EXHIBIT 99(c)
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TRUST INDENTURE AND SECURITY AGREEMENT
[NW ____ _]
Dated as of [_______________]
Between
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
not in its individual capacity,
except as expressly stated herein,
but solely as Owner Trustee,
Owner Trustee
and
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity,
except as expressly stated herein,
but solely as Indenture Trustee,
Indenture Trustee
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SECURED CERTIFICATES COVERING
ONE [AIRBUS A319-113/114] [BOEING 757-351] [BOEING 747-451] AIRCRAFT
BEARING U.S. REGISTRATION XXXX N[______]
LEASED BY NORTHWEST AIRLINES, INC.
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.................................................................................6
SECTION 1.02. Reference to Other Documents...............................................................12
ARTICLE II
THE SECURED CERTIFICATES
SECTION 2.01. Form of Secured Certificates...............................................................12
SECTION 2.02. Issuance and Terms of Secured Certificates.................................................18
SECTION 2.03. Payments from Trust Indenture Estate Only..................................................20
SECTION 2.04. Method of Payment..........................................................................22
SECTION 2.05. Application of Payments....................................................................24
SECTION 2.06. Termination of Interest in Trust Indenture Estate..........................................24
SECTION 2.07. Registration, Transfer and Exchange of Secured Certificates................................25
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Secured Certificates..................................26
SECTION 2.09. Payment of Expenses on Transfer; Cancellation..............................................26
SECTION 2.10. Mandatory Redemptions of Secured Certificates..............................................27
SECTION 2.11. Voluntary Redemptions of Secured Certificates..............................................27
SECTION 2.12. Redemptions; Notice of Redemption..........................................................27
SECTION 2.13. Assumption of Secured Certificates by Lessee...............................................28
SECTION 2.14. Option to Purchase Secured Certificates....................................................29
SECTION 2.15. Subordination..............................................................................30
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
SECTION 3.01. Basic Rent Distribution....................................................................31
SECTION 3.02. Event of Loss; Replacement; Voluntary Termination; Refinancing.............................32
SECTION 3.03. Payments After Event of Default............................................................33
SECTION 3.04. Certain Payments...........................................................................36
SECTION 3.05. Other Payments.............................................................................36
SECTION 3.06. Payments to the Owner Trustee..............................................................37
SECTION 3.07. Application of Payments Under Guarantee....................................................37
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ARTICLE IV
COVENANTS OF THE OWNER TRUSTEE; EVENTS OF
DEFAULT; REMEDIES OF INDENTURE TRUSTEE
SECTION 4.01. Covenants of the Owner Trustee.............................................................37
SECTION 4.02. Event of Default...........................................................................38
SECTION 4.03. Certain Rights.............................................................................40
SECTION 4.04. Remedies...................................................................................41
SECTION 4.05. Return of Aircraft, Etc....................................................................43
SECTION 4.06. Remedies Cumulative........................................................................45
SECTION 4.07. Discontinuance of Proceedings..............................................................45
SECTION 4.08. Waiver of Past Defaults....................................................................45
SECTION 4.09. Appointment of Receiver....................................................................45
SECTION 4.10. Indenture Trustee Authorized to Execute Bills of Sale, Etc.................................46
SECTION 4.11. Rights of Certificate Holders to Receive Payment...........................................46
ARTICLE V
DUTIES OF THE INDENTURE TRUSTEE
SECTION 5.01. Notice of Event of Default.................................................................46
SECTION 5.02. Action upon Instructions; Certain Rights and Limitations...................................47
SECTION 5.03. Indemnification............................................................................49
SECTION 5.04. No Duties Except as Specified in Trust Indenture or Instructions...........................50
SECTION 5.05. No Action Except Under Lease, Trust Indenture or Instructions..............................50
SECTION 5.06. Replacement Airframes and Replacement Engines..............................................50
SECTION 5.07. Indenture Supplements for Replacements.....................................................52
SECTION 5.08. Effect of Replacement......................................................................53
SECTION 5.09. Investment of Amounts Held by Indenture Trustee............................................53
ARTICLE VI
THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE
SECTION 6.01. Acceptance of Trusts and Duties............................................................54
SECTION 6.02. Absence of Duties..........................................................................54
SECTION 6.03. No Representations or Warranties as to Aircraft or Documents...............................55
SECTION 6.04. No Segregation of Monies; No Interest......................................................55
SECTION 6.05. Reliance; Agreements; Advice of Counsel....................................................56
SECTION 6.06. Capacity in Which Acting...................................................................56
SECTION 6.07. Compensation...............................................................................56
SECTION 6.08. Instructions from Certificate Holders......................................................57
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ARTICLE VII
INDEMNIFICATION OF THE INDENTURE TRUSTEE BY THE OWNER TRUSTEE
SECTION 7.01. Scope of Indemnification...................................................................57
ARTICLE VIII
SUCCESSOR AND SEPARATE TRUSTEES
SECTION 8.01. Notice of Successor Owner Trustee..........................................................58
SECTION 8.02. Resignation of Indenture Trustee; Appointment of Successor.................................58
SECTION 8.03. Appointment of Additional and Separate Trustees............................................59
ARTICLE IX
SUPPLEMENT AND AMENDMENTS TO THIS TRUST INDENTURE
AND OTHER DOCUMENTS
SECTION 9.01. Instructions of Majority; Limitations......................................................61
SECTION 9.02. Trustees Protected.........................................................................62
SECTION 9.03. Documents Mailed to Certificate Holders....................................................63
SECTION 9.04. No Request Necessary for Lease Supplement or Trust Agreement and Indenture
Supplement.................................................................................63
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Termination of Trust Indenture.............................................................63
SECTION 10.02. No Legal Title to Trust Indenture Estate in Certificate Holders............................64
SECTION 10.03. Sale of Aircraft by Indenture Trustee Is Binding...........................................64
SECTION 10.04. Trust Indenture for Benefit of the Owner Trustee, the Indenture Trustee, Owner
Participant, Lessee and Certificate Holders................................................64
SECTION 10.05. Notices....................................................................................64
SECTION 10.06. Severability...............................................................................65
SECTION 10.07. No Oral Modification or Continuing Waivers.................................................65
SECTION 10.08. Successors and Assigns.....................................................................65
SECTION 10.09. Headings...................................................................................65
SECTION 10.10. Normal Commercial Relations................................................................65
SECTION 10.11. Governing Law; Counterpart Form............................................................66
SECTION 10.12. Voting By Certificate Holders..............................................................66
SECTION 10.13. Bankruptcy.................................................................................66
SECTION 10.14. No Action Contrary to Lessee's Rights Under the Lease......................................66
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EXHIBIT A Form of Trust Agreement and Indenture Supplement
SCHEDULE I Secured Certificates Amortization
SCHEDULE II Pass Through Trust Agreements
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TRUST INDENTURE AND SECURITY AGREEMENT
[NW ____ _]
TRUST INDENTURE AND SECURITY AGREEMENT [NW ____ _], dated as
of [_______________] ("TRUST INDENTURE") between XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity, except as expressly stated herein, but solely as Owner Trustee under
the Trust Agreement referred to below (together with its successors under the
Trust Agreement, the "OWNER TRUSTEE"), and STATE STREET BANK AND TRUST COMPANY,
a Massachusetts trust company, not in its individual capacity, except as
expressly stated herein, but solely as Indenture Trustee hereunder (together
with its successors hereunder, the "INDENTURE TRUSTEE").
W I T N E S S E T H:
WHEREAS, all capitalized terms used herein shall have the
respective meanings set forth or referred to in Article I hereof;
WHEREAS, the Owner Participant and Xxxxx Fargo have entered
into the Trust Agreement whereby, among other things, (i) the Owner Trustee has
established a certain trust for the use and benefit of the Owner Participant
subject, however, to the Trust Indenture Estate created pursuant hereto for the
use and benefit of, and with the priority of payment to, the holders of Secured
Certificates issued hereunder, and (ii) the Owner Trustee has been authorized
and directed to execute and deliver this Trust Indenture;
WHEREAS, the parties desire by this Trust Indenture, among
other things, (i) to provide for the issuance by the Owner Trustee to the Pass
Through Trustees (or their designee) of the Secured Certificates evidencing the
participation of the Pass Through Trustees in the payment of Lessor's Cost for
the Aircraft, as provided in the Participation Agreement and (ii) to provide for
the assignment, mortgage and pledge by the Owner Trustee to the Indenture
Trustee, as part of the Trust Indenture Estate hereunder, among other things, of
all of the Owner Trustee's right, title and interest in and to the Aircraft and,
except as hereinafter expressly provided, all of the Owner Trustee's right,
title and interest in, to and under the Lease and all payments and other amounts
received hereunder or thereunder in accordance with the terms hereof or thereof,
as security for, among other things, the Owner Trustee's obligations to the
Indenture Trustee, for the ratable benefit and security of the Certificate
Holders, subject to Section 2.15 and Article III hereof;
WHEREAS, all things have been done to make the Secured
Certificates, when executed by the Owner Trustee and authenticated and delivered
by the Indenture Trustee hereunder, the valid, binding and enforceable
obligations of the Owner Trustee; and
WHEREAS, all things necessary to make this Trust Indenture the
valid, binding and legal obligation of the Owner Trustee for the uses and
purposes herein set forth, in accordance with its terms, have been done and
performed and have happened:
GRANTING CLAUSE
NOW, THEREFORE, THIS TRUST INDENTURE AND SECURITY AGREEMENT
WITNESSETH, that, to secure the prompt payment of the Principal Amount of,
interest on, Make-Whole Amount, if any, and all other amounts due with respect
to, all Secured Certificates from time to time outstanding hereunder and the
performance and observance by the Owner Trustee of all the agreements, covenants
and provisions herein and in the Participation Agreement and the Secured
Certificates contained, for the benefit of the Certificate Holders and the
Indenture Indemnitees and the prompt payment of all amounts from time to time
owing hereunder and under the Participation Agreement to the Certificate Holders
and the Indenture Indemnitees by the Owner Trustee or Lessee and for the uses
and purposes and subject to the terms and provisions hereof, and in
consideration of the premises and of the covenants herein contained, and of the
acceptance of the Secured Certificates by the holders thereof, and for other
good and valuable consideration the receipt and adequacy whereof are hereby
acknowledged, the Owner Trustee has granted, bargained, sold, assigned,
transferred, conveyed, mortgaged, pledged and confirmed, and does hereby grant,
bargain, sell, assign, transfer, convey, mortgage, pledge and confirm, unto the
Indenture Trustee, its successors in trust and assigns, for the security and
benefit of the Certificate Holders, a first priority security interest in and
mortgage lien on all right, title and interest of the Owner Trustee in, to and
under the following described property, rights and privileges, other than
Excluded Payments (which collectively, excluding Excluded Payments but including
all property hereafter specifically subjected to the Lien of this Trust
Indenture by the Trust Agreement and Indenture Supplement or any mortgage
supplemental hereto, are included within the Trust Indenture Estate), to wit:
(1) the Aircraft (including the Airframe and the Engines and
all replacements thereof and substitutions therefor to which the Owner Trustee
shall from time to time acquire title as provided herein and in the Lease), all
as more particularly described in the Trust Agreement and Indenture Supplement
executed and delivered with respect to the Aircraft or any such replacements or
substitutions therefor, as provided in this Trust Indenture and all logs,
manuals maintained on the Aircraft and modification and maintenance records at
any time required to be maintained with respect to the Aircraft, in accordance
with the rules and regulations of the FAA if the Aircraft is registered under
the laws of the United States or the rules and regulations of the government of
the country of registry of the Aircraft if the Aircraft is registered under the
laws of a jurisdiction other than the United States;
(2) the Lease and any Lease Supplement and all Rent thereunder
(including, without limitation, all amounts of Basic Rent, Supplemental Rent and
payments of any kind thereunder (excluding any Excluded Payments)), and the
Guarantee (excluding any Excluded Payments);
(3) the Purchase Agreement [and the Guaranty -- A319'S ONLY]
([each] to the extent specified in the Purchase Agreement Assignment), the
Purchase Agreement Assignment, the Consent and Agreement and the Xxxx of Sale;
(4) all rents, issues, profits, revenues and other income of
the property subjected or required to be subjected to the lien of this
Indenture;
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(5) all insurance and requisition proceeds with respect to the
Aircraft, including but not limited to the insurance required under Section 11
of the Lease, but excluding insurance proceeds described in clauses (ii) and
(iii) of the definition of Excluded Payments;
(6) all rights of the Owner Trustee to amounts paid or payable
by Lessee to the Owner Trustee under the Participation Agreement and all rights
of the Owner Trustee to enforce payments of any such amounts thereunder, but
excluding amounts described in clauses (i) and (v) (and clauses (vii), (viii)
and (ix) as they relate thereto) of the definition of Excluded Payments;
(7) all monies and securities from time to time deposited or
required to be deposited with the Indenture Trustee pursuant to any terms of
this Indenture or the Lease or required hereby or by the Lease to be held by the
Indenture Trustee hereunder (other than Excluded Payments); and
(8) all proceeds of the foregoing.
BUT EXCLUDING from the foregoing and from the Trust Indenture
Estate all Excluded Payments, and the right to enforce and collect the same, and
SUBJECT TO all of the terms and conditions of this Trust Indenture and the
rights of the Owner Trustee and the Owner Participant hereunder.
Concurrently with the delivery hereof, the Owner Trustee is
delivering to the Indenture Trustee the original executed counterpart of the
Lease and the Lease Supplement No. 1 (to each of which a chattel paper receipt
is attached), and executed copies of the Participation Agreement, and the
Purchase Agreement Assignment with the Consent and Agreement attached thereto.
TO HAVE AND TO HOLD all and singular the aforesaid property
unto the Indenture Trustee, and its successors and assigns, in trust for the
benefit and security of the Certificate Holders, except as provided in Section
2.15 and Article III hereof without any preference, distinction or priority of
any one Secured Certificate over any other by reason of priority of time of
issue, sale, negotiation, date of maturity thereof or otherwise for any reason
whatsoever, and for the uses and purposes and in all cases and as to all
property specified in paragraphs (1) through (8) inclusive above, subject to the
terms and provisions set forth in this Trust Indenture.
It is expressly agreed that anything herein contained to the
contrary notwithstanding, the Owner Trustee shall remain liable under each of
the Indenture Agreements to which it is a party to perform all of the
obligations assumed by it thereunder, except to the extent prohibited or
excluded from doing so pursuant to the terms and provisions thereof, and the
Indenture Trustee and the Certificate Holders shall have no obligation or
liability under the Indenture Agreements, by reason of or arising out of the
assignment hereunder, nor shall the Indenture Trustee or the Certificate Holders
be required or obligated in any manner to perform or fulfill any obligations of
the Owner Trustee under or pursuant to any of the Indenture Agreements to which
it is a party, or, except as herein expressly provided, to make any payment, or
to make any inquiry as to the nature or sufficiency of any payment received by
it, or present or
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file any claim, or take any action to collect or enforce the payment of any
amounts which may have been assigned to it or to which it may be entitled at any
time or times.
The Owner Trustee does hereby constitute the Indenture Trustee
the true and lawful attorney of the Owner Trustee, irrevocably, granted for good
and valuable consideration and coupled with an interest and with full power of
substitution, and with full power (in the name of the Owner Trustee or
otherwise) to ask for, require, demand, receive, compound and give acquittance
for any and all monies and claims for monies (in each case including insurance
and requisition proceeds but in all cases excluding Excluded Payments) due and
to become due under or arising out of the Indenture Agreements, and all other
property which now or hereafter constitutes part of the Trust Indenture Estate,
to endorse any checks or other instruments or orders in connection therewith and
to file any claims or to take any action or to institute any proceedings which
the Indenture Trustee may deem to be necessary or advisable in the premises.
Without limiting the generality of the foregoing, but subject to the rights of
the Owner Trustee and the Owner Participant hereunder, during the continuance of
any Event of Default under this Trust Indenture, the Indenture Trustee shall
have the right under such power of attorney to accept any offer in connection
with the exercise of remedies as set forth herein of any purchaser to purchase
the Airframe and Engines and upon such purchase to execute and deliver in the
name of and on behalf of the Owner Trustee an appropriate xxxx of sale and other
instruments of transfer relating to the Airframe and Engines, when purchased by
such purchaser, and to perform all other necessary or appropriate acts with
respect to any such purchase, and in its discretion to file any claim or take
any other action or proceedings, either in its own name or in the name of the
Owner Trustee or otherwise, which the Indenture Trustee may deem necessary or
appropriate to protect and preserve the right, title and interest of the
Indenture Trustee in and to such Rents and other sums and the security intended
to be afforded hereby; PROVIDED, HOWEVER, that no action of the Indenture
Trustee pursuant to this paragraph shall increase the obligations or liabilities
of the Owner Trustee to any Person beyond those obligations and liabilities
specifically set forth in this Trust Indenture and in the other Operative
Documents. Under the Lease, Lessee is directed, so long as this Trust Indenture
shall not have been fully discharged, to make all payments of Rent (other than
Excluded Payments) and all other amounts which are required to be paid to or
deposited with the Owner Trustee pursuant to the Lease (other than Excluded
Payments) directly to, or as directed by, the Indenture Trustee at such address
or addresses as the Indenture Trustee shall specify, for application as provided
in this Trust Indenture. The Owner Trustee agrees that promptly upon receipt
thereof, it will transfer to the Indenture Trustee any and all monies from time
to time received by it constituting part of the Trust Indenture Estate, for
distribution by the Indenture Trustee pursuant to this Trust Indenture, except
that the Owner Trustee shall accept for distribution pursuant to the Trust
Agreement any amounts distributed to it by the Indenture Trustee under this
Trust Indenture.
The Owner Trustee agrees that at any time and from time to
time, upon the written request of the Indenture Trustee, the Owner Trustee will
promptly and duly execute and deliver or cause to be duly executed and delivered
any and all such further instruments and documents as the Indenture Trustee may
reasonably deem necessary or desirable to perfect, preserve or protect the
mortgage, security interests and assignments created or intended to be created
hereby or to obtain for the Indenture Trustee the full benefits of the
assignment hereunder and of the rights and powers herein granted. The parties
hereto acknowledge that neither the Owner Trustee nor the Owner Participant
shall have any obligation as to any
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recording, filing, refiling or re-recording of any documents or instruments in
regard to maintaining the perfection of the security interests created
hereunder, in the Trust Indenture Estate or any security interest that may be
claimed to have been created by the Lease or the ownership interest of the Owner
Trustee in the Aircraft.
The Owner Trustee does hereby warrant and represent that it
has not assigned or pledged, and hereby covenants and agrees that it will not
assign or pledge, so long as the assignment hereunder shall remain in effect,
and the Lien hereof shall not have been released pursuant to Section 10.01
hereof, any of its right, title or interest hereby assigned, to anyone other
than the Indenture Trustee and its predecessor(s) in this transaction, and that
it will not, except as otherwise provided in this Trust Indenture and except
with respect to Excluded Payments to which it is entitled, (i) accept any
payment from Lessee under any Indenture Agreement, (ii) enter into any agreement
amending or supplementing any Indenture Agreement, (iii) execute any waiver or
modification of, or consent under, the terms of, or exercise any rights, powers
or privileges under, any Indenture Agreement, (iv) settle or compromise any
claim (other than those relating to an Excluded Payment) arising under any
Indenture Agreement or (v) submit or consent to the submission of any dispute,
difference or other matter arising under or in respect of any Indenture
Agreement to arbitration thereunder.
The Owner Trustee does hereby further agree that it will not
without the written consent of the Indenture Trustee:
(a) collect or agree to the receipt or collection of any
payment of Rent (other than Excluded Payments),
including Basic Rent, Stipulated Loss Value,
Termination Value or any other payment to be made
pursuant to Section 9 or 10 of the Lease prior to the
date for the payment thereof provided for by the
Lease or assign, transfer or hypothecate (other than
to the Indenture Trustee hereunder) any payment of
Rent (other than Excluded Payments), including Basic
Rent, Stipulated Loss Value, Termination Value or any
other payment to be made pursuant to Section 9 or 10
of the Lease, then due or to accrue in the future
under the Lease in respect of the Airframe and
Engines; or
(b) except as contemplated by the Trust Agreement in
connection with the appointment of a successor owner
trustee, sell, mortgage, transfer, assign or
hypothecate (other than to the Indenture Trustee
hereunder) its interest in the Airframe and Engines
or any part thereof or in any amount to be received
by it from the use or disposition of the Airframe and
Engines, other than amounts distributed to it
pursuant to Article III hereof.
