Indenture
N___U_
Exhibit A-3 to Note Purchase Agreement
FORM OF LEASED AIRCRAFT INDENTURE
TRUST INDENTURE AND SECURITY AGREEMENT
(US Airways, Inc. Trust No. N___U_)
Dated as of __________ __, ____
Between
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
except as expressly stated herein,
but solely as Owner Trustee,
Owner Trustee
and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
Indenture Trustee
EQUIPMENT NOTES COVERING
ONE AIRBUS A330 AIRCRAFT
BEARING U.S. REGISTRATION XXXX N___U_
LEASED BY US AIRWAYS, INC.
THIS AGREEMENT HAS BEEN PREPARED BASED UPON THE ASSUMPTION THAT BOTH
SERIES G AND SERIES C EQUIPMENT NOTES WILL BE ISSUED. IF SERIES C
EQUIPMENT NOTES ARE NOT ISSUED ON A PARTICULAR CLOSING DATE, THIS
AGREEMENT SHALL BE MODIFIED TO REMOVE REFERENCES TO SERIES C EQUIPMENT
NOTES AND TO MAKE OTHER RELATED CHANGES.
TABLE OF CONTENTS
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . 8
ARTICLE II THE EQUIPMENT NOTES . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.01. Form of Equipment Notes. . . . . . . . . . . . 8
SECTION 2.02. Issuance and Terms of Equipment Notes. . . 14
SECTION 2.03. Payments from Trust Indenture Estate Only . 17
SECTION 2.04. Method of Payment . . . . . . . . . . . . . 19
SECTION 2.05. Application of Payments . . . . . . . . . . 22
SECTION 2.06. Termination of Interest in Trust Indenture
Estate . . . . . . . . . . . . . . . . . . . 22
SECTION 2.07. Registration, Transfer and Exchange of
Equipment Notes . . . . . . . . . . . . . . 23
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen
Equipment Notes . . . . . . . . . . . . . . 24
SECTION 2.09. Payment of Expenses on Transfer;
Cancellation . . . . . . . . . . . . . . . . 25
SECTION 2.10. Mandatory Redemptions of Equipment Notes . . 25
SECTION 2.11. Voluntary Redemptions of Equipment Notes . . 26
SECTION 2.12. Redemptions; Notice of Redemption . . . . . 26
SECTION 2.13. Assumption of Equipment Notes by Lessee . . 27
SECTION 2.14. Option to Purchase Equipment Notes . . . . . 28
SECTION 2.15. Subordination . . . . . . . . . . . . . . . 29
ARTICLE III RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE . . . . . . . . . . . . . . . 30
SECTION 3.01. Basic Rent Distribution . . . . . . . . . . 30
SECTION 3.02. Event of Loss; Replacement; Voluntary
Termination; Refinancing . . . . . . . . . . 31
SECTION 3.03. Payments After Event of Default . . . . . . 32
SECTION 3.04. Certain Payments . . . . . . . . . . . . . . 34
SECTION 3.05. Other Payments . . . . . . . . . . . . . . . 35
SECTION 3.06. Payments to Owner Trustee . . . . . . . . . 36
ARTICLE IV COVENANTS OF OWNER TRUSTEE; EVENTS OF
DEFAULT; REMEDIES OF INDENTURE TRUSTEE . . . . . . . . . . . . . . . 36
SECTION 4.01. Covenants of Owner Trustee . . . . . . . . . 36
SECTION 4.02. Event of Default . . . . . . . . . . . . . . 37
SECTION 4.03. Certain Rights . . . . . . . . . . . . . . . 40
SECTION 4.04. Remedies . . . . . . . . . . . . . . . . . . 42
SECTION 4.05. Return of Aircraft, Etc . . . . . . . . . . 45
SECTION 4.06. Remedies Cumulative . . . . . . . . . . . . 47
SECTION 4.07. Discontinuance of Proceedings . . . . . . . 47
SECTION 4.08. Waiver of Past Defaults . . . . . . . . . . 48
SECTION 4.09. Appointment of Receiver . . . . . . . . . . 48
SECTION 4.10. Indenture Trustee Authorized to Execute Bills
of Sale, Etc. . . . . . . . . . . . . . . . 48
SECTION 4.11. Rights of Note Holders to Receive Payment . 49
ARTICLE V DUTIES OF THE INDENTURE TRUSTEE . . . . . . . . . . . . . . 49
SECTION 5.01. Notice of Event of Default . . . . . . . . . 49
SECTION 5.02. Action upon Instructions; Certain Rights and
Limitations . . . . . . . . . . . . . . . . 50
SECTION 5.03. Indemnification. . . . . . . . . . . . . . . 53
SECTION 5.04. No Duties Except as Specified in Trust
Indenture or Instructions . . . . . . . . . 54
SECTION 5.05. No Action Except Under Lease, Trust Indenture
or Instructions . . . . . . . . . . . . . . 54
SECTION 5.06. Replacement Airframes and Replacement Engines 55
SECTION 5.07. Indenture Supplements for Replacements . . . 55
SECTION 5.08. Effect of Replacement . . . . . . . . . . . 55
SECTION 5.09. Investment of Amounts Held by Indenture
Trustee . . . . . . . . . . . . . . . . . . 56
ARTICLE VI THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE . . . . . . . 56
SECTION 6.01. Acceptance of Trusts and Duties. . . . . . 56
SECTION 6.02. Absence of Duties. . . . . . . . . . . . . 57
SECTION 6.03. No Representations or Warranties as to
Aircraft or Documents. . . . . . . . . . . . 58
SECTION 6.04. No Segregation of Monies; No Interest. . . . 58
SECTION 6.05. Reliance; Agreements; Advice of Counsel. . 59
SECTION 6.06. Capacity in Which Acting. . . . . . . . . . 60
SECTION 6.07. Compensation. . . . . . . . . . . . . . . . 60
SECTION 6.08. Instructions from Note Holders. . . . . . . 60
ARTICLE VII INDEMNIFICATION OF INDENTURE TRUSTEE BY OWNER TRUSTEE . . 61
SECTION 7.01. Scope of Indemnification. . . . . . . . . . 61
ARTICLE VIII SUCCESSOR AND SEPARATE TRUSTEES . . . . . . . . . . . . 62
SECTION 8.01. Notice of Successor Owner Trustee. . . . . . 62
SECTION 8.02. Resignation of Indenture Trustee;
Appointment of Successor. . . . . . . . . . 62
SECTION 8.03. Appointment of Additional and Separate
Trustees.. . . . . . . . . . . . . . . . . . 64
ARTICLE IX SUPPLEMENTS AND AMENDMENTS TO THIS TRUST INDENTURE AND OTHER
DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 9.01. Instructions of Majority; Limitations. . . . 66
SECTION 9.02. Trustees Protected. . . . . . . . . . . . . 68
SECTION 9.03. Documents Mailed to Note Holders. . . . . . 69
SECTION 9.04. No Request Necessary for Lease Supplement
or Trust Agreement and Indenture Supplement. 69
ARTICLE X MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 10.01. Termination of Trust Indenture. . . . . . . 69
SECTION 10.02. No Legal Title to Trust Indenture Estate in
Note Holders.. . . . . . . . . . . . . . . . 70
SECTION 10.03. Sale of Aircraft by Indenture Trustee Is
Binding. . . . . . . . . . . . . . . . . . . 70
SECTION 10.04. Trust Indenture for Benefit of Owner Trustee,
Indenture. . . . . . . . . . . . . . . . . . 70
SECTION 10.05. Notices. . . . . . . . . . . . . . . . . . 71
SECTION 10.06. Severability. . . . . . . . . . . . . . . . 71
SECTION 10.07. No Oral Modification or Continuing Waivers. 72
SECTION 10.08. Successors and Assigns. . . . . . . . . . . 72
SECTION 10.09. Headings. . . . . . . . . . . . . . . . . . 72
SECTION 10.10. Normal Commercial Relations. . . . . . . . 72
SECTION 10.11. Governing Law; Counterpart Form. . . . . . . 73
SECTION 10.12. Voting By Note Holders. . . . . . . . . . . 73
SECTION 10.13. Bankruptcy. . . . . . . . . . . . . . . . . 73
SECTION 10.14. No Action Contrary to Lessee's Rights Under
the Lease. . . . . . . . . . . . . . . . . . 73
SCHEDULE I SERIES G . . . . . . . . . . . . . . . . . . SCHEDULE I-1
SERIES C . . . . . . . . . . . . . . . . . . SCHEDULE I-2
SCHEDULE II PASS THROUGH TRUST AGREEMENT AND PASS
THROUGH TRUST SUPPLEMENTS . . . . . . . . SCHEDULE II-1
TRUST INDENTURE AND SECURITY AGREEMENT
(US Airways, Inc. Trust No. N___U_)
TRUST INDENTURE AND SECURITY AGREEMENT (US Airways, Inc. Trust
No. N___U_), dated as of _________ __, ____ (as amended, modified or
supplemented from time to time, this "Trust Indenture"), between FIRST
SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, not
in its individual capacity, except as expressly stated herein, but solely
as Owner Trustee under the Trust Agreement referred to below (together
with its successors under the Trust Agreement, the "Owner Trustee"), and
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION,
a national banking association, as Indenture Trustee hereunder (together
with its successors hereunder, the "Indenture Trustee").
W I T N E S S E T H
WHEREAS, the Owner Participant and the Owner Trustee have
entered into the Trust Agreement whereby, among other things, (i) the
Owner Trustee has established a certain trust for the use and benefit of
the Owner Participant subject, however, to the Trust Indenture Estate
created pursuant hereto for the use and benefit of, and with the priority
of payment to, the holders of Equipment Notes issued hereunder, and (ii)
the Owner Trustee has been authorized and directed to execute and deliver
this Trust Indenture;
WHEREAS, the parties desire by this Trust Indenture, among
other things, (i) to provide for the issuance by the Owner Trustee to the
Pass Through Trustees (or their designee) of the Equipment Notes
evidencing the participation of the Pass Through Trustees in the payment
of Lessor's Cost for the Aircraft, as provided in the Participation
Agreement and (ii) 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 all of the Owner
Trustee's 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 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 2.15 and Article III
hereof;
WHEREAS, all things have been done to make the Equipment Notes,
when executed by the Owner Trustee and authenticated and delivered by the
Indenture Trustee hereunder, the valid, binding and enforceable
obligations of the Owner Trustee; and
WHEREAS, all things necessary to make this Trust Indenture the
valid, binding and legal obligation of the Owner Trustee for the uses and
purposes herein set forth, in accordance with its terms, have been done
and performed and have happened:
GRANTING CLAUSE
NOW, THEREFORE, THIS TRUST INDENTURE AND SECURITY AGREEMENT
WITNESSETH, that, to secure (i) 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 (ii) the performance and observance by the Owner Trustee of
all the agreements, covenants and provisions herein and in the
Participation Agreement and the Equipment Notes contained, for the
benefit of the Note Holders, the Loan Participants and each of the
Indenture Indemnitees and the prompt payment of all amounts from time to
time owing hereunder, under the Participation Agreement and under the
Lease to the Note Holders, the Loan Participants or any Indenture
Indemnitee by the Owner Trustee or Lessee (the "Secured Obligations") 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 for other good and valuable consideration the receipt and
adequacy whereof are hereby acknowledged, the Owner Trustee has granted,
assigned, transferred, conveyed, mortgaged, pledged and confirmed, and
does hereby grant, assign, transfer, convey, mortgage, pledge and
confirm, unto the Indenture Trustee, its successors in trust and assigns,
for the security and benefit of the Note Holders, a first priority
security interest in and mortgage lien on all right, title and interest
of the Owner Trustee in, to and under the following described property,
rights and privileges, other than Excluded Payments (which collectively,
excluding Excluded Payments but including all property hereafter
specifically subjected to the Lien of this Trust Indenture by the Trust
Agreement and Indenture Supplement or any mortgage 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 title as provided herein and in
the Lease), all as more particularly described in the Trust Agreement and
Indenture Supplement executed and delivered with respect to the Aircraft
or any such replacements or substitutions therefor, as provided in this
Indenture;
(2) the Lease and any Lease Supplement and all Rent thereunder
(including, without limitation, all amounts of Basic Rent, EBO Amount,
Supplemental Rent and payments of any kind thereunder (excluding any
Excluded Payments)) and the right to receive Advances thereunder;
(3) the Purchase Agreement (to the extent specified in the
Purchase Agreement Assignment), the Purchase Agreement Assignment, the
Consent and Agreement and the Xxxx of Sale;
(4) all rents, issues, profits, revenues and other income of
the property subjected or required to be subjected to the Lien of this
Indenture;
(5) all insurance and requisition proceeds with respect to the
Aircraft, including but not limited to the insurance required under
Section 11 of the Lease, but excluding insurance proceeds described in
clauses (ii) and (iii) of the definition of Excluded Payments;
(6) all monies and securities from time to time deposited or
required to be deposited with the Indenture Trustee pursuant to any terms
of this Indenture or the Lease or required hereby or by the Lease to be
held by the Indenture Trustee hereunder (other than Excluded Payments);
and
(7) all proceeds of the foregoing.
BUT EXCLUDING from the foregoing and from the Trust Indenture
Estate all Excluded Payments, and the right to enforce and collect the
same, and SUBJECT TO all of the terms and conditions of this Trust
Indenture and the rights of the Owner Trustee and the Owner Participant
hereunder.
Concurrently with the delivery hereof, the Owner Trustee is
delivering to the Indenture Trustee the original executed counterpart of
the Lease and the Lease Supplement No. 1 (to each of which a chattel
paper receipt is attached), and executed copies of the Participation
Agreement, the French Pledge Agreement and the Purchase Agreement
Assignment with the Consent and Agreement attached thereto.
TO HAVE AND TO HOLD all and singular the aforesaid property
unto the Indenture Trustee, and its successors and assigns, in trust for
the benefit and security of the Note Holders, the Loan Participants and
the Indenture Indemnitees except as provided in Section 2.15 and Article
III hereof without any preference, distinction or priority of any one
Equipment Note over any other by reason of priority of time of issue,
sale, negotiation, date of maturity thereof or otherwise for any reason
whatsoever, and for the uses and purposes and in all cases and as to all
property specified in paragraphs (1) through (7) inclusive above, subject
to the terms and provisions set forth in this Trust Indenture.
It is expressly agreed that anything herein contained to the
contrary notwithstanding, the Owner Trustee shall remain liable under
each of the Indenture Agreements to which it is a party to perform all of
the obligations assumed by it thereunder, except to the extent prohibited
or excluded from doing so pursuant to the terms and provisions thereof,
and the Loan Participants, Indenture Indemnitees, Indenture Trustee and
the Note Holders shall have no obligation or liability under the
Indenture Agreements, by reason of or arising out of the assignment
hereunder, nor shall the Loan Participants, Indenture Indemnitees,
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 Agreements to which it is a party,
or, except as herein expressly provided, to make any payment, or to make
any inquiry as to the nature or sufficiency of any payment received by
it, or present or file any claim, or take any action to collect or
enforce the payment of any amounts which may have been assigned to it or
to which it may be entitled at any time or times.
Notwithstanding the above, the Indenture Trustee agrees, for
the benefit of AVSA, S.A.R.L., that in exercising or assigning its rights
under the Purchase Agreement Assignment, the terms and conditions of the
Purchase Agreement Assignment shall apply to, and be binding upon, the
Indenture Trustee.
