Exhibit 1.
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TRUST INDENTURE AND SECURITY AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N677FE)
Dated as of June 15, 1998
Amended and Restated as of August 1, 1998
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Not in its Individual
Capacity, but solely
As Owner Trustee,
Owner Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
Not in its Individual
Capacity, but solely
As Indenture Trustee,
Indenture Trustee
COVERING ONE AIRBUS A300F4-605R AIRCRAFT
SERIAL NO. 791, REGISTRATION NO. N677FE
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TABLE OF CONTENTS
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Page
Initial Recitals........................................................... 1
Granting Clause............................................................ 2
Habendum Clause............................................................ 6
ARTICLE I
DEFINITIONS
Section 1.01. Definitions............................................. 7
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF CERTIFICATES;
COLLATERAL ACCOUNT
Section 2.01. Authentication and Delivery of Certificates............. 7
Section 2.02. Execution of Certificates............................... 8
Section 2.03. Certificate of Authentication........................... 8
Section 2.04. Form and Terms of Certificates; Payments of Principal,
Make-Whole Premium and Interest.................... 8
Section 2.05. Payments from Trust Indenture Estate Only............... 11
Section 2.06. Registration, Transfer and Exchange..................... 12
Section 2.07. Mutilated, Defaced, Destroyed, Lost and Stolen
Certificates....................................... 13
Section 2.08. Cancellation of Certificates; Destruction Thereof....... 14
Section 2.09. Temporary Certificates.................................. 14
Section 2.10. Termination of Interest in Trust Indenture Estate....... 15
Section 2.11. Certificates in Respect of Replacement Aircraft......... 15
Section 2.12. Assumption of Obligations Under Certificates and Other
Operative Agreements............................... 15
Section 2.13. Establishment of Collateral Account..................... 15
Section 2.14. Investment of Funds on Deposit in the Collateral Account 15
Section 2.15. Amounts in the Collateral Account on Delivery Date...... 16
Section 2.16. Series C Prepayment Date................................ 17
Section 2.17. Subordination........................................... 17
Section 2.18. Reoptimization. ........................................ 18
Section 2.19. Decrease in Principal Amount of Series C Certificates... 18
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal, Make-Whole Premium and Interest... 18
Section 3.02. Offices for Payments, etc............................... 19
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture
Trustee............................................ 19
Section 3.04. Paying Agents. ......................................... 19
Section 3.05. Covenants of SSB and the Owner Trustee. ................ 19
Section 3.06. [Reserved].............................................. 20
Section 3.07. Disposal of Trust Indenture Estate. .................... 20
Section 3.08. No Representations or Warranties as to Aircraft or
Documents.......................................... 20
Section 3.09. Further Assurances; Financing Statements. .............. 21
ARTICLE IV
HOLDER LISTS
Section 4.01. Holder Lists; Ownership of Certificates................. 21
ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
Section 5.01. Basic Rent Distribution................................. 22
Section 5.02. Event of Loss and Replacement; Prepayment. ............. 23
Section 5.03. Payment After Indenture Event of Default, etc. ......... 24
Section 5.04. Certain Payments........................................ 26
Section 5.05. Other Payments.......................................... 26
Section 5.06. Payments to Owner Trustee............................... 27
Section 5.07. Application of Payments................................. 27
Section 5.08. Investment of Amounts Held by Indenture Trustee......... 28
Section 5.09. Withholding Taxes....................................... 28
ARTICLE VI
PREPAYMENT OF CERTIFICATES
Section 6.01. No Prepayment Prior to Maturity. ....................... 29
Section 6.02. Prepayment of Certificates. ............................ 29
Section 6.03. Notice of Prepayment to Holders. ....................... 31
Section 6.04. Deposit of Prepayment Price and Sinking Fund
Redemption Price................................... 31
Section 6.05. Certificates Payable on Prepayment Date................. 32
Section 6.06. Mandatory Sinking Fund Redemption....................... 32
ARTICLE VII
INDENTURE EVENTS OF DEFAULT; REMEDIES
OF INDENTURE TRUSTEE AND HOLDERS
Section 7.01. Indenture Event of Default.............................. 33
Section 7.02. Remedies................................................ 35
Section 7.03. Return of Aircraft, etc. ............................... 37
Section 7.04. Indenture Trustee May Prove Debt........................ 40
Section 7.05. Remedies Cumulative..................................... 42
Section 7.06. Suits for Enforcement................................... 42
Section 7.07. Discontinuance of Proceedings. ......................... 42
Section 7.08. Limitations on Suits by Holders......................... 43
Section 7.09. Unconditional Right of Holders to Receive Principal,
Interest and Make-Whole Premium, and to Institute
Certain Suits...................................... 43
Section 7.10. Control by Holders...................................... 43
Section 7.11. Waiver of Past Indenture Default........................ 44
Section 7.12. Notice of Indenture Default............................. 44
Section 7.13. Waiver of Appraisement, etc.; Laws. .................... 45
ARTICLE VIII
RIGHTS OF THE OWNER TRUSTEE
AND THE OWNER PARTICIPANT
Section 8.01. Certain Rights of Owner Trustee and Owner Participant... 45
Section 8.02. Owner Participant's Right to Elect to Prepay or
Purchase the Certificates.......................... 49
Section 8.03. Certain Rights of Owner Participant..................... 50
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 9.01. Acceptance of Trusts.................................... 52
Section 9.02. Duties and Responsibilities of the Indenture Trustee;
During an Indenture Event of Default; Prior to an
Indenture Event of Default......................... 52
Section 9.03. Certain Rights of the Indenture Trustee................. 54
Section 9.04. Indenture Trustee Not Responsible for Recitals,
Disposition of Certificates or Application of
Proceeds Thereof................................... 55
Section 9.05. Indenture Trustee and Agents May Hold Certificates;
Collections, etc................................... 55
Section 9.06. Moneys Held by Indenture Trustee. ...................... 55
Section 9.07. Right of Indenture Trustee to Rely on Officer's
Certificate, etc................................... 56
Section 9.08. Replacement Airframes and Replacement Engines........... 56
Section 9.09. Indenture and Security Agreement Supplement for
Replacements....................................... 59
Section 9.10. Effect of Replacement................................... 59
Section 9.11. Compensation............................................ 60
ARTICLE X
CONCERNING THE HOLDERS
Section 10.01. Evidence of Action Taken by Holders.................... 60
Section 10.02. Proof of Execution of Instruments and of Holding of
Certificates...................................... 60
Section 10.03. Holders to Be Treated as Owners. ...................... 61
Section 10.04. Certificates Owned by Owner Trustee and the Lessee
Deemed Not Outstanding............................ 61
Section 10.05. Right of Revocation of Action Taken.................... 62
Section 10.06. ERISA.................................................. 62
ARTICLE XI
INDEMNIFICATION OF INDENTURE
TRUSTEE BY OWNER TRUSTEE
ARTICLE XII
SUCCESSOR TRUSTEES
Section 12.01. Notice of Successor Owner Trustee...................... 64
Section 12.02. Resignation and Removal of Indenture Trustee;
Appointment of Successor.......................... 64
Section 12.03. Persons Eligible for Appointment as Indenture Trustee.. 65
Section 12.04. Acceptance of Appointment by Successor Trustee......... 65
Section 12.05. Merger, Conversion, Consolidation or Succession to
Business of Indenture Trustee..................... 66
Section 12.06. Appointment of Separate Trustees....................... 67
ARTICLE XIII
SUPPLEMENTS AND AMENDMENTS TO THIS
TRUST INDENTURE AND OTHER DOCUMENTS
Section 13.01. Supplemental Indentures Without Consent of Holders..... 69
Section 13.02. Supplemental Indentures With Consent of Holders........ 70
Section 13.03. Effect of Supplemental Indenture....................... 72
Section 13.04. Documents to Be Given to Indenture Trustee............. 72
Section 13.05. Notation on Certificates in Respect of Supplemental
Indentures......................................... 72
Section 13.06. No Request Necessary for Lease Supplement or Indenture
and Security Agreement Supplement.................. 72
Section 13.07. Notices to Liquidity Providers. ....................... 72
ARTICLE XIV
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 14.01. Satisfaction and Discharge of Indenture; Termination
of Indenture...................................... 73
Section 14.02. Application by Indenture Trustee of Funds Deposited
for Payment of Certificates....................... 74
Section 14.03. Repayment of Moneys Held by Paying Agent. ............. 74
Section 14.04. Transfer of Moneys Held by Indenture Trustee and
Paying Agent Unclaimed for Two Years and Eleven
Months............................................ 74
ARTICLE XV
MISCELLANEOUS
Section 15.01. Capacity in Which Acting............................... 75
Section 15.02. No Legal Title to Trust Indenture Estate in Holders.... 75
Section 15.03. Sale of Trust Indenture Estate by Indenture Trustee
is Binding......................................... 75
Section 15.04. Indenture for Benefit of Owner Trustee, Indenture
Trustee, Owner Participant, Holders and Liquidity
Providers.......................................... 75
Section 15.05. No Action Contrary to the Lessee's Rights Under the
Lease.............................................. 76
Section 15.06. Notices................................................ 76
Section 15.07. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein................. 77
Section 15.08. Severability. ......................................... 77
Section 15.09. No Oral Modifications or Continuing Waivers............ 78
Section 15.10. Successors and Assigns. ............................... 78
Section 15.11. Headings. ............................................ 78
Section 15.12. Normal Commercial Relations. .......................... 78
Section 15.13. Governing Law; Counterparts. .......................... 78
Exhibit A -- Form of Indenture and Security Agreement Supplement
Exhibit B -- Form of Certificate
Schedule I -- Schedule of Principal Payments
Schedule II -- Definitions
TRUST INDENTURE AND SECURITY AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N677FE)
TRUST INDENTURE AND SECURITY AGREEMENT (FEDERAL EXPRESS
CORPORATION TRUST NO. N677FE) dated as of June 15, 1998, as amended and
restated as of August 1, 1998 (the "Indenture"), between STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity, except as otherwise specifically
set forth herein (when acting in such individual capacity, "SSB"), but solely
as owner trustee (the "Owner Trustee") under the Trust Agreement, as defined
herein, and FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association, as Indenture Trustee hereunder (the "Indenture Trustee").
W I T N E S S E T H:
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article I hereof;
WHEREAS, the Initial Owner Participant and SSB entered into the
Original Trust Agreement whereby, among other things, the Owner Trustee
declared a certain trust for the use and benefit of the Initial Owner
Participant, subject, however, to the Lien of the Original Indenture;
WHEREAS, because the Original Indenture was executed prior to
delivery of the Aircraft, the Original Indenture was not filed with the Federal
Aviation Administration;
WHEREAS, the Initial Owner Participant has transferred its
Beneficial Interest to the Owner Participant and in connection therewith the
Original Indenture contemplated that the Certificates would be reoptimized and
the Original Indenture amended and restated;
WHEREAS, all things necessary to make this Indenture the valid,
binding and legal obligation of the Owner Trustee, enforceable in accordance
with their respective terms, have been done and performed and have happened;
and
WHEREAS, the parties hereto desire to amend and restate the
Original Indenture in its entirety.
NOW, THEREFORE, the parties agree that such Original Indenture be
and the same is hereby amended and restated in its entirety as follows:
GRANTING CLAUSE
NOW, THEREFORE, in consideration of the mutual promises contained
herein and to secure (i) the prompt payment of the principal of and Make-Whole
Premium, if any, and interest on, and all other amounts due with respect to,
all the Certificates from time to time outstanding under this Indenture and all
other amounts due hereunder and (ii) the performance and observance by the
Owner Trustee of all the agreements, covenants and provisions in this
Indenture, in the Certificates, in the Participation Agreement and in the Lease
contained for the benefit of the Holders of the Certificates, and the prompt
payment of any and all amounts from time to time owing under the Participation
Agreement by the Owner Trustee, the Owner Participant or the Lessee to the
Holders (collectively the "Secured Obligations") and for the uses and purposes
and subject to the terms and provisions of this Indenture, and in consideration
of the premises and of the covenants in this Indenture and in the Certificates
and of the purchase of the Certificates by their Holders, and of the sum of $1
paid to the Owner Trustee by the Indenture Trustee at or before the delivery of
this Indenture, the receipt and sufficiency of which is hereby acknowledged,
the Owner Trustee has granted, bargained, sold, assigned, transferred,
conveyed, mortgaged, pledged, granted a first priority security interest in and
confirmed, and does hereby grant, bargain, sell, assign, transfer, convey,
mortgage, pledge and grant a first priority security interest in and confirm to
the Indenture Trustee, its successors and assigns, in trust for the equal and
ratable security and benefit of the Holders from time to time of the
Certificates, a first priority security interest in and first mortgage Lien on
all estate, right, title and interest of the Owner Trustee in, to and under the
following described property, rights and privileges other than Excepted
Payments, which collectively, excluding Excepted Payments but including all
property specifically subjected to the Lien of this Indenture by the terms
hereof, by any Indenture and Security Agreement Supplement or any mortgage
supplemental to this Indenture, are included within the Trust Indenture Estate,
subject always to the rights granted to the Owner Trustee or the Owner
Participant hereunder and to the other terms and conditions of this Indenture:
(1) The Airframe, as the same is more particularly described
in the Indenture and Security Agreement Supplement and any airframe substituted
in replacement thereof pursuant to the provisions of this Indenture; the
Engines, as the same are more particularly described in the Indenture and
Security Agreement Supplement, whether or not such Engines shall be installed
in or attached to the Airframe or any other airframe, and any Replacement
Engine therefor; and all Parts in respect of the Airframe and the Engines and
all records, logs and other documents at any time maintained with respect to
the foregoing property;
(2) The Lease and all Rent thereunder, including, without
limitation, all amounts of Basic Rent and Supplemental Rent, and payments of
any kind thereunder and including all rights of the Owner Trustee to execute
any election or option or to give or receive any notice, consent, waiver or
approval under or in respect of the Lease or to accept any surrender of the
Aircraft or any part thereof as well as any rights, powers or remedies on the
part of the Owner Trustee, whether arising under the Lease or by statute or at
law or in equity or otherwise arising out of any Event of Default;
(3) The Purchase Agreement, the Purchase Agreement Assignment,
the AVSA Consent and Agreement, the Consent and Agreement, the Consent and
Guaranty, the GTA, the Engine Warranty Assignment and the Engine Consent,
AVSA's FAA Xxxx of Sale, AVSA's Warranty Xxxx of Sale, the Airbus Guaranty, the
Ancillary Agreements, the Letter of Credit and the Participation Agreement (to
the extent of amounts payable to the Owner Trustee thereunder) (collectively,
and together with the Lease, the Trust Agreement and the Certificates, the
"Indenture Documents"), including all rights of the Owner Trustee to execute
any election or option or to give or receive any notice, consent, waiver or
approval under or in respect of any of the foregoing documents and instruments;
(4) All the tolls, rents, issues, profits, products, revenues
and other income (including sales proceeds) of the property subjected or
required to be subjected to the Lien of this Indenture, and all of the estate,
right, title and interest of the Owner Trustee in and to the same and every
part of said property;
(5) The Collateral Account, the Liquid Collateral and all
other moneys and securities (including Permitted Investments) now or hereafter
paid or deposited or required to be paid or deposited to or with the Indenture
Trustee by or for the account of the Owner Trustee pursuant to any term of any
Operative Agreement, except the Tax Indemnity Agreement, and held or required
to be held by the Indenture Trustee hereunder (provided, that, the Collateral
Account and the Liquid Collateral shall only secure the Secured Obligations
relating to any Series C Certificates outstanding after the Delivery Date that
are subject to prepayment on the Series C Prepayment Date pursuant to Section
6.02(a)(viii) hereof);
(6) All requisition proceeds with respect to the Aircraft or
any part thereof (to the extent of the Owner Trustee's interest therein
pursuant to the terms of the Lease) and all insurance proceeds with respect to
the Aircraft or any part thereof from insurance required to be maintained by
the Lessee under Article 13 of the Lease, but excluding any insurance
maintained by the Lessee and not required under Article 13 of the Lease; and
(7) All proceeds of the foregoing.
EXCLUDING, HOWEVER, from the foregoing grant of the Lien and
security interest of this Indenture and from the Trust Indenture Estate, (i)
all Excepted Payments, including without limitation all right, title and
interest of the Owner Participant in, to and under the Tax Indemnity Agreement
and any moneys due or to become due under the Tax Indemnity Agreement and all
rights to collect and enforce Excepted Payments and (ii) rights granted to or
retained by the Owner Trustee or the Owner Participant hereunder and SUBJECT TO
the following provisions:
(a) (i) whether or not an Indenture Event of Default shall
occur and be continuing, the Owner Trustee and the Owner Participant shall at
all times retain the right, to the exclusion of the Indenture Trustee, (A) to
Excepted Payments and to commence an action at law to obtain such Excepted
Payments and (B) to adjust Basic Rent and the percentages relating to
Stipulated Loss Value and Termination Value and the EBO Price as provided in
Section 3.04 of the Lease and Section 15.01 of the Participation Agreement, (C)
to exercise any election or option to make any decision or determination, or to
give or receive any notice, consent, waiver or approval, or to take any other
action in respect of, but in each case only to the extent relating to, Excepted
Payments (except for, in respect of Basic Rent constituting an Excepted
Payment, the manner by which such amount is paid), (D) to retain the rights of
the "Lessor" with respect to solicitations of bids, and the election to retain
the Aircraft, pursuant to Article 10 of the Lease, (E) to retain the right of
"Lessor" to determine the Fair Market Rental or Fair Market Value pursuant to
Article 4 of the Lease, (F) to retain all rights with respect to insurance
maintained for its own account which Section 13.05 of the Lease specifically
confers on the "Lessor" and (G) to exercise, to the extent necessary to enable
it to exercise its rights under Section 8.03 hereof, the rights of the "Lessor"
under Section 17.04 of the Lease;
(ii) whether or not an Indenture Event of Default shall occur
and be continuing, the Owner Trustee and the Indenture Trustee shall each have
the rights separately but not to the exclusion of the other (agreement of both
required in the case of clause (E) below), (A) to receive from the Lessee all
notices, certificates, reports, filings, opinions of counsel, copies of all
documents and all information which the Lessee is permitted or required to give
or furnish to the "Lessor" pursuant to the Lease or to the Owner Trustee
pursuant to any other Operative Agreement, (B) to exercise inspection rights
pursuant to Section 14.01 of the Lease (provided that if an Indenture Event of
Default shall be continuing, no inspection right of the Owner Trustee shall
interfere with the efforts of the Indenture Trustee to exercise remedies under
the Lease or this Indenture), (C) to maintain separate insurance pursuant to
Section 13.05 of the Lease and to retain all rights with respect to such
insurance maintained for its own account, (D) to give any notice of default
under Section 16.01 of the Lease and to declare the Lease in default in respect
thereof, and (E) the right to consent to changes to the list of countries on
Schedule III to the Participation Agreement;
(iii) (A) so long as no Indenture Event of Default shall have
occurred and be continuing (but subject to the provisions of Section 8.01
hereof), the Owner Trustee shall retain the right, to the exclusion of the
Indenture Trustee, to approve as satisfactory any accountants, engineers,
appraisers or counsel to render services for or issue appraisals, reports,
certificates or opinions to the Owner Trustee pursuant to express provisions of
the Operative Agreements, and (B) so long as no Indenture Event of Default not
constituting an Event of Default shall have occurred and be continuing (but
subject to the provisions of Section 8.01 hereof), the Owner Trustee shall
retain the right, jointly with the Indenture Trustee (agreement of both not
being required), to further assurances and financial information from the
Lessee pursuant to Section 19.01 of the Lease (other than the right to receive
any funds to be delivered to the "Lessor" under the Lease (except funds
delivered with respect to Excepted Payments) and under the Purchase Agreement;
and
(iv) at all times the Owner Trustee shall have the right as
Lessor, but not to the exclusion of the Indenture Trustee, to seek specific
performance of the covenants of the Lessee under the Lease relating to the
protection, insurance, maintenance, possession and use of the Aircraft.
(b) The leasehold interest granted to the Lessee by the Lease
shall not be subject to the security interest granted by this Indenture, and
nothing in this Indenture shall affect the rights of the Lessee under the Lease
so long as no Event of Default has occurred and is continuing.
HABENDUM CLAUSE
TO HAVE AND TO HOLD the aforesaid property unto the Indenture
Trustee, its successors and assigns, in trust for the equal and ratable benefit
and security of the Holders from time to time of the Certificates, without any
priority of any one Certificate over any other and for the uses and purposes
and subject to the terms and conditions set forth in this Indenture.
It is expressly agreed that anything contained in this Indenture
to the contrary notwithstanding, the Owner Trustee shall remain liable under
the Indenture Documents to perform all of the obligations assumed by it under
any of those documents, all in accordance with and pursuant to the terms and
provisions of those documents, and the Indenture Trustee and the Holders of the
Certificates shall have no obligation or liability under the Indenture
Documents by reason of or arising out of the assignment under this Indenture,
nor shall the Indenture Trustee or the Holders of the Certificates be required
or obligated in any manner to perform or fulfill any obligations of the Owner
Trustee under or pursuant to the Indenture Documents or, except as expressly
provided in this Indenture, 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.
Effective upon the occurrence and continuance of an Indenture
Event of Default, the Owner Trustee hereby constitutes the Indenture Trustee
the true and lawful attorney of the Owner Trustee, irrevocably, with full power
(in the name of the Owner Trustee or otherwise), subject to the terms and
conditions of this Indenture, to ask, require, demand, receive, compound and
give acquittance for any and all Basic Rent, Supplemental Rent payable to the
Owner Trustee, Stipulated Loss Value and Termination Value payments, insurance
proceeds and any and all moneys and claims for moneys due and to become due
under or arising out of the Lease (subject to Section 8.01 hereof) or the other
Indenture Documents (other than Excepted Payments), to endorse any checks or
other instruments or orders in connection with the same and to file any claims,
take any action or institute any proceeding which the Indenture Trustee may
deem to be necessary or advisable in the premises.
Under the Lease the Lessee is directed to make all payments of
Rent (other than Excepted Payments not constituting Basic Rent) payable to the
Owner Trustee and all other amounts (other than Excepted Payments not
constituting Basic Rent) which are required to be paid to or deposited with the
Owner Trustee pursuant to the Lease directly to the Indenture Trustee at such
address in the United States of America as the Indenture Trustee shall specify
for application as provided in this Indenture. The Owner Trustee agrees that
if, notwithstanding such provision, it shall have received any such amounts,
promptly on receipt of any such payment, it will transfer to the Indenture
Trustee any and all moneys from time to time received by the Owner Trustee
constituting part of the Trust Indenture Estate for distribution by the
Indenture Trustee pursuant to this Indenture, except that the Owner Trustee
shall accept for distribution pursuant to the Trust Agreement (i) any amounts
distributed to it by the Indenture Trustee under this Indenture, and (ii) any
Excepted Payments not constituting Basic Rent.
The Owner Trustee agrees that at any time and from time to time,
upon the written request of the Indenture Trustee, the Owner Trustee will
promptly and duly execute and deliver or cause to be duly executed and
delivered any and all such further instruments and documents as the Indenture
Trustee may reasonably deem desirable in obtaining the full benefits of the
assignment hereunder and of the rights and powers herein granted; provided,
however, that the Owner Trustee shall have no obligation to execute and deliver
or cause to be executed or delivered to the Indenture Trustee any such
instrument or document if such execution and delivery would result in the
imposition of additional liabilities on the Owner Trustee or the Owner
Participant or would result in a burden on the Owner Participant's business
activities, unless the Owner Trustee or the Owner Participant, as the case may
be, is indemnified to its reasonable satisfaction against any losses,
liabilities and expenses incurred in connection with such execution and
delivery.
The Owner Trustee does hereby warrant and represent that it has
not assigned, pledged or otherwise disposed of, and hereby covenants that it
will not assign or pledge or otherwise dispose of, so long as the assignment
hereunder shall remain in effect, any of its right, title or interest hereby
assigned, to anyone other than the Indenture Trustee, and that it will not,
except in respect of Excepted Payments or otherwise as provided in or permitted
by this Indenture, accept any payment from the Lessee or any sublessee, enter
into an agreement amending or supplementing any of the Operative Agreements,
execute any waiver or modification of, or consent under the terms of any of the
Operative Agreements, settle or compromise any claim (other than claims in
respect of Excepted Payments) against the Lessee arising under any of the
Operative Agreements, or submit or consent to the submission of any dispute,
difference or other matter arising under or in respect of any of the Operative
Agreements, to arbitration thereunder.
Concurrently with the delivery of this Indenture, the Owner
Trustee has delivered to the Indenture Trustee executed counterparts of the
Trust Agreement and the chattel paper original counterpart of the Lease.
It is hereby further covenanted and agreed by and between the
parties as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Unless the context otherwise
requires, capitalized terms utilized herein shall have the meanings set forth
in Schedule II hereto for all purposes of this Indenture and shall be equally
applicable to both the singular and plural forms of the terms defined.
ARTICLE II
ISSUE, EXECUTION, FORM AND
REGISTRATION OF CERTIFICATES;
COLLATERAL ACCOUNT
Section 2.01. Authentication and Delivery of Certificates.
Forthwith upon the execution and delivery of the Original Indenture, and from
time to time thereafter, Certificates in an aggregate principal amount not in
excess of the amount specified in Section 2.04 hereof (except as otherwise
provided in Sections 2.06 and 2.07 hereof) were or shall be, as the case may
be, executed by the Owner Trustee and delivered to the Indenture Trustee for
authentication, and the Indenture Trustee thereupon did or shall, as the case
may be, authenticate and deliver said Certificates to or upon the oral or
written order of the Owner Trustee, signed, if written, by an authorized
officer of the Owner Trustee, without any further action by the Owner Trustee.
Section 2.02. Execution of Certificates. The Certificates shall
be signed on behalf of the Owner Trustee by an authorized officer of SSB. Such
signatures may be the manual or facsimile signatures of such officer and minor
errors or defects in any reproduction of any such signature shall not affect
the validity or enforceability of any Certificate which has been duly
authenticated and delivered by the Indenture Trustee.
In case any officer of SSB who shall have signed any of the
Certificates shall cease to be such officer before the Certificate so signed
shall be authenticated and delivered by the Indenture Trustee or disposed of by
SSB, such Certificate nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Certificate had not ceased to
be such officer of SSB; and any Certificate may be signed on behalf of the
Owner Trustee by such person or persons as, at the actual date of the execution
of such Certificate, shall be the proper officers of SSB, although at the date
of the execution and delivery of this Indenture any such person was not such an
officer. Certificates bearing the facsimile signatures of individuals who were
authorized officers of SSB at the time such Certificates were issued 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
Certificates or did not hold such offices at the respective dates of such
Certificates.
Section 2.03. Certificate of Authentication. Only such
Certificates as shall bear thereon a certificate of authentication
substantially in the form set forth in Exhibit B, executed by the Indenture
Trustee by manual signature of one of its authorized officers, shall be
entitled to the security and benefits of this Indenture or be valid or
obligatory for any purpose. Such certificate by the Indenture Trustee upon any
Certificate executed by the Owner Trustee shall be conclusive evidence that the
Certificate so authenticated has been duly authenticated and delivered
hereunder and that the Holder, as evidenced on the Register, is entitled to the
security and benefits of this Indenture.
Section 2.04. Form and Terms of Certificates; Payments of
Principal, Make- Whole Premium and Interest. The Certificates and the
Indenture Trustee's certificate of authentication shall be substantially in the
form set forth in Exhibit B hereto. Certificates may differ with respect to
Maturity and as to other terms. The Certificates shall be issuable as
registered securities without coupons and shall be numbered, lettered, or
otherwise distinguished in such manner or in accordance with such plans as the
Owner Trustee executing the same may determine with the approval of the
Indenture Trustee.
The aggregate principal amount of Certificates that may be
authenticated and delivered under this Indenture is limited as provided in the
form of Certificate attached as Exhibit B hereto. The Certificates shall be
issued in registered form only and in denominations of $1,000 and any integral
multiple thereof, shall be dated the Certificate Closing Date, shall be issued
in three separate series consisting of Series A, Series B and Series C and
shall be issued in the Maturities and principal amounts, and shall bear
interest at the rates per annum, specified in the form of Certificate set forth
in ExhibitB.
Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage.
Each Certificate shall bear interest from the date of original
issuance thereof or from the most recent date to which interest has been paid
and duly provided for, as the case may be, which shall be payable on the dates
specified on the face of the form of Certificate set forth in Exhibit B hereto
until the principal thereof is paid. Interest shall be calculated on the basis
of a 360-day year of twelve 30-day months.
Notwithstanding the preceding paragraph, each Certificate shall
bear interest at the Past Due Rate on any principal, interest and any other
amount payable hereunder or under such Certificate, which shall not be paid in
full when due (whether at stated maturity, by acceleration, by mandatory
prepayment or otherwise), for the period from and including the due date
thereof to but excluding the date the same is paid in full, payable from time
to time on demand of the Indenture Trustee.
The principal of, and Make-Whole Premium, if any, and interest
on, the Certificates shall be payable at the Corporate Trust Department of the
Indenture Trustee or at any office or agency maintained for such purpose
pursuant to Section 3.02 hereof; provided, however, that interest may be
payable at the option of the Indenture Trustee or its Paying Agent, as defined
in Section 3.04, by mailing checks for such interest payable to or upon the
written order of the Holders entitled thereto as they shall appear on the
Register. If any amount payable under the Certificates, or under this
Indenture, falls due on a day that is not a Business Day, then such sum shall
be payable on the next succeeding Business Day, without (provided that payment
is made on such next succeeding Business Day) additional interest thereon for
the period of such extension.
The Holder at the close of business on any Record Date with
respect to any Payment Date shall be entitled to receive the interest if any
payable on such Payment Date notwithstanding any transfer or exchange of such
Certificate subsequent to the Record Date and prior to such Payment Date,
except if and to the extent the Owner Trustee shall default in the payment of
the interest due on such Payment Date, in which case such defaulted interest
shall be paid to the Holder at the close of business on a subsequent Record
Date (which shall be not less than five (5) or more than fifteen (15) Business
Days prior to the date of payment of such defaulted interest) established by
notice given by mail by or on behalf of the Owner Trustee to the Holders not
less than fifteen (15) days preceding such subsequent Record Date.
