1
EXHIBIT 4.13
________________________________________________________________________________
FIRST AMENDMENT
TO
TRUST INDENTURE AND SECURITY AGREEMENT
Dated as of October 1, 1995
between
SHAWMUT BANK CONNECTICUT,
NATIONAL ASSOCIATION,
in its individual capacity only as
expressly set forth herein and
otherwise solely as Owner Trustee
and
WILMINGTON TRUST COMPANY,
as Indenture Trustee
One Boeing 737-3H4 Aircraft X000XX
Xxxxxxxxx Xxxxxxxx Xx.
Series 1995 Trust N397SW Certificates
(Southwest Airlines 1995 Trust N397SW)
________________________________________________________________________________
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FIRST AMENDMENT TO
TRUST INDENTURE AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO TRUST INDENTURE AND SECURITY AGREEMENT N397SW)
dated as of October 1, 1995 (this "Amendment") between SHAWMUT BANK
CONNECTICUT, NATIONAL ASSOCIATION, in its individual capacity only as expressly
set forth herein and otherwise solely as Owner Trustee under that certain Trust
Agreement establishing the Southwest Airlines 1995 Trust N397SW and dated as of
April 1, 1995 (in such capacity, the "Owner Trustee") and WILMINGTON TRUST
COMPANY, as Indenture Trustee (the "Indenture Trustee"), amends that certain
related Trust Indenture and Security Agreement dated as of April 1, 1995 (the
"Original Indenture") between the Owner Trustee and the Indenture Trustee (the
Original Indenture, as supplemented by Trust Agreement and Trust Indenture and
Security Agreement Supplement dated April 3, 1995 by the Owner Trustee, being
referred to herein as the "Indenture"),
W I T N E S S E T H :
WHEREAS, except as otherwise defined in this Amendment, the
capitalized terms used herein shall have the meanings attributed thereto in the
Indenture;
WHEREAS, a counterpart to the Indenture was recorded by the Federal
Aviation Administration on April 5, 1995 and assigned Conveyance No. JJ13607;
WHEREAS, the Owner Trustee has agreed to refinance the Series SWA 1995
Trust N397SW-I Certificates with Series 1995 Trust N397SW Certificates; and
WHEREAS, in order to effect such refinancing, the Owner Trustee and
the Indenture Trustee have agreed to amend the Indenture as provided for below;
NOW THEREFORE, in consideration of the mutual agreements contained
herein, the parties hereto agree as follows:
Section 1. Amendments to the Indenture. The Indenture is, effective
as of the date hereof, hereby amended as follows:
(a) The definitions of "Business Day" and "Holder" in
Section 1.01(b) of the Indenture are amended in their entirety to read
as follows:
"Business Day" means any day other than a Saturday or
Sunday or a day on which commercial banks are required or
authorized to close in the City of Dallas, Texas; New York,
New York; San Francisco, California; or the city and state in
which (i) so long as any Certificates shall be Outstanding,
each of the Indenture Trustee and the Pass Through Trustee and
(ii) thereafter, the Owner Trustee, has its principal place of
business; or the city
TRUST INDENTURE AND SECURITY AGREEMENT [N397SW]
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and state in which the Indenture Trustee, the Pass Through
Trustee or the Owner Trustee, as the case may be, receives and
disburses funds.
"Holder" or "Certificate Holder" means a Person in
whose name a Certificate is registered on the Register
including, so long as it holds a Series SWA 1995 Trust N397SW
Certificate, the Pass Through Trustee.
(b) The following new definitions are inserted in Section
1.01(b) of the Indenture after the definition of "Owner Trustee":
"Pass Through Certificates" means any of the Pass
Through Certificates issued pursuant to the Pass Through Trust
Agreements.
"Pass Through Trust" means each pass through trust
created pursuant to the Pass Through Trust Agreements.