The Owner Trustee does hereby constitute the Indenture Trustee
the true and lawful attorney of the Owner Trustee, irrevocably, granted
for good and valuable consideration and coupled with an interest and with
full power of substitution, and with full power (in the name of the Owner
Trustee or otherwise) to ask for, require, demand, receive, compound and
give acquittance for any and all monies and claims for monies (in each
case including insurance and requisition proceeds but in all cases
excluding Excluded Payments) due and to become due under or arising out
of the Indenture Agreements, 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. Without limiting the generality of the foregoing, but subject
to the rights of the Owner Trustee and the Owner Participant hereunder,
during the continuance of any Event of Default under this Trust
Indenture, the Indenture Trustee shall have the right under such power of
attorney to accept any offer in connection with the exercise of remedies
as set forth herein of any purchaser to purchase the Airframe and Engines
and upon such purchase to execute and deliver in the name of and on
behalf of the Owner Trustee an appropriate xxxx of sale and other
instruments of transfer relating to the Airframe and Engines, when
purchased by such purchaser, and to perform all other necessary or
appropriate acts with respect to any such purchase, and in its discretion
to file any claim or take any other action or proceedings, either in its
own name or in the name of the Owner Trustee or otherwise, which the
Indenture Trustee may deem necessary or appropriate to protect and
preserve the right, title and interest of the Indenture Trustee in and to
such Rents and other sums and the security intended to be afforded
hereby; provided, however, that no action of the Indenture Trustee
pursuant to this paragraph shall increase the obligations or liabilities
of the Owner Trustee to any Person beyond those obligations and
liabilities specifically set forth in this Trust Indenture and in the
other Operative Documents. Under the Lease, Lessee is directed, so long
as this Trust Indenture shall not have been fully discharged, to make all
payments of Rent (other than Excluded Payments) and all other amounts
which are required to be paid to or deposited with the Owner Trustee
pursuant to the Lease (other than Excluded Payments) directly to, or as
directed by, the Indenture Trustee at such address or addresses as the
Indenture Trustee shall specify, for application as provided in this
Trust Indenture. The Owner Trustee agrees that promptly upon receipt
thereof, it will transfer to the Indenture Trustee any and all monies
from time to time received by it constituting part of the Trust Indenture
Estate, for distribution by the Indenture Trustee pursuant to this Trust
Indenture, except that the Owner Trustee shall accept for distribution
pursuant to the Trust Agreement any amounts distributed to it by the
Indenture Trustee under this Trust 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 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 benefits of the assignment hereunder and of
the rights and powers herein granted. The parties hereto acknowledge
that neither the Owner Trustee nor the Owner Participant shall have any
obligation as to any recording, filing, refiling or re-recording of any
documents or instruments in regard to maintaining the perfection of the
security interests created hereunder, in the Trust Indenture Estate or
any security interest that may be claimed to have been created by the
Lease or the ownership interest of the Owner Trustee in the Aircraft.
The Owner Trustee does hereby warrant and represent that it has
not assigned or pledged, and hereby covenants and agrees that it will not
assign or pledge, so long as the assignment hereunder shall remain in
effect, and the Lien hereof shall not have been released pursuant to
Section 10.01 hereof, any of its right, title or interest hereby
assigned, to anyone other than the Indenture Trustee, and that it will
not, except as otherwise provided in this Trust Indenture and except with
respect to Excluded Payments to which it is entitled, (i) accept any
payment from Lessee under any Indenture Agreement, (ii) enter into any
agreement amending or supplementing any Indenture Agreement, (iii)
execute any waiver or modification of, or consent under, the terms of, or
exercise any rights, powers or privileges under, any Indenture Agreement,
(iv) settle or compromise any claim (other than those relating to an
Excluded Payment) arising under any Indenture Agreement or (v) submit or
consent to the submission of any dispute, difference or other matter
arising under or in respect of any Indenture Agreement to arbitration
thereunder.
The Owner Trustee does hereby further agree that it will not
without the written consent of the Indenture Trustee:
(a) collect or agree to the receipt or collection of any
payment of Rent (other than Excluded Payments), including
Basic Rent, EBO Amount, Termination Value or any other
payment to be made pursuant to Section 9, 10, 19 or 20 of
the Lease prior to the date for the payment thereof
provided for by the Lease or assign, transfer or
hypothecate (other than to the Indenture Trustee
hereunder) any payment of Rent (other than Excluded
Payments), including Basic Rent, EBO Amount, Termination
Value or any other payment to be made pursuant to Section
9, 10, 19 or 20 of the Lease, then due or to accrue in the
future under the Lease in respect of the Airframe and
Engines; or
(b) except as contemplated by the Trust Agreement in
connection with the appointment of a successor owner
trustee, sell, mortgage, transfer, assign or hypothecate
(other than to the Indenture Trustee hereunder) its
interest in the Airframe and Engines or any part thereof
or in any amount to be received by it from the use or
disposition of the Airframe and Engines, other than
amounts distributed to it pursuant to Article III hereof.
It is hereby further agreed that any and all property described
or referred to in the granting clauses hereof which is hereafter acquired
by the Owner Trustee shall ipso facto, and without any further
conveyance, assignment or act on the part of the Owner Trustee or the
Indenture Trustee, become and be subject to the Lien herein granted as
fully and completely as though specifically described herein, but nothing
contained in this paragraph shall be deemed to modify or change the
obligations of the Owner Trustee contained in the foregoing paragraphs.
The Owner Trustee does hereby ratify and confirm the Lease and
does hereby agree that it will not violate any covenant or agreement made
by it therein, herein or in any of the other Owner Trustee Documents.
Notwithstanding the Granting Clause or any of the foregoing
paragraphs, there is hereby excluded from the foregoing sale, transfer,
assignment, grant, pledge and security interest all Excluded Payments.
IT IS HEREBY COVENANTED AND AGREED by and between the parties
hereto as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. For all purposes of this Indenture,
capitalized terms used but not defined herein shall have the respective
meanings set forth or incorporated by reference, and shall be construed
and interpreted in the manner described, in Annex A.
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.
FIRST SECURITY BANK, NATIONAL ASSOCIATION, AS OWNER TRUSTEE UNDER
TRUST AGREEMENT (US AIRWAYS, INC. TRUST NO. N___U_) DATED AS OF
_______ __, ____.
SERIES [___] NON-RECOURSE EQUIPMENT NOTE DUE [___] ISSUED IN
CONNECTION WITH THE AIRBUS A330-___ AIRCRAFT BEARING UNITED STATES
REGISTRATION NUMBER _____.
No.____ Date: [______,__] $________________
INTEREST RATE MATURITY DATE
[____] [___________,_____]
FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its individual
capacity but solely as Owner Trustee (herein in such capacity called the
"Owner Trustee") under that certain Trust Agreement (US Airways, Inc.
Trust No. N___U_), dated as of _________ __, ____, between the Owner
Participant named therein and the Owner Trustee (herein as such Trust
Agreement may be supplemented or amended from time to time called the
"Trust Agreement"), hereby promises to pay to ___________, or the
registered assignee thereof, the principal sum of $_________ (the
"Principal Amount"), together with interest on the amount of 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 Interest
Rate indicated above. The Principal Amount of this Equipment Note shall
be payable on the dates and in the installments as set forth in Schedule
I hereto. Accrued but unpaid interest shall be due and payable in semi-
annual installments commencing __________ 20, ____, and thereafter on
February 20 and August 20 of each year, to and including _______, _____.
Notwithstanding the foregoing, 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. Notwithstanding anything to the
contrary contained herein, 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 with the same force and effect as if made on
such scheduled date and if such payment is made on such next succeeding
Business Day, no interest shall accrue on the amount of such payment from
and after such scheduled date.
For purposes hereof, the term "Trust Indenture" means the Trust
Indenture and Security Agreement (US Airways, Inc. Trust No. N___U_),
dated as of ___________ __, ____, between the Owner Trustee and State
Street Bank and Trust Company of Connecticut, National Association (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
Trust 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).
The holder hereof, by its acceptance of this Equipment Note agrees
that as between it and the Owner Trustee, except as expressly provided in
the Trust Indenture, the Participation Agreement or any other Operative
Document, the obligation to make all payments of the Principal Amount
of, interest on, Make-Whole Amount, if any, and all other amounts due
hereunder and the performance by the Owner Trustee of every obligation or
covenant contained in the Trust Indenture and in the Participation
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 Section
2.03 and Article III of the Trust 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, in its individual
capacity, or the Indenture Trustee is personally liable or liable in any
manner 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 expressly provided in the Trust Indenture or
in the Participation Agreement, for any liability under the Trust
Indenture or the Participation Agreement; provided, however, that nothing
herein contained shall limit, restrict or impair the right of the
Indenture Trustee, subject always to the terms and provisions of the
Trust Indenture, to accelerate the maturity of this Equipment Note upon
occurrence of an Event of Default under the Trust Indenture in accordance
with Section 4.04(b) of the Trust Indenture, to bring suit and obtain a
judgment against the Owner Trustee on this Equipment Note for purposes of
realizing upon the Trust Indenture Estate and to exercise all rights and
remedies provided under the Trust Indenture or otherwise realize upon the
Trust Indenture Estate.
There shall be maintained an Equipment Note 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 Trust Indenture.
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 Trust 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 Trust Indenture, each payment of
an installment of the Principal Amount, Make-Whole Amount, if any, and
interest 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, or,
to the extent permitted by Law, any overdue interest and other amounts
hereunder) to the date of such payment, second, to the payment of the
Principal Amount of this Equipment Note (or portion hereof) then due
(other than by reason of redemption), third, to the payment of Make-Whole
Amount, if any, and any other amount due hereunder or under the Trust
Indenture, and fourth, the balance, if any, remaining thereafter, to the
payment of the Principal Amount hereof remaining unpaid and due by
reason of redemption. The amounts paid pursuant to clause fourth of the
preceding sentence shall be applied to installments of the Principal
Amount of this Equipment Note remaining unpaid in the inverse order of
their normal maturity.
This Equipment Note is one of the Equipment Notes referred to in
the Trust Indenture which have been or are to be issued by the Owner
Trustee pursuant to the terms of the Trust 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 Trust Indenture. Reference is hereby made to the Trust
Indenture and the Participation 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 Trust Indenture, as well
as for a statement of the terms and conditions of the Trust created by
the Trust Indenture, to all of which terms and conditions in the Trust
Indenture and the Participation Agreement each holder hereof agrees by
its acceptance of this Equipment Note.
As provided in the Trust Indenture and subject to certain
limitations therein set forth, this Equipment Note is exchangeable for a
like aggregate Principal Amount of Equipment Notes of different
authorized denominations, as requested by the holder surrendering the
same.
Prior to the due presentment for registration of transfer of this
Equipment Note, the Owner Trustee and the Indenture Trustee shall deem
and treat the Person in whose name this Equipment Note is registered on
the Equipment Note Register as the absolute owner and holder hereof for
the purpose of receiving all amounts payable with respect to this
Equipment Note and for all purposes, 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 [, 2.11](1) and 2.12 of the Trust Indenture but not
otherwise. This Equipment Note is also subject to assumption by Lessee
as provided in Section 2.13 of the Trust Indenture, to exchange and to
purchase by the Owner Participant or the Owner Trustee as provided in
Section 2.14 of the Trust Indenture but not otherwise.
[The indebtedness evidenced by this Equipment Note is, to the
extent and in the manner provided in the Trust Indenture, subordinate and
subject in right of payment to the prior payment in full of the Secured
Obligations (as defined in the Trust Indenture) in respect of Series G
Equipment Notes, 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 its behalf to take such action as
may be necessary or appropriate to effectuate the subordination as
provided in the Trust Indenture and (c) appoints the Indenture Trustee
its attorney-in-fact for such purpose.](2)
-------------------
1 To be inserted for each Series G Equipment Note.
2 To be inserted for Series C Equipment Note.
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 Trust
Indenture or be valid or obligatory for any purpose.
THIS EQUIPMENT NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
* * *
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.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Owner Trustee
By: ____________________________
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OFAUTHENTICATION
This is one of the Equipment Notes referred to in the within-
mentioned Trust Indenture.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee
By: ____________________________
Name:
Title:
SCHEDULE I
EQUIPMENT NOTES AMORTIZATION
Payment Date Principal Amount to be Paid
* * *
SECTION 2.02. Issuance and Terms of Equipment Notes.
The Equipment Notes shall be dated the date of issuance
thereof, shall be issued in two separate series consisting of Series G
and Series C and in the maturities and principal amounts and shall bear
interest as specified in Schedule I hereto. On the date hereof, each
Equipment Note shall be issued to the Pass Through Trustees (or their
designee) under the Pass Through Agreements as set forth in Schedule II
hereto in connection therewith. 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 _________ 20, ____, and on each
February 20 and August 20 thereafter until maturity. The Principal
Amount of each Equipment Note shall be payable on the dates and in the
installments equal to amount as set forth in Schedule I which shall be
attached 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 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 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 with the same force and effect as if
made on such scheduled date and if such payment is made on such next
succeeding Business Day, no interest shall accrue on the amount of such
payment from and after such scheduled date.
The Owner Trustee agrees to pay to the Indenture Trustee for
distribution in accordance with Section 3.04 hereof (i) to the extent not
payable (whether or not in fact paid) under Section 7(a) of the Note
Purchase Agreement (as originally in effect or amended with the consent
of the Owner Participant), an amount or amounts equal to the fees payable
to (x) the Liquidity Provider under Section 2.03 of each Liquidity
Facility and the related Fee Letter (as defined in the Intercreditor
Agreement) multiplied by a fraction the numerator of which shall be the
then outstanding aggregate principal amount of the Series G Equipment
Notes and Series C Equipment Notes and the denominator of which shall be
the then outstanding aggregate principal amount of all "Series G
Equipment Notes" and "Series C Equipment Notes" (in each case as defined
in the relevant Operative Indenture) issued under the Operative
Indentures and (y) the Policy Provider under the Policy Fee Letter (as
defined in the Policy Provider Agreement) multiplied by a fraction the
numerator of which shall be the sum of the then outstanding aggregate
principal amount of the Series G Equipment Notes and the denominator of
which shall be the sum of the then outstanding aggregate principal amount
of all "Series G Equipment Notes" (in each case as defined in the
relevant Operative Indenture) issued under the Operative Indentures; (ii)
(x) the amount equal to interest on any Downgrade Advance (other than any
Applied Downgrade Advance) payable under Section 3.07 of each Liquidity
Facility minus Investment Earnings from such Downgrade Advance multiplied
by (y) the fraction specified in the foregoing clause (i); (iii) (x) the
amount equal to interest on any Non-Extension Advance (other than any
Applied Non-Extension Advance) payable under Section 3.07 of each
Liquidity Facility minus Investment Earnings from such Non-Extension
Advance multiplied by (y) the fraction specified in the foregoing clause
(i); (iv) if any payment default shall have occurred and be continuing
with respect to interest on any Series G Equipment Note or Series C
Equipment Note, (x) the excess, if any, of (1) an amount equal to
interest on any Unpaid Advance, Applied Downgrade Advance or Applied
Non-Extension Advance payable under Section 3.07 of each Liquidity
Facility (or, in the case of the Series G Equipment Notes, if the Policy
Provider has made a payment equivalent to such an Advance, as would have
been payable under Section 3.07 of the applicable Liquidity Facility in
respect of the Class G Pass Through Certificates had such Advance been
made) over (2) the sum of Investment Earnings from any Final Advance plus
any amount of interest at the Past Due Rate actually payable (whether or
not in fact paid) by the Owner Trustee in respect of the overdue
scheduled interest on the Equipment Notes in respect of which such Unpaid
Advance, Applied Downgrade Advance or Applied Non-Extension Advance was
made by the applicable Liquidity Provider (or, in the case of the Series
G Equipment Notes, an equivalent payment was made by the Policy Provider)
multiplied by (y) a fraction the numerator of which shall be the then
aggregate overdue amounts of interest on the Series G Equipment Notes and
Series C Equipment Notes (other than interest becoming due and payable
solely as a result of acceleration of any such Equipment Notes) and the
denominator of which shall be the then aggregate overdue amounts of
interest on all "Series G Equipment Notes" and "Series C Equipment Notes"
(in each case as defined in the relevant Operative Indenture) issued
under the Operative Indentures (other than interest becoming due and
payable solely as a result of acceleration of any such "Equipment Notes,"
(in each case as defined in the relevant Operative Indenture) issued
under the Operative Indentures); (v) any other amounts owed to the
Liquidity Provider by the Subordination Agent as borrower under each
Liquidity Facility (other than amounts due as repayment of advances
thereunder or as interest on such advances), except to the extent payable
pursuant to clause (i), (ii), (iii) or (iv) above multiplied by the
fraction specified in the foregoing clause (i); and (vi) all amounts for
which the Policy Provider is entitled to reimbursement under Section
3.7(i) of the Intercreditor Agreement multiplied by the fraction
specified in the foregoing clause (i). For purposes of this paragraph,
the terms "Applied Downgrade Advance", "Applied Non-Extension Advance",
"Cash Collateral Account", "Downgrade Advance", "Final Advance",
"Investment Earnings", "Non-Extension Advance" and "Unpaid Advance" shall
have the meanings specified in each Liquidity Facility or the
Intercreditor Agreement.
