding anything contained herein, so long as the
Pass Through Trustee under any Pass Through Trust Agreement or the
Subordination Agent on its behalf is a Note Holder, the Indenture Trustee will
not be authorized or empowered to acquire title to any property in the Trust
Indenture Estate or take any action with respect to any property in the Trust
Indenture Estate so acquired by it if such acquisition or action would cause
any trust created pursuant to the Trust Agreement to fail to qualify as a
"grantor trust" for federal income tax purposes.
SECTION 4.05. Return of the Aircraft, etc. (a) Subject to the
rights of the Owner Trustee and the Owner Participant under Section 4.03 hereof
and unless the Owner Participant shall have theretofore purchased the Equipment
Notes pursuant to Section 2.12 hereof, if an Indenture Event of Default shall
have occurred and be continuing and the Equipment Notes shall have been
accelerated pursuant to Section 4.04(b) or 4.04(c) hereof, at the request of
the Indenture Trustee the Owner Trustee shall promptly execute and deliver to
the Indenture Trustee such instruments of title and other documents as the
Indenture Trustee may deem necessary or advisable to enable the Indenture
Trustee or an agent or representative designated by the Indenture Trustee, at
such time or times and place or places as the Indenture Trustee may specify, to
obtain possession of all or any part of the Trust Indenture Estate; provided
that the Indenture Trustee shall at the time be entitled to obtain such
possession under Section 4.04(a) and the other applicable provisions of this
Indenture. If the Owner Trustee shall for any reason fail to execute and
deliver such instruments and documents after such request by the Indenture
Trustee, the Indenture Trustee may (i) obtain a judgment conferring on the
Indenture Trustee the right
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to immediate possession and requiring the Owner Trustee to execute and deliver
such instruments and documents to the Indenture Trustee, to the entry of which
judgment the Owner Trustee hereby specifically consents to the fullest extent
it may lawfully do so, and (ii) to the extent permitted by law, pursue all or
part of the Trust Indenture Estate wherever it may be found (but not in
violation of Section 10.05 hereof or of the Lease) and may enter any of the
premises of the Lessee wherever such Trust Indenture Estate may be or be
supposed to be and search for and take possession of and remove the same (but
not in violation of Section 10.05 hereof or of the Lease). All expenses of
obtaining such judgment or of pursuing, searching for and taking such property
shall, until paid, be secured by the Lien of this Indenture.
(b) Upon a Lease Event of Default which is continuing, the
Indenture Trustee may, from time to time, at the expense of the Trust Indenture
Estate, make all such expenditures for maintenance, insurance, repairs,
replacements, alterations, additions and improvements to and of the Trust
Indenture Estate, as it may deem proper (it being understood and agreed that
the provisions hereof shall not be construed so as to expand the obligations of
the Lessee under the Lease, including Section 16 thereof). In each such case,
the Indenture Trustee shall have the right to maintain, use, operate, store,
lease, control or manage the Trust Indenture Estate and to carry on the
business (without limiting the express provisions of Section 5.10 hereof) and
to exercise all rights and powers of the Owner Participant and the Owner
Trustee relating to the Trust Indenture Estate, as the Indenture Trustee shall
deem best, including the right to enter into any and all such agreements with
respect to the maintenance, insurance, use, operation, storage, leasing,
control, management or disposition of the Trust Indenture Estate or any part
thereof as the Indenture Trustee may determine; and the Indenture Trustee shall
be entitled to collect and receive directly all tolls, rents (including Rent),
revenues, issues, income, products and profits of the Trust Indenture Estate
and every part thereof, except Excepted Payments, without prejudice, however,
to the right of the Indenture Trustee under any provision of this Indenture to
collect and receive all cash held by, or required to be deposited with, the
Indenture Trustee hereunder, except Excepted Payments. The Indenture Trustee
shall, pursuant to the exercise of its remedies under this Article IV, to the
extent permitted by applicable law, be entitled to the appointment of a
receiver for all or any part of the Trust Indenture Estate, whether such
receivership be incidental to a proposed sale of the Trust Indenture Estate or
otherwise, and the Owner Trustee hereby consents to the appointment of such
receiver and will not oppose any such appointment. Such tolls, rents
(including Rent), revenues, issues, income, products and profits shall be
applied to pay the expenses of the use, operation, storage, leasing, control,
management or disposition of the Trust Indenture Estate and of conducting the
business thereof, and of all maintenance, repairs, replacements, alterations,
additions and improvements, and to
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make all payments which the Indenture Trustee may be required or may elect to
make, if any, for taxes, assessments, insurance or other proper charges upon
the Trust Indenture Estate or any part thereof (including the employment of
engineers and accountants to examine, inspect and make reports upon the
properties and books and records of the Owner Trustee), and all other payments
that the Indenture Trustee may be required or authorized to make under any
provision of this Indenture, as well as just and reasonable compensation for
the services of the Indenture Trustee, and of all Persons properly engaged and
employed by the Indenture Trustee.
SECTION 4.06. Remedies Cumulative. Each and every right, power
and remedy given to the Indenture Trustee specifically or otherwise in this
Indenture shall be cumulative and shall be in addition to every other right,
power and remedy herein specifically given or now or hereafter existing at law,
in equity or by statute, and each and every right, power and remedy whether
specifically herein given or otherwise existing may be exercised from time to
time and as often and in such order as may be deemed expedient by the Indenture
Trustee, and the exercise or the beginning of the exercise of any power or
remedy shall not be construed to be a waiver of the right to exercise at the
same time or thereafter any other right, power or remedy. No delay or omission
by the Indenture Trustee in the exercise of any right, remedy or power or in
the pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the Owner Trustee or the
Lessee or to be an acquiescence therein.
SECTION 4.07. Discontinuance of Proceedings. In case the
Indenture Trustee or any Note Holder shall have instituted any proceeding to
enforce any right, power or remedy under this Indenture by foreclosure, entry
or otherwise, and such proceedings shall have been discontinued or abandoned
for any reason or shall have been determined adversely to the Indenture Trustee
or such Note Holder, then and in every such case the Owner Trustee, the
Indenture Trustee, the Note Holders and the Lessee shall, subject to any
determination in such proceedings, be restored to their former positions and
rights hereunder with respect to the Trust Indenture Estate, and all rights,
remedies and powers of the Indenture Trustee and the Note Holders shall
continue as if no such proceedings had been instituted.
SECTION 4.08. Waiver of Past Indenture Defaults. Upon written
instructions from a Majority in Interest of Note Holders, the Indenture Trustee
shall waive any past Indenture Default hereunder and its consequences and upon
any such waiver such Indenture Default shall cease to exist and any Indenture
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other Indenture Default or impair any right consequent thereon; provided,
however, that in the absence of written instructions from the Holders of all
Equipment Notes then outstanding, the Indenture Trustee shall not waive any
Indenture
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Default (i) in the payment of the Principal Amount of or interest on any
Equipment Note then outstanding, or (ii) in respect of a covenant or provision
hereof which, under Article IX hereof, cannot be modified or amended without
the consent of each Note Holder.
SECTION 4.09. Exercise of Remedies by Foreign Note Holders. If
the Indenture Trustee shall exercise remedies pursuant to this Article IV, at a
time when (i) the Aircraft is registered with the Federal Aviation
Administration, (ii) 25% or more of the then unpaid Principal Amount of the
Equipment Notes is held by one or more Persons which are not a "citizen of the
United States" within the meaning of Section 40102(a)(15) of the Federal
Aviation Act and (iii) remedies are to be exercised pursuant to this Article IV
as a result of the occurrence of an Indenture Event of Default which is not a
Lease Event of Default, the Indenture Trustee shall make arrangements, if any,
as may be required by law so that such exercise of remedies shall not result in
the ineligibility of the Aircraft to be registered under the Federal Aviation
Act.
ARTICLE V
DUTIES OF THE INDENTURE TRUSTEE
SECTION 5.01. Notice of Indenture Event of Default. In the
event the Indenture Trustee shall have knowledge of an Indenture Event of
Default, or shall have knowledge of an Indenture Default arising either from a
failure to pay Rent or a Lease Default of the type referred to in the second
sentence of Section 4.03, the Indenture Trustee shall give prompt notice
thereof to the Owner Trustee, the Owner Participant and the Lessee by
facsimile, telex, telegraph or telephone (confirmed by written notice in the
manner provided by Section 10.06 hereof), and to each Note Holder by first-
class mail. Subject to the terms of Sections 2.12, 4.03, 4.04, 4.08, 4.09,
5.03, 5.10 and 10.05 hereof and of this Section 5.01, the Indenture Trustee
shall take such action, or refrain from taking such action, with respect to any
Indenture Event of Default or Indenture Default (including with respect to the
exercise of any rights or remedies hereunder) as the Indenture Trustee shall be
instructed in writing by a Majority in Interest of Note Holders. Subject to
the provisions of Section 5.03 hereof, if the Indenture Trustee shall not have
received instructions as above provided within 20 calendar days after mailing
notice of such Indenture Default or Indenture Event of Default to the Note
Holders, the Indenture Trustee may, subject to instructions thereafter received
pursuant to the preceding provisions of this Section 5.01, take such action, or
refrain from taking such action, but shall be under no duty to take or refrain
from taking any action, with respect to such Indenture Default or Indenture
Event of Default as it shall determine to be advisable and in the best
interests of the Note Holders and shall use the same degree of care and skill
in connection therewith as a prudent person would use under the
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circumstances in the conduct of its own affairs; provided that the Indenture
Trustee may not sell the Aircraft or any part thereof without the consent of a
Majority in Interest of Note Holders. In the event the Indenture Trustee shall
at any time elect to foreclose or otherwise enforce this Indenture, the
Indenture Trustee shall forthwith notify, to the extent (in the case of any
such party) not stayed or otherwise prohibited by applicable law, the Owner
Participant, the Note Holders, the Owner Trustee and the Lessee. For all
purposes of this Indenture, in the absence of actual knowledge on the part of
an officer in the Corporate Trust Office, in the case of the Indenture Trustee,
or its Corporate Trust Administration Department, in the case of the Owner
Trustee, the Indenture Trustee or the Owner Trustee, as the case may be, shall
not be deemed to have knowledge of an Indenture Event of Default (except, in
the case of the Indenture Trustee, the failure of the Lessee to pay any
installment of Rent when due, if any portion of such installment was then
required to be paid to the Indenture Trustee, which failure shall constitute
knowledge of an Indenture Default for purposes of the first sentence of this
Section 5.01) unless notified in writing by the Lessee, the Owner Trustee or
one or more Note Holders or, in the case of the Owner Trustee, by the Indenture
Trustee.