It is hereby further agreed that any and all property
described or referred to in the granting clauses hereof which is hereafter
acquired by the Owner Trustee shall IPSO FACTO, and without any further
conveyance, assignment or act on the part of the Owner Trustee or the Indenture
Trustee, become and be subject to the Lien herein granted as fully and
completely as though specifically described herein, but nothing contained in
this paragraph shall be deemed to modify or change the obligations of the Owner
Trustee contained in the foregoing paragraphs.
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The Owner Trustee does hereby ratify and confirm the Lease and
does hereby agree that it will not violate any covenant or agreement made by it
therein, herein or in any of the other Owner Trustee Documents.
Notwithstanding the Granting Clause or any of the foregoing
paragraphs, there is hereby excluded from the foregoing sale, transfer,
assignment, grant, pledge and security interest all Excluded Payments.
IT IS HEREBY COVENANTED AND AGREED by and between the parties
hereto as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. For all purposes of this Indenture
the following terms shall have the following meanings (such definitions to be
equally applicable to both the singular and plural forms of the terms defined):
"ACTUAL KNOWLEDGE" shall mean, (i) as it applies to the Owner
Trustee or Indenture Trustee, as the case may be, actual knowledge of a
Responsible Officer in the Trust Office of the Owner Trustee or in the Corporate
Trust Office of the Indenture Trustee, as the case may be, and (ii) as it
applies to the Owner Participant, actual knowledge of a vice president or other
higher officer of the Owner Participant having responsibility for the
transactions contemplated by the Operative Documents.
"AMORTIZATION AMOUNT" shall mean, with respect to any
Principal Amount Repayment Date, the amount set forth opposite such Date on the
Amortization Schedule.
"AMORTIZATION SCHEDULE" shall mean the amortization schedule
for the Secured Certificates delivered pursuant to Section 2.02 hereof.
"AVERAGE LIFE DATE" for each Secured Certificate to be
redeemed shall be the date which follows the redemption date by a period equal
to the Remaining Weighted Average Life at the redemption date of such Secured
Certificate. "REMAINING WEIGHTED AVERAGE LIFE" of such Secured Certificate, at
the redemption date of such Secured Certificate, shall be the number of days
equal to the quotient obtained by dividing (a) the sum of the products obtained
by multiplying (i) the amount of each then remaining installment of principal,
including the payment due on the maturity date of such Secured Certificate, by
(ii) the number of days from and including the redemption date to but excluding
the scheduled payment date of such principal installment; by (b) the then unpaid
principal amount of such Secured Certificate.
"CASH EQUIVALENTS" shall mean the investments specified in
Section 22(a) of the Lease.
"CERTIFICATE HOLDER" shall mean any holder from time to time
of one or more Secured Certificates.
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"CODE" shall mean the Internal Revenue Code of 1986, as
amended.
"CONTINUOUS STAY PERIOD" shall have the meaning specified in
Section 4.04(a) hereof.
"CORPORATE TRUST DEPARTMENT" or "TRUST OFFICE" means the
principal corporate trust office of the Owner Trustee located at MAC: U1254-031,
00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attention: Corporate Trust
Department, 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 Lessee, the Indenture Trustee, the Owner Participant and
each Certificate Holder.
"CORPORATE TRUST OFFICE" shall mean the principal office of
the Indenture Trustee located at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
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 Lessee, the Owner
Trustee, the Loan Participants and each Certificate Holder.
"DEBT" shall mean any liability for borrowed money, or any
liability for the payment of money in connection with any letter of credit
transaction, or other liabilities evidenced or to be evidenced by bonds,
debentures, notes or other similar instruments or for the deferred purchase
price of property, goods or services.
"DEBT RATE" shall mean, with respect to any Series, the rate
per annum specified for such Series under the heading "Interest Rate" in
Schedule I to the Trust Indenture.
"DEFAULT" means any event or condition that with the giving of
notice or the lapse of time or both would become an Event of Default or Lease
Event of Default (excluding Lease Events of Default related to Excluded
Payments).
"DOLLARS" and "$" shall mean the lawful currency of the United
States of America.
"ENFORCEMENT DATE" shall have meaning specified in Section
4.03 hereof.
"EVENT OF DEFAULT" shall have the meaning specified in Section
4.02 hereof.
"EXCESS AMOUNT" shall have the meaning specified in Section
2.03(b) hereof.
"EXCLUDED PAYMENTS" shall mean (i) indemnity payments paid or
payable by Lessee to or in respect of the Owner Participant or the Owner Trustee
in its individual capacity, their respective Affiliates, successors and
permitted assigns and their directors, officers, employees, servants and agents
(collectively, the "OWNER INDEMNITEES") pursuant to Sections 7(b), 7(c), 16 and
17 of the Participation Agreement, (ii) proceeds of public liability insurance
in respect of the Aircraft payable as a result of insurance claims made, or
losses suffered, by the Owner Trustee or the Indenture Trustee in their
respective individual capacities or by any of the Owner Indemnitees, (iii)
proceeds of insurance maintained with respect to the Aircraft by the Owner
Participant (whether directly or through the Owner Trustee) or any other Owner
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Indemnitee and permitted under Section 11(e) of the Lease, (iv) all payments
required to be made under the Tax Indemnity Agreement by Lessee and all payments
of Supplemental Rent by Lessee in respect of any amounts payable under the Tax
Indemnity Agreement, (v) fees payable to the Owner Trustee or the Indenture
Trustee pursuant to the last sentence of Section 7(c) of the Participation
Agreement, (vi) provided that the Secured Certificates shall have been duly
assumed by Lessee pursuant to Section 2.13 hereof, the amounts payable to the
Owner Trustee pursuant to the third sentence of Section 19(d) of the Lease plus
all reasonable expenses incurred by the Owner Trustee and the Owner Participant
in connection with such assumption, as applicable, (vii) any payment of the
foregoing under the Guarantee, (viii) interest accrued on any of the above, and
(ix) any right to enforce the payment of any amount described in clauses (i)
through (viii) above and the right to declare an Event of Default in respect of
any of the foregoing amounts.
"FEDERAL FUNDS RATE" means a fluctuating interest rate per
annum in effect from time to time, which rate per annum shall at all times be
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York, or
if such rate is not published for any day that is a Business Day, the average of
the quotations for such day for such transactions received by State Street from
three Federal funds brokers of recognized standing selected by it.
"GOVERNMENT ENTITY" means (a) any federal, state, provincial
or similar government, and any body, board, department, commission, court,
tribunal, authority, agency or other instrumentality of any such government or
otherwise exercising any executive, legislative, judicial, administrative or
regulatory functions of such government or (b) any other government entity
having jurisdiction over any matter contemplated by the Operative Agreements or
relating to the observance or performance of the obligations of any of the
parties to the Operative Agreements.
"GUARANTOR" shall have the meaning specified in the Lease.
"INDENTURE AGREEMENTS" means the Participation Agreement, the
Lease, the Purchase Agreement, the Purchase Agreement Assignment[, the Guaranty
-- A319'S ONLY], the Consent and Agreement, the Guarantee, the Bills of Sale and
any other contract, agreement or instrument from time to time assigned or
pledged under the Trust Indenture.
"INDENTURE INDEMNITEE" means (i) the Indenture Trustee, (ii)
the Loan Participants and each Certificate Holder, (iii) the Subordination
Agent, (iv) the Liquidity Provider, (v) the Pass Through Trustee and (vi) the
respective directors, officers, employees, agents and servants of each of the
Persons described in clauses (i) through (v), inclusive.
"INDENTURE TRUSTEE EVENT" means either (i) the Secured
Certificates shall have become due and payable pursuant to Section 4.04(b) of
the Trust Indenture or (ii) the Indenture Trustee has taken action or notified
the Owner Trustee that it intends to take action to foreclose the Lien of the
Trust Indenture or otherwise commence the exercise of any significant remedy
under the Trust Indenture or the Lease.
-8-
"LAW" shall mean (a) any constitution, treaty, statute, law,
regulation, order, rule or directive of any Government Entity, and (b) any
judicial or administrative interpretation or application of, or decision under,
any of the foregoing.
"LEASE" shall mean that certain Lease Agreement [NW ____ _],
dated as of [_______________], entered into by the Owner Trustee and Lessee
concurrently with the execution and delivery hereof, as said Lease Agreement has
been, or may from time to time be, supplemented or amended, or the terms thereof
waived or modified, to the extent permitted by, and in accordance with, the
terms of this Indenture. The term "LEASE" shall also include each Lease
Supplement from time to time entered into pursuant to the terms of the Lease.
"LEASE DEFAULT" shall mean a "Default" as defined in the
Lease.
"LEASE EVENT OF DEFAULT" shall mean an "Event of Default" as
defined in the Lease.
"LESSEE" shall mean Northwest Airlines, Inc., a Minnesota
corporation.
"LESSEE OPERATIVE DOCUMENTS" means the Participation
Agreement, the Lease, Lease Supplement No. 1, the Tax Indemnity Agreement, the
Purchase Agreement Assignment, the FAA Xxxx of Sale and the Xxxx of Sale.
"MAJORITY IN INTEREST OF CERTIFICATE HOLDERS" as of a
particular date of determination shall mean the holders of more than a majority
in aggregate unpaid Principal Amount of all Secured Certificates outstanding as
of such date (excluding any Secured Certificates held by the Owner Trustee or
the Owner Participant or any interests of the Owner Participant therein by
reason of subrogation pursuant to Section 4.03 hereof (unless all Secured
Certificates then outstanding shall be held by the Owner Trustee or the Owner
Participant) or Lessee or any affiliate of any thereof[, it being understood
that the Class D Trustee shall be an affiliate of Lessee as long as more than
50% in the aggregate face amount of the Pass Through Certificates issued by the
Class D Pass Through Trust are held by an affiliate of Lessee or the Class D
Trustee is otherwise under the control of such affiliate of Lessee -- option for
A319's and 757's]).
"MAKE-WHOLE AMOUNT" means, with respect to any Secured
Certificate, the amount (as determined by an independent investment banker
selected by Lessee and reasonably acceptable to the Indenture Trustee and the
Owner Participant) by which (a) the present value of the remaining scheduled
payments of principal and interest from the redemption date to maturity of such
Secured Certificate computed by discounting each such payment on a semiannual
basis from its respective Payment Date (assuming a 360-day year of twelve 30-day
months) using a discount rate equal to the Treasury Yield EXCEEDS (b) the
outstanding principal amount of such Secured Certificate plus accrued interest.
For purposes of determining the Make-Whole Amount, "TREASURY YIELD" at the time
of determination with respect to any Secured Certificate means the interest rate
(expressed as a semiannual equivalent and as a decimal and, in the case of
United States Treasury bills, converted to a bond equivalent yield) determined
to be the per annum rate equal to the semiannual yield to maturity for United
States Treasury securities maturing on the Average Life Date of such Secured
Certificate and trading in the public
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securities market either as determined by interpolation between the most
recent weekly average yield to maturity for two series of United States
Treasury securities, trading in the public securities markets, (A) one
maturing as close as possible to, but earlier than, the Average Life Date of
such Secured Certificate and (B) the other maturing as close as possible to,
but later than, the Average Life Date of such Secured 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 Secured Certificate is reported on the most recent
H.15(519), such weekly average yield to maturity as published in such
H.15(519). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of
the Federal Reserve System. The date of determination of a Make-Whole Amount
shall be the third Business Day prior to the applicable redemption date and
the "MOST RECENT H.15(519)" means the H.15(519) published prior to the close
of business on the third Business Day prior to the applicable redemption date.
"MORTGAGED PROPERTY" shall have the meaning specified in
Section 3.03 hereof.
"OWNER INDEMNITEE" shall have the meaning specified in the
definition of Excluded Payments herein.
"OWNER PARTICIPANT" shall mean [____________________________],
a [____________________], so long as such party shall have any interest in the
Trust Estate, and transferees thereof as permitted by Section 8 of the
Participation Agreement.
"PARTICIPANTS" shall mean and include the Loan Participants
and the Owner Participant.
"PARTICIPATION AGREEMENT" shall mean that certain
Participation Agreement [NW ____ _], dated as of [_______________], among the
Owner Trustee, the Subordination Agent, the Indenture Trustee, Lessee, the
Guarantor, the Owner Participant and the Purchasers as the same may from time to
time be supplemented or further amended, or the terms thereof waived or
modified, to the extent permitted by, and in accordance with, the terms thereof.
"PAST DUE RATE" shall mean, with respect to the Secured
Certificates, the rate per annum equal to 2% over the Debt Rate as in effect
from time to time.
"PAYMENT DATE" shall mean each [April 1 and October 1],
commencing on [April/October __, ____] (or, if any such day is not a Business
Day, the immediately succeeding Business Day) until the Secured Certificates
have been paid in full.
"PRINCIPAL AMOUNT" with respect to a Secured Certificate means
the stated original principal amount of such Secured Certificate and, with
respect to all Secured Certificates, means the aggregate stated original
principal amounts of all Secured Certificates.
"PRINCIPAL AMOUNT REPAYMENT DATE" shall mean each Payment Date
on which any portion of the Principal Amount is due and payable in accordance
with the Amortization Schedule.
"QIB" shall have the meaning specified in Section 2.08 hereof.
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"REPLACEMENT AIRFRAME" shall mean any airframe substituted for
the Airframe pursuant to Section 5.06 hereof.
"REPLACEMENT ENGINE" shall mean any engine substituted for an
Engine pursuant to Section 5.06 hereof.
"RESPONSIBLE OFFICER" means with respect to the Owner Trustee,
a responsible officer in the Trust Office of the Owner Trustee (including,
without limitation, any authorized officer in the Trust Office of the Owner
Trustee), and with respect to the Indenture Trustee, a responsible officer in
the Corporate Trust Office of the Indenture Trustee.
"SECTION 1110 PERIOD" shall have the meaning specified in
Section 4.04(a) hereof.
"SECURED CERTIFICATES" shall mean and include any Secured
Certificates issued hereunder, and issued in exchange therefor or replacement
thereof.
"SECURED OBLIGATIONS" shall have the meaning specified in
Section 2.06 hereof.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"SERIES A-1" or "SERIES A-1 SECURED CERTIFICATES" means
Secured Certificates issued and designated as "Series A-1" hereunder, in the
Principal Amount and maturities and bearing interest as specified in Schedule I
to the Trust Indenture under the heading "Series A-1."
"SERIES A-2" or "SERIES A-2 SECURED CERTIFICATES" means
Secured Certificates issued and designated as "Series A-2" hereunder, in the
Principal Amount and maturities and bearing interest as specified in Schedule I
to the Trust Indenture under the heading "Series A-2."
"SERIES B" or "SERIES B SECURED CERTIFICATES" means Secured
Certificates issued and designated as "Series B" hereunder, in the Principal
Amount and maturities and bearing interest as specified in Schedule I to the
Trust Indenture under the heading "Series B."
"SERIES C" or "SERIES C SECURED CERTIFICATES" means Secured
Certificates issued and designated as "Series C" hereunder, in the Principal
Amount and maturities and bearing interest as specified in Schedule I to the
Trust Indenture under the heading "Series C."
["SERIES D" or "SERIES D SECURED CERTIFICATES" means Secured
Certificates issued and designated as "Series D" hereunder, in the Principal
Amount and maturities and bearing interest as specified in Schedule I to the
Trust Indenture under the heading "Series D." -- option for A319's and 757's]
"STATE STREET" means State Street Bank and Trust Company, a
Massachusetts trust company, not in its capacity as Indenture Trustee under the
Trust Indenture, but in its individual capacity.
"TRANSACTIONS" means the transactions contemplated by the
Participation Agreement and the other Operative Documents.
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"TRUST AGREEMENT AND INDENTURE SUPPLEMENT" shall mean a
supplement to the Trust Agreement and to this Indenture, in substantially the
form of Exhibit A hereto, which shall particularly describe the Aircraft, and
any Replacement Airframe and Replacement Engine included in the property of the
Owner Trustee covered by the Trust Agreement.
"TRUST INDENTURE", "THIS TRUST INDENTURE", "THE TRUST
INDENTURE", "INDENTURE", "THIS INDENTURE", and "THE INDENTURE" shall mean this
Trust Indenture and Security Agreement [NW ____ _] as it may from time to time
be supplemented or amended as herein provided, including supplementing by the
Trust Agreement and Indenture Supplement pursuant hereto.
"TRUST INDENTURE ESTATE" shall mean all estate, right, title
and interest of the Indenture Trustee in and to the properties referred to in
the Granting Clause of this Trust Indenture, excluding Excluded Payments.
"XXXXX FARGO" shall mean Xxxxx Fargo Bank Northwest, National
Association, a national banking association.
SECTION 1.02. REFERENCE TO OTHER DOCUMENTS. For all purposes
of this Trust Indenture the terms used but not defined herein are used as
defined in the Lease.
ARTICLE II
THE SECURED CERTIFICATES
SECTION 2.01 FORM OF SECURED CERTIFICATES.
The Secured Certificates shall be substantially in the form
set forth below:
THIS SECURED CERTIFICATE HAS NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), OR PURSUANT TO THE SECURITIES LAWS OF ANY
STATE. ACCORDINGLY, THIS SECURED CERTIFICATE MAY NOT BE SOLD UNLESS EITHER
REGISTERED UNDER THE ACT AND SUCH APPLICABLE STATE LAWS OR AN EXEMPTION FROM
SUCH REGISTRATIONS IS AVAILABLE.
XXXXX FARGO BANK NORTHEST, NATIONAL ASSOCIATION, AS OWNER TRUSTEE UNDER TRUST
AGREEMENT [NW ____ _] DATED AS OF [________________________].
SERIES [___] NON-RECOURSE SECURED CERTIFICATE DUE [_____] ISSUED IN CONNECTION
WITH THE [AIRBUS A319-113/114] [BOEING 757-351] [BOEING 747-451] AIRCRAFT
BEARING UNITED STATES REGISTRATION NUMBER N[_____].
No.____ Date:[________]
$_____________________
INTEREST RATE MATURITY DATE
[_________] [_________,________]
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XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, not in
its individual capacity but solely as Owner Trustee (herein in such capacity
called the "OWNER TRUSTEE") under that certain Trust Agreement [NW ____ _],
dated as of [_______________], between the Owner Participant named therein
and XXXXX FARGO (herein as such Trust Agreement may be supplemented or
amended from time to time called the "TRUST AGREEMENT"), hereby promises to
pay to ___________, or the registered assignee thereof, the principal sum of
$_________ (the "PRINCIPAL AMOUNT"), together with interest on the amount of
the Principal Amount remaining unpaid from time to time (calculated on the
basis of a year of 360 days comprised of twelve 30-day months) from the date
hereof until paid in full at a rate per annum equal to the interest rate
indicated above. The Principal Amount of this Secured Certificate shall be
payable [on April 1, 2011](1) [in installments on the dates set forth in
Schedule I hereto equal to the corresponding percentage of the Principal
Amount of this Secured Certificate set forth in Schedule I hereto]
(2). Accrued but unpaid interest shall be due and payable in semi-annual
installments commencing [April/October 1, _____], and thereafter on
[October 1] and [April 1] of each year, to and including [____________].
[Notwithstanding the foregoing, the final payment made on this Secured
Certificate shall be in an amount sufficient to discharge in full the unpaid
Principal Amount and all accrued and unpaid interest on, and any other
amounts due under, this Secured Certificate. ] (3) Notwithstanding anything to
the contrary contained herein, if any date on which a payment under this
Secured Certificate becomes due and payable is not a Business Day then such
payment shall not be made on such scheduled date but shall be made on the next
succeeding Business Day and if such payment is made on such next succeeding
Business Day, no interest shall accrue on the amount of such payment during
such extension.
For purposes hereof, the term "TRUST INDENTURE" means the
Trust Indenture and Security Agreement [NW ____ _], dated as of
[_______________], between the Owner Trustee and State Street Bank and Trust
Company (the "INDENTURE TRUSTEE"), as the same may be amended or supplemented
from time to time. All other capitalized terms used in this Secured Certificate
and not defined herein shall have the respective meanings assigned in the Trust
Indenture.