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, 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 entitled to any benefit under this Trust
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, liens or security interests of the Note Holders
under this Trust Indenture, each Note Holder, by its acceptance of an
Equipment Note, agrees that as between it and the Owner Trustee, except
as expressly provided in this Trust Indenture, the Participation
Agreement or any other Operative Document, (i) the obligation to make all
payments 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 Trust Indenture and in the Participation 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 Trust Indenture and any agreement referred to herein
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 Trust Indenture or such other agreements to the contrary
notwithstanding (except for any express provisions or representations
that the Owner Trustee is responsible for, or is making, in its
individual capacity, for which there would be personal liability of the
Owner Trustee), no recourse shall be had with respect to this Trust
Indenture or such other agreements against the Owner Trustee in its
individual capacity 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 Owner Trustee, in its individual
capacity, 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 Participation Agreement or any of the other Operative Documents
or under the Equipment Notes except as expressly provided herein or in
the Participation Agreement; provided, however, that nothing contained in
this Section 2.03(a) shall be construed to limit the exercise and
enforcement in accordance with the terms of this Trust Indenture or such
other agreements of rights and remedies against the Trust 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 Owner Trustee (in its individual capacity) or
the Owner Participant is required, by reason of the Owner Trustee (in its
individual capacity) or the Owner Participant being held to have recourse
liability to any Note Holder or the Indenture Trustee, directly or
indirectly (other than the recourse liability of the Owner Trustee (in
its individual capacity)), to make payment on account of any amount
payable as principal, 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 Indenture Excess
Amount (as hereinafter defined) which reflects any payment by the Owner
Trustee (in its individual capacity) or the Owner Participant on account
of clause (ii) above, then such Note Holder or the Indenture Trustee, as
the case may be, shall promptly refund to the Owner Trustee (in its
individual capacity) or the Owner Participant (whichever shall have made
such payment) such Indenture Excess Amount.
For purposes of this Section 2.03(b), "Indenture 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 Owner
Trustee (in its individual capacity) 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 Owner Trustee (in
its individual capacity) or the Owner Participant under the Participation
Agreement or this Trust Indenture (and any exhibits or annexes hereto or
thereto) or by separate agreement or from retaining any amount paid by
Owner Participant under Section 2.14 or 4.03 hereof.
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 11:00 a.m., 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. The Owner Trustee
shall not have any responsibility for the distribution of such payment to
any Note Holder. Notwithstanding the foregoing or any provision in any
Equipment Note to the contrary, the Indenture Trustee will use reasonable
efforts to pay or cause to be paid, if so directed in writing by any Note
Holder (with a copy to the Owner Trustee), all amounts paid by the Owner
Trustee hereunder and under such holder's Equipment Note or Equipment
Notes to such holder or a nominee therefor (including all amounts
distributed pursuant to Article III of this Trust 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, agrees
to compensate such holders for loss of use of funds at the Federal Funds
Rate 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 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 Trust 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 in view
of the time of day when the funds to be so transferred were received by
it if such funds were received after 11:00 a.m., 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 Equipment Note 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. So long as any signatory to
the Participation 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 I thereto and otherwise in the manner
provided in or pursuant to the Participation Agreement unless it shall
have specified some other account or manner of payment by notice to the
Indenture Trustee consistent with this Section 2.04.
(b) The Indenture Trustee, as agent for the Owner Trustee,
shall exclude and withhold at the appropriate rate from each payment of
Principal Amount of, interest on, Make-Whole Amount, if any, and other
amounts due hereunder or under each Equipment Note (and such exclusion
and withholding shall constitute payment in respect of such Equipment
Note) any and all United States withholding taxes applicable thereto as
required by Law. The Indenture Trustee agrees to act as such withholding
agent and, in connection therewith, whenever any present or future United
States taxes or similar charges are required to be withheld with respect
to any amounts payable hereunder or in respect of the Equipment Notes, to
withhold such amounts (and such withholding shall constitute payment in
respect of such Equipment Note) and timely pay the same to the
appropriate authority in the name of and on behalf of the Note Holders,
that it will file any necessary United States withholding tax returns or
statements when due, and that as promptly as possible after the payment
thereof it will deliver to each Note Holder (with a copy to the Owner
Trustee and Lessee) appropriate receipts showing the payment thereof,
together with such additional documentary evidence as any such Note
Holder 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, W-8 or W-8BEN (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 or W-8ECI
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), 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 (or such
successor form or forms as may be required by the United States Treasury
Department), if applicable, prior to a payment hereunder or under the
Equipment Notes held by such holder, no amount shall be withheld from
payments in respect of United States federal income tax. If any Note
Holder has notified the Indenture Trustee that any of the foregoing forms
or certificates is withdrawn or inaccurate, or if such holder has not
filed a form claiming an exemption from United States withholding tax or
if the Code or the regulations thereunder or the administrative
interpretation thereof are at any time after the date hereof amended to
require such withholding of United States federal income taxes from
payments under the Equipment Notes held by such holder, the Indenture
Trustee agrees to withhold from each payment due to the relevant Note
Holder withholding taxes at the appropriate rate under Law and 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. Neither the Owner Participant nor the Owner Trustee
shall be liable if the Indenture Trustee fails to withhold withholding
taxes in accordance with this Section 2.04 or if any Note Holder provides
false or inaccurate information on any form required to be delivered
under this Section 2.04.
SECTION 2.05. Application of Payments.
In the case of each Equipment Note, each payment of Principal
Amount, Make-Whole Amount, if any, and interest or other amounts due
thereon shall be applied:
First: to the payment of accrued interest on such Equipment
Note (as well as any interest on any overdue Principal Amount, any
overdue Make-Whole Amount, if any, and to the extent permitted by Law,
any overdue interest 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 (other than by
reason of redemption);
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
and due by reason of redemption (provided that such Equipment Note shall
not be subject to redemption except as provided in Sections 2.10, 2.11
and 2.12 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. Notwithstanding the
foregoing, each indemnity payment or payment of transaction costs or
expenses received hereunder or under another Operative Document shall be
applied for the purpose (directly or by reimbursement) for which such
amount was paid.
SECTION 2.06. Termination of Interest in Trust Indenture
Estate.
A Note Holder and Indenture Indemnitees shall not, as such,
have any further interest in, or other right with respect to, the Trust
Indenture Estate when and if the Secured Obligations due to such Note
Holder or Indenture Indemnitee shall have been paid in full.
SECTION 2.07. Registration, Transfer and Exchange of
Equipment Notes.
The Indenture Trustee shall keep a register (the "Equipment
Note 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 Equipment Note Register
shall be kept at the Corporate Trust Office of the Indenture Trustee.
The Indenture Trustee is hereby appointed "Equipment Note 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 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 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 Trust 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 Trust Indenture, as the Equipment Notes surrendered upon such
registration of transfer or exchange. Every Equipment Note presented or
surrendered for registration of transfer, shall (if so required by the
Indenture Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by the Note Holder or such holder's attorney duly authorized in
writing, and the Indenture Trustee shall require evidence satisfactory to
it as to the compliance of any such transfer with the Securities Act, and
the securities Laws of any applicable state. The Indenture Trustee shall
make a notation on each new Equipment Note of the amount of all payments
of Principal Amount previously made on the old Equipment Note or
Equipment Notes with respect to which such new Equipment Note is issued
and the date to which interest on such old Equipment Note or Equipment
Notes has been paid. Interest shall be deemed to have been paid on such
new Equipment Note to the date on which interest shall have been paid on
such old Equipment Note, and all payments of the Principal Amount marked
on such new Equipment Note, as provided above, shall be deemed to have
been made thereon. The Owner Trustee shall not be required to exchange
any surrendered Equipment Notes as provided above during the ten-day
period preceding the due date of any payment on such Equipment Note. The
Owner Trustee shall in all cases deem the Person in whose name any
Equipment Note shall have been issued and registered as the absolute
owner and holder of such Equipment Note for the purpose of receiving
payment of all amounts payable by the Owner Trustee with respect to such
Equipment Note and for all purposes until a notice stating otherwise is
received from the Indenture Trustee and such change is reflected on the
Equipment Note Register. 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
Participation Agreement applicable to Note Holders, including Sections 5,
7(a), 7(c), 7(g), 7(h), 7(n), 7(q), 7(u) and 7(z), 9, 12(a), 12(b), 14(b)
and 14(e), and shall be deemed to have represented and warranted (except
as provided above), and covenanted, to the parties to the Participation
Agreement as to the matters represented, warranted and covenanted by the
Purchasers in the Participation Agreement. 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 ten (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
issued in connection with the Aircraft. If the Equipment Note being
replaced has become mutilated, such Equipment Note shall be surrendered
to the Indenture Trustee and a photocopy 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 Owner Trustee, the Owner Participant and the Indenture
Trustee such security or indemnity as may be required by them to save the
Owner Trustee, the Owner Participant and the Indenture Trustee harmless
and evidence satisfactory to 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 "qualified institutional buyer"
of the type referred to in paragraph (a)(l)(i)(A), (B), (D) or (E) of
Rule 144A under the Securities Act (a "QIB") is the holder of any such
destroyed, lost or stolen Equipment Note, then the written indemnity of
such QIB, signed by an authorized officer thereof, in favor of, delivered
to and in form reasonably satisfactory to Lessee, the Owner Participant,
the Owner Trustee and the Indenture Trustee shall be accepted as
satisfactory indemnity and security and no further indemnity or security
shall be required as a condition to the execution and delivery of such
new Equipment Note. Subject to compliance by the Note Holder of the
requirements set forth in this Section 2.08, the Indenture Trustee and
the Owner Trustee shall use all reasonable efforts to issue new Equipment
Notes within ten (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 Equipment Note Registrar, may require payment from
the party requesting such new Equipment Note 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.
(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.
(a) On the date on which Lessee is required pursuant to
Section 10(a)(i) 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 the date of
redemption and all other amounts payable hereunder or under the
Participation Agreement to the Note Holders but without the Make-Whole
Amount.
(b) If the Lease is terminated with respect to the Aircraft by
Lessee pursuant to Section 9, Section 19(b) or Section 20 thereof and
Lessee shall not have assumed all of the obligations of the Owner Trustee
hereunder pursuant to Section 2.13 and Section 7(u) of the Participation
Agreement, on the date the Lease is so terminated all the Equipment Notes
shall be redeemed in whole at a redemption price equal to 100% of the
unpaid Principal Amount thereof, together with accrued interest thereon
to the date of redemption and all other amounts payable hereunder or
under the Participation Agreement to the Note Holders plus the Make-Whole
Amount, if any.
SECTION 2.11. Voluntary Redemptions of Equipment Notes.
All, but not less than, all of the Equipment Notes may be
redeemed by the Owner Trustee with the prior consent of Lessee upon at
least 20 days revocable prior written notice to the Indenture Trustee, at
a redemption price equal to 100% of the unpaid Principal Amount thereof,
together with accrued interest thereon to the date of redemption and all
other amounts payable hereunder or under the Participation Agreement to
the Note Holders plus the Make-Whole Amount, if any.
SECTION 2.12. 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 Trust 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 Equipment Note Register; provided, that in the
case of a redemption to be made pursuant to Section 2.10(b) or Section
2.11, such notice shall be revocable and shall be deemed revoked in the
event that the Lease does not in fact terminate on the specified
termination date or if notice of such redemption shall have been given in
connection with a refinancing of Equipment Notes and the Indenture
Trustee receives written notice of such revocation from Lessee or the
Owner Trustee not later than three days prior to the redemption date.
All notices of redemption shall state: (1) the redemption date, (2) the
applicable basis for determining the redemption price, (3) that on the
redemption date, the redemption price will become due and payable upon
each such Equipment Note, and that, if any such Equipment Notes are then
outstanding, interest on such Equipment Notes shall cease to accrue on
and after such redemption date, and (4) the place or places where such
Equipment Notes are to be surrendered for payment of the redemption
price.
(c) On or before the redemption date, the Owner Trustee (or
any Person on behalf of the Owner Trustee) shall, to the extent an amount
equal to the redemption price for the Equipment Notes to be redeemed or
purchased on the redemption date shall not then be held in the Trust
Indenture Estate, deposit or cause to be deposited with the Indenture
Trustee by 11:00 a.m. 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 (and not deemed revoked as contemplated in the proviso to
Section 2.12(b)), 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 or at any office or agency maintained for
such purposes pursuant to Section 2.07, 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 2.13. Assumption of Equipment Notes by Lessee.
If, in accordance with Section 7(u) of the Participation
Agreement Lessee shall assume (on a full recourse basis) all of the
obligations of the Owner Trustee hereunder, under the Equipment Notes and
all other Operative Documents by supplemental indenture satisfactory to
the Indenture Trustee (which shall contain (i) the provisions
substantially similar to Sections 6, 7, 8, 10, 11 and 12 of the Lease and
(ii) other provisions necessary or advisable to effectuate such
assumption), then upon delivery of such supplemental indenture, payment
by Lessee of all expenses (including reasonable fees and expenses of
counsel) for the Owner Trustee and the Owner Participant and delivery of
an opinion of counsel for Lessee that such assumption has been duly and
validly effected, the Owner Trustee shall be released and discharged from
any further obligations hereunder and under the Equipment Notes and all
other Operative Documents and the Owner Participant shall be released and
discharged from any further obligations under the Participation Agreement
and any other Operative Document to which it is a party, except with
respect to any such obligations that accrued prior thereto.
SECTION 2.14. 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 2.14, 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 Trust Indenture and the Equipment Notes held by
it, and such purchaser or its nominee shall assume all of such holder's
obligations under the Participation Agreement and hereunder.
Such option to purchase the Equipment Notes may be exercised by
the Owner Trustee or the Owner Participant at any time following the
occurrence of 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 Participation Agreement to the holder
thereof. Such option to purchase the Equipment Notes may be exercised:
(i) upon an Indenture Trustee Event or (ii) in the event there shall have
occurred and be continuing a Lease Event of Default, provided, that if
such option is exercised pursuant to this clause (ii) at a time when
there shall have occurred and be continuing for less than one hundred
eighty (180) days a Lease Event of Default, the purchase price thereof
shall equal the price provided in the preceding sentence plus the Make-
Whole Amount, if any.
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 (i) shall
specify a date for such purchase not more than thirty (30) days or less
than fifteen (15) days after the date of such notice and (ii) may specify
that its election of such option is contingent upon the trustee or the
debtor-in-possession in a proceeding involving Lessee under Chapter 11 of
the Bankruptcy Code not entering into an agreement during the Section
1110 Period to perform the Lease. 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 (subject to the provision in clause (ii) of the first
sentence of this paragraph) 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, charges and expenses required pursuant to Section
2.09 in connection with the issuance of such new Equipment Note shall be
borne by the Owner Participant.
SECTION 2.15. 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)
hereof, except as expressly provided in Article III hereof.
(b) By the acceptance of its Equipment Notes of any Series
(other than Series G), 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
2.15 or Article III hereof, it will hold any amount so received in trust
for the Senior Holder (as defined in Section 2.15(c) hereof) and will
forthwith turn over such payment to the Indenture Trustee in the form
received to be applied as provided in Article III hereof.