"Pass Through Trust Agreements" means the Pass
Through Trust Agreement dated as of February 1, 1993, between
the Company and the Pass Through Trustee, as supplemented by
the four Trust Supplements Nos. 1995-A1, 1995-A2, 1995-A3 and
1995-A4, each dated as of October 1, 1995, as the same may
from time to time be further amended, supplemented or
otherwise modified.
"Pass Through Trustee" means Wilmington Trust Company
in its capacity as trustee under each Pass Through Trust
Agreement, and such other Person that may from time to time be
acting as successor trustee under any such Pass Through Trust
Agreement.
(c) The first sentence of Section 6.02 of the Indenture
is amended by adding thereto the words "(x) the Premium Termination
Date in respect of such Certificate and (y)" immediately before the
words "the 181st day" therein.
(d) Exhibits X-0, X-0, X, X-0 and B-2 to the Indenture
are replaced in their entirety by Exhibits X-0, X-0, X, X-0 and B-2
hereto. Said revised Exhibits B, B-1 and B-2 shall, for all purposes,
be deemed to have been, and are, completed in accordance with Article
15 of the Indenture.
Section 2. Lease Amendment. As of the date hereof, the Lessee
and the Owner Trustee are entering into First Amendment to Sale and Lease
Agreement (the "Lease Amendment") to the Sale and Lease Agreement dated as of
April 1, 1995 relating to the Aircraft, which Sale and Lease Agreement
(together with Sale and Lease Agreement Supplement No. 1, dated April 3, 1995
thereto) was recorded with the Federal Aviation Administration on April 5, 1995
and assigned Conveyance No. JJ13608. The Lease Amendment is attached hereto
and, without limiting the generality of the Granting Clause of the Indenture,
is covered by the Lien of the Indenture and is made part of the Indenture
Estate.
TRUST INDENTURE AND SECURITY AGREEMENT [N397SW]
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Section 3. Amendment and Incorporation by Reference. This
Amendment is and shall be construed as an amendment and supplement to the
Indenture and shall form a part thereof, and the Indenture is hereby
incorporated herein by reference and is hereby ratified, approved and
confirmed.
Section 4. GOVERNING LAW. THIS AMENDMENT IS BEING DELIVERED IN
THE STATE OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
Section 5. Execution in Counterparts. This Amendment may be
executed by the Owner Trustee and the Indenture Trustee in separate
counterparts, each of which when so executed and delivered is an original, but
all such counterparts shall together constitute but one and the same
instrument.
TRUST INDENTURE AND SECURITY AGREEMENT [N397SW]
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IN WITNESS WHEREOF, the Owner Trustee and the Indenture
Trustee have caused this Amendment to be duly executed by their respective
officers thereunto duly authorized, as of the day and year first above written.
SHAWMUT BANK CONNECTICUT,
NATIONAL ASSOCIATION,
in its individual capacity
only as expressly set forth
herein and otherwise solely as
Owner Trustee
By:/s/ Xxxxxx X. Xxxx, Xx.
Title: Vice President
WILMINGTON TRUST COMPANY,
not in its individual
capacity, except as otherwise
expressly provided herein,
but solely as Indenture Trustee
By:/s/ Xxxxx X. Xxxxxxxx, Xx.
Title: Senior Financial Services Officer
TRUST INDENTURE AND SECURITY AGREEMENT [N397SW]
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Exhibit A-1 to
First Amendment to
Trust Indenture and
Security Agreement
Form of Series SWA 1995 Trust N397SW Installment Certificates
$______________ No._____________
Dated as of April 3, 1995
SERIES SWA 1995 TRUST N397SW CERTIFICATE
SHAWMUT BANK CONNECTICUT,
NATIONAL ASSOCIATION
Not in its Individual Capacity
but Solely as Owner Trustee
Under the Trust Agreement
Dated as of April 1, 1995
Issued in connection with Aircraft N397SW
Leased to
SOUTHWEST AIRLINES CO.