This Secured Certificate shall bear interest, payable on
demand, at the Past Due Rate (calculated on the basis of a year of 360 days
comprised of twelve 30-day months) on any overdue Principal Amount, any overdue
Make-Whole Amount, if any, and (to the extent permitted by applicable law) any
overdue interest and any other amounts payable hereunder which are overdue, in
each case for the period the same is overdue. Amounts shall be overdue if not
paid when due (whether at stated maturity, by acceleration or otherwise).
All payments of Principal Amount, interest, Make-Whole Amount,
if any, and other amounts, if any, to be made by the Owner Trustee hereunder and
under the Trust Indenture
--------------------
1 To be inserted in non-installment Secured Certificates (the Series A-2
Secured Certificates).
2 To be inserted in installment Secured Certificates.
3 To be inserted in installment Secured Certificates.
-13-
shall be payable only from the income and proceeds from the Trust Estate to the
extent included in the Trust Indenture Estate and only to the extent that the
Owner Trustee shall have sufficient income or proceeds from the Trust Estate to
the extent included in the Trust Indenture Estate to enable the Indenture
Trustee to make such payments in accordance with the terms of Section 2.03 and
Article III of the Trust Indenture and each holder hereof, by its acceptance of
this Secured Certificate, agrees that it will look solely to the income and
proceeds from the Trust Indenture Estate to the extent available for
distribution to the holder hereof as above provided and that none of the Owner
Participant, the Owner Trustee or the Indenture Trustee is personally liable or
liable in any manner extending to any assets other than the Trust Indenture
Estate to the holder hereof for any amounts payable or any liability under this
Secured Certificate or, except as provided in the Trust Indenture or in the
Participation Agreement, for any liability under the Trust Indenture or the
Participation Agreement; PROVIDED, HOWEVER, that nothing herein contained shall
limit, restrict or impair the right of the Indenture Trustee, subject always to
the terms and provisions of the Trust Indenture, to accelerate the maturity of
this Secured Certificate upon occurrence of an Event of Default under the Trust
Indenture in accordance with Section 4.04(b) of the Trust Indenture, to bring
suit and obtain a judgment against the Owner Trustee on this Secured Certificate
for purposes of realizing upon the Trust Indenture Estate and to exercise all
rights and remedies provided under the Trust Indenture or otherwise realize upon
the Trust Indenture Estate.
There shall be maintained a Secured Certificate Register for
the purpose of registering transfers and exchanges of Secured Certificates at
the Corporate Trust Office of the Indenture Trustee or at the office of any
successor in the manner provided in Section 2.07 of the Trust Indenture.
The Principal Amount and interest and other amounts due
hereunder shall be payable in Dollars in immediately available funds at the
Corporate Trust Office of the Indenture Trustee, or as otherwise provided in the
Trust Indenture. Each such payment shall be made on the date such payment is due
and without any presentment or surrender of this Secured Certificate, except
that in the case of any final payment with respect to this Secured Certificate,
the Secured Certificate shall be surrendered promptly thereafter to the
Indenture Trustee for cancellation.
The holder hereof, by its acceptance of this Secured
Certificate, agrees that, except as provided in the Trust Indenture, each
payment received by it hereunder shall be applied, FIRST, to the payment of
accrued interest on this Secured Certificate (as well as any interest on any
overdue Principal Amount, any overdue Make-Whole Amount, if any, or, to the
extent permitted by Law, any overdue interest and other amounts hereunder) to
the date of such payment, SECOND, to the payment of the Principal Amount of this
Secured Certificate then due, THIRD, to the payment of Make-Whole Amount, if
any, and any other amount due hereunder or under the Trust Indenture, and
FOURTH, the balance, if any, remaining thereafter, to the payment of Principal
Amount of this Secured Certificate remaining unpaid in the inverse order of
their normal maturity.
This Secured Certificate is one of the Secured Certificates
referred to in the Trust Indenture which have been or are to be issued by the
Owner Trustee pursuant to the terms of the Trust Indenture. The Trust Indenture
Estate is held by the Indenture Trustee as security, in part,
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for the Secured Certificates. The provisions of this Secured Certificate are
subject to the Trust Indenture. Reference is hereby made to the Trust Indenture
and the Participation Agreement for a complete statement of the rights and
obligations of the holder of, and the nature and extent of the security for,
this Secured Certificate and the rights and obligations of the holders of, and
the nature and extent of the security for, any other Secured Certificates
executed and delivered under the Trust Indenture, as well as for a statement of
the terms and conditions of the trust created by the Trust Indenture, to all of
which terms and conditions in the Trust Indenture and the Participation
Agreement each holder hereof agrees by its acceptance of this Secured
Certificate.
As provided in the Trust Indenture and subject to certain
limitations therein set forth, this Secured Certificate is exchangeable for a
like aggregate Principal Amount of Secured Certificates of different authorized
denominations, as requested by the holder surrendering the same.
Prior to due presentment for registration of transfer of this
Secured Certificate, the Owner Trustee and the Indenture Trustee shall treat the
person in whose name this Secured Certificate is registered as the owner hereof
for all purposes whether or not this Secured Certificate be overdue, and neither
of the Owner Trustee nor the Indenture Trustee shall be affected by notice to
the contrary.
This Secured Certificate is subject to redemption as provided
in Sections 2.10, 2.11 and 2.12 of the Trust Indenture but not otherwise. This
Secured Certificate is also subject to assumption by Lessee as provided in
Section 2.13 of the Trust Indenture, to exchange and to purchase by the Owner
Participant or the Owner Trustee as provided in Section 2.14 of the Trust
Indenture but not otherwise.
The indebtedness evidenced by this Secured Certificate [shall
rank in right of payment equally with all Series A-2 Secured Certificates and
all other Series A-1 Secured Certificates but shall rank senior in right of
payment to all the other Secured Certificates.](4) [shall rank in right of
payment equally with all Series A-1 Secured Certificates and all other
Series A-2 Secured Certificates but shall rank senior in right of payment to all
the other Secured Certificates.](5) [is, to the extent and in the manner
provided in the Trust Indenture, subordinate and subject in right of payment to
the prior payment in full of the Secured Obligations (as defined in the Trust
Indenture) in respect of [Series A-1 Secured Certificates and Series A-2 Secured
Certificates](6) [Series A-1 Secured Certificates, Series A-2 Secured
Certificates and Series B Secured Certificates](7) [Series A-1 Secured
Certificates, Series A-2 Secured Certificates, Series B Secured Certificates and
Series C Secured Certificates -- option for A319's and 757's](8), and this
Secured Certificate is issued subject to such provisions.](9) The Certificate
------------------------
4 To be inserted in the case of a Series A-1 Secured Certificate.
5 To be inserted in the case of a Series A-2 Secured Certificate.
6 To be inserted in the case of a Series B Secured Certificate.
7 To be inserted in the case of a Series C Secured Certificate.
8 [To be inserted in the case of a Series D Secured Certificate -- option
for A319's and 757's].
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Holder of this Secured Certificate, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Indenture
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in the Trust Indenture and (c) appoints
the Indenture Trustee his attorney-in-fact for such purpose.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Indenture Trustee by manual signature, this
Secured Certificate shall not be entitled to any benefit under the Trust
Indenture or be valid or obligatory for any purpose.
THIS SECURED CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
* * *
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IN WITNESS WHEREOF, the Owner Trustee has caused this Secured
Certificate to be executed in its corporate name by its officer thereunto duly
authorized on the date hereof.
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Owner Trustee
By__________________________________________
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Secured Certificates referred to in the
within-mentioned Trust Indenture.
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but solely
as Indenture Trustee
By__________________________________________
Name:
Title:
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SCHEDULE I
SECURED CERTIFICATES AMORTIZATION
Percentage of
Principal Amount
Payment Date to be Paid
------------------------- ------------------------
[SEE SCHEDULE I TO TRUST INDENTURE
WHICH IS INSERTED UPON ISSUANCE]
* * *
SECTION 2.02. ISSUANCE AND TERMS OF SECURED CERTIFICATES.
The Secured Certificates shall be dated the date of issuance
thereof, shall be issued in [four] [five -- option for A319's and 757's]
separate series consisting of Series X-0, Xxxxxx X-0, Series B [and] Series C
[and Series D -- option for A319's and 757's] and in the maturities and
principal amounts and shall bear interest as specified in Schedule I hereto. On
the Delivery Date, each Secured Certificate shall be issued to the Pass Through
Trustees (or their designee) under the Pass Through Agreements as set forth in
Schedule II hereto. The Secured Certificates shall be issued in registered form
only. The Secured Certificates shall be issued in denominations of $1,000 and
integral multiples thereof, except that one Secured Certificate of each Series
may be in an amount that is not an integral multiple of $1,000.
Each Secured Certificate shall bear interest at the Debt Rate
(calculated on the basis of a year of 360 days comprised of twelve 30-day
months) on the unpaid Principal Amount thereof from time to time outstanding,
payable in arrears on [April/October 1, ____], and on each [October 1] and
[April 1] thereafter until maturity. The Principal Amount of each Series A-1,
Series B [and] Series C [and Series D -- option for A319's and 757's] Secured
Certificate shall be payable on the dates and in the installments equal to the
corresponding percentage of the Principal Amount as set forth in Schedule I
hereto applicable to such Series which shall be attached as Schedule I to the
Series A-1, Series B [and] Series C [and Series D -- option for A319's and
757's] Secured Certificates. The Principal Amount of each Series A-2 Secured
Certificate shall be due in a single payment on April 1, 2011. Notwithstanding
the foregoing, the final payment made under each Series A-1, Series B [and]
Series C [and Series D -- option for A319's and 757's] Secured Certificate shall
be in an amount sufficient to discharge in full the unpaid Principal Amount and
all accrued and unpaid interest on, and any other amounts due under, such
Secured Certificate. Each Secured Certificate shall bear interest at the Past
Due Rate (calculated on the basis of a year of 360 days comprised of twelve
30-day months) on any part of the Principal Amount, Make-Whole Amount, if any,
and to the extent permitted by applicable law, interest and any other amounts
payable thereunder not paid when due for any period during which the same shall
be overdue, in each case for the period the same is overdue. Amounts shall
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be overdue if not paid when due (whether at stated maturity, by acceleration or
otherwise). Notwithstanding anything to the contrary contained herein, if any
date on which a payment under any Secured Certificate becomes due and payable is
not a Business Day then such payment shall not be made on such scheduled date
but shall be made on the next succeeding Business Day and if such payment is
made on such next succeeding Business Day, no interest shall accrue on the
amount of such payment during such extension.
The Owner Trustee agrees to pay to the Indenture Trustee for
distribution in accordance with Section 3.04 hereof (a) any and all indemnity
amounts received by the Owner Trustee which are payable by Lessee to (i) the
Indenture Trustee in its individual capacity, (ii) the Certificate Holders,
(iii) the Subordination Agent, (iv) the Liquidity Provider, or (v) the Pass
Through Trustees, in each case pursuant to Section 7 of the Participation
Agreement, (b) Owner Trustee's pro rata share of all amounts owed to the
Liquidity Provider by the Subordination Agent under each Liquidity Facility
other than amounts due as (i) repayments of the principal of advances
thereunder, (ii) interest on Interest Drawings, Final Drawings, and Applied
Downgrade Advances and Applied Non-Extension Advances (as defined in the
Liquidity Facilities) under any Liquidity Facility except to the extent included
in Net Interest and Related Charges, and (iii) fees payable to the Liquidity
Provider payable (whether or not in fact paid) under Section 7(a) of the Note
Purchase Agreement (as originally in effect or amended, with the consent of the
Owner Participant), and (c) any and all amounts received by the Owner Trustee
which are payable by Lessee under clause (c) or (d) of the definition of
Supplemental Rent. As used in this Section, "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 Secured Certificates and the
denominator of which is the aggregate principal balance then
outstanding of all Equipment Notes, PLUS
(B) with respect to all Net Interest and Related Charges (x)
if there exists a Payment Default under any Secured Certificate a
fraction, the numerator of which is the aggregate principal balance
then outstanding of the Secured Certificates [(other than the Series D
Secured Certificates) -- option for A319's and 757's] and the
denominator of which is the aggregate principal balance then
outstanding of all Equipment Notes (other than the Series D Equipment
Notes) issued under Indentures 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 the Liquidity Provider on any
Interest Drawing, Final Drawing, Applied Downgrade Advance and/or Applied
Non-Extension Advance (as defined in the Liquidity Facilities) exceeds the
amount which would be payable if such drawings bore interest at the Designated
Interest Rate plus (ii) any amounts payable under Section 3.01, Section 3.02,
Section 3.03 or Section 7.07 of each Liquidity Facility (or similar provisions
of any succeeding Liquidity Facility) which result from any Interest Drawing,
Final Drawing, Applied Downgrade Advance or Applied Non-Extension Advance (as
defined in the Liquidity Facilities). As used in this Section "DESIGNATED
INTEREST RATE" means the weighted average Past Due Rate (as defined in the
applicable Indentures) except that [(i) the Debt Rate for the Series D Secured
Certificates shall not be taken into account for the calculation of such
weighted average rate and
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(ii) -- option for A319's and 757's] with respect to that portion of any Final
Drawing (or Applied Downgrade Advance or Applied Non-Extension Advance which
becomes a Final Drawing) which remains in a Cash Collateral Account, Designated
Interest Rate means the weighted average Investment Earnings of funds in the
Cash Collateral Accounts. As used in this Section, a Payment Default when used
in connection with a Secured Certificate or Equipment Note means a default in
the payment of principal thereof or interest thereon which has not been cured
other than solely because of acceleration. The following terms are used in this
Section as defined in the Intercreditor Agreement without regard to any
amendment, modification or supplement thereto after the Closing Date: Cash
Collateral Accounts, Equipment Notes, Final Drawing, Indentures, Interest
Drawing, Investment Earnings and Series D Equipment Notes.
The Secured Certificates shall be executed on behalf of the
Owner Trustee by its President or one of its Vice Presidents, Assistant Vice
Presidents or Assistant Secretaries or other authorized officer. Secured
Certificates bearing the signatures of individuals who were at any time the
proper officers of the Owner Trustee shall bind the Owner Trustee,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Secured Certificates or
did not hold such offices at the respective dates of such Secured Certificates.
The Owner Trustee may from time to time execute and deliver Secured Certificates
with respect to the Aircraft to the Indenture Trustee for authentication upon
original issue and such Secured Certificates shall thereupon be authenticated
and delivered by the Indenture Trustee upon the written request of the Owner
Trustee signed by a Vice President or Assistant Vice President or other
authorized officer of the Owner Trustee; PROVIDED, HOWEVER, that each such
request shall specify the aggregate Principal Amount of all Secured Certificates
to be authenticated hereunder on original issue with respect to the Aircraft. No
Secured Certificate shall be secured by or entitled to any benefit under this
Trust Indenture or be valid or obligatory for any purposes, unless there appears
on such Secured Certificate a certificate of authentication in the form provided
for herein executed by the Indenture Trustee by the manual signature of one of
its authorized officers and such certificate upon any Secured Certificates shall
be conclusive evidence, and the only evidence, that such Secured Certificate has
been duly authenticated and delivered hereunder.
SECTION 2.03. PAYMENTS FROM TRUST INDENTURE ESTATE ONLY.
(a) Without impairing any of the other rights, powers,
remedies, privileges, liens or security interests of the Certificate Holders
under this Trust Indenture, each Certificate Holder, by its acceptance of a
Secured Certificate, agrees that as between it and the Owner Trustee, except as
expressly provided in this Trust Indenture, the Participation Agreement or any
other Operative Document, (i) the obligation to make all payments of the
Principal Amount of, interest on, Make-Whole Amount, if any, and all other
amounts due with respect to the Secured Certificates, and the performance by the
Owner Trustee of every obligation or covenant contained in this Trust Indenture
and in the Participation Agreement or any of the other Operative Documents,
shall be payable only from the income and proceeds from the Trust Estate to the
extent included in the Trust Indenture Estate and only to the extent that the
Owner Trustee shall have sufficient income or proceeds from the Trust Estate to
the extent included in the Trust Indenture Estate to enable the Indenture
Trustee to make such payments in accordance with the terms of Article III
hereof, and all of the statements, representations, covenants and agreements
made by the Owner Trustee (when made in such capacity) contained in this Trust
Indenture and
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any agreement referred to herein other than the Trust Agreement, unless
expressly otherwise stated, are made and intended only for the purpose of
binding the Trust Estate and establishing the existence of rights and remedies
which can be exercised and enforced against the Trust Estate; therefore,
anything contained in this Trust Indenture or such other agreements to the
contrary notwithstanding (except for any express provisions or representations
that the Owner Trustee is responsible for, or is making, in its individual
capacity, for which there would be personal liability of the Owner Trustee), no
recourse shall be had with respect to this Trust Indenture or such other
agreements against the Owner Trustee in its individual capacity or against any
institution or person which becomes a successor trustee or co-trustee or any
officer, director, trustee, servant or direct or indirect parent or controlling
Person or Persons of any of them, and (ii) none of the Owner Trustee, in its
individual capacity, the Owner Participant, the Indenture Trustee and any
officer, director, trustee, servant, employee, agent or direct or indirect
parent or controlling Person or Persons of any of them shall have any personal
liability for any amounts payable, or other obligation owed, hereunder, under
the Participation Agreement or any of the other Operative Documents or under the
Secured Certificates except as expressly provided herein or in the Participation
Agreement; PROVIDED, HOWEVER, that nothing contained in this Section 2.03(a)
shall be construed to limit the exercise and enforcement in accordance with the
terms of this Trust Indenture or such other agreements of rights and remedies
against the Trust Estate. These provisions are not intended as any release or
discharge of the indebtedness represented by the Secured Certificates and the
Trust Indenture, but are intended only as a covenant not to xxx the Owner
Participant, the Owner Trustee or the Indenture Trustee in their individual
capacities, except as expressly provided herein or in the Participation
Agreement, for a deficiency with respect to such indebtedness, the indebtedness
represented by this Trust Indenture and the Secured Certificates to remain in
full force and effect as fully as though these provisions were not contained in
this Trust Indenture. The Owner Trustee hereby acknowledges that the Certificate
Holders have expressly reserved all their rights and remedies against the Trust
Indenture Estate, including the right, in the event of a default in the payment
of all or part of the Principal Amount of, interest on, Make-Whole Amount, if
any, or any other amount due with respect to any Secured Certificate within the
periods provided for in Section 4.02(b) hereof, or upon the occurrence and
continuation of any other Event of Default under this Trust Indenture, to
foreclose upon this Trust Indenture, and/or to receive the proceeds from the
Trust Indenture Estate and otherwise to enforce any other right under this Trust
Indenture in accordance with the provisions hereof. Nothing in this Section
2.03(a) shall (x) release the Owner Trustee or constitute a covenant not to xxx
the Owner Trustee for any breach by it of any representations, warranties or
covenants of the Owner Trustee contained in the Operative Documents or (y)
release the Owner Trustee in its individual capacity from personal liability, or
constitute a covenant not to xxx the Owner Trustee in its individual capacity
for any breach by it of any representations, warranties or covenants of the
Owner Trustee made in its individual capacity in the Operative Documents.
(b) If (i) all or any part of the Trust Estate becomes the
property of, or the Owner Trustee or Owner Participant becomes, a debtor subject
to the reorganization provisions of the Bankruptcy Code, (ii) pursuant to such
reorganization provisions, including Section 1111(b) of the Bankruptcy Code, the
Owner Trustee (in its individual capacity) or the Owner Participant is required,
by reason of the Owner Trustee (in its individual capacity) or the Owner
Participant being held to have recourse liability to any Certificate Holder or
the Indenture Trustee, directly or indirectly (other than the recourse liability
of the Owner Trustee (in its
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individual capacity), to make payment on account of any amount payable as
principal, Make-Whole Amount, if any, interest or other amounts on the Secured
Certificates or under this Indenture and (iii) any Certificate Holder or the
Indenture Trustee actually receives any Excess Amount (as hereinafter defined)
which reflects any payment by the Owner Trustee (in its individual capacity) or
the Owner Participant on account of clause (ii) above, then such Certificate
Holder or the Indenture Trustee, as the case may be, shall promptly refund to
the Owner Trustee (in its individual capacity) or the Owner Participant
(whichever shall have made such payment) such Excess Amount.