(c) As used in this Section 2.15, the term "Senior Holder"
shall mean, (i) the Note Holders of Series G until the Secured
Obligations in respect of Series G have been paid in full and (ii) after
the Secured Obligations in respect of Series G 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. Basic Rent Distribution.
Except as otherwise provided in Sections 3.02 and 3.03 hereof,
each installment of Basic Rent, any payment of interest on overdue
installments of Basic Rent [,any payment received from the Owner
Participant pursuant to Section 7(cc) of the Participation Agreement](3)
and any payment received by the Indenture Trustee pursuant to Section
4.03 hereof shall be promptly distributed in the following order of
priority:
------------------
3 For deferred equity transactions only.
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 any overdue Principal Amount and, to the extent permitted by
applicable law, on any overdue interest and any other overdue amounts)
then due under all Series G Equipment Notes shall be distributed to the
Note Holders of Series G ratably, without priority of one over the other,
in the proportion that the amount of such payment or payments then due
under each Series G Equipment Note bears to the aggregate amount of the
payments then due under all Series G Equipment Notes; and (ii) after
giving effect to paragraph (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 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
Second, the balance, if any, of such installment remaining
thereafter shall be distributed to the Owner Trustee free and clear of
the Lien of this Indenture; provided, however, that if an Event of
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 5.09 hereof until whichever of the
following shall first occur: (i) all Events of Default shall have been
cured or waived, in which event such balance shall be distributed as
provided in this clause "Second" without reference to this proviso, (ii)
Section 3.03 hereof shall be applicable, in which event such balance
shall be distributed in accordance with the provisions of such Section
3.03, or (iii) the 120th day after the receipt of such payment in which
case such payment shall be distributed as provided in this clause
"Second" without reference to this proviso.
SECTION 3.02. Event of Loss; Replacement; Voluntary
Termination; Refinancing.
Except as otherwise provided in Section 3.03 hereof, any
payments received by the Indenture Trustee (i) with respect to the
Aircraft as the result of an Event of Loss, (ii) pursuant to a voluntary
termination of the Lease pursuant to Section 9, 19(b) or 20 thereof,
(iii) in connection with a refinancing of the Equipment Notes pursuant to
Section 16 of the Participation Agreement or (iv) in connection with any
optional redemption of the Equipment Notes effected in accordance with
the Operative Documents, shall be applied to redemption of the Equipment
Notes, to payment of the Secured Obligations or to the Indenture Trustee
or any Note Holder under the Participation Agreement by applying such
funds in the following order of priority:
First, (i) to reimburse the Indenture Trustee and the Note
Holders for any reasonable costs or expenses incurred in connection with
such redemption for which they are entitled to reimbursement, or
indemnity by Lessee, under the Operative Documents and then (ii) to pay
any other amounts then due to the Indenture Trustee and the Note Holders
under this Trust Indenture, the Participation Agreement or the Equipment
Notes (other than amounts specified in clause Second below);
Second, (i) to pay the amounts specified in paragraph (i) of
clause "Third" of Section 3.03 hereof plus Make-Whole Amount, if any,
then due and payable in respect of the Series G Equipment Notes; and (ii)
after giving effect to paragraph (i) above, to pay the amounts specified
in paragraph (ii) of clause "Third" of Section 3.03 hereof plus Make-
Whole Amount, if any, then due and payable in respect of the Series C
Equipment Notes; and
Third, as provided in clause "Fourth" of Section 3.03 hereof;
provided, however, that if a Replacement Airframe or Replacement Engine
shall be substituted for the Airframe or Engine subject to such Event of
Loss as provided in Section 10 of the Lease and as permitted by Section
5.06 hereof, any insurance, condemnation or similar proceeds which result
from such Event of Loss and are paid over to the Indenture Trustee shall
be held by the Indenture Trustee as permitted by Section 6.04 hereof
(provided that such moneys shall be invested as provided in Section 5.09
hereof) as additional security for the obligations of Lessee under the
Lessee Documents and, unless otherwise applied pursuant to the Lease,
such proceeds (and such investment earnings) shall be released to Lessee
at Lessee's written request upon the release of such damaged Airframe or
Engine and the replacement thereof as provided in the Lease.
SECTION 3.03. Payments After Event of Default.
Except as otherwise provided in Section 3.04 hereof, all
payments received and amounts held or realized by the Indenture Trustee
(including any amounts realized by the Indenture Trustee from the
exercise of any remedies pursuant to Section 15 of the Lease or Article
IV hereof) after both an Event of Default shall have occurred and be
continuing and the Equipment Notes shall have become due and payable
pursuant to Section 4.04(b) hereof, as well as all payments or amounts
then held by the Indenture Trustee as part of the Trust Indenture Estate,
shall be promptly distributed by the Indenture Trustee in the following
order of priority:
First, so much of such payments or amounts as shall be required
to reimburse the Indenture Trustee for any tax, expense 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 (all such
property being herein called the "Mortgaged Property") pursuant to
Section 4.05(b) hereof) incurred by the Indenture Trustee (to the extent
not previously reimbursed), 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 or the Note Holders in the protection, exercise or
enforcement of any right, power or remedy or any damages sustained by the
Indenture Trustee or any Note Holder, liquidated or otherwise, upon such
Event of Default shall be applied by the Indenture Trustee as between
itself and the Note Holders in reimbursement of such expenses and any
other expenses for which the Indenture Trustee or the Note Holders are
entitled to reimbursement under any Operative Document and all amounts
payable to the other Indenture Indemnitees hereunder and under the
Participation Agreement and the Lease excluding those amounts described
in clauses Second and Third below, and in the case the aggregate amount
to be so distributed is insufficient to pay as aforesaid, then ratably,
without priority of one over the other, in proportion to the amounts owed
each hereunder;
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 such then existing or
prior Note Holders ratably, without priority of one over the 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 hereof;
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 G Equipment Notes, and the accrued but unpaid interest and
other amounts due thereon and all other Secured Obligations in respect of
the Series G Equipment Notes to the date of distribution, shall be
distributed to the Note Holders of Series G, 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 G
Equipment Notes held by each holder plus the accrued but unpaid interest
and other amounts due hereunder or thereunder to the date of
distribution, bears to the aggregate unpaid Principal Amount of all
Series G Equipment Notes held by all such holders plus the accrued but
unpaid interest and other amounts due thereon to the date of
distribution; and (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 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 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 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
Fourth, the balance, if any, of such payments or amounts
remaining thereafter shall be distributed to the Owner Trustee free and
clear of the Lien of this Indenture.
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
no provision as to the application thereof is made in this Trust
Indenture and for which such provision is made in the Lease, the
Participation Agreement or any other Operative Document shall be applied
forthwith to the purpose for which such payment was made in accordance
with the terms of the Lease, the Participation Agreement or such other
Operative Document, as the case may be.
(b) The Indenture Trustee will distribute promptly upon
receipt any indemnity payment received by it from the Owner Trustee or
Lessee in respect of (i) the Indenture Trustee in its individual capacity
or any other Indenture Indemnitees, (ii) any Note Holder, (iii) the
Subordination Agent, (iv) the Liquidity Provider, (v) the Policy Provider
and (vi) the Pass Through Trustees, in each case whether pursuant to
Section 6 of the Participation Agreement or as Supplemental Rent,
directly to the Person entitled thereto. Any payment received by the
Indenture Trustee under the third paragraph of Section 2.02 shall be
distributed to the Subordination Agent to be distributed in accordance
with the terms of the Intercreditor Agreement.
(c) Notwithstanding anything to the contrary contained in this
Article III, any amounts received by the Indenture Trustee which
constitute Excluded Payments shall be distributed promptly upon receipt
by the Indenture Trustee directly to the Person or Persons entitled
thereto.
(d) Notwithstanding any provision of this Trust Indenture to
the contrary, any amounts held by the Indenture Trustee that would, but
for the provisions of Section 3.03 hereof, otherwise be distributed to
Lessee shall, notwithstanding the provisions of said Section, be
distributed to Lessee unless and until a Lease Event of Default shall
have occurred and be continuing.
SECTION 3.05. Other Payments.
Any payments received by the Indenture Trustee for which no
provision as to the application thereof is made in the Lease, the
Participation Agreement, elsewhere in this Trust Indenture or in any
other Operative Document shall be distributed by the Indenture Trustee to
the extent received or realized at any time (i) prior to the payment in
full of all Secured Obligations due the Note Holders, in the order of
priority specified in Section 3.01 hereof subject to the proviso thereto,
and (ii) after payment in full of all Secured Obligations due the Note
Holders, 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.
Further, and except as otherwise provided in Sections 3.02, 3.03 and 3.04
hereof, all payments received and amounts realized by the Indenture
Trustee under the Lease or otherwise with respect to the Aircraft
(including, without limitation, all amounts realized upon the sale or
release of the Aircraft after the termination of the Lease with respect
thereto), to the extent received or realized at any time after payment in
full of all Secured Obligations due the Note Holders, shall be
distributed by the Indenture Trustee in the order of priority specified
in clause (ii) of the immediately preceding sentence of this Section
3.05.
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 (within the time
limits contemplated by Section 2.04(a)) 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 (within the time limits contemplated by
Section 2.04(a)) specified in Schedule I to the Participation Agreement.
ARTICLE IV
COVENANTS OF OWNER TRUSTEE; EVENTS OF
DEFAULT; REMEDIES OF INDENTURE TRUSTEE
SECTION 4.01. Covenants of Owner Trustee.
The Owner Trustee hereby covenants and agrees as follows:
(a) 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 Trust Indenture and all
amounts, if any, payable by it to the Note Holders under the
Participation Agreement;
(b) [Reserved]
(c) in the event the Owner Trustee shall have Actual Knowledge
of an Event of Default, a Default or an Event of Loss, the Owner Trustee
will give prompt written notice of such Event of Default, Default or
Event of Loss to the Indenture Trustee, each Note Holder, Lessee and the
Owner Participant;
(d) the Owner Trustee will furnish to the Indenture Trustee,
promptly upon receipt thereof, duplicates or copies of all reports,
notices, requests, demands, certificates and other instruments furnished
to the Owner Trustee under the Lease, including, without limitation, a
copy of any Termination Notice received pursuant to Section 9(a) of the
Lease, a copy of each notice delivered pursuant to Section 10, 19 or 20
of the Lease and a copy of each report or notice received pursuant to
Section 11(c) of the Lease to the extent that the same shall not be
required to have been furnished to the Indenture Trustee pursuant to the
Lease;
(e) except pursuant to the Operative Documents or with the
consent of the Indenture Trustee (acting pursuant to instructions given
in accordance with Section 9.01 hereof), the Owner Trustee will not
contract for, create, incur, assume or suffer to exist any Debt, and will
not guarantee (directly or indirectly or by an instrument having the
effect of assuring another's payment or performance on any obligation or
capability of so doing, or otherwise), endorse or otherwise be or become
contingently liable, directly or indirectly, in connection with the Debt
of any other Person; and
(f) the Owner Trustee will not enter into any business or
other activity other than the business of owning the Aircraft, the
leasing thereof to Lessee and the carrying out of the transactions
contemplated hereby and by the Lease, the Participation Agreement, the
Trust Agreement and the other Operative Documents.
SECTION 4.02. Event of Default.
"Event of Default" means any of the following events (whatever
the reason for such 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 (provided that any such Lease
Event of Default caused solely by a failure of Lessee to pay to the Owner
Trustee or the Owner Participant when due any amount that is included in
the definition of Excluded Payments shall not constitute an Event of
Default unless notice is given by the Owner Trustee to the Indenture
Trustee that such failure shall constitute an Event of Default); or
(b) the failure of the Owner Trustee to pay when due any
payment of Principal Amount of, interest on, Make-Whole Amount, if any,
or other amount due and payable under any Equipment Note or hereunder
(other than any such failure arising as a result of a Lease Event of
Default or a Lease Default) and such failure shall have continued
unremedied for ten (10) Business Days in the case of any payment of
Principal Amount or interest or Make-Whole Amount, if any, thereon and,
in the case of any other amount, for ten (10) Business Days after the
Owner Trustee or the Owner Participant receives written demand from the
Indenture Trustee or any Note Holder; or
(c) any Lien required to be discharged by the Owner Trustee in
its individual or trust capacity pursuant to Section 7(f) of the
Participation Agreement, or by the Owner Participant pursuant to Section
7(f) of the Participation Agreement shall remain undischarged for a
period of thirty (30) days after the Owner Trustee and the Owner
Participant shall have received written notice from the Indenture Trustee
or any Note Holder of such Lien; or
(d) any representation or warranty made by the Owner
Participant or the Owner Trustee herein, in the Participation Agreement
or in any certificate furnished by the Owner Participant or the Owner
Trustee to the Indenture Trustee or any Note Holder in connection with
the transactions contemplated by the Operative Documents shall prove to
have been false or incorrect when made in any material respect and
continues to be material and adverse to the interests of the Indenture
Trustee or the Note Holders; and if such misrepresentation is capable of
being corrected and if such correction is being sought diligently, such
misrepresentation shall not have been corrected within sixty (60) days
(or, without affecting Section 4.02(f) hereof, in the case of the
representations made in Section 7(a) of the Participation Agreement as to
the citizenship of the Owner Trustee in its individual capacity [or of
the Owner Participant, respectively,](4) as soon as is reasonably
practicable but in any event within sixty (60) days following notice
thereof from the Indenture Trustee or any Note Holder to the Owner
Trustee or the Owner Participant, as the case may be); or
-----------------
4 Delete for foreign OP.
(e) other than as provided in (c) above or (f) below, any
failure by the Owner Trustee or Owner Participant to observe or perform
any other covenant or obligation of the Owner Trustee or Owner
Participant, as the case may be, for the benefit of the Indenture Trustee
or the Note Holders contained in the Participation Agreement, Section
4.01(a) of the Trust Agreement, the Equipment Notes or this Trust
Indenture which is not remedied within a period of sixty (60) days after
notice thereof has been given to the Owner Trustee and the Owner
Participant; or
(f) if at any time when the Aircraft is registered under the
laws of the United States, the Owner Participant shall not be a Citizen
of the United States, and as the result thereof the registration of the
Aircraft under the Transportation Code, and regulations then applicable
thereunder, shall cease to be effective; provided that no Event of
Default shall be deemed to have occurred under this paragraph (f) unless
such circumstances continue unremedied for more than sixty (60) days
after the Owner Participant has Actual Knowledge of the state of facts
that resulted in such ineffectiveness and of such loss of citizenship; or
(g) at any time either (i) the commencement of an involuntary
case or other proceeding in respect of the Owner Participant, the Owner
Trustee or the Trust Estate under the federal bankruptcy Laws, as now
constituted or hereafter amended, or any other applicable federal or
state bankruptcy, insolvency or other similar Law in the United States or
seeking the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Owner Participant, the
Owner Trustee or the Trust Estate or for all or substantially all of its
property, or seeking the winding-up or liquidation of its affairs and the
continuation of any such case or other proceeding undismissed and
unstayed for a period of ninety (90) consecutive days; or (ii) the
commencement by the Owner Participant, the Owner Trustee or the Trust
Estate of a voluntary case or proceeding under the federal bankruptcy
Laws, as now constituted or hereafter amended, or any other applicable
federal or state bankruptcy, insolvency or other similar Law in the
United States, or the consent by the Owner Participant, the Owner Trustee
or the Trust Estate to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or
other similar official) of the Owner Participant, the Owner Trustee or
the Trust Estate or for all or substantially all of its property, or the
making by the Owner Participant, the Owner Trustee or the Trust Estate of
any assignment for the benefit of creditors or the Owner Participant or
the Owner Trustee shall take any action to authorize any of the
foregoing; provided, however, that an event referred to in this Section
4.02(g) with respect to the Owner Participant shall not constitute an
Event of Default if within thirty (30) days of the commencement of the
case or proceeding a final non-appealable order, judgement or decree
shall be entered in such case or proceeding by a court or a trustee,
custodian, receiver or liquidator, to the effect that no part of the
Trust Estate (except for the Owner Participant's beneficial interest
therein) and no right, title or interest under the Trust Indenture Estate
shall be included in, or be subject to, any declaration or adjudication
of, or proceedings with respect to, the bankruptcy, insolvency or
liquidation of the Owner Participant referred to in this Section 4.02(g).