INTEREST RATE MATURITY DATE
_____________ __________, ____
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION, not in its
individual capacity, but solely as owner trustee (the "Owner Trustee") under
that certain Trust Agreement dated as of April 1, 1995, between the Owner
Trustee in its individual capacity and the institution referred to therein as
the "Owner Participant" relating to the Aircraft (herein as such Trust
Agreement may be amended or supplemented from time to time called the "Trust
Agreement"), for value received, hereby promises to pay to _______________ or
registered assigns the principal sum of ______________ Dollars in installments
on each Installment Payment Date as set forth herein with the final installment
due and payable on the Maturity Date specified above and to pay interest on the
principal amount remaining unpaid from time to time at the rate per annum
specified above from October 4, 1995 or from the most recent date to which
interest has been paid or duly provided for, semiannually, on January 1 and
July 1 in each year, commencing January 1, 1996, until the principal hereof is
paid or made available for payment in full. All amounts payable by the Owner
Trustee hereunder and under the related Trust Indenture and
TRUST INDENTURE AND SECURITY AGREEMENT [N397SW]
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Security Agreement dated as of April 1, 1995, as supplemented and amended by
Trust Agreement and Trust Indenture and Security Agreement Supplement dated
April 3, 1995 and First Amendment to Trust Indenture and Security Agreement
dated as of October 1, 1995 (as further amended or supplemented from time to
time referred to herein as the "Indenture", the defined terms therein not
otherwise defined herein being used herein with the same meanings), by and
among the Owner Trustee and Wilmington Trust Company, as Indenture Trustee
thereunder, shall be made only from the income and proceeds of the Indenture
Estate and the other amounts referred to in Section 3.03 of the Indenture.
Each Holder hereof, by its acceptance of this Certificate, agrees that (a) it
will look solely to the income and proceeds of the Indenture Estate and the
other amounts referred to in Section 3.03 of the Indenture for payment of such
amounts, to the extent available for distribution to the Holder hereof as
provided in the Indenture and (b) neither the Owner Trustee, the Owner
Participant nor the Indenture Trustee is or shall be personally liable to the
Holder hereof for any amount payable hereunder or under the Indenture or the
other Operative Agreements or, except as provided in the Indenture, for any
liability under the Indenture.
Notwithstanding anything to the contrary contained herein, if
any date on which a payment under this Certificate 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.
Any amount of interest or principal (including any Installment
Payment Amount) payable hereunder which is not paid when due shall, to the
maximum extent permitted by law, bear interest from the due date thereof until
the date of payment at an interest rate equal to the interest rate specified
above plus 2% per annum. Any other amounts payable to the Holder hereof
hereunder (including, without limitation, Premium) or under the Indenture which
is not paid when due shall bear interest from the due date thereof, until the
date of payment at an interest rate equal to the Overdue Rate. All
computations of interest hereunder shall be calculated on the basis of a year
of twelve 30-day months.
The interest or Installment Payment Amount (other than that
payable on the Maturity Date hereof) so payable, and punctually paid or duly
provided for, on the applicable Interest Payment Date or Installment Payment
Date, as the case may be, will, as provided in the Indenture, be paid to the
Person in whose name this Certificate (or one or more predecessor Certificates)
is registered at the close of business on the Record Date for payment of such
interest or Installment Payment Amount, which shall be the fifteenth day
(whether or not a Business Day) next preceding such Interest Payment Date or
Installment Payment Date, as the case may be. Any such interest or Installment
Payment Amount not so punctually paid or duly provided for shall forthwith
cease to be payable to the registered Holder hereof on such Record Date (or to
the Person in whose name this Certificate is registered upon issuance) and may
be paid to the Person in whose name this Certificate (or one or more
predecessor Certificates) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Installment or Defaulted Interest
to be fixed by the Indenture Trustee, notice whereof shall be given to Holders
of Certificates entitled thereto not less than 10 days prior to such Special
Record Date, or may be paid at
TRUST INDENTURE AND SECURITY AGREEMENT [N397SW]
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any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Certificates may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in the
Indenture.