For purposes of this Section 2.03(b), "EXCESS AMOUNT" means
the amount by which such payment exceeds the amount that would have been
received by a Certificate Holder or the Indenture Trustee if the Owner Trustee
(in its individual capacity) or the Owner Participant had not become subject to
the recourse liability referred to in clause (ii) above. Nothing contained in
this Section 2.03(b) shall prevent a Certificate Holder or the Indenture Trustee
from enforcing any personal recourse obligation (and retaining the proceeds
thereof) of the Owner Trustee (in its individual capacity) or the Owner
Participant under the Participation Agreement or this Trust Indenture (and any
exhibits or annexes hereto or thereto) or by separate agreement or from
retaining any amount paid by Owner Participant under Section 2.14 or 4.03
hereof.
SECTION 2.04. METHOD OF PAYMENT.
(a) The Principal Amount of, interest on, Make-Whole Amount,
if any, and other amounts due under each Secured Certificate or hereunder will
be payable in Dollars by wire transfer of immediately available funds not later
than 12:00 noon, New York City time, on the due date of payment to the Indenture
Trustee at the Corporate Trust Office for distribution among the Certificate
Holders in the manner provided herein. The Owner Trustee shall not have any
responsibility for the distribution of such payment to any Certificate Holder.
Notwithstanding the foregoing or any provision in any Secured Certificate to the
contrary, the Indenture Trustee will use reasonable efforts to pay or cause to
be paid, if so directed in writing by any Certificate Holder (with a copy to the
Owner Trustee), all amounts paid by the Owner Trustee hereunder and under such
holder's Secured Certificate or Secured Certificates to such holder or a nominee
therefor (including all amounts distributed pursuant to Article III of this
Trust Indenture) by transferring, or causing to be transferred, by wire transfer
of immediately available funds in Dollars, prior to 2:00 p.m., New York City
time, on the due date of payment, to an account maintained by such holder with a
bank located in the continental United States the amount to be distributed to
such holder, for credit to the account of such holder maintained at such bank.
If the Indenture Trustee shall fail to make any such payment as provided in the
immediately preceding sentence after its receipt of funds at the place and prior
to the time specified above, the Indenture Trustee, in its individual capacity
and not as trustee, agrees to compensate such holders for loss of use of funds
at the Federal Funds Rate until such payment is made and the Indenture Trustee
shall be entitled to any interest earned on such funds until such payment is
made. Any payment made hereunder shall be made without any presentment or
surrender of any Secured Certificate, except that, in the case of the final
payment in respect of any Secured Certificate, such Secured Certificate shall be
surrendered to the Indenture Trustee for cancellation promptly after such
payment. Notwithstanding any other provision of this Trust Indenture to the
contrary, the Indenture Trustee shall not be required to make, or cause to be
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made, wire transfers as aforesaid prior to the first Business Day on which it is
practicable for the Indenture Trustee to do so in view of the time of day when
the funds to be so transferred were received by it if such funds were received
after 12:00 noon, New York City time, at the place of payment. Prior to the due
presentment for registration of transfer of any Secured Certificate, the Owner
Trustee and the Indenture Trustee shall deem and treat the Person in whose name
any Secured Certificate is registered on the Secured Certificate Register as the
absolute owner and holder of such Secured Certificate for the purpose of
receiving payment of all amounts payable with respect to such Secured
Certificate and for all other purposes, and none of the Owner Trustee or the
Indenture Trustee shall be affected by any notice to the contrary. So long as
any signatory to the Participation Agreement or nominee thereof shall be a
registered Certificate Holder, all payments to it shall be made to the account
of such Certificate Holder specified in Schedule I thereto and otherwise in the
manner provided in or pursuant to the Participation Agreement unless it shall
have specified some other account or manner of payment by notice to the
Indenture Trustee consistent with this Section 2.04.
(b) The Indenture Trustee, as agent for the Owner Trustee,
shall exclude and withhold at the appropriate rate from each payment of
Principal Amount of, interest on, Make-Whole Amount, if any, and other amounts
due hereunder or under each Secured Certificate (and such exclusion and
withholding shall constitute payment in respect of such Secured Certificate) any
and all withholding taxes applicable thereto as required by Law. The Indenture
Trustee agrees to act as such withholding agent and, in connection therewith,
whenever any present or future United States taxes or similar charges are
required to be withheld with respect to any amounts payable hereunder or in
respect of the Secured Certificates, to withhold such amounts (and such
withholding shall constitute payment in respect of such Secured Certificate) and
timely pay the same to the appropriate authority in the name of and on behalf of
the Certificate Holders, that it will file any necessary United States
withholding tax returns or statements when due, and that as promptly as possible
after the payment thereof it will deliver to each Certificate Holder (with a
copy to the Owner Trustee and Lessee) appropriate receipts showing the payment
thereof, together with such additional documentary evidence as any such
Certificate Holder may reasonably request from time to time.
If a Certificate Holder which is not a U.S. Person within the
meaning of Section 7701(a)(30) of the Code has furnished to the Indenture
Trustee a properly completed (including the U.S. Taxpayer Identification Number
of the Certificate Holder) and currently effective U.S. Internal Revenue Service
Form W-8IMY (with appropriate attachments), W-8BEN or W-8ECI (or such successor
form or forms as may be required by the United States Treasury Department or
Internal Revenue Service) during the calendar year in which the payment
hereunder or under the Secured Certificate(s) held by such holder is made (but
prior to the making of such payment), or in either of the two preceding calendar
years, and has not notified the Indenture Trustee of the withdrawal or
inaccuracy of such form prior to the date of such payment (and the Indenture
Trustee has no reason to know that any information set forth in such form is
inaccurate), the Indenture Trustee shall withhold only the amount, if any,
required by Law (after taking into account any applicable exemptions claimed by
the Certificate Holder) to be withheld from payments hereunder or under the
Secured Certificates held by such holder in respect of United States federal
income tax (and such withholding shall constitute payment in respect of such
Secured Certificate). If a Certificate Holder which is a U.S. Person within the
meaning of Section 7701(a)(30) of the Code has furnished to the Indenture
Trustee a properly completed and
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currently effective U.S. Internal Revenue Service Form W-9 prior to a payment
hereunder or under the Secured Certificates held by such holder (or if such U.S.
Person is exempt from backup withholding), no amount shall be withheld from
payments in respect of United States federal income tax. If any Certificate
Holder has notified the Indenture Trustee that any of the foregoing forms or
certificates is withdrawn or inaccurate, or if such holder has not filed a form
claiming an exemption from United States withholding tax or if the Code or the
regulations thereunder or the administrative interpretation thereof are at any
time after the date hereof amended to require such withholding of United States
federal income taxes from payments under the Secured Certificates held by such
holder, the Indenture Trustee agrees to withhold from each payment due to the
relevant Certificate Holder withholding taxes at the appropriate rate under Law
and will, on a timely basis as more fully provided above, deposit such amounts
with an authorized depository and make such returns, statements, receipts and
other documentary evidence in connection therewith as required by applicable
law.
Neither the Owner Participant nor the Owner Trustee shall be
liable for the failure of the Indenture Trustee to withhold taxes in the manner
provided for herein or if any Certificate Holder provides false or inaccurate
information on any form required to be delivered under this Section 2.04.
SECTION 2.05. APPLICATION OF PAYMENTS.
In the case of each Secured Certificate, each payment of
Principal Amount, Make-Whole Amount, if any, and interest or other amounts due
thereon shall be applied:
FIRST: to the payment of accrued interest on such Secured
Certificate (as well as any interest on any overdue Principal Amount, any
overdue Make-Whole Amount, if any, and to the extent permitted by Law, any
overdue interest and any other overdue amounts thereunder) to the date of
such payment;
SECOND: to the payment of the Principal Amount of such Secured
Certificate (or a portion thereof) then due thereunder;
THIRD: to the payment of Make-Whole Amount, if any, and any
other amount due hereunder or under such Secured Certificate; and
FOURTH: the balance, if any, remaining thereafter, to the
payment of the Principal Amount of such Secured Certificate remaining
unpaid (provided that such Secured Certificate shall not be subject to
redemption except as provided in Sections 2.10, 2.11 and 2.12 hereof).
The amounts paid pursuant to clause "Fourth" above shall be applied to the
installments of Principal Amount of such Secured Certificate in the inverse
order of their normal maturity.
SECTION 2.06. TERMINATION OF INTEREST IN TRUST INDENTURE
ESTATE.
A Certificate 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, Make-Whole Amount, if any, and interest on and other
amounts due under all Secured Certificates held by
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such Certificate Holder and all other sums then payable to such Certificate
Holder hereunder and under the other Operative Documents by the Owner Trustee
(collectively, the "SECURED OBLIGATIONS") shall have been paid in full.
SECTION 2.07. REGISTRATION, TRANSFER AND EXCHANGE OF SECURED
CERTIFICATES.
The Indenture Trustee shall keep a register (the "SECURED
CERTIFICATE REGISTER") in which the Indenture Trustee shall provide for the
registration of Secured Certificates and the registration of transfers of
Secured Certificates. No such transfer shall be given effect unless and until
registration hereunder shall have occurred. The Secured Certificate Register
shall be kept at the Corporate Trust Office of the Indenture Trustee. The
Indenture Trustee is hereby appointed "Secured Certificate Registrar" for the
purpose of registering Secured Certificates and transfers of Secured
Certificates as herein provided. A holder of any Secured Certificate intending
to exchange such Secured Certificate shall surrender such Secured Certificate to
the Indenture Trustee at the Corporate Trust Office, together with a written
request from the registered holder thereof for the issuance of a new Secured
Certificate, specifying, in the case of a surrender for transfer, the name and
address of the new holder or holders. Upon surrender for registration of
transfer of any Secured Certificate, the Owner Trustee shall execute, and the
Indenture Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Secured Certificates of a like
aggregate Principal Amount and of the same series. At the option of the
Certificate Holder, Secured Certificates may be exchanged for other Secured
Certificates of any authorized denominations of a like aggregate Principal
Amount, upon surrender of the Secured Certificates to be exchanged to the
Indenture Trustee at the Corporate Trust Office. Whenever any Secured
Certificates are so surrendered for exchange, the Owner Trustee shall execute,
and the Indenture Trustee shall authenticate and deliver, the Secured
Certificates which the Certificate Holder making the exchange is entitled to
receive. All Secured Certificates issued upon any registration of transfer or
exchange of Secured Certificates (whether under this Section 2.07 or under
Section 2.08 hereof or otherwise under this Trust Indenture) shall be the valid
obligations of the Owner Trustee evidencing the same respective obligations, and
entitled to the same security and benefits under this Trust Indenture, as the
Secured Certificates surrendered upon such registration of transfer or exchange.
Every Secured Certificate presented or surrendered for registration of transfer,
shall (if so required by the Indenture Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by the Certificate Holder or such holder's
attorney duly authorized in writing, and the Indenture Trustee shall require
evidence satisfactory to it as to the compliance of any such transfer with the
Securities Act, and the securities Laws of any applicable state. The Indenture
Trustee shall make a notation on each new Secured Certificate of the amount of
all payments of Principal Amount previously made on the old Secured Certificate
or Secured Certificates with respect to which such new Secured Certificate is
issued and the date to which interest on such old Secured Certificate or Secured
Certificates has been paid. Interest shall be deemed to have been paid on such
new Secured Certificate to the date on which interest shall have been paid on
such old Secured Certificate, and all payments of the Principal Amount marked on
such new Secured Certificate, as provided above, shall be deemed to have been
made thereon. The Owner Trustee shall not be required to exchange any
surrendered Secured Certificates as provided above during the ten-day period
preceding the due date of any payment on such Secured Certificate. The Owner
Trustee shall in
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all cases deem the Person in whose name any Secured Certificate shall have been
issued and registered as the absolute owner and holder of such Secured
Certificate for the purpose of receiving payment of all amounts payable by the
Owner Trustee with respect to such Secured Certificate and for all purposes
until a notice stating otherwise is received from the Indenture Trustee and such
change is reflected on the Secured Certificate Register. The Indenture Trustee
will promptly notify the Owner Trustee, the Owner Participant and Lessee of each
registration of a transfer of a Secured Certificate. Any such transferee of a
Secured Certificate, by its acceptance of a Secured Certificate, agrees to the
provisions of the Participation Agreement applicable to Certificate Holders,
including Sections 6, 8(c), 8(e), 8(k), 8(l), 8(q), 8(r), 8(t), 8(cc), 10,
13(b), 13(c), 15(b) and 15(c), and shall be deemed to have represented and
warranted (except as provided above), and covenanted, to the parties to the
Participation Agreement as to the matters represented, warranted and covenanted
by the Purchasers in the Participation Agreement. Subject to compliance by the
Certificate Holder and its transferee (if any) of the requirements set forth in
this Section 2.07, the Indenture Trustee and the Owner Trustee shall use all
reasonable efforts to issue new Secured Certificates upon transfer or exchange
within 10 Business Days of the date a Secured Certificate is surrendered for
transfer or exchange.
SECTION 2.08. MUTILATED, DESTROYED, LOST OR STOLEN SECURED
CERTIFICATES.
If any Secured Certificate shall become mutilated, destroyed,
lost or stolen, the Owner Trustee shall, upon the written request of the holder
of such Secured Certificate, execute and the Indenture Trustee shall
authenticate and deliver in replacement thereof a new Secured Certificate,
payable in the same Principal Amount dated the same date and captioned as issued
in connection with the Aircraft. If the Secured Certificate being replaced has
become mutilated, such Secured Certificate shall be surrendered to the Indenture
Trustee and a photocopy thereof shall be furnished to the Owner Trustee. If the
Secured Certificate being replaced has been destroyed, lost or stolen, the
holder of such Secured Certificate shall furnish to the Owner Trustee, the Owner
Participant and the Indenture Trustee such security or indemnity as may be
required by them to save the Owner Trustee, the Owner Participant and the
Indenture Trustee harmless and evidence satisfactory to the Owner Trustee, the
Owner Participant and the Indenture Trustee of the destruction, loss or theft of
such Secured Certificate and of the ownership thereof. If a "qualified
institutional buyer" of the type referred to in paragraph (a)(l)(i)(A), (B), (D)
or (E) of Rule 144A under the Securities Act (a "QIB") is the holder of any such
destroyed, lost or stolen Secured Certificate, then the written indemnity of
such QIB, signed by an authorized officer thereof, in favor of, delivered to and
in form reasonably satisfactory to Lessee, the Owner Participant, the Owner
Trustee and the Indenture Trustee shall be accepted as satisfactory indemnity
and security and no further indemnity or security shall be required as a
condition to the execution and delivery of such new Secured Certificate. Subject
to compliance by the Certificate Holder of the requirements set forth in this
Section 2.08, the Indenture Trustee and the Owner Trustee shall use all
reasonable efforts to issue new Secured Certificates within 10 Business Days of
the date of the written request therefor from the Certificate Holder.
SECTION 2.09. PAYMENT OF EXPENSES ON TRANSFER; CANCELLATION.
(a) No service charge shall be made to a Certificate Holder
for any registration of transfer or exchange of Secured Certificates, but the
Indenture Trustee, as Secured Certificate Registrar, may require payment of a
sum sufficient to cover any tax or other
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governmental charge that may be imposed in connection with any registration of
transfer or exchange of Secured Certificates.
(b) The Indenture Trustee shall cancel all Secured
Certificates surrendered for replacement, redemption, transfer, exchange,
payment or cancellation and shall destroy the canceled Secured Certificates.
SECTION 2.10. MANDATORY REDEMPTIONS OF SECURED CERTIFICATES.
(a) On the date on which Lessee is required pursuant to
Section 10(a)(i) of the Lease to make payment for an Event of Loss with respect
to the Aircraft, all of the Secured Certificates shall be redeemed in whole at a
redemption price equal to 100% of the unpaid Principal Amount thereof, together
with all accrued interest thereon to the date of redemption and all other
amounts payable hereunder or under the Participation Agreement to the
Certificate Holders but without Make-Whole Amount.
(b) If the Lease is terminated with respect to the Aircraft
by Lessee pursuant to Section 9 or Section 19(d) thereof and Lessee shall not
have assumed all of the obligations of the Owner Trustee hereunder pursuant
to Section 2.13 and to Section 8(x) of the Participation Agreement, on the
date the Lease is so terminated all the Secured Certificates shall be
redeemed in whole at a redemption price equal to 100% of the unpaid Principal
Amount thereof, together with accrued interest thereon to the date of
redemption and all other amounts payable hereunder or under the Participation
Agreement to the Certificate Holders plus Make-Whole Amount, if any.
SECTION 2.11. VOLUNTARY REDEMPTIONS OF SECURED CERTIFICATES.
Any or all of the Secured Certificates may be redeemed by the
Owner Trustee in connection with a transaction described in, and subject to the
terms and conditions of, Section 17 of the Participation Agreement upon at least
30 days' revocable prior written notice to the Indenture Trustee and the
Certificate Holders, and the Secured Certificates shall, as provided in Section
17 of the Participation Agreement, be redeemed in whole at a redemption price
equal to 100% of the unpaid Principal Amount thereof, together with accrued
interest thereon to the date of redemption and all other amounts payable
hereunder or under the Participation Agreement to the Certificate Holders plus
Make-Whole Amount, if any.
SECTION 2.12. REDEMPTIONS; NOTICE OF REDEMPTION.
(a) Neither any redemption of any Secured Certificate nor any
purchase by the Owner Trustee of any Secured Certificate may be made except to
the extent and in the manner expressly permitted by this Trust Indenture. No
purchase of any Secured Certificate may be made by the Indenture Trustee.
(b) Notice of redemption or purchase with respect to the
Secured Certificates shall be given by the Indenture Trustee by first-class
mail, postage prepaid, mailed not less than 15 nor more than 60 days prior to
the applicable redemption date, to each Certificate Holder of such Secured
Certificates to be redeemed or purchased, at such Certificate Holder's address
appearing in the Secured Certificate Register; PROVIDED that, in the case of a
redemption to be
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made pursuant to Section 2.10(b) or Section 2.11, such notice shall be revocable
and shall be deemed revoked in the event that the Lease does not in fact
terminate on the specified termination date or if notice of such redemption
shall have been given in connection with a refinancing of Secured Certificates
and the Indenture Trustee receives written notice of such revocation from Lessee
or the Owner Trustee not later than three days prior to the redemption date. All
notices of redemption shall state: (1) the redemption date, (2) the applicable
basis for determining the redemption price, (3) that on the redemption date, the
redemption price will become due and payable upon each such Secured Certificate,
and that, if any such Secured Certificates are then outstanding, interest on
such Secured Certificates shall cease to accrue on and after such redemption
date, and (4) the place or places where such Secured Certificates are to be
surrendered for payment of the redemption price.
(c) On or before the redemption date, the Owner Trustee (or
any person on behalf of the Owner Trustee) shall, to the extent an amount equal
to the redemption price for the Secured Certificates to be redeemed or purchased
on the redemption date shall not then be held in the Trust Indenture Estate,
deposit or cause to be deposited with the Indenture Trustee by 12:00 noon on the
redemption date in immediately available funds the redemption price of the
Secured Certificates to be redeemed or purchased.
(d) Notice of redemption or purchase having been given as
aforesaid (and not deemed revoked as contemplated in the proviso to Section
2.12(b)), the Secured Certificates to be redeemed or purchased shall, on the
redemption date, become due and payable at the Corporate Trust Office of the
Indenture Trustee or at any office or agency maintained for such purposes
pursuant to Section 2.07, and from and after such redemption date (unless there
shall be a default in the payment of the redemption price) any such Secured
Certificates then outstanding shall cease to bear interest. Upon surrender of
any such Secured Certificate for redemption or purchase in accordance with said
notice, such Secured Certificate shall be redeemed at the redemption price. If
any Secured Certificate called for redemption or purchase shall not be so paid
upon surrender thereof for redemption, the principal amount thereof shall, until
paid, continue to bear interest from the applicable redemption date at the
interest rate in effect for such Secured Certificate as of such redemption date.
SECTION 2.13. ASSUMPTION OF SECURED CERTIFICATES BY LESSEE.