SECTION 4.03. Certain Rights.
The Indenture Trustee shall give the Note Holders, the Owner
Trustee and the Owner Participant prompt written notice of any Event of
Default of which the Indenture Trustee has Actual Knowledge and, if any
such Event of Default results from a Lease Event of Default, shall give
the Note Holders, the Owner Trustee and the Owner Participant not less
than ten (10) Business Days prior written notice of the date (the
"Enforcement Date") on or after which the Indenture Trustee may (subject
to the notice provision set forth in Section 4.04(a)) commence and
consummate the exercise of any remedy or remedies described in Section
4.04, 4.05 or 4.06 hereof, or the exercise of any remedy or remedies
pursuant to the provisions of Section 15 of the Lease; provided, however,
that in the event the Indenture Trustee shall have validly terminated the
Lease (or, in the event of a reorganization proceeding involving Lessee
instituted under Chapter 11 of the Bankruptcy Code, such Lease is
rejected), the Indenture Trustee shall not, without the consent of the
Owner Participant, sell or lease, or otherwise afford the use of, the
Aircraft or any portion thereof to Lessee or any Affiliate thereof.
Without limiting the generality of the foregoing, the Indenture Trustee
shall give the Owner Trustee, the Owner Participant and Lessee at least
ten (10) Business Days prior written notice (which may be given
concurrently with notice of the Enforcement Date) of any declaration of
the Lease to be in default pursuant to Sections 14 and 15 of the Lease or
any termination of the Lease. If an Event of Default shall have occurred
and be continuing, the Owner Trustee shall have the following rights
hereunder, any of which may be exercised directly by the Owner
Participant.
If as a result of the occurrence of an Event of Default in
respect of the nonpayment by Lessee of Basic Rent due under the Lease,
the Indenture Trustee shall have insufficient funds to make any payment
of Principal Amount and interest on any Equipment Note on the day it
becomes due and payable, the Owner Trustee or the Owner Participant may,
but shall not be obligated to, pay the Indenture Trustee prior to the
Enforcement Date, in the manner provided in Section 2.04 hereof, for
application in accordance with Section 3.01 hereof, an amount equal to
the portion of the Principal Amount and interest (including interest, if
any, on any overdue payments of such portion of Principal Amount and
interest) then due and payable on the Equipment Notes, and, unless the
Owner Trustee has cured Events of Default in respect of payments of Basic
Rent on each of the three (3) immediately preceding Basic Rent payment
dates, or the Owner Trustee has cured six (6) previous Events of Default
in respect of payments of Basic Rent, such payment by the Owner Trustee
shall, solely for purposes of this Trust Indenture, be deemed to cure any
Event of Default which would otherwise have arisen on account of the
nonpayment by Lessee of such installment of Basic Rent (but not any other
Default or Event of Default which shall have occurred and be continuing).
If any Event of Default (other than in respect of the
nonpayment of Basic Rent by Lessee) which can be cured by the payment of
money has occurred, the Owner Trustee or the Owner Participant may, but
shall not be obligated to, cure such Event of Default by making such
payment prior to the Enforcement Date as is necessary to accomplish the
observance or performance of the defaulted covenant, condition or
agreement.
Except as hereinafter in this Section 4.03 provided, the Owner
Trustee shall not, as a result of exercising the right to cure any such
Event of Default, obtain any Lien on any of the Mortgaged Property or any
Rent payable under the Lease for or on account of costs or expenses
incurred in connection with the exercise of such right, nor shall any
claim of the Owner Trustee against Lessee or any other party for the
repayment of such costs or expenses impair the prior right and security
interest of the Indenture Trustee in and to the Mortgaged Property. Upon
any payment by the Owner Trustee or the Owner Participant pursuant to the
first or second preceding paragraphs of this Section 4.03, the Owner
Trustee or the Owner Participant, as the case may be, shall be subrogated
to the rights of the Indenture Trustee and the Note Holders in respect of
the Basic Rent which was overdue at the time of such payment and interest
payable by Lessee on account of its being overdue and any Supplemental
Rent in respect of the reimbursement of amounts paid by Owner Trustee
pursuant to the immediately preceding paragraph (but in either case shall
have no rights as a secured party hereunder), and thereafter, the Owner
Trustee or the Owner Participant, as the case may be, shall be entitled
to receive such overdue Basic Rent or Supplemental Rent, as the case may
be, and interest thereon upon receipt thereof by the Indenture Trustee
(and shall be entitled to bring an action against Lessee to enforce such
payment); provided, however, that (i) if the Principal Amount and
interest on the Equipment Notes shall have become due and payable
pursuant to Section 4.04(b) hereof (and such acceleration shall not have
been rescinded pursuant to Section 4.04(b)), such subrogation shall,
until the Principal Amount of, interest on, Make-Whole Amount, if any,
and all other amounts due with respect to all Equipment Notes shall have
been paid in full, be subordinate to the rights of the Indenture Trustee,
the Indenture Indemnitees and the Note Holders in respect of such payment
of overdue Basic Rent, Supplemental Rent and such interest and (ii) the
Owner Trustee shall not be entitled to seek to recover any such payment
(or any payment in lieu thereof) except pursuant to the foregoing right
of subrogation by demand or suit for damages.
SECTION 4.04. Remedies.
(a) Subject to the provisions of Section 2.14 hereof, if an
Event of Default shall have occurred and be continuing and so long as the
same shall continue unremedied, then and in every such case the Indenture
Trustee may, subject to the second paragraph of this Section 4.04(a), on
and after the Enforcement Date if such Event of Default results from a
Lease Event of Default, 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 in effect in the State of New York and,
in the event such Event of Default is also a Lease Event of Default, any
and all of the remedies pursuant to Section 15 of the Lease and may take
possession of all or any part of the properties covered or intended to be
covered by the Lien created hereby or pursuant hereto and may exclude the
Owner Participant, the Owner Trustee and Lessee and all Persons claiming
under any of them wholly or partly therefrom, provided, that (x) in the
case of a sale of the Aircraft, the Indenture Trustee shall give the
Owner Trustee and the Owner Participant, subsequent to the earlier of (I)
the expiration of the Section 1110 Period (as hereinafter defined) and
(II) Lessee's rejection of the Lease in a proceeding instituted under
Chapter 11 of the Bankruptcy Code, twenty (20) days prior written notice
of its intention to sell the Aircraft and (y) in the case of any judicial
proceeding to foreclose the Lien of the Indenture, fifteen (15) days
prior written notice of its intention to initiate such proceeding and,
provided, further, that in the event the Indenture Trustee shall have
validly terminated the Lease (or, in the event of a reorganization
proceeding involving Lessee instituted under Chapter 11 of the Bankruptcy
Code, such Lease is rejected), the Indenture Trustee shall not, without
the consent of the Owner Participant, sell or lease, or otherwise afford
the use of, the Aircraft or any portion thereof to Lessee or any
affiliate thereof. Unless an Event of Default not resulting from or
relating to a Lease Event of Default has occurred and is continuing, the
Owner Participant may bid at any public sale and become the purchaser.
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 Trust Indenture to the contrary
notwithstanding, the Indenture Trustee shall not be entitled to exercise
any remedy hereunder as a result of an Event of Default which arises
solely by reason of one or more events or circumstances which constitute
a Lease Event of Default unless the Indenture Trustee as security
assignee of the Owner Trustee shall have (i) accelerated the maturity of
the Equipment Notes and (ii) exercised or concurrently be exercising one
or more of the remedies provided for in Section 15 of the Lease to
terminate the Lease (in the event that it is not commercially reasonable
to take possession of the Aircraft) 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 sixty (60) days subsequent to the entry of an order for relief
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"), involuntarily stayed or prohibited by applicable law or court
order from exercising such remedies under the Lease (a "Continuous Stay
Period"); provided further, however, that the requirement to exercise one
or more of such remedies under the Lease shall nonetheless be applicable
during a Continuous Stay Period subsequent to the expiration of the
Section 1110 Period to the extent that the continuation of such
Continuous Stay Period subsequent to the expiration of the Section 1110
Period (A) results from an agreement by the trustee or the debtor-in-
possession in such proceeding during the Section 1110 Period with the
approval of the relevant court to perform the Lease in accordance with
Section 1110(a)(1)(A) of the Bankruptcy Code and Lessee continues to
perform as required by Section 1110(a)(1)(A-B) of the Bankruptcy Code or
(B) is an extension of the Section 1110 Period with the consent of the
Indenture Trustee pursuant to Section 1110(b) of the Bankruptcy Code or
(C) results from 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. In the
event that the applicability of Section 1110 of the Bankruptcy Code to
the Aircraft is being contested by Lessee in judicial proceedings, both
the Indenture Trustee and the Owner Trustee shall have the right to
participate in such proceedings.
It is expressly understood and agreed that, subject only
to the immediately preceding paragraph, the inability, described in such
paragraph, of the Indenture Trustee to exercise any right or remedy under
the Lease shall in no event and under no circumstances prevent the
Indenture Trustee from exercising any or all of its rights, powers and
remedies under this Trust Indenture, including, without limitation, this
Article IV.
(b) If an Event of Default 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 delivery of written notice or notices to the Owner Trustee and the
Owner Participant, declare all the 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 (without
Make-Whole Amount) and other amounts due thereunder, shall immediately
become due and payable without presentment, demand, protest or notice,
all of which are hereby waived; provided that if an Event of Default
referred to in clause (g) of Section 4.02 hereof shall have occurred and
be continuing or a Lease Event of Default under Section 14(e) of the
Lease shall have occurred and be continuing, then and in every such case
the unpaid Principal Amount 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;
provided further that in the event of a reorganization proceeding
involving Lessee instituted under Chapter 11 of the Bankruptcy Code, if
no other Lease Event of Default and no other Event of Default (other than
the failure to pay the Principal Amount of the Equipment Notes which by
such declaration have become payable) exists at any time after the
consummation of such proceeding, such declaration shall be automatically
rescinded without any further action on the part of any Note Holder.
This Section 4.04(b), however, is 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 Default and Event of Default
with respect to any covenant or provision of this Trust Indenture shall
have been cured, then and in every such case a Majority in Interest of
Note Holders may (but shall not be obligated to), by written instrument
filed with the Indenture Trustee, rescind and annul the Indenture
Trustee's declaration and its consequences; but no such rescission or
annulment shall extend to or affect any subsequent Default or Event of
Default or impair any right consequent thereon.
Any acceleration pursuant to this Section 4.04(b) shall be
automatically rescinded and any related declaration of an Event of
Default annulled in the event that the Owner Trustee shall have cured, in
accordance with Section 4.03 hereof, the Event of Default that resulted
in such acceleration or declaration.
(c) Any Note Holder shall be entitled, at any sale pursuant to
Section 15 of the Lease or this Section 4.04, to credit against any
purchase price bid at such sale by such holder all or any part of the
unpaid obligations owing to such Note Holder and secured by the Lien of
this Trust Indenture (but only to the extent that such purchase price
would have been paid to such Note Holder pursuant to Article III hereof
if such purchase price were paid in cash and the foregoing provisions of
this subsection (c) were not given effect).
(d) In the event of any sale of the Trust Indenture Estate, or
any part thereof, pursuant to any judgment or decree of any court or
otherwise in connection with the enforcement of any of the terms of this
Trust Indenture, the unpaid Principal Amount of all Equipment Notes then
outstanding, together with accrued interest thereon, and other amounts
due thereunder, shall immediately become due and payable without
presentment, demand, protest or notice, all of which are hereby waived.
(e) 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 Mortgaged
Property or take any action with respect to any Mortgaged Property so
acquired by it if such acquisition or action would cause any Pass Through
Trust to fail to qualify as a "grantor trust" for federal income tax
purposes.
SECTION 4.05. Return of Aircraft, Etc.
(a) If an Event of Default shall have occurred and be
continuing, subject to Sections 4.03 and 4.04 hereof and unless the Owner
Trustee or the Owner Participant shall have elected to purchase the
Equipment Notes, at the request of the Indenture Trustee, the Owner
Trustee shall promptly execute and deliver to the Indenture Trustee such
instruments 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 Mortgaged Property included in the
Trust Indenture Estate to which the Indenture Trustee shall at the time
be entitled hereunder. If the Owner Trustee shall for any reason fail to
execute and deliver such instruments and documents after such request by
the Indenture Trustee, the Indenture Trustee may (i) obtain a judgment
conferring on the Indenture Trustee the right to immediate possession and
requiring the Owner Trustee to execute and deliver such instruments and
documents to the Indenture Trustee, to the entry of which judgment the
Owner Trustee hereby specifically consents to the fullest extent
permitted by applicable law, and (ii) pursue all or part of such
Mortgaged Property wherever it may be found and, in the event that a
Lease Event of Default has occurred and is continuing, may enter any of
the premises of Lessee wherever such Mortgaged Property may be or be
supposed to be and search for such Mortgaged Property and take possession
of and remove such Mortgaged Property. 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 Trust Indenture.
(b) Upon every such taking of possession, the Indenture
Trustee may, from time to time, at the expense of the Mortgaged Property,
make all such expenditures for maintenance, use, operation, storage,
insurance, leasing, control, management, disposition, modifications or
alterations to and of the Mortgaged Property, as it may deem proper. In
each such case, the Indenture Trustee shall have the right to maintain,
use, operate, store, insure, lease, control, manage, dispose of, modify
or alter the Mortgaged Property and to carry on the business and to
exercise all rights and powers of the Owner Participant and the Owner
Trustee relating to the Mortgaged Property, as the Indenture Trustee
shall deem best, including the right to enter into any and all such
agreements with respect to the maintenance, use, operation, storage,
insurance, leasing, control, management, disposition, modification or
alteration of the Mortgaged Property 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 Mortgaged Property and every
part thereof, except Excluded Payments, without prejudice, however, to
the right of the Indenture Trustee under any provision of this Trust
Indenture to collect and receive all cash held by, or required to be
deposited with, the Indenture Trustee hereunder other than Excluded
Payments. Such tolls, rents (including Rent), revenues, issues, income,
products and profits shall be applied to pay the expenses of the
maintenance, use, operation, storage, insurance, leasing, control,
management, disposition, improvement, modification or alteration of the
Mortgaged Property and of conducting the business thereof, and to make
all payments which the Indenture Trustee may be required or may elect to
make, if any, for taxes, assessments, insurance or other proper charges
upon the Mortgaged Property 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 which the Indenture Trustee may be required or authorized to
make under any provision of this Trust 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 with
respect hereto.
SECTION 4.06. Remedies Cumulative.
Each and every right, power and remedy given to the Indenture
Trustee specifically or otherwise in this Trust 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 Lessee or to be an
acquiescence therein.
SECTION 4.07. Discontinuance of Proceedings.
In case the Indenture Trustee shall have instituted any
proceeding to enforce any right, power or remedy under this Trust
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, then and in every such
case the Owner Trustee, the Indenture Trustee and Lessee shall, subject
to any determination in such proceedings, be restored to their former
positions and rights hereunder with respect to the Mortgaged Property,
and all rights, remedies and powers of the Owner Trustee, the Indenture
Trustee or Lessee shall continue as if no such proceedings had been
instituted.
SECTION 4.08. Waiver of Past Defaults.
Upon written instruction from a Majority in Interest of Note
Holders, and subject to Section 5.02 the Indenture Trustee shall waive
any past Default hereunder and its consequences and upon any such waiver
such Default shall cease to exist and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Trust Indenture, but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon; provided, that in
the absence of written instructions from all the Note Holders, the
Indenture Trustee shall not waive any Default (i) in the payment of the
Principal Amount, Make-Whole Amount, if any, and interest and other
amounts due under 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. Appointment of Receiver.