SECTION 5.02. Action Upon Instructions. Subject to the terms of
Sections 2.12, 4.03, 4.04, 4.08, 4.09, 5.01, 5.03, 5.10, 9.01 and 10.05 hereof,
upon the written instructions at any time and from time to time of a Majority
in Interest of Note Holders, the Indenture Trustee shall take such of the
following actions as may be specified in such instructions: (i) exercise such
election or option, or make such decision or determination, or give such
notice, consent, waiver or approval or exercise such right, remedy or power to
take such other action hereunder or under any other Indenture Document or in
respect of any part or all of the Trust Indenture Estate as shall be specified
in such instructions; (ii) take such action with respect to, or to preserve or
protect, the Trust Indenture Estate (including the discharge of Liens) as shall
be specified in such instructions and as are consistent with this Indenture;
and (iii) take such other action in respect of the subject matter of this
Indenture as is consistent with the terms hereof and of the other Indenture
Documents. The Indenture Trustee will execute and the Owner Trustee will file
or cause to be filed such continuation statements with respect to financing
statements relating to the security interest created hereunder in the Trust
Indenture Estate as may be specified from time to time in written instructions
of a Majority in Interest of Note Holders (which instructions may, by their
terms, be operative only at a future date and which shall be accompanied by the
execution form of such continuation statement so to be filed); provided that,
notwithstanding the foregoing, the Indenture Trustee may, but shall not be
obligated to, execute and file or cause to be filed any financing statement
which it from time to time deems appropriate or any continuation statement that
the Lessee, in discharge of its obligations under Section 3(v) of the Refunding
Agreement or any other Operative
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Document (including, without limitation, Section 15 of the Lease), may so
request. Notwithstanding the foregoing or anything in this Indenture to the
contrary, the Indenture Trustee may, on the advice of its counsel and without
the consent or approval of any Note Holder, approve any counsel asked to opine
on any matters under Section 11(b)(ii) of the Refunding Agreement, Section
6(a)(iii) of the Lease or under this Indenture and approve any opinion issued
by such counsel. None of the Owner Participant, the Owner Trustee or the
Lessee have any liability for the failure of the Indenture Trustee to discharge
its obligations hereunder.
SECTION 5.03. Indemnification. The Indenture Trustee shall not
be required to take any action or refrain from taking any action under Section
5.01 (other than the first sentence thereof) or 5.02 or Article IV hereof
unless the Indenture Trustee shall have been indemnified against any liability,
cost or expense (including counsel fees) that may be incurred in connection
therewith. The Indenture Trustee shall not be under any obligation to take any
action under this Indenture and nothing in this Indenture contained shall
require the Indenture Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder
or in the exercise of any of its rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it. The Indenture
Trustee shall not be required to take any action under Section 5.01 (other than
the first sentence thereof) or 5.02 or Article IV hereof, nor shall any other
provision of this Indenture be deemed to impose a duty on the Indenture Trustee
to take any action, if the Indenture Trustee shall have been advised by counsel
that such action is contrary to the terms hereof or of the other Indenture
Documents or is otherwise contrary to law.
SECTION 5.04. No Duties Except as Specified in Indenture or
Instructions. The Indenture Trustee shall not have any duty or obligation to
maintain, use, operate, store, lease, control, manage, sell, dispose of, insure
or otherwise deal with the Aircraft or any other part of the Trust Indenture
Estate, or to otherwise take or refrain from taking any action under, or in
connection with, this Indenture or any Indenture Document or any part of the
Trust Indenture Estate, except as expressly provided by the terms of this
Indenture or as expressly provided in written instructions from Note Holders as
provided in this Indenture and no implied duties or obligations shall be read
into this Indenture against the Indenture Trustee. It is understood that, as
between the Indenture Trustee and the Note Holders, with respect to all matters
left to the discretion of the Indenture Trustee hereunder, or under any
Indenture Document, the Indenture Trustee shall have the right to request
written instructions from the Note Holders and, pending receipt of such
instructions from the Note Holders or the required percentage thereof as
provided herein, the Indenture Trustee shall not be required to take any such
discretionary action hereunder; provided, however, that if
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the Indenture Trustee shall request written instructions pursuant to this
Section 5.04, it will use reasonable efforts to seek and obtain such
instructions promptly so as not unreasonably to delay the proposed action of
Lessee in respect of which the instructions are sought. The Indenture Trustee
agrees that it will in its individual capacity and at its own cost and expense
(but without any right of indemnity in respect of any such cost or expense
under Article VII hereof or any other Operative Document) promptly take such
action as may be necessary to duly discharge all Lenders' Liens on any part of
the Trust Indenture Estate attributable to it in its individual capacity.
SECTION 5.05. No Action Except Under Lease, Refunding Agreement,
Indenture or Instructions. The Owner Trustee and the Indenture Trustee agree
that they will not use, operate, store, lease, control, manage, sell, dispose
of or otherwise deal with, or place Liens on, the Aircraft or any other part of
the Trust Indenture Estate except (i) as required or permitted by the terms of
the Lease or the Refunding Agreement, or (ii) in accordance with the powers
granted to, or the authority conferred upon, the Owner Trustee and the
Indenture Trustee pursuant to this Indenture and in accordance with the terms
hereof.
SECTION 5.06. Replacement Airframes, Replacement Engines and
Replacement Parts. (a) If at any time and from time to time, the Airframe or
Engine(s) may, or may be required to, be replaced under Section 6(a), 11(a),
11(b) or 16(c) of the Lease by a Replacement Airframe or Replacement Engine(s),
as the case may be, in accordance with the provisions of this Section 5.06 and
the provisions of said Sections of the Lease, the Owner Trustee shall, at such
time or times, but subject to compliance with the conditions to such
replacement set forth in the Lease, direct the Indenture Trustee to execute and
deliver to or as directed in writing by the Owner Trustee an appropriate
instrument releasing such Airframe and/or Engine(s) as appropriate from the
Lien of this Indenture and the Indenture Trustee shall execute and deliver such
instrument as aforesaid, but only upon receipt by or deposit with the Indenture
Trustee of the following:
(1) A written request from the Owner Trustee, requesting such release
and specifically describing the Airframe and/or Engine(s) so to be released and
the Replacement Airframe and/or Replacement Engine(s).
(2) A certificate signed by a duly authorized officer of the Lessee
stating the following:
A. With respect to the replacement of any Airframe:
(i) a description of the Airframe which shall be identified by
manufacturer, model, FAA registration number (or other applicable
registration number) and manufacturer's serial number;
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(ii) a description of the Replacement Airframe (including the
manufacturer, model, FAA registration number (or other applicable
registration number) and manufacturer's serial number) to be received as
consideration for the Airframe to be released;
(iii) that on the date of the Indenture Supplement relating to
the Replacement Airframe the Owner Trustee will hold legal title to such
Replacement Airframe free and clear of all Liens except Permitted Liens,
that such Replacement Airframe will on such date be in good operating
condition, and that such Replacement Airframe has been or, substantially
concurrently with such replacement, is in the process of being duly
registered with the Owner Trustee as owner thereof under the Federal
Aviation Act or under the law then applicable to the registration of the
Aircraft and that an airworthiness certificate has been duly issued
under the Federal Aviation Act (or such other applicable law) with
respect to such Replacement Airframe, and that such registration and
certificate is in full force and effect, and the Lessee or a Permitted
Sublessee will have the full right and authority to use such Replacement
Airframe;
(iv) that the insurance required by Section 12 of the Lease is
in full force and effect with respect to such Replacement Airframe and
all premiums then due thereon have been paid in full;
(v) that the Replacement Airframe is of a like Airbus A320-231
model airframe with equivalent or better modification status delivered
by the Manufacturer not earlier than June 30, 1988;
(vi) that no Lease Event of Default has occurred and is
continuing or would result from the making and granting of the request
for release and the addition of a Replacement Airframe;
(vii) an appraisal prepared in accordance with the Appraisal
Procedure (as defined in the Lease) confirms that the Replacement
Airframe has a value, utility and remaining useful life at least equal
to that of the Airframe which suffered the Event of Loss assuming that
the same were maintained in accordance with the requirements of the
Lease whether or not they are in fact so maintained; and
(viii) that each of the conditions specified in Section 11(a) and
(c) of the Lease with respect to such Replacement Airframe have been
satisfied.
B. With respect to the replacement of any Engine:
(i) a description of the Engine which shall be identified by
manufacturer's name and serial number;
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(ii) a description of the Replacement Engine (including the
manufacturer's name and serial number) to be received as consideration
for the Engine to be released;
(iii) that on the date of the Indenture Supplement relating to
the Replacement Engine the Owner Trustee will hold title to such
Replacement Engine free and clear of all Liens except Permitted Liens,
that such Replacement Engine will on such date be in good operating
condition, and that such Replacement Engine is the same or an improved
model as the Engine to be released;
(iv) the value, remaining useful life and utility of the
Replacement Engine as of the date of such certificate (which value,
remaining useful life and utility shall not be less than the then value,
remaining useful life and utility of the Engine requested to be
released, assuming such Engine was in the condition and repair required
to be maintained under the Lease (but without regard to hours and cycles
until overhaul));
(v) that no Lease Event of Default has occurred and is
continuing or would result from the making and granting of the request
for release and the addition of such Replacement Engine; and
(vi) that each of the conditions specified in Section 11(b) of
the Lease with respect to such Replacement Engine have been satisfied.