If, in accordance with Section 8(x) of the Participation
Agreement, and subject to the provisions of Section 8(o) thereof, Lessee
shall assume (on a full recourse basis) all of the obligations of the Owner
Trustee hereunder, under the Secured Certificates and all other Operative
Documents by supplemental indenture satisfactory to the Indenture Trustee
(which shall contain (i) the provisions substantially similar to Sections 6,
7, 8, 10, 11 and 12 of the Lease and (ii) other provisions necessary or
advisable to effectuate such assumption), then upon delivery of such
supplemental indenture, payment by Lessee of all expenses (including
reasonable fees and expenses of counsel) for the Owner Trustee and the Owner
Participant, delivery by the Guarantor of a guarantee of the Secured
Certificates and other amounts owing to the Certificate Holders substantially
in the form of the Guarantee, and delivery of an opinion of counsel for
Lessee that such assumption has been duly and validly effected, the Owner
Trustee shall be released and discharged from any further obligations
hereunder and under the Secured Certificates and all other Operative
Documents and the Owner Participant shall be released and
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discharged from any further obligations under the Participation Agreement and
any other Operative Document to which it is a party, except with respect to
any such obligations that accrued prior thereto.
SECTION 2.14. OPTION TO PURCHASE SECURED CERTIFICATES.
Either the Owner Trustee or the Owner Participant may, upon
the events and subject to the terms and conditions and for the price set forth
in this Section 2.14, purchase all but not less than all of the Secured
Certificates outstanding hereunder, and each Certificate Holder agrees that it
will, upon such events and subject to such terms and conditions and upon receipt
of such price, sell, assign, transfer and convey to such purchaser or its
nominee (without recourse or warranty of any kind except as to its title to the
Secured Certificates and except against Liens on such Secured Certificates
arising by, through or under such holder), all of the right, title and interest
of such Certificate Holder in and to the Trust Indenture Estate, this Trust
Indenture and the Secured Certificates held by it, and such purchaser or its
nominee shall assume all of such holder's obligations under the Participation
Agreement and hereunder.
Such option to purchase the Secured Certificates may be
exercised by the Owner Trustee or the Owner Participant upon any of the
following events, and, in any such event, the purchase price thereof shall equal
for each Secured Certificate the aggregate unpaid Principal Amount thereof, plus
accrued and unpaid interest thereon to the date of purchase and all other
amounts (other than the Make-Whole Amount, except as provided in the next
sentence) then payable hereunder or under the Participation Agreement to the
holder thereof. Such option to purchase the Secured Certificates may be
exercised: (i) upon an Indenture Trustee Event or (ii) in the event there shall
have occurred and be continuing a Lease Event of Default, provided that if such
option is exercised pursuant to this clause (ii) at a time when there shall have
occurred and be continuing for less than 180 days a Lease Event of Default, the
purchase price thereof shall equal the price provided in the preceding sentence
plus the Make-Whole Amount, if any.
Such option to purchase the Secured Certificates may be
exercised by the Owner Trustee or the Owner Participant giving written notice of
its election of such option to the Indenture Trustee, which notice shall specify
a date for such purchase not more than thirty (30) days or less than fifteen
(15) days after the date of such notice. The Indenture Trustee shall not
exercise any of the remedies hereunder or, without the consent of the Owner
Trustee or the Owner Participant, under the Lease, during the period from the
time that a notice of exercise by the Owner Participant of such option to
purchase becomes irrevocable until the date on which such purchase is required
to occur pursuant to the terms of the preceding sentence. Such election to
purchase the Secured Certificates shall become irrevocable upon the sixteenth
day preceding the date specified in the written notice described in the first
sentence of this paragraph.
If the Owner Trustee or the Owner Participant on or before the
date of such purchase shall so request, the Certificate Holders will comply with
all the provisions of Section 2.07 to enable new Secured Certificates to be
issued to the Owner Trustee or the Owner Participant or its nominee in such
denominations as the Owner Trustee or the Owner Participant shall request. All
taxes, charges and expenses required pursuant to Section 2.09 in connection with
the issuance of such new Secured Certificate shall be borne by the Owner
Participant.
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SECTION 2.15. SUBORDINATION.
(a) The Owner Trustee and, by acceptance of its Secured
Certificates of any Series, each Certificate 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 Section 4.02(g) hereof, except as
expressly provided in Article III hereof.
(b) By the acceptance of its Secured Certificates of any
Series, each Certificate Holder of such Series agrees that in the event that
such Certificate Holder, in its capacity as a Certificate Holder, shall receive
any payment or distribution on any Secured Obligations in respect of such Series
which it is not entitled to receive under this Section 2.15 or Article III
hereof, it will hold any amount so received in trust for, and will forthwith
turn over such payment to, the Indenture Trustee in the form received to be
applied as provided in Article III hereof.
(c) The indebtedness evidenced by the Series A-1 Secured
Certificates and Series A-2 Secured Certificates shall rank in right of payment
equally with all other Series A-1 Secured Certificates and Series A-2 Secured
Certificates. The indebtedness evidenced by the Series B Secured Certificates
is, to the extent and in the manner provided in this Trust Indenture,
subordinate and subject in right of payment to the prior payment in full of the
Secured Obligations in respect of the Series A-1 Secured Certificates and Series
A-2 Secured Certificates, and the Series B Secured Certificates are issued
subject to such provisions. The indebtedness evidenced by the Series C Secured
Certificates is, to the extent and in the manner provided in this Trust
Indenture, subordinate and subject in right of payment to the prior payment in
full of the Secured Obligations in respect of the Series A-1 Secured
Certificates, the Series A-2 Secured Certificates and the Series B Secured
Certificates, and the Series C Secured Certificates are issued subject to such
provisions. [The indebtedness evidenced by the Series D Secured Certificates is,
to the extent and in the manner provided in this Trust Indenture, subordinate
and subject in right of payment to the prior payment in full of the Secured
Obligations in respect of the Series A-1 Secured Certificates, the Series A-2
Secured Certificates, the Series B Secured Certificates and the Secured C
Secured Certificates, and the Series D Secured Certificates are issued subject
to such provisions. -- option for A319's and 757's] By acceptance of its Secured
Certificates of any Series, each Certificate Holder of such Series (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs the Indenture
Trustee on such Certificate Holder's behalf to take any action necessary or
appropriate to effectuate the subordination as provided in this Trust Indenture
and (c) appoints the Indenture Trustee as such Certificate Holder's
attorney-in-fact for such purpose.
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ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST INDENTURE ESTATE
SECTION 3.01. BASIC RENT DISTRIBUTION.
Except as otherwise provided in Section 3.03 hereof, each
installment of Basic Rent, any payment of interest on overdue installments of
Basic Rent and any payment received by the Indenture Trustee pursuant to Section
4.03 hereof 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-1 Secured Certificates and Series A-2
Secured Certificates shall be distributed to the
Certificate Holders of Series A-1 and A-2 ratably,
without priority of one over the other, in the
proportion that the amount of such payment or
payments then due under all Series A-1 Secured
Certificates and Series A-2 Secured Certificates
held by each Certificate Holder bears to the
aggregate amount of the payments then due under all
Series A-1 Secured Certificates and Series A-2
Secured Certificates;
(ii) after giving effect to paragraph (i) above, so much
of such installment or payment remaining as shall be
required to pay in full the aggregate amount of the
payment or payments of Principal Amount and interest
and other amounts (as well as any interest on any
overdue Principal Amount and, to the extent permitted
by applicable law, on any overdue interest and any
other overdue amounts) then due under all Series B
Secured Certificates shall be distributed to the
Certificate Holders of Series B ratably, without
priority of one over the other, in the proportion
that the amount of such payment or payments then due
under all Series B Secured Certificates held by each
Certificate Holder bears to the aggregate amount of
the payments then due under all Series B Secured
Certificates; [and]
(iii) after giving effect to paragraph (ii) above, so much
of such installment or payment remaining as shall be
required to pay in full the aggregate amount of the
payment or payments of Principal Amount and interest
and other amounts (as well as any interest on any
overdue Principal Amount and, to the extent permitted
by applicable law, on any overdue interest and any
other overdue amounts) then due under all Series C
Secured Certificates shall be distributed to the
Certificate Holders of Series C ratably, without
priority of one over the other, in the proportion
that the amount of such payment or payments then due
under all Series C Secured Certificates held
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by each Certificate Holder bears to the aggregate
amount of the payments then due under all Series C
Secured Certificates[.] [; and]
[(iv) after giving effect to paragraph (iii) above, so much
of such installment or payment remaining as shall be
required to pay in full the aggregate amount of the
payment or payments of Principal Amount and interest
and other amounts (as well as any interest on any
overdue Principal Amount and, to the extent permitted
by applicable law, on any overdue interest and any
other overdue amounts) then due under all Series D
Secured Certificates shall be distributed to the
Certificate Holders of Series D ratably, without
priority of one over the other, in the proportion
that the amount of such payment or payments then due
under all Series D Secured Certificates held by each
Certificate Holder bears to the aggregate amount of
the payments then due under all Series D Secured
Certificates.-- option for A319's and 757's]
SECOND, the balance, if any, of such installment remaining thereafter
shall be distributed to the Owner Trustee; PROVIDED, HOWEVER,
that if an Event of Default shall have occurred and be
continuing, then such balance shall not be distributed as
provided in this clause "Second" but shall be held by the
Indenture Trustee as part of the Trust Indenture Estate and
invested in accordance with Section 5.09 hereof until
whichever of the following shall first occur: (i) all Events
of Default shall have been cured or waived, in which event
such balance shall be distributed as provided in this clause
"Second" without reference to this proviso, (ii) Section 3.03
hereof shall be applicable, in which event such balance shall
be distributed in accordance with the provisions of such
Section 3.03, or (iii) the 120th day after the receipt of such
payment in which case such payment shall be distributed as
provided in this clause "Second" without reference to this
proviso.
SECTION 3.02. EVENT OF LOSS; REPLACEMENT; VOLUNTARY
TERMINATION; REFINANCING.
Except as otherwise provided in Section 3.03 hereof, any
payments received by the Indenture Trustee (i) with respect to the Aircraft as
the result of an Event of Loss, (ii) pursuant to a voluntary termination of the
Lease pursuant to Section 9 or 19(d) thereof, or (iii) in connection with a
refinancing of the Secured Certificates pursuant to Section 17 of the
Participation Agreement shall be applied to redemption of the Secured
Certificates and to all other amounts payable hereunder or to the Indenture
Trustee or any Certificate Holder under the Participation Agreement by applying
such funds in the following order of priority:
FIRST, (a) to reimburse the Indenture Trustee and the Certificate
Holders for any reasonable costs or expenses incurred in
connection with such redemption for which they are entitled to
reimbursement, or indemnity by Lessee, under the Operative
Documents and then (b) to pay any other amounts then due to
the Indenture Trustee and the Certificate Holders under this
Trust Indenture, the Participation Agreement or the Secured
Certificates (other than amounts specified in clause Second
below);
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SECOND, (i) to pay the amounts specified in paragraph (i) of
clause "Third" of Section 3.03 hereof plus Make-Whole
Amount, if any, then due and payable in respect of the
Series A-1 Secured Certificates and the Series A-2
Secured Certificates;
(ii) after giving effect to paragraph (i) above, to pay
the amounts specified in paragraph (ii) of clause
"Third" of Section 3.03 hereof plus Make-Whole
Amount, if any, then due and payable in respect of
the Series B Secured Certificates; and
(iii) after giving effect to paragraph (ii) above, to pay
the amounts specified in paragraph (iii) of clause
"Third" of Section 3.03 hereof plus Make-Whole
Amount, if any, then due and payable in respect of
the Series C Secured Certificates[.] [; and]
[(iv) after giving effect to paragraph (iii) above, to pay
the amounts specified in paragraph (iv) of clause
"Third" of Section 3.03 hereof plus Make-Whole
Amount, if any, then due and payable in respect of
the Series D Secured Certificates. -- option for
A319's and 757's]
THIRD, as provided in clause "Fourth" of Section 3.03 hereof;
PROVIDED, HOWEVER, that if a Replacement Airframe or Replacement Engine shall be
substituted for the Airframe or Engine subject to such Event of Loss as provided
in Section 10 of the Lease and in accordance with Section 5.06 hereof, any
insurance, condemnation or similar proceeds which result from such Event of Loss
and are paid over to the Indenture Trustee shall be held by the Indenture
Trustee as permitted by Section 6.04 hereof (provided that such moneys shall be
invested as provided in Section 5.09 hereof) as additional security for the
obligations of Lessee under the Lessee Operative Documents and, unless otherwise
applied pursuant to the Lease, such proceeds (and such investment earnings)
shall be released to Lessee at Lessee's written request upon the release of such
damaged Airframe or Engine and the replacement thereof as provided in the Lease.
SECTION 3.03. PAYMENTS AFTER EVENT OF DEFAULT.
Except as otherwise provided in Section 3.04 hereof, all
payments received and amounts held or realized by the Indenture Trustee
(including any amounts realized by the Indenture Trustee from the exercise of
any remedies pursuant to Section 15 of the Lease or Article IV hereof) after
both an Event of Default shall have occurred and be continuing and the Secured
Certificates shall have become due and payable pursuant to Section 4.04(b)
hereof, as well as all payments or amounts then held by the Indenture Trustee as
part of the Trust Indenture Estate, shall be promptly distributed by the
Indenture Trustee in the following order of priority:
FIRST, so much of such payments or amounts as shall be required to
reimburse the Indenture Trustee for any tax, expense or other
loss (including, without limitation, all amounts to be
expended at the expense of, or charged upon the tolls, rents,
revenues, issues, products and profits of, the property
included in the Trust Indenture Estate (all such property
being herein called the "MORTGAGED
-33-
PROPERTY") pursuant to Section 4.05(b) hereof) incurred by the
Indenture Trustee (to the extent not previously reimbursed),
the expenses of any sale, taking or other proceeding,
reasonable attorneys' fees and expenses, court costs, and any
other expenditures incurred or expenditures or advances made
by the Indenture Trustee or the Certificate Holders in the
protection, exercise or enforcement of any right, power or
remedy or any damages sustained by the Indenture Trustee or
any Certificate Holder, liquidated or otherwise, upon such
Event of Default shall be applied by the Indenture Trustee as
between itself and the Certificate Holders in reimbursement of
such expenses and any other expenses for which the Indenture
Trustee or the Certificate Holders are entitled to
reimbursement under any Operative Document and in the case the
aggregate amount to be so distributed is insufficient to pay
as aforesaid, then ratably, without priority of one over the
other, in proportion to the amounts owed each hereunder;
SECOND, so much of such payments or amounts remaining as shall be
required to reimburse the then existing or prior Certificate
Holders for payments made pursuant to Section 5.03 hereof (to
the extent not previously reimbursed) shall be distributed to
such then existing or prior Certificate Holders ratably,
without priority of one over the other, in accordance with the
amount of the payment or payments made by each such then
existing or prior Certificate Holder pursuant to said Section
5.03 hereof;
THIRD, (i) so much of such payments or amounts remaining as
shall be required to pay in full the aggregate unpaid
Principal Amount of all Series A-1 Secured
Certificates and Series A-2 Secured Certificates, and
the accrued but unpaid interest and other amounts due
thereon and all other Secured Obligations in respect
of the Series A-1 Secured Certificates and the Series
A-2 Secured Certificates to the date of distribution,
shall be distributed to the Certificate Holders of
Series A-1 and Series A-2, 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-1 Secured Certificates and all Series A-2
Secured Certificates held by each Certificate Holder
plus the accrued but unpaid interest and other
amounts due hereunder or thereunder to the date of
distribution, bears to the aggregate unpaid Principal
Amount of all Series A-1 Secured Certificates and
Series A-2 Secured Certificates plus the accrued but
unpaid interest and other amounts due thereon to the
date of distribution;
(ii) after giving effect to paragraph (i) above, so much
of such payments or amounts remaining as shall be
required to pay in full the aggregate unpaid
Principal Amount of all Series B Secured
Certificates, and the accrued but unpaid interest and
other amounts due thereon and all other Secured
Obligations in respect of the Series B Secured
Certificates to the date of distribution, shall be
distributed to the Certificate Holders of Series B,
and in case the aggregate amount so to be distributed
shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other,
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in the proportion that the aggregate unpaid Principal
Amount of all Series B Secured Certificates held by
each Certificate Holder plus the accrued but unpaid
interest and other amounts due hereunder or
thereunder to the date of distribution, bears to the
aggregate unpaid Principal Amount of all Series B
Secured Certificates plus the accrued but unpaid
interest and other amounts due thereon to the date of
distribution;
(iii) after giving effect to paragraph (ii) above, so much
of such payments or amounts remaining as shall be
required to pay in full the aggregate unpaid
Principal Amount of all Series C Secured
Certificates, and the accrued but unpaid interest and
other amounts due thereon and all other Secured
Obligations in respect of the Series C Secured
Certificates to the date of distribution, shall be
distributed to the Certificate Holders of Series C,
and in case the aggregate amount so to be distributed
shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other,
in the proportion that the aggregate unpaid Principal
Amount of all Series C Secured Certificates held by
each Certificate Holder plus the accrued but unpaid
interest and other amounts due hereunder or
thereunder to the date of distribution, bears to the
aggregate unpaid Principal Amount of all Series C
Secured Certificates plus the accrued but unpaid
interest and other amounts due thereon to the date of
distribution; [and]
[(iv) after giving effect to paragraph (iii) above, so much
of such payments or amounts remaining as shall be
required to pay in full the aggregate unpaid
Principal Amount of all Series D Secured
Certificates, and the accrued but unpaid interest and
other amounts due thereon and all other Secured
Obligations in respect of the Series D Secured
Certificates to the date of distribution, shall be
distributed to the Certificate Holders of Series D,
and in case the aggregate amount so to be distributed
shall be insufficient to pay in full as aforesaid,
then ratably, without priority of one over the other,
in the proportion that the aggregate unpaid Principal
Amount of all Series D Secured Certificates held by
each Certificate Holder plus the accrued but unpaid
interest and other amounts due hereunder or
thereunder to the date of distribution, bears to the
aggregate unpaid Principal Amount of all Series D
Secured Certificates plus the accrued but unpaid
interest and other amounts due thereon to the date of
distribution. -- option for A319's and 757's]
FOURTH, the balance, if any, of such payments or amounts remaining
thereafter shall be distributed to the Owner Trustee.
No Make-Whole Amount shall be due and payable on the Secured
Certificates as a consequence of the acceleration of the Secured Certificates.
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SECTION 3.04. CERTAIN PAYMENTS.
(a) Any payments received by the Indenture Trustee for which
no provision as to the application thereof is made in this Trust Indenture and
for which such provision is made in the Lease, the Participation Agreement or
any other Operative Document shall be applied forthwith to the purpose for which
such payment was made in accordance with the terms of the Lease, the
Participation Agreement or such other Operative Document, as the case may be.
(b) The Indenture Trustee will distribute promptly upon
receipt any indemnity payment received by it from the Owner Trustee or Lessee in
respect of the Indenture Trustee in its individual capacity, any Certificate
Holder or any other Indenture Indemnitee, in each case whether pursuant to
Section 7 of the Participation Agreement or as Supplemental Rent, directly to
the Person entitled thereto. Any payment received by the Indenture Trustee under
clause (b) of the third paragraph of Section 2.02 shall be distributed to the
Subordination Agent to be distributed in accordance with the terms of the
Intercreditor Agreement, and any payment received by the Indenture Trustee under
clause (c) of the third paragraph of Section 2.02 shall be distributed directly
to the Persons entitled thereto.
(c) [Intentionally Omitted]
(d) Notwithstanding anything to the contained in this
Article III, any amounts received by the Indenture Trustee which constitute
Excluded Payments shall be distributed promptly upon receipt by the Indenture
Trustee directly to the Person or Persons entitled thereto.
(e) Notwithstanding any provision of this Trust Indenture to
the contrary, any amounts held by the Indenture Trustee that would, but for the
provisions of Section 3.03 hereof, otherwise be distributed to Lessee shall,
notwithstanding the provisions of said Section, be distributed to Lessee unless
and until a Lease Event of Default shall have occurred and be continuing.
SECTION 3.05. OTHER PAYMENTS.
Any payments received by the Indenture Trustee for which no
provision as to the application thereof is made in the Lease, the Participation
Agreement, elsewhere in this Trust Indenture or in any other Operative Document
shall be distributed by the Indenture Trustee to the extent received or realized
at any time (i) prior to the payment in full of all Secured Obligations due the
Certificate Holders, in the order of priority specified in Section 3.01 hereof
subject to the proviso thereto, and (ii) after payment in full of all Secured
Obligations due the Certificate Holders, in the following order of priority:
FIRST, to the extent payments or amounts described in clause "First"
of Section 3.03 hereof are otherwise obligations of Lessee
under the Operative Documents or for which Lessee is obligated
to indemnify against thereunder, in the manner provided in
clause "First" of Section 3.03 hereof, and
SECOND, in the manner provided in clause "Fourth" of Section 3.03
hereof.
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Further, and except as otherwise provided in Sections 3.02,
3.03 and 3.04 hereof, all payments received and amounts
realized by the Indenture Trustee under the Lease or otherwise
with respect to the Aircraft (including, without limitation,
all amounts realized upon the sale or release of the Aircraft
after the termination of the Lease with respect thereto), to
the extent received or realized at any time after payment in
full of all Secured Obligations due the Certificate Holders,
shall be distributed by the Indenture Trustee in the order of
priority specified in clause (ii) of the immediately preceding
sentence of this Section 3.05.
SECTION 3.06. PAYMENTS TO THE OWNER TRUSTEE.
Any amounts distributed hereunder by the Indenture Trustee to
the Owner Trustee shall be paid to the Owner Trustee (within the time limits
contemplated by Section 2.04(a)) by wire transfer of funds of the type received
by the Indenture Trustee at such office and to such account or accounts of such
entity or entities as shall be designated by notice from the Owner Trustee to
the Indenture Trustee from time to time. The Owner Trustee hereby notifies the
Indenture Trustee that unless and until the Indenture Trustee receives notice to
the contrary from the Owner Trustee, all amounts to be distributed to the Owner
Trustee pursuant to clause "Second" of Section 3.01 hereof shall be distributed
by wire transfer of funds of the type received by the Indenture Trustee to the
Owner Participant's account (within the time limits contemplated by Section
2.04(a)) specified in Schedule I to the Participation Agreement.
SECTION 3.07. APPLICATION OF PAYMENTS UNDER GUARANTEE.
All payments received by the Indenture Trustee pursuant to the
Guarantee shall be distributed forthwith by the Indenture Trustee in the same
order of priority, and in the same manner, as it would have distributed the
payment in respect of which such payment under the Guarantee was received.
ARTICLE IV
COVENANTS OF THE OWNER TRUSTEE; EVENTS OF
DEFAULT; REMEDIES OF INDENTURE TRUSTEE
SECTION 4.01. COVENANTS OF THE OWNER TRUSTEE.
The Owner Trustee hereby covenants and agrees (the covenants
and agreements only in clause (b) below being made by the Owner Trustee in its
individual capacity) as follows:
(a) the Owner Trustee will duly and punctually pay
the Principal Amount of, Make-Whole Amount, if any, and
interest on and other amounts due under the Secured
Certificates and hereunder in accordance with the terms of the
Secured Certificates and this Trust Indenture and all amounts,
if any, payable by it to the Certificate Holders under the
Participation Agreement;
(b) the Owner Trustee in its individual capacity
covenants and agrees that it shall not, directly or
indirectly, cause or permit to exist a Lessor Lien
-37-
attributable to it in its individual capacity with respect to
the Aircraft or any other portion of the Trust Estate; that it
will promptly, at its own expense, take such action as may be
necessary to duly discharge such Lessor Lien attributable to
it in its individual capacity; and that it will make
restitution to the Trust Estate for any actual diminution of
the assets of the Trust Estate resulting from such Lessor
Liens attributable to it in its individual capacity;
(c) in the event the Owner Trustee shall have Actual
Knowledge of an Event of Default, a Default or an Event of
Loss, the Owner Trustee will give prompt written notice of
such Event of Default, Default or Event of Loss to the
Indenture Trustee, each Certificate Holder, Lessee and the
Owner Participant;
(d) the Owner Trustee will furnish to the Indenture
Trustee, promptly upon receipt thereof, duplicates or copies
of all reports, notices, requests, demands, certificates and
other instruments furnished to the Owner Trustee under the
Lease, including, without limitation, a copy of any
Termination Notice and a copy of each report or notice
received pursuant to Section 9(a) and 11(c) of the Lease to
the extent that the same shall not have been furnished to the
Indenture Trustee pursuant to the Lease;
(e) except pursuant to the Operative Documents or
with the consent of the Indenture Trustee (acting pursuant to
instructions given in accordance with Section 9.01 hereof),
the Owner Trustee will not contract for, create, incur, assume
or suffer to exist any Debt, and will not guarantee (directly
or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or
capability of so doing, or otherwise), endorse or otherwise be
or become contingently liable, directly or indirectly, in
connection with the Debt of any other person; and
(f) the Owner Trustee will not enter into any
business or other activity other than the business of owning
the Aircraft, the leasing thereof to Lessee and the carrying
out of the transactions contemplated hereby and by the Lease,
the Participation Agreement, the Trust Agreement and the other
Operative Documents.
SECTION 4.02. EVENT OF DEFAULT.
"EVENT OF DEFAULT" means any of the following events (whatever
the reason for such Event of Default and whether such event shall be voluntary
or involuntary or come about or be effected by operation of Law or pursuant to
or in compliance with any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(a) any Lease Event of Default; or
(b) the failure of the Owner Trustee to pay when due any
payment of Principal Amount of, interest on, Make-Whole Amount, if any, or other
amount due and payable under any Secured Certificate or hereunder (other than
any such failure arising by virtue of a tax withheld pursuant to Section 2.04(b)
hereof or as a result of a Lease Event of Default or a Lease
-38-
Default) and such failure shall have continued unremedied for ten (10) Business
Days in the case of any payment of Principal Amount or interest or Make-Whole
Amount, if any, thereon and, in the case of any other amount, for ten (10)
Business Days after the Owner Trustee or the Owner Participant receives written
demand from the Indenture Trustee or any Certificate Holder; or
(c) any Lien required to be discharged by the Owner Trustee,
in its individual capacity pursuant to Section 4.01(b) hereof or in its
individual or trust capacity pursuant to Section 8(h) of the Participation
Agreement, or by the Owner Participant pursuant to Section 8(h) of the
Participation Agreement shall remain undischarged for a period of thirty (30)
days after the Owner Trustee and the Owner Participant shall have received
written notice from the Indenture Trustee or any Certificate Holder of such
Lien; or
(d) any representation or warranty made by the Owner
Participant or the Owner Trustee herein, in the Participation Agreement or in
any document or certificate furnished by the Owner Participant or the Owner
Trustee to the Indenture Trustee or any Certificate Holder in connection with
the transactions contemplated by the Operative Documents shall prove to have
been false or incorrect when made in any material respect and continues to be
material and adverse to the interests of the Indenture Trustee or the
Certificate Holders; and if such misrepresentation is capable of being corrected
and if such correction is being sought diligently, such misrepresentation shall
not have been corrected within sixty (60) days (or, without affecting Section
4.02(f) hereof, in the case of the representations made in Section 8(c) of the
Participation Agreement as to the citizenship of the Owner Trustee in its
individual capacity or of the Owner Participant, respectively, as soon as is
reasonably practicable but in any event within sixty (60) days) following notice
thereof from the Indenture Trustee or any Certificate Holder to the Owner
Trustee or the Owner Participant, as the case may be; or
(e) other than as provided in (c) above or (f) below, any
failure by the Owner Trustee or Owner Participant to observe or perform any
other covenant or obligation of the Owner Trustee or Owner Participant, as the
case may be, for the benefit of the Indenture Trustee or the Certificate Holders
contained in the Participation Agreement, Section 4.01(a) of the Trust
Agreement, the Secured Certificates or this Trust Indenture which is not
remedied within a period of sixty (60) days after notice thereof has been given
to the Owner Trustee and the Owner Participant; or
(f) if at any time when the Aircraft is registered under
the laws of the United States, the Owner Participant shall not be a Citizen of
the United States, and as the result thereof the registration of the Aircraft
under the Federal Aviation Act, and regulations then applicable thereunder,
shall cease to be effective; provided that no Event of Default shall be deemed
to have occurred under this paragraph (f) unless such circumstances continue
unremedied for more than sixty (60) days after the Owner Participant has Actual
Knowledge of the state of facts that resulted in such ineffectiveness and of
such loss of citizenship; or
(g) at any time either (i) the commencement of an involuntary
case or other proceeding in respect of the Owner Participant, the Owner Trustee
or the Trust Estate in an involuntary case under the federal bankruptcy laws, as
now or hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law in the United States or seeking the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or
-39-
similar official) of the Owner Participant, the Owner Trustee or the Trust
Estate or for all or substantially all of its property, or seeking the
winding-up or liquidation of its affairs and the continuation of any such case
or other proceeding undismissed and unstayed for a period of ninety (90)
consecutive days; or (ii) the commencement by the Owner Participant, the Owner
Trustee or the Trust Estate of a voluntary case or proceeding under the federal
bankruptcy laws, as now constituted or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency or other similar law in the
United States, or the consent by the Owner Participant, the Owner Trustee or the
Trust Estate to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) of the Owner Participant, the Owner Trustee or the Trust Estate or for
all or substantially all of its property, or the making by the Owner
Participant, the Owner Trustee or the Trust Estate of any assignment for the
benefit of creditors or the Owner Participant or the Owner Trustee shall take
any action to authorize any of the foregoing; PROVIDED, HOWEVER, that an event
referred to in this Section 4.02(g) with respect to the Owner Participant shall
not constitute an Event of Default if within thirty (30) days of the
commencement of the case or proceeding a final non-appealable order, judgment or
decree shall be entered in such case or proceeding by a court or a trustee,
custodian, receiver or liquidator, to the effect that, no part of the Trust
Estate (except for the Owner Participant's beneficial interest therein) and no
right, title or interest under the Trust Indenture Estate shall be included in,
or be subject to, any declaration or adjudication of, or proceedings with
respect to, the bankruptcy, insolvency or liquidation of the Owner Participant
referred to in this Section 4.02(g).
SECTION 4.03. CERTAIN RIGHTS.
The Indenture Trustee shall give the Certificate Holders, the
Owner Trustee and the Owner Participant prompt written notice of any Event of
Default of which the Indenture Trustee has Actual Knowledge and, if any such
Event of Default results from a Lease Event of Default, shall give the
Certificate Holders, the Owner Trustee and the Owner Participant not less than
ten (10) Business Days' prior written notice of the date (the "ENFORCEMENT
DATE") on or after which the Indenture Trustee may commence and consummate the
exercise of any remedy or remedies described in Section 4.04, 4.05 or 4.06
hereof, or the exercise of any remedy or remedies pursuant to the provisions of
Section 15 of the Lease. If an Event of Default shall have occurred and be
continuing, the Owner Trustee shall have the following rights hereunder, any of
which may be exercised directly by the Owner Participant.
If as a result of the occurrence of an Event of Default in
respect of the nonpayment by Lessee of Basic Rent due under the Lease, the
Indenture Trustee shall have insufficient funds to make any payment of Principal
Amount and interest on any Secured Certificate on the day it becomes due and
payable, the Owner Trustee or the Owner Participant may, but shall not be
obligated to, pay the Indenture Trustee prior to the Enforcement Date, in the
manner provided in Section 2.04 hereof, for application in accordance with
Section 3.01 hereof, an amount equal to the portion of the Principal Amount and
interest (including interest, if any, on any overdue payments of such portion of
Principal Amount and interest) then due and payable on the Secured Certificates,
and, unless the Owner Trustee has cured Events of Default in respect of payments
of Basic Rent on each of the three immediately preceding Basic Rent payment
dates, or the Owner Trustee has cured six previous Events of Default in respect
of payments of Basic Rent, such payment by the Owner Trustee shall, solely for
purposes of this
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Trust Indenture be deemed to cure any Event of Default which would otherwise
have arisen on account of the nonpayment by Lessee of such installment of Basic
Rent (but not any other Default or Event of Default which shall have occurred
and be continuing).
If any Event of Default (other than in respect of the
nonpayment of Basic Rent by Lessee) which can be cured has occurred, the Owner
Trustee or the Owner Participant may, but shall not be obligated to, cure such
Event of Default by taking such action prior to the Enforcement Date as is
necessary to accomplish the observance or performance of the defaulted covenant,
condition or agreement.
Except as hereinafter in this Section 4.03 provided, the Owner
Trustee shall not, as a result of exercising the right to cure any such Event of
Default, obtain any Lien on any of the Mortgaged Property or any Rent payable
under the Lease for or on account of costs or expenses incurred in connection
with the exercise of such right, nor shall any claim of the Owner Trustee
against Lessee or any other party for the repayment of such costs or expenses
impair the prior right and security interest of the Indenture Trustee in and to
the Mortgaged Property. Upon any payment by the Owner Trustee or the Owner
Participant pursuant to the first or second preceding paragraphs of this Section
4.03, the Owner Trustee or the Owner Participant, as the case may be, shall be
subrogated to the rights of the Indenture Trustee and the Certificate Holders in
respect of the Basic Rent which was overdue at the time of such payment and
interest payable by Lessee on account of its being overdue and any Supplemental
Rent in respect of the reimbursement of amounts paid by the Owner Trustee
pursuant to the immediately preceding paragraph (but in either case shall have
no rights as a secured party hereunder), and thereafter, the Owner Trustee or
the Owner Participant, as the case may be, shall be entitled to receive such
overdue Basic Rent or Supplemental Rent, as the case may be, and interest
thereon upon receipt thereof by the Indenture Trustee (and shall be entitled to
bring an action against Lessee to enforce such payment); PROVIDED, HOWEVER, that
(i) if the Principal Amount and interest on the Secured Certificates shall have
become due and payable pursuant to Section 4.04(b) hereof, such subrogation
shall, until the Principal Amount of, interest on, Make-Whole Amount, if any,
and all other amounts due with respect to all Secured Certificates shall have
been paid in full, be subordinate to the rights of the Indenture Trustee and the
Certificate Holders in respect of such payment of overdue Basic Rent,
Supplemental Rent and such interest and (ii) the Owner Trustee shall not be
entitled to seek to recover any such payment (or any payment in lieu thereof)
except pursuant to the foregoing right of subrogation by demand or suit for
damages.
SECTION 4.04. REMEDIES.
(a) Subject to the provisions of Section 2.14 hereof, if an
Event of Default shall have occurred and be continuing and so long as the same
shall continue unremedied, then and in every such case the Indenture Trustee
may, subject to the second paragraph of this Section 4.04(a), on and after the
Enforcement Date if such Event of Default results from a Lease Event of Default,
exercise any or all of the rights and powers and pursue any and all of the
remedies pursuant to this Article IV and shall have and may exercise all of the
rights and remedies of a secured party under the Uniform Commercial Code and, in
the event such Event of Default is also a Lease Event of Default, any and all of
the remedies pursuant to Section 15 of the Lease and may take possession of all
or any part of the properties covered or intended to be covered by the Lien
created hereby or pursuant hereto and may exclude the Owner Participant, the
Owner
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Trustee and Lessee and all persons claiming under any of them wholly or partly
therefrom, PROVIDED, that the Indenture Trustee shall give the Owner Trustee and
the Owner Participant twenty (20) days' prior written notice of its intention to
sell the Aircraft; PROVIDED, FURTHER, that in the event the Indenture Trustee
shall have validly terminated the Lease (or, in the event of a reorganization
proceeding involving Lessee instituted under Chapter 11 of the Bankruptcy Code,
such Lease is rejected), the Indenture Trustee shall not, without the consent of
the Owner Participant (which consent shall not be unreasonably withheld), sell
or lease, or otherwise afford the use of, the Aircraft or any portion thereof to
Lessee or any Affiliate thereof. Unless an Event of Default not resulting from
or relating to a Lease Event of Default has occurred and is continuing, the
Owner Participant may bid at any public sale and become the purchaser. Without
limiting any of the foregoing, it is understood and agreed that the Indenture
Trustee may exercise any right of sale of the Aircraft available to it, even
though it shall not have taken possession of the Aircraft and shall not have
possession thereof at the time of such sale.
Anything in this Trust Indenture to the contrary
notwithstanding, the Indenture Trustee shall not be entitled to exercise any
remedy hereunder as a result of an Event of Default which arises solely by
reason of one or more events or circumstances which constitute a Lease Event of
Default unless the Indenture Trustee as security assignee of the Owner Trustee
shall have exercised or concurrently be exercising one or more of the remedies
provided for in Section 15 of the Lease to terminate the Lease or take
possession and/or sell the Aircraft; PROVIDED, HOWEVER, that such requirement to
exercise one or more of such remedies under the Lease shall not apply in
circumstances where the Indenture Trustee is, and has been, for a continuous
period in excess of 60 days or such other period as may be specified in Section
1110 of the Bankruptcy Code (such 60-day or other period being the "SECTION 1110
PERIOD"), involuntarily stayed or prohibited by applicable law or court order
from exercising such remedies under the Lease (a "CONTINUOUS STAY PERIOD");
PROVIDED FURTHER, HOWEVER, that the requirement to exercise one or more of such
remedies under the Lease shall nonetheless be applicable during a Continuous
Stay Period subsequent to the expiration of the Section 1110 Period to the
extent that the continuation of such Continuous Stay Period subsequent to the
expiration of the Section 1110 Period (A) results from an agreement by the
trustee or the debtor-in-possession in such proceeding during the Section 1110
Period with the approval of the relevant court to perform the Lease in
accordance with Section 1110(a)(2)(A) of the Bankruptcy Code and continues to
perform as required by Section 1110(a)(2)(A-B) of the Bankruptcy Code or (B) is
an extension of the Section 1110 Period with the consent of the Indenture
Trustee pursuant to Section 1110(b) of the Bankruptcy Code or (C) is the
consequence of the Indenture Trustee's own failure to give any requisite notice
to any Person. In the event that the applicability of Section 1110 of the
Bankruptcy Code to the Aircraft is being contested by Lessee in judicial
proceedings, both the Indenture Trustee and the Owner Trustee (without affecting
in any way any right or remedy of the Indenture Trustee hereunder) shall have
the right to participate in such proceedings.
It is expressly understood and agreed that, subject only to
the immediately preceding paragraph, the inability, described in such
paragraphs, of the Indenture Trustee to exercise any right or remedy under the
Lease shall in no event and under no circumstances prevent the Indenture Trustee
from exercising any or all of its rights, powers and remedies under this Trust
Indenture, including, without limitation, this Article IV.
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(b) If an Event of Default shall have occurred and be
continuing, then and in every such case the Indenture Trustee may (and shall,
upon receipt of a written demand therefor from a Majority in Interest of
Certificate Holders), subject to Section 4.03 hereof, at any time, by delivery
of written notice or notices to the Owner Trustee and the Owner Participant,
declare all the Secured Certificates to be due and payable, whereupon the unpaid
Principal Amount of all Secured Certificates then outstanding, together with
accrued but unpaid interest thereon (without Make-Whole Amount) and other
amounts due thereunder, shall immediately become due and payable without
presentment, demand, protest or notice, all of which are hereby waived.
This Section 4.04(b), however, is subject to the condition
that, if at any time after the Principal Amount of the Secured Certificates
shall have become so due and payable, and before any judgment or decree for the
payment of the money so due, or any thereof, shall be entered, all overdue
payments of interest upon the Secured Certificates and all other amounts payable
under the Secured Certificates (except the Principal Amount of the Secured
Certificates which by such declaration shall have become payable) shall have
been duly paid, and every other Default and Event of Default with respect to any
covenant or provision of this Trust Indenture shall have been cured, then and in
every such case a Majority in Interest of Certificate Holders may (but shall not
be obligated to), by written instrument filed with the Indenture Trustee,
rescind and annul the Indenture Trustee's declaration and its consequences; but
no such rescission or annulment shall extend to or affect any subsequent Default
or Event of Default or impair any right consequent thereon.
(c) Any Certificate Holder shall be entitled, at any sale
pursuant to Section 15 of the Lease or this Section 4.04, to credit against any
purchase price bid at such sale by such holder all or any part of the unpaid
obligations owing to such Certificate Holder and secured by the Lien of this
Trust Indenture (but only to the extent that such purchase price would have been
paid to such Certificate Holder pursuant to Article III hereof if such purchase
price were paid in cash and the foregoing provisions of this subsection (c) were
not given effect).