If an Event of Default shall have occurred and be continuing,
the Indenture Trustee shall, as a matter of right, be entitled to the
appointment of a receiver (who may be the Indenture Trustee or any
successor or nominee thereof) for all or any part of the Mortgaged
Property, whether such receivership be incidental to a proposed sale of
the Mortgaged Property or the taking of possession thereof or otherwise,
and the Owner Trustee hereby consents to the appointment of such a
receiver and will not oppose any such appointment. Any receiver appointed
for all or any part of the Mortgaged Property shall be entitled to
exercise all the rights and powers of the Indenture Trustee with respect
to the Mortgaged Property.
SECTION 4.10. Indenture Trustee Authorized to Execute Bills
of Sale, Etc.
The Owner Trustee irrevocably appoints the Indenture Trustee
the true and lawful attorney-in-fact of the Owner Trustee in its name and
stead and on its behalf, for the purpose, if an Event of Default shall
have occurred and be continuing, of effectuating in accordance with
applicable law any sale, assignment, transfer or delivery for the
enforcement of the Lien of this Trust Indenture, whether pursuant to
foreclosure or power of sale, assignments and other instruments as may be
necessary or appropriate, with full power of substitution, the Owner
Trustee hereby ratifying and confirming all that such attorney or any
substitute shall do by virtue hereof in accordance with applicable law.
Nevertheless, if so requested by the Indenture Trustee or any purchaser,
the Owner Trustee shall ratify and confirm any such sale, assignment,
transfer or delivery, by executing and delivering to the Indenture
Trustee or such purchaser all bills of sale, assignments, releases and
other proper instruments to effect such ratification and confirmation as
may be designated in any such request.
SECTION 4.11. Rights of Note Holders to Receive Payment.
Notwithstanding any other provision of this Trust Indenture,
the right of any Note Holder to receive payment of principal of, and
Make-Whole Amount, if any, and interest on an Equipment Note on or after
the respective due dates expressed in such Equipment Note, or to bring
suit for the enforcement of any such payment on or after such respective
dates in accordance with the terms hereof, shall not be impaired or
affected without the consent of such Note Holder.
ARTICLE V
DUTIES OF THE INDENTURE TRUSTEE
SECTION 5.01. Notice of Event of Default.
If the Indenture Trustee shall have Actual Knowledge of an
Event of Default or of a Default arising from a failure to pay Rent, the
Indenture Trustee shall give prompt written notice thereof to the Owner
Trustee, the Owner Participant, Lessee and each Note Holder. Subject to
the terms of Sections 2.14, 4.03, 4.04, 4.08, 5.02 and 5.03 hereof, the
Indenture Trustee shall take such action, or refrain from taking such
action, with respect to such Event of Default or 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, if
the Indenture Trustee shall not have received instructions as above
provided within twenty (20) days after mailing notice of such 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 Event of Default or Default as it shall determine
advisable in the best interests of the Note Holders. If the Indenture
Trustee shall at any time declare the Lease to be in default pursuant to
Section 15 thereof or shall elect to foreclose or otherwise enforce this
Trust Indenture, the Indenture Trustee shall forthwith notify the Owner
Participant, the Note Holders, the Owner Trustee and Lessee. For all
purposes of this Trust Indenture, in the absence of Actual Knowledge on
the part of the Indenture Trustee, the Owner Trustee or the Owner
Participant, the Indenture Trustee, the Owner Trustee or the Owner
Participant, as the case may be, shall not be deemed to have knowledge of
a Default or an Event of Default (except, in the case of the Indenture
Trustee, the failure of Lessee to pay any installment of Basic Rent
within one (1) Business Day after the same shall become due, if any
portion of such installment was then required to be paid to the Indenture
Trustee, which failure shall constitute knowledge of a Default) unless
notified in writing by Lessee, the Owner Trustee, the Owner Participant
or one or more Note Holders.
SECTION 5.02. Action upon Instructions; Certain Rights and
Limitations.
(a) Subject to the terms of Sections 2.14, 4.03, 4.04(a) and
(b), 4.08, 5.01 and 5.03 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, subject to the terms of this Section 5.02, take
such of the following actions as may be specified in such instructions:
(i) give such notice or direction or exercise such right, remedy or power
hereunder as shall be specified in such instructions; (ii) give such
notice or direction or exercise such right, remedy or power under the
Lease, the Participation Agreement, the Purchase Agreement, or any other
part of the Trust Indenture Estate as shall be specified in such
instructions; and (iii) after the occurrence and during the continuance
of an Event of Default, approve as satisfactory to the Indenture Trustee
all matters required by the terms of the Lease to be satisfactory to the
Owner Trustee, it being understood that without the written instructions
of a Majority in Interest of Note Holders, the Indenture Trustee shall
not approve any such matter as satisfactory to the Indenture Trustee;
provided, that anything contained in this Trust Indenture, the Lease or
the other Operative Documents to the contrary notwithstanding:
(1) the Owner Trustee or the Owner Participant may,
without the consent of the Indenture Trustee, demand, collect, xxx
for or otherwise obtain all amounts included in Excluded Payments
from Lessee, exercise any election or option or make any decision or
determination or to give or receive any notice, consent, waiver or
approval in respect of any Excluded Payment and seek legal or
equitable remedies to require Lessee to maintain the insurance
coverage referred to in Section 11 of the Lease; provided, that the
rights referred to in this clause (1) shall not be deemed to include
the exercise of any remedies provided for in Section 15 of the Lease
other than the right to proceed by appropriate court action, either
at law or in equity, to enforce payment by Lessee of such amounts
included in Excluded Payments or performance by Lessee of such
insurance covenant, or to recover damages for the breach thereof or
for specific performance of any covenant of Lessee;
(2) the Indenture Trustee shall not, without the
consent of the Owner Trustee and the Owner Participant, which
consent shall not be withheld if no right or interest of the Owner
Trustee or the Owner Participant shall be diminished or impaired
thereby, (i) enter into, execute and deliver amendments,
modifications, waivers or consents in respect of any of the
provisions of the Lease or any other Operative Document, or (ii)
approve any accountants, engineers, appraisers or counsel as
satisfactory to render services for or issue opinions to the Owner
Trustee pursuant to the Operative Documents;
(3) whether or not a Default or Event of Default under
the Trust Indenture 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 Lessee all notices,
certificates, reports, filings, opinions of counsel and other
documents and all information which any thereof is permitted or
required to give or furnish to the Owner Trustee or Lessor pursuant
to any Operative Document, (ii) to exercise inspection rights
pursuant to Section 12 of the Lease and (iii) to give notices of
default under Section 14 of the Lease;
(4) whether or not a Default or Event of Default
under the Trust Indenture has occurred and is continuing, the Owner
Trustee shall have the right to the exclusion of the Indenture
Trustee to (i) adjust upwards Rent, EBO Amount and Termination
Values as provided in Section 3(c) of the Lease, (ii) to extend the
Term, (iii) to retain all rights with respect to insurance
maintained for its own account which Section 11(b) of the Lease
specifically confers on Lessor or the Owner Participant, (iv) to
exercise, to the extent necessary to enable it to exercise its
rights under Section 4.03 hereof, the rights of Lessor under Section
22 of the Lease and (v) to select counsel with respect to any
opinion relating to tax matters to be delivered solely to the Owner
Participant;
(5) so long as no Indenture Trustee Event has
occurred and is continuing, the Owner Trustee shall have the right,
to the exclusion of the Indenture Trustee, to adjust EBO Amounts and
Termination Values as provided in Section 3(c) of the Lease or to
adjust downward any installment or amount of Basic Rent, EBO Amount
or Termination Value, as such installments and amounts are set forth
in Exhibits B, C and D, respectively, to the Lease, to the extent of
the portion of such installment or amount that would, under Section
3.01, 3.02 or 3.03 hereof, as the case may be, be distributable to
the Owner Trustee or the Owner Participant;
(6) whether or not a Default or Event of Default
under the Trust Indenture has occurred and is continuing, the Owner
Trustee may, without the consent of the Indenture Trustee, (i)
solicit and make bids with respect to the Aircraft under Section 9
of the Lease in respect of a termination of the Lease by Lessee
pursuant to Section 9 thereof, (ii) determine "fair market sales
value" and "fair market rental value" under Section 19 of the Lease
for all purposes except following an Event of Default pursuant to
Section 15 of the Lease, and (iii) make an election pursuant to and
in accordance with the provisions of Section 9(b) of the Lease; and
(7) so long as no Indenture Trustee Event shall have
occurred and be continuing, except as provided in clauses (2) and
(3) above, all other rights of the "Lessor" under the Lease shall be
exercised by the Owner Trustee to the exclusion of the Indenture
Trustee including, without limitation, the right to (i) exercise all
rights with respect to Lessee's use and operation, modification or
maintenance of the Aircraft and any Engine which the Lease
specifically confers on Lessor, and (ii) consent to and approve any
assignment pursuant to Section 13 of the Lease; provided that the
foregoing shall not (A) limit any rights separately granted to the
Indenture Trustee under the Operative Documents, (B) limit the right
of the Indenture Trustee to receive any funds to be delivered to the
"Lessor" under the Lease (except with respect to Excluded Payments)
and under the Purchase Agreement or confer upon the Owner Trustee
the right to adversely affect the validity or enforceability of the
Lien of this Indenture by depriving the Note Holders or other
Indenture Indemnitees of the benefit thereof or (C) confer on the
Owner Trustee the right to agree to any amendment or supplement to
the Lease except in accordance with Article IX.
Notwithstanding anything to the contrary contained herein, the
Indenture Trustee shall have the right, to the exclusion of the Owner
Trustee and the Owner Participant, to (A) declare the Lease to be in
default under Section 15 thereof and (B) subject only to the provisions
of Sections 4.03, 4.04(a) and (b) and 2.14 hereof, exercise the remedies
set forth in such Section 15 (other than in connection with Excluded
Payments) at any time that a Lease Event of Default shall have occurred
and be continuing.
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 specified by Lessee pursuant to Section
7(d) of the Participation Agreement or 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 form of such continuation
statement so to be filed). The Indenture Trustee will furnish to each
Note Holder (and, during the continuation of an Indenture Trustee Event,
to the Owner Trustee and Owner Participant), promptly upon receipt
thereof, duplicates or copies of all reports, notices, requests, demands,
certificates and other instruments furnished to the Indenture Trustee
under the Lease or hereunder, including, without limitation, a copy of
any Termination Notice and a copy of each report or notice received
pursuant to Sections 9(a) and 11(c) of the Lease, respectively, to the
extent that the same shall not have been furnished to such Note Holder
pursuant hereto or to the Lease.
(b) If any Lease Event of Default shall have occurred and be
continuing and the Owner Trustee shall not have cured fully such Lease
Event of Default under and in accordance with Section 4.03 hereof, on
request of a Majority in Interest of Note Holders, the Indenture Trustee
shall declare the Lease to be in default pursuant to Section 15 thereof
and exercise those remedies specified by such Note Holders. The
Indenture Trustee agrees to provide to the Note Holders, the Owner
Trustee, the Owner Participant and Lessee concurrently with such
declaration by the Indenture Trustee, notice of such declaration by the
Indenture Trustee.
SECTION 5.03. Indemnification.
The Indenture Trustee shall not be required to take any action
or refrain from taking any action under Sections 5.01 (other than the
first sentence thereof), 5.02 or Article IV hereof unless the Indenture
Trustee shall have been indemnified to its reasonable satisfaction
against any liability, cost or expense (including counsel fees) which may
be incurred in connection therewith pursuant to a written agreement with
one or more Note Holders. The Indenture Trustee shall not be under any
obligation to take any action under this Trust Indenture and nothing
herein or therein shall require the Indenture Trustee to expend or risk
its own funds or otherwise incur the risk of any financial liability in
the performance 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 written indemnity of any Note Holder who is a QIB, signed by an
authorized officer thereof, in favor of, delivered to and in form
reasonably satisfactory to Indenture Trustee shall be accepted as
reasonable assurance of adequate indemnity). 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 Trust Indenture or any other Operative Document 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 Lease or is otherwise contrary
to Law.
SECTION 5.04. No Duties Except as Specified in Trust
Indenture or Instructions.
The Indenture Trustee shall not have any duty or obligation to
use, operate, store, lease, control, manage, sell, dispose of 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 Trust Indenture or any part of the Trust
Indenture Estate, except as expressly provided by the terms of this Trust
Indenture or as expressly provided in written instructions from Note
Holders as provided in this Trust Indenture; and no implied duties or
obligations shall be read into this Trust Indenture against the Indenture
Trustee. 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 Section 7.01
hereof), promptly take such action as may be necessary duly to discharge
all liens and encumbrances on any part of the Trust Indenture Estate
which result from claims against it in its individual capacity not
related to the ownership of the Aircraft or the administration of the
Trust Indenture Estate or any other transaction pursuant to this Trust
Indenture or any document included in the Trust Indenture Estate.
SECTION 5.05. No Action Except Under Lease, Trust 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 the Aircraft or any other part of the Trust Indenture
Estate except (i) as required by the terms of the Lease or (ii) in
accordance with the powers granted to, or the authority conferred upon,
the Owner Trustee and the Indenture Trustee pursuant to this Trust
Indenture and in accordance with the express terms hereof.
SECTION 5.06. Replacement Airframes and Replacement Engines.
At any time an Airframe or Engine is to be replaced under or
pursuant to Section 10 of the Lease by a Replacement Airframe or
Replacement Engine, if no Lease Event of Default is continuing, the Owner
Trustee shall direct the Indenture Trustee to execute and deliver to the
Owner Trustee an appropriate instrument releasing such Airframe and/or
Engine as appropriate from the Lien of this Trust Indenture and the
Indenture Trustee shall execute and deliver such instrument as aforesaid,
but only upon compliance by Lessee with the applicable provisions of
Section 10 of the Lease and upon receipt by the Indenture Trustee of a
written request from the Owner Trustee, requesting such release and
specifically describing the Airframe and/or Engine(s) so to be released.
SECTION 5.07. Indenture Supplements for Replacements.
If a Replacement Airframe or Replacement Engine is being
substituted as contemplated by Section 10 of the Lease, the Owner Trustee
and the Indenture Trustee agree for the benefit of the Note Holders and
Lessee, subject to fulfillment of the conditions precedent and compliance
by Lessee with its obligations set forth in Section 10 of the Lease and
the requirements of Section 5.06 hereof with respect to such Replacement
Airframe or Replacement Engine, to execute and deliver a Lease Supplement
and a Trust Agreement and Indenture Supplement, as applicable, as
contemplated by Section 10 of the Lease.
SECTION 5.08. Effect of Replacement.
In the event of the substitution of an Airframe or of a
Replacement Engine pursuant to Section 10 of the Lease, (a) all
provisions of this Trust Indenture relating to the Airframe or Engine or
Engines being replaced shall be applicable to such Replacement Airframe
or Replacement Engine or Engines with the same force and effect as if
such Replacement Airframe or Replacement Engine or Engines were the same
airframe or engine or engines, as the case may be, as the Airframe or
Engine or Engines being replaced but for the Event of Loss with respect
to the Airframe or Engine or Engines being replaced, and (b) the
provisions of this Trust Indenture shall no longer be applicable to the
Airframe or Engine or Engines being replaced, which shall be released
from the Lien of this Indenture.
SECTION 5.09. Investment of Amounts Held by Indenture
Trustee.
Any amounts held by the Indenture Trustee as assignee of the
Owner Trustee's rights to hold monies for security pursuant to Section 21
of the Lease shall be held in accordance with the terms of such Section
and the Indenture Trustee agrees, for the benefit of Lessee, to perform
the duties of the Owner Trustee under such Section. Any amounts held by
the Indenture Trustee pursuant to the proviso to the first sentence of
Section 3.01, pursuant to Section 3.02, 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 Cash Equivalents as directed by Lessee so
long as the Indenture Trustee may acquire the same using its best
efforts. Unless otherwise expressly provided in this Trust Indenture,
any income realized as a result of any such investment, 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 Trust 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 such sale is necessary to make a
distribution required by this Trust Indenture.