Payment of the principal of, Premium, if any, and interest on
this Certificate will be made at the principal corporate trust office of the
Indenture Trustee, or the office or agency maintained by the Indenture Trustee
for such purpose, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest and Installment Payment Amounts
(other than that payable on the Maturity Date hereof) may be made at the option
of the Indenture Trustee or the Paying Agent by check mailed on or before the
due date to the address of the Holder entitled thereto as such address shall
appear on the Register.
This Certificate shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose unless this Certificate
has been executed on behalf of the Owner Trustee by the manual or facsimile
signature of any authorized officer of the Owner Trustee, and authenticated by
the Indenture Trustee by the manual signature of an authorized officer or
signatory of the Indenture Trustee, in each case as specified in Section 2.02
of the Indenture.
Reference is made to the Indenture and all supplements and
amendments thereto (copies of which are on file with the Indenture Trustee at
its principal corporate trust office) for a more complete statement of the
terms and provisions thereof, including a statement of the properties thereby
conveyed, pledged and assigned, the nature and extent of the security, the
respective rights thereunder of the Owner Trustee, the Indenture Trustee, the
Owner Participant and the Holders of the Certificates, the terms upon which the
Certificates are, and are to be, executed and delivered, and the terms upon
which the Certificates may be redeemed, as well as for a statement of the terms
and conditions of the trust created by the Indenture, to all of which terms and
conditions in the Indenture each Holder hereof agrees by its acceptance of this
Certificate.
On each Installment Payment Date, the Holder hereof will
receive a payment of principal equal to the Installment Payment Percentage for
such Installment Payment Date multiplied by the initial principal amount of
this Certificate which is set forth herein, all as shown on Exhibit A hereto.
As more fully provided in the Indenture, the Certificates are
subject to redemption on not less than 30 nor more than 60 days' notice by
mail, under the circumstances set forth in the Indenture, at a Redemption Price
equal to the unpaid principal amount thereof, Premium, if any, plus accrued
interest thereon to the Redemption Date.
If an Indenture Event of Default shall occur and be
continuing, the principal of the Certificates may be declared due and payable
in the manner and with the effect provided in the Indenture. If, and only if,
such an Indenture Event of Default constitutes
TRUST INDENTURE AND SECURITY AGREEMENT [N397SW]
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a Lease Event of Default by the Company under the Lease, the Indenture Trustee
may, to the exclusion of the Owner Trustee, exercise one or more of the
remedies of the Owner Trustee provided in the Lease. Such remedies include
(but are not limited to) the right to repossess and use or operate the
Aircraft, to sell or relet the Aircraft free and clear of the Company's rights
and retain the proceeds and to require the Company to pay as liquidated damages
(i) any unpaid Basic Rent plus an amount equal to the excess of the Stipulated
Loss Value of the Aircraft over the aggregate fair market rental value thereof
for the remainder of the term for the Aircraft, (ii) any unpaid Basic Rent plus
the excess of the Stipulated Loss Value of the Aircraft over the fair market
sales value thereof or (iii) if the Aircraft has been sold, any unpaid Basic
Rent plus the excess of the Stipulated Loss Value thereof over the net sales
proceeds.
By acceptance of this Certificate, the Holder hereof agrees to
be bound by the provisions of the Participation Agreement applicable to
Holders.
The Owner Trustee or the Owner Participant may cure any
default by the Company under the Lease arising from the failure of the Company
to make any payment of Basic Rent under the Lease, provided that such failure
of the Company is not the third consecutive such failure, or the fifth or
subsequent cumulative such failure. The Owner Trustee or the Owner Participant
may (but need not) cure any other default by the Company in the performance of
its obligations under the Lease which can be cured by the payment of money, by
making such payment on behalf of the Company, subject, however, to certain
limitations.
The right of the Holder of this Certificate to institute
action for any remedy under the Indenture, including the enforcement of payment
of any amount due hereon, is subject to certain restrictions specified in the
Indenture.
The Owner Trustee and the Indenture Trustee will be discharged
from their respective obligations in respect of the Certificates (except for
certain matters, including obligations to register the transfer or exchange of
Certificates, replace stolen, lost or mutilated Certificates, maintain paying
agencies and hold money for payment in trust), and the Indenture Trustee may
thereupon cause the release of the Indenture Estate from the lien of the
Indenture, if (a) the Owner Trustee deposits or causes to be deposited
irrevocably with the Indenture Trustee, in trust, money or Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide money in an amount
sufficient to pay principal of, Premium, if any, and interest on the
Outstanding Certificates on the dates such payments are due in accordance with
the terms of such Certificates and (b) certain other conditions are satisfied,
including the publication by the United States Internal Revenue Service of a
ruling, or a change in or clarification of the applicable Federal income tax
law, in either case to the effect that the deposit and related defeasance would
not cause the Holders of the Certificates to recognize income, gain or loss for
Federal income tax purposes.
As provided in the Indenture and subject to certain
limitations therein set forth, this Certificate is transferable, and upon
surrender of this Certificate for registration
TRUST INDENTURE AND SECURITY AGREEMENT [N397SW]
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of transfer at the principal corporate trust office of the Registrar, or at the
office or agency maintained for such purpose, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Registrar duly
executed by, the Holder or his attorney duly authorized in writing, one or more
new Certificates of the same maturity and type and of authorized denominations
and for the same aggregate principal amount will be issued to the designated
transferee or transferees.
The Certificates are issuable only as registered Certificates.
The Certificates are issuable in denominations of $1,000 and integral multiples
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Certificates are exchangeable for a like aggregate principal
amount of Certificates of the same maturity and type and of authorized
denominations, as requested by the Holder surrendering the same, upon
presentation thereof for such purpose at the principal corporate trust office
of the Registrar, or at an office or agency maintained for such purpose.
No service charge shall be made for any such registration or
transfer or exchange, but the Registrar may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this
Certificate, the Owner Trustee, the Indenture Trustee, the Paying Agent, the
Registrar, the Owner Participant and the Company may deem and treat the person
in whose name this Certificate is registered as the absolute owner hereof for
the purpose of receiving payment of the principal of and interest on this
Certificate and for all other purposes whatsoever whether or not this
Certificate be overdue, and neither the Owner Trustee, the Indenture Trustee,
the Paying Agent, the Registrar, the Owner Participant nor the Company shall be
affected by notice to the contrary.
AS PROVIDED IN THE INDENTURE, THE INDENTURE AND THIS
CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PROVISIONS
OF THE STATE OF NEW YORK.
TRUST INDENTURE AND SECURITY AGREEMENT [N397SW]
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IN WITNESS WHEREOF, the Owner Trustee has caused this
instrument to be duly executed under its corporate seal.
SHAWMUT BANK CONNECTICUT,
NATIONAL ASSOCIATION, not in
its individual capacity but solely as
Owner Trustee
By: ___________________________________
Corporate Trust Officer
Issue Date:
TRUST INDENTURE AND SECURITY AGREEMENT [N397SW]
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INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Indenture.
WILMINGTON TRUST COMPANY, not in
its individual capacity, but solely
as Indenture Trustee
By:_________________________________
Title:
TRUST INDENTURE AND SECURITY AGREEMENT [N397SW]
X-0-0
00
Xxxxxxx X-0 to
First Amendment to
Trust Indenture and
Security Agreement
Form of Series SWA 1995 Trust N397SW Serial Certificates
$________________ No.____________
SERIES SWA 1995 TRUST N397SW CERTIFICATE
SHAWMUT BANK CONNECTICUT,
NATIONAL ASSOCIATION
Not in its Individual Capacity
but Solely as Owner Trustee
Under the Trust Agreement
Dated as of April 1, 1995
Issued in connection with Aircraft N397SW
Leased to
SOUTHWEST AIRLINES CO.
INTEREST RATE MATURITY DATE
_______________ ____________, ______
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION, not in its
individual capacity, but solely as owner trustee (the "Owner Trustee") under
that certain Trust Agreement dated as of April 1, 1995, between the Owner
Trustee in its individual capacity and the institution referred to therein as
the "Owner Participant" relating to the Aircraft (herein as such Trust
Agreement may be amended or supplemented from time to time called the "Trust
Agreement"), for value received, hereby promises to pay to ___________ or
registered assigns the principal sum of ___________ Dollars on the Maturity
Date specified above and to pay interest thereon at the rate per annum
specified above from October 4, 1995 or from the most recent date to which
interest has been paid or duly provided for, semiannually, on January 1 and
July 1 in each year, commencing January 1, 1996, until the principal hereof is
paid or made available for payment. All amounts payable by the Owner Trustee
hereunder and under the related Trust Indenture and Security Agreement dated as
of April 1, 1995, as supplemented and amended by Trust Agreement and Trust
Indenture and Security Agreement Supplement dated April 3, 1995 and First
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Amendment to Trust Indenture and Security Agreement dated as of October 1, 1995
(as further amended or supplemented from time to time referred to herein as the
"Indenture", the defined terms therein not otherwise defined herein being used
herein with the same meanings), by and among the Owner Trustee and Wilmington
Trust Company, as Indenture Trustee thereunder, shall be made only from the
income and proceeds of the Indenture Estate and the other amounts referred to
in Section 3.03 of the Indenture. Each Holder hereof, by its acceptance of
this Certificate, agrees that (a) it will look solely to the income and
proceeds of the Indenture Estate and other amounts referred to in Section 3.03
of the Indenture for payment of such amounts, to the extent available for
distribution to the Holder hereof as provided in the Indenture and (b) neither
the Owner Trustee, the Owner Participant nor the Indenture Trustee is or shall
be personally liable to the Holder hereof for any amount payable hereunder or
under the Indenture or the other Operative Agreements or, except as provided in
the Indenture, for any liability under the Indenture.
Notwithstanding anything to the contrary contained herein, if
any date on which a payment under this Certificate 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.
Any amount of interest or principal payable hereunder which is
not paid when due shall, to the maximum extent permitted by law, bear interest
from the due date thereof until the date of payment at an interest rate equal
to the interest rate specified above plus 2% per annum. Any other amounts
payable to the Holder hereof hereunder (including, without limitation, Premium)
or under the Indenture which is not paid when due shall bear interest from the
due date thereof, until the date of payment at an interest rate equal to the
Overdue Rate. All computations of interest hereunder shall be calculated on
the basis of a year of twelve 30-day months.
The interest so payable, and punctually paid or duly provided
for, on the applicable Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Certificate (or one or more
predecessor Certificates) is registered at the close of business on the Record
Date for payment of such interest, which shall be the fifteenth day (whether or
not a Business Day) next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to
be payable to the registered Holder hereof on such Record Date (or to the
Person in whose name this Certificate is registered upon issuance) and may be
paid to the Person in whose name this Certificate (or one or more predecessor
Certificates) is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the Indenture
Trustee, notice whereof shall be given to Holders of Certificates entitled
thereto not less than 10 days prior to such Special Record Date, or may be paid
at any time in any other lawful manner not inconsistent with the requirements
of any securities exchange on which the Certificates may be listed, and upon
such notice as may be required by such exchange, all as more fully provided in
the Indenture.
Payment of the principal of, Premium, if any, and interest on
this Certificate will be made at the principal corporate trust office of the
Indenture Trustee, or the office
TRUST INDENTURE AND SECURITY AGREEMENT [N397SW]
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or agency maintained by the Indenture Trustee for such purpose, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Indenture Trustee or the Paying
Agent by check mailed on or before the due date to the address of the Holder
entitled thereto as such address shall appear on the Register.
This Certificate shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose unless this Certificate
has been executed on behalf of the Owner Trustee by the manual or facsimile
signature of an authorized officer of the Owner Trustee, and authenticated by
the Indenture Trustee by the manual signature of an authorized officer or
signatory of the Indenture Trustee, in each case as specified in Section 2.02
of the Indenture.
Reference is made to the Indenture and all supplements and
amendments thereto (copies of which are on file with the Indenture Trustee at
its principal corporate trust office) for a more complete statement of the
terms and provisions thereof, including a statement of the properties thereby
conveyed, pledged and assigned, the nature and extent of the security, the
respective rights thereunder of the Owner Trustee, the Owner Participant the
Indenture Trustee and the Holders of the Certificates, the terms upon which the
Certificates are, and are to be, executed and delivered, and the terms upon
which the Certificates may be redeemed, as well as for a statement of the terms
and conditions of the trust created by the Indenture, to all of which terms and
conditions in the Indenture each Holder hereof agrees by its acceptance of this
Certificate.
As more fully provided in the Indenture, the Certificates are
subject to redemption on not less than 30 nor more than 60 days' notice by
mail, under the circumstances set forth in the Indenture, at a Redemption Price
equal to the unpaid principal amount thereof, Premium, if any, plus accrued
interest thereon to the Redemption Date.
If an Indenture Event of Default shall occur and be
continuing, the principal of the Certificates may be declared due and payable
in the manner and with the effect provided in the Indenture. If, and only if,
such an Indenture Event of Default constitutes a Lease Event of Default by the
Company under the Lease, the Indenture Trustee may, to the exclusion of the
Owner Trustee, exercise one or more of the remedies of the Owner Trustee
provided in the Lease. Such remedies include (but are not limited to) the
right to repossess and use or operate the Aircraft, to sell or relet the
Aircraft free and clear of the Company's rights and retain the proceeds and to
require the Company to pay as liquidated damages (i) any unpaid Basic Rent plus
an amount equal to the excess of the Stipulated Loss Value of the Aircraft over
the aggregate fair market rental value thereof for the remainder of the term
for the Aircraft, (ii) any unpaid Basic Rent plus the excess of the Stipulated
Loss Value of the Aircraft over the fair market sales value thereof or (iii) if
the Aircraft has been sold, any unpaid Basic Rent plus the excess of the
Stipulated Loss Value thereof over the net sales proceeds.
TRUST INDENTURE AND SECURITY AGREEMENT [N397SW]
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The Owner Trustee or the Owner Participant may cure any
default by the Company under the Lease arising from the failure of the Company
to make any payment of Basic Rent under the Lease, provided that such failure
of the Company is not the third consecutive such failure, or the fifth or
subsequent cumulative such failure. The Owner Trustee or the Owner Participant
may (but need not) cure any other default by the Company in the performance of
its obligations under the Lease which can be cured by the payment of money, by
making such payment on behalf of the Company, subject, however, to certain
limitations.
The right of the Holder of this Certificate to institute
action for any remedy under the Indenture, including the enforcement of payment
of any amount due hereon, is subject to certain restrictions specified in the
Indenture.
By acceptance of this Certificate, the Holder hereof agrees to
be bound by the provisions of the Participation Agreement applicable to
Holders.
The Owner Trustee and the Indenture Trustee will be discharged
from their respective obligations in respect of the Certificates (except for
certain matters, including obligations to register the transfer or exchange of
Certificates, replace stolen, lost or mutilated Certificates, maintain paying
agencies and hold money for payment in trust), and the Indenture Trustee may
thereupon cause the release of the Indenture Estate from the lien of the
Indenture, if (a) the Owner Trustee deposits or causes to be deposited
irrevocably with the Indenture Trustee, in trust, money or Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide money in an amount
sufficient to pay principal of, Premium, if any, and interest on the
Outstanding Certificates on the dates such payments are due in accordance with
the terms of such Certificates and (b) certain other conditions are satisfied,
including the publication by the United States Internal Revenue Service of a
ruling, or a change in or clarification of the applicable Federal income tax
law, in either case to the effect that the deposit and related defeasance would
not cause the Holders of the Certificates to recognize income, gain or loss for
Federal income tax purposes.
As provided in the Indenture and subject to certain
limitations therein set forth, this Certificate is transferable, and upon
surrender of this Certificate for registration of transfer at the principal
corporate trust office of the Registrar, or at the office or agency maintained
for such purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Registrar duly executed by, the Holder or
his attorney duly authorized in writing, one or more new Certificates of the
same maturity and type and of authorized denominations and for the same
aggregate principal amount will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates.
The Certificates are issuable in denominations of $1,000 and integral multiples
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Certificates are exchangeable for a like aggregate principal
amount of Certificates of the same maturity and type and of authorized
denominations, as requested by the Holder surrendering the same, upon
TRUST INDENTURE AND SECURITY AGREEMENT [N397SW]
A-2-4
17
presentation thereof for such purpose at the principal corporate trust office
of the Registrar, or at an office or agency maintained for such purpose.
No service charge shall be made for any such registration of
transfer or exchange, but the Registrar may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this
Certificate, the Owner Trustee, the Indenture Trustee, the Paying Agent, the
Registrar, the Owner Participant and the Company may deem and treat the Person
in whose name this Certificate is registered as the absolute owner hereof for
the purpose of receiving payment of the principal of and interest on this
Certificate and for all other purposes whatsoever whether or not this
Certificate be overdue, and neither the Owner Trustee, the Indenture Trustee,
the Paying Agent, the Registrar, the Owner Participant nor the Company shall be
affected by notice to the contrary.
AS PROVIDED IN THE INDENTURE, THE INDENTURE AND THIS
CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PROVISIONS
OF THE STATE OF NEW YORK.
TRUST INDENTURE AND SECURITY AGREEMENT [N397SW]
A-2-5
18
IN WITNESS WHEREOF, the Owner Trustee has caused this
instrument to be duly executed under its corporate seal.
SHAWMUT BANK CONNECTICUT, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
By:__________________________________
Corporate Trust Officer
Issue Date:
TRUST INDENTURE AND SECURITY AGREEMENT [N397SW]
A-2-6
19
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Indenture.
WILMINGTON TRUST COMPANY, not in
its individual capacity, but solely
as Indenture Trustee
By:___________________________________
Title:
TRUST INDENTURE AND SECURITY AGREEMENT [N397SW]
X-0-0
00
Xxxxxxx X to
First Amendment to
Trust Indenture and
Security Agreement
Maturity Dates, Principal Amounts,
Interest Rates, Etc. of Series SWA 1995 Trust N397SW Certificates
Premium
Interest Termination Type of
Series Maturity Date Principal Rate Date Certificate
------ ------------- --------- ---- ---- -----------
1995-A1 July 1, 1997 $429,824.20 6.16% * Serial
1995-A2 July 1, 1998 $456,301.30 6.29% * Serial
1995-A3 January 1, 2013 $18,513,253.78 7.22% October 4, 2007 Installment
1995-A4 July 1, 2016 $4,150,203.14 7.64% January 4, 2016 Installment
____________________________
* Not applicable.
TRUST INDENTURE AND SECURITY AGREEMENT [N397SW]
X-0
00
Xxxxxxx X-0 to
First Amendment to
Trust Indenture and
Security Agreement
PAYMENT DATES AND PAYMENT PERCENTAGES AND AMOUNTS
TRUST INDENTURE AND SECURITY AGREEMENT [N397SW]
X-0-0
00
Xxxxxxx X-0 to
First Amendment to
Trust Indenture and
Security Agreement
ISSUANCE OF SERIES SWA 1995 TRUST N397SW CERTIFICATES
The Series SWA 1995 Trust N397SW Certificates issued hereunder
shall be issued to and shall be payable to the Pass Through Trustee under each
Pass Through Trust Agreement with respect to the grantor trust created thereby,
in each case as set forth below:
1995-A1 Trust:
6.16% Certificate due July 1, 1997
1995-A2 Trust:
6.29% Certificate due July 1, 1998
1995-A3 Trust:
7.22% Certificate due January 1, 2013
1995-A4 Trust:
7.64% Certificate due July 1, 2016
TRUST INDENTURE AND SECURITY AGREEMENT [N397SW]
B-2-1