(d) In the event of any sale of the Trust Indenture Estate,
or any part thereof, pursuant to any judgment or decree of any court or
otherwise in connection with the enforcement of any of the terms of this Trust
Indenture, the unpaid Principal Amount of all Secured Certificates then
outstanding, together with accrued interest thereon, and other amounts due
thereunder, shall immediately become due and payable without presentment,
demand, protest or notice, all of which are hereby waived.
(e) Notwithstanding anything contained herein, so long as the
Pass Through Trustee under any Pass Through Trust Agreement or the Subordination
Agent on its behalf is a Certificate Holder, the Indenture Trustee will not be
authorized or empowered to acquire title to any Mortgaged Property or take any
action with respect to any Mortgaged Property so acquired by it if such
acquisition or action would cause any Pass Through Trust to fail to qualify as a
"grantor trust" for federal income tax purposes.
SECTION 4.05. RETURN OF AIRCRAFT, ETC.
(a) If an Event of Default shall have occurred and be
continuing, subject to Sections 4.03 and 4.04 hereof, at the request of the
Indenture Trustee, the Owner Trustee shall
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promptly execute and deliver to the Indenture Trustee such instruments of title
and other documents as the Indenture Trustee may deem necessary or advisable to
enable the Indenture Trustee or an agent or representative designated by the
Indenture Trustee, at such time or times and place or places as the Indenture
Trustee may specify, to obtain possession of all or any part of the Mortgaged
Property included in the Trust Indenture Estate to which the Indenture Trustee
shall at the time be entitled hereunder. If the Owner Trustee shall for any
reason fail to execute and deliver such instruments and documents after such
request by the Indenture Trustee, the Indenture Trustee may (i) obtain a
judgment conferring on the Indenture Trustee the right to immediate possession
and requiring the Owner Trustee to execute and deliver such instruments and
documents to the Indenture Trustee, to the entry of which judgment the Owner
Trustee hereby specifically consents to the fullest extent permitted by
applicable law, and (ii) pursue all or part of such Mortgaged Property wherever
it may be found and, in the event that a Lease Event of Default has occurred and
is continuing, may enter any of the premises of Lessee wherever such Mortgaged
Property may be or be supposed to be and search for such Mortgaged Property and
take possession of and remove such Mortgaged Property. All expenses of obtaining
such judgment or of pursuing, searching for and taking such property shall,
until paid, be secured by the Lien of this Trust Indenture.
(b) Upon every such taking of possession, the Indenture
Trustee may, from time to time, at the expense of the Mortgaged Property,
make all such expenditures for maintenance, use, operation, storage,
insurance, leasing, control, management, disposition, modifications or
alterations to and of the Mortgaged Property, as it may deem proper. In each
such case, the Indenture Trustee shall have the right to maintain, use,
operate, store, insure, lease, control, manage, dispose of, modify or alter
the Mortgaged Property and to carry on the business and to exercise all
rights and powers of the Owner Participant and the Owner Trustee relating to
the Mortgaged Property, as the Indenture Trustee shall deem best, including
the right to enter into any and all such agreements with respect to the
maintenance, use, operation, storage, insurance, leasing, control,
management, disposition, modification or alteration of the Mortgaged Property
or any part thereof as the Indenture Trustee may determine, and the Indenture
Trustee shall be entitled to collect and receive directly all tolls, rents
(including Rent), revenues, issues, income, products and profits of the
Mortgaged Property and every part thereof, except Excluded Payments, without
prejudice, however, to the right of the Indenture Trustee under any provision
of this Trust Indenture to collect and receive all cash held by, or required
to be deposited with, the Indenture Trustee hereunder. Such tolls, rents
(including Rent), revenues, issues, income, products and profits shall be
applied to pay the expenses of the maintenance, use, operation, storage,
insurance, leasing, control, management, disposition, improvement,
modification or alteration of the Mortgaged Property and of conducting the
business thereof, and to make all payments which the Indenture Trustee may be
required or may elect to make, if any, for taxes, assessments, insurance or
other proper charges upon the Mortgaged Property or any part thereof
(including the employment of engineers and accountants to examine, inspect
and make reports upon the properties and books and records of the Owner
Trustee), and all other payments which the Indenture Trustee may be required
or authorized to make under any provision of this Trust Indenture, as well as
just and reasonable compensation for the services of the Indenture Trustee,
and of all persons properly engaged and employed by the Indenture Trustee
with respect hereto.
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SECTION 4.06. REMEDIES CUMULATIVE.
Each and every right, power and remedy given to the Indenture
Trustee specifically or otherwise in this Trust Indenture shall be cumulative
and shall be in addition to every other right, power and remedy herein
specifically given or now or hereafter existing at law, in equity or by statute,
and each and every right, power and remedy whether specifically herein given or
otherwise existing may be exercised from time to time and as often and in such
order as may be deemed expedient by the Indenture Trustee, and the exercise or
the beginning of the exercise of any power or remedy shall not be construed to
be a waiver of the right to exercise at the same time or thereafter any other
right, power or remedy. No delay or omission by the Indenture Trustee in the
exercise of any right, remedy or power or in the pursuance of any remedy shall
impair any such right, power or remedy or be construed to be a waiver of any
default on the part of the Owner Trustee or Lessee or to be an acquiescence
therein.
SECTION 4.07. DISCONTINUANCE OF PROCEEDINGS.
In case the Indenture Trustee shall have instituted any
proceeding to enforce any right, power or remedy under this Trust Indenture by
foreclosure, entry or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason or shall have been determined adversely
to the Indenture Trustee, then and in every such case the Owner Trustee, the
Indenture Trustee and Lessee shall, subject to any determination in such
proceedings, be restored to their former positions and rights hereunder with
respect to the Mortgaged Property, and all rights, remedies and powers of the
Owner Trustee, the Indenture Trustee or Lessee shall continue as if no such
proceedings had been instituted.
SECTION 4.08. WAIVER OF PAST DEFAULTS.
Upon written instruction from a Majority in Interest of
Certificate Holders, the Indenture Trustee shall waive any past Default
hereunder and its consequences and upon any such waiver such Default shall cease
to exist and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Trust Indenture, but no such waiver shall extend
to any subsequent or other Default or impair any right consequent thereon;
PROVIDED, that in the absence of written instructions from all the Certificate
Holders, the Indenture Trustee shall not waive any Default (i) in the payment of
the Principal Amount, Make-Whole Amount, if any, and interest and other amounts
due under any Secured Certificate then outstanding, or (ii) in respect of a
covenant or provision hereof which, under Article IX hereof, cannot be modified
or amended without the consent of each Certificate Holder.
SECTION 4.09. APPOINTMENT OF RECEIVER.
The Indenture Trustee shall, as a matter of right, be entitled
to the appointment of a receiver (who may be the Indenture Trustee or any
successor or nominee thereof) for all or any part of the Mortgaged Property,
whether such receivership be incidental to a proposed sale of the Mortgaged
Property or the taking of possession thereof or otherwise, and the Owner Trustee
hereby consents to the appointment of such a receiver and will not oppose any
such appointment. Any receiver appointed for all or any part of the Mortgaged
Property shall be entitled to exercise all the rights and powers of the
Indenture Trustee with respect to the Mortgaged Property.
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SECTION 4.10. INDENTURE TRUSTEE AUTHORIZED TO EXECUTE BILLS
OF SALE, ETC.
The Owner Trustee irrevocably appoints the Indenture Trustee
the true and lawful attorney-in-fact of the Owner Trustee in its name and stead
and on its behalf, for the purpose, if an Event of Default shall have occurred
and be continuing, of effectuating any sale, assignment, transfer or delivery
for the enforcement of the Lien of this Trust Indenture, whether pursuant to
foreclosure or power of sale, assignments and other instruments as may be
necessary or appropriate, with full power of substitution, the Owner Trustee
hereby ratifying and confirming all that such attorney or any substitute shall
do by virtue hereof in accordance with applicable law. Nevertheless, if so
requested by the Indenture Trustee or any purchaser, the Owner Trustee shall
ratify and confirm any such sale, assignment, transfer or delivery, by executing
and delivering to the Indenture Trustee or such purchaser all bills of sale,
assignments, releases and other proper instruments to effect such ratification
and confirmation as may be designated in any such request.
SECTION 4.11. RIGHTS OF CERTIFICATE HOLDERS TO RECEIVE
PAYMENT.
Notwithstanding any other provision of this Trust Indenture,
the right of any Certificate Holder to receive payment of principal of, and
premium, if any, and interest on a Secured Certificate on or after the
respective due dates expressed in such Secured Certificate, or to bring suit for
the enforcement of any such payment on or after such respective dates in
accordance with the terms hereof, shall not be impaired or affected without the
consent of such Certificate Holder.
ARTICLE V
DUTIES OF THE INDENTURE TRUSTEE
SECTION 5.01. NOTICE OF EVENT OF DEFAULT.
If the Indenture Trustee shall have Actual Knowledge of an
Event of Default or of a Default arising from a failure to pay Rent, the
Indenture Trustee shall give prompt written notice thereof to the Owner Trustee,
the Owner Participant, Lessee, and each Certificate Holder. Subject to the terms
of Sections 4.03, 4.04, 4.08, 5.02 and 5.03 hereof, the Indenture Trustee shall
take such action, or refrain from taking such action, with respect to such Event
of Default or Default (including with respect to the exercise of any rights or
remedies hereunder) as the Indenture Trustee shall be instructed in writing by a
Majority in Interest of Certificate Holders. Subject to the provisions of
Section 5.03, if the Indenture Trustee shall not have received instructions as
above provided within twenty (20) days after mailing notice of such Event of
Default to the Certificate Holders, the Indenture Trustee may, subject to
instructions thereafter received pursuant to the preceding provisions of this
Section 5.01, take such action, or refrain from taking such action, but shall be
under no duty to take or refrain from taking any action, with respect to such
Event of Default or Default as it shall determine advisable in the best
interests of the Certificate Holders; PROVIDED, HOWEVER, that the Indenture
Trustee may not sell the Aircraft or any Engine without the consent of a
Majority in Interest of Certificate Holders. If the Indenture Trustee shall at
any time declare the Lease to be in default pursuant to Section 15 thereof or
shall elect to foreclose or otherwise enforce this Trust Indenture, the
Indenture Trustee shall forthwith
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notify the Owner Participant, the Certificate Holders, the Owner Trustee and
Lessee. For all purposes of this Trust Indenture, in the absence of Actual
Knowledge on the part of the Indenture Trustee, the Owner Trustee or the Owner
Participant, the Indenture Trustee, the Owner Trustee or the Owner Participant,
as the case may be, shall not be deemed to have knowledge of a Default or an
Event of Default (except, in the case of the Indenture Trustee, the failure of
Lessee to pay any installment of Basic Rent within one (1) Business Day after
the same shall become due, if any portion of such installment was then required
to be paid to the Indenture Trustee, which failure shall constitute knowledge of
a Default) unless notified in writing by Lessee, the Owner Trustee, the Owner
Participant or one or more Certificate Holders.
SECTION 5.02. ACTION UPON INSTRUCTIONS; CERTAIN RIGHTS AND
LIMITATIONS.
(a) Subject to the terms of Sections 2.14, 4.03, 4.04(a),
4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from
time to time of a Majority in Interest of Certificate Holders, the Indenture
Trustee shall, subject to the terms of this Section 5.02, take such of the
following actions as may be specified in such instructions: (i) give such notice
or direction or exercise such right, remedy or power hereunder as shall be
specified in such instructions; (ii) give such notice or direction or exercise
such right, remedy or power under the Lease, the Participation Agreement, the
Purchase Agreement, or any other part of the Trust Indenture Estate as shall be
specified in such instructions; and (iii) after the occurrence and during the
continuance of an Event of Default, approve as satisfactory to the Indenture
Trustee all matters required by the terms of the Lease to be satisfactory to the
Owner Trustee, it being understood that without the written instructions of a
Majority in Interest of Certificate Holders, the Indenture Trustee shall not
approve any such matter as satisfactory to the Indenture Trustee; PROVIDED, that
anything contained in this Trust Indenture, the Lease or the other Operative
Documents to the contrary notwithstanding:
(1) the Owner Trustee or the Owner Participant may, without
the consent of the Indenture Trustee, demand, collect, xxx for or
otherwise obtain all amounts included in Excluded Payments from Lessee
or the Guarantor, exercise any election or option or make any decision
or determination or to give or receive any notice, consent, waiver or
approval in respect of any Excluded Payment and seek legal or equitable
remedies to require Lessee or the Guarantor to maintain the insurance
coverage referred to in Section 11 of the Lease; PROVIDED, that the
rights referred to in this clause (1) shall not be deemed to include
the exercise of any remedies provided for in Section 15 of the Lease
other than the right to proceed by appropriate court action, either at
law or in equity, to enforce payment by Lessee or the Guarantor of such
amounts included in Excluded Payments or performance by Lessee or the
Guarantor of such insurance covenant, or to recover damages for the
breach thereof or for specific performance of any covenant of Lessee or
the Guarantor;
(2) (A) the Indenture Trustee shall not, without the consent
of the Owner Trustee, execute or deliver amendments or modifications in
respect of any provisions of the Lease, and (B) unless an Event of
Default and an Indenture Trustee Event shall have occurred and be
continuing and except as provided in clause (4) below, the Indenture
Trustee shall not, without the consent of the Owner Trustee, which
consent shall not be withheld if no right or interest of the Owner
Trustee or the Owner Participant shall be
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diminished or impaired thereby, (i) enter into, execute or deliver
waivers or consents in respect of any of the provisions of the Lease,
or (ii) approve any accountants, engineers, appraisers or counsel as
satisfactory to render services for or issue opinions to the Owner
Trustee pursuant to the Operative Documents; PROVIDED that, whether or
not an Event of Default shall have occurred and be continuing, no
amendment, modification, waiver or consent in respect of the Lease
shall affect the amount or timing of, or the right to enforce payment
of, any Excluded Payment;
(3) whether or not a Default or Event of Default under the
Trust Indenture has occurred and is continuing, the Owner Trustee and
the Owner Participant shall have the right, together with the Indenture
Trustee, (i) to receive from Lessee all notices, certificates, reports,
filings, opinions of counsel and other documents and all information
which any thereof is permitted or required to give or furnish to the
Owner Trustee or Lessor pursuant to any Operative Document (including
pursuant to Section 7(b) of the Participation Agreement), (ii) to
exercise inspection rights pursuant to Section 12 of the Lease, (iii)
to retain all rights with respect to insurance maintained for its own
account which Section 11(e) of the Lease specifically confers on Lessor
or the Owner Participant, (iv) to exercise, to the extent necessary to
enable it to exercise its rights under Section 4.03 hereof, the rights
of Lessor under Section 21 of the Lease and (v) to give notices of
default under Section 14 of the Lease;
(4) whether or not a Default or Event of Default under the
Trust Indenture has occurred and is continuing, the Owner Trustee shall
have the right to the exclusion of the Indenture Trustee to adjust
Rent, Stipulated Loss Values and Termination Values as provided in
Section 3(d) of the Lease and to select counsel with respect to any
opinion relating to tax matters to be delivered solely to the Owner
Participant;
(5) whether or not a Default or Event of Default under the
Trust Indenture has occurred and is continuing, the Owner Trustee may,
without the consent of the Indenture Trustee, (i) solicit and make bids
with respect to the Aircraft under Section 9 of the Lease in respect of
a termination of the Lease by Lessee pursuant to Section 9 thereof,
(ii) determine "fair market sales value" and "fair market rental value"
under Section 19 of the Lease for all purposes except following an
Event of Default pursuant to Section 15 of the Lease, and (iii) make an
election pursuant to and in accordance with the provisions of Section
9(c) of the Lease; and
(6) so long as no Event of Default shall have occurred and be
continuing, except as provided in clauses (2) and (3) above, all rights
of the "Lessor" under the Lease shall be exercised by the Owner Trustee
to the exclusion of the Indenture Trustee including, without
limitation, the right to (i) exercise all rights with respect to
Lessee's use and operation, modification or maintenance of the Aircraft
and any Engine which the Lease specifically confers on Lessor, and (ii)
consent to and approve any assignment pursuant to Section 13 of the
Lease; provided that the foregoing shall not limit (A) any rights
separately granted to the Indenture Trustee under the Operative
Documents or (B) the right of the Indenture Trustee to receive any
funds to be delivered to the "Lessor" under the Lease (except with
respect to Excluded Payments) and under the Purchase Agreement.
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Notwithstanding anything to the contrary contained herein, the
Indenture Trustee shall have the right, to the exclusion of the Owner Trustee
and the Owner Participant, to (A) declare the Lease to be in default under
Section 15 thereof and (B) subject only to the provisions of Sections 4.03,
4.04(a) and 2.14 hereof, exercise the remedies set forth in such Section 15
(other than in connection with Excluded Payments) at any time that a Lease Event
of Default shall have occurred and be continuing.
The Indenture Trustee will execute and the Owner Trustee will
file or cause to be filed such continuation statements with respect to financing
statements relating to the security interest created hereunder in the Trust
Indenture Estate as specified by Lessee pursuant to Section 8(e) of the
Participation Agreement or as may be specified from time to time in written
instructions of a Majority in Interest of Certificate Holders (which
instructions may, by their terms, be operative only at a future date and which
shall be accompanied by the form of such continuation statement so to be filed).
The Indenture Trustee will furnish to each Certificate Holder (and, during the
continuation of an Indenture Trustee Event, to the Owner Trustee and Owner
Participant), promptly upon receipt thereof, duplicates or copies of all
reports, notices, requests, demands, certificates and other instruments
furnished to the Indenture Trustee under the Lease or hereunder, including,
without limitation, a copy of any Termination Notice (as defined in the Lease)
and a copy of each report or notice received pursuant to Sections 9(a) and 11(c)
of the Lease, respectively, to the extent that the same shall not have been
furnished to such Certificate Holder pursuant hereto or to the Lease.
(b) If any Lease Event of Default shall have occurred and be
continuing and the Owner Trustee shall not have cured fully such Lease Event of
Default under and in accordance with Section 4.03 hereof, on request of a
Majority in Interest of Certificate Holders, the Indenture Trustee shall declare
the Lease to be in default pursuant to Section 15 thereof and exercise those
remedies specified by such Certificate Holders. The Indenture Trustee agrees to
provide to the Certificate Holders, the Owner Trustee, the Owner Participant and
Lessee concurrently with such declaration by the Indenture Trustee, notice of
such declaration by the Indenture Trustee.
SECTION 5.03. INDEMNIFICATION.
The Indenture Trustee shall not be under any obligation to
take any action under this Trust Indenture and nothing herein or therein shall
require the Indenture Trustee to expend or risk its own funds or otherwise incur
the risk of any financial liability in the performance of any of its rights or
powers if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it (the written indemnity of any Certificate Holder who is a QIB,
signed by an authorized officer thereof, in favor of, delivered to and in form
reasonably satisfactory to Indenture Trustee shall be accepted as reasonable
assurance of adequate indemnity). The Indenture Trustee shall not be required to
take any action under Section 5.01 (other than the first sentence thereof) or
5.02 or Article IV hereof, nor shall any other provision of this Trust Indenture
or any other Operative Document be deemed to impose a duty on the Indenture
Trustee to take any action, if the Indenture Trustee shall have been advised by
counsel that such action is contrary to the terms hereof or of the Lease or is
otherwise contrary to Law.
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SECTION 5.04. NO DUTIES EXCEPT AS SPECIFIED IN TRUST
INDENTURE OR INSTRUCTIONS.
The Indenture Trustee shall not have any duty or obligation to
use, operate, store, lease, control, manage, sell, dispose of or otherwise deal
with the Aircraft or any other part of the Trust Indenture Estate, or to
otherwise take or refrain from taking any action under, or in connection with,
this Trust Indenture or any part of the Trust Indenture Estate, except as
expressly provided by the terms of this Trust Indenture or as expressly provided
in written instructions from Certificate Holders as provided in this Trust
Indenture; and no implied duties or obligations shall be read into this Trust
Indenture against the Indenture Trustee. The Indenture Trustee agrees that it
will in its individual capacity and at its own cost and expense (but without any
right of indemnity in respect of any such cost or expense under Section 7.01
hereof), promptly take such action as may be necessary duly to discharge all
liens and encumbrances on any part of the Trust Indenture Estate which result
from claims against it in its individual capacity not related to the ownership
of the Aircraft or the administration of the Trust Indenture Estate or any other
transaction pursuant to this Trust Indenture or any document included in the
Trust Indenture Estate.
SECTION 5.05. NO ACTION EXCEPT UNDER LEASE, TRUST INDENTURE
OR INSTRUCTIONS.
The Owner Trustee and the Indenture Trustee agree that they
will not use, operate, store, lease, control, manage, sell, dispose of or
otherwise deal with the Aircraft or any other part of the Trust Indenture Estate
except (i) as required by the terms of the Lease or (ii) in accordance with the
powers granted to, or the authority conferred upon, the Owner Trustee and the
Indenture Trustee pursuant to this Trust Indenture and in accordance with the
express terms hereof.
SECTION 5.06. REPLACEMENT AIRFRAMES AND REPLACEMENT ENGINES.
At any time an Airframe or Engine is to be replaced under or
pursuant to Section 10 of the Lease by a Replacement Airframe or Replacement
Engine, the Owner Trustee shall direct the Indenture Trustee to execute and
deliver to the Owner Trustee an appropriate instrument releasing such Airframe
and/or Engine as appropriate from the Lien of this Trust Indenture and the
Indenture Trustee shall execute and deliver such instrument as aforesaid, but
only upon compliance by Lessee with the applicable provisions of Section 10 of
the Lease and upon receipt by or deposit with the Indenture Trustee of the
following:
(1) A written request from the Owner Trustee, requesting such
release specifically describing the Airframe and/or Engine(s) so to be released.
(2) A certificate signed by a duly authorized officer of
Lessee stating the following:
A. With respect to the replacement of any Airframe:
(i) a description of the Airframe which shall be
identified by manufacturer, model, FAA
registration
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number (or other applicable
registration information) and manufacturer's
serial number;
(ii) a description of the Replacement Airframe to
be received (including the manufacturer,
model, FAA registration number (or other
applicable registration information) and
manufacturer's serial number) as
consideration for the Airframe to be
released;
(iii) that the Replacement Airframe is of the same
or an improved model as the Airframe
requested to be released from this
Indenture;
(iv) the value, utility and remaining useful life
(without regard to hours or cycles) of the
Replacement Airframe as of the date of such
certificate (which in the judgment of Lessee
shall be not less than the value, utility
and remaining useful life (without regard
to hours or cycles) of the Airframe
requested to be released (assuming no Event
of Loss and that such Airframe was in the
condition and repair required to be
maintained under the Lease)); and
(v) that no Lease Event of Default and no event
which, with lapse of time or notice, or
both, would become a Lease Event of Default,
has occurred which has not been remedied or
waived, and that Lessee will not be in
default, by the making and granting of the
request for release and the addition of a
Replacement Airframe, in the performance of
any of the terms and covenants of the Lease.
B. with respect to the replacement of any Engine:
(i) a description of the Engine which shall be
identified by manufacturer's serial number;
(ii) a description of the Replacement Engine
(including the manufacturer's name and
serial number) as consideration for the
Engine to be released;
(iii) that such Replacement Engine is
substantially the same as the Engine to be
released (or an improved model);
(iv) the value, utility and remaining useful life
(without regard to hours or cycles) of the
Replacement Engine as of the date of such
certificate (which
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value shall not be less than the value,
utility and remaining useful life (without
regard to hours or cycles) of the Engine to
be released (assuming no Event of Loss and
that such Engine was in the condition and
repair required to be maintained under the
Lease));
(v) that each of the conditions specified in
Section 10(b) of the Lease with respect to
such Replacement Engine have been satisfied;
and
(vi) that, with respect to the replacement of an
Engine pursuant to Section 9(d) of the
Lease, no Lease Event of Default and no
Lease Default has occurred which has not
been remedied or waived.
(3) (a) 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 generally available with respect to such Replacement Airframe or
Replacement Engine, and a Trust Agreement and Indenture Supplement subjecting
such Replacement Airframe or Replacement Engine and any related warranty rights
to the lien of this Indenture.
(b) With respect to the replacement of any Engine, such
Uniform Commercial Code financing statements covering the lien created by this
Indenture as deemed necessary or desirable by counsel for the Indenture Trustee
to protect the lien under the Indenture in the Replacement Engine.
(4) A certificate from either an aircraft engineer (who may be
an employee of Lessee) or a firm of independent aircraft appraisers selected by
Lessee confirming the accuracy of the information set forth in clause (2)A(iv)
of this Section 5.06.
(5) The opinion of in-house counsel to Lessee, or other counsel
satisfactory to the Indenture Trustee, stating that 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 Trust Indenture, as the
case may be, have been duly filed for recordation pursuant to the Federal
Aviation Act or any other law then applicable to the registration of the
Aircraft, and no further action, filing or recording of any document is
necessary or advisable in order to establish and perfect the right, title,
estate and interest of the Owner Trustee to and the lien of this Trust Indenture
on such Replacement Aircraft or Replacement Engine.
SECTION 5.07. INDENTURE SUPPLEMENTS FOR REPLACEMENTS.
If a Replacement Airframe or Replacement Engine is being
substituted as contemplated by Section 10 of the Lease, the Owner Trustee and
the Indenture Trustee agree for the benefit of the Certificate Holders and
Lessee, subject to fulfillment of the conditions
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precedent and compliance by Lessee with its obligations set forth in Section 10
of the Lease and the requirements of Section 5.06 hereof with respect to such
Replacement Airframe or Replacement Engine, to execute and deliver a Lease
Supplement and a Trust Agreement and Indenture Supplement, as applicable, as
contemplated by Section 10 of the Lease.
SECTION 5.08. EFFECT OF REPLACEMENT.
In the event of the substitution of an Airframe or of a
Replacement Engine pursuant to Section 10 of the Lease, (a) all provisions of
this Trust Indenture relating to the Airframe or Engine or Engines being
replaced shall be applicable to such Replacement Airframe or Replacement Engine
or Engines with the same force and effect as if such Replacement Airframe or
Replacement Engine or Engines were the same airframe or engine or engines, as
the case may be, as the Airframe or Engine or Engines being replaced but for the
Event of Loss with respect to the Airframe or Engine or Engines being replaced,
and (b) the provisions of this Trust Indenture shall no longer be applicable to
the Airframe or Engine or Engines being replaced, which shall be released from
the Lien of this Trust Indenture.
SECTION 5.09. INVESTMENT OF AMOUNTS HELD BY INDENTURE TRUSTEE.
Any amounts held by the Indenture Trustee as assignee of the
Owner Trustee's rights to hold monies for security pursuant to Section 22(a) of
the Lease shall be held in accordance with the terms of such Section and the
Indenture Trustee agrees, for the benefit of Lessee, to perform the duties of
the Owner Trustee under such Section. Any amounts held by the Indenture Trustee
pursuant to the proviso to the first sentence of Section 3.01, pursuant to
Section 3.02, or pursuant to any provision of any other Operative Document
providing for amounts to be held by the Indenture Trustee which are not
distributed pursuant to the other provisions of Article III hereof shall be
invested by the Indenture Trustee from time to time in Cash Equivalents as
directed by the Owner Trustee in the case of amounts held pursuant to the
proviso to the first sentence of Section 3.01 and otherwise by Lessee so long as
the Indenture Trustee may acquire the same using its best efforts. Unless
otherwise expressly provided in this Trust Indenture, any income realized as a
result of any such investment, net of the Indenture Trustee's reasonable fees
and expenses in making such investment, shall be held and applied by the
Indenture Trustee in the same manner as the principal amount of such investment
is to be applied and any losses, net of earnings and such reasonable fees and
expenses, shall be charged against the principal amount invested. The Indenture
Trustee shall not be liable for any loss resulting from any investment required
to be made by it under this Trust Indenture other than by reason of its willful
misconduct or gross negligence, and any such investment may be sold (without
regard to its maturity) by the Indenture Trustee without instructions whenever
such sale is necessary to make a distribution required by this Trust Indenture.
Any investment permitted under Section 22(a) of the Lease or hereunder may be
made through or with, as applicable, the entity acting as Indenture Trustee or
its Affiliates.
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ARTICLE VI
THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE
SECTION 6.01. ACCEPTANCE OF TRUSTS AND DUTIES.
The Indenture Trustee accepts the duties hereby created and
applicable to it and agrees to perform the same but only upon the terms of this
Trust Indenture and agrees to receive and disburse all monies constituting part
of the Trust Indenture Estate in accordance with the terms hereof. The Owner
Trustee, in its individual capacity, and the Indenture Trustee, in its
individual capacity, shall not be answerable or accountable under any
circumstances, except (i) for their own willful misconduct or gross negligence
(other than for the handling of funds, for which the standard of accountability
shall be willful misconduct or negligence), (ii) in the case of the Indenture
Trustee, as provided in the fourth sentence of Section 2.04(a) hereof and the
last sentence of Section 5.04 hereof, and (iii) for liabilities that may result,
in the case of the Owner Trustee, from the inaccuracy of any representation or
warranty of the Owner Trustee expressly made in its individual capacity in the
Participation Agreement or in Section 4.01(b) or 6.03 hereof (or in any
certificate furnished to the Indenture Trustee or any Certificate Holder in
connection with the transactions contemplated by the Operative Documents) or, in
the case of the Indenture Trustee (in its individual capacity), from the
inaccuracy of any representation or warranty of the Indenture Trustee (in its
individual capacity) in the Participation Agreement or expressly made hereunder.
Neither the Owner Trustee nor the Indenture Trustee shall be liable for any
action or inaction of the other or of the Owner Participant.
SECTION 6.02. ABSENCE OF DUTIES.
In the case of the Indenture Trustee, except in accordance
with written instructions furnished pursuant to Section 5.01 or 5.02 hereof, and
except as provided in, and without limiting the generality of, Sections 5.03 and
5.04 hereof and, in the case of the Owner Trustee, except as provided in Section
4.01(b) hereof, the Owner Trustee and the Indenture Trustee shall have no duty
(i) to see to any registration of the Aircraft or any recording or filing of the
Lease or of this Trust Indenture or any other document, or to see to the
maintenance of any such registration, recording or filing, (ii) to see to any
insurance on the Aircraft or to effect or maintain any such insurance, whether
or not Lessee shall be in default with respect thereto, (iii) to see to the
payment or discharge of any lien or encumbrance of any kind against any part of
the Trust Estate or the Trust Indenture Estate, (iv) to confirm, verify or
inquire into the failure to receive any financial statements from Lessee, or (v)
to inspect the Aircraft at any time or ascertain or inquire as to the
performance or observance of any of Lessee's covenants under the Lease with
respect to the Aircraft. The Owner Participant shall not have any duty or
responsibility hereunder, including, without limitation, any of the duties
mentioned in clauses (i) through (v) above; PROVIDED, that nothing contained in
this sentence shall limit any obligations of the Owner Participant under the
Participation Agreement or relieve the Owner Participant from any restriction
under Section 4.03 hereof.
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SECTION 6.03. NO REPRESENTATIONS OR WARRANTIES AS TO AIRCRAFT
OR DOCUMENTS.
NEITHER THE INDENTURE TRUSTEE IN ITS INDIVIDUAL OR TRUST
CAPACITY NOR THE OWNER TRUSTEE IN ITS INDIVIDUAL CAPACITY OR AS OWNER TRUSTEE
UNDER THE TRUST AGREEMENT, NOR THE OWNER PARTICIPANT MAKES OR SHALL BE DEEMED TO
HAVE MADE AND EACH HEREBY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, AS TO THE TITLE, AIRWORTHINESS, VALUE, COMPLIANCE WITH
SPECIFICATIONS, CONDITION, DESIGN, QUALITY, DURABILITY, OPERATION,
MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE OF THE AIRCRAFT OR
ANY ENGINE, AS TO THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT
DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR
COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT OR
ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, except the Owner Trustee in its
individual capacity warrants that (i) the Owner Trustee has received on the
Delivery Date whatever title was conveyed to it by Lessee, and (ii) the Aircraft
is free and clear of Lessor Liens (including for this purpose Liens which would
be Lessor Liens but for the proviso in the definition of Lessor Liens)
attributable to the Owner Trustee in its individual capacity. Neither the Owner
Trustee, in its individual capacity or as Owner Trustee under the Trust
Agreement, nor the Indenture Trustee, in its individual or trust capacities,
makes or shall be deemed to have made any representation or warranty as to the
validity, legality or enforceability of this Trust Indenture, the Trust
Agreement, the Participation Agreement, the Secured Certificates, the Lease, the
Purchase Agreement, the Purchase Agreement Assignment, the Consent and Agreement
or the Guarantee, or as to the correctness of any statement contained in any
thereof, except for the representations and warranties of the Owner Trustee made
in its individual capacity and the representations and warranties of the
Indenture Trustee, in each case expressly made in this Trust Indenture or in the
Participation Agreement. The Loan Participants, the Certificate Holders and the
Owner Participant make no representation or warranty hereunder whatsoever.
SECTION 6.04. NO SEGREGATION OF MONIES; NO INTEREST.
Any monies paid to or retained by the Indenture Trustee
pursuant to any provision hereof and not then required to be distributed to the
Certificate Holders, Lessee or the Owner Trustee as provided in Article III
hereof need not be segregated in any manner except to the extent required by Law
or Section 10(f) or 11(g) of the Lease and Section 5.09 hereof, and may be
deposited under such general conditions as may be prescribed by Law, and the
Indenture Trustee shall not be liable for any interest thereon (except that the
Indenture Trustee shall invest all monies held as directed by Lessee so long as
no Lease Event of Default or Lease Default has occurred and is continuing (or in
the absence of such direction, by the Majority In Interest of Certificate
Holders) in Cash Equivalents; PROVIDED, HOWEVER, that any payments received, or
applied hereunder, by the Indenture Trustee shall be accounted for by the
Indenture Trustee so that any portion thereof paid or applied pursuant hereto
shall be identifiable as to the source thereof.
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SECTION 6.05. RELIANCE; AGREEMENTS; ADVICE OF COUNSEL.
Neither the Owner Trustee nor the Indenture Trustee shall
incur any liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper believed by it to be genuine and believed by it to be signed
by the proper party or parties. The Owner Trustee and the Indenture Trustee may
accept a copy of a resolution of the Board of Directors (or, in the case of the
Owner Participant which originally executed the Participation Agreement,
evidence of the approval by the Executive Committee thereof) of any party to the
Participation Agreement, certified by the Secretary or an Assistant Secretary
thereof as duly adopted and in full force and effect, as conclusive evidence
that such resolution has been duly adopted and that the same is in full force
and effect. As to the aggregate unpaid Principal Amount of Secured Certificates
outstanding as of any date, the Owner Trustee may for all purposes hereof rely
on a certificate signed by any Vice President or other authorized corporate
trust officer of the Indenture Trustee. As to any fact or matter relating to
Lessee the manner of ascertainment of which is not specifically described
herein, the Owner Trustee and the Indenture Trustee may for all purposes hereof
rely on a certificate, signed by a duly authorized officer of Lessee, as to such
fact or matter, and such certificate shall constitute full protection to the
Owner Trustee and the Indenture Trustee for any action taken or omitted to be
taken by them in good faith in reliance thereon. The Indenture Trustee shall
assume, and shall be fully protected in assuming, that the Owner Trustee is
authorized by the Trust Agreement to enter into this Trust Indenture and to take
all action to be taken by it pursuant to the provisions hereof, and shall not
inquire into the authorization of the Owner Trustee with respect thereto. In the
administration of the trusts hereunder, the Owner Trustee and the Indenture
Trustee each may execute any of the trusts or powers hereof and perform its
powers and duties hereunder directly or through agents or attorneys and may at
the expense of the Trust Indenture Estate, consult with counsel, accountants and
other skilled persons to be selected and retained by it, and the Owner Trustee
and the Indenture Trustee shall not be liable for anything done, suffered or
omitted in good faith by them in accordance with the written advice or written
opinion of any such counsel, accountants or other skilled persons.
SECTION 6.06. CAPACITY IN WHICH ACTING.
The Owner Trustee acts hereunder solely as trustee as herein
and in the Trust Agreement provided, and not in its individual capacity, except
as otherwise expressly provided herein, in the Trust Agreement and in the
Participation Agreement.
SECTION 6.07. COMPENSATION.
The Indenture Trustee shall be entitled to reasonable
compensation, including expenses and disbursements (including the reasonable
fees and expenses of counsel), for all services rendered hereunder and shall, on
and subsequent to an Event of Default hereunder, have a priority claim on the
Trust Indenture Estate for the payment of such compensation, to the extent that
such compensation shall not be paid by Lessee, and shall have the right, on and
subsequent to an Event of Default hereunder, to use or apply any monies held by
it hereunder in the Trust Indenture Estate toward such payments. The Indenture
Trustee agrees that it shall have no right against the Loan Participants, the
Certificate Holders, the Owner Trustee or the Owner Participant for any fee as
compensation for its services as trustee under this Trust Indenture.
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SECTION 6.08. INSTRUCTIONS FROM CERTIFICATE HOLDERS.
In the administration of the trusts created hereunder, the
Indenture Trustee shall have the right to seek instructions from a Majority in
Interest of Certificate Holders should any provision of this Trust Indenture
appear to conflict with any other provision herein or should the Indenture
Trustee's duties or obligations hereunder be unclear, and the Indenture Trustee
shall incur no liability in refraining from acting until it receives such
instructions. The Indenture Trustee shall be fully protected for acting in
accordance with any instructions received under this Section 6.08.
ARTICLE VII
INDEMNIFICATION OF THE INDENTURE TRUSTEE BY THE OWNER TRUSTEE
SECTION 7.01. SCOPE OF INDEMNIFICATION.
The Owner Trustee, not in its individual capacity, but solely
as Owner Trustee, hereby agrees, except as otherwise provided in Section 2.03
hereof, to assume liability for, and does hereby indemnify, protect, save and
keep harmless the Indenture Trustee (in its individual and trust capacities),
and its successors, assigns, agents and servants, from and against any and all
liabilities, obligations, losses, damages, penalties, taxes (excluding any taxes
payable by the Indenture Trustee on or measured by any compensation received by
the Indenture Trustee for its services under this Trust Indenture), claims,
actions, suits, costs, expenses or disbursements (including reasonable legal
fees and expenses) of any kind and nature whatsoever, which may be imposed on,
incurred by or asserted against the Indenture Trustee (whether or not also
indemnified against by any other Person under any other document) in any way
relating to or arising out of this Trust Indenture or any other Operative
Document to which it is a party or the enforcement of any of the terms of any
thereof, or in any way relating to or arising out of the manufacture, purchase,
acceptance, non-acceptance, rejection, ownership, delivery, lease, possession,
use, operation, condition, sale, return or other disposition of the Aircraft or
any Engine (including, without limitation, latent or other defects, whether or
not discoverable, and any claim for patent, trademark or copyright
infringement), or in any way relating to or arising out of the administration of
the Trust Indenture Estate or the action or inaction of the Indenture Trustee
hereunder, to the extent not reimbursed by Lessee. Without limiting the
foregoing, the Indenture Trustee agrees that, prior to seeking indemnification
from the Trust Indenture Estate, it will demand, and take such action as it may
in its discretion determine to be reasonable to pursue, indemnification
available to the Indenture Trustee under the Lease or the Participation
Agreement. Notwithstanding the foregoing, the Indenture Trustee shall not be
entitled to any indemnification for any Taxes or Expenses to the extent relating
to or arising from the willful misconduct or gross negligence (or negligence in
the case of handling funds) of the Indenture Trustee in the performance of its
duties hereunder or resulting from the inaccuracy of any representation or
warranty of the Indenture Trustee (in its individual capacity) referred to in
Section 6.03 hereof, or as provided in Section 6.01 hereof or in the last
sentence of Section 5.04 hereof, or as otherwise excluded by the terms of
Sections 7(b) and 7(c) of the Participation Agreement from Lessee's indemnities
under such Sections. In addition, if necessary, the Indenture Trustee shall be
entitled to indemnification from the Trust Indenture Estate for any liability,
obligation, loss, damage, penalty, claim, action, suit, cost, expense or
disbursement
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indemnified against pursuant to this Section 7.01 to the extent not
reimbursed by Lessee or others, but without releasing any of them from their
respective agreements of reimbursement; and to secure the same the Indenture
Trustee shall have a prior Lien on the Trust Indenture Estate. The Owner Trustee
shall be subrogated to the Indenture Trustee's rights, if any, to any indemnity