ARTICLE VI
THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE
SECTION 6.01. Acceptance of Trusts and Duties.
The Indenture Trustee accepts the duties hereby created and
applicable to it and agrees to perform the same but only upon the terms
of this Trust Indenture and agrees to receive and disburse all monies
constituting part of the Trust Indenture Estate in accordance with the
terms hereof. The Owner Trustee, in its individual capacity, and the
Indenture Trustee, in its individual capacity, shall not be answerable or
accountable under any circumstances, except (i) for their own willful
misconduct or gross negligence (other than for the handling of funds, for
which the standard of accountability shall be willful misconduct or
negligence), (ii) in the case of the Indenture Trustee, as provided in
the fourth sentence of Section 2.04(a) hereof and the last sentence of
Section 5.04 hereof, and (iii) for liabilities that may result, in the
case of the Owner Trustee, from the inaccuracy of any representation or
warranty of the Owner Trustee expressly made in its individual capacity
in the Participation Agreement or in Section 6.03 hereof (or in any
certificate furnished to the Indenture Trustee or any Note Holder in
connection with the transactions contemplated by the Operative Documents)
or, in the case of the Indenture Trustee (in its individual capacity),
from the inaccuracy of any representation or warranty of the Indenture
Trustee (in its individual capacity) in the Participation Agreement or
expressly made hereunder. Neither the Owner Trustee nor the Indenture
Trustee shall be liable for any action or inaction of the other or of the
Owner Participant.
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 or 5.02 hereof,
and except as provided in, and without limiting the generality of,
Sections 5.03 and 5.04 hereof and, in the case of the Owner Trustee, 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 Trust 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 or to effect or maintain any such
insurance, whether or not Lessee shall be in default with respect
thereto, (iii) to see to the payment or discharge of any lien or
encumbrance 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 from Lessee, or (v) to inspect the
Aircraft at any time or ascertain or inquire as to the performance or
observance of any of Lessee's covenants under the Lease with respect to
the Aircraft. The Owner Participant shall not have any duty or
responsibility hereunder, including, without limitation, any of the
duties mentioned in clauses (i) through (v) above; provided, that nothing
contained in this sentence shall limit any obligations of the Owner
Participant under the Participation Agreement or relieve the Owner
Participant from any restriction under Section 4.03 hereof.
SECTION 6.03. No Representations or Warranties as to Aircraft
or Documents.
NEITHER THE INDENTURE TRUSTEE IN ITS INDIVIDUAL OR TRUST
CAPACITY NOR THE OWNER TRUSTEE IN ITS INDIVIDUAL CAPACITY OR AS OWNER
TRUSTEE UNDER THE TRUST AGREEMENT, NOR THE OWNER PARTICIPANT MAKES OR
SHALL BE DEEMED TO HAVE MADE AND EACH HEREBY EXPRESSLY DISCLAIMS ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE,
AIRWORTHINESS, VALUE, COMPLIANCE WITH SPECIFICATIONS, CONDITION, DESIGN,
QUALITY, DURABILITY, OPERATION, MERCHANTABILITY OR FITNESS FOR USE FOR A
PARTICULAR PURPOSE OF THE AIRCRAFT OR ANY ENGINE, 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 WHATSOEVER, except the Owner Trustee in its
individual capacity warrants that (i) the Owner Trustee has received on
the Delivery Date whatever title was conveyed to it by Lessee, and (ii)
the Aircraft is free and clear of Lessor Liens attributable to the Owner
Trustee in its individual capacity. Neither the Owner Trustee, in its
individual capacity or as Owner Trustee under the Trust Agreement, nor
the Indenture Trustee, in its individual or trust capacities, makes or
shall be deemed to have made any representation or warranty as to the
validity, legality or enforceability of this Trust Indenture, the Trust
Agreement, the Participation Agreement, the Equipment Notes, the Lease,
the Purchase Agreement, the Purchase Agreement Assignment, or the Consent
and Agreement, or as to the correctness of any statement contained in any
thereof, except for the representations and warranties of the Owner
Trustee made in its individual capacity and the representations and
warranties of the Indenture Trustee, in each case expressly made in this
Trust Indenture or in the Participation Agreement. The Loan
Participants, the Note Holders and the Owner Participant make no
representation or warranty hereunder whatsoever.
SECTION 6.04. No Segregation of Monies; No Interest.
Any monies paid to or retained by the Indenture Trustee
pursuant to any provision hereof and not then required to be distributed
to the Note Holders, 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 or as specifically provided in the Lease and Section 5.09
hereof, and may be deposited under such general conditions as may be
prescribed by Law, and the Indenture Trustee shall not be liable for any
interest thereon (except that the Indenture Trustee shall invest all
monies held as directed by Lessee so long as no Lease Event of Default
has occurred and is continuing (or in the absence of such direction, by
the Majority In Interest of Note Holders)) in Cash Equivalents; provided,
however, 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; Agreements; 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 (or, in the case of the Owner Participant which originally
executed the Participation Agreement, evidence of the approval by the
Executive Committee thereof) of any party to the Participation 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 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 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. 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 Trust Indenture and
to take all action to be taken by it pursuant to the provisions hereof,
and shall not inquire into the authorization of the Owner Trustee with
respect thereto. In the administration of the trusts hereunder, the
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 through agents or attorneys and 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 advice or 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 as herein
and in the Trust Agreement provided, and not in its individual capacity,
except as otherwise expressly provided herein, in the Trust Agreement and
in the Participation Agreement.
SECTION 6.07. Compensation.
The Indenture Trustee shall be entitled to reasonable
compensation, including expenses and disbursements (including the
reasonable fees and expenses of counsel), for all services rendered
hereunder and shall, on and subsequent to an Event of Default hereunder,
have a priority claim on the Trust Indenture Estate for the payment of
such compensation, to the extent that such compensation shall not be paid
by Lessee, and shall have the right, on and subsequent to an Event of
Default hereunder, to use or apply any monies held by it hereunder in the
Trust Indenture Estate toward such payments. The Indenture Trustee
agrees that it shall have no right against the Loan Participants, the
Note Holders, the Owner Trustee or the Owner Participant for any fee as
compensation for its services as trustee under this Trust Indenture.
SECTION 6.08. Instructions from Note Holders.
In the administration of the trusts created hereunder, the
Indenture Trustee shall have the right to seek instructions from a
Majority in Interest of Note Holders should any provision of this Trust
Indenture appear to conflict with any other provision herein or should
the Indenture Trustee's duties or obligations hereunder be unclear, and
the Indenture Trustee shall incur no liability in refraining from acting
until it receives such instructions. The Indenture Trustee shall be
fully protected for acting
in accordance with any instructions received under this Section 6.08.
ARTICLE VII
INDEMNIFICATION OF INDENTURE TRUSTEE BY OWNER TRUSTEE
SECTION 7.01. Scope of Indemnification.
The Owner Trustee, not in its individual capacity, but solely
as Owner Trustee, hereby agrees, except as otherwise provided in Section
2.03 or 2.04(b) hereof, to assume liability for, and does hereby
indemnify, protect, save and keep harmless the Indenture Trustee (in its
individual and trust capacities), and its successors, assigns, agents and
servants, 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 Trust Indenture), claims, actions,
suits, 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 (whether or not
also indemnified against by any other Person under any other document) in
any way relating to or arising out of this Trust Indenture or any other
Operative Document to which it is a party 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, non-acceptance, rejection, ownership,
delivery, lease, possession, use, operation, condition, sale, return or
other disposition of the Aircraft or any Engine (including, without
limitation, latent or 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, to
the extent not reimbursed by Lessee. Notwithstanding any provision to
the contrary herein, the scope of the Owner Trustee's indemnity
obligations under this Section 7.01 shall not exceed the scope of the
indemnity obligations of Lessee under the Participation Agreement and the
Lease; and the Indenture Trustee agrees that, prior to seeking
indemnification from the Trust Indenture Estate, it will demand, and take
such action as it may determine to be reasonable to pursue,
indemnification available to the Indenture Trustee under the Lease or the
Participation Agreement. Notwithstanding the foregoing, the Indenture
Trustee shall not be entitled to any indemnification for any Expenses to
the extent relating to or arising from the willful misconduct or gross
negligence (or negligence in the case of handling funds) of the Indenture
Trustee in the performance of its duties hereunder or resulting from the
inaccuracy of any representation or warranty of the Indenture Trustee (in
its individual capacity) referred to in Section 6.03 hereof, or as
provided in Section 6.01 hereof or in the last sentence of Section 5.04
hereof, or as otherwise excluded by the terms of Sections 6(b) and 6(c)
of the Participation Agreement from Lessee's indemnities under such
Sections. In addition, if necessary, 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 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 Owner Trustee shall be subrogated to the
Indenture Trustee's rights, if any, to payment from Lessee for amounts
paid by the Owner Trustee under this Section 7.01.
ARTICLE VIII
SUCCESSOR 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 including upon any merger,
conversion, consolidation or sale of substantially all of the corporate
trust business of the Owner Trustee pursuant to the Trust Agreement, the
successor Owner Trustee shall give prompt written notice thereof to the
Indenture Trustee, Lessee and the Note Holders.
SECTION 8.02. Resignation 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 thirty (30) days prior
written notice to Lessee, the Owner Trustee, the Owner Participant and
each Note Holder, 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 (but only with the
consent of Lessee, which consent shall not be unreasonably withheld,
except that such consent shall not be necessary if a Lease Event of
Default shall have occurred and be continuing) remove the Indenture
Trustee without cause by an instrument in writing delivered to the Owner
Trustee, Lessee, the Owner Participant 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 a successor Indenture Trustee by an
instrument signed by such holders, which successor, so long as no Lease
Event of Default shall have occurred and be continuing, shall be subject
to Lessee's reasonable approval. If a successor Indenture Trustee shall
not have been appointed within thirty (30) days after such notice of
resignation or removal, the Indenture Trustee, the Owner Trustee, the
Owner Participant or any Note Holder 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.
(b) Any successor Indenture Trustee, however appointed, shall
execute and deliver to the Owner Trustee, the predecessor Indenture
Trustee and Lessee an instrument accepting such appointment and assuming
the obligations of the Indenture Trustee under the Participation
Agreement arising from and after the time of such appointment, and
thereupon such successor Indenture Trustee, without further act, shall
become vested with all the estates, properties, rights, powers and duties
of the predecessor Indenture Trustee hereunder in the trust 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
monies or other property then held by such predecessor Indenture Trustee
hereunder.
(c) Any successor Indenture Trustee, however appointed, shall
be a bank or trust company having its principal place of business in the
United States and having (or whose obligations under the Operative
Documents are guaranteed by an affiliated entity having) a combined
capital and surplus of at least $100,000,000, if there be such an
institution willing, able and legally qualified to perform the duties of
the Indenture Trustee hereunder upon reasonable or customary terms.
(d) Any corporation into which the Indenture Trustee may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which the Indenture Trustee shall be a party, or any corporation to which
substantially all the corporate trust business of the Indenture Trustee
may be transferred, shall, subject to the terms of paragraph (c) of this
Section 8.02, be a successor Indenture Trustee and the Indenture Trustee
under this Trust Indenture without further act.
SECTION 8.03. Appointment of Additional and Separate
Trustees.
(a) Whenever (i) the Indenture Trustee shall deem it necessary
or desirable in order to conform to any law of any jurisdiction in which
all or any part of the Trust Indenture Estate shall be situated or to
make any claim or bring any suit with respect to or in connection with
the Trust Indenture Estate, this Trust Indenture, any other Indenture
Agreement, the Equipment Notes or any of the transactions contemplated by
the Participation Agreement, (ii) the Indenture Trustee shall be advised
by counsel satisfactory to it that it is so necessary or prudent in the
interests of the Note Holders (and the Indenture Trustee shall so advise
the Owner Trustee and Lessee), or (iii) the Indenture Trustee shall have
been requested to do so by a Majority in Interest of Note Holders, then
in any such case, the Indenture Trustee and, upon the written request of
the Indenture Trustee, the Owner Trustee, shall execute and deliver an
indenture supplemental hereto and such other instruments as may from time
to time be necessary or advisable either (1) to constitute one or more
bank or trust companies or one or more Persons approved by the Indenture
Trustee, either to act jointly with the Indenture Trustee as additional
trustee or trustees of all or any part of the Trust Indenture Estate, or
to act as separate trustee or trustees of all or any part of the Trust
Indenture Estate, in each case with such rights, powers, duties and
obligations consistent with this Trust Indenture as may be provided in
such supplemental indenture or other instruments as the Indenture Trustee
or a Majority in Interest of Note Holders may deem necessary or
advisable, or (2) to clarify, add to or subtract from the rights, powers,
duties and obligations theretofore granted any such additional and
separate trustee, subject in each case to the remaining provisions of
this Section 8.03. If the Owner Trustee shall not have taken any action
requested of it under this Section 8.03(a) that is permitted or required
by its terms within 15 days after the receipt of a written request from
the Indenture Trustee so to do, or if an Event of Default shall have
occurred and be continuing, the Indenture Trustee may act under the
foregoing provisions of this Section 8.03(a) without the concurrence of
the Owner Trustee; and the Owner Trustee hereby irrevocably appoints
(which appointment is coupled with an interest) the Indenture Trustee,
its agent and attorney-in-fact to act for it under the foregoing
provisions of this Section 8.03(a) in either of such contingencies. The
Indenture Trustee may, in such capacity, execute, deliver and perform any
such supplemental indenture, or any such instrument, as may be required
for the appointment of any such additional or separate trustee or for the
clarification of, addition to or subtraction from the rights, powers,
duties or obligations theretofore granted to any such additional or
separate trustee. In case any additional or separate trustee appointed
under this Section 8.03(a) shall die, become incapable of acting, resign
or be removed, all the assets, property, rights, powers, trusts, duties
and obligations of such additional or separate trustee shall revert to
the Indenture Trustee until a successor additional or separate trustee is
appointed as provided in this Section 8.03(a).
(b) No additional or separate trustee shall be entitled to
exercise any of the rights, powers, duties and obligations conferred upon
the Indenture Trustee in respect of the custody, investment and payment
of monies and all monies received by any such additional or separate
trustee from or constituting part of the Trust Indenture Estate or
otherwise payable under any Operative Document to the Indenture Trustee
shall be promptly paid over by it to the Indenture Trustee. All other
rights, powers, duties and obligations conferred or imposed upon any
additional or separate trustee shall be exercised or performed by the
Indenture Trustee and such additional or separate trustee jointly except
to the extent that applicable law of any jurisdiction in which any
particular act is to be performed renders the Indenture Trustee
incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations (including the holding of title to
all or part of the Trust Indenture Estate in any such jurisdiction) shall
be exercised and performed by such additional or separate trustee. No
additional or separate trustee shall take any discretionary action except
on the instructions of the Indenture Trustee or a Majority in Interest of
Note Holders. No trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder, except that the
Indenture Trustee shall be liable for the consequences of its lack of
reasonable care in selecting, and Indenture Trustee's own actions in
acting with, any additional or separate trustee. Each additional or
separate trustee appointed pursuant to this Section 8.03 shall be subject
to, and shall have the benefit of Articles IV through VIII and Article X
hereof insofar as they apply to the Indenture Trustee. The powers of any
additional or separate trustee appointed pursuant to this Section 8.03
shall not in any case exceed those of the Indenture Trustee hereunder.
(c) If at any time the Indenture Trustee shall deem it no
longer necessary or desirable in order to conform to any such law or take
any such action or shall be advised by such counsel that it is no longer
so necessary or desirable in the interest of the Note Holders, or in the
event that the Indenture Trustee shall have been requested to do so in
writing by a Majority in Interest of Note Holders, the Indenture Trustee
and, upon the written request of the Indenture Trustee, the Owner
Trustee, shall execute and deliver an indenture supplemental hereto and
all other instruments and agreements necessary or proper to remove any
additional or separate trustee. The Indenture Trustee may act on behalf
of the Owner Trustee under this Section 8.03(c) when and to the extent it
could so act under Section 8.03(a) hereof.