The Owner Trustee agrees to pay to the Indenture Trustee for
distribution in accordance with Section 5.04 hereof (a) any and all indemnity
amounts received by the Owner Trustee which are payable by the Lessee to (i)
the Indenture Trustee in its individual capacity, (ii) the Subordination Agent
or (iii) each Liquidity Provider, in each case pursuant to Article 8 or 9 of
the Participation Agreement (it being acknowledged that the Lessee has been
instructed to pay such amounts to the Person or Persons entitled thereto) and
(b) the Owner Trustee's pro rata share of all amounts owed to each Liquidity
Provider by the Subordination Agent under each Liquidity Facility other than
amounts due as (i) repayments of the principal of advances thereunder, and (ii)
interest on Interest Drawings and Final Drawings except to the extent included
in Net Interest and Related Charges. As used in this Section, the Owner
Trustee's pro rata share means as of any time:
(A) with respect to all amounts other than Net
Interest and Related Charges, a fraction the numerator of which
is the aggregate principal balance then outstanding of the
Certificates issued under this Indenture (other than the Series C
Certificates) and the denominator of which is the aggregate
principal balance of all Certificates issued under this Indenture
and the Related Indentures (other than the Series C
Certificates), plus
(B) with respect to all Net Interest and Related
Charges (x) if there exists a Payment Default under any
Certificate issued under this Indenture a fraction, the numerator
of which is the aggregate principal balance then outstanding of
Certificates issued under this Indenture (other than the Series C
Certificates) and the denominator of which is the aggregate
principal balance then outstanding of all Certificates issued
under this Indenture and the Related Indentures (other than the
Series C Certificates) under which there exists a Payment Default
or (y) at all other times, zero.
As used in this Section, "Net Interest and Related Charges" means the sum of
(i) the amount, if any, by which interest payable to each Liquidity Provider on
any Interest Drawing and/or Final Drawing exceeds the amount which would be
payable if such drawings bore interest at the weighted average Past Due Rate
applicable to amounts in default on all Certificates plus (ii) any amounts
payable under Section 3.01, Section 3.02, Section 3.03, Section 3.09 or Section
7.07 of each Liquidity Facility (or similar provisions of any replacement
Liquidity Facility) which result from any Interest Drawing or Final Drawing.
As used in this Section, a Payment Default when used in connection with a
Certificate issued hereunder or a Certificate issued under any Related
Indenture means a default in the payment of principal thereof or interest
thereon (which default has not been cured), other than solely because of
acceleration.
Section 2.05. Payments from Trust Indenture Estate Only. All
payments to be made by the Owner Trustee under this Indenture shall be made
only from the income and the proceeds from the Lessor's Estate to the extent
included in the Trust Indenture Estate and from any other amounts of the type
described in Section 5.01 hereof to the extent actually received by the
Indenture Trustee and only to the extent that the Owner Trustee shall have
sufficient income or proceeds from the Lessor's Estate to the extent included
in the Trust Indenture Estate (and such other amounts) to enable the Indenture
Trustee to make distributions of the amounts due in respect of the Certificates
in accordance with the terms hereof and thereof. Each Holder by its acceptance
of a Certificate agrees that it will look solely to the income and proceeds
from the Trust Indenture Estate (and such other amounts of the type described
in Section 5.01 hereof and Section 17.02(e) of the Participation Agreement to
the extent actually received by the Indenture Trustee) to the extent available
for distribution to it as provided herein and that neither the Owner
Participant, the Owner Trustee, SSB nor the Indenture Trustee is personally
liable to such Holder for any amounts payable under this Indenture or such
Certificate or for any amounts payable or liability under any Certificate or
this Indenture, except as expressly provided herein in the case of SSB, the
Owner Trustee or the Indenture Trustee.
SSB is not personally liable to any Holder, the Lessee, the Owner
Participant or the Indenture Trustee for any amounts payable under this
Indenture or for any liability under this Indenture or the Certificates, except
as a result of SSB's gross negligence or willful misconduct, or as otherwise
expressly provided herein or in the Participation Agreement.
If (1) all or any part of the Lessor's Estate becomes the
property of a debtor subject to the reorganization provisions of the Bankruptcy
Code, (2) pursuant to such reorganization provisions the Owner Participant is
required, by reason of the Owner Participant being held to have recourse
liability to the debtor or the trustee of the debtor directly or indirectly, to
make payment on account of any amount payable as principal of or interest,
Make-Whole Premium or other amounts payable on the Certificates, and (3) the
Indenture Trustee actually receives any Recourse Amount which reflects any
payment by the Owner Participant on account of (2) above, then the Indenture
Trustee shall promptly refund to the Owner Participant such Recourse Amount.
Nothing contained in this paragraph shall prevent the Indenture Trustee from
enforcing any personal recourse obligation (and retaining the proceeds thereof)
of the Owner Participant under the Participation Agreement, or from retaining
any amount paid by the Owner Participant under Sections 5.01, 8.02 and 8.03
hereof.
Section 2.06. Registration, Transfer and Exchange. The
Indenture Trustee will keep, on behalf of the Owner Trustee, at each office or
agency to be maintained for the purpose as provided in Section 3.02 hereof a
Register or Registers on which, subject to such reasonable regulations as it
may prescribe, it will register, and will register the transfer of,
Certificates as provided in this Article. Such Register shall be in written
form in the English language or in any other form capable of being converted
into such form within a reasonable period of time.
Upon due presentation for registration of transfer of any
Certificate at any such office or agency, the Owner Trustee shall execute and
the Indenture Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Certificate or Certificates of the same Series
and Maturity and interest rate and in authorized denominations for an equal
aggregate principal amount.
Any Certificate or Certificates may be exchanged for a
Certificate or Certificates of the same Series and Maturity and interest rate
but in other authorized denominations, in an equal aggregate principal amount.
Certificates to be exchanged shall be surrendered at any office or agency to be
maintained by the Indenture Trustee for the purpose as provided in Section 3.02
hereof, and the Owner Trustee shall execute and the Indenture Trustee shall
authenticate and deliver in exchange therefor the Certificate or Certificates
which the Holder making the exchange shall be entitled to receive, bearing
numbers not contemporaneously or previously outstanding.
All Certificates presented for registration of transfer,
exchange, prepayment or payment shall (if so required by the Owner Trustee or
the Indenture Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Owner Trustee
and the Indenture Trustee duly executed by the Holder or its attorney duly
authorized in writing and (except in the case of transfers pursuant to Section
15.01 of the Participation Agreement) the Indenture Trustee may require
evidence satisfactory to it as to the compliance of any such transfer with the
Securities Act.
The Indenture Trustee may require payment from the Holder of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any exchange or registration of transfer of
Certificates. No service charge shall be levied for any such transaction.
The Indenture Trustee shall not be required to exchange or
register a transfer of any Certificates (a) for a period of fifteen (15) days
immediately preceding the first mailing of notice of prepayment of such
Certificates or (b) with respect to which notice of prepayment has been given
pursuant to Section6.03 hereof and such notice has not been revoked.
All Certificates issued upon any transfer or exchange of
Certificates shall be valid obligations of the Owner Trustee, evidencing the
same debt, and entitled to the same security and benefits under this Indenture,
as the Certificates surrendered upon such transfer or exchange.
Section 2.07. Mutilated, Defaced, Destroyed, Lost and Stolen
Certificates. In case any temporary or definitive Certificate shall become
mutilated, defaced or be apparently destroyed, lost or stolen, the Owner
Trustee in its discretion may execute, and upon the oral or written request of
any officer of SSB, the Indenture Trustee shall authenticate and deliver, a new
Certificate of like Maturity, bearing a number not contemporaneously or
previously outstanding, in exchange and substitution for the mutilated or
defaced Certificate, or in lieu of and substitution for the Certificate so
apparently destroyed, lost or stolen. In the case of any Certificate so
apparently destroyed, lost or stolen, the applicant for a substitute
Certificate shall furnish to the Owner Trustee and to the Indenture Trustee
such security or indemnity as may be required by them to indemnify and defend
and to save each of them harmless and evidence to their satisfaction of the
apparent destruction, loss or theft of such Certificate and of the ownership
thereof.
Upon the issuance of any substitute Certificate, the Owner
Trustee or the Indenture Trustee may require payment from the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses connected therewith. In
case any Certificate which has matured or is about to mature, or has been
called for prepayment in full, shall become mutilated or defaced or be
apparently destroyed, lost or stolen, the Owner Trustee may, instead of issuing
a substitute Certificate, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated or defaced Certificate), if
the applicant of any Certificate so apparently destroyed, lost or stolen, for
such payment shall furnish to the Owner Trustee and to the Indenture Trustee
such security or indemnity as any of them may require to save each of them
harmless and the applicant shall also furnish to the Owner Trustee and the
Indenture Trustee evidence to their satisfaction of the apparent destruction,
loss or theft of such Certificate and of the ownership thereof.
Every substitute Certificate issued pursuant to the provisions of
this Section by virtue of the fact that any Certificate is apparently
destroyed, lost or stolen shall constitute an original additional contractual
obligation of the Owner Trustee, whether or not the apparently destroyed, lost
or stolen Certificate shall be enforceable at any time by anyone and shall be
entitled to all the security and benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and proportionately
with any and all other Certificates duly authenticated and delivered hereunder.
All Certificates shall be held and owned upon the express condition that, to
the extent permitted by law, the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, defaced, or apparently
destroyed, lost or stolen Certificates and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
Section 2.08. Cancellation of Certificates; Destruction Thereof.
All Certificates surrendered for payment, prepayment, registration of transfer
or exchange, if surrendered to the Owner Trustee or any agent of the Owner
Trustee or the Indenture Trustee, shall be delivered to the Indenture Trustee
for cancellation or, if surrendered to the Indenture Trustee, shall be
cancelled by it; and no Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Indenture
Trustee shall destroy cancelled Certificates held by it and deliver a
certificate of destruction to the Owner Trustee. If the Owner Trustee shall
acquire any of the Certificates, such acquisition shall not operate as a
prepayment or satisfaction of the indebtedness represented by such Certificates
unless and until the same are delivered to the Indenture Trustee for
cancellation.
Section 2.09. Temporary Certificates. Pending the preparation
of definitive Certificates, the Owner Trustee may execute and, upon the oral or
written request of an officer of SSB, the Indenture Trustee shall authenticate
and deliver temporary Certificates (printed, lithographed, typewritten or
otherwise reproduced, in each case in form satisfactory to the Indenture
Trustee). Temporary Certificates shall be issuable as registered Certificates
without coupons, of any authorized denomination, and substantially in the form
of the definitive Certificates but with such omissions, insertions and
variations as may be appropriate for temporary Certificates, all as may be
determined by the Owner Trustee with the concurrence of the Indenture Trustee.
Temporary Certificates may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Certificate shall be executed
by the Owner Trustee and, upon the oral or written request of an authorized
officer of the Owner Trustee, be authenticated by the Indenture Trustee upon
the same conditions and in substantially the same manner, and with like effect,
as the definitive Certificates. Without unreasonable delay the Owner Trustee
shall execute and shall furnish definitive Certificates and thereupon temporary
Certificates shall be surrendered in exchange therefor without charge at any
office or agency to be maintained by the Indenture Trustee for the purpose
pursuant to Section 3.02 hereof, and, upon the oral or written request of an
authorized officer of the Owner Trustee, the Indenture Trustee shall
authenticate and deliver in exchange for such temporary Certificates an equal
aggregate principal amount of definitive Certificates of the same Series and
Maturities and interest rates and in authorized denominations. Until so
exchanged, temporary Certificates shall be entitled to the same security and
benefits under this Indenture as definitive Certificates.
Section 2.10. Termination of Interest in Trust Indenture Estate.
A Holder shall not, as such, have any further interest in, or other right with
respect to, the Trust Indenture Estate when and if the principal amount of and
Make-Whole Premium, if any, and interest on and other amounts due under all
Certificates held by such Holder and all other sums payable to such Holder
hereunder and under the other Operative Agreements shall have been paid in
full.
Section 2.11. Certificates in Respect of Replacement Aircraft.
Upon the execution and delivery of an Indenture and Security Agreement
Supplement covering a Replacement Airframe and/or Replacement Engine, as
provided in Section 9.09 hereof, each Certificate shall be deemed to have been
issued in connection with such Replacement Airframe and/or Replacement Engine
and each Certificate issued thereafter upon a transfer or exchange of, or as a
replacement for, a Certificate, shall be designated as having been issued in
connection with such Replacement Airframe and/or Replacement Engine, but
without any other change therein except as provided for in this Article II.
Section 2.12. Assumption of Obligations Under Certificates and
Other Operative Agreements. If, in accordance with and subject to the
satisfaction of the conditions set forth in Section 7.11 of the Participation
Agreement, the Lessee shall assume all of the obligations of the Owner Trustee
hereunder, under the Certificates and all other Operative Agreements, the Owner
Participant and the Owner Trustee shall be released and discharged from any
further obligations hereunder and under the Certificates and all other
Operative Agreements (except any obligations that have accrued prior to such
assumption).
Section 2.13. Establishment of Collateral Account. On the
Certificate Closing Date, the Indenture Trustee, pursuant to the Collateral
Agreement, established with State Street Bank and Trust Company in its name as
secured party hereunder an Eligible Deposit Account entitled "First Security
Bank, National Association, as secured party under the Trust Indenture and
Security Agreement (Federal Express Corporation Trust No. N677FE) dated as of
June 15, 1998, with the Owner Trustee referred to therein".
Section 2.14. Investment of Funds on Deposit in the Collateral
Account. (a) Funds deposited in the Collateral Account shall be invested and
reinvested by the Indenture Trustee, subject to Section 17.02 of the
Participation Agreement, at the risk of the Owner Trustee, in Specified
Investments selected by the Lessee and approved by the Indenture Trustee for
the account of the Owner Trustee in accordance with Section 2.14(b) below;
provided, however, that if Specified Investments meeting the requirements of
Section 2.14(b) are not available on any day on which funds are to be invested
as contemplated by the preceding provisions of this Section 2.14(a), the
Indenture Trustee may leave such funds in the Collateral Account uninvested
until the earlier of (i) the date on which an appropriate Specified Investment
becomes available and (ii) the date on which the Lien of this Indenture on the
Collateral Account and the Liquid Collateral shall be terminated. The
Indenture Trustee shall maintain possession of the negotiable instruments or
securities, if any, evidencing such Specified Investments and, in the case of
any Specified Investments in book-entry form, such Specified Investments shall
be credited to an account of the Indenture Trustee or a financial intermediary
with the applicable Federal Reserve Bank; provided, however, if the account is
credited to the financial intermediary, the financial intermediary shall make
written confirmation thereof to the Indenture Trustee and make an appropriate
entry on its books identifying the Specified Investments as pledged to the
Indenture Trustee. All proceeds of and any income, interest and other payments
and distributions on or with respect to any Specified Investments shall be
deposited in or credited to the Collateral Account and thereafter shall be
held, invested and applied by the Indenture Trustee in accordance with this
Indenture. The Indenture Trustee shall promptly notify the Owner Trustee and
the Lessee of any Losses.
(b) Any amount remaining in the Collateral Account after the
Delivery Date shall be invested in Specified Investments which mature on or
prior to the Series C Prepayment Date. Notwithstanding anything to the
contrary in this subsection (b), the Indenture Trustee shall invest the amounts
deposited in the Collateral Account in a manner which shall result in cash
being available in the Collateral Account which shall be used by the Indenture
Trustee to pay a portion of interest payable on each Certificate secured by the
Collateral Account on each Payment Date during the period in which funds are on
deposit in the Collateral Account.
(c) If for any reason the Indenture Trustee shall be required to
make any distributions of the Liquid Collateral prior to the maturity date of
any Specified Investment, the Indenture Trustee shall cause the same to be sold
in accordance with standard commercial practices, and the Lessee, for the
account of the Owner Trustee, shall forthwith pay to the Subordination Agent an
amount equal to any Losses as provided in Section 17.02(a) of the Participation
Agreement.
(d) Pursuant to Section 17.02(b) of the Participation Agreement,
interest payable on the Certificates during the period in which funds are on
deposit in the Collateral Account shall be paid by the Lessee to the extent
such interest payable is in excess of any earnings on investments in the
Collateral Account for the period of accrual of such interest.
Section 2.15. Amounts in the Collateral Account on Delivery
Date. Any amounts remaining in the Collateral Account after release of the
amounts required to finance the Debt Portion shall be retained in the
Collateral Account until the Series C Prepayment Date to secure the Secured
Obligations relating to any Series C Certificates subject to prepayment
pursuant to Section 6.02(a)(viii) hereof; provided, that, any portion of such
amounts so retained may be released from the Collateral Account by the
Indenture Trustee prior to the Series C Prepayment Date pursuant to Section
2.19 hereof. The aggregate principal amount of the Series C Certificates which
are subject to prepayment pursuant to Section 6.02(a)(viii) hereof shall be set
forth in a written notice by the Lessee to the Indenture Trustee in accordance
with Section 2.03(b) of the Original Participation Agreement. Any such amount
retained in the Collateral Account shall be invested in Specified Investments
pursuant to Section 2.14(b) hereof.
Section 2.16. Series C Prepayment Date. On the Series C
Prepayment Date, in the case of a prepayment under Section 6.02(a)(viii)
hereof, the Indenture Trustee shall release from the Collateral Account all
amounts held in the Collateral Account on such date. Such amounts so released,
together with the amount of any Losses paid by the Lessee to the Subordination
Agent pursuant to Sections 17.02(a) and 17.02(c) of the Participation
Agreement, shall be applied to pay all amounts due under Section 6.02(b)(1)
hereof on the Series C Prepayment Date, whereupon the Lien of this Indenture on
the Collateral Account and the Liquid Collateral shall terminate and any amount
(net of any unpaid Losses) remaining after such release and application shall
be remitted by the Indenture Trustee, on behalf of the Owner Trustee, to the
Lessee.
Section 2.17. Subordination. (a) The Owner Trustee and, by
acceptance of its Certificates of any Series, each 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 Certificate 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 clause (v), (vi) or
(vii) of Section 7.01 hereof, except as expressly provided in Article V hereof.
(b) By the acceptance of its Certificates of any
Series (other than Series A), each Holder of such Series agrees that in the
event that such Holder, in its capacity as a Holder, shall receive any payment
or distribution on any Secured Obligations in respect of such Series which it
is not entitled to received under this Section 2.17 or Article V hereof, it
will hold any amount so received in trust for the Senior Holder (as defined in
Section 2.17(c) hereof) and will forthwith turn over such payment to the
Indenture Trustee in the form received to be applied as provided in Article V
hereof.
(c) As used in this Section 2.17, the term "Senior
Holder" shall mean, (i) the Holders of Series A Certificates until the Secured
Obligations in respect of Series A Certificates have been paid in full, (ii)
after the Secured Obligations in respect of Series A Certificates have been
paid in full, the Holders of Series B Certificates until the Secured
Obligations in respect of Series B Certificates have been paid in full and
(iii) after the Secured Obligations in respect of Series B Certificates have
been paid in full, the Holders of Series C Certificates until the Secured
Obligations in respect of Series C Certificates have been paid in full.
Section 2.18. Reoptimization. The Owner Trustee shall have the
right, on any Adjustment Date and on the Series C Prepayment Date in the event
of any prepayment of Series C Certificates pursuant to Section 6.02(a)(viii)
hereof, to modify the schedule of principal payments of the Certificates
subject to the terms and conditions set forth in Section 2.03(b) of the
Original Participation Agreement. To give effect to the foregoing, Schedule I
to the Indenture and each Certificate shall be amended accordingly. The
Indenture Trustee shall deliver such amendments to the Subordination Agent on
behalf of the Pass Through Trustee for each of the Pass Through Trusts.
Section 2.19. Decrease in Principal Amount of Series C
Certificates. The principal amount of the Series C Certificates, if any, which
would otherwise be required to be prepaid pursuant to Section 6.02(a)(viii)
hereof, may be decreased upon written notice by the Lessee, on behalf of the
Owner Trustee, to the Indenture Trustee. In such event the Indenture Trustee
shall, if so instructed by the Lessee on behalf of the Owner Trustee, release a
corresponding amount from the Collateral Account and transfer such amount to
one or more Outstanding C Accounts. To give effect to the foregoing, Schedule
I to the Indenture and each Certificate shall be amended accordingly. The
Indenture Trustee shall deliver such amendments to the Subordination Agent on
behalf of the Pass Through Trustee for each of the Pass Through Trusts.
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal, Make-Whole Premium and
Interest. The Owner Trustee covenants and agrees that it will, subject to
Section 2.05 hereof, duly and punctually pay or cause to be paid the principal
of, and interest and Make-Whole Premium, if any, and all other amounts due on,
each of the Certificates and under this Indenture at the place or places, at
the respective times and in the manner provided in this Indenture and in the
Certificates.
Principal and interest and other amounts due hereunder or under
the Certificates shall be payable in dollars on the due date thereof, to the
Indenture Trustee at the Corporate Trust Department (or such other account at
such other financial institution as the Indenture Trustee may designate for the
purpose). If any amount payable under the Certificates or under this Indenture
falls due on a day which is not a Business Day, then such sum shall be payable
on the next succeeding Business Day, without (provided that payment is made on
such next succeeding Business Day) additional interest thereon for the period
of such extension.
Section 3.02. Offices for Payments, etc. So long as any of the
Certificates remain outstanding, the Indenture Trustee will maintain the
following: (a) an office or agency where the Certificates may be presented for
payment and (b) a facility or agency in New York, New York where the
Certificates may be presented for registration of transfer and for exchange and
for prepayment as provided in this Indenture (the "Registrar"). The Registrar
shall keep a register (the "Register") with respect to the Certificates and
their transfer and exchange. The Indenture Trustee may appoint one or more
co-registrars ("Co-Registrars") for the Certificates and may terminate any such
appointment at any time upon written notice. The term "Registrar" includes any
Co-Registrar.
The Indenture Trustee shall initially act as Registrar.
Section 3.03. Appointment to Fill a Vacancy in Office of
Indenture Trustee. The Owner Trustee, whenever necessary to avoid or fill a
vacancy in the office of Indenture Trustee, will, with the consent of the
Lessee, appoint, in the manner provided in Section 12.02 hereof, an Indenture
Trustee, so that there shall at all times be an Indenture Trustee hereunder.
Section 3.04. Paying Agents. Whenever the Indenture Trustee in
its sole discretion shall appoint a paying agent (the "Paying Agent"), it will
cause the Paying Agent to execute and deliver an instrument in which the Paying
Agent shall agree with the Indenture Trustee, subject to the provisions of this
Section:
(a) that it will hold all sums received by it as such agent for
the payment of the principal of, and interest and Make-Whole Premium, if
any, on the Certificates (whether such sums have been paid to it by the
Indenture Trustee or the Owner Trustee) in trust for the benefit of the
Holders or of the Indenture Trustee, and
(b) that it will give the Indenture Trustee notice of any
failure by the Owner Trustee to make any payment of the principal of or
interest or Make-Whole Premium, if any, on the Certificates when the same
shall be due and payable.
Anything in this Section to the contrary notwithstanding, the
agreements to hold sums in trust as provided in this Section are subject to the
provisions of Sections 14.03 and 14.04 hereof.
Section 3.05. Covenants of SSB and the Owner Trustee.
(a) SSB hereby covenants and agrees to perform its covenants set
forth in Sections 7.04(b) and 7.04(c) of the Participation Agreement.
(b) The Owner Trustee hereby covenants and agrees as follows:
(i) in the event a Responsible Officer of the Owner Trustee
shall have actual knowledge of an Indenture Event of Default, an Indenture
Default or an Event of Loss, the Owner Trustee will give prompt written
notice of such Indenture Event of Default, Indenture Default or Event of
Loss to the Indenture Trustee, the Lessee and the Owner Participant;
(ii) the Owner Trustee will furnish to the Indenture Trustee,
promptly upon receipt thereof, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and other
instruments furnished to the Owner Trustee under the Lease, including,
without limitation, a copy of each report or notice received pursuant to
Article 13 of the Lease, to the extent that the same shall not have been
furnished to the Indenture Trustee;
(iii) the Owner Trustee will not enter into any business or
other activity other than the business of owning the Aircraft, the leasing
thereof to the Lessee and the carrying out of the transactions
contemplated hereby and by the Lease, the Participation Agreement, the
Trust Agreement and the other Indenture Documents; and
(iv) except as contemplated by the Operative Agreements, the
Owner Trustee will not contract for, create, incur or assume 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 take action to
become contingently liable, directly or indirectly, in connection with the
debt of any other Person.
Section 3.06. [Reserved].
Section 3.07. Disposal of Trust Indenture Estate. At any time
and from time to time any part of the Trust Indenture Estate may be sold or
disposed of in accordance with the provisions of this Indenture and the Lease.
The Indenture Trustee shall, from time to time, release any part of the Trust
Indenture Estate so sold or disposed of or as to which an Event of Loss has
occurred or as to which the Lease has been terminated from the Lien of this
Indenture. In addition, to the extent that such property constitutes an
Airframe or Engine, the further requirements of Section 9.08 hereof shall be
complied with.
Section 3.08. No Representations or Warranties as to Aircraft or
Documents. NEITHER THE INDENTURE TRUSTEE NOR THE OWNER TRUSTEE NOR SSB NOR THE
OWNER PARTICIPANT MAKES OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, AIRWORTHINESS, WORKMANSHIP,
VALUE, CONDITION, DESIGN, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR USE OR
PURPOSE OF THE AIRCRAFT OR ANY ENGINE, OR ANY OTHER REPRESENTATION OR WARRANTY
WITH RESPECT TO THE AIRCRAFT OR ANY ENGINE WHATSOEVER, except that SSB warrants
that on the Delivery Date (a) the Owner Trustee shall have received whatever
title was conveyed to it by the Lessee, and (b) the Aircraft shall be free and
clear of Lessor's Liens attributable to SSB. Neither SSB, the Indenture
Trustee nor the Owner Participant makes or shall be deemed to have made any
representation or warranty as to the validity, legality or enforceability of
this Indenture, the Trust Agreement, the Certificates or any Indenture Document
or as to the correctness of any statement contained in any thereof, except for
the representations and warranties of SSB, the Indenture Trustee and the Owner
Participant made under this Indenture or in the Participation Agreement.
Section 3.09. Further Assurances; Financing Statements. At any
time and from time to time, upon the request of the Indenture Trustee or the
Lessee, the Owner Trustee shall promptly and duly execute and deliver any and
all such further instruments and documents as may be specified in such request
and as are necessary or advisable to perfect, preserve or protect the Liens and
assignments created or intended to be created hereby, or to obtain for the
Indenture Trustee the full benefit of the specific rights and powers granted
herein, including, without limitation, the execution and delivery of UCC
financing statements and continuation statements with respect thereto, or
similar instruments relating to the perfection of the Liens or assignments
created or intended to be created hereby.
ARTICLE IV
HOLDER LISTS
Section 4.01. Holder Lists; Ownership of Certificates. (a) The
Indenture Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Indenture Trustee is not the Registrar, the Registrar
shall furnish to the Indenture Trustee semi-annually not more than fifteen (15)
days after each Record Date, as of such Record Date, or at such other times as
the Indenture Trustee may request in writing, a list, in such form and as of
such date as the Indenture Trustee may reasonably require, containing all the
information in the possession or control of the Registrar as to the names and
addresses of the Holders and the amounts and Maturities of the Certificates
held by such Holders.
(b) Ownership of the Certificates shall be proved by the
Register kept by the Registrar.
ARTICLE V
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
Section 5.01. Basic Rent Distribution. Except as otherwise
provided in Section 5.03 hereof, each installment of Basic Rent, any payment of
interest on overdue installments of Basic Rent, any payment received by the
Indenture Trustee pursuant to Section 8.03(a) hereof and any payment received
by the Indenture Trustee pursuant to Section 17.02(b) or 17.02(c) of the
Participation Agreement shall be promptly distributed in the following order of
priority:
first, (i) so much of such installment or payment as shall
be required to pay in full the aggregate amount of the
payment or payments of Principal Amount and interest and
other amounts (as well as any interest on 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 A Certificates
shall be distributed to the Holders of Series A
Certificates ratably, without priority of one over the
other, in the proportion that the amount of such payment
or payments then due under each Series A Certificate bears
to the aggregate amount of the payments then due under all
Series A Certificates;
(ii) after giving effect to paragraph (i) above, 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 B Certificates shall be distributed
to the Holders of Series B Certificates ratably, without
priority of one over the other, in the proportion that the
amount of such payment or payments then due under each
Series B Certificate bears to the aggregate amount of the
payments then due under all Series B Certificates; and
(iii) after giving effect to paragraph (ii) above, 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 C Certificates shall be distributed
to the Holders of Series C Certificates 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 Certificate bears to the aggregate amount of the
payments then due under all Series C Certificates; and
second, the balance if any of such installment or payment
remaining thereafter shall be distributed to the Owner
Trustee, or as the Owner Trustee may request, for
distribution pursuant to the Trust Agreement.
Section 5.02. Event of Loss and Replacement; Prepayment. (a)
Except as otherwise provided in Section 5.03 hereof, any payment received by
the Indenture Trustee as the result of an Event of Loss with respect to the
Aircraft (including pursuant to Section 11.03(e) of the Lease, but, in the case
of said Section 11.03(e), subject to the time limits specified therein) or as
the result of, or in connection with any event under the Lease giving rise to,
a prepayment pursuant to Section 6.02 hereof, shall be promptly distributed by
the Indenture Trustee in the following order of priority:
first, to reimburse the Indenture Trustee for any costs or
expenses reasonably incurred in connection with such
prepayment,
second, (i) to pay the amounts specified in paragraph (i) of
clause "second" of Section 5.03 hereof then due and
payable in respect of the Series A Certificates;
(ii) after giving effect to paragraph (i) above, to pay
the amounts specified in paragraph (ii) of clause "second"
of Section 5.03 hereof then due and payable in respect of
the Series B Certificates; and
(iii) after giving effect to paragraph (ii) above, to
pay the amounts specified in paragraph (iii) of clause
"second" of Section 5.03 hereof then due and payable in
respect of the Series C Certificates;
provided that payments pursuant to this clause "second"
shall be made without the payment of Make-Whole Premium
except in the particular circumstances provided in Section
6.02(b) hereof; and
third, as provided in clause "third" of Section 5.03 hereof;
provided that if a Replacement Airframe shall be substituted for an Airframe
subject to an Event of Loss as provided in Section 11.03 of the Lease and
Section 9.08 hereof, any proceeds which result from such Event of Loss and are
paid to the Indenture Trustee shall be held by the Indenture Trustee as part of
the Trust Indenture Estate and, unless otherwise applied pursuant to Section
5.01 or 5.03 hereof, such proceeds shall be released to the Lessee upon the
release of such damaged Airframe and the replacement thereof as herein
provided.
(b) Any amounts received directly or indirectly from any
governmental authority, insurer or other party pursuant to any provision of
Article 11 or 13 of the Lease as the result of loss or damage not constituting
an Event of Loss with respect to the Aircraft, or as a result of such loss or
damage constituting an Event of Loss (x) if and to the extent that such amounts
would at the time be required to be paid to the Lessee pursuant to said Article
11 or 13 but for the fact that an Event of Default shall have occurred and be
continuing or (y) are pledged to the Lessor as security in connection with an
Event of Loss in accordance with Section 11.03(e) of the Lease, shall be held
by the Indenture Trustee as security for the obligations of the Lessee under
the Lease and the Participation Agreement and shall be invested in accordance
with the terms of Section 5.08 hereof and at such time as the conditions for
payment to the Lessee specified in said Article 11 or 13, as the case may be,
shall be fulfilled and there shall not be continuing any Event of Default, such
amount, and the proceeds of any investment thereof, shall, to the extent not
theretofore applied, be paid to the Lessee to the extent provided in the Lease.
Section 5.03. Payment After Indenture Event of Default, etc.
Except as otherwise provided in Sections 5.02(b), 5.04(b), 5.04(c) and 5.05
hereof, all payments (other than Excepted Payments) received and all amounts
held or realized by the Indenture Trustee (a)after an Indenture Event of
Default shall have occurred and so long as such an Indenture Event of Default
shall be continuing, and the Indenture Trustee has commenced the exercise of
remedies pursuant to Article VIII hereof, or (b)after the Certificates shall
have become due and payable as provided in Section 7.02(b) or (c) hereof, 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,
charge or other loss (including, without limitation, all
amounts to be expended at the expense of, or charged upon
the tolls, rents, revenues, issues, products and profits
of, the property included in the Trust Indenture Estate
pursuant to Section 7.03(b) hereof) incurred by the
Indenture Trustee (to the extent not previously
reimbursed) (including, without limitation, the expenses
of any sale, taking or other proceeding, attorneys' fees
and expenses, court costs, and any other expenditures
incurred or expenditures or advances made by the Indenture
Trustee or the Holders in the protection, exercise or
enforcement of any right, power or remedy or any damages
sustained by the Indenture Trustee or the Holders,
liquidated or otherwise, upon such Indenture Event of
Default) shall be applied by the Indenture Trustee as
between itself and the Holders in reimbursement of such
expenses;
second, (i) so much of such payments or amounts remaining as
shall be required to pay in full the aggregate unpaid
Principal Amount of all Series A Certificates, and the
accrued but unpaid interest and other amounts due thereon
and all other Secured Obligations (other than Make-Whole
Premium) in respect of the Series A Certificates to the
date of distribution, shall be distributed to the Holders
of Series A Certificates, and in case the aggregate amount
so to be distributed shall be insufficient to pay in full
as aforesaid, then ratably, without priority of one over
the other, in the proportion that the aggregate unpaid
Principal Amount of all Series A Certificates held by each
holder plus the accrued but unpaid interest and other
amounts due hereunder or thereunder (other than Make-Whole
Premium) to the date of distribution, bears to the
aggregate unpaid Principal Amount of all Series A
Certificates held by all such holders plus the accrued but
unpaid interest and other amounts due thereon (other than
Make-Whole Premium) to the date of distribution;
(ii) after giving effect to paragraph (i) above, so
much of such payments or amounts remaining as shall be
required to pay in full the aggregate unpaid Principal
Amount of all Series B Certificates, and the accrued but
unpaid interest and other amounts due thereon and all
other Secured Obligations (other than Make-Whole Premium)
in respect of the Series B Certificates to the date of
distribution, shall be distributed to the Holders of
Series B Certificates, and in case the aggregate amount so
to be distributed shall be insufficient to pay in full as
aforesaid, then ratably, without priority of one over the
other, in the proportion that the aggregate unpaid
Principal Amount of all Series B Certificates held by each
holder plus the accrued but unpaid interest and other
amounts due hereunder or thereunder (other than Make-
Whole Premium) to the date of distribution, bears to the
aggregate unpaid Principal Amount of all Series B
Certificates held by all such holders plus the accrued but
unpaid interest and other amounts due thereon (other than
Make-Whole Premium) to the date of distribution; and
(iii) after giving effect to paragraph (ii) above, so
much of such payments or amounts remaining as shall be
required to pay in full the aggregate unpaid Principal
Amount of all Series C Certificates, and the accrued but
unpaid interest and other amounts due thereon and all
other Secured Obligations (other than Make-Whole Premium)
in respect of the Series C Certificates to the date of
distribution, shall be distributed to the Holders of
Series C Certificates, 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 Certificates held by each
holder plus the accrued but unpaid interest and other
amounts due hereunder or thereunder (other than Make-
Whole Premium) to the date of distribution, bears to the
aggregate unpaid Principal Amount of all Series C
Certificates held by all such holders plus the accrued but
unpaid interest and other amounts due thereon (other than
Make-Whole Premium) to the date of distribution;
(it being understood that amounts payable under this
clause "second" shall not include Make-Whole Premium); and
third, the balance, if any of such payments or amounts remaining
thereafter shall be distributed to the Owner Trustee for
distribution pursuant to the Trust Agreement.
Section 5.04. Certain Payments. (a) Except as otherwise
provided in this Indenture, any payments received by the Indenture Trustee
which are to be applied according to any provision in any other Indenture
Document shall be applied thereunder in accordance therewith.
(b) The Indenture Trustee will distribute, promptly upon
receipt, any indemnity or other payment received by it from the Owner Trustee
or the Lessee in respect of (i) the Indenture Trustee in its individual
capacity, (ii) the Subordination Agent, (iii) each Liquidity Provider, and (iv)
the Pass Through Trustee, in each case whether pursuant to Article 8 or 9 of
the Participation Agreement or as Supplemental Rent, directly to the Person
(which may include the Indenture Trustee) entitled thereto. Any payment
received by the Indenture Trustee under clause (b) of the last paragraph of
Section 2.04 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 herein,
any sums received by the Indenture Trustee which constitute Excepted Payments
shall be distributed promptly upon receipt by the Indenture Trustee directly to
the Person or Persons entitled thereto.
Section 5.05. Other Payments. Any payments received by the
Indenture Trustee for which no provision as to the application thereof is made
elsewhere in this Indenture or in any other Indenture Document (including
without limitation Article9 of the Lease) shall be distributed by the Indenture
Trustee (a) to the extent received or realized at any time prior to thepayment
in full of all obligations to the Holders, in the order of priority specified
in Section 5.01 hereof, and (b)to the extent received or realized at any time
after payment in full of all obligations to the Holders, in the following order
of priority:
first, in the manner provided in clause "first" of Section 5.03
hereof and
second, in the manner provided in clause "third" of Section 5.03
hereof.
Section 5.06. Payments to Owner Trustee. Any amounts
distributed hereunder by the Indenture Trustee to the Owner Trustee shall be
paid to the Owner Trustee by wire transfer of immediately available 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 hereunder for distribution in
accordance with the Trust Agreement shall be distributed by wire transfer of
immediately available funds of the type received by the Indenture Trustee to
such account of the Owner Participant as may be specified pursuant to Section
2.06 of the Trust Agreement.
Section 5.07. Application of Payments. Each payment of
principal of and interest or other amounts due on each Certificate shall,
except as otherwise provided herein, be applied,
first, to the payment of interest on such Certificate due and
payable to the date of such payment, as provided in such
Certificate, as well as any interest on overdue principal
and Make-Whole Premium, if any, and, to the extent
permitted by law, interest and other amounts due
thereunder,
second, to the payment of any other amount (other than the
principal of such Certificate) due hereunder to the Holder
of such Certificate or under such Certificate,
third, to the payment of the principal of such Certificate if
then due hereunder or under such Certificate and
fourth, the balance, if any remaining thereafter, to the payment
of the principal of such Certificate remaining unpaid
(provided that such Certificate shall not be subject to
prepayment without the consent of the affected Holder
except as permitted by Sections 6.02, 6.06 and 8.02
hereof); provided that, solely for the purpose of
determining whether an Indenture Event of Default shall
have occurred and be continuing, each such payment shall
be deemed applied in the following order of priority:
first, in the manner provided in clause "first" above,
second, in the manner provided in clause "third" above,
third, in the manner provided in clause "second" above and
fourth, in the manner provided in clause "fourth" above.
Section 5.08. Investment of Amounts Held by Indenture Trustee.
Amounts held by the Indenture Trustee pursuant to Section 5.02(b) hereof or
pursuant to any provision of any Indenture Document providing for investment by
the Indenture Trustee of sums pursuant to Section 23.01 of the Lease or this
Section 5.08 shall be invested by the Indenture Trustee from time to time in
securities selected by (i) so long as no Event of Default shall have occurred
and be continuing, the Lessee (and in the absence of written direction by the
Lessee, the Indenture Trustee shall invest such monies in direct obligations of
the United States of America) or (ii) so long as an Event of Default shall have
occurred and be continuing, the Indenture Trustee and in each case shall be of
the type listed in clauses (i) through (iv) of Section 23.01 of the Lease.
Unless otherwise expressly provided in this 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 Lessee
shall be responsible for and will promptly pay to the Indenture Trustee or the
Lessor, as the case may be, on demand, the amount of any loss realized as the
result of any such investment (together with any fees, commissions and other
costs and expenses, if any, incurred by the Indenture Trustee or the Lessor in
connection with such investment), such amount to be disposed of in accordance
with the terms hereof or the Lease, as the case may be. The Indenture Trustee
shall not be liable for any loss resulting from any investment made by it under
this Indenture in accordance with instructions from the Lessee other than by
reason of its willful misconduct or gross negligence, and any such investment
may be sold (without regard to its maturity) by the Indenture Trustee without
instructions whenever the Indenture Trustee reasonably believes such sale is
necessary to make a distribution required by this Indenture.
Unless otherwise confirmed in writing, an account statement
delivered by the Indenture Trustee to the Owner Trustee (with a copy to the
Lessee) shall be deemed written confirmation by the Owner Trustee that the
investment transactions identified therein accurately reflect the investment
directions given to the Indenture Trustee by or on behalf of the Owner Trustee,
unless the Owner Trustee (or the Lessee on its behalf) notifies the Indenture
Trustee in writing to the contrary within 30 days of the date of receipt of
such statement.
Section 5.09. Withholding Taxes. The Indenture Trustee shall
withhold any Taxes required to be withheld, except to the extent that the
Holder has furnished evidence satisfactory to the Indenture Trustee of any
exemption from withholding claimed by such Holder and under no circumstances
shall the failure of any such Holder to receive any amounts so withheld
constitute an Indenture Event of Default. Notwithstanding any provision to the
contrary in Sections 5.01 through 5.05 hereof and subject to Article 8 of the
Participation Agreement, if the Lessee is required to pay any such Tax, or any
interest or penalty thereon, or to indemnify the Owner Participant or the Owner
Trustee with respect thereto pursuant to Section 8.01(c) of the Participation
Agreement, the Lessee shall be entitled to receive any payments otherwise
distributable to the Holder of any Certificate who was subject to such Tax
pursuant to Sections 5.01 to 5.05 hereof until the foregoing amounts shall have
been recovered in full by the Lessee.
ARTICLE VI
PREPAYMENT OF CERTIFICATES
Section 6.01. No Prepayment Prior to Maturity. Except as
provided in Sections 6.02, 6.06 and 8.02 hereof, the Certificates may not be
prepaid prior to their respective Maturities.
Section 6.02. Prepayment of Certificates. (a) The Outstanding
Certificates shall be prepaid in full (and not in part except under clause
(viii) below):
(i) If an Event of Loss occurs with respect to the Airframe or
with respect to the Airframe and the Engines or engines then installed on
the Airframe (unless pursuant to Section 11.03 of the Lease and Section
9.08 hereof replacement equipment is substituted therefor).
(ii) If the Lessee, pursuant to Section 4.02(a) of the Lease,
gives notice of purchase of the Aircraft (and Section 2.12 hereof shall
not be applicable in connection with such purchase), but subject to
Section 6.02(c) below.
(iii) If the Owner Participant or the Owner Trustee on behalf of
the Owner Participant gives notice of prepayment to the Indenture Trustee
pursuant to Section 8.02 hereof (unless such notice is revoked in
accordance with such Section).
(iv) If the Lessee, pursuant to Section 10.01 of the Lease,
gives notice of a voluntary termination for obsolescence or surplus, but
subject to Section 6.02(c) below.
(v) Pursuant to Section 15.01 of the Participation Agreement
in connection with a refinancing of the Certificates, but subject to
Section 6.02(c) below.
(vi) [Reserved].
(vii) At the option of the Owner Trustee with the prior written
consent of the Lessee upon not less than 25 days' prior written notice.
(viii) With respect to the Series C Certificates only, as
provided in Section 2.03(b) of the Original Participation Agreement.
(b) In the event of a prepayment of the Certificates pursuant to
Sections 6.02(a)(ii), (iv) and (v) above, the Owner Trustee, having received
notice from the Lessee in accordance with and subject to the terms of Section
4.02(a) or 10.01 of the Lease or Article15 of the Participation Agreement, as
the case may be, shall give irrevocable (subject to Section 6.02(c) hereof)
written notice to the Indenture Trustee and to the Holders of all of the
Certificates specifying the Business Day on which the Certificates shall be
prepaid. In the case of a prepayment of the Certificates pursuant to Section
6.02(a)(i) above, the Certificates shall be prepaid in full on the Loss Payment
Date as defined in Section 11.02 of the Lease. In the case of a prepayment of
the Certificates pursuant to Section 6.02(a)(iii) above, the Certificates shall
be prepaid in full on the date so designated in the notice referred to in
Section 8.02 hereof. In the case of a prepayment of the Certificates pursuant
to Section 6.02(a)(ii) or (iv) above, the Certificates shall be prepaid in full
on the Termination Date. In the case of a prepayment of the Certificates
pursuant to Section 6.02(a)(v) above, the Certificates shall be prepaid on the
effective date of the Refinancing. In the case of a prepayment of the
Certificates pursuant to Section 6.02(a)(vii) above, the Certificates shall be
prepaid on the date designated in the notice referred to therein. In the case
of a prepayment of the Series C Certificates pursuant to Section 6.02(a)(viii)
above, the amount of such Series C Certificates to be prepaid shall be prepaid
on the Series C Prepayment Date. The day on which the Certificates are to be
prepaid pursuant to this Section 6.01(b) is herein referred to as the
"Prepayment Date".
On or prior to the Prepayment Date, immediately available funds
shall be deposited with the Indenture Trustee in an amount in respect of the
Certificates equal to:
(1) in the event of a prepayment of the Certificates pursuant to
Section 6.02(a)(i), 6.02(a)(iii) (if clause (i) of the first sentence of
Section 8.02(a) hereof is applicable) or 6.02(a)(viii) or, if such
prepayment is made on or after the applicable Premium Termination Date,
6.02(a)(ii), 6.02(a)(iii) (if clause (ii) of the first sentence of Section
8.02(a) hereof is applicable), 6.02(a)(iv), 6.02(a)(v) or 6.02(a)(vii)
above, the sum of (A) the aggregate principal amount of such Certificates
then Outstanding, (B) accrued interest on the Certificates to the
Prepayment Date and (C) all other aggregate sums due the Indenture Trustee
hereunder or under the Participation Agreement or the Lease, but excluding
any Make-Whole Premium or other premium or penalty, or
(2) if such prepayment is made prior to the applicable Premium
Termination Date, in the event of a prepayment of the Certificates
pursuant to Section 6.02(a)(ii), 6.02(a)(iii) (if clause (ii) of the first
sentence of Section8.02(a) hereof is applicable), 6.02(a)(iv), 6.02(a)(v)
or 6.02(a)(vii) above, the sum of the amounts specified in clauses (A),
(B) and (C) of the preceding clause (1) plus any Make- Whole Premium
payable in respect of all Certificates with respect to which the Premium
Termination Date therefor has not occurred
(the aggregate amount required to be paid pursuant to this sentence being
herein referred to as the "Prepayment Price").
(c) If, pursuant to the last paragraph of Section10.01(f) of the
Lease, no Termination Date shall occur, or if no refinancing shall occur
pursuant to Section 15.01 of the Participation Agreement, the Lessee shall give
notice thereof to the Indenture Trustee, and the prepayment proposed to be
effected in respect thereof shall not occur.
Section 6.03. Notice of Prepayment to Holders. In order to
effect any prepayment set forth in Section 6.02(a) hereof, the Indenture
Trustee shall give prompt notice by first class mail of prepayment to each
Holder of an Outstanding Certificate. Such notice may be revoked by the Owner
Trustee at any time on or before the Prepayment Date by prompt notice to the
Holders except as otherwise provided in the Lease or the Participation
Agreement.
All notices of prepayment shall state:
(1) the Prepayment Date,
(2) the applicable basis for determining the Prepayment Price,
(3) that on the Prepayment Date, subject to the provisions
hereof, the Prepayment Price will become due and payable, and
that interest on the Certificates shall cease to accrue on and
after such Prepayment Date, and
(4) the place or places where such Certificates are to be
surrendered for payment.
Section 6.04. Deposit of Prepayment Price and Sinking Fund
Redemption Price. On the Prepayment Date or the Sinking Fund Redemption Date
(as defined in Section 6.06 hereof), the Owner Trustee shall, to the extent an
amount equal to the Prepayment Price or the Sinking Fund Redemption Price (as
defined in Section 6.06 hereof), as the case may be, shall not then be held in
cash or Permitted Investments (marked-to-market net of all costs and expenses
of liquidation thereof) by the Indenture Trustee in immediately available funds
and deposited for the purpose, pay to the Indenture Trustee an amount equal to
the difference between (a) the amount then so held and (b) the Prepayment Price
or the Sinking Fund Redemption Price, as the case may be. If there shall so be
on deposit and/or deposited the applicable Prepayment Price or Sinking Fund
Redemption Price on or prior to a Prepayment Date or Sinking Fund Redemption
Date, interest shall cease to accrue in respect of all or, in the case of a
mandatory sinking fund redemption, the relevant portion being prepaid of, the
Outstanding Certificates on and after such Prepayment Date or such Sinking Fund
Redemption Date.
Section 6.05. Certificates Payable on Prepayment Date. On the
Prepayment Date, the Outstanding Certificates shall (except (A) if the Owner
Trustee has requested the Indenture Trustee to revoke such notice of prepayment
in accordance with Section 6.03 hereof or (B) as otherwise provided in the
Lease) become due and payable and from and after such Prepayment Date (unless
there shall be a default in the payment of the Prepayment Price) such
Certificates shall cease to bear interest. Upon surrender by any Holder of its
Certificate for prepayment in accordance with said notice, such Holder shall be
paid the principal amount of its Certificate then outstanding, accrued interest
thereon to the Prepayment Date, all other sums due to such Holder hereunder,
under the Participation Agreement or the Lease, plus, if a Make-Whole Premium
is payable pursuant to Section6.02(b) hereof, the Make-Whole Premium in respect
of such Certificate.
If any Certificate called for prepayment shall not be so paid
upon surrender thereof for prepayment, the principal shall, until paid,
continue to bear interest from the Prepayment Date at the interest rate
applicable to such Certificate.
Section 6.06. Mandatory Sinking Fund Redemption. The
Certificates shall be subject to partial redemption, at the aggregate principal
amount set forth for the Certificates of the respective Series and Maturity, on
a pro rata basis, on each date specified on Schedule I attached hereto (a
"Sinking Fund Redemption Date") for such payment on the Certificates of such
Series and Maturity. The Owner Trustee shall deposit funds sufficient to pay
the Sinking Fund Redemption Price with the Indenture Trustee as provided in
Section 6.04 hereof. The Indenture Trustee shall pay from the amounts so
deposited on each applicable Sinking Fund Redemption Date to the Certificates
of each Series in the order of priority set forth in clause "first" of Section
5.01 hereof and among the Holders of the Certificates of each Series then
Outstanding on a pro rata basis the aggregate principal amount set forth on
Schedule I attached hereto, together with accrued interest to such Sinking Fund
Redemption Date, but without Make-Whole Premium (the "Sinking Fund Redemption
Price").
ARTICLE VII
INDENTURE EVENTS OF DEFAULT; REMEDIES
OF INDENTURE TRUSTEE AND HOLDERS
Section 7.01. Indenture Event of Default. "Indenture Event of
Default" means any of the following events (whatever the reason for such
Indenture Event of Default and whether it 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):
(i) any Event of Default specified in Article 16 of the Lease
(other than an Event of Default arising solely as the result of the
failure to make an Excepted Payment unless the Owner Participant shall
notify the Indenture Trustee in writing that such failure shall constitute
an Indenture Event of Default); or
(ii) any failure of the Owner Trustee to (A) observe any of its
covenants in the fifth paragraph following the Habendum Clause hereof or
Section 3.05(b)(iii) hereof or Section 7.02(b) of the Participation
Agreement (unless otherwise removed as Owner Trustee within 10 days after
notice thereof to the Owner Participant or (B) observe or perform any
other covenant or obligation of the Owner Trustee in this Indenture (other
than any such failure arising by reason of an Event of Default or
specified in clause (iii) below) and the continuance of such failure for a
period of thirty (30) days or, if such covenant is capable of cure and the
Owner Trustee is diligently proceeding to effect such cure, 120 days,
after written notice thereof identified as a "Notice of Indenture Event of
Default" to the Owner Trustee and the Owner Participant by the Indenture
Trustee or by the Holders of not less than 25% in aggregate principal
amount of Outstanding Certificates specifying such failure to so observe
or perform and requiring it to be remedied; or
(iii) the failure of the Owner Trustee other than by reason of a
Default or an Event of Default (i) to pay principal, interest or
Make-Whole Premium, if any, on any Certificate when due, and such failure
shall have continued unremedied for ten (10) Business Days after the date
when due or (ii)to pay any other amounts hereunder or under the
Certificates when due and such failure shall have continued unremedied for
a period of thirty (30) days after the Owner Trustee and the Owner
Participant shall receive written demand therefor from the Indenture
Trustee or by the Holders of not less than 25% in aggregate principal
amount of Outstanding Certificates; or
(iv) (A) any representation or warranty made by SSB, the Owner
Trustee, the Owner Participant or the Owner Participant Guarantor or any
Owner Trustee Guarantor, in Article 7 of the Participation Agreement, in
Section 5.01 of the Lease, in the Owner Participant Guaranty or in any
certificate of SSB, the Owner Trustee, the Owner Participant, or the Owner
Participant Guarantor furnished to the Indenture Trustee or any Holder in
connection herewith or therewith or pursuant hereto or thereto shall prove
to have been incorrect when made and was and remains in any respect
material to the Holders, and such misrepresentation shall not have been
corrected within 30 days following notice thereof identified as a "Notice
of Indenture Event of Default" being given to the Owner Trustee and the
Owner Participant by the Indenture Trustee or by the Holders of not less
than 25% in aggregate principal amount of Outstanding Certificates; or
(B) any covenant made by SSB or the Owner Trustee in the
Participation Agreement, or by the Owner Participant or the Owner
Participant Guarantor in Article 7 of the Participation Agreement or in
the Owner Participant Guaranty shall be breached in any respect and such
breach shall remain unremedied for a period of thirty (30) days after
there has been given to the Owner Trustee and the Owner Participant by the
Indenture Trustee or by Certificate Holders of not less than 25% in
aggregate principal amount of Outstanding Certificates a written notice
identified as a "Notice of Indenture Event of Default" specifying such
breach and requiring it to be remedied; or
(v) the Owner Trustee, the Lessor's Estate, any Owner Trustee
Guarantor, the Owner Participant or the Owner Participant Guarantor shall
file any petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any present or future bankruptcy, insolvency or
similar statute, law or regulation;
(vi) an order for relief shall be entered in respect of the
Owner Trustee or the Lessor's Estate or any Owner Trustee Guarantor or the
Owner Participant or the Owner Participant Guarantor by a court having
jurisdiction in the premises in an involuntary case under the federal
bankruptcy laws as now or hereafter in effect; or the Owner Trustee or the
Lessor's Estate or any Owner Trustee Guarantor or the Owner Participant or
the Owner Participant Guarantor shall file any answer admitting or not
contesting the material allegations of a petition filed against the Owner
Trustee or the Lessor's Estate or any Owner Trustee Guarantor or the Owner
Participant or the Owner Participant Guarantor in any proceeding referred
to in clause (vi) below or seek or consent or acquiesce in the appointment
of any trustee, custodian, receiver or liquidator of the Owner Trustee or
the Lessor's Estate or any Owner Trustee Guarantor or the Owner
Participant or the Owner Participant Guarantor, as the case may be, or of
all or any substantial part of its properties; or
(vi) without the consent or acquiescence of the Owner Trustee
or the Lessor's Estate or any Owner Trustee Guarantor or the Owner
Participant or the Owner Participant Guarantor, as the case may be, an
order shall be entered constituting an order for relief or approving a
petition for relief or reorganization or any other petition seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or other similar relief under any present or future
bankruptcy, insolvency or similar statute, law or regulation, or if any
such petition shall be filed against the Owner Trustee or the Lessor's
Estate or any Owner Trustee Guarantor or the Owner Participant or the
Owner Participant Guarantor, as the case may be, and such petition shall
not be dismissed within 90 days, or if, without the consent or
acquiescence of the Owner Trustee or the Lessor's Estate or any Owner
Trustee Guarantor or the Owner Participant or the Owner Participant
Guarantor, as the case may be, an order shall be entered appointing a
trustee, custodian, receiver or liquidator of the Owner Trustee or the
Lessor's Estate or any Owner Trustee Guarantor or the Owner Participant or
the Owner Participant Guarantor, as the case may be, or of all or any
substantial part of the properties of the Owner Trustee or the Lessor's
Estate or any Owner Trustee Guarantor or the Owner Participant or the
Owner Participant Guarantor, as the case may be, and such order shall not
be dismissed within 90 days; or
(viii) any Owner Trustee Guaranty or the Owner Participant
Guaranty shall cease to be a valid and enforceable obligation of any Owner
Trustee Guarantor or the Owner Participant Guarantor, as the case may be,
or otherwise shall not be in full force and effect.
Section 7.02. Remedies. (a) If an Indenture Event of Default
shall have occurred and be continuing and so long as the same shall be
continuing unremedied, then and in every such case, the Indenture Trustee may,
and when required by the provisions of Article IX or Section7.02(c) hereof,
shall (i) exercise any or all of the rights and powers and pursue any and all
of the remedies pursuant to this Article VII and (ii) in the event such
Indenture Event of Default is an Indenture Event of Default referred to in
clause (i) of Section 7.01 hereof, exercise any and all of the remedies
pursuant to Article 17 of the Lease; provided that without the consent of the
Owner Trustee such exercise of remedies shall not occur until after the latest
date on which the Owner Trustee may cure the related Event of Default pursuant
to Section 8.03 hereof. The Indenture Trustee may take possession of all or
any part of the properties covered or intended to be covered by the Lien and
security interest created hereby or pursuant hereto and may exclude the Owner
Participant, the Owner Trustee, the Lessee and any transferee of the Lessee and
all Persons claiming under any of them wholly or partly therefrom. In
addition, the Indenture Trustee may exercise any other right or remedy in lieu
of or in addition to the foregoing that may be available to it under applicable
law, or proceed by appropriate court action to enforce the terms hereof, of the
Lease, or both, or to rescind the Lease. 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.
Notwithstanding the foregoing, it is understood and agreed that
if the Indenture Trustee shall proceed to foreclose the Lien of this Indenture,
it shall substantially simultaneously therewith, to the extent the Indenture
Trustee is then entitled to do so hereunder and under the Lease, and is not
then stayed or otherwise prevented from doing so, proceed (to the extent it has
not already done so) to declare the Lease in default and commence the exercise
in good faith of one or more of the remedies under Section 17.01(a)(i), (ii),
or (vi) of the Lease (as it shall determine in its sole discretion). It is
further understood and agreed that if the Indenture Trustee is unable to
exercise one or more remedies under Article 17 of the Lease because of any stay
or operation or law or otherwise, the Indenture Trustee shall not be entitled
to foreclose the Lien of this Indenture (A) until the earlier of (i) 60 days
from the date of any such stay or applicable order under Section 1110 of the
Bankruptcy Code including any extension consented to by the Indenture Trustee
or the Holders of Certificates of such period permitted under Section 1110(b)
of the Bankruptcy Code and (ii) the date of actual repossession of the Aircraft
by the Indenture Trustee or (B) if the Lessee has agreed to perform or assume
the Lease and no Event of Default other than as specified in Section 16.01(e),
(f) or (g) of the Lease shall be continuing. For the avoidance of doubt, it is
expressly understood and agreed that except as aforesaid the above-described
inability 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 all of its rights, powers and remedies under this
Indenture, including, without limitation, this Article VII. The Indenture
Trustee further agrees that notice of intent to foreclose shall be given to the
Owner Trustee at the earlier of the commencement of any proceeding or at least
30 days prior to the consummation of foreclosure of the Lien of this Indenture.
(b) If an Indenture Event of Default under clause (v), (vi) or
(vii) of Section 7.01 hereof shall occur and be continuing, the unpaid
principal of all Outstanding Certificates, together with interest accrued but
unpaid thereon and all other amounts due thereunder, but without Make-Whole
Premium, shall immediately become due and payable, without presentment, demand,
protest or notice, all of which are hereby waived.
(c) If any Indenture Event of Default not described in the
preceding paragraph (b) shall have occurred and be continuing, then and in
every such case, the Indenture Trustee may on its own accord or at the
direction of Holders of not less than 25% in aggregate principal amount of
Outstanding Certificates, at any time, by written notice to the Owner Trustee
and the Lessee, declare the principal of all the Certificates to be due and
payable, whereupon the unpaid principal amount of all Outstanding Certificates,
together with accrued interest thereon and all other amounts due thereunder,
but without Make-Whole Premium, shall immediately become due and payable
without presentment, demand, protest or other notice, all of which are hereby
waived. At any time after such declaration and prior to the sale or
disposition of the Trust Indenture Estate, however, the Holders of not less
than 50% in aggregate principal amount of Outstanding Certificates, by notice
to the Indenture Trustee, the Owner Trustee and the Lessee, may rescind such
declaration, whether made by the Indenture Trustee on its own accord or as
directed, if (x) there has been paid or deposited with the Indenture Trustee a
sum sufficient to pay all overdue installments of interest on all Certificates
(together, to the extent permitted by law, with interest on such overdue
installments of interest), the principal on any Certificates that has become
due otherwise than by such declaration of acceleration, all sums paid or
advanced by the Indenture Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee, its agents and
counsel, or (y) all Indenture Events of Default (other than the nonpayment of
principal that has become due solely because of such acceleration) have been
either cured or waived as provided in Section 7.11 hereof. No such rescission
shall affect any subsequent default or impair any right consequent thereon.
(d) Each Holder shall be entitled at any sale to credit against any
purchase price bid at such sale by such Holder all or any part of the unpaid
obligations owing to such Holder secured by the Lien of this Indenture (but
only to the extent that an amount equal to such purchase price would have been
paid to such Holder pursuant to Article V hereof if such purchase price were
paid in cash and the foregoing provisions of this subsection (d) were not given
effect).
Section 7.03. Return of Aircraft, etc. Subject to Section 7.02
hereof: (a) If an Indenture Event of Default shall have occurred and be
continuing, at the request of the Indenture Trustee, the Owner Trustee shall
promptly execute and deliver to the Indenture Trustee such documents as the
Indenture Trustee may deem necessary or advisable to enable the Indenture
Trustee or an agent or representative designated by the Indenture Trustee, at
such time or times and place or places as the Indenture Trustee may specify, to
obtain possession of all or any part of the Trust Indenture Estate to which the
Indenture Trustee shall at the time be entitled under this Indenture. Subject
to the foregoing, if the Owner Trustee shall for any reason fail to execute and
deliver such documents after such request by the Indenture Trustee, the
Indenture Trustee may (i) obtain a judgment conferring on the Indenture Trustee
or an agent or representative designated by 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 or an agent or
representative designated by the Indenture Trustee, to the entry of which
judgment the Owner Trustee hereby specifically consents, and (ii) pursue all or
part of such Trust Indenture Estate wherever it may be found and enter any of
the premises of the Lessee or the Owner Trustee wherever such Trust Indenture
Estate may be or be supposed to be and search for such Trust Indenture Estate
and take possession of and remove such Trust Indenture Estate. All expenses of
obtaining such judgment or of pursuing, searching for and taking such Trust
Indenture Estate shall, until paid, be secured by the Lien of this Indenture.
(b) Upon every such taking of possession, the Indenture Trustee
may, from time to time, at the expense of the Trust Indenture Estate, make all
such expenditures for maintenance, insurance and repairs to and of such Trust
Indenture Estate, as the Indenture Trustee may reasonably deem proper. In each
case subject to Section 7.02 hereof, the Indenture Trustee shall have the right
to maintain, use, operate, store, lease, control or manage the Trust Indenture
Estate and to carry on the business and to exercise all rights and powers of
the Owner Trustee relating to the Trust Indenture Estate, as the Indenture
Trustee may reasonably deem best, including the right to enter into any and all
such agreements with respect to the maintenance, insurance, use, operation,
storage, leasing, control, management or disposition of all or any part of the
Trust Indenture Estate as the Indenture Trustee may determine. Further, the
Indenture Trustee shall be entitled to collect and receive directly all tolls,
rents (including Rent), revenues, issues, income, products and profits of the
Trust Indenture Estate other than Excepted Payments, without prejudice,
however, to the right of the Indenture Trustee under any provision of this
Indenture to collect and receive all cash held by, or required to be deposited
with, the Indenture Trustee under this Indenture. Such tolls, rents (including
Rent), revenues, issues, income, products and profits shall be applied to pay
the expenses of the use, operation, storage, leasing, control, management, or
disposition of the Trust Indenture Estate, and of all maintenance and repairs,
and to make all payments which the Indenture Trustee may be required or may
reasonably elect to make for any taxes, assessments, insurance or other proper
charges upon the Trust Indenture Estate (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 the Lessee), and all other payments
which the Indenture Trustee may be required or authorized to make under any
provision of this Indenture, as well as just and reasonable compensation for
the services of the Indenture Trustee and of all persons properly engaged and
employed for such purposes by the Indenture Trustee; provided, that any excess
amounts shall be promptly distributed in accordance with Section 5.03 hereof.
(c) If an Indenture Event of Default shall have occurred and be
continuing and the Indenture Trustee shall be entitled to exercise remedies
hereunder, and subject to Article VIII hereof, the Indenture Trustee, either
with or without taking possession, and either before or after taking
possession, and without instituting any legal proceedings whatsoever, may sell,
assign, transfer and deliver the whole or, from time to time, to the extent
permitted by law, any part of the Trust Indenture Estate, or any part thereof,
or interest therein, at any private sale or public auction, with or without
demand, advertisement or notice, except as expressly provided for below in this
Section7.03(c), for cash or credit or for other property, for immediate or
future delivery, and for such price or prices and on such terms as the
Indenture Trustee in its sole discretion may determine; provided, that any such
action shall be at the time lawful and that all mandatory legal requirements
shall be complied with. Any notice required pursuant to the terms hereof in
the case of a public sale, shall state the time and place fixed for such sale.
Any such public sale shall be held at such time or times within ordinary
business hours as the Indenture Trustee shall fix in the notice of such sale.
At any such sale, the Trust Indenture Estate may be sold in one lot as an
entirety or in separate lots. The Indenture Trustee shall not be obligated to
make any sale pursuant to such notice. The Indenture Trustee may, without
notice or publication, adjourn any public or private sale or cause the same to
be adjourned from time to time by announcement at the time and place fixed for
such sale, and any such sale may be made at any time or place to which the same
may be so adjourned without further notice or publication. The Indenture
Trustee may exercise such right of sale without possession or production of the
Certificates or proof of ownership thereof, and as representative of the
Holders may exercise such right without notice to the Holders or without
including the Holders as parties to any suit or proceedings relating to the
foreclosure of any part of the Trust Indenture Estate. The Owner Trustee shall
execute any and all such bills of sale, assignments and other documents, and
perform and do all other acts and things requested by the Indenture Trustee in
order to permit consummation of any sale of the Trust Indenture Estate in
accordance with this Section 7.03(c) and to effectuate the transfer or
conveyance referred to in the first sentence of this Section7.03(c).
Notwithstanding any other provision of this Indenture, the Indenture Trustee
shall not sell the Trust Indenture Estate or any part thereof unless the
Certificates shall have been accelerated.
(d) To the extent permitted by applicable law, the Indenture
Trustee or any Holder may be a purchaser of the Trust Indenture Estate or any
part thereof or any interest therein at any sale thereof, whether pursuant to
foreclosure or power of sale or otherwise. The Indenture Trustee may apply
against the purchase price therefor the amount then due hereunder or under any
of the Certificates secured hereby and any Holder may apply against the
purchase price therefor the amount then due to it hereunder, under any other
Indenture Document or under the Certificates held by such Holder to the extent
of such portion of the purchase price as it would have received had it been
entitled to share any distribution thereof. The Indenture Trustee or any
Holder or nominee thereof shall, upon any such purchase, acquire good title to
the property so purchased, free of the Lien of this Indenture and, to the
extent permitted by applicable law, free of all rights of redemption in the
Owner Trustee or the Owner Participant in respect of the property so purchased.
(e) Subject to Article VIII hereof, and effective upon the
occurrence and continuance of an Indenture Event of Default, the Owner Trustee
hereby irrevocably appoints and constitutes 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 of effectuating any sale, assignment, transfer or
delivery for the enforcement of the Lien of this Indenture, whether pursuant to
foreclosure or power of sale or otherwise, to execute and deliver all such
bills of sale, assignments and other instruments as the Indenture Trustee may
consider necessary or appropriate, with full power of substitution, and the
Owner Trustee hereby ratifies and confirms all that such attorney or any
substitute shall lawfully do by virtue hereof. Nevertheless, if so requested
by the Indenture Trustee or any purchaser, the Owner Trustee shall ratify and
confirm any such sale, assignment, transfer or delivery, by executing and
delivering to the Indenture Trustee or such purchaser all bills of sale,
assignments, releases and other proper instruments to effect such ratification
and confirmation as may be designated in any such request.
(f) 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) for all or any part of the Trust Indenture Estate,
whether such receivership be incidental to a proposed sale of the Trust
Indenture Estate or the taking of possession thereof or otherwise, and the
Owner Trustee hereby consents to the appointment of such receiver and will not
oppose any such appointment. Any receiver appointed for all or any part of the
Trust Indenture Estate shall be entitled to exercise all of the rights and
powers of the Indenture Trustee with respect to the Trust Indenture Estate.
(g) Any sale of the Trust Indenture Estate or any part thereof
or any interest therein, whether pursuant to foreclosure or power of sale or
otherwise hereunder, shall be a perpetual bar against the Owner Trustee after
the expiration of the period, if any, during which the Owner Trustee shall have
the benefit of prepayment laws which may not be waived pursuant to Section7.13
hereof.
Section 7.04. Indenture Trustee May Prove Debt. If the Owner
Trustee shall fail to pay any amount payable hereunder or under the
Certificates, the Indenture Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Owner
Trustee and collect in the manner provided by law out of the property of the
Owner Trustee wherever situated, the moneys adjudged or decreed to be payable;
provided, that any sale of any portion of the Trust Indenture Estate shall be
done in accordance with Section 7.03(c) hereof.
In case there shall be pending proceedings relative to the Owner
Trustee under the Bankruptcy Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, assignee or
trustee in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Owner Trustee
or its property, or in case of any other comparable judicial proceedings
relative to the Owner Trustee, or to the creditors or property of the Owner
Trustee, the Indenture Trustee, irrespective of whether the principal of the
Certificates shall then be due and payable as therein or herein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee
shall have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal, interest and other amounts owing and unpaid in respect of the
Certificates or hereunder, and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of
negligence or bad faith) and of the Holders allowed in any judicial
proceedings relative to the Owner Trustee or to the creditors or property
of the Owner Trustee,
(b) unless prohibited by applicable law and regulations, to vote
on behalf of the Holders in any election of a trustee or a standby trustee
in arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or person performing similar functions in
comparable proceedings, and
(c) to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Holders and of the Indenture Trustee on
their behalf;
and any trustee, receiver, or liquidator, custodian or other similar official
is hereby authorized by each of the Holders to make payments to the Indenture
Trustee, and, in the event that the Indenture Trustee shall consent to the
making of payments directly to the Holders, to pay to the Indenture Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Indenture Trustee, each predecessor Indenture Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made, by the Indenture Trustee and each predecessor Indenture
Trustee except as a result of negligence or willful misconduct.
Nothing contained herein shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Certificates or the rights of any Holder thereof, or
to authorize the Indenture Trustee to vote in respect of the claim of any
Holder in any such proceeding except, as aforesaid, to vote for the election of
a trustee in bankruptcy or similar person.
All rights of action and rights to assert claims under this
Indenture, or under any of the Certificates, may be enforced by the Indenture
Trustee without the possession of such Certificates on any trial or other
proceedings instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Holders, as provided herein.
In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party) the Indenture Trustee shall be
held to represent all the Holders of the Certificates, and it shall not be
necessary to make any Holders parties to such proceedings.
Section 7.05. Remedies Cumulative. Each and every right, power
and remedy given to the Indenture Trustee in this Indenture shall be cumulative
and shall be in addition to every other right, power and remedy specifically
given herein or now or hereafter existing at law, in equity or by statute, and
each and every right, power and remedy whether specifically given herein 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 or the Holders, 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 later
any other right, power or remedy. No delay or omission by the Indenture
Trustee or of any Holder in the exercise of any right, remedy or power or in
the pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the Owner Trustee or the
Lessee or to be an acquiescence in any such default.
Section 7.06. Suits for Enforcement. If an Indenture Event of
Default has occurred, has not been waived and is continuing, the Indenture
Trustee may in its discretion and subject to its rights of appropriate
indemnification under Sections 7.08 and 9.03 and Article XI hereof proceed to
protect and enforce its rights and rights of the Holders by such appropriate
judicial proceedings as the Indenture Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture or to enforce any other legal or equitable right
vested in the Indenture Trustee or the Holders by this Indenture or by law;
provided, that any sale of any portion of the Trust Indenture Estate shall be
done in accordance with Section 7.03(c) hereof.
Section 7.07. Discontinuance of Proceedings. In case the
Indenture Trustee or any Holder shall have instituted any proceeding to enforce
any right, power or remedy under this Indenture by foreclosure, entry or
otherwise, and such proceeding shall have been discontinued or abandoned for
any reason or shall have been determined adversely to the Indenture Trustee or
such Holder, then the Owner Trustee, the Indenture Trustee, the Owner
Participant, the Holders and the Lessee shall, subject to any binding
determination in such proceeding, be restored to their former positions and
rights under this Indenture with respect to the Trust Indenture Estate, and all
rights, remedies and powers of the Indenture Trustee and the Holders shall
continue as if no such proceeding had been instituted.
Section 7.08. Limitations on Suits by Holders. No Holder of any
Certificate shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such Holder previously shall
have given to the Indenture Trustee written notice of an Indenture Event of
Default shall then have occurred and be continuing, as hereinbefore provided,
and the Holders of not less than 25% in aggregate principal amount of
Outstanding Certificates shall have made written request upon the Indenture
Trustee to institute such action or proceedings in its own name as trustee
hereunder and shall have offered to the Indenture Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby and the Indenture Trustee for 60 days after its
receipt of such notice, request and offer of indemnity shall have failed to
institute any such action or proceedings and no direction inconsistent with
such written request shall have been given to the Indenture Trustee pursuant to
Section 7.10 hereof; it being understood and intended, and being expressly
covenanted by the Holder of each Certificate with every other Holder of each
other Certificate and the Indenture Trustee, that no one or more Holders shall
have any right in any manner whatever to affect, disturb or prejudice the
rights of any other Holder or the Lien of this Indenture or any part of the
Trust Indenture Estate or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Indenture, except in the manner provided herein and for the equal, ratable and
common benefit of all Holders. For the protection and enforcement of the
provisions of this Section, each and every Holder and the Indenture Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 7.09. Unconditional Right of Holders to Receive
Principal, Interest and Make-Whole Premium, and to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision of any
Certificate, the right of any Holder to receive payment of the principal of and
interest and Make-Whole Premium, if any, on such Certificate on or after the
respective due dates and in the manner expressed in such Certificate, or,
subject to Section 7.08 hereof, to institute suit for the enforcement of any
such payment on or after such respective dates as provided herein, shall not be
impaired or affected without the consent of such Holder.
Section 7.10. Control by Holders. The Majority in Interest of
Certificate Holders shall have the right to direct the Indenture Trustee as to
the time, method, and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or exercising any trust or power conferred
on the Indenture Trustee by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture and the Indenture Trustee shall have received, to the extent provided
in Sections 7.08 and 9.03 and Article XI hereof, such reasonable
indemnification as it may require against the costs, expenses and liabilities
to be incurred by the Indenture Trustee; and provided further that (subject to
the provisions of Section 9.02 hereof) the Indenture Trustee shall have the
right to decline to follow any such direction if the Indenture Trustee, being
advised by counsel, shall determine that the action or proceeding so directed
may not lawfully be taken or if the Indenture Trustee in good faith by its
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers of the Indenture Trustee shall determine that the
action or proceedings so directed would involve the Indenture Trustee in
personal liability or if the Indenture Trustee in good faith shall so determine
that the actions or forebearances specified in or pursuant to such direction
shall be unduly prejudicial to the interests of Holders not joining in the
giving of said direction, it being understood that (subject to Section 9.02
hereof) the Indenture Trustee shall have no duty to ascertain whether or not
such actions or forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Indenture
Trustee in its discretion to take any action deemed proper by the Indenture
Trustee and which is not inconsistent with the direction by the Majority in
Interest of Certificate Holders.
Section 7.11. Waiver of Past Indenture Default. Upon written
instructions from the Majority in Interest of Certificate Holders, the
Indenture Trustee shall waive any past Indenture Default and its consequences
and upon any such waiver such Indenture Default shall cease to exist and any
Indenture Event of Default arising therefrom shall be deemed to have been cured
for every purpose of this Indenture, but no such waiver shall extend to any
subsequent or other Indenture Default or impair any right consequent thereon;
provided, however, that in the absence of written instructions from all Holders
and each Liquidity Provider, the Indenture Trustee shall not waive any
Indenture Default (a) in the payment of the principal of or Make-Whole Premium,
if any, or interest on, or other amounts due under, any Certificate then
Outstanding, or (b) in respect of a covenant or provision of this Indenture
which, under Article XIII hereof, cannot be modified or amended without the
consent of each Holder.
Section 7.12. Notice of Indenture Default. The Indenture
Trustee shall transmit to the Owner Trustee, the Holders and to the Owner
Participant notice of any Indenture Defaults actually known to a Responsible
Officer of the Indenture Trustee, such notice to be transmitted by mail to the
Holders within 90 days, and to the Owner Trustee and the Owner Participant
promptly after the occurrence thereof, unless such Indenture Default shall have
been cured before the giving of such notice; provided that under no
circumstances shall the Indenture Trustee give such notice to the Holders until
the expiration of a period of 60 days from the occurrence of such Indenture
Default; and provided further that, except in the case of default in the
payment of the principal of or interest on or any other amount due under any of
the Certificates, the Indenture Trustee shall be protected in withholding such
notice to the Holders if and so long as the board of directors, the executive
committee, or a trust committee of directors or trustees and/or Responsible
Officers of the Indenture Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders.
Section 7.13. Waiver of Appraisement, etc.; Laws. The Owner
Trustee covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any appraisement, valuation, stay, extension or
prepayment law wherever enacted, now or at any time hereafter in force, in
order to prevent or hinder the enforcement of this Indenture or the execution
of any power granted herein to the Indenture Trustee, or the absolute sale of
the Trust Indenture Estate, or any part thereof, or the possession thereof by
any purchaser at any sale under this Article VII; and the Owner Trustee for
itself and all who may claim under it, so far as it or any of them now or
hereafter lawfully may, hereby waives the benefit of all such laws. The Owner
Trustee for itself and all who may claim under it waives, to the extent that it
lawfully may, all right to have the property in the Trust Indenture Estate
marshalled upon any foreclosure hereof, and agrees that any court having
jurisdiction to foreclose this Indenture may order the sale of the Trust
Indenture Estate as an entirety.
If any law referred to in this Section 7.13 and now in force, of
which the Owner Trustee or its successors might take advantage despite this
Section 7.13, shall hereafter be repealed or cease to be in force, such law
shall not thereafter be deemed to constitute any part of the contract herein
contained or to preclude the application of this Section 7.13.
ARTICLE VIII
RIGHTS OF THE OWNER TRUSTEE
AND THE OWNER PARTICIPANT
Section 8.01. Certain Rights of Owner Trustee and Owner
Participant. (a) Subject to Section 13.01 hereof, without the consent of a
Majority in Interest of Certificate Holders, the respective parties to the
Indenture Documents may not modify, amend or supplement any of said agreements,
or give any consent, waiver, authorization or approval thereunder, for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions thereof or of modifying in any manner the rights of the
respective parties thereunder; provided, however, that the actions specified in
subsection (b) of this Section 8.01 may be taken without the consent of the
Indenture Trustee or any Holder.
(b) Subject to the provisions of subsection (c) of this Section
8.01, the respective parties to the Indenture Documents, at any time and from
time to time, without the consent of the Indenture Trustee or of any Holder,
may:
(1) so long as no Indenture Event of Default shall have occurred
and be continuing, modify, amend or supplement the Lease, or give any
waiver with respect thereto, except that without compliance with
subsection (a) of this Section 8.01 the parties to the Lease shall not
modify, amend or supplement, or give any waiver for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions thereof or of modifying in any manner the rights of the
respective parties thereunder, with respect to the following provisions of
the Lease as in effect on the effective date hereof: Article 2 (provided
that, if in respect of the Term, the result thereof would not be to
shorten the Term of the Lease to a period shorter than the period ending
with the Maturity of any Certificate), Section 3.03 (except to the extent
such Section relates to amounts payable (whether directly or pursuant to
this Indenture) to Persons other than Holders, each Liquidity Provider,
the Subordination Agent and the Indenture Trustee in its individual
capacity), Section 3.05, Section 3.06 (except insofar as it relates to the
address or account information of the Owner Trustee or the Indenture
Trustee) (other than as such Sections 3.03, 3.05 and 3.06 may be amended
pursuant to Section 3.04 of the Lease as in effect on the effective date
hereof), Section 5.01, Article 6, Article 10 (except that further
restrictions may be imposed on the Lessee), Article 11 (except that
additional requirements may be imposed on the Lessee), Article 13 (except
for Section 13.05 and except that additional insurance requirements may be
imposed on the Lessee), Article 14 (except in order to increase the
Lessee's liabilities or enhance the Lessor's rights thereunder), Article
15 (except in the case of an assignment by the Lessor in circumstances
where the Aircraft shall remain registrable under the Transportation
Code), Section 16.01 (except to impose additional or more stringent Events
of Default), Article 17 (except to impose additional remedies), Section
19.01 (except to impose additional requirements on the Lessee), Section
20.01, Article 22, Section23.01, Section 26.03 and any definition of terms
used in the Lease, to the extent that any modification of such definition
would result in a modification of the Lease not permitted pursuant to this
subsection (b); provided that the parties to the Lease may take any such
action without the consent of the Indenture Trustee or any Holder to the
extent such action relates to the payment of amounts constituting, or the
Owner Trustee's, the Owner Participant's or the Lessee's rights or
obligations with respect to, Excepted Payments (other than the place, time
and manner of payment of Basic Rent constituting an Excepted Payment);
(2) modify, amend or supplement the Trust Agreement and any
other Indenture Document (other than the Lease and the Participation
Agreement), or give any consent, waiver, authorization or approval with
respect thereto, in each case only to the extent any such action shall not
adversely impact the interests of the Holders;
(3) modify, amend or supplement the Participation Agreement, or
give any consent, waiver, authorization or approval with respect thereto,
except that without compliance with subsection (a) of this Section 8.01
the parties to the Participation Agreement shall not modify, amend or
supplement, or give any consent, waiver, authorization or approval for the
purpose of adding provisions to or changing in any manner or eliminating
any of the provisions thereof or of modifying in any manner the rights of
the respective parties thereunder, with respect to the following
provisions of the Participation Agreement as in effect on the effective
date hereof: Articles 6, 8 and 9 and Section 10.01(b) (insofar as such
Articles 6, 8 and 9 and Section 10.01(b) relate to the Indenture Trustee,
the Pass Through Trustee and the Holders), Article 7 and Sections 3.05,
15.01, 17.02 and 17.11 and any definition of terms used in the
Participation Agreement, to the extent that any modification of such
definition would result in a modification of the Participation Agreement
not permitted pursuant to this subsection (b); and
(4) modify, amend or supplement any of said agreements in order
to cure any ambiguity, to correct or supplement any provisions thereof
which may be defective or inconsistent with any other provision thereof or
of any provision of this Indenture, or to make any other provision with
respect to matters or questions arising thereunder or under this Indenture
which shall not be inconsistent with the provisions of this Indenture,
provided the making of any such other provision shall not adversely affect
the interests of the Holders.
(c) No modification, amendment, supplement, consent, waiver,
authorization or approval with respect to the Lease or the Participation
Agreement, whether effected pursuant to subsection (a) or pursuant to
subsection (b) of this Section 8.01 and anything in such subsections or
elsewhere in this Indenture to the contrary notwithstanding, shall, without the
consent of the Holder of each Outstanding Certificate affected thereby, and
each Liquidity Provider,
(1) modify, amend or supplement the Lease in such a way as to
extend the time of payment of Basic Rent or Stipulated Loss Value or
Supplemental Rent payable to the Holders or any Liquidity Provider or any
other amounts payable to the Indenture Trustee for its own account or for
the account of the Holders or any Liquidity Provider (subject in any event
to Section 3.05 of the Lease) upon the occurrence of an Event of Loss or
Termination Value and any other amounts payable to the Indenture Trustee
for its own account or for the account of the Holders (subject in any
event to Section 3.05 of the Lease) upon termination of the Lease with
respect to the Aircraft payable under, or as provided in, the Lease as in
effect on the effective date hereof, or reduce the amount of any
installment of Basic Rent or Supplemental Rent so that the same is less
than the payment of principal of, and interest on the Certificates and
Make-Whole Premium, if any, and amounts due to each Liquidity Provider, as
the case may be, to be made from such installment of Basic Rent or
Supplemental Rent, or reduce the aggregate amount of Stipulated Loss
Value, or any other amounts payable under, or as provided in, the Lease as
in effect on the effective date hereof upon the occurrence of an Event of
Loss so that the same is less than the accrued interest on and the
principal as of the Loss Payment Date, of the Certificates at the time
Outstanding or reduce the amount of Termination Value and any other
amounts payable under, or as provided in, the Lease as in effect on the
effective date hereof upon termination of the Lease with respect to the
Aircraft so that the same is less than the accrued interest on and
principal as of the Lease Termination Date and Make-Whole Premium, if any,
of Certificates at the time Outstanding, or
(2) modify, amend or supplement the Lease in such a way as to,
or consent to any assignment of the Lease or give any consent, waiver,
authorization or approval which would, release the Lessee from its
absolute and unconditional obligations in respect of payment of Basic Rent
or Supplemental Rent, or Stipulated Loss Value and any other amounts
payable to the Indenture Trustee for its own account or the account of the
Holders (subject in any event to Section 3.05 of the Lease) upon the
occurrence of an Event of Loss, or Termination Value and any other amounts
payable to the Indenture Trustee for its own account or the account of the
Holders (subject in any event to Section 3.05 of the Lease) of the Lease
with respect to the Aircraft, payable under, or as provided in, the Lease
as in effect on the effective date hereof, except for any such assignment
pursuant to Section 2.12 hereof, and except as provided in the Lease as in
effect on the effective date hereof.
(d) At all times so long as this Indenture is in effect, the
consent of the Owner Trustee (at the direction of the Owner Participant) shall
be required in order (i) to amend, modify or supplement the Lease or any other
Operative Document to which the Owner Trustee is a party or to waive compliance
by the Lessee with any of its obligations thereunder, (ii) to grant any consent
requested under the Lease and (iii) to exercise discretion on the Lessee's
option to substitute a Replacement Airframe or Replacement Engines after an
Event of Loss pursuant to the Lease.
Notwithstanding the foregoing, but subject always to the provision of Section
15.05 hereof, the Indenture Trustee shall at all times have the right, to the
exclusion of the Owner Trustee and the Owner Participant, to (A) declare the
Lease to be in default under Article 17 (other than with respect to Excepted
Payments) thereof and (B) subject only to the provisions of this Indenture,
exercise the remedies set forth in such Article 17 of the Lease (other than in
connection with Excepted Payments) and in Article 7 hereof.
Nothing in this Indenture shall be deemed to prohibit the Owner
Participant or the Owner Trustee from making demand on the Lessee for, or from
commencing an action at law to obtain the payment of, or from receiving payment
of, any Excepted Payment; provided, however, that if the Owner Trustee is
proceeding under the Lease, the Owner Trustee shall proceed pursuant to Section
17.01(a)(v), and only Section 17.01(a)(v), of the Lease.
Section 8.02. Owner Participant's Right to Elect to Prepay or
Purchase the Certificates. (a) If (i) an Event of Default shall have occurred
and be continuing for more than 180 days or the Certificates shall have become
due and payable pursuant to Section 7.02(b) or (c) hereof or (ii) an Event of
Default shall have occurred and be continuing for not more than 180 days and
the Certificates shall not have become due and payable pursuant to Section
7.02(b) or (c) hereof, the Owner Participant (or the Owner Trustee on behalf of
the Owner Participant) may, but shall be under no obligation to, do either of
the following:
(1) direct the Owner Trustee to cause the prepayment of all, but
not less than all, of the Certificates then Outstanding by notifying the
Indenture Trustee of such election, which notice in order to be effective
shall state that it is irrevocable and shall designate a Prepayment Date
which shall be a Business Day and which shall be not less than 30 days
after the date of such notice on which the Owner Trustee shall, in the
manner provided for in Section 6.04 hereof, deposit the sum of amounts
contemplated by paragraph "first" under Section 5.03 and the aggregate
Prepayment Price of all such Certificates with the Indenture Trustee. If
such payment by the Owner Trustee to the Indenture Trustee is made, the
Certificates shall cease to accrue interest from and after the Prepayment
Date, and after distribution of such payment to the Holders, the Indenture
Trustee shall release the Trust Indenture Estate from the Lien of this
Indenture; or
(2) purchase all, but not less than all, of the Outstanding
Certificates by notifying the Indenture Trustee of such election, which
notice in order to be effective shall state that it is irrevocable and
shall designate a date which shall be a Business Day and which shall be
not less than 30 days after the date of such notice on which the Owner
Trustee shall pay to the Indenture Trustee an amount equal to the
aggregate unpaid principal amount of all Outstanding Certificates,
together with accrued interest on such amount to the date of purchase, the
aggregate amount of any Make-Whole Premium applicable to each Outstanding
Certificate (if such purchase occurs prior to the Premium Termination Date
for such Outstanding Certificate) in the case of a purchase pursuant to
clause (a)(ii) above, plus all other sums due any Holder or the Indenture
Trustee hereunder or under the Participation Agreement or the Lease. Upon
receipt of the Indenture Trustee of such amount, each Holder will be
deemed, whether or not Certificates shall have been delivered to the
Indenture Trustee on such date, to have thereupon sold, assigned,
transferred and conveyed (and shall promptly take such actions as the
Owner Participant shall reasonably request to evidence such sale,
assignment, transfer and conveyance) to the Owner Participant (without
recourse or warranty of any kind except for its own acts), all of the
right, title and interest of such Holder in and to the Trust Indenture
Estate and this Indenture and all Certificates held by such Holder and the
former Holders shall not be entitled to receive any interest on the
principal amount of such Certificates after the purchase date, and the
Owner Participant shall be deemed to have assumed (and shall promptly take
such actions as any Holder shall reasonably request to evidence such
assumption) all of such Holder's obligations under the Participation
Agreement and this Indenture arising subsequent to such sale. If the
Owner Trustee shall so request, such Holder will comply with all the
provisions of Section 2.06 of this Indenture to enable new Certificates to
be issued to the Owner Participant in such authorized denominations as the
Owner Participant shall request. All charges and expenses required
pursuant to Section 2.06 hereof in connection with the issuance of any
such new Certificates shall be borne by the Owner Participant.
(b) From and after the deposit by the Owner Trustee of the
applicable Prepayment Price or purchase price with the Indenture Trustee
pursuant to Section 8.02(a) hereof, the Owner Trustee shall be entitled to
exercise all remedies of the Indenture Trustee under Article VII hereof as well
as of the Lessor under the Lease.
Section 8.03. Certain Rights of Owner Participant. (a) If (A)
there shall occur an Event of Default under the Lease as a result of the
Lessee's failure to make any payment of an installment of Basic Rent, and (B)
the Owner Trustee shall have paid or caused to be paid on or prior to the date
which is 15 Business Days after such Event of Default all principal and
interest on the Certificates then due (as well as any interest on overdue
principal and (to the extent permitted by applicable law) interest), but not
including any principal or interest becoming due on account of such Event of
Default, then the failure of the Lessee to make the payment of such installment
of Basic Rent or of interest on account of such installment's being overdue
shall not constitute or result in an Indenture Event of Default under this
Indenture and any declaration based solely on the same shall be deemed to be
automatically rescinded. Nothing contained in the preceding sentence shall be
deemed to entitle the Owner Trustee to exercise any rights and powers or pursue
any remedies pursuant to Article 17 of the Lease or otherwise except as set
forth in this Indenture, and except that the Owner Trustee or the Owner
Participant may attempt to recover any amount paid by it or them under this
Indenture by demanding of the Lessee payment of such amount, or by commencing
an action at law against the Lessee for the payment of such amount or taking
appropriate action in a pending action at law against the Lessee pursuant to
Section 17.01(a)(v), but only said Section 17.01(a)(v), of the Lease. Upon
curing any such Event of Default pursuant to this Section 8.03, the Owner
Trustee or the Owner Participant, as the case may be, shall, so long as no
Indenture Event of Default shall have occurred and be continuing, be subrogated
on an unsecured basis to all the rights of the Indenture Trustee under the
Lease in respect of the payment giving rise to such Event of Default, and any
right to any interest in respect of the same, and shall be entitled to any
payment of Basic Rent (or interest thereon) actually made by the Lessee in
respect of such cured payment upon receipt by the Indenture Trustee; provided
that no such amount shall be paid to the Owner Trustee or the Owner Participant
until all amounts then due and payable to each Certificate Holder hereunder and
thereunder shall have been paid in full and no Indenture Event of Default shall
have occurred and be continuing. Notwithstanding anything in this Indenture or
the Lease to the contrary, the Owner Participant and the Owner Trustee
collectively, shall not be entitled to cure more than six (6) Events of Default
(no more than three (3) of which may be consecutive) occasioned by defaults in
the payment of Basic Rent.
(b) If (A) there shall occur an Event of Default under the Lease
for any reason other than the Lessee's failure to make any payment of an
installment of Basic Rent and (B) the Owner Trustee shall have taken or caused
to be taken such action necessary to cure and shall have cured such Event of
Default prior to the date which is 15 Business Days after such Event of
Default, then the failure of the Lessee to perform such covenant, condition or
agreement, the observance or performance of which was accomplished by the Owner
Trustee hereunder shall not constitute or result in an Indenture Event of
Default under this Indenture and any declaration based solely on the same shall
be deemed to be automatically rescinded. Nothing contained in the preceding
sentence shall be deemed to entitle the Owner Trustee or the Owner Participant
to exercise any rights and powers or pursue any remedies pursuant to Article 17
of the Lease or otherwise except as set forth in this Indenture, and except
that the Owner Trustee or the Owner Participant may attempt to recover any
amount paid by it or them in effecting such cure by demanding of the Lessee
payment of such amount, plus any interest due, or by commencing an action at
law against the Lessee for the payment of such amount or taking appropriate
action in a pending action at law against the Lessee pursuant to Section
17.01(a)(v), but only said Section 17.01(a)(v), of the Lease. Upon curing any
such Event of Default pursuant to this Section 8.03(b), the Owner Trustee or
the Owner Participant, as the case may be, shall be subrogated to all the
rights of the Indenture Trustee under the Lease in respect of the payment,
agreement or covenant giving rise to such Event of Default, and any right to
any interest in respect of the same, and shall be entitled to any payment or
other performance upon receipt by the Indenture Trustee; provided that no such
amount shall be paid to the Owner Trustee or the Owner Participant until all
amounts then due and payable to each Certificate Holder hereunder and
thereunder shall have been paid in full and no Indenture Event of Default shall
have occurred and be continuing.
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 9.01. Acceptance of Trusts. The Indenture Trustee
hereby accepts the trusts imposed upon it by this Indenture, and covenants and
agrees to perform the same as expressed herein and agrees to receive and
disburse all moneys constituting part of the Trust Indenture Estate in
accordance with the terms hereof.
Section 9.02. Duties and Responsibilities of the Indenture
Trustee; During an Indenture Event of Default; Prior to an Indenture Event of
Default. (a) The Indenture Trustee, prior to the occurrence of an Indenture
Event of Default and after the curing or waiving of all Indenture Events of
Default which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture. In case an
Indenture Event of Default has occurred (which has not been cured or waived)
the Indenture Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs. No provision of this Indenture shall be construed to
relieve the Indenture Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Indenture Event of Default
and after the curing or waiving of all Indenture Events of Default which may
have occurred:
(x) the duties and obligations of the Indenture Trustee shall be
determined solely by the express provisions of this Indenture, and the
Indenture Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read in to this Indenture against the
Indenture Trustee; and
(y) in the absence of bad faith on the part of the Indenture
Trustee, the Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; but in the case of any such
statements, certificate or opinions which by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the Indenture
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible Officers of
the Indenture Trustee, unless it shall be proved that the Indenture Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to
any action taken or not taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in aggregate principal
amount of Outstanding Certificates relating to the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred upon the Indenture Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require
the Indenture Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Indenture Trustee shall have
determined in good faith that the repayment of such funds or adequate indemnity
against such liability is not reasonably assured to it.
The Indenture Trustee will execute and the Owner Trustee will
file or cause to be filed such continuation statements with respect to
financing statements relating to the security interest created hereunder in the
Trust Indenture Estate as may be specified from time to time in written
instructions of the Holders of not less than 25% in aggregate principal amount
of Certificates (which instructions may, by their terms, be operative only at a
future date and which shall be accompanied by the execution form of such
continuation statement so to be filed); provided that, notwithstanding the
foregoing, the Indenture Trustee may execute and file or cause to be filed any
financing statement which it from time to time deems appropriate.
(b) If any Event of Default shall have occurred and be
continuing and, after the latest date on which the Owner Trustee may cure such
Event of Default pursuant to Section 8.03 hereof, on request of the Holders of
not less than 25% in aggregate principal amount of Outstanding Certificates and
subject to indemnification, to the extent provided in Sections 7.08 and 9.03
and Article XI hereof, as it may require against the costs, expenses and
liabilities to be incurred, the Indenture Trustee shall exercise such remedies
under Article 17 of the Lease as shall be specified in such request.
(c) The Indenture Trustee agrees that it will, in its individual
capacity and at its own cost and expense (but without any right of indemnity in
respect of any such cost or expense under Article XI hereof) promptly take such
action as may be necessary duly to discharge all Liens on any part of the Trust
Indenture Estate which result from claims against it in its individual capacity
not related to the administration of the Trust Indenture Estate or any other
transaction pursuant to this Indenture or any document included in the Trust
Indenture Estate.
(d) The Indenture Trustee will execute and deliver to the Lessee
for filing in accordance with Article 18 of the Lease any properly presented
document, instrument or financing or continuation statement specified in any
opinion delivered pursuant to Section 6.03(e) of the Participation Agreement.
The Indenture Trustee may rely on the act of presentation of any such document,
instrument, financing or continuation statement as evidencing the fact that it
is properly prepared and presented, provided that the Indenture Trustee shall
promptly correct any error in any such document, instrument, financing or
continuation statement of which a Responsible Officer of the Indenture Trustee
has actual knowledge.
(e) The Indenture Trustee will furnish to each Holder promptly
upon receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and other instruments furnished to
the Indenture Trustee, to the extent that the same shall not have been
otherwise furnished to such Holder pursuant to this Indenture or to the extent
the Indenture Trustee does not reasonably believe that the same shall have been
furnished by the Lessee directly to such Holder.
Section 9.03. Certain Rights of the Indenture Trustee. Subject
to Section 9.02 hereof:
(a) the Indenture Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, debenture, note, coupon,
security or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Owner Trustee
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof be herein
specifically prescribed) upon which the Indenture Trustee may rely to
prove or establish a matter set forth therein;
(c) the Indenture Trustee may consult with counsel and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken
by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(d) the Indenture Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this Indenture at the
request, order or direction of any of the Holders pursuant to the
provisions of this Indenture, unless such Holders shall have offered to
the Indenture Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred therein or thereby;
(e) the Indenture Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by it to be authorized
or within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Indenture Event of Default
hereunder and after the curing or waiving of all Indenture Events of
Default, the Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing to do so
by the Majority in Interest of Certificate Holders; provided that, if the
payment within a reasonable time to the Indenture Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Indenture Trustee, not reasonably
assured to the Indenture Trustee by the security afforded to it by the
terms of this Indenture, the Indenture Trustee may require reasonable
indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such examination shall be
paid by the Owner Trustee or, if paid by the Indenture Trustee or any
predecessor trustee, shall be repaid by the Owner Trustee upon demand; and
(g) the Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the Indenture
Trustee shall not be responsible for any misconduct or negligence on the
part of any such agent or attorney appointed with due care by it
hereunder.
Section 9.04. Indenture Trustee Not Responsible for Recitals,
Disposition of Certificates or Application of Proceeds Thereof. The Indenture
Trustee assumes no responsibility for the correctness of the recitals contained
herein and in the Certificates, except the Indenture Trustee's certificates of
authentication. The Indenture Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Certificates. The
Indenture Trustee shall not be accountable for the use or application by the
Owner Trustee of any of the Certificates or of the proceeds thereof.
Section 9.05. Indenture Trustee and Agents May Hold
Certificates; Collections, etc. The Indenture Trustee or any agent of the
Indenture Trustee in its individual or any other capacity may become the owner
or pledgee of Certificates with the same rights it would have if it were not
the Indenture Trustee or such agent and may otherwise deal with the Owner
Trustee and receive, collect, hold and retain collections from the Owner
Trustee with the same rights it would have if it were not the Indenture Trustee
or such agent.
Section 9.06. Moneys Held by Indenture Trustee. Subject to
Sections 5.08 hereof and 14.04 hereof, all moneys received by the Indenture
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from
other funds except to the extent required by mandatory provisions of law.
Neither the Owner Trustee nor, subject to Section 5.08 hereof, the Indenture
Trustee nor any agent thereof shall be under any liability for interest on any
moneys received by it hereunder.
Section 9.07. Right of Indenture Trustee to Rely on Officer's
Certificate, etc. Subject to Sections 9.02 and 9.03 hereof, whenever in the
administration of the trusts of this Indenture the Indenture Trustee shall deem
it necessary or desirable that a matter be proved or established prior to
taking or suffering or omitting any action hereunder, such matter (unless other
evidence in respect thereof be specifically prescribed herein) may, in the
absence of bad faith on the part of the Indenture Trustee, be deemed to be
conclusively proved and established by an Officer's Certificate delivered to
the Indenture Trustee, and such certificate, in the absence of bad faith on the
part of the Indenture Trustee, shall be full warrant to the Indenture Trustee
for any action taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.
Section 9.08. Replacement Airframes and Replacement Engines. At
any time and from time to time any Airframe or Engine which has been subject to
an Event of Loss and may, or is required to, be replaced under Section 10.03,
11.03 or 11.04 of the Lease by a Replacement Airframe or Replacement Engine, as
the case may be, shall be replaced in accordance with the provisions of this
Section 9.08 and the provisions of said Sections of the Lease, the Owner
Trustee shall, from time to time, direct the Indenture Trustee to execute and
deliver to or as directed in writing by the Owner Trustee an appropriate
instrument releasing such Airframe and/or Engine as appropriate from the Lien
of this Indenture and the Indenture Trustee shall execute and deliver such
instrument as aforesaid without recourse or warranty, but only upon receipt by
or deposit with the Indenture Trustee of the following:
(1) A written request from the Owner Trustee requesting such
release and specifically describing the Airframe and/or Engine(s) to be so
released.
(2) A certificate signed by a duly authorized officer of the
Lessee stating the following:
A. With respect to the replacement of any Airframe:
(i) a description of the Airframe subject to the Event of Loss
including the manufacturer, model, FAA registration number (or
other applicable registration information) and manufacturer's
serial number;
(ii) a description of the Replacement Airframe, including the
manufacturer, model, FAA registration number (or other applicable
registration information) and manufacturer's serial number;
(iii) that on the date of the Indenture and Security Agreement
Supplement relating to the Replacement Airframe the Owner Trustee
will be the legal owner of and have good and marketable title to
such Replacement Airframe free and clear of all Liens except
Liens permitted under Section 6.01 of the Lease, that such
Replacement Airframe will on such date be in at least as good
operating condition and repair as required by the terms of the
Lease, and that such Replacement Airframe has been or,
substantially concurrently with such replacement, will be duly
registered in the name of the Owner Trustee under the
Transportation Code or under the law then applicable to the
registration of the Airframe subject to the Event of Loss and
that an airworthiness certificate has been duly issued under the
Transportation Code (or such other applicable law) with respect
to such Replacement Airframe and that such registration and
certificate is, or will be, in full force and effect, and that
the Lessee will have the full right and authority to use such
Replacement Airframe;
(iv) that the insurance required by Article 13 of the Lease is
in full force and effect with respect to such Replacement
Airframe and all premiums then due thereon have been paid in
full;
(v) that the Replacement Airframe is of the same or an
improved make or model as the Airframe requested to be released
from this Indenture;
(vi) that the value of the Replacement Airframe as of the date
of such certificate is not less than the value of the Airframe
requested to be released (assuming such Airframe was in the
condition and repair required to be maintained under the Lease);
(vii) that no Event of Default has occurred and is continuing or
would result from the making and granting of the request for
release and the addition of a Replacement Airframe;
(viii) that the release of the Airframe subject to the Event of
Loss will not impair the security of the Indenture in
contravention of any of the provisions of this Indenture;
(ix) that upon such replacement, the Lien of this Indenture
will apply to the Replacement Airframe and such Lien will be a
first priority security interest in favor of the Indenture
Trustee; and
(x) that each of the conditions specified in Section 11.03 of
the Lease with respect to such Replacement Airframe has been
satisfied.
B. With respect to the replacement of any Engine:
(i) a description of the Engine subject to the Event of Loss
including the manufacturer's serial number;
(ii) a description of the Replacement Engine including the
manufacturer's name, the engine model and serial number;
(iii) that on the date of the Indenture and Security Agreement
Supplement relating to the Replacement Engine the Owner Trustee
will be the legal owner of such Replacement Engine free and clear
of all Liens except Liens permitted under Section 6.01 of the
Lease, and that such Replacement Engine will on such date be in
at least as good operating condition and repair as required by
the terms of the Lease;
(iv) that the value of the Replacement Engine as of the date of
such certificate is not less than the value of the Engine to be
released (assuming such Engine was in the condition and repair
required to be maintained under the Lease);
(v) that the release of the Engine subject to the Event of
Loss will not impair the security of the Indenture in
contravention of any of the provisions of this Indenture;
(vi) that upon such replacement, the Lien of this Indenture
will apply to the Replacement Engine; and
(vii) that each of the conditions specified in Section 10.03,
11.03 or 11.04 of the Lease with respect to such Replacement
Engine has been satisfied.
(3) The appropriate instruments (i) transferring to the Owner
Trustee title to the Replacement Airframe or Replacement Engine to be received
as consideration for the Airframe or Engine to be released and (ii) assigning
to the Owner Trustee the benefit of all manufacturer's and vendor's warranties,
if any, generally available with respect to such Replacement Airframe or
Replacement Engine, and an Indenture and Security Agreement Supplement
subjecting such Replacement Airframe or Replacement Engine to the Trust
Agreement and to the Lien of this Indenture.
(4) A certificate from a firm of independent aircraft appraisers of
national standing satisfactory to the Indenture Trustee and the Owner Trustee
confirming the accuracy of the information set forth in clause (2)A.(vi) of
this Section 9.08.
(5) The opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel to the
Lessee, or other counsel reasonably satisfactory to the Indenture Trustee,
stating that:
(i) the certificates, opinions and other instruments and/or
property which have been or are therewith delivered to and deposited with
the Indenture Trustee conform to the requirements of this Indenture and
the Lease and, upon the basis of such application, the property so sold or
disposed of may be properly released from the Lien of this Indenture and
all conditions precedent herein provided for relating to such release have
been complied with; and
(ii) the Replacement Airframe or Replacement Engine has been
validly subjected to the Lien of this Indenture and covered by the Lease,
the instruments subjecting such Replacement Airframe or Replacement Engine
to the Lease and to the Lien of this Indenture, as the case may be, have
been duly filed for recordation pursuant to the Transportation Code or any
other law then applicable to the registration of the Aircraft, and no
further action, filing or recording of any document is necessary or
advisable in order to establish and perfect the title of the Owner Trustee
to and the Lien of this Indenture on such Replacement Airframe or
Replacement Engine and the Indenture Trustee would be entitled to the
benefits of Section 1110 of the Bankruptcy Code with respect to such
Replacement Airframe or Replacement Engine, provided, that such opinion
need not be to the effect specified in the foregoing clause to the extent
that the benefits of such Section 1110 would not have been, by reason of a
change in law or governmental interpretation thereof after the date
hereof, available to the Indenture Trustee with respect to the Aircraft
immediately prior to such substitution had such Event of Loss not
occurred.
Section 9.09. Indenture and Security Agreement Supplement for
Replacements. In the event of the substitution of a Replacement Airframe or a
Replacement Engine as contemplated by Section 10.03 or Article 11 of the Lease,
the Owner Trustee and the Indenture Trustee agree for the benefit of the
Holders and the Lessee, subject to fulfillment of the conditions precedent and
compliance by the Lessee with its obligations set forth in Section 10.03 or
Article 11 of the Lease, to execute and deliver an Indenture and Security
Agreement Supplement as contemplated by Section 9.08(3) hereof and, provided no
Event of Default shall have occurred and be continuing, execute and deliver to
the Lessee an appropriate instrument releasing the Airframe or Engine being
replaced from the Lien of this Indenture.
Section 9.10. Effect of Replacement. In the event of the
substitution of a Replacement Airframe or a Replacement Engine as contemplated
by Section 10.01 or Article 11 of the Lease and Section 9.08 hereof, all
provisions of this 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.
Section 9.11. Compensation. The Owner Trustee covenants and
agrees to pay, and the Indenture Trustee shall be entitled to receive,
reasonable compensation and payment or reimbursement for its reasonable
advances, expenses and disbursements (including the reasonable compensation and
expenses and disbursements of its counsel, agents and other persons not
regularly in its employ) in connection with its services rendered hereunder or
in any way relating to or arising out of the administration of the Trust
Indenture Estate and shall have a priority claim on the Trust Indenture Estate
for the payment of such compensation, advances, expenses and disbursements to
the extent that such compensation, advances, expenses and disbursements shall
not be paid by the Lessee, and shall have the right to use or apply any moneys
held by it hereunder in the Trust Indenture Estate toward such payments;
provided that, so long as the Lease is in effect, the Indenture Trustee shall
not make any claim for payment under this Section 9.11 against the Owner
Trustee without first making demand on the Lessee for payment of such claim.
The Indenture Trustee agrees that it shall have no right against any Holder,
SSB or the Owner Participant for any fee as compensation for its services as
trustee under this Indenture.
ARTICLE X
CONCERNING THE HOLDERS
Section 10.01. Evidence of Action Taken by Holders. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in
writing, and, except as otherwise expressly provided herein, such action shall
become effective when such instrument or instruments are delivered to the
Indenture Trustee and, if expressly required herein, to the Owner Trustee.
Proof of execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Sections
9.02 and 9.03 hereof) conclusive in favor of the Indenture Trustee and the
Owner Trustee, if made in the manner provided in this Article.
(b) For the purpose of determining the Holders entitled to vote
or consent to any direction, waiver or other action of such Holders under
Section7.10 or 7.11 hereof, the Lessee may set a record date for such vote or
consent by specifying such record date in an Officer's Certificate delivered to
the Indenture Trustee. Such record date shall be a date not more than 15 days
prior to the first solicitation of such vote or consent.
Section 10.02. Proof of Execution of Instruments and of Holding
of Certificates. Subject to Sections 9.02 and 9.03 hereof, the execution of
any instrument by a Holder or his agent or proxy may be proved in accordance
with such reasonable rules and regulations as may be prescribed by the
Indenture Trustee. The holding of Certificates shall be proved by the Register
or by a certificate of the Registrar.
Section 10.03. Holders to Be Treated as Owners. Prior to due
presentment for registration of transfer of any Certificate, the Owner Trustee,
the Indenture Trustee, any agent of the Owner Trustee or the Indenture Trustee,
the Paying Agent, if any, the Registrar and the Lessee may deem and treat the
Person in whose name such Certificate shall be registered upon the Register as
the absolute owner of such Certificate (whether or not such Certificate shall
be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest on such
Certificate and for all other purposes; and neither the Owner Trustee nor the
Indenture Trustee (nor any agent of the Owner Trustee or the Indenture Trustee)
nor the Paying Agent, if any, nor the Registrar nor the Lessee shall be
affected by any notice to the contrary. All such payments so made to any such
person, or upon his order, shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Certificate.
Section 10.04. Certificates Owned by Owner Trustee and the
Lessee Deemed Not Outstanding. In determining whether the Holders of the
requisite aggregate principal amount of Certificates have concurred in any
direction, consent or waiver under this Indenture, Certificates which are owned
by the Owner Trustee, the Owner Participant, SSB, the Lessee or by any
Affiliate thereof shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination; provided that for the purpose of determining
whether the Indenture Trustee shall be protected in relying on any such
direction, consent or waiver, only if a Responsible Officer of the Indenture
Trustee has actual knowledge that certain Certificates are so owned by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Owner Trustee, the Owner Participant or SSB
shall such Certificates be so disregarded; and provided further that if all
Certificates which would be deemed Outstanding in the absence of the foregoing
provision are owned by the Owner Trustee or the Owner Participant or by any
Affiliate thereof, then such Certificates shall be deemed Outstanding for the
purpose of any such determination. Certificates so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Indenture Trustee the pledgee's right so to act with
respect to such Certificates and that the pledgee is not the Owner Trustee, the
Owner Participant, SSB or the Lessee or any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Owner Trustee, the Owner Participant, SSB or the Lessee. In case of a
dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Indenture Trustee in accordance with such
advice, unless the Lessee, the Owner Trustee, SSB, or the Owner Participant are
actually named in the Register. Upon request of the Indenture Trustee, the
Owner Trustee, the Owner Participant, SSB and the Lessee shall furnish to the
Indenture Trustee promptly an Officer's Certificate listing and identifying all
Certificates, if any, known by the Owner Trustee, the Owner Participant, SSB or
the Lessee to be owned or held by or for the account of any of the
above-described persons; and, subject to Sections 9.02 and 9.03 hereof, the
Indenture Trustee shall be entitled to accept such Officer's Certificate as
conclusive evidence of the facts set forth therein and of the fact that all
Certificates not listed therein are outstanding for the purpose of any such
determination.
Section 10.05. Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Indenture Trustee, as provided
in Section 10.01, of the taking of any action by the Holders of the percentage
in aggregate principal amount of the Certificates specified in this Indenture
in connection with such action, any Holder of a Certificate, the serial number
of which is shown by the evidence to be included among the serial numbers of
the Certificates the Holders of which have consented to such action, may, by
filing written notice at the Corporate Trust Department and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Certificate. Except as aforesaid, any such action taken by the Holder shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Certificate and of any Certificates issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon any such Certificate or otherwise. Any action taken by the Holders of
the percentage in aggregate principal amount of the Certificates specified in
this Indenture in connection with such action shall be conclusively binding
upon the Owner Trustee, the Indenture Trustee and the Holders of all the
Certificates.
Section 10.06. ERISA. Any Person, other than the Subordination
Agent and the Pass Through Trustee, who is acquiring the Certificates will be
deemed to represent and warrant that (i) no assets of an employee benefit plan
subject to Title I of ERISA or an individual retirement account or plan subject
to Section 4975 of the Code, or any trust established under any such plan or
account, have been used to acquire or hold any of the Certificates, or (ii)
that one or more administrative or statutory exemptions from the prohibited
transaction rules under Section 406 of ERISA and Section 4975 of the Code
applies to its purchase and holding of the Certificates such that its purchase
and holding of the Certificates will not result in a non-exempt prohibited
transaction under Section 406 of ERISA and Section 4975 of the Code.
ARTICLE XI
INDEMNIFICATION OF INDENTURE
TRUSTEE BY OWNER TRUSTEE
The Owner Trustee, not individually but solely in its capacity as
Owner Trustee under the Trust Agreement, hereby agrees, whether or not any of
the transactions contemplated hereby shall be consummated, to assume liability
for, and does hereby indemnify, protect, save and keep harmless the Indenture
Trustee, in its individual capacity, and its successors, assigns, agents and
servants solely from the Lessor's Estate, with respect to the claims of the
Indenture Trustee for payment or reimbursement under Section 9.11 hereof and
from and against any and all liabilities, obligations, losses, damages,
penalties, taxes (excluding any taxes payable by the Indenture Trustee on or
measured by any compensation received by the Indenture Trustee for its services
under this Indenture), claims, actions, suits, costs, expenses or disbursements
(including 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 agreed to be indemnified against by any other person under any
other document) in any way relating to or arising out of this Indenture, or any
other Indenture Documents or the enforcement of any of the terms of any
thereof, or in any way relating to or arising out of the manufacture, purchase,
acceptance, nonacceptance, rejection, ownership, delivery, lease, possession,
use, operation, condition, sale, return or other disposition of the Aircraft or
any Engine (including, without limitation, latent and other defects, whether or
not discoverable, and any claim for patent, trademark or copyright
infringement), or in any way relating to or arising out of the administration
of the Trust Indenture Estate or the action or inaction of the Indenture
Trustee hereunder, except only (a) in the case of willful misconduct or gross
negligence of the Indenture Trustee in the performance of its duties hereunder,
(b) as may result from the inaccuracy of any representation or warranty of the
Indenture Trustee in the Participation Agreement, (c) as otherwise provided in
Section 9.02(c) hereof or (d) as otherwise excluded by the terms of Article 8
or Article 9 of the Participation Agreement from the Lessee's indemnity to the
Indenture Trustee under said Articles; provided that so long as the Lease is in
effect, the Indenture Trustee shall not make any claim under this Article XI
for any claim or expense indemnified by the Lessee under the Participation
Agreement without first making demand on the Lessee for payment of such claim
or expense. 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 Article XI to the extent not reimbursed by the Lessee or
others, but without releasing any of them from their respective agreements of
reimbursement; and to secure the same the Indenture Trustee shall have a prior
Lien on the Trust Indenture Estate. The indemnities contained in this Article
XI shall survive the termination of this Indenture and the resignation or
removal of the Indenture Trustee. Upon payment in full by the Owner Trustee
of any indemnity pursuant to this Article XI, the Owner Trustee shall, so long
as no Indenture Event of Default shall have occurred and be continuing, be
subrogated to the rights of the Indenture Trustee, if any, in respect of the
matter as to which the indemnity was paid.
ARTICLE XII
SUCCESSOR TRUSTEES
Section 12.01. Notice of Successor Owner Trustee. In the case
of any appointment of a successor to the Owner Trustee pursuant to the Trust
Agreement or any merger, conversion, consolidation or sale of substantially all
of the corporate trust business of the Owner Trustee pursuant to the Trust
Agreement, the successor Owner Trustee shall give prompt written notice thereof
to the Indenture Trustee.
Section 12.02. Resignation and Removal of Indenture Trustee;
Appointment of Successor. (a) The Indenture Trustee or any successor thereto
may resign at any time without cause by giving at least 30 days' prior written
notice to the Owner Trustee, the Owner Participant, the Lessee and each Holder,
such resignation to be effective upon the acceptance of the trusteeship by a
successor Indenture Trustee. In addition, the Majority in Interest of the
Certificate Holders or the Owner Trustee, with the consent of the Lessee and
the Majority in Interest of the Certificate Holders may at any time remove the
Indenture Trustee without cause by an instrument in writing delivered to the
Lessee, the Owner Trustee, the Owner Participant, and the Indenture Trustee,
and the Indenture Trustee shall promptly notify each Holder thereof of such
action 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, the Majority in Interest of the
Certificate Holders, or the Owner Trustee, with the consent of the Lessee and
the Majority in Interest of the Certificate Holders, may appoint a successor
Indenture Trustee by an instrument signed by such Holders. If a successor
Indenture Trustee shall not have been appointed within 30 days after such
notice of resignation or removal, the Indenture Trustee, the Owner Trustee, the
Lessee, the Owner Participant, or any 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 provided above.
The successor Indenture Trustee so appointed by such court shall immediately
and without further act be superseded by any successor Indenture Trustee
appointed as provided above.
(b) In case at any time any of the following shall occur:
(i) the Indenture Trustee shall cease to be eligible in
accordance with the provisions of Section 12.03 hereof and shall fail to
resign after written request therefor by the Owner Trustee or by any such
Holder; or
(ii) the Indenture Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of
the Indenture Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Indenture Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then the Owner Trustee may remove the Indenture Trustee and, with the consent
of the Lessee, appoint a successor trustee by written instrument, in duplicate,
executed by a Responsible Officer of the Owner Trustee, one copy of which
instrument shall be delivered to the Indenture Trustee so removed and one copy
to the successor trustee, or, subject to the provisions of Section7.13 hereof,
any Holder who has been a bona fide Holder for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Indenture Trustee and the
appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Indenture
Trustee and appoint a successor trustee, which removal and appointment shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 12.04 hereof. The successor Indenture Trustee so appointed
by such court shall immediately and without further act be superseded by any
successor Indenture Trustee appointed as provided above within one year from
the date of appointment by such court.
Section 12.03. Persons Eligible for Appointment as Indenture
Trustee. There shall at all times be an Indenture Trustee hereunder which shall
be (i)(x) a bank or trust company organized and doing business under the laws
of the United States of America or any state or the District of Columbia having
a combined capital and surplus of at least $100,000,000 or (y) a bank or trust
company whose obligations hereunder are fully guaranteed by a direct or
indirect parent thereof having a combined capital and surplus of at least
$100,000,000 and (ii) a Citizen of the United States authorized under
applicable law to exercise corporate trust powers and subject to supervision of
examination by Federal, state or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Indenture Trustee shall cease to be eligible in accordance with the provisions
of this Section, the Indenture Trustee shall resign immediately in the manner
and with the effect specified in Section 12.02 hereof.
Section 12.04. Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 12.02 hereof shall
execute and deliver to the Owner Trustee, the Lessee, and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as trustee
herein; but, nevertheless, on the written request of the Owner Trustee or of
the successor trustee, upon payment of its charges then unpaid, the trustee
ceasing to act shall, subject to Section 14.04 hereof, pay over to the
successor trustee all moneys at the time held by it hereunder and shall execute
and deliver an instrument transferring to such successor trustee all such
rights, powers, duties and obligations. Upon request of any such successor
trustee, the Owner Trustee shall execute any and all instruments in writing for
more fully and certainly vesting in and confirming to such successor trustee
all such rights and powers. Any trustee ceasing to act shall, nevertheless,
retain a prior claim upon all property or funds held or collected by such
trustee to secure any amounts then due it pursuant to the provisions of Article
XI hereof.
No successor trustee shall accept appointment as provided in this
Section 12.04 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 12.03 hereof.
Upon acceptance of appointment by a successor trustee as provided
in this Section 12.04, the successor trustee shall mail notice thereof by
first-class mail to the Holders at their last addresses as they shall appear in
the Register, and shall mail a copy of such notice to the Lessee and the Owner
Trustee. If the acceptance of appointment is substantially contemporaneous
with the resignation, then the notice called for by the preceding sentence may
be combined with the notice called for by Section 12.02 hereof.
Section 12.05. Merger, Conversion, Consolidation or Succession
to Business of Indenture Trustee. 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 succeeding to the
corporate trust business of the Indenture Trustee, shall be the successor to
the Indenture Trustee hereunder, provided that, anything herein to the contrary
notwithstanding, such corporation shall be eligible under the provisions of
Section 12.03 hereof, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
In case at the time such successor to the Indenture Trustee shall
succeed to the trusts created by this Indenture any of the Certificates shall
have been authenticated but not delivered, any such successor to the Indenture
Trustee may adopt the certificate of authentication of any predecessor
Indenture Trustee and deliver such Certificates so authenticated; and, in case
at that time any of the Certificates shall not have been authenticated, any
successor to the Indenture Trustee may authenticate such Certificates either in
the name of any predecessor hereunder or in the name of the successor Indenture
Trustee; and in all such cases such certificate shall have the full force which
it is anywhere in the Certificates or in this Indenture provided that the
certificate of the Indenture Trustee shall have; provided, that the right to
adopt the certificate of authentication of any predecessor Indenture Trustee or
to authenticate Certificates in the name of any predecessor Indenture Trustee
shall apply only to its successor or successors by merger, conversion or
consolidation.
Section 12.06. Appointment of Separate Trustees. (a) At any
time or times, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Trust Indenture Estate may at the time be
located or in which any action of the Indenture Trustee may be required to be
performed or taken, the Indenture Trustee, by an instrument in writing signed
by it, may appoint one or more individuals or corporations to act as a separate
trustee or separate trustees or co-trustee, acting jointly with the Indenture
Trustee, of all or any part of the Trust Indenture Estate, to the full extent
that local law makes it necessary for such separate trustee or separate
trustees or co-trustee acting jointly with the Indenture Trustee to act.
(b) The Indenture Trustee and, at the request of the Indenture
Trustee, the Owner Trustee, shall execute, acknowledge and deliver all such
instruments as may be required by the legal requirements of any jurisdiction or
by any such separate trustee or separate trustees or co-trustee for the purpose
of more fully confirming such title, rights or duties to such separate trustee
or separate trustees or co-trustee. Upon the acceptance in writing of such
appointment by any such separate trustee or separate trustees or co-trustee,
it, he or they shall be vested with such title to the Trust Indenture Estate or
any part thereof, and with such rights, powers, duties and obligations, as
shall be specified in the instrument of appointment, and such rights, powers,
duties and obligations shall be conferred or imposed upon and exercised or
performed by the Indenture Trustee, or the Indenture Trustee and such separate
trustee or separate trustees or co-trustee jointly with the Indenture Trustee
subject to all the terms of this Indenture, except to the extent that under any
law of any jurisdiction in which any particular act or acts are to be performed
the Indenture Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations shall be
exercised and performed by such separate trustee or separate trustees or
co-trustee, as the case may be. Any separate trustee or separate trustees or
co-trustee may, at any time by an instrument in writing, constitute the
Indenture Trustee its or his attorney-in-fact and agent with full power and
authority to do all acts and things and to exercise all discretion on its or
his behalf and in its or his name. In case any such separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, the
title to the Trust Indenture Estate and all assets, property, rights, powers,
duties and obligations and duties of such separate trustee or co-trustee shall,
so far as permitted by law, vest in and be exercised by the Indenture Trustee,
without the appointment of a successor to such separate trustee or co-trustee
unless and until a successor is appointed.
(c) All provisions of this Indenture which are for the benefit
of the Indenture Trustee (including without limitation Article XI hereof) shall
extend to and apply to each separate trustee or co-trustee appointed pursuant
to the foregoing provisions of this Section 12.06.
(d) Every additional trustee and separate trustee hereunder
shall, to the extent permitted by law, be appointed and act and the Indenture
Trustee shall act, subject to the following provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon
the Indenture Trustee in respect of the receipt, custody, investment and
payment of moneys shall be exercised solely by the Indenture Trustee;
(ii) all other rights, powers, duties and obligations conferred
or imposed upon the Indenture Trustee shall be conferred or imposed and
exercised or performed by the Indenture Trustee and such additional
trustee or trustees and separate trustee or trustees jointly except to the
extent that under any law of any jurisdiction in which any particular act
or acts are to be performed, the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the
Trust Indenture Estate in any such jurisdiction) shall be exercised and
performed by such additional trustee or trustees or separate trustee or
trustees;
(iii) no power hereby given to, or exercisable by, any such
additional trustee or separate trustee shall be exercised hereunder by
such additional trustee or separate trustee except jointly with, or with
the consent of, the Indenture Trustee; and
(iv) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder.
If at any time the Indenture Trustee shall deem it no longer necessary or
prudent in order to conform to any such law, the Indenture Trustee shall
execute and deliver an indenture supplemental hereto and all other instruments
and agreements necessary or proper to remove any additional trustee or separate
trustee.
(e) Any request, approval or consent in writing by the Indenture
Trustee to any additional trustee or separate trustee shall be sufficient
warrant to such additional trustee or separate trustee, as the case may be, to
take such action as may be so requested, approved or consented to.
(f) Notwithstanding any other provision of this Section 12.06,
the powers of any additional trustee or separate trustee shall not exceed those
of the Indenture Trustee hereunder.
ARTICLE XIII
SUPPLEMENTS AND AMENDMENTS TO THIS
TRUST INDENTURE AND OTHER DOCUMENTS
Section 13.01. Supplemental Indentures Without Consent of
Holders. The Owner Trustee (when authorized by the Owner Participant) and the
Indenture Trustee, without consent of the Holders, may enter into an indenture
or indentures supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge any property
or assets to the Indenture Trustee as security for the Certificates;
(b) to evidence the succession of another corporation to the
Owner Trustee or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of the
Owner Trustee herein and in the Certificates;
(c) to add to the covenants of the Owner Trustee such further
covenants, restrictions, conditions or provisions as it and the Indenture
Trustee shall consider to be for the protection of the Holders, and to
make the occurrence, or the occurrence and continuance, of a default in
any such additional covenants, restrictions, conditions or provisions an
Indenture Event of Default permitting the enforcement of all or any of the
several remedies provided herein; provided, that in respect of any such
additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default
(which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such an
Indenture Event of Default or may limit the remedies available to the
Indenture Trustee upon such an Indenture Event of Default or may limit the
right of not less than the Majority in Interest of Certificate Holders to
waive such an Indenture Event of Default;
(d) to surrender any right or power conferred herein upon the
Owner Trustee or the Owner Participant;
(e) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in
any supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any
supplemental indenture as the Owner Trustee may deem necessary or
desirable and which shall not adversely affect the interests of the
Holders;
(f) to correct or amplify the description of any property at any
time subject to the Lien of this Indenture or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subject to the Lien of this Indenture or to subject Replacement Airframe
or Replacement Engines to the Lien of this Indenture in accordance with
the provisions hereof or with the Lease or to release from the Lien of
this Indenture property that has been substituted on or removed from the
Aircraft as contemplated in Section 3.07 hereof; provided that supplements
to this Indenture entered into for the purpose of subjecting Replacement
Airframe or Replacement Engines to the Lien of this Indenture need only be
executed by the Owner Trustee and the Indenture Trustee;
(g) to provide for the issuance under this Indenture of
Certificates in coupon form (including Certificates registrable as to
principal only) and to provide for exchangeability of such Certificates
with Certificates issued hereunder in fully registered form, and to make
all appropriate changes for such purpose;
(h) to effect the re-registration of the Aircraft pursuant to
Section 6.03(b) of the Participation Agreement; and
(i) to add, eliminate or change any provision hereunder so long
as such action shall not adversely affect the interests of the Holders.
The Indenture Trustee is hereby authorized to join in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be contained therein and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Indenture Trustee shall not be obligated to enter into any
such supplemental indenture which adversely affects the Indenture Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Any such supplemental indenture may be executed without the
consent of the Holders of Outstanding Certificates, notwithstanding any of the
provisions of Section 13.02 hereof.
Section 13.02. Supplemental Indentures With Consent of Holders.
With the consent (evidenced as provided in Article X) of the Majority in
Interest of Certificate Holders, the Owner Trustee (when authorized by the
Owner Participant) and the Indenture Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying
in any manner the rights of the Holders; provided, however, that, without the
consent of each Holder and each Liquidity Provider, no such amendment of or
supplement to this Indenture or any indenture supplemental hereto, or
modification of the terms of, or consent under, any thereof, shall (a) modify
any of the provisions of Section 7.11 hereof or this Section 13.02, (b) reduce
the amount or extend the time of payment of any amount owing or payable under
any Certificate or reduce the interest payable on any Certificate (except that
only the consent of the Holder shall be required for any decrease in any
amounts of or the rate of interest payable on such Certificate or any extension
for the time of payment of any amount payable under such Certificate), or alter
or modify the provisions of Article V hereof with respect to the order of
priorities in which distributions thereunder shall be made as among Holders of
different Series of Certificates or as between the Holder and the Owner Trustee
or the Owner Participant or with respect to the amount or time of payment of
any such distribution, or alter or modify the circumstances under which a
Make-Whole Premium shall be payable, or alter the currency in which any amount
payable under any Certificate is to be paid, or impair the right of any Holder
to commence legal proceedings to enforce a right to receive payment hereunder,
(c) reduce, modify or amend any indemnities in favor of any Holder or in favor
of or to be paid by the Owner Participant (except as consented to by each
Person adversely affected thereby), or (d) create or permit the creation of any
Lien on the Trust Indenture Estate or any part thereof prior to or pari passu
with the Lien of this Indenture, except as expressly permitted herein, or
deprive any Holder of the benefit of the Lien of this Indenture on the Trust
Indenture Estate, except as provided in Section 7.02 hereof or in connection
with the exercise of remedies under Article VII. This Section 13.02 shall not
apply to any indenture or indentures supplemental hereto permitted by, and
complying with the terms of, Section 13.06 hereof.
Upon the request of the Owner Trustee (at the direction of the
Owner Participant) and upon the filing with the Indenture Trustee of evidence
of the consent of Holders and other documents, if any, required by Section
10.01, the Indenture Trustee shall join with the Owner Trustee and the Lessee
in the execution of such supplemental indenture unless such supplemental
indenture affects the Indenture Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Indenture Trustee may in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Owner Trustee, the Indenture
Trustee and the Lessee of any supplemental indenture pursuant to the provisions
of this Section, the Indenture Trustee shall mail a notice thereof by
first-class mail to the Holders at their addresses as they shall appear on the
registry books of the Registrar, setting forth in general terms the substance
of such supplemental indenture. Any failure of the Indenture Trustee to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
Section 13.03. Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Indenture Trustee, the Owner
Trustee, the Lessee and the Holders shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
Section 13.04. Documents to Be Given to Indenture Trustee. The
Indenture Trustee, subject to the provisions of Sections 9.02 and 9.03, may
receive an Officer's Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental indenture complies with the applicable
provisions of this Indenture.
Section 13.05. Notation on Certificates in Respect of
Supplemental Indentures. Certificates authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Indenture Trustee as to any
matter provided for by such supplemental indenture. If the Owner Trustee or
the Indenture Trustee shall so determine, new Certificates so modified as to
conform, in the opinion of the Owner Trustee and the Indenture Trustee, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by the Owner Trustee, authenticated by the Indenture Trustee and
delivered in exchange for the Outstanding Certificates.
Section 13.06. No Request Necessary for Lease Supplement or
Indenture and Security Agreement Supplement. Notwithstanding anything
contained in Section 13.02 hereof, no written request or consent of the
Indenture Trustee, any Holder or the Owner Participant pursuant to Section
13.02 hereof shall be required to enable the Owner Trustee to enter into any
supplement to the Lease with the Lessee pursuant to the terms of the Lease to
subject a Replacement Airframe or Replacement Engine thereto or to execute and
deliver an Indenture and Security Agreement Supplement pursuant to the terms
hereof.
Section 13.07. Notices to Liquidity Providers. Any request made
to any Holder for consent to any amendment, supplement or waiver pursuant to
Section 7.11, 8.01 or this Article XIII shall be promptly furnished by the
Indenture Trustee to each Liquidity Provider.
ARTICLE XIV
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 14.01. Satisfaction and Discharge of Indenture;
Termination of Indenture. If at any time after (a) the Owner Trustee shall
have paid or caused to be paid the principal of and interest on all the
Certificates outstanding hereunder, as and when the same shall have become due
and payable, or (b) the Owner Trustee shall have delivered to the Indenture
Trustee for cancellation all Certificates theretofore authenticated (other than
any Certificates which shall have been destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 2.07 hereof) or (c) (i)
all such Certificates not theretofore delivered to the Indenture Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for prepayment within one
year under arrangements satisfactory to the Indenture Trustee for the giving of
notice of prepayment by the Indenture Trustee in the name and at the expense of
the Owner Trustee, and (ii) the Owner Trustee shall have irrevocably deposited
or caused to be deposited with the Indenture Trustee as trust funds the entire
amount in cash (other than moneys repaid by the Indenture Trustee or any paying
agent to the Owner Trustee in accordance with Section 14.04 hereof) or
Government obligations maturing as to principal and interest in such amounts
and at such times as will insure the availability of cash sufficient to pay at
maturity all such Certificates not theretofore delivered to the Indenture
Trustee for cancellation, including principal and interest due or to become due
to such date of maturity as the case may be, and if, in any such case, the
Owner Trustee shall also pay or cause to be paid all other sums then payable
hereunder by the Owner Trustee, then this Indenture shall cease to be of
further effect (except as to (A) rights of registration of transfer and
exchange, and the Owner Trustee's right of optional prepayment pursuant to
Section 6.02(a)(ii) hereof, (B) substitution of mutilated, defaced, destroyed,
lost or stolen Certificates, (C) rights of Holders to receive payments of
principal thereof and interest thereon, upon the original stated due dates
therefor (but not upon acceleration), (D) the rights, obligations, indemnities
and immunities of the Indenture Trustee hereunder and (E) the rights of the
Holders as beneficiaries hereof with respect to the property so deposited with
the Indenture Trustee payable to all or any of them), and the Indenture
Trustee, on demand of the Owner Trustee accompanied by an Officer's Certificate
and an Opinion of Counsel (covering such matters reasonably requested by, and
in form and substance reasonably satisfactory to, the Indenture Trustee) and at
the cost and expense of the Owner Trustee, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture. The Owner
Trustee agrees to reimburse and indemnify the Indenture Trustee for any costs
or expenses thereafter reasonably and properly incurred and to compensate the
Indenture Trustee for any services thereafter reasonably and properly rendered
by the Indenture Trustee in connection with this Indenture or the Certificates.
Upon (or at any time after) payment in full to the Indenture
Trustee, as trust funds, of the principal of and interest on and Make-Whole
Premium, if any, and all other amounts due hereunder and under all Certificates
and provided that there shall then be no other amounts due to the Indenture
Trustee hereunder or under the Participation Agreement or otherwise secured
hereby, 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 from the Lien of this Indenture and releasing
the Indenture Documents from the assignment thereof hereunder, and the
Indenture Trustee shall execute and deliver such instrument as aforesaid and,
at the Owner Trustee's expense, will execute and deliver such other instruments
or documents as may be reasonably requested by the Owner Trustee to give effect
to such release; provided, however, that this Indenture and the trusts created
hereby shall terminate earlier and this Indenture shall be of no further force
or effect upon any sale or other final disposition by the Indenture Trustee of
all property forming a part of the Trust Indenture Estate and the final
distribution by the Indenture Trustee of all moneys or other property or
proceeds constituting part of the Trust Indenture Estate in accordance with the
terms hereof. Except as aforesaid otherwise provided, this Indenture and the
trusts created hereby shall continue in full force and effect in accordance
with the terms hereof.
Section 14.02. Application by Indenture Trustee of Funds
Deposited for Payment of Certificates. Subject to Section 14.04 hereof, all
moneys deposited with the Indenture Trustee pursuant to Section 14.01 hereof
shall be held in trust and applied by it to the prompt payment, either directly
or through any Paying Agent, to the Holders of the particular Certificates for
the payment or prepayment of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal,
interest and Make-Whole Premium, if any, but such money need not be segregated
from other funds except to the extent required by law.
Section 14.03. Repayment of Moneys Held by Paying Agent. Upon
the satisfaction and discharge of this Indenture all moneys then held by any
Paying Agent under the provisions of this Indenture shall, upon demand of the
Owner Trustee, be repaid to it or paid to the Indenture Trustee and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.
Section 14.04. Transfer of Moneys Held by Indenture Trustee and
Paying Agent Unclaimed for Two Years and Eleven Months. Any moneys deposited
with or paid to the Indenture Trustee or any Paying Agent for the payment of
the principal of or interest or Make-Whole Premium on any Certificate and not
applied but remaining unclaimed for two years and eleven months after the date
upon which such principal, interest or Make-Whole Premium shall have become due
and payable, shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be paid to the Owner
Trustee (or, if the Trust Agreement shall no longer be in effect, to the Owner
Participant) by the Indenture Trustee or such Paying Agent and the Holder of
such Certificate, as a general unsecured creditor, shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to the Owner Trustee (or the
Owner Participant) for any payment which such Holder may be entitled to
collect, and all liability of the Indenture Trustee, or any Paying Agent with
respect to such moneys shall thereupon cease.
ARTICLE XV
MISCELLANEOUS
Section 15.01. Capacity in Which Acting. Each of SSB (or its
permitted successors or assigns) and the Indenture Trustee acts hereunder not
in its individual capacity but solely as trustee except as expressly provided
herein and in the other Operative Documents, and, in the case of SSB (or its
permitted successors or assigns), in the Trust Agreement.
Section 15.02. No Legal Title to Trust Indenture Estate in
Holders. No Holder shall have legal title to any part of the Trust Indenture
Estate. No transfer, by operation of law or otherwise, of any Certificate or
other right, title and interest of any Holder in and to the Trust Indenture
Estate or hereunder shall operate to terminate this Indenture or entitle such
Holder or any successor or transferee of such Holder to an accounting or to the
transfer to it of legal title to any part of the Trust Indenture Estate.
Section 15.03. Sale of Trust Indenture Estate by Indenture
Trustee is Binding. Any sale or other conveyance of all or any part of the
Trust Indenture Estate by the Indenture Trustee made pursuant to the terms of
this Indenture or of the Lease shall bind the Lessee, the Owner Trustee, the
Holders and the Owner Participant 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 therein and thereto. 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 15.04. Indenture for Benefit of Owner Trustee, Indenture
Trustee, Owner Participant, Holders and Liquidity Providers. Nothing in this
Indenture, whether express or implied, shall be construed to give to any person
other than SSB, the Owner Trustee, the Lessee, the Indenture Trustee, as
trustee and in its individual capacity, the Owner Participant, each Liquidity
Provider and the Holders any legal or equitable right, remedy or claim under or
in respect of this Indenture.
Section 15.05. No Action Contrary to the Lessee's Rights Under
the Lease. Notwithstanding any of the provisions of this Indenture or the Trust
Agreement to the contrary, so long as no Event of Default shall have occurred
and be continuing, neither the Indenture Trustee nor the Owner Trustee will
take any affirmative acts that interfere with the peaceful and quiet possession
and enjoyment of the Aircraft by the Lessee.
Section 15.06. 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
Indenture to be made, given, furnished or filed shall be in writing, mailed by
certified mail, postage prepaid, or by confirmed telecopy, and (a) if to the
Owner Trustee, addressed to it at its office at 000 Xxxxxx Xxxxxx, Xxxxxxx
Square, Hartford, Connecticut 06103, Attention: Corporate/Muni Administration,
facsimile (000) 000-0000 with a copy to State Street Bank and Trust Company,
Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
Corporate Trust Department, telephone (000) 000-0000, facsimile (000) 000-0000,
(b) if personally delivered to the Indenture Trustee, addressed to it at its
office at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attention:
Corporate Trust Department, telephone: (000) 000-0000, facsimile: (000)000-0000
or (c) if to the Owner Participant, a Liquidity Provider or the Lessee,
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 in
Section 14.01 of the Participation Agreement. Any party hereto may change the
address to which notices to such party will be sent by giving notice of such
change to the other parties to this Indenture.
Where this Indenture provides for notice to Holders, such notice
shall be sufficiently given (unless otherwise expressly provided herein) if in
writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at such Holder's last address as it appears in the Register. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Indenture Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Owner
Trustee and Holders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Indenture Trustee shall be deemed to be a sufficient giving
of such notice.
Section 15.07. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Lessee or the Owner Trustee to the Indenture Trustee to take any action under
any of the provisions of this Indenture, the Lessee or the Owner Trustee, as
the case may be, shall furnish to the Indenture Trustee upon request (a) an
Officer's Certificate stating that all conditions precedent provided for in
this Indenture relating to the proposed action have been complied with and that
the proposed action is in conformity with the requirements of this Indenture,
and (b) an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except that in the
case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
Any certificate, statement or opinion of an officer of SSB may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it
relates to factual matters information with respect to which is in the
possession of the Lessee or SSB, upon the certificate, statement or opinion of
or representations by an officer or officers of the Lessee or SSB, as the case
may be, unless such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Lessee
or SSB or of counsel thereto may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants employed by the Lessee or the Owner Trustee, as the case
may be, unless such officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the accounting
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Indenture Trustee shall contain a statement that
such firm is independent.
Section 15.08. Severability. Any provision of this Indenture
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 15.09. No Oral Modifications or Continuing Waivers. No
terms or provisions of this Indenture or the Certificates may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party or other person against whom enforcement of the change,
waiver, discharge or termination is sought; and any waiver of the terms hereof
or of any Certificate shall be effective only in the specific instance and for
the specific purpose given.
Section 15.10. Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
each of the parties hereto and the successors and permitted assigns of each,
all as herein provided. Any request, notice, direction, consent, waiver or
other instrument or action by any Holder shall bind the successors and assigns
of such Holder. This Indenture and the Trust Indenture Estate shall not be
affected by any amendment or supplement to the Trust Agreement or by any other
action taken under or in respect of the Trust Agreement, except that each
reference in this Indenture to the Trust Agreement shall mean the Trust
Agreement as amended and supplemented from time to time to the extent permitted
hereby and thereby.
Section 15.11. Headings. The headings of the various Articles
and Sections herein and in the table of contents hereto are for the convenience
of reference only and shall not define or limit any of the terms or provisions
hereof.
Section 15.12. Normal Commercial Relations. Anything contained
in this Indenture to the contrary notwithstanding, the Owner Participant, the
Indenture Trustee and any Holder, or any bank or other affiliate of any such
party, may conduct any banking or other financial transactions, and have
banking or other commercial relationships, with the Lessee fully to the same
extent as if this Indenture were not in effect, including without limitation
the making of loans or other extensions of credit to the Lessee for any purpose
whatsoever, whether related to any of the transactions contemplated hereby or
otherwise.
Section 15.13. Governing Law; Counterparts. THIS INDENTURE AND
EACH CERTIFICATE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE. This Indenture may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the date first written above by their respective
officers thereunto duly authorized and acknowledge that this Indenture has been
made and delivered in the City of New York, and this Indenture shall be
effective only upon such execution and delivery.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as specifically set forth herein
but solely as Owner Trustee
By_____________________________________________
Name: Xxxx X. Xxxxx
Title: Vice President
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By_____________________________________________
Name: Xxxx X. Xxxxxx
Title: Vice President
Exhibit A
to
Trust Indenture and Security Agreement
--------------------------------------
Indenture and Security Agreement Supplement No. ___
Indenture and Security Agreement Supplement No. ___ (Federal
Express Corporation Trust No. N677FE) dated ________, ____, of STATE STREET
BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity but solely as owner trustee (herein
called the "Owner Trustee") under the Trust Agreement (Federal Express
Corporation Trust No. N677FE) dated as of June 15, 1998, as amended and
restated as of August 1, 1998 (the "Trust Agreement") between State Street Bank
and Trust Company of Connecticut, National Association and the Owner
Participant named therein.
W I T N E S S E T H :
WHEREAS, the Trust Agreement provides for the execution and
delivery of this Indenture and Security Agreement Supplement which shall
particularly describe the Aircraft and any Replacement Airframe or Replacement
Engine included in the property covered by the Trust Agreement.
WHEREAS, the Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N677FE) dated as of June 15, 1998, as amended and
restated as of August 1, 1998 (the "Indenture") between the Owner Trustee and
First Security Bank, National Association (herein called the "Indenture
Trustee") provides for the execution and delivery of an Indenture and Security
Agreement Supplement substantially in the form of this Indenture and Security
Agreement Supplement No. __, which Supplement shall particularly describe the
Aircraft included in the Trust Indenture Estate, and shall specifically
mortgage such Aircraft to the Indenture Trustee.
(1)WHEREAS, the Indenture relates to the Aircraft and the Engines
described in the following paragraph and a counterpart of the Indenture is
attached to and made a part of this Indenture and Security Agreement Supplement
No. 1, and this Indenture and Security Agreement Supplement No. 1, together
with such attachment, is being filed for recordation on or promptly after the
date of this Supplement No. 1 with the Federal Aviation Administration as one
document.
--------
1 This recital is to be included only in the first Indenture Supplement.
(2)WHEREAS, the Indenture and Indenture and Security Agreement
Supplement No. ___ dated _________________, ______ (the Indenture being
attached to and made a part of such Indenture and Security Agreement Supplement
and filed therewith) have been duly recorded pursuant to Subtitle VII of Title
49 of the United States Code, on ____________, _____, as one document and have
been assigned Conveyance No. _________.
--------
2 This recital is not to be included in the first Indenture Supplement.
NOW, THEREFORE, this Supplement witnesseth, that, to secure the
prompt payment of the principal of and Make-Whole Premium, if any, and interest
on, and all other amounts due with respect to, all Outstanding Certificates
under the Indenture and all other amounts due hereunder and the performance and
observance by the Owner Trustee of all the agreements, covenants and provisions
for the benefit of the Holders contained in the Indenture, in the Lease, in the
Participation Agreement and the Certificates, and the prompt payment of any and
all amounts from time to time owing under the Participation Agreement by the
Owner Trustee, the Owner Participant or the Lessee to the Holders and for the
uses and purposes and subject to the terms and provisions of the Indenture and
the Certificates, and in consideration of the premises and of the covenants
contained in the Indenture, and of the purchase of the Certificates by the
Holders, and of the sum of $1 paid to the Owner Trustee by the Indenture
Trustee at or before the delivery of the Indenture, the receipt of which is
hereby acknowledged, the Owner Trustee has granted, bargained, sold, assigned,
transferred, conveyed, mortgaged, pledged, granted a security interest in, and
confirmed, and does hereby grant, bargain, sell, assign, transfer, convey,
mortgage, pledge, grant a security interest in, and confirm, unto the Indenture
Trustee, its successors and assigns, in trust for the equal and ratable
security and benefit of the Holders, in the trust created by the Indenture, and
subject to all of the terms, conditions, provisions and limitations set forth
in the Indenture, a first priority security interest in and mortgage lien on
all estate, right, title and interest of the Owner Trustee in, to and under the
following described property:
Airframe
One (1) Airframe identified as follows:
FAA Manufacturer's
Registration Serial
Manufacturer Model Number Number
------------ ----- ------------ --------------
together with all appliances, equipment, instruments and accessories
(including, without limitation, radio and radar) from time to time belonging
thereto, owned by the Owner Trustee and installed in or appurtenant to said
aircraft.
AIRCRAFT ENGINES
Two (2) aircraft engines, each such engine having 750 or more rated takeoff
horsepower or the equivalent thereof, identified as follows:
Manufacturer's
Serial
Manufacturer Model Number
------------ ----- --------------
together with all equipment and accessories belonging thereto, by whomsoever
manufactured, owned by the Owner Trustee and installed in or appurtenant to
said aircraft engines.
Together with all substitutions, replacements and renewals of the
property described above, and all property which shall hereafter become
physically attached to or incorporated in the property described above, whether
the same are now owned by the Owner Trustee or shall hereafter be acquired by
it.
As further security for the obligations referred to above and
secured by the Indenture and hereby, the Owner Trustee has granted, bargained,
sold, assigned, transferred, conveyed, mortgaged, pledged and confirmed, and
does hereby grant, bargain, sell, assign, transfer, convey, mortgage, pledge
and confirm, unto the Indenture Trustee, its successors and assigns, for the
security and benefit of the Holders, in the trust created by the Indenture, and
subject to all of the terms, conditions, provisions and limitations set forth
in the Indenture, all of the estate, right, title and interest of the Owner
Trustee in, to and under the Lease Supplement (other than Excepted Payments, if
any) covering the property described above.
TO HAVE AND TO HOLD all and singular the aforesaid property unto
the Indenture Trustee, its successors and assigns, for the benefit and security
of the Holders for the uses and purposes and subject to the terms and
provisions set forth in the Indenture.
This Supplement shall be construed as supplemental to the
Indenture and shall form a part thereof, and the Indenture is hereby
incorporated by reference herein and is hereby ratified, approved and
confirmed.
This Supplement is being delivered in the State of New York.
AND, FURTHER, the Owner Trustee hereby acknowledges that the
Aircraft/Engines referred to in this Supplement and the aforesaid Lease
Supplement has been delivered to the Owner Trustee and is included in the
property of the Owner Trustee and covered by all the terms and conditions of
the Trust Agreement, subject to the Lien of the Indenture.
IN WITNESS WHEREOF, the Owner Trustee has caused this Supplement
to be duly executed as of the date first written above by one of its officers
thereunto duly authorized.
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
except as specifically set forth herein
but solely as Owner Trustee
By__________________________________________
Name: Xxxx X. Xxxxx
Title: Vice President
Exhibit B
to
Trust Indenture and Security Agreement
--------------------------------------
[Form of Certificate]
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD OR OFFERED FOR SALE IN CONTRAVENTION OF SAID ACT
No. ______ $_____________
EQUIPMENT TRUST CERTIFICATE
(Federal Express Corporation Trust No. N677FE)
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
not in its individual capacity but solely as
OWNER TRUSTEE UNDER TRUST AGREEMENT
(Federal Express Corporation Trust No. N677FE)
dated as of June 15, 1998,
as amended and restated as of August 1, 1998
SERIES ___
Interest Rate Maturity
------------- --------
State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity but
solely as Owner Trustee (herein in such capacity called the "Owner Trustee")
under that certain Trust Agreement (Federal Express Corporation Trust No.
N677FE) dated as of June 15, 1998, as amended and restated as of August 1,
1998, between the Owner Participant named therein and State Street Bank and
Trust Company of Connecticut, National Association (herein as such Trust
Agreement may be amended or supplemented from time to time called the "Trust
Agreement"), hereby promises to pay to FIRST SECURITY BANK, NATIONAL
ASSOCIATION, as Subordination Agent, or its registered assigns, the principal
sum of ________________ _______________ Dollars, payable as set forth below
for the Maturity specified above, in such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts, and to pay interest on the principal outstanding from
time to time, semiannually on each January 15 and July 15, on said principal
sum in like coin or currency at the rate per annum set forth above from the
January 15 or the July 15, as the case may be, next preceding the date of this
Certificate to which interest on the Certificates has been paid or duly
provided for, unless the date hereof is a date to which interest on the
Certificates has been paid or duly provided for, in which case from the date of
this Certificate. Notwithstanding the foregoing, if the date hereof is after
any January 15 or July 15 and before the following January 15 or July 15, as
the case may be, this Certificate shall bear interest from such January 15 or
July 15; provided that, if the Owner Trustee shall default in the payment of
interest due on such January 15 or July 15, then this Certificate shall bear
interest from the next preceding January 15 or July 15 to which interest on
this Certificate has been paid or duly provided for. The interest so payable
on any January 15 or July 15 will, except as otherwise provided in the
Indenture referred to below, be paid to the person in whose name this
Certificate is registered at the close of business on the January 15 or July 15
preceding such January 15 or July 15, whether or not such day is a Business
Day.
This Certificate shall bear interest at the Past Due Rate on any
principal hereof and on any other amount payable hereunder or under the
Indenture which shall not be paid in full when due (whether at stated maturity,
by acceleration, by mandatory prepayment or otherwise), for the period from and
including the date thereof to but excluding the date the same is paid in full,
payable from time to time on demand of the Indenture Trustee.
Principal and interest and other amounts due hereunder shall be
payable at the office or agency of First Security Bank, National Association
(the "Indenture Trustee") maintained for such purpose; provided that, at the
option of the Indenture Trustee or its Paying Agent, interest may be paid by
mailing a check therefor payable to or upon the written order of the registered
holder entitled thereto at his last address as it appears on the Register. If
any amount payable under this Certificate, or under the Indenture, falls due on
a day that is not a Business Day, then such sum shall be payable on the next
succeeding Business Day, without (provided that payment is made on such next
succeeding Business Day) additional interest thereon for the period of such
extension.
State Street Bank and Trust Company of Connecticut, National
Association and First Security Bank, National Association are not acting
individually hereunder, but solely as Owner Trustee and Indenture Trustee.
Any Person, other than the Subordination Agent, who is acquiring
the Certificates will be deemed to represent and warrant that (i) no assets of
an employee benefit plan subject to Title I of ERISA or an individual
retirement account or plan subject to Section 4975 of the Code, or any trust
established under any such plan or account, have been used to acquire or hold
any of the Certificates, or (ii) that one or more administrative or statutory
exemptions from the prohibited transaction rules under Section 406 of ERISA and
Section 4975 of the Code applies to its purchase and holding of the
Certificates such that its purchase and holding of the Certificates will not
result in a non-exempt prohibited transaction under Section 406 of ERISA and
Section 4975 of the Code.
This Certificate is one of a duly authorized issue of
Certificates issued and to be issued under the Trust Indenture and Security
Agreement (Federal Express Corporation Trust No. N677FE) dated as of June 15,
1998, as amended and restated as of August 1, 1998 (herein as amended,
supplemented or modified from time to time called the "Indenture") between the
Owner Trustee and the Indenture Trustee.
Reference is made to the Indenture and all supplements and
amendments thereto (a copy of which is on file with the Indenture Trustee at
its principal corporate trust office) for a more complete statement of the
terms and provisions thereof, including a statement of the properties conveyed,
pledged and assigned thereby, the nature and extent of the security, the
respective rights of the Owner Trustee, the Owner Participant, the Lessee, the
Indenture Trustee and the Holders, and the terms upon which the Certificates
are, and are to be, executed and delivered, to all of which terms and
conditions in the Indenture each Holder hereof agrees by its acceptance of this
Certificate.
Capitalized terms not otherwise defined herein shall have the
meanings given to them in the Indenture.
The principal amounts of the Certificates are payable as set
forth on Schedule I attached hereto. The Certificates are subject to
redemption in part, pro rata (based on the face amount thereof), in each case
through mandatory sinking fund redemptions providing for the redemption on the
Sinking Fund Redemption Dates of the aggregate principal amounts set forth on
Schedule I attached hereto, together with interest accrued thereon to the
applicable Sinking Fund Redemption Date, but without Make-Whole Premium.
Except as expressly provided in the Indenture, all payments of
principal, Make-Whole Premium, if any, and interest and other amounts to be
made to the Holder hereof by or at the behest of the Owner Trustee hereunder or
under the Indenture shall be made only from the income and proceeds from the
Lessor's 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 Lessor's Estate to the extent included in the Trust Indenture Estate
to enable the Indenture Trustee to make such distributions in accordance with
the terms of the Indenture; provided that under the Lease, the Lessee is
obligated to pay or cause to be paid, to the extent such payments are not
required to be made from the assets subject to the Lien of this Indenture or
the income and proceeds received by the Indenture Trustee therefrom, any net
loss arising from the investment of funds held by the Indenture Trustee which
but for an Event of Default would be payable to Lessee, and each Holder hereof,
by its acceptance of this Certificate, agrees that it will (except as
aforesaid) look solely to the income and proceeds from the Trust Indenture
Estate to the extent available for distribution to the Holder hereof as
provided above and that neither the Owner Participant, the Owner Trustee, SSB
nor the Indenture Trustee is personally liable to the Holder hereof for any
amounts payable or any liability under this Certificate or under the Indenture,
except as expressly provided in the Indenture, in the case of SSB, the Owner
Trustee and the Indenture Trustee.
The Certificates are subject to prepayment in the circumstances
and at the prices determined as set forth in the Indenture.
If, in accordance with and subject to the satisfaction of the
conditions set forth in Section 7.11 of the Participation Agreement, the Lessee
shall assume all of the obligations of the Owner Trustee hereunder, under the
Certificates and all other Operative Agreements, the Owner Participant and the
Owner Trustee shall (except for prior acts) be released and discharged from any
further obligations hereunder and under the Certificates and all other
Operative Agreements (except any obligations that have accrued prior to such
assumption).
If an Indenture Event of Default under the Indenture 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. The
Indenture provides that in certain events such declaration and its consequences
may be waived the Majority in Interest of Holders. Any such consent or waiver
shall be conclusive and binding upon the Holder of this Certificate and upon
all future Holders and owners of this Certificate and any Certificate that may
be issued in exchange or substitution therefor, whether or not any notation
thereof is made upon this Certificate or such other Certificates. Moreover, if,
and only if, an Event of Default shall occur, the Indenture Trustee may declare
the Lease to be in default, and may, to the exclusion of the Owner Trustee,
exercise one or more of the remedies of the Owner Trustee provided in the
Lease.
The Owner Trustee or the Owner Participant may cure a default by
the Lessee under the Lease arising from the failure of the Lessee to make any
Basic Rent payments under the Lease, but the Owner Trustee and the Owner
Participant, collectively, may not cure more than three consecutive such
failures or more than six such failures in total. The Owner Trustee or the
Owner Participant may cure any other default by the Lessee in the performance
of its obligations under the Lease.
(A) If an Event of Default shall have occurred and be continuing
for more than 180 days or the Certificates shall have been accelerated or (B)
an Event of Default shall have occurred and be continuing for not more than 180
days and the Certificates shall not have been accelerated, the Owner
Participant (or the Owner Trustee on behalf of the Owner Participant) may:
(1) direct the Owner Trustee to cause the prepayment of
all the Outstanding Certificates by notifying the Indenture
Trustee of such election and depositing the sum of amounts
contemplated by paragraph "first" under Section 5.03 of the
Indenture and the aggregate Prepayment Price of all such
Certificates with the Indenture Trustee for distribution to the
Holders; or
(2) purchase all of the Outstanding Certificates by
paying to the Indenture Trustee an amount equal to the aggregate
unpaid principal amount of all Outstanding Certificates, plus
accrued interest on such amount to the date of purchase and any
Make-Whole Premium applicable to each Outstanding Certificate, if
such purchase occurs prior to the Premium Termination Date for
such Outstanding Certificate (in the case of a purchase pursuant
to clause (ii) of the first sentence of Section 8.02(a) of the
Indenture) plus all other sums due any Holder or the Indenture
Trustee under the Indenture, the Participation Agreement or the
Lease.
The right of the Holder hereof to institute an action for any
remedy under the Indenture is subject to certain restrictions specified in the
Indenture, except that the right of the Holder of this Certificate to receive
payment of the principal of and interest and Make-Whole Premium, if any, on
this Certificate on or after the respective due dates, or to institute suit for
the enforcement of any such payment, shall not be impaired or affected without
the consent of such Holder.
The Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 and integral multiples thereof. So
long as any of the Certificates remain Outstanding, the Indenture Trustee will
maintain an office or agency where the Certificates may be presented for
payment and a facility or agency in New York, New York where the Certificates
may be presented for registration of transfer and for exchange as provided in
the Indenture. As provided in the Indenture and subject to certain limitations
therein, this Certificate is transferable, and upon surrender of this
Certificate for registration of transfer at the principal corporate trust
office of the Indenture Trustee, or at the office or agency maintained for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Indenture Trustee duly
executed by, the Holder or his attorney duly authorized in writing, one or more
new Certificates of the same Series and Maturity and interest rate and of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein, the Certificates are exchangeable for an equal aggregate principal
amount of Certificates of the same Series and Maturity and interest rate 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 Indenture Trustee, or at an office or agency maintained for such
purpose.
No service charge shall be levied for any such registration of
transfer or exchange, but the Indenture Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to the due presentment for registration of transfer of this
Certificate, the Owner Trustee, the Indenture Trustee, any agent of the Owner
Trustee or the Indenture Trustee, the Paying Agent, if any, the Registrar and
the Lessee may deem and treat the person in whose name this Certificate is
registered as the absolute owner hereof for all purposes whether or not this
Certificate is overdue, and neither the Owner Trustee, the Indenture Trustee
(nor any agent of the Owner Trustee or the Indenture Trustee), nor the Paying
Agent, if any, the Registrar nor the Lessee shall be affected by notice to the
contrary.
The indebtedness evidenced by this Certificate is, to the extent
and in the manner provided in the Indenture, subordinate and subject in right
of payment to the prior payment in full of the Secured Obligations (as defined
in the Indenture) in respect of [Series A Certificate](1), [Series A and Series
B Certificates](2) and this Certificate is issued subject to such provisions.
The Holder of this Certificate, by accepting the same, (a) agrees to and shall
be bound by such provisions, (b) authorizes and directs the Indenture Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in the Indenture and (c) appoints
the Indenture Trustee such Holder's attorney-in-fact for such purpose.*
--------
1 To be inserted in the case of a Series B Certificate.
2 To be inserted in the case of a Series C Certificate.
* To be inserted for each Certificate other than any Series A Certificate.
The Owner Trustee shall have the right, on the Delivery Date to
modify Schedule I attached hereto subject to the terms and conditions set forth
in Section 2.03(b) of the Original Participation Agreement. To give effect to
the foregoing, Schedule I attached hereto and Schedule I to the Indenture shall
be amended accordingly. The Indenture Trustee shall deliver such amendments to
the Subordination Agent on behalf of the Pass Through Trustee for each of the
Pass Through Trusts. To the extent that such amendment of the Indenture occurs
later than the Delivery Date, the Indenture, as amended, shall, if required, be
duly filed for recordation with the Aeronautics Authority.
As provided in the Indenture, the Indenture and the Certificates
shall be construed in accordance with and governed by the laws of the State of
New York.
This Certificate shall not be secured by or be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose unless
authenticated by the Indenture Trustee as evidenced by the manual signature of
one of its authorized officers on the certificate below.
IN WITNESS WHEREOF, the Owner Trustee has caused this Equipment
Trust Certificate (Federal Express Corporation Trust No. N677FE) to be duly
executed in its corporate name by its officer thereunto duly authorized.
Dated: ________, ____ STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Owner Trustee
By _____________________________________________
Name: Xxxx X. Xxxxx
Title: Vice President
[FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Equipment Trust Certificates (Federal Express
Corporation Trust No. N677FE) referred to in the within mentioned Indenture.
Dated: ________, ____ FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By ____________________________________
Name: Xxxx X. Xxxxxx
Title: Vice President
SCHEDULE I
TO
CERTIFICATE
Principal Amount
----------------
Series [_]
Certificates with a
Sinking Fund Maturity of
Redemption Date [_______________]
---------------
SCHEDULE I
SCHEDULE OF PRINCIPAL PAYMENTS
Principal Amount
----------------
Series A Series B Series C
Certificates with a Certificates with a Certificates with a
Sinking Fund Maturity of Maturity of Maturity of
Redemption Date January 15, 2021 January 15, 2019 January 15, 2016
------------------------------------------------------------------------------------------
January 15, 1999 $ 135,540 $ 1,829,784 $ 1,056,555
January 15, 2000 999,787 0 0
January 15, 2001 1,013,096 56,249 0
January 15, 2002 1,013,096 379,911 0
January 15, 2003 1,013,096 379,911 963,553
January 15, 2004 1,013,096 379,911 1,265,450
January 15, 2005 1,013,096 379,911 1,073,782
January 15, 2006 1,013,096 379,911 376,055
January 15, 2007 1,013,096 379,911 500,570
January 15, 2008 1,013,096 379,911 343,976
January 15, 2009 1,013,096 379,911 0
January 15, 2010 1,013,096 379,911 0
January 15, 2011 1,013,096 379,911 54,805
January 15, 2012 1,013,096 379,911 116,185
January 15, 2013 1,013,096 379,911 439,381
January 15, 2014 1,013,096 379,911 2,320,582
January 15, 2015 1,013,096 379,911 2,745,995
January 15, 2016 1,013,096 379,911 2,858,111
January 15, 2017 1,013,096 1,232,353 0
January 15, 2018 1,013,096 3,813,485 0
January 15, 2019 4,066,120 779,464 0
January 15, 2020 5,502,623 0 0
January 15, 2021 3,939,202 0 0
SCHEDULE II
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N677FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Pass Through Agreement,
the Series Supplements, the Intercreditor Agreement and the Liquidity
Facilities) referred to below, unless otherwise defined in an Operative
Agreement or the context thereof shall otherwise require. In the case of any
conflict between the provisions of this Schedule and the provisions of any
Operative Agreement, the provisions of such Operative Agreement shall control
the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to
agreements shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Section 13.01(c)(i) of the
Lease.
Adjustment Date. The date of any decrease in the principal
amount of the Series C Certificates pursuant to Section 2.19 of the Indenture.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation Administration,
any successor to the former United States Civil Aeronautics Board, or any
Person, governmental department, bureau, commission or agency located in the
United States succeeding to the functions of any of the foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee
and the Owner Participant.
Affiliate. With respect to any Person, any other Person directly
or indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant and SSB shall not be deemed to be an
Affiliate of any of the Owner Trustee, the Lessor or the Owner Participant.
After-Tax Basis. A basis such that any payment received or
deemed to have been received by a Person (the "Original Payment") shall be
supplemented by a further payment to such Person so that the sum of the two
payments shall be equal to the Original Payment, after taking into account (x)
all Taxes that would result from the receipt or accrual of such payments and
(y) any reduction in Taxes that would result from such increased Taxes. In the
case of amounts payable to the Lessor, the Owner Participant, or any corporate
Affiliate of the Owner Participant, it shall be presumed that such Person is at
all times subject to Federal income tax at the maximum marginal rate generally
applicable to corporations from time to time and actual state, local and
foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier"
(as defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Airbus Guaranty. The Guaranty to be dated the Delivery Date
executed by the Manufacturer and guaranteeing AVSA's Warranty Xxxx of Sale.
Aircraft. The Airframe to be sold by AVSA to the Owner Trustee as
provided in the Participation Agreement and to be leased under the Lease (or
any permitted substitute airframe thereunder) together with two Engines
(whether either is an initial Engine or a Replacement Engine) whether or not
any of such initial or Replacement Engines may from time to time be installed
on such Airframe or may be installed on any other airframe or on any other
aircraft, including any aircraft substituted pursuant to Section 11.03 of the
Lease.
Airframe. The Airbus A300F4-605R aircraft (excluding the Engines
or engines from time to time installed thereon) to be leased by the Lessor to
the Lessee pursuant to the Lease and the initial Lease Supplement and having
the United States FAA Registration Number initially and manufacturer's serial
number specified in the initial Lease Supplement, including (i) all Parts in
respect thereof and (ii) any Replacement Airframe which may be substituted
pursuant to Section 11.03 of the Lease.
Ancillary Agreement. Any written agreement of the Lessee to
which the Lessor is a party or to which the Lessor has consented in writing
entered into on or prior to the Delivery Date or any date thereafter in
connection with the transactions contemplated by the Operative Agreements, as
such agreement may be amended and supplemented from time to time with the
consent of the Lessor and delivered to the Owner Trustee, the Indenture
Trustee, the Pass Through Trustee, the Subordination Agent, each Liquidity
Provider and the Owner Participant.
Ancillary Agreement I. The Ancillary Agreement I (Federal
Express Corporation Trust No. N677FE), dated the Delivery Date, among the
Lessee, the Owner Trustee, not in its individual capacity, but solely as Owner
Trustee, the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft
with the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with a copy of the fair market value letter
to the Lessee) on the Delivery Date pursuant to Section 4.01(h) of the
Participation Agreement.
Average Life Date. For any Certificate, the date which follows
the prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
AVSA. AVSA S.A.R.L., a societe a responsabilite limitee,
organized and existing under the laws of France.
AVSA Consent and Agreement. The Consent and Agreement dated as
of August 1, 1998, executed by AVSA.
AVSA's FAA Xxxx of Sale. The xxxx of sale for the Airframe on AC
Form 8050- 2, or such other form as may be approved by the Aeronautics
Authority, executed by AVSA in favor of the Owner Trustee and to be dated the
Delivery Date.
AVSA's Warranty Xxxx of Sale. The full warranty xxxx of sale
covering the Aircraft (and specifically referring to each Engine) executed by
AVSA as owner of the Aircraft in favor of the Owner Trustee and to be dated the
Delivery Date.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as
amended, and any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f)
or (g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on
the Delivery Date and ending at the end of the day on August 27, 2023, or such
earlier date on which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant (or
the Initial Owner Participant, as the case may be) under the Trust Agreement.
Business Day. Any day on which commercial banks are not
authorized or required to close in New York, New York, Memphis, Tennessee and
the city in the United States in which the office or agency is maintained by
the Pass Through Trustee for the payment of the Pass Through Certificates, and
after the Lien of the Indenture is discharged, Boston, Massachusetts.
Certificate Closing Date. July 7, 1998.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N677FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Law. Any change in the Code or the Treasury
regulations promulgated thereunder or the publication of any revenue ruling,
revenue procedure or any informational release by the Internal Revenue Service
or the Department of Treasury on or before the Delivery Date, either of which
would change or would allow a change in the tax assumptions or structure upon
which the lease economics in the Commitment Letter were based; provided that
the Owner Participant or the Lessee has notified the other party of such change
in writing on or prior to the Delivery Date.
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Class A Liquidity Provider. Kreditanstalt fr Wiederaufbau, a
corporation organized under the public law of the Federal Republic of Germany
together with any Replacement Liquidity Provider (as defined in the
Intercreditor Agreement).
Class B Liquidity Provider. Kreditanstalt fr Wiederaufbau, a
corporation organized under the public law of the Federal Republic of Germany
together with any Replacement Liquidity Provider (as defined in the
Intercreditor Agreement).
Code. Except as otherwise provided, the Internal Revenue Code of
1986, as amended from time to time.
Collateral Account. The deposit account established and
maintained pursuant to Section 2.13 of the Indenture.
Collateral Agreement. The Collateral Account Control Agreement
(Federal Express Corporation Trust No. N677FE) dated as of June 15, 1998, among
State Street Bank and Trust Company, the Indenture Trustee and the Owner
Trustee.
Commitment. The amount of the Owner Participant's participation
in the Purchase Price required to be made available or paid on the Delivery
Date, as provided in Section 3.02 of the Participation Agreement and as set
forth in Schedule I of the Participation Agreement.
Commitment Letter. The Commitment Letter dated June 29, 1998 by
the Lessee to the Owner Participant.
Consent and Agreement. The Consent and Agreement dated as of
August 1, 1998 executed by the Manufacturer.
Consent and Guaranty. The Consent and Guaranty of the
Manufacturer attached to the Purchase Agreement.
Corporate Trust Administration. The Corporate Trust
Administration office of the Owner Trustee located at 000 Xxxxxx Xxxxxx,
Xxxxxxx Square, Hartford, Connecticut 06103, Attention: Corporation Trust
Administration, or such other office at which the Owner Trustee's corporate
trust business shall be administered which the Owner Trustee shall have
specified by notice in writing to the Lessee, the Owner Participant and the
Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department
office of the Indenture Trustee located at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx
Xxxx, Xxxx 00000, Attention: Corporate Trust Department, or such other office
at which the Indenture Trustee's corporate trust business shall be administered
which the Indenture Trustee shall have specified by notice in writing to the
Lessee, the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.02(a)(iv)
of the Lease.
Cut-Off Date. November 24, 1998.
Debt Portion. The amount specified as such on Schedule I to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or
the giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and
sold by AVSA to the Lessor and leased by the Lessor to the Lessee under the
Lease, which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given
by the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.05(c) of the Participation Agreement.
EBO Price. Has the meaning set forth in Section 4.02(a)(F) of
the Lease.
Eligible Deposit Account. Either (a) a segregated account with
an Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under
the laws of the United States or any one of the states thereof, or the District
of Columbia, or any domestic branch of a foreign bank, which in any such case
at all times (a) has either (x) a long-term unsecured debt rating of at least
Aa2 by Xxxxx'x or (y) a short-term certificate of deposit rating of P-1 by
Xxxxx'x, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A- 1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the two General Electric CF6-80C2-A5F engines
listed by its manufacturer's serial number in the initial Lease Supplement and
leased pursuant to the Lease, whether or not from time to time installed on the
Airframe or installed on any other airframe or on any other aircraft, and any
Replacement Engine which may from time to time be substituted for an Engine
pursuant to Section 7.02(a)(vii), 10.02(c), 10.03, 11.03, 11.04 or 12.02 of the
Lease, together with all Parts related thereto. Except as otherwise provided,
at such time as a Replacement Engine shall be so substituted and the Engine for
which the substitution is made shall be released from the Lien of the
Indenture, such replaced Engine shall cease to be an "Engine" under the Lease.
The term "Engines" means, as of any date of determination, both Engines then
leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of August 1, 1998,
executed by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment
(Federal Express Corporation Trust No. N677FE), dated as of August 1, 1998,
between the Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. An employee benefit plan subject to Title I of
ERISA, or an individual retirement account or plan subject to Section 4975 of
the Code.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of
the Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i) loss of such property or its use (A)
for a period in excess of 30 days due to theft or disappearance or such longer
period not to exceed 60 days from the end of such initial 30-day period if and
so long as the location of such property is known to the Lessee and the Lessee
is diligently pursuing recovery of such property, or to the end of the Term, if
less (unless such loss constitutes an Event of Loss under clause (ii) of this
definition) or (B) for a period in excess of 60 days due to the destruction,
damage beyond economic repair or rendition of such property permanently unfit
for normal use by Lessee for any reason whatsoever; (ii) any damage to such
property which results in an insurance settlement with respect to such property
on the basis of a total loss, or constructive or compromised total loss; (iii)
(1) condemnation, confiscation or seizure of, or requisition of title to such
property by the Government, any foreign government or purported government or
any agency or instrumentality thereof, or (2) condemnation, confiscation, or
seizure of, or requisition or taking of, use of such property (A) by a foreign
government or instrumentality or agency of any such foreign government, for a
period in excess of 180 days (or such shorter period ending on the earlier of
the expiration of the Term or on the date on which an insurance settlement with
respect to such property on the basis of a total loss or constructive or
compromised total loss shall occur) or (B) by the Government for a period
extending beyond the Term, provided that no Event of Loss shall be deemed to
have occurred, and the Term shall be extended automatically for a period of six
months (or the date of return of the Aircraft, if shorter, so long as the
Lessor receives at least six months notice of such date of return) beyond the
end of the Term in the event that the Aircraft, the Airframe or any Engine is
requisitioned by the Government pursuant to an activation as part of the CRAF
Program described in Section 7.02(a)(iv) of the Lease; and (iv) as a result of
any law, rule, regulation, order or other action by the Aeronautics Authority
or other governmental body having jurisdiction, the use of the Aircraft or
Airframe in the normal course of air transportation of cargo shall have been
prohibited by virtue of a condition affecting all Airbus A300-600 series
aircraft equipped with engines of the same make and model as the Engines for a
period of six (6) consecutive months, unless the Lessee, prior to the
expiration of such six (6) month period, shall be diligently carrying forward
all steps which are necessary or desirable to permit the normal use of the
Aircraft or Airframe or, in any event, if such use of the Aircraft or the
Airframe shall have been prohibited for a period of twelve (12) consecutive
months, unless the Lessee, prior to the expiration of such twelve (12) month
period shall have conformed at least one Airbus A300-600 series aircraft (but
not necessarily the Aircraft or the Airframe) to the requirements of any such
law, rule, regulation, order, or other action and shall have commenced regular
commercial use and shall be diligently carrying forward, on a
non-discriminatory basis, all steps necessary or desirable to permit the normal
use of the Aircraft by the Lessee. The date of such Event of Loss shall be (s)
the 31st day or the 91st day, as the case may be, following loss of such
property or its use due to theft or disappearance (or the end of the Term, if
earlier); (t) the 61st day following the date of any destruction, damage beyond
economic repair or rendition of such property permanently unfit for normal use;
(u) the date of any insurance settlement on the basis of a total loss or
constructive or compromised total loss; (v) the date of any condemnation,
confiscation, seizure or requisition of title of such property; (w) the 181st
day following condemnation, confiscation, seizure or requisition for use of
such property by a foreign government referred to in clause (iii)(2)(A) above
(or the end of the Term or the date of any insurance settlement described
therein, if earlier than such 181st day); (x) the last day of the Term in the
case of requisition for use of such property by the Government; (y) the last
day of the 6 month or 12 month period, referred to in clause (iv) above. An
Event of Loss with respect to the Aircraft shall be deemed to have occurred if
any Event of Loss occurs with respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity or other payments
(and interest thereon to the extent provided in the Operative Agreements) paid
or payable by the Lessee in respect of the Owner Participant, the Owner Trustee
in its individual capacity or any of their respective successors, permitted
assigns, directors, officers, employees, servants and agents or Affiliates,
pursuant to the Participation Agreement or any indemnity hereafter granted to
the Owner Participant or the Owner Trustee in its individual capacity pursuant
to the Lease or the Participation Agreement, (ii) proceeds of public liability
insurance (or government indemnities in lieu thereof) in respect of the
Aircraft payable as a result of insurance claims paid for the benefit of, or
losses suffered by, the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by the Owner Participant, or their
respective successors, permitted assigns or Affiliates, (iii) proceeds of
insurance maintained with respect to the Aircraft by the Owner Participant
(whether directly or through the Owner Trustee) maintained in accordance with
the provisions of but not required under Article 13 of the Lease, (iv) payments
of Supplemental Rent by the Lessee in respect of any amounts payable under the
Tax Indemnity Agreement, (v) any amounts payable by the Lessee to the Owner
Participant or the Owner Trustee in its individual capacity, after the release
thereof from the Lien of the Indenture, (vi) the payment of incremental
out-of-pocket expenses of the Owner Trustee, the Owner Participant or their
respective authorized representatives payable by the Lessee under Section
6.03(b) of the Participation Agreement or Section 14.01 of the Lease following
any reregistration of the Aircraft and (vii) proceeds of, and any right to
demand, collect or otherwise receive and enforce the payment of any amount
described in clauses (i) through (vii) above.
Expense; Expenses. Have the meaning specified in Section 9.01(a)
of the Participation Agreement.
FAA. The United States Federal Aviation Administration and any
successor agency or agencies thereto.
Fair Market Renewal Term. A term with respect to which the
Lessee has exercised its option to renew the Lease pursuant to the second
paragraph of Section 4.01(a) thereof and with respect to which the conditions
set forth in such Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and
equal in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, it shall be assumed that the Aircraft is in the
condition required under the Lease in the case of return of the Aircraft
pursuant to Article 12 of the Lease. Fair Market Rental shall be determined in
accordance with the provisions of Section 4.03 of the Lease.
Fair Market Value. An amount determined on the basis of, and
equal in amount to, the value which would be obtained in an arm's-length
transaction between an informed and willing purchaser under no compulsion to
buy and an informed and willing seller unaffiliated with such purchaser and
under no compulsion to sell, assuming that the Aircraft (or other property) is
unencumbered by the Lease. Unless otherwise provided in the applicable
provisions of any Operative Agreement, in such determination it shall be
assumed that the Aircraft is in the condition required under the Lease in the
case of return of the Aircraft pursuant to Article 12 of the Lease; provided
that in connection with any determination pursuant to or for the purposes of
Article 17 of the Lease, the Aircraft shall be appraised on an "as is, where
is" basis. Fair Market Value shall be determined in accordance with the
provisions of Section 4.03 of the Lease.
Federal Aviation Administration. The United States Federal
Aviation Administration and any successor agency or agencies thereto.
FedEx. Federal Express Corporation.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the
Fixed Renewal Term equal to the amount set forth in Ancillary Agreement I.
Fixed Renewal Term. The term with respect to which the Lessee
has exercised its option to renew the Lease pursuant to the first paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
such Section 4.01(a) are met.
French Pledge Agreement. The French Pledge Agreement (Federal
Express Corporation Trust No. N677FE) dated as of August 1, 1998, between the
Owner Trustee and the Indenture Trustee.
FSB. First Security Bank, National Association, a national
banking association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and credit
of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991
between the Engine Manufacturer and the Lessee related to the purchase by the
Lessee of the Engines as originally executed or as modified, amended or
supplemented in accordance with the terms thereof, but only insofar as the
General Terms Agreement relates to the Engines, to the extent assigned to the
Owner Trustee pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Owner Participant, the Indenture Trustee, in its
individual capacity and as trustee, the Subordination Agent, in its individual
capacity and in its capacity as Subordination Agent, each Liquidity Provider,
the Owner Participant Guarantor, if any, and any successor (including any
trustee which may succeed to the Lessor's interest under the Lease), Affiliate,
assign, officer, director, employee, agent and servant of any of the foregoing,
the Lessor's Estate and the Trust Indenture Estate. Neither the Pass Through
Trustee nor any holder of a Pass Through Certificate shall be deemed to be an
Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N677FE), dated as of June 15, 1998, as amended
and restated as of August 1, 1998, between the Lessor and the Indenture
Trustee, as supplemented by the Indenture and Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N677FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse
of time or the giving of notice, or both, would constitute an Indenture Event
of Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in
Section 7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect
to the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of any
of the terms of the Operative Agreements or (iii) Taxes imposed against the
Indenture Trustee in its individual capacity against which the Lessee has not
indemnified (and is not obligated to indemnify) the Indenture Trustee in such
capacity.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent in
fact, does not have any direct financial interests, or any material indirect
financial interest, in the Lessee or any Affiliate of the Lessee, and is not
connected with the Lessee or any Affiliate of the Lessee, as an officer,
employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall not
have received written notice of such an appointment at least 10 days prior to
the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Initial Owner Participant. Federal Express Corporation, a
Delaware corporation.
Intercreditor Agreement. The Intercreditor Agreement dated as of
June 15, 1998, among the Pass Through Trustee, the Class A Liquidity Provider,
the Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of
the Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by AVSA to the
Lessor.
LC Bank. Kreditanstalt fr Wiederaufbau, a corporation organized
under the public law of the Federal Republic of Germany.
Last Cut-Off Date. The later of (i) the Cut-Off Date and (ii)
the "Cut-Off Date" (as defined in the relevant Related Indenture) for the last
Related Aircraft to be delivered.
Lease. The Lease Agreement (Federal Express Corporation Trust
No. N677FE) dated as of June 15, 1998, as amended and restated as of August 1,
1998, entered into by the Lessor and the Lessee concurrently with the execution
and delivery of the Indenture, including, without limitation, supplementation
by one or more Lease Supplements entered into pursuant to the applicable
provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N677FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and
ending at the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b)
of the Participation Agreement.
Lessee Shortfall. Has the meaning set forth in Section 3.02(a)
of the Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut,
National Association, a national banking association, not in its individual
capacity but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the
Owner Trustee in and to the Collateral Account, the Liquid Collateral, the
Aircraft, the Lease, any Lease Supplement, the Participation Agreement, AVSA's
FAA Xxxx of Sale, AVSA's Warranty Xxxx of Sale, the Airbus Guaranty, the
Purchase Agreement, the Purchase Agreement Assignment, the Consent and
Agreement, the AVSA Consent and Agreement, the Consent and Guaranty (to the
extent assigned by the Purchase Agreement Assignment), any Ancillary Agreement,
the GTA, the Engine Warranty Assignment, the Engine Consent, any warranty with
respect to the Airframe and the Engines, all amounts of Basic Rent and
Supplemental Rent, including without limitation, insurance proceeds (other than
insurance proceeds payable to or for the benefit of the Owner Trustee in its
individual capacity, the Owner Participant or the Indenture Trustee) and
requisition, indemnity or other payments of any kind for or with respect to the
Aircraft (except amounts owing to the Owner Participant, to the Indenture
Trustee, to the Owner Trustee in its individual capacity, or to any of their
respective directors, officers, employees and agents pursuant to Articles 8 and
9 of the Participation Agreement), and all other property of the Owner Trustee
purportedly subjected to the Lien of the Indenture by the Granting Clause
thereof; provided that in no event shall "Lessor's Estate" include any Excepted
Payment.
Lessor's Liens. Liens against, on or with respect to the
Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof, title thereto or any interest therein arising as a result of (i)
claims against the Lessor, in its individual capacity or as Owner Trustee, or
the Owner Participant, in each case not related to the transactions
contemplated by the Operative Agreements, (ii) acts or omissions of the Lessor
in its individual capacity or as Owner Trustee, and, in the case of the Lessor
in its individual capacity, arising from its gross negligence or willful
misconduct or expressly prohibited under the Operative Agreements and any act
or omission of the Owner Participant which is in violation of any of the terms
of the Operative Agreements, (iii) Taxes or Expenses imposed against the
Lessor, in its individual capacity or as Owner Trustee, the Owner Participant,
Lessor's Estate or the trust created by the Trust Agreement which are not
required to be indemnified against by the Lessee pursuant to the Participation
Agreement by reason of Section 8.01(b) or 9.01(b) thereof or which are not
required to be indemnified against by the Lessee pursuant to the Tax Indemnity
Agreement, or (iv) claims against the Lessor or the Owner Participant arising
from the voluntary transfer by the Lessor or the Owner Participant of its
interests in the Aircraft other than a transfer of the Aircraft pursuant to
Section 4.02(a) or Article 7, 8, 9, 10 or 11 of the Lease and other than a
transfer pursuant to the exercise of the remedies set forth in Article 17 of
the Lease.
Letter of Credit. The Irrevocable Standby Letter of Credit,
dated the Certificate Closing Date, in the form of ExhibitG to the Original
Participation Agreement and with a Maximum Stated Amount equal to the amount
specified under "Letter of Credit Maximum Stated Amount" on Schedule IV to the
Original Participation Agreement, from the LC Bank to and for the benefit of
the Subordination Agent.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from
time to time in the Collateral Account and all the products, investments,
earnings and proceeds of the foregoing, including, but not limited to, all
proceeds of the investment or conversion thereof, voluntary or involuntary,
into cash, Specified Investments or other property, all rights to payment of
any and every kind, and other forms of obligations, and instruments and other
property which at any time constitute all or part or are included in the
proceeds of any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.1 of
the Intercreditor Agreement.
Liquidity Provider. Kreditanstalt fr Wiederaufbau, a corporation
organized under the public law of the Federal Republic of Germany together with
any Replacement Liquidity Provider (as defined in the Intercreditor Agreement).
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of
the Lease.
Majority in Interest of Certificate Holders. As of a particular
date of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant or any interests of the Owner Participant unless all
Certificates then outstanding shall be held by the Owner Participant, (ii)the
Lessee or (iii)any Affiliate of any thereof.
Make-Whole Premium. With respect to any Certificate, the amount
(as determined by an Independent Investment Banker reasonably acceptable to the
Indenture Trustee and the Owner Participant) by which (i) the present value of
the remaining scheduled payments of principal and interest to the Maturity of
such Certificate computed by discounting such payments on a semiannual basis on
each Payment Date (assuming a 360-day year of twelve 30-day months) using a
discount rate equal to the Treasury Yield exceeds (ii) the outstanding
principal amount of such Certificate plus accrued interest.
Mandatory Document Terms. The terms set forth on Schedule V to
the Original Participation Agreement.
Mandatory Economic Terms. The terms set forth on Schedule VI to
the Original Participation Agreement.
Manufacturer. Airbus Industrie G.I.E., a groupement d'interet
economique formed under the laws of France.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Maximum Stated Amount. The amount specified under "Letter of
Credit Maximum Stated Amount" on Schedule IV to the Original Participation
Agreement.
Moody's. Xxxxx'x Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate equal to the Debt Rate per annum compounded semi-annually.
Non-U.S. Person. Any Person other than a U.S. Person.
Obsolete Parts. Parts which the Lessee in good faith determines
to be obsolete or no longer suitable or appropriate for use on the Airframe or
any Engine.
Officer's Certificate. When delivered pursuant to the Indenture,
a certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each such
certificate shall include the statements provided for in Section 15.07 of the
Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, AVSA's FAA Xxxx of Sale, AVSA's Warranty Xxxx of Sale, the Airbus
Guaranty, the Purchase Agreement, the Purchase Agreement Assignment, the GTA,
the Engine Warranty Assignment, the French Pledge Agreement, the Lease, the
Lease Supplement, the Owner Participant Guaranty, the Owner Trustee Guaranty,
if any, any Ancillary Agreement entered into by or with the written consent of
the Indenture Trustee, which by its terms is an Operative Agreement, the
Certificates outstanding at the time of reference, the Indenture, the Indenture
and Security Agreement Supplement, the Consent and Agreement, the AVSA Consent
and Agreement, the Consent and Guaranty (to the extent assigned by the Purchase
Agreement Assignment), the Engine Consent, the Tax Indemnity Agreement, each
Liquidity Facility, the Intercreditor Agreement, the Collateral Agreement, the
Letter of Credit and the Reimbursement Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the Lessee
may be (i) an attorney employed by the Lessee who is generally empowered to
deliver such written opinions, (ii) Xxxxx Xxxx & Xxxxxxxx or a successor firm
or (iii) other counsel designated by the Lessee and reasonably satisfactory to
the Indenture Trustee and (b) for the Owner Trustee or the Indenture Trustee,
an attorney selected by such Person and, in the case of the Owner Trustee,
reasonably satisfactory to the Indenture Trustee.
Original Agreements. The documents and instruments delivered on
the Certificate Closing Date in connection with the transactions contemplated
by the Original Participation Agreement.
Original Indenture. The Trust Indenture and Security Agreement
(Federal Express Corporation Trust No. N677FE), dated as of June 15, 1998,
between the Owner Trustee and the Indenture Trustee originally executed and
delivered on the Certificate Closing Date.
Original Lease. The Lease Agreement (Federal Express Corporation
Trust No. N677FE), dated as of June 15, 1998, between the Owner Trustee as
lessor, and the Lessee originally executed and delivered on the Certificate
Closing Date.
Original Participation Agreement. The Participation Agreement
(Federal Express Corporation Trust No. N677FE), dated as of June 15, 1998,
among the Lessee, the Initial Owner Participant, the Indenture Trustee, the
Owner Trustee, the Pass Through Trustee and the Subordination Agent originally
executed and delivered on the Certificate Closing Date.
Original Trust Agreement. The Trust Agreement (Federal Express
Corporation Trust No. N677FE), dated as of June 15, 1998, between the Initial
Owner Participant and the Owner Trustee originally executed and delivered on
the Certificate Closing Date.
Outstanding. When used with respect to Certificates, as of the
date of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture
Trustee or delivered to the Indenture Trustee for cancellation
pursuant to Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary
amount has been theretofore deposited with the Indenture Trustee
in trust for the Holders of such Certificates pursuant to Section
14.01 of the Indenture; provided, that if such Certificates are
to be prepaid, notice of such prepayment has been duly given
pursuant to the Indenture or provision therefor satisfactory to
the Indenture Trustee has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article
II of the Indenture.
Outstanding C Account. The collateral account established and
maintained under a Related Indenture relating to an undelivered aircraft.
Owner Participant. The Person to whom on the Delivery Date the
Initial Owner Participant shall transfer its Beneficial Interest pursuant to
Section 3.02 of the Original Participation Agreement and any successors
thereto, and any Person to which the Owner Participant transfers, in accordance
with the Trust Agreement, its right, title and interest in and to the Operative
Agreements and the Lessor's Estate.
Owner Participant Guarantor. Textron Financial Corporation, a
Delaware corporation, and any other provider of an Owner Participant Guaranty.
Owner Participant Guaranty. The Owner Participant Guaranty
(Federal Express Corporation Trust No. N677FE) dated the Delivery Date, by the
Owner Participant Guarantor in favor of the Lessee, the Owner Trustee, the
Indenture Trustee and the Pass Through Trustee, and any guaranty delivered in
compliance with Article 5 of the Trust Agreement.
Owner Trust. Federal Express Corporation Trust No. N677FE.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider, if any, of an Owner
Trustee Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance
with Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax book yield and aggregate after-tax cash during the Basic Term
utilizing the multiple investment sinking fund method of analysis, computed on
the basis of the same methodology and assumptions as were utilized by the Owner
Participant in determining Basic Rent, Stipulated Loss Value and Termination
Value percentages and the EBO Price, as such assumptions may be adjusted for
events which have been the basis of adjustments to Rent pursuant to Section
3.04 of the Lease.
Participation Agreement. The Participation Agreement (Federal
Express Corporation Trust No. N677FE), dated as of June 15, 1998, as amended
and restated as of August 1, 1998, among the Lessee, the Owner Trustee not in
its individual capacity except as otherwise expressly provided therein, but
solely as owner trustee, the Owner Participant, the Indenture Trustee not in
its individual capacity except as otherwise expressly provided therein, but
solely as indenture trustee, the Pass Through Trustee not in its individual
capacity except as otherwise expressly provided therein, but solely as pass
through trustee, and the Subordination Agent not in its individual capacity
except as otherwise expressly provided therein, but solely as subordination
agent.
Parts. All appliances, parts, components, instruments,
appurtenances, accessories, furnishings and other equipment of whatever nature
(other than complete Engines or engines) which may from time to time be
incorporated or installed in or attached to the Airframe or any Engine or title
to which remains vested in the Lessor pursuant to Article 8 of the Lease.
Pass Through Agreement. The Pass Through Trust Agreement dated
as of May 1, 1997, between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1998-1-A, the Pass Through Certificates, 1998-1-B or the Pass Through
Certificates, 1998-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. July 7, 1998.
Pass Through Trust. The Federal Express Corporation 1998-1 Pass
Through Trust Class A, Federal Express Corporation 1998-1 Pass Through Trust
Class B and Federal Express Corporation 1998-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association,
a national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due (whether
at Maturity, by acceleration, by optional or mandatory prepayment or otherwise)
to any Holder, the Indenture Trustee or the Pass Through Trustee, a rate per
annum during the period from and including the due date to but excluding the
date on which such amount is paid in full equal to (i) in the case of any such
amount payable to the Holder of any Certificate, 2% plus the interest rate
applicable to such Certificate and (ii) in the case of any other such amount,
2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on January
15, 1999.
Payment Default. Any event specified in Section 16.01(a) or
16.01(b) of the Lease which with the giving of notice or lapse of time or both
would constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local, foreign
or any agency, instrumentality, division or body thereof).
Pool Balance. Has the meaning specified in Article I to the
Series Supplement.
Pool Factors. Has the meaning specified in Article I to the
Series Supplement.
Preliminary Notice. Has the meaning specified in Section 4.01(a)
of the Lease.
Premium Termination Date. With respect to the Series A
Certificates, the scheduled maturity date of the Series A Certificates, with
respect to the Series B Certificates, the scheduled maturity date of the Series
B Certificates and with respect to the Series C Certificates, the scheduled
maturity date of the Series C Certificates.
Prepayment Date. Has the meaning specified in Section 6.02(b) of
the Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b)
of the Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. Has the meaning specified in Section
10.01(a) of the Lease.
Purchase Agreement. The Airbus A300-600R Freighter Purchase
Agreement, dated as of July 3, 1991 between AVSA and the Lessee, including all
exhibits, appendices and letter agreements attached thereto as originally
executed or as modified, amended or supplemented in accordance with the terms
thereof, but only to the extent that the foregoing relates to the Aircraft and
to the extent assigned pursuant to the Purchase Agreement Assignment.
Purchase Agreement Assignment. The Purchase Agreement Assignment
(Federal Express Corporation Trust No. N677FE), dated as of August 1, 1998,
between the Lessor and the Lessee.
Purchase Price. Has the meaning specified in Ancillary Agreement
I.
Rating Agencies. Collectively, at any time, each nationally
recognized rating agency which shall have been requested to rate the Pass
Through Certificates and which shall then be rating the Pass Through
Certificates. The initial Rating Agencies will be Moody's and S&P.
Rating Agency Confirmation. With respect to any Operative
Agreement that is to be modified in any material respect on the Delivery Date a
written confirmation from each of the Rating Agencies that the use of such
Operative Agreement with such modifications would not result in (i) a reduction
of the rating for any Class of Pass Through Certificates below the then current
rating for such Class of Pass Through Certificates or (ii) a withdrawal or
suspension of the rating of any Class of Pass Through Certificates.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of
the Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant
to Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the
Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the
Federal Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Reimbursement Agreement. The Standby Letter of Credit
Application and Agreement, dated the Pass Through Closing Date, between the
Lessee and the LC Bank.
Related Aircraft. Each of the aircraft relating to a Related
Indenture.
Related Indentures. Collectively, the Trust Indenture and
Security Agreement for each of Federal Express Corporation Trust Nos. N585FE,
N678FE, N679FE, N680FE, N681FE, N682FE, N620FE, N621FE and N623FE, each dated
as of June 15, 1998, between State Street Bank and Trust Company of
Connecticut, National Association, as owner trustee and First Security Bank,
National Association, as indenture trustee, the Trust Indenture and Security
Agreement for Federal Express Corporation Trust No. N590FE, dated as of May 1,
1998, as amended and restated as of June 15, 1998, between State Street Bank
and Trust Company of Connecticut, National Association, as owner trustee and
First Security Bank, National Association, as indenture trustee, the Trust
Indenture and Security Agreement for Federal Express Corporation Trust No.
N675FE, dated as of June 1, 1998, as amended and restated as of June 15, 1998,
between State Street Bank and Trust Company of Connecticut, National
Association, as owner trustee and First Security Bank, National Association, as
indenture trustee, and the Trust Indenture and Security Agreement for Federal
Express Corporation Trust No. N676FE, dated as of June 15, 1998, as amended and
restated as of July 15, 1998, between State Street Bank and Trust Company of
Connecticut, National Association, as owner trustee and First Security Bank,
National Association, as indenture trustee.
Related Participation Agreements. Collectively, with respect to
each Related Indenture, the "Participation Agreement" as defined therein.
Remaining Weighted Average Life. On a given date with respect to
any Certificate the number of days equal to the quotient obtained by dividing
(i) the sum of each of the products obtained by multiplying (a) the amount of
each then remaining scheduled payment of principal of such Certificate by (b)
the number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in
accordance with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. One or more terms with respect to which the Lessee
has exercised its option to renew the Lease pursuant to Section 4.01(a)
thereof.
Rent. All payments due from the Lessee under the Lease as Basic
Rent, Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. Each January 15 and July 15 commencing on
January 15, 1999, and the last day of the Basic Term.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03
of the Lease.
Replacement Engine. A General Electric CF6-80C2-A5F engine (or
an engine of the same or another manufacturer) of the same or of equal or
greater value, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine; provided, however, that if
such replacement engine is not a General Electric CF6-80C2-A5F engine, such
replacement engine must then be commonly used in the commercial aviation
industry on Airbus A300-600 airframes.
Responsible Officer. With respect to the Owner Trustee (except
for purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Administration, as the
case may be, designated by such Person to perform obligations under the
Operative Agreements, and with respect to any other party, any corporate
officer or (except in the case of the Owner Participant) other employee of a
party who, in the normal performance of his or her operational
responsibilities, with respect to the subject matter of any covenant, agreement
or obligation of such party pursuant to any Operative Agreement, would have
responsibility for and knowledge of such matter and the requirements of any
Operative Agreement with respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the
Delivery Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States
and any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series C Prepayment Date. July 15, 1999 or any other date
designated by the Lessee, but in no event later than the fifteenth day after
the Last Cut-Off Date.
Series Supplement or Series Supplements. The Series Supplement
1998-1- A, the Series Supplement 1998-1-B or the Series Supplement 1998-1-C,
each dated the Certificate Closing Date, between the Lessee and the Pass
Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in
Section 6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in
Section 6.06 of the Indenture.
Special Aviation Counsel. Xxxxxxxxx, Xxxxxx & Xxxxxxxx.
Special Distribution Date. Has the meaning specified in Article
I to the Series Supplement.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Moody's, respectively
or, if such ratings are unavailable, rated by any nationally recognized rating
organization in the United States equal to the highest rating assigned by such
rating organization; (c) investments in negotiable certificates of deposit,
time deposits, banker's acceptances, commercial paper or other direct
obligations of, or obligations guaranteed by, commercial banks organized under
the laws of the United States or of any political subdivision thereof (or any
U.S. branch of a foreign bank) with issuer ratings of at least B/C by Thomson
Bankwatch, having maturities no later than 90 days following the date of such
investment; (d) overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers; or (e) overnight
repurchase agreements with respect to the securities described in clause (a)
above entered into with an office of a bank or trust company which is located
in the United States of America or any bank or trust company which is organized
under the laws of the United States or any state thereof and has capital,
surplus and undivided profits aggregating at least $500 million.
SSB. State Street Bank and Trust Company of Connecticut,
National Association, a national banking association or any successor Owner
Trustee in its individual capacity.
Stipulated Loss Value. As of any Stipulated Loss Value
Determination Date during the Basic Term, the amount determined by multiplying
the Purchase Price by the percentage set forth in Schedule III of the Lease
under the heading "Stipulated Loss Value Factor" opposite such date (as such
Schedule III may be adjusted from time to time as provided in Section 3.04 of
the Lease), and during any Renewal Term, the amount determined pursuant to
Section 4.01(b) of the Lease. Notwithstanding any other provisions of the
Lease or the Participation Agreement or the Indenture, each Stipulated Loss
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of Stipulated Loss Value as does not constitute an Excepted
Payment, at least sufficient to pay in full as of such date of payment the
aggregate unpaid principal amount of and accrued interest on the Certificates
outstanding on such date of payment. Subject to the immediately preceding
sentence, it is understood and agreed that the amounts set forth on Schedule
III of the Lease, for dates other than Rent Payment Dates on which arrears
Basic Rent is due, fully reflect appropriate Basic Rent accruals and credits of
unearned Basic Rent and, accordingly, no further accrual or credit shall be
required whenever Stipulated Loss Value is to be calculated with reference to
any such date.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease.
Subordination Agent. First Security Bank, National Association,
a national banking association, not in its individual capacity but solely as
Subordination Agent.
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or any Ancillary
Agreement or any other Operative Agreement to SSB, the Lessor, the Owner
Participant, the Indenture Trustee, the Subordination Agent, any Liquidity
Provider or others, including, without limitation, payments of Stipulated Loss
Value, EBO Price and amounts calculated by reference to Termination Value and
all amounts required to be paid by Lessee under the agreements, covenants and
indemnities contained in the Lease or in the Participation Agreement or the Tax
Indemnity Agreement or any other Operative Agreement, but excluding Basic Rent
and (b) all amounts that the Owner Trustee is obligated to pay in accordance
with clause (b) of the last paragraph of Section 2.04 of the Indenture.
Tax. Shall have the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N677FE), dated as of August 1, 1998, between the
Lessee and the Owner Participant.
Term. The Basic Term of the lease for the Aircraft under the
Lease and, if renewed pursuant to Section 4.01 of the Lease, each Renewal Term
for the Aircraft for which the Lease is renewed, or such earlier date on which
the Lease is terminated pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that
is on or after December 31, 2005 in the case of Article 10 of the Lease, and in
the case of (i) Section 4.02(a)(A) of the Lease, the Rent Payment Date falling
on January 15, 2016 or July 15, 2019, as the case may be, (ii) Section
4.02(a)(D) or (E) of the Lease, a Rent Payment Date that is on or after the
eighth anniversary of the Delivery Date and (iii) Section 4.02(a)(F) of the
Lease, January 15, 2018.
Termination Value. As of any Termination Date, the amount
determined by multiplying the Purchase Price by the percentage set forth in
Schedule IV of the Lease under the heading "Termination Value Factor" opposite
such Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with so much of the arrears portion of Basic Rent due and owing through the
date of payment of any amount calculated by reference to Termination Value as
does not constitute an Excepted Payment, at least sufficient to pay in full as
of such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates on which arrears Basic Rent is due, fully reflect appropriate
Basic Rent accruals and credits of unearned Basic Rent and, accordingly, no
further accrual or credit shall be required whenever Termination Value is to be
calculated with reference to any such date.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as
amended and in effect on the date of the Lease or as subsequently amended, or
any successor or substituted legislation at the time in effect and applicable,
and the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the Average
Life Date on such Certificate and trading in the public securities markets
either as determined by interpolation between the most recent weekly average
yield to maturity for two series of United States Treasury securities, trading
in public securities markets, (i) one maturing as close as possible to, but
earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of such
Certificate, in each case as published in the most recent H.15(519) or, if a
weekly average yield to maturity for United States Treasury securities maturing
on the Average Life Date of such Certificate is reported on the most recent
H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium will
be the third Business Day prior to the applicable prepayment date and the "most
recent H.15(519)" means the H.15(519) published prior to the close of business
on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express
Corporation Trust No. N677FE), dated as of June 15, 1998, as amended and
restated as of August 1, 1998, between the Owner Participant and the Owner
Trustee in its individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as
amended.
Trust Indenture Estate. All estate, right, title and interest of
the Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of the
Owner Trustee or the Owner Participant expressly reserved to the Owner Trustee
or the Owner Participant pursuant to the Indenture, and the Letter of Credit
and any rights thereunder.
UCC. Uniform Commercial Code.
Underwriters. Xxxxxx Xxxxxxx & Co. Incorporated, Chase
Securities Inc., Citicorp Securities, Inc., Credit Suisse First Boston
Corporation and X.X. Xxxxxx Securities Inc.
Underwriting Agreement. The Underwriting Agreement dated June
30, 1998, among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which
there is in force a certificate issued pursuant to Section 41102(a) or Section
41103 of the Transportation Code, and as to which there is in force an air
carrier operating certificate issued pursuant to Chapter 447 of the
Transportation Code and Part 121 of the regulations under such Transportation
Code, for aircraft capable of carrying ten (10) or more individuals or 6,000
pounds or more of cargo, or which may operate as an air carrier by
certification or otherwise under any successor or substitute provision thereof
or in absence thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the
Code.