(3) The appropriate instrument or instruments (i) transferring to the
Owner Trustee title to the Replacement Airframe or Replacement Engine to be
received as consideration for the Airframe or Engine to be released, (ii)
assigning to the Owner Trustee the benefit of all manufacturer's and vendor's
warranties generally available with respect to such Replacement Airframe or
Replacement Engine (if any) (which warranties may be assigned by the Owner
Trustee to Lessee pursuant to Section 5(d) of the Lease), and (iii) subjecting
such Replacement Airframe or Replacement Engine to the Lien of this Indenture
and subjecting to any relevant Assigned Sublease and Sublease Assignment,
including, without limitation, an Indenture Supplement.
(4) With respect to a Replacement Airframe, an appraisal from BK
Associates, Avmark Services Ltd., AeroEconomics, Inc. or another firm of
independent aircraft appraisers satisfactory to the Indenture Trustee
confirming the accuracy of the information set forth in Section 5.06(a)2.A(vii)
hereof.
(5) The opinion of counsel to the Lessee, satisfactory to the
Indenture Trustee, stating that:
(i) the certificates, opinions and other instruments and/or
property that have been or are therewith delivered to and deposited with
the Indenture Trustee conform to the
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requirements of this Indenture and the Lease and, upon the basis of such
application, the property so sold or disposed of may be properly
released from the Lien of this Indenture and all conditions precedent
herein provided for relating to such release have been complied with;
(ii) the Replacement Airframe and/or Replacement Engine(s) have
been validly subjected to the Lien of this Indenture and covered by the
Lease, the instruments subjecting such Replacement Airframe or
Replacement Engine to the Lien of this Indenture and the Lease, and
subjecting to any relevant Assigned Sublease and Sublease Assignment, as
the case may be, have been duly filed for recordation pursuant to the
Federal Aviation Act or any other law then applicable to the
registration of the Aircraft, and no further action, filing or recording
of any document is necessary in order to establish and perfect, in the
United States and, if the Aircraft is registered outside the United
States, in the jurisdiction of registration, the legal title to such
Replacement Airframe and/or Replacement Engine and the Lien of this
Indenture on such Replacement Airframe and/or Replacement Engine; and
(iii) the Owner Trustee and the Indenture Trustee (as assignee
of the Owner Trustee's rights under the Lease) shall be entitled to the
benefits of Section 1110 of the Bankruptcy Code with respect to the
Replacement Airframe and, if an Event of Loss with respect to the
Aircraft has occurred, the Replacement Engines to the same extent as
with respect to the Airframe and Engines then installed thereon prior to
such replacement.
(b) Upon the acquisition by the Owner Trustee of title to or
other interest in any Part under and as provided in the Lease, the same shall
automatically and without further act become subject to the Lien of this
Indenture, and to the extent the Owner Trustee is divested of title to or other
interest in any Part under and as provided in the Lease, the same shall
automatically and without further act cease to be subject to the Lien of this
Indenture. The Indenture Trustee shall at any time and from time to time at
the request of the Lessee execute an appropriate written instrument or
instruments to confirm the release of any Part from the Lien of this Indenture
as provided in this Section 5.06(b), but only upon receipt by the Indenture
Trustee of an Officers' Certificate of Lessee confirming such release is
authorized by the terms hereof.
SECTION 5.07. Indenture Supplements for Replacements. In the
event of the substitution of a Replacement Airframe or Engine as contemplated
by Section 11 of the Lease, the Owner Trustee and the Indenture Trustee agree
for the benefit of the Note Holders and the Lessee, subject to fulfillment of
the conditions precedent and compliance by the Lessee with its obligations set
forth in Section 11 of the Lease, to execute and deliver the appropriate
instruments as contemplated by Section
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5.06 hereof, and execute and deliver to the Lessee (or any relevant Permitted
Sublessee) an appropriate instrument releasing the Airframe and/or Engine(s)
being replaced from the Lien of this Indenture.
SECTION 5.08. Effect of Replacement. In the event of the
substitution of a Replacement Airframe or Engine as contemplated by Section 11
of the Lease and Section 5.06 hereof, all provisions of this Indenture relating
to the Airframe or Engine(s) being replaced shall be applicable to such
Replacement Airframe or Replacement Engine(s) with the same force and effect as
if such Replacement Airframe or Replacement Engine(s) were the same airframe or
engine(s), as the case may be, as the Airframe or Engine(s) being replaced.
SECTION 5.09. Notices, etc. Where this Indenture expressly
provides for notice to Note Holders, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed, first-
class postage prepaid, to each Note Holder entitled thereto, at his last
address as it appears in the Register. In any case where notice to Note
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Note Holder shall affect the
sufficiency of such notice with respect to other Note Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Note Holders shall be filed with the Indenture Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Note
Holders when such notice is required to be given pursuant to any provision of
this Indenture, then any manner of giving such notice as shall be satisfactory
to the Indenture Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 5.10. Certain Rights of Owner Trustee and Owner
Participant. Notwithstanding any other provisions of this Indenture, including
the Granting Clause, but subject always to the final paragraph of this Section
5.10, the following rights shall be reserved to the Owner Trustee or Owner
Participant, as the case may be (as separate and independent rights) to the
extent described herein:
(a) the Owner Trustee or the Owner Participant may, without the
consent of the Indenture Trustee, demand, collect, ▇▇▇ for or otherwise
obtain all amounts included in Excepted Payments from the Lessee,
exercise any election or option or make any decision or determination or
give or receive any notice, consent, waiver or approval in respect
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of any Excepted Payment and seek legal or equitable remedies to require
the Lessee to maintain the insurance coverage referred to in Section 12
of the Lease (or the comparable provisions of any Assigned Sublease) and
such specific performance of the covenants of the Lessee under the Lease
(or the comparable provisions of any Assigned Sublease) relating to the
protection, maintenance, possession and use of the Aircraft; provided,
that the rights referred to in this clause (a) shall not be deemed to
include the exercise of any remedies provided for in Section 18 of the
Lease (or the comparable provisions of any Assigned Sublease) other than
the right to proceed by appropriate court action, either at law or in
equity, to enforce payment by the Lessee of such amounts included in
Excepted Payments or performance by the Lessee of such insurance
covenant or to recover damages for the breach thereof or for specific
performance of any covenant of the Lessee;
(b) (i) the Indenture Trustee shall not, without the consent of
the Owner Trustee, enter into, execute and deliver amendments or
modifications in respect of any of the provisions of the Lease, any
Assigned Sublease or any Sublease Assignment and (ii) unless an
Indenture Event of Default and an Indenture Trustee Event shall have
occurred and be continuing, the Indenture Trustee shall not, without the
consent of the Owner Trustee, which consent shall not be withheld if no
right or interest of the Owner Trustee or the Owner Participant shall be
materially diminished or impaired thereby, (A) enter into, execute and
deliver waivers or consents in respect of any of the provisions of the
Lease, any Assigned Sublease or any Sublease Assignment, or (B) approve
any accountants, engineers, appraisers or counsel as satisfactory to
render services for or issue opinions to the Owner Trustee pursuant to
the Operative Documents (other than tax opinions issued to the Owner
Participant, any partner of the Owner Participant or the Owner Trustee);
provided that, whether or not an Indenture Event of Default has occurred
and is continuing, the Owner Trustee's consent shall be required with
respect to any waivers or consents in respect of any of the provisions
of Section 6, 12 or 16 of the Lease, or of any other Section of the
Lease to the extent such action shall affect (y) the amount or timing
of, or the right to enforce payment of any Excepted Payment or (z) the
amount or timing of any amounts payable by the Lessee under the Lease as
originally executed (or as subsequently modified with the consent of the
Owner Trustee) which, absent the occurrence and continuance of an
Indenture Event of Default hereunder, would be distributable to the
Owner Trustee under Article III hereof;
(c) at all times whether or not an Indenture Event of Default
has occurred and is continuing, the Owner Trustee and the Owner
Participant shall have the right, together with the Indenture Trustee,
(i) to receive from the Lessee or any Permitted Sublessee all notices,
certificates,
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reports, filings, opinions of counsel and other documents and all
information which any thereof is permitted or required to give or
furnish to the Owner Trustee pursuant to any Operative Document
(including pursuant to Section 10 of the Lease), (ii) to exercise
inspection rights pursuant to Section 7 of the Lease, (iii) to retain
all rights with respect to insurance maintained for its own account
which Section 12 of the Lease specifically confers on the Owner
Participant and (iv) to exercise, to the extent necessary to enable it
to exercise its rights under Section 4.03 hereof, the rights of the
Owner Trustee under Section 21(d) of the Lease and to give notices of
default under Section 17 of the Lease; and
(d) except as expressly provided to the contrary in clauses (a),
(b) and (c) above, so long as no Indenture Event of Default has occurred
and is continuing, all rights (including options, elections,
determinations, consents, approvals, waivers and the giving of notices)
of the Owner Trustee and the Owner Participant under the Lease shall be
exercised by the Owner Trustee and/or the Owner Participant, as the case
may be, to the exclusion of the Indenture Trustee and any Note Holder
and without the consent of the Indenture Trustee or any Note Holder;
provided that the foregoing shall not, nor shall any other provision of
this Section 5.10, limit (A) any rights separately and expressly granted
to the Indenture Trustee or any Note Holder under the Lease or the other
Operative Documents (including, without limitation, Section 15 of the
Refunding Agreement) or (B) the right of the Indenture Trustee or any
Note Holder to receive any funds to be delivered to the Owner Trustee
under the Lease (except with respect to Excepted Payments).
Notwithstanding the foregoing provisions of this Section 5.10,
but subject always to Section 10.05 hereof and to the rights of the Owner
Participant under Sections 2.12 and 4.03 hereof, the Indenture Trustee shall at
all times have the right, to the exclusion of the Owner Trustee and the Owner
Participant, to (A) demand, collect, ▇▇▇ for or otherwise receive and enforce
the payment of all Rent due and payable under the Lease (other than any thereof
constituting an Excepted Payment or Excepted Right), (B) declare the Lease to
be in default under Section 18 thereof and (C) subject only to the provisions
of Sections 4.03 and 4.04(a) hereof, exercise the remedies set forth in such
Section 18 (other than in connection with Excepted Payments) and in Article IV
hereof.
SECTION 5.11. Evidence of Action Taken by Note Holder. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Note Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Note Holders in person or by agent duly appointed in
writing, and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are
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delivered to the Indenture Trustee and, if expressly required herein, to the
Owner Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 5.04, 5.05, 6.02 and 6.05) conclusive in favor of the
Indenture Trustee and the Owner Trustee if made in the manner provided in this
Indenture.
SECTION 5.12. Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Indenture Trustee, as provided
in Section 5.11 hereof, of the taking of any action by the Note Holders of the
percentage in aggregate Principal Amount of the Equipment Notes specified in
this Indenture in connection with such action, any Note Holder which has
consented to such action may, by filing written notice at the Corporate Trust
Office and upon proof of holding an Equipment Note, revoke such action so far
as concerns such Equipment Note. Except as aforesaid any such action taken by
the Note Holder shall be conclusive and binding upon such Note Holder and upon
all future Note Holders and owners of such Equipment Note and of any Equipment
Notes issued in exchange or substitution therefor, irrespective of whether or
not any notation in regard thereto is made upon any such Equipment Note. Any
action taken by the Note Holders of the percentage in aggregate Principal
Amount of the Equipment Notes specified in this Indenture in connection with
such action shall be conclusively binding upon the Owner Trustee, the Indenture
Trustee and the Note Holders.
ARTICLE VI
THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE
SECTION 6.01. Acceptance of Trusts and Duties. The Indenture
Trustee in its individual capacity accepts the trust hereby created and agrees
to perform the same but only upon the terms of this Indenture. The Indenture
Trustee agrees for the benefit of the Note Holders, the Owner Trustee and the
Owner Participant to receive and disburse all moneys constituting part of the
Trust Indenture Estate in accordance with the terms hereof; and neither the
Trust Company nor the Indenture Trustee in its individual capacity shall be
answerable or accountable under any circumstances, except for its own willful
misconduct or gross negligence (other than for the handling of funds, for which
the standard of accountability shall be negligence), or as provided in the
fourth sentence of Section 2.04(a) hereof and in the last sentence of Section
5.04 hereof, and except for liabilities that may result, in the case of the
Trust Company, from the inaccuracy of any representation or warranty of the
Trust Company in the Refunding Agreement or in the Trust Agreement or in
Section 6.03 hereof or the failure to perform any covenant of the Trust Company
pursuant to Section 4.01(a) hereof or in the Trust Agreement, the Refunding
Agreement, or, in the case of the Indenture Trustee, from the inaccuracy of any
representation or warranty, or failure to perform any covenant,
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of the Indenture Trustee made in its individual capacity herein, in the
Refunding Agreement or in any other document. None of the Owner Participant,
the Trust Company or the Indenture Trustee shall be liable for any action or
inaction of any other one of such parties, except, in the case of the Owner
Participant, for any action or omission of the Owner Trustee performed or
omitted on the instructions of the Owner Participant. The Owner Trustee shall
not be deemed a trustee for the Note Holders for any purpose.
SECTION 6.02. Absence of Duties. In the case of the Indenture
Trustee, except in accordance with written instructions furnished pursuant to
Section 5.01, 5.02 or 9.01 hereof, and except as provided in, and without
limiting the generality of, Sections 5.03, 5.04 and 6.09 hereof and, in the
case of the Owner Trustee, except as provided in Section 4.01(b), 6.09 or 9.01
hereof and in the Trust Agreement, the Lease and the Refunding Agreement, the
Owner Trustee and the Indenture Trustee shall have no duty (i) to see to any
registration of the Aircraft or any recording or filing of the Lease or of this
Indenture or any other document, or to see to the maintenance of any such
registration, recording or filing, (ii) to see to any insurance on the
Aircraft, whether or not the Lessee shall be in default with respect thereto,
(iii) to see to the payment or discharge of any Lien of any kind against any
part of the Trust Estate or the Trust Indenture Estate, (iv) to confirm, verify
or inquire into the failure to receive any financial statements of the Lessee
or (v) to inspect the Aircraft at any time or ascertain or inquire as to the
performance or observance of any of the Lessee's covenants under the Lease or
any of the Permitted Sublessee's covenants under any Assigned Sublease with
respect to the Aircraft.
SECTION 6.03. No Representations or Warranties as to Aircraft or
Documents. NEITHER THE INDENTURE TRUSTEE (INDIVIDUALLY OR AS INDENTURE
TRUSTEE) NOR THE OWNER TRUSTEE NOR THE TRUST COMPANY MAKES OR SHALL BE DEEMED
TO HAVE MADE, AND EACH HEREBY EXPRESSLY DISCLAIMS, ANY REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE (EXCEPT AS SET FORTH IN SECTION
5(a) OF THE LEASE), AIRWORTHINESS, VALUE, WORKMANSHIP, COMPLIANCE WITH
SPECIFICATIONS, CONDITION, DESIGN, QUALITY, DURABILITY, OPERATION,
MERCHANTABILITY OR FITNESS FOR USE OR PURPOSE OF THE AIRCRAFT OR ANY ENGINE OR
ANY PART THEREOF, AS TO THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT
DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR
COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT,
OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE AIRCRAFT OR ANY
ENGINE, except that the Trust Company warrants that (i) on the Delivery Date
for the Aircraft the Owner Trustee shall have received whatever interest in the
Aircraft was conveyed to it under the Second Aircraft Warranty ▇▇▇▇ of Sale
subject to the rights of the parties to the Indenture Documents and (ii) the
Aircraft shall be free and clear of Lessor's Liens attributable to the Trust
Company. Neither the Trust Company nor the Indenture Trustee makes or shall be
deemed
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to have made any representation or warranty as to the validity, legality or
enforceability of this Indenture, the Trust Agreement, the Equipment Notes or
any Indenture Documents or as to the correctness of any statement contained in
any thereof, except for the representations and warranties of the Trust Company
and the Indenture Trustee in its individual capacity or as Indenture Trustee
made under this Indenture or in the other Operative Documents.
SECTION 6.04. No Segregation of Moneys; No Interest. Any moneys
paid to or retained by the Indenture Trustee pursuant to any provision hereof
and not then required to be distributed to any Note Holder, the Lessee or the
Owner Trustee as provided in Article III hereof need not be segregated in any
manner except to the extent required by law, and may be deposited under such
general conditions as may be prescribed by law, and the Indenture Trustee shall
not (except as otherwise provided in Section 3.07 hereof) be liable for any
interest thereon; provided that any payments received or applied hereunder by
the Indenture Trustee shall be accounted for by the Indenture Trustee so that
any portion thereof paid or applied pursuant hereto shall be identifiable as to
the source thereof.
SECTION 6.05. Reliance; Agents; Advice of Counsel. Neither the
Owner Trustee nor the Indenture Trustee shall incur any liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or paper believed
by it to be genuine and believed by it to be signed by the proper party or
parties. The Owner Trustee and the Indenture Trustee may accept a copy of a
resolution of the Board of Directors of any party to the Refunding Agreement,
certified by the Secretary or an Assistant Secretary thereof as duly adopted
and in full force and effect, as conclusive evidence that such resolution has
been duly adopted and that the same is in full force and effect. As to the
aggregate unpaid Principal Amount of Equipment Notes outstanding as of any
date, the Owner Trustee may for all purposes hereof rely on a certificate
signed by any Vice President or other authorized corporate trust officer of the
Indenture Trustee. As to any fact or matter relating to the Lessee the manner
of ascertainment of which is not specifically described herein, the Owner
Trustee and the Indenture Trustee may for all purposes hereof rely on a
certificate, signed by a duly authorized officer of the Lessee, as to such fact
or matter, and such certificate shall constitute full protection to the Owner
Trustee and the Indenture Trustee for any action taken or omitted to be taken
by them in good faith in reliance thereon, but in the case of any such
certificate, the Owner Trustee and the Indenture Trustee shall be under a duty
to examine the same to determine whether or not it conforms to the requirements
of this Indenture. The Indenture Trustee shall assume, and shall be fully
protected in assuming, that the Owner Trustee is authorized by the Trust
Agreement to enter into this Indenture and to take all action to be taken by it
pursuant to the provisions hereof, and shall not inquire into the authorization
of the Owner Trustee with respect
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thereto. In the administration of the trusts hereunder, the Owner Trustee and
the Indenture Trustee each may execute any of the trusts or powers hereof and
perform its powers and duties hereunder directly or (except in the case of the
Indenture Trustee's obligations under the third sentence of Section 2.04(a))
through agents or attorneys and shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due care
hereunder. The Indenture Trustee may, at the expense of the Trust Indenture
Estate, consult with counsel, accountants and other skilled Persons to be
selected and retained by it, and the Owner Trustee and the Indenture Trustee
shall not be liable for anything done, suffered or omitted in good faith by
them in accordance with the written advice or written opinion of any such
counsel, accountants or other skilled Persons.
SECTION 6.06. Capacity in Which Acting. The Owner Trustee acts
hereunder solely as trustee under the Trust Agreement provided, and not in its
individual capacity, except as otherwise expressly provided herein.
SECTION 6.07. Compensation. The Indenture Trustee shall be
entitled to reasonable compensation (which compensation shall not (to the
extent permitted by applicable law) be limited by any provision of law in
regard to the compensation of a trustee of an express trust), including
expenses, advances and disbursements, for all services rendered hereunder, and
shall have a first priority claim (prior to the Note Holders) on the Trust
Indenture Estate for the payment of such compensation, to the extent that such
compensation shall not be paid by the Lessee, and shall have the right to use
or apply any moneys held by it hereunder in the Trust Indenture Estate toward
such payments. The Indenture Trustee agrees that it shall have no right
against any Note Holder or the Owner Participant for any fee as compensation
for its services as trustee under this Indenture.
SECTION 6.08. May Become Note Holder. Each of the institutions
acting as Owner Trustee and Indenture Trustee hereunder may become a Note
Holder and have all rights and benefits of a Note Holder to the same extent as
if it were not the institution acting as Owner Trustee or Indenture Trustee, as
the case may be.
SECTION 6.09. Further Assurances; Financing Statements. At any
time and from time to time, upon the request of the Indenture Trustee, the
Owner Trustee shall promptly and duly execute and deliver any and all such
further instruments and documents as may be specified in such request and as
are necessary or desirable to perfect, preserve or protect the mortgage,
security interests and assignments created or intended to be created hereby, or
to obtain for the Indenture Trustee the full benefit of the specific rights and
powers herein granted, including, without limitation, the execution and
delivery of Uniform Commercial Code financing statements and continuation
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statements with respect thereto, or similar instruments relating to the
perfection of the mortgage, security interests or assignments created or
intended to be created hereby.
ARTICLE VII
INDEMNIFICATION OF INDENTURE TRUSTEE BY OWNER TRUSTEE
SECTION 7.01. Scope of Indemnification. The Owner Trustee, not
individually but solely in its capacity as owner trustee under the Trust
Agreement, hereby agrees, whether or not any of the transactions contemplated
hereby shall be consummated but except as otherwise provided in Section 2.03
hereof, to assume liability for, and does hereby indemnify, protect, save and
keep harmless the Indenture Trustee, in its individual capacity and as
Indenture Trustee, and its successors, permitted assigns, agents and servants
solely from the Trust Estate, from and against any and all liabilities,
obligations, losses, damages, penalties, taxes (excluding any taxes payable by
the Indenture Trustee on or measured by any compensation received by the
Indenture Trustee for its services under this Indenture), claims, actions,
suits, and reasonable out-of-pocket costs, expenses or disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever which may
be imposed on, incurred by or asserted against the Indenture Trustee (in its
individual capacity and as trustee) from and after the Restatement Date
(whether or not also agreed to be indemnified against by any other Person under
any other document) in any way relating to or arising out of this Indenture,
the Trust Agreement, the Equipment Notes, the other Indenture Documents or the
enforcement of any of the terms of any thereof, or in any way relating to or
arising out of the manufacture, purchase, acceptance, nonacceptance, rejection,
ownership, delivery, lease, sublease, possession, use, operation, condition,
sale, return or other disposition of the Aircraft or any Engine (including,
without limitation, latent and other defects, whether or not discoverable, and
any claim for patent, trademark or copyright infringement), or in any way
relating to or arising out of the administration of the Trust Indenture Estate
or the action or inaction of the Indenture Trustee hereunder, except only (i)
in the case of willful misconduct or gross negligence (or negligence in the
case of handling of funds) of the Indenture Trustee in the performance of its
duties hereunder, (ii) as may result from the inaccuracy of any representation
or warranty of the Indenture Trustee made in the Refunding Agreement, (iii) as
otherwise provided in Section 2.04(a) hereof or in the last sentence of Section
5.04 hereof or (iv) as otherwise excluded by the terms of Sections 10(b) and 13
of the Lease from the Lessee's indemnities to the Indenture Trustee, in its
individual capacity and as Indenture Trustee, and its successors, permitted
assigns, agents and servants, thereunder; provided that so long as the Lease is
in effect, the Indenture Trustee shall not make any claim under this Section
7.01 for any amount indemnified against by the Lessee under the Lease without
first (but only to the extent not
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stayed or otherwise prevented by operation of law) making demand on the Lessee
for payment of such amount. The Indenture Trustee shall notify the Owner
Trustee and the Lessee promptly of any claim for which it may seek indemnity.
The Lessee shall be entitled to defend any claim by the Indenture Trustee to
the extent provided in Section 10 or 13 of the Lease. The Indenture Trustee
shall be entitled to indemnification from the Trust Indenture Estate for any
liability, obligation, loss, damage, penalty, claim, action, suit, cost,
expense or disbursement indemnified against pursuant to this Section 7.01 to
the extent not reimbursed by the Lessee or others, but without releasing any of
them from their respective agreements of reimbursement; and to secure the same
the Indenture Trustee shall have a prior Lien on the Trust Indenture Estate.
The indemnities contained in this Section 7.01 shall survive the termination of
this Indenture.
SECTION 7.02. Exculpation and Release of Liability. Without in
any way affecting the limitations on liability set forth in the Operative
Documents, the Indenture Trustee, and each Note Holder by accepting any
Equipment Note hereunder, hereby acknowledge and agree that none of the Trust
Company, the Owner Participant or any director, officer, employee, stockholder,
partner, agent or affiliate of the Trust Company or the Owner Participant (the
"Exculpated Equity Persons") shall have any obligation, duty or liability of
any kind whatsoever to the Indenture Trustee or any such Note Holder in
connection with the exercise by any Exculpated Equity Person of any rights of
the Owner Trustee or the taking of any action or the failure to take any action
by any Exculpated Equity Person in connection with any rights of the Owner
Trustee under this Indenture or the Lease, and each such Note Holder hereby
waives and releases, to the extent permitted by applicable law, each Exculpated
Equity Person of any and all such obligations, duties or liabilities.
ARTICLE VIII
SUCCESSOR TRUSTEES AND SEPARATE TRUSTEES
SECTION 8.01. Notice of Successor Owner Trustee. In the case of
any appointment of a successor to the Owner Trustee pursuant to the Trust
Agreement or any merger, conversion, consolidation or sale of substantially all
of the corporate trust business of the Trust Company pursuant to the Trust
Agreement, the successor Owner Trustee shall give prompt written notice thereof
to the Indenture Trustee and to each Note Holder.
SECTION 8.02. Resignation and Removal of Indenture Trustee;
Appointment of Successor. (a) The Indenture Trustee or any successor thereto
may resign at any time without cause by giving at least 30 calendar days' prior
written notice to the Owner Trustee, the Owner Participant, each Note Holder
and the Lessee, such resignation to be effective upon the acceptance of the
trusteeship by a successor Indenture Trustee. In addition, a Majority in
Interest of Note Holders may at any time remove the
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Indenture Trustee without cause by an instrument in writing delivered to the
Owner Trustee, the Lessee and the Indenture Trustee, and the Indenture Trustee
shall promptly notify each Note Holder thereof in writing, such removal to be
effective upon the acceptance of the trusteeship by a successor Indenture
Trustee. In the case of the resignation or removal of the Indenture Trustee, a
Majority in Interest of Note Holders may appoint, with the consent of the
Lessee, a successor Indenture Trustee by an instrument signed by such Holders
(whose fees shall be reasonably acceptable to the Lessee). If a successor
Indenture Trustee shall not have been appointed within 30 calendar days after
such notice of resignation or removal, the Indenture Trustee, any Note Holder,
the Owner Trustee, the Lessee or the Owner Participant may apply to any court
of competent jurisdiction to appoint a successor Indenture Trustee to act until
such time, if any, as a successor shall have been appointed as above provided.
The successor Indenture Trustee so appointed by such court shall immediately
and without further act be superseded by any successor Indenture Trustee
appointed as above provided within one year from the date of the appointment by
such court.
(b) Any successor Indenture Trustee, however appointed, shall
execute and deliver to the Owner Trustee and to the predecessor Indenture
Trustee an instrument accepting and assuming such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and
such successor Indenture Trustee, without further act, shall become vested with
and bound by all the estates, properties, rights, powers, duties and
obligations of the predecessor Indenture Trustee hereunder and under the other
Indenture Documents in the trusts hereunder applicable to it with like effect
as if originally named the Indenture Trustee herein; but nevertheless upon the
written request of such successor Indenture Trustee, such predecessor Indenture
Trustee shall execute and deliver an instrument transferring to such successor
Indenture Trustee, upon the trusts herein expressed applicable to it, all the
estates, properties, rights and powers of such predecessor Indenture Trustee,
and such predecessor Indenture Trustee shall duly assign, transfer, deliver and
pay over to such successor Indenture Trustee all moneys or other property then
held by such predecessor Indenture Trustee hereunder, subject nevertheless to
its claim provided for in Section 6.07 hereof.
(c) Any successor Indenture Trustee, however appointed, shall
be a "citizen of the United States" within the meaning of Section 40102(a)(15)
of the Federal Aviation Act and shall also be a bank or trust company having a
combined capital and surplus of at least $200,000,000 if there be such an
institution willing, able and legally qualified to perform the duties of the
Indenture Trustee hereunder upon reasonable or customary terms.
(d) Any corporation into which the Indenture Trustee may be
merged or converted or with which it may be consolidated,
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or any corporation resulting from any merger, conversion or consolidation to
which the Indenture Trustee shall be a party, or any corporation to which
substantially all the corporate trust business of the Indenture Trustee may be
transferred, shall, subject to the terms of paragraph (c) of this Section 8.02,
be the Indenture Trustee under this Indenture without further act.
Notwithstanding the foregoing, upon the request of the Owner Trustee or the
Lessee, any such successor corporation referred to in this Section 8.02(d)
shall deliver to the Owner Trustee and the Lessee an instrument confirming its
status as the Indenture Trustee hereunder and under the other Indenture
Documents.
SECTION 8.03. Appointment of Separate Trustees. (a) At any
time or times, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Trust Indenture Estate may at the time be
located or in which any action of the Indenture Trustee may be required to be
performed or taken, the Indenture Trustee, by an instrument in writing signed
by it, may appoint one or more individuals or corporations to act as separate
trustee or separate trustees or co-trustee, acting jointly with the Indenture
Trustee, of all or any part of the Trust Indenture Estate to the full extent
that local law makes it necessary for such separate trustee or separate
trustees or co-trustee acting jointly with the Indenture Trustee to act.
(b) The Indenture Trustee and, at the request of the Indenture
Trustee, the Owner Trustee, shall execute, acknowledge and deliver all such
instruments as may be required by the legal requirements of any jurisdiction or
by any such separate trustee or separate trustees or co-trustee for the purpose
of more fully confirming such title, rights or duties to such separate trustee
or separate trustees or co-trustee. Upon the acceptance in writing of such
appointment by any such separate trustee or separate trustees or co-trustee,
it, he, she or they shall be vested with such title to the Trust Indenture
Estate or any part thereof, and with such rights and duties, as shall be
specified in the instrument of appointment, jointly with the Indenture Trustee
(except insofar as local law makes it necessary for any such separate trustee
or separate trustees to act alone) subject to all the terms of this Indenture.
Any separate trustee or separate trustees or co-trustee may, at any time by an
instrument in writing, constitute the Indenture Trustee its, his or her
attorney-in-fact and agent with full power and authority to do all acts and
things and to exercise all discretion on its, his or her behalf and in its, his
or her name. In case any such separate trustee or co-trustee shall die, become
incapable of acting, resign or be removed, the title to the Trust Indenture
Estate and all assets, property, rights, powers, trusts, obligations and duties
of such separate trustee or co-trustee shall, so far as permitted by law, vest
in and be exercised by the Indenture Trustee, without the appointment of a
successor to such separate trustee or co-trustee unless and until a successor
is appointed.
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(c) All provisions of this Indenture which are for the benefit
of the Indenture Trustee shall extend to and apply to each separate trustee or
co-trustee appointed pursuant to the foregoing provisions of this Section 8.03,
including without limitation Article VII hereof.
(d) Every additional trustee and separate trustee hereunder
shall, to the extent permitted by law, be appointed and act, and the Indenture
Trustee shall act, subject to the following provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon
the Indenture Trustee in respect of the receipt, custody, investment and
payment of moneys shall be exercised solely by the Indenture Trustee;
(ii) all other rights, powers, duties and obligations conferred
or imposed upon the Indenture Trustee shall be conferred or imposed and
exercised or performed by the Indenture Trustee and such additional
trustee or trustees and separate trustee or trustees jointly except to
the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed, the Indenture Trustee shall
be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the holding
of title to the Trust Indenture Estate in any such jurisdiction) shall
be exercised and performed by such additional trustee or trustees or
separate trustee or trustees;
(iii) no power hereby given to, or with respect to which it is
hereby provided may be exercised by, any such additional trustee or
separate trustee shall be exercised hereunder by such additional trustee
or separate trustee except jointly with, or with the consent of, the
Indenture Trustee; and
(iv) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder.
If at any time the Indenture Trustee shall deem it no longer necessary or
prudent in order to conform to any such law, the Indenture Trustee shall
execute and deliver an indenture supplemental hereto and all other instruments
and agreements necessary or proper to remove any additional trustee or separate
trustee.
(e) Any request, approval or consent in writing by the
Indenture Trustee to any additional trustee or separate trustee shall be
sufficient warrant to such additional trustee or separate trustee, as the case
may be, to take such action as may be so requested, approved or consented to.
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(f) Notwithstanding any other provision of this Section 8.03,
the powers of any additional trustee or separate trustee appointed pursuant to
this Section 8.03 shall not in any case exceed those of the Indenture Trustee
hereunder.
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS TO THIS
INDENTURE AND OTHER DOCUMENTS
SECTION 9.01. Lease Amendments and Supplemental Indentures. (a)
Except as otherwise provided in Section 5.10 hereof, and except with respect to
Excepted Payments, the Owner Trustee agrees that it shall not enter into any
amendment of or supplement to the Lease, or execute and deliver any written
waiver or modification of, or consent under, the terms of the Lease, unless
such supplement, amendment, waiver, modification or consent is consented to in
writing by the Indenture Trustee acting on instructions of a Majority in
Interest of Note Holders. Anything to the contrary contained in this Section
9.01 notwithstanding, without the necessity of the consent of any of the Note
Holders or (as respects clauses (i) and (ii) below) the Indenture Trustee, (i)
any Excepted Rights or Excepted Payments payable to the Owner Trustee or Owner
Participant may be modified, amended, changed or waived in such manner as shall
be agreed to by the Owner Participant and Lessee, (ii) the Owner Trustee and
Lessee may, so long as no Indenture Event of Default has occurred and is
continuing, enter into amendments of or additions to the Lease to modify
Sections 6(d), 9 and 16 and Exhibits B and E (except to the extent that such
amendment would adversely affect the rights or exercise of remedies under
Section 18 of the Lease) so long as such amendments, modifications and changes
do not and would not (A) affect the time of, or reduce the amount of, Basic
Rent or Stipulated Loss Value payments until after the payment in full of all
Secured Obligations, (B) impair the Lien of this Indenture, (C) adversely
affect the value, utility or useful life of the Aircraft or any Engine or (D)
otherwise adversely affect the Note Holders in any material respect and (iii)
the Lessee may effect the re-registration of the Aircraft in accordance with
but always subject to the terms and conditions applicable thereto specified in
Section 11 of the Refunding Agreement and Section 6(e) of the Lease and the
Indenture Trustee may approve any Permitted Sublessee as provided in clause (c)
of the definition of such term set forth in the Lease and may exercise the
rights of the Indenture Trustee under Section 15 of the Refunding Agreement.
For the avoidance of doubt, nothing in this Section 9.01 shall limit in any way
the rights of the Owner Trustee and/or the Owner Participant under Section
5.10(d) to exercise certain rights and powers under the Lease to the exclusion
of the Indenture Trustee and any Note Holder and without the consent of the
Indenture Trustee or any Note Holder.
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The Indenture Trustee is hereby authorized to join in the
execution of any supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Indenture Trustee shall not be obligated to enter into any
such supplemental indenture which adversely affects the Indenture Trustee's own
rights, duties or immunities under this Indenture or otherwise, whether in its
official or individual capacity.
Any supplemental indenture authorized by the provisions of this
Section 9.01 may be executed without the consent of the Note Holders
notwithstanding any of the provisions of this Section 9.01.
(b) Without limiting the provisions of Section 9.01(a) hereof
and subject to Sections 5.10(b) and 5.10(d) hereof, the Indenture Trustee
agrees with the Note Holders that it shall not enter into any amendment, waiver
or modification of, supplement or consent to this Indenture, the Lease, the
Refunding Agreement or the other Indenture Documents, or any other agreement
included in the Trust Indenture Estate, unless such supplement, amendment,
waiver, modification or consent is consented to in writing by a Majority in
Interest of Note Holders, or does not adversely affect the Note Holders in any
material respect. Upon the written request of a Majority in Interest of Note
Holders, the Indenture Trustee shall from time to time enter into any such
supplement or amendment, or execute and deliver any such waiver, modification
or consent, as may be specified in such request and as may be (in the case of
any such amendment, supplement or modification), to the extent such agreement
is required, agreed to by the Owner Trustee and Lessee or, as may be
appropriate, the Manufacturer; provided, however, that, without the consent of
each Holder of an affected Equipment Note then outstanding and of each
Liquidity Provider, no such amendment of or supplement to this Indenture, the
Lease, the Refunding Agreement or any other Indenture Document or waiver or
modification of the terms of, or consent under, any thereof, shall (i) modify
any of the provisions of this Section 9.01, or of Section 2.02, 2.10, 2.13,
4.02, 4.04(e), 5.06 or 5.10 hereof, Section 17 (except to add a Lease Event of
Default) of the Lease, the definitions of "Indenture Event of Default",
"Indenture Default", "Indenture Trustee Event", "Lease Event of Default",
"Lease Default", "Majority in Interest of Note Holders", "Make-Whole Amount" or
"Note Holder", or the percentage of Note Holders required to take or approve
any action hereunder, (ii) reduce the amount, or change the time of payment or
method of calculation of any amount, of Principal Amount, Make-Whole Amount, if
any, or interest with respect to any Equipment Note, or alter or modify the
provisions of Article III hereof with respect to the order of priorities in
which distribution thereunder shall be made as among the Note Holders, the
Owner Trustee and the Lessee, (iii) reduce, modify or amend any indemnities in
favor of the Note Holders, (iv) consent to any change in this Indenture or the
Lease which would permit redemption of Equipment Notes earlier
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than permitted under Section 2.10 hereof, (v) modify any of the provisions of
Section 4(b) of the Lease, or modify, amend or supplement the Lease, any
Assigned Sublease or any Sublease Assignment, or consent to any assignment of
any thereof, in either case releasing the Lessee (or Permitted Sublessee) from
its obligations in respect of the payment of Basic Rent or Stipulated Loss
Value for the Aircraft or altering the absolute and unconditional character of
the obligations of Lessee to pay Rent as set forth in Sections 4(b) and 4(d) of
the Lease (or comparable provisions in any Assigned Sublease) or (vi) permit
the creation of any Lien on the Trust Indenture Estate or any part thereof
other than Permitted Liens or deprive any Note Holder of the benefit of the
Lien of this Indenture on the Trust Indenture Estate, except as provided in
connection with the exercise of remedies under Article IV hereof.
(c) At any time after the date of the consummation of the
Refinancing Transaction, the Owner Trustee and the Indenture Trustee may enter
into one or more agreements supplemental hereto without the consent of any Note
Holder for any of the following purposes: (i)(A) to cure any defect or
inconsistency herein or in the Equipment Notes, or to make any change not
inconsistent with the provisions hereof (provided that such change does not
adversely affect the interests of any Note Holder in its capacity solely as
Note Holder) or (B) to cure any ambiguity or correct any mistake; (ii) to
evidence the succession of another party as the Owner Trustee in accordance
with the terms of the Trust Agreement or to evidence the succession of a new
trustee hereunder pursuant hereto, the removal of the trustee hereunder or the
appointment of any co-trustee or co-trustees or any separate or additional
trustee or trustees; (iii) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee or to make any other provisions with
respect to matters or questions arising hereunder so long as such action shall
not adversely affect the interests of the Note Holders in its capacity solely
as Note Holder or impose upon the Lessee any additional indemnification
obligations; (iv) to correct or amplify the description of any property at any
time subject to the Lien of this Indenture or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subject to the Lien of this Indenture, the Airframe or Engines or any
Replacement Airframe or Replacement Engine; (v) to add to the covenants of the
Owner Trustee for the benefit of the Note Holders, or to surrender any rights
or powers herein conferred upon the Owner Trustee, the Owner Participant or the
Lessee; (vi) to add to the rights of the Note Holders; and (vii) to include on
the Equipment Notes any legend as may be required by law.
(d) Without the consent of the Lessee no amendment or
supplement to this Indenture or waiver or modification of the terms hereof
shall adversely affect the Lessee in any material respect or impose upon the
Lessee any additional indemnification obligations.
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SECTION 9.02. Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Indenture Trustee, the Owner Trustee
and the Note Holders shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for all and any
purposes.
SECTION 9.03. Documents to Be Given to Trustee. The Indenture
Trustee shall be entitled to receive and shall be fully protected in relying
upon an Officers' Certificate and an Opinion of Counsel as conclusive evidence
that any supplemental indenture referred to in Section 9.01 complies with the
applicable provisions of this Indenture.
SECTION 9.04. Notation on Notes in Respect of Supplemental
Indentures. Equipment Notes authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article IX may
bear a notation in form approved by the Indenture Trustee as to any matter
provided for by such supplemental indenture. If the Owner Trustee or the
Indenture Trustee shall so determine, new Equipment Notes so modified as to
conform, in the opinion of the Owner Trustee and the Indenture Trustee, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by the Owner Trustee, authenticated by the Indenture Trustee and
delivered in exchange for the Equipment Notes then outstanding.
SECTION 9.05. Trustees Protected. If, in the opinion of the
institution acting as Owner Trustee under the Trust Agreement or the
institution acting as Indenture Trustee hereunder, any document required to be
executed by it pursuant to the terms of this Article IX affects adversely any
right, duty, immunity or indemnity with respect to such institution under this
Indenture, such institution may in its discretion decline to execute such
document.
SECTION 9.06. Documents Mailed to Note Holders. Promptly after
the execution by the Owner Trustee or the Indenture Trustee of any document
entered into pursuant to this Article IX, the Owner Trustee shall mail, by
certified mail, postage prepaid, conformed copies thereof to the Indenture
Trustee (in such quantities as will permit the Indenture Trustee to distribute
one copy to each Note Holder, and the Indenture Trustee shall mail one such
copy to each Note Holder), but the failure of the Owner Trustee or the
Indenture Trustee to mail such conformed copies shall not impair or affect the
validity of such document. The Indenture Trustee will furnish to each Note
Holder, promptly upon receipt thereof, duplicates or copies of
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all reports, notices, requests, demands, certificates and other instruments
furnished to the Indenture Trustee under the Lease or hereunder to the extent
that the same were not required to have been furnished to such Note Holder
pursuant hereto or to the Lease.
SECTION 9.07. No Request Necessary for Lease Supplement or
Indenture Supplement. Notwithstanding anything contained in this Article IX,
no written request or consent of the Indenture Trustee, any Note Holder or the
Owner Participant pursuant to this Article IX shall be required to enable the
Owner Trustee to enter into any Lease Supplement with the Lessee pursuant to
the terms of the Lease to subject the Aircraft, any Engines or other property
thereto or to release the Aircraft, any Engine or other property therefrom or
to execute and deliver an Indenture Supplement, in each case pursuant to the
terms hereof.
SECTION 9.08. Notices to Liquidity Provider. Any request made
to any Note Holder for consent to any amendment or supplement pursuant to this
Article IX shall be promptly furnished by the Indenture Trustee to each
Liquidity Provider.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Termination of Indenture. Upon payment in full
of the Principal Amount of, Make-Whole Amount, if any, and all accrued and
unpaid interest on and other amounts then due with respect to the Equipment
Notes and provided that there shall then be no other amounts then due to the
Note Holders and the Indenture Trustee hereunder or under the Lease or the
Refunding Agreement or otherwise secured hereby, the Lien of this Indenture
shall be deemed discharged and the security interests in favor of the Indenture
Trustee and the Note Holders hereunder shall terminate, and the Owner Trustee
shall direct the Indenture Trustee to execute and deliver to or as directed in
writing by the Owner Trustee, an appropriate instrument evidencing the
discharge of such Lien and the termination of such security interest in the
Aircraft and release of the Indenture Documents from the assignment and pledge
thereof hereunder, and the Indenture Trustee shall execute and deliver such
instrument as aforesaid and, at the Owner Trustee's expense, will execute and
deliver such other instruments or documents as may be reasonably requested by
the Owner Trustee to give effect to such discharge, termination and release;
provided, however, that this Indenture and the trusts created hereby shall
earlier terminate and this Indenture shall be of no further force or effect as
expressly provided pursuant to Article X hereof or upon any sale or other final
disposition by the Indenture Trustee of all property part of the Trust
Indenture Estate and the final distribution by the Indenture Trustee of all
moneys or other property or proceeds constituting part of the Trust Indenture
Estate in accordance with the terms hereof. Except as aforesaid otherwise
provided,
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this Indenture and the trusts created hereby shall continue in full force and
effect in accordance with the terms hereof.
SECTION 10.02. No Legal Title to Trust Indenture Estate in Note
Holders. No Note Holder shall have legal title to any part of the Trust
Indenture Estate. No transfer, by operation of law or otherwise, of any
Equipment Note or other right, title and interest of any Note Holder in and to
the Trust Indenture Estate or hereunder shall operate to terminate this
Indenture or entitle such Note Holder or any successor or transferee of such
Holder to an accounting or to the transfer to it of legal title to any part of
the Trust Indenture Estate.
SECTION 10.03. Sale of Aircraft by Indenture Trustee is Binding.
Any sale or other conveyance of the Aircraft by the Indenture Trustee made
pursuant to the terms of this Indenture or of the Lease shall bind the Note
Holders and shall be effective to transfer or convey all right, title and
interest of the Indenture Trustee, the Owner Trustee, the Owner Participant and
such Holders in and to the Aircraft. No purchaser or other grantee shall be
required to inquire as to the authorization, necessity, expediency or
regularity of such sale or conveyance or as to the application of any sale or
other proceeds with respect thereto by the Indenture Trustee.
SECTION 10.04. Indenture for Benefit of Owner Trustee, Indenture
Trustee, Owner Participant, Lessee and Note Holders. Nothing in this
Indenture, whether express or implied, shall be construed to give to any Person
other than the Owner Trustee, the Indenture Trustee, the Owner Participant, the
Note Holders, the Lessee and, with respect to any provisions hereof requiring
payment to any Permitted Sublessee, such Permitted Sublessee, any legal or
equitable right, remedy or claim under or in respect of this Indenture.
SECTION 10.05. No Action Contrary to Lessee's Rights Under the
Lease. Notwithstanding any of the provisions of this Indenture or the Trust
Agreement to the contrary, each of the Note Holders, the Indenture Trustee and
the Owner Trustee agrees for the benefit of the Lessee that it will not take
any action contrary to the Lessee's rights under the Lease, including the right
of the Lessee to possession and use and quiet enjoyment of the Aircraft, except
in accordance with the provisions of the Lease.
SECTION 10.06. Notices. Unless otherwise expressly specified
herein, all notices, requests, demands, authorizations, directions, consents,
waivers or documents required or permitted by the terms of this Indenture shall
be in English and in writing, mailed by first-class registered or certified
mail, postage prepaid, or by confirmed telex or telecopy, and (i) if to the
Owner Trustee, addressed to it at its office at ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration
Department (telex: 835437; answerback: WILMTR; telecopy: (▇▇▇) ▇▇▇-▇▇▇▇/8882),
with a copy to the Owner
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Participant at its address set forth in the Refunding Agreement, (ii) if to the
Indenture Trustee, addressed to it at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Department
(telecopy: (▇▇▇) ▇▇▇-▇▇▇▇) or (iii) if to the Owner Participant, the Lessee or
any Note Holder, addressed to such party at such address as such party shall
have furnished by notice to the Owner Trustee and the Indenture Trustee, or,
until an address is so furnished, addressed to the address of such party (if
any) set forth on the signature pages to the Refunding Agreement or in the
Register. Whenever any notice in writing is required to be given by the Owner
Trustee or the Indenture Trustee or any Note Holder to any of the other of
them, such notice shall be deemed and such requirement satisfied when such
notice is received. Any party hereto may change the address to which notices
to such party will be sent by giving notice of such change to the other parties
to this Indenture.
SECTION 10.07. Severability. Any provision of this Indenture
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
SECTION 10.08. No Oral Modifications or Continuing Waivers. No
terms or provisions of this Indenture or the Equipment Notes may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party or other Person against whom enforcement of the change,
waiver, discharge or termination is sought; and any waiver of the terms hereof
or of any Equipment Note shall be effective only in the specific instance and
for the specific purpose given.
SECTION 10.09. Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
each of the parties hereto and the successors and permitted assigns of each,
all as herein provided. Any request, notice, direction, consent, waiver or
other instrument or action by any Note Holder shall bind the successors and
assigns of such Note Holder. This Indenture and the Trust Indenture Estate
shall not be affected by any amendment or supplement to the Trust Agreement or
by any other action taken under or in respect of the Trust Agreement, except
that each reference in this Indenture to the Trust Agreement shall mean the
Trust Agreement as amended and supplemented from time to time to the extent
permitted hereby and thereby. Each Note Holder by its acceptance of an
Equipment Note agrees to be bound by this Indenture and all provisions of the
Refunding Agreement applicable to a Note Holder.
SECTION 10.10. Headings. The headings of the various Articles
and Sections herein and in the table of contents hereto
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are for the convenience of reference only and shall not define or limit any of
the terms or provisions hereof.
SECTION 10.11. Normal Commercial Relations. Anything contained
in this Indenture to the contrary notwithstanding, the Indenture Trustee, the
Owner Trustee, the Owner Participant, any Note Holder or any bank or other
Affiliate of any of them may conduct any banking or other financial
transactions, and have banking or other commercial relationships, with the
Lessee or any Permitted Sublessee fully to the same extent as if this Indenture
were not in effect, including without limitation the making of loans or other
extensions of credit to the Lessee for any purpose whatsoever, whether related
to any of the transactions contemplated hereby or otherwise.
SECTION 10.12. Governing Law; Counterpart Form. THIS INDENTURE
AND THE EQUIPMENT NOTES ISSUED HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING
ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. This Indenture may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 10.13. Section 1110. It is the intention of the parties
that the Owner Trustee, as lessor under the Lease (and the Indenture Trustee as
assignee of the Owner Trustee's rights hereunder), shall be entitled to the
benefits of Section 1110 of the Bankruptcy Code with respect to the right to
take possession of the Aircraft, Airframe, Engines and Parts as provided in the
Lease in the event of a case under Chapter 11 of the Bankruptcy Code in which
Lessee is a debtor, and in any instance where more than one construction is
possible of the terms and conditions hereof or of any other pertinent Operative
Document, each such party agrees that a construction which would preserve such
benefits shall control over any construction which would not preserve such
benefits.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture, as amended and restated, to be duly executed by their respective
officers thereunto duly authorized, as of the day and year first above written,
and acknowledge that this Indenture has been made and delivered in The City of
New York.
WILMINGTON TRUST COMPANY, not in its
individual capacity, except as expressly
provided herein, but solely as Owner Trustee
By:
--------------------------------
Title:
THE CHASE MANHATTAN BANK, not in its
individual capacity, except as expressly
provided herein, but solely as Indenture
Trustee
By:
--------------------------------
Title:
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EXHIBIT A
to
First Amended and Restated
Trust Indenture and Security Agreement
[GPA 1989 BN-11]
TRUST INDENTURE SUPPLEMENT NO. __________
[GPA 1989 BN-11]
TRUST INDENTURE SUPPLEMENT NO. ___ dated _______, ____ of
WILMINGTON TRUST COMPANY, not in its individual capacity but solely as owner
trustee (the "Owner Trustee") under the Trust Agreement [GPA 1989 BN_11] dated
as of December 19, 1989 (as amended, the "Trust Agreement") between Wilmington
Trust Company and the Owner Participant named therein.
W I T N E S S E T H :
WHEREAS, the Trust Indenture and Security Agreement [GPA 1989 BN_
11] dated as of December 19, 1989, as amended and restated as of June __, 1997
(as so amended and restated, the "Indenture") between the Owner Trustee and The
Chase Manhattan Bank (formerly known as Chemical Bank, successor by merger to
Manufacturers Hanover Trust Company), as Indenture Trustee (the "Indenture
Trustee"), provides for the execution and delivery of a supplement thereto
substantially in the form hereof which shall particularly describe the Aircraft
(such term and other defined terms in the Indenture being herein used with the
same meanings) and any Replacement Airframe or Replacement Engine included in
the Trust Indenture Estate, and shall specifically mortgage such Aircraft,
Replacement Airframe or Replacement Engine, as the case may be, to the
Indenture Trustee.
WHEREAS (1), the Original Indenture, as supplemented by Trust
Indenture Supplement No. 1 dated December 29, 1989 subjected to the Lien of
such Original Indenture the airframe and engines described therein, which
Original Indenture and Trust Indenture Supplement No. 1 have been duly recorded
with the Federal Aviation Administration on January 3, 1990, as one document
and assigned Conveyance No. V78689.
WHEREAS (2), 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 Indenture Supplement, together with such counterpart of
the Indenture, is being filed for recordation on the date hereof with the
Federal Aviation Administration as one document.
---------------------------------
(1) This recital to be included in the each Indenture Supplement.
(2) This recital is to be included only in Indenture Supplement No. 2.
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WHEREAS (3), the Owner Trustee has, as provided in the
Indenture, heretofore executed and delivered to the Indenture
Trustee [(4)] Indenture Supplement(s) for the purpose of specifically
subjecting to the Lien of the Indenture certain airframes and/or engines
therein described, which Indenture Supplement(s) is (are) dated and has
(have) been duly recorded with the Federal Aviation Administration as
set forth below, to wit:
Date Recordation Date FAA Document No.
---- ---------------- ---------------
NOW, THEREFORE, This Supplement Witnesseth, that, to secure the
prompt payment of the Principal Amount of, interest on, Make-Whole Amount, if
any, and all other amounts due with respect to, all Equipment Notes from time
to time outstanding under the Indenture and the performance and observance by
the Owner Trustee of all the agreements, covenants and provisions contained in
the Indenture and the Refunding Agreement and the Equipment Notes, for the
benefit of the Note Holders, and the prompt payment of any and all amounts from
time to time owing under the Refunding Agreement by the Owner Trustee, the
Owner Participant and the Lessee in each case to the Note Holders and for the
uses and purposes and subject to the terms and provisions of the Indenture, and
in consideration of the premises and of the covenants contained in the
Indenture, and of the acceptance of the Equipment Notes by the Holders thereof,
and of the sum of $1 paid to the Owner Trustee by the Indenture Trustee at or
before the delivery of the Indenture, the receipt whereof is hereby
acknowledged, the Owner Trustee has granted, bargained, sold, assigned,
transferred, conveyed, mortgaged, pledged and confirmed, and does hereby grant,
bargain, sell, assign, transfer, convey, mortgage, pledge and confirm, unto the
Indenture Trustee, its successors and assigns, for the security and benefit of
the Note Holders from time to time, in the trust created by the Indenture, a
first priority security interest in and mortgage Lien on all estate, right,
title and interest of the Owner Trustee in, to and under the following
described property:
------------------------------
(3) This recital not to be included in Indenture Supplement No. 2.
(4) Insert appropriate number.
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AIRFRAME(S)
( ) airframe(s) identified as follows:
FAA Registration Manufacturer's
Manufacturer Model Number Serial Number
------------ ----- ------ -------------
together with all appliances, equipment, instruments and accessories
(including, without limitation, radio and radar) from time to time thereto
belonging, owned by the Owner Trustee and installed in or appurtenant to said
aircraft.
AIRCRAFT ENGINES
( ) aircraft engines, each such engine having 750 or
more rated takeoff horsepower or the equivalent thereof,
identified as follows:
Manufacturer's
Manufacturer Model Serial Number
------------ ----- --------------
together with all equipment and accessories thereto belonging, by whomsoever
manufactured, owned by the Owner Trustee and installed in or appurtenant to
said aircraft engines.
Together with all substitutions, replacements and renewals of the
property above described, and all property which shall hereafter become
physically attached to or incorporated in the property above described, whether
the same are now owned by the Owner Trustee or shall hereafter be acquired by
it.
As further security for the obligations referred to above and
secured by the Indenture and hereby, the Owner Trustee has granted, bargained,
sold, assigned, transferred, conveyed, mortgaged, pledged and confirmed, and
does hereby grant, bargain, sell, assign, transfer, convey, mortgage, pledge
and confirm, unto the Indenture Trustee, its successors and assigns, for the
security and benefit of the Note Holders from time to time, in the trust
created by the Indenture, all of the estate, right, title and interest of the
Owner Trustee in, to and under the Lease and Lease Supplement [GPA 1989 BN-11]
No. 3 of even date herewith (other than Excepted Payments and Excepted Rights)
covering the property described above.
TO HAVE AND TO HOLD all and singular the aforesaid property unto
the Indenture Trustee, its successors and assigns, for the benefit and security
of the Note Holders from time to time for the uses and purposes and subject to
the terms and provisions set forth in the Indenture.
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This Supplement shall be construed as supplemental to the
Indenture and shall form a part of it, and the Indenture is hereby incorporated
by reference herein and is hereby ratified, approved and confirmed.
This Supplement is being delivered in the State of New York.
AND, FURTHER, the Owner Trustee hereby acknowledges that the
Aircraft and/or Engines referred to in this Supplement and the aforesaid Lease
Supplement has been delivered to the Owner Trustee and is included in the
property of the Owner Trustee covered by all the terms and conditions of the
Trust Agreement, subject to the pledge and mortgage thereof under the
Indenture.
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IN WITNESS WHEREOF, the Owner Trustee has caused this Supplement
to be duly executed by one of its officers thereunto duly authorized on the day
and year first above written.
WILMINGTON TRUST COMPANY, not in its
individual capacity, except as otherwise
expressly provided herein, but solely as
Owner Trustee
By:
--------------------------------
Title:
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SCHEDULE I
MATURITY
PRINCIPAL AMOUNT DATE DEBT RATE
---------------- ---- ---------
Series A...... $
Series B...... $
Series C...... $
Series D...... $
95
EQUIPMENT NOTES AMORTIZATION
SERIES A
Aircraft: N632AW