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS TO THIS TRUST INDENTURE
AND OTHER DOCUMENTS
SECTION 9.01. Instructions of Majority; Limitations.
(a) Except as expressly provided in Section 5.02 hereof, and
except with respect to Excluded Payments, the Owner Trustee agrees it
shall not enter into any amendment of or supplement to the Lease, the
Purchase Agreement (to the extent assigned in the Purchase Agreement
Assignment), the Purchase Agreement Assignment, the Consent and
Agreement, or execute and deliver any written waiver or modification of,
or consent under, the terms of the Lease, the Purchase Agreement (to the
extent assigned in the Purchase Agreement Assignment), the Purchase
Agreement Assignment, the Consent and Agreement, unless such supplement,
amendment, waiver, modification or consent is consented to in writing by
the Indenture Trustee and a Majority in Interest of Note Holders.
Anything to the contrary contained herein notwithstanding, without the
necessity of the consent of any of the Note Holders or the Indenture
Trustee, (i) any Excluded Payments payable to the Owner Participant may
be modified, amended, changed or waived in such manner as shall be agreed
to by the Owner Participant and Lessee and (ii) the Owner Trustee and
Lessee may enter into amendments of or additions to the Lease to modify
Section 5 (except to the extent that such amendment would affect the
rights or exercise of remedies under Section 15 of the Lease), Section 9,
Section 19 or Section 20 of the Lease so long as such amendments,
modifications and changes do not and would not affect the time of, or
reduce the amount of, Rent payments (except to the extent expressly
permitted by Section 5.02) until after the payment in full of all Secured
Obligations or otherwise adversely affect the Note Holders.
(b) Without limiting the provisions of Section 9.01(a) hereof
and subject to Section 5.02(a)(2)(i) 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 Trust Indenture, the
Lease, the Purchase Agreement, the Purchase Agreement Assignment, the
Consent and Agreement or the Participation Agreement, 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, but 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, each Liquidity Provider and the Policy Provider, no
such amendment of or supplement to this Trust Indenture, the Lease, the
Purchase Agreement, the Purchase Agreement Assignment, the Consent and
Agreement or the Participation Agreement 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 Sections 2.02, 2.10, 2.11, 2.15,
4.02, 4.04(c), 4.04(d), 5.02 or 5.06 hereof, Section 14 (except to add an
Event of Default) of the Lease, the definitions of "Event of Default",
"Default", "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 Lessee, (iii) reduce, modify or amend
any indemnities in favor of the Note Holders, (iv) consent to any change
in the Trust Indenture or the Lease which would permit redemption of
Equipment Notes earlier than permitted under Section 2.10 or 2.11 hereof
or the purchase of the Equipment Notes other than as permitted by Section
2.14 hereof, (v) modify any of the provisions of Section 3(c)(v) of the
Lease, or modify, amend or supplement the Lease or consent to any
assignment of the Lease, in either case releasing Lessee from its
obligations in respect of the payment of Basic Rent, EBO Amount or
Termination Value for the Aircraft or altering the absolute and
unconditional character of the obligations of Lessee to pay Rent as set
forth in Sections 3 and 19 of the Lease 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 Trust Indenture on the Trust Indenture Estate, except as provided in
connection with the exercise of remedies under Article IV hereof.
Without the consent of Lessee, no amendment or supplement to this Trust
Indenture or waiver or modification of the terms hereof shall adversely
affect Lessee.
(c) At any time after the date hereof, 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; (iv) to
correct or amplify the description of any property at any time subject to
the Lien of this Trust 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 Trust 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 power herein conferred upon the Owner Trustee, the Owner
Participant or 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.
SECTION 9.02. 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 Section 9.01 hereof adversely affects any right, duty, immunity
or indemnity with respect to such institution under this Trust Indenture
or the Lease, such institution may in its discretion decline to execute
such document.
SECTION 9.03. Documents Mailed to Note Holders.
Promptly after the execution by the Owner Trustee or the
Indenture Trustee of any document entered into pursuant to Section 9.01
hereof, the Indenture Trustee shall mail, by first class mail, postage
prepaid, a copy thereof to Lessee and to each Note Holder at its address
last set forth in the Equipment Note Register, but the failure of the
Indenture Trustee to mail such copies shall not impair or affect the
validity of such document.
SECTION 9.04. No Request Necessary for Lease Supplement or
Trust Agreement and Indenture Supplement.
No written request or consent of the Indenture Trustee, the
Note Holders or the Owner Participant pursuant to Section 9.01 hereof
shall be required to enable the Owner Trustee to enter into any Lease
Supplement specifically required by the terms of the Lease or to execute
and deliver a Trust Agreement and Indenture Supplement specifically
required by the terms hereof.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Termination of Trust Indenture.
Upon (or at any time after) payment in full of the Principal
Amount of, Make-Whole Amount, if any, and interest on and all other
amounts due under all Equipment Notes and provided that there shall then
be no other Secured Obligations due to the Note Holders, the Indenture
Indemnitees and the Indenture Trustee hereunder or under the
Participation Agreement, 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 releasing the Aircraft, the Engines,
the Lease, the Purchase Agreement, and the Purchase Agreement Assignment
with the Consent and Agreement attached thereto from the Lien of this
Trust Indenture and the Indenture Trustee shall execute and deliver such
instrument as aforesaid and give written notice thereof to Lessee;
provided, however, that this Trust Indenture and the trusts created
hereby shall earlier terminate and this Trust Indenture shall be of no
further force or effect upon any sale or other final disposition by the
Indenture Trustee of all property constituting part of the Trust
Indenture Estate and the final distribution by the Indenture Trustee of
all monies or other property or proceeds constituting part of the Trust
Indenture Estate in accordance with the terms hereof. Except as
aforesaid otherwise provided, this Trust 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 holder of an Equipment Note 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 Trust Indenture or entitle such holder or any
successor or transferee of such holder to an accounting or to the
transfer to it of any 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 Trust Indenture Estate, or
any part thereof (including any part thereof or interest therein), by the
Indenture Trustee made pursuant to the terms of this Trust Indenture
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 such Trust
Indenture Estate or part thereof. 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. Trust Indenture for Benefit of Owner Trustee,
Indenture Trustee, Owner Participant, Lessee, Note Holders and the Other
Indenture Indemnitees.
Nothing in this Trust Indenture, whether express or implied,
shall be construed to give any Person other than the Owner Trustee, the
Indenture Trustee, the Owner Participant, Lessee, the Indenture
Indemnitees and the Note Holders, any legal or equitable right, remedy or
claim under or in respect of this Trust Indenture.
SECTION 10.05. Notices.
Unless otherwise expressly specified or permitted by the terms
hereof, all notices, requests, demands, authorizations, directions,
consents, waivers or documents provided or permitted by this Trust
Indenture to be made, given, furnished or filed shall be in writing,
personally delivered or mailed by certified mail, postage prepaid, or by
facsimile or confirmed telex, and (i) if to the Owner Trustee, addressed
to it at its office at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000,
Attention: Corporate Trust Department (Telecopy No. (000) 000-0000), with
a copy to the Owner Participant addressed as provided in clause (iii)
below, (ii) if to the Indenture Trustee, addressed to it at its office at
000 Xxxxxx Xxxxxx, Xxxxxxx Square, Hartford, Connecticut 06103-1724,
Attention: Corporate Trust Administration (Telecopy No. (000) 000-0000),
with a copy to State Street Corp., 0 Xxxxxx xx Xxxxxxxxx, 0xx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Corporate Trust Department, Xxxx
X. Xxxxx (Telecopy No. (000) 000-0000), (iii) if to any Participant,
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 Schedule I to the
Participation Agreement or in the Equipment Note Register. Whenever any
notice in writing is required to be given by the Owner Trustee, any
Participant or the Indenture Trustee or any Note Holder or Lessee to any
of the other of them, such notice shall be deemed given and such
requirement satisfied when such notice is received, or if such notice is
mailed by certified mail, postage prepaid, three Business Days after
being mailed, addressed as provided above. 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 Trust Indenture.
SECTION 10.06. Severability.
Any provision of this Trust 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. Any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 10.07. No Oral Modification or Continuing Waivers.
No term or provision of this Trust Indenture or the Equipment
Notes may be changed, waived, discharged or terminated orally, but only
by an instrument in writing signed by the Owner Trustee and the Indenture
Trustee, in compliance with Section 9.01 hereof. 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 10.08. 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
permitted successors and 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 holder.
This Trust 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 Trust Indenture to the Trust Agreement shall mean the
Trust Agreement as amended and supplemented from time to time to the
extent permitted hereby, thereby and by the Participation Agreement.
Each Note Holder by its acceptance of an Equipment Note agrees to be
bound by this Trust Indenture and all provisions of the Participation
Agreement applicable to a Loan Participant or a Note Holder.
SECTION 10.09. Headings.
The headings of the various Articles and Sections herein and in
the table of contents hereto are for convenience of reference only and
shall not define or limit any of the terms or provisions hereof.
SECTION 10.10. Normal Commercial Relations.
Anything contained in this Trust Indenture to the contrary
notwithstanding, the Owner Trustee, the Indenture Trustee, any
Participant or any bank or other Affiliate of such Participant may
conduct any banking or other financial transactions, and have banking or
other commercial relationships, with Lessee, fully to the same extent as
if this Trust Indenture were not in effect, including without limitation
the making of loans or other extensions of credit to Lessee for any
purpose whatsoever, whether related to any of the transactions
contemplated hereby or otherwise.
SECTION 10.11. Governing Law; Counterpart Form.
THIS TRUST INDENTURE HAS BEEN DELIVERED IN NEW YORK, NEW YORK
AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE. THIS TRUST INDENTURE IS BEING
DELIVERED IN THE STATE OF NEW YORK. This Trust Indenture may be executed
by the parties hereto in separate counterparts (or upon separate
signature pages bound together into one or more 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 10.12. Voting By Note Holders.
All votes of the Note Holders shall be governed by a vote of a
Majority in Interest of Note Holders, except as otherwise provided
herein.
SECTION 10.13. Bankruptcy.
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 hereunder), shall be entitled to the benefits of Section
1110 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 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.
SECTION 10.14. No Action Contrary to Lessee's Rights Under the
Lease.
Notwithstanding any of the provisions of this Trust Indenture
or the Trust Agreement to the contrary, the Indenture Trustee will not
take any action contrary to Lessee's rights under the Lease, including
the right to possession and use of, and the quiet enjoyment of, the
Aircraft, except in accordance with provisions of the Lease.
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Indenture to be duly executed by their respective officers thereof duly
authorized as of the day and year first above written.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION, not in its individual
capacity, except as expressly provided herein,
but solely as Owner Trustee
By: _____________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as Indenture
Trustee
By: _______________________________________
Name:
Title:
EXHIBIT A
TO
TRUST INDENTURE AND MORTGAGE
TRUST AGREEMENT AND INDENTURE SUPPLEMENT
(US Airways, Inc. Trust No. N___U_)
This TRUST AGREEMENT AND INDENTURE SUPPLEMENT (US Airways, Inc.
Trust No. N___U_) dated _______ __, _____ (herein called this "Trust
Indenture Supplement") of FIRST SECURITY BANK, NATIONAL ASSOCIATION, not
in its individual capacity, but solely as Owner Trustee (herein called
the "Owner Trustee") under that certain Trust Agreement (US Airways, Inc.
Trust No. N___U_) dated as of ____________ __, ____ (the "Trust
Agreement"), between the Owner Trustee and the Owner Participant named
therein.
W I T N E S S E T H:
WHEREAS, the TRUST INDENTURE AND SECURITY AGREEMENT (US
Airways, Inc. Trust No. N___U_) dated as of _________ __, ____ (as
amended and supplemented to the date hereof, the "Trust Indenture")
between the Owner Trustee and STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, 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, and shall specifically mortgage such Aircraft to
the Indenture Trustee; and
WHEREAS, the Trust Indenture relates to the Airframe and
Engines described below, and a counterpart of the Trust Indenture is
attached hereto and made a part hereof and this Trust Indenture
Supplement, together with such counterpart of the Trust Indenture, is
being filed for recordation on the date hereof with the FAA as one
document;
NOW, THEREFORE, this Trust Indenture Supplement witnesseth that
the Owner Trustee hereby confirms that the Lien of the Trust Indenture on
the Trust Indenture Estate covers all of Owner Trustee's right, title and
interest in and to the following described property:
AIRFRAME
One airframe identified as follows:
FAA Registration Manufacturer's
Manufacturer Model Number Number Serial Number
Airbus A330
together with all of the Owner Trustee's right, title and interest in and
to all Parts of whatever nature, whether now owned or hereinafter
acquired and which are from time to time incorporated or installed in or
attached to said airframe.
AIRCRAFT ENGINES
Two aircraft engines, each such engine having 750 or more rated
take-off horsepower or the equivalent thereof, identified as follows:
Manufacturer Manufacturer's
Model Number Serial Number
together with all of Owner Trustee's right, title and interest in and to
all Parts of whatever nature, whether now owned or hereafter acquired and
which are from time to time incorporated or installed in or attached to
any of such engines.
Together with all of Owner Trustee's right, title and interest
in and to all Parts of whatever nature, which from time to time are
included within the definition of "Airframe" or "Engine", whether now
owned or hereafter acquired, including all substitutions, renewals and
replacements of and additions, improvements, accessions and accumulations
to the Airframe and Engines (other than additions, improvements,
accessions and accumulations which constitute appliances, parts,
instruments, appurtenances, accessories, furnishings or other equipment
excluded from the definition of Parts).
As further security for the obligations referred to above and
secured by the Trust Indenture and hereby, the Owner Trustee has granted,
assigned, transferred, conveyed, mortgaged, pledged and confirmed, and
does hereby grant, assign, transfer, convey, mortgage, pledge and
confirm, unto the Indenture Trustee, its successors and assigns, for the
security and benefit of the Loan Participants and of the Note Holders, in
the trust created by the Trust Indenture, all of the right, title and
interest of the Owner Trustee in, to and under the Lease Supplement [of
even date herewith] covering the property described above.
Notwithstanding any provision hereof, no Excluded Payment shall
constitute security for any of the aforementioned obligations.
TO HAVE AND TO HOLD all and singular the aforesaid property
unto the Indenture Trustee, its successors and assigns, in trust for the
equal and proportionate benefit and security of the Note Holders, except
as provided in Section 2.15 and Article III of the Trust Indenture
without any preference, distinction or priority of any one Equipment Note
over any other by reason of priority of time of issue, sale, negotiation,
date of maturity thereof or otherwise for any reason whatsoever, and for
the uses and purposes and subject to the terms and provisions set forth
in the Trust Indenture.
This Trust Indenture Supplement shall be construed as
supplemental to the Trust Indenture and shall form a part thereof. The
Trust Indenture is each hereby incorporated by reference herein and is
hereby ratified, approved and confirmed.
This Trust Indenture Supplement is being delivered in the State
of New York.
AND, FURTHER, the Owner Trustee hereby acknowledges that the
Aircraft referred to in this Trust Indenture 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 Trust Indenture.
IN WITNESS WHEREOF, the Owner Trustee has caused this Trust
Indenture Supplement to be duly executed by one of its officers,
thereunto duly authorized, on the day and year first above written.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION, not in its individual
capacity, but solely as Owner Trustee
By: __________________________________
Name:
Title:
SCHEDULE I
Principal Amount Interest Rate Maturity
Series G ____%
Series C ____%
SCHEDULE II
PASS THROUGH TRUST AGREEMENT AND PASS THROUGH TRUST SUPPLEMENTS
Pass Through Trust Agreement, dated as of July 30, 1999, between US
Airways, Inc., US Airways Group, Inc. and State Street Bank and Trust
Company of Connecticut, National Association, as supplemented by Trust
Supplement No. 2000-1G, dated as of March __, 2000, and as supplemented
by Trust Supplement No. 2000-1C, dated as of March __, 2000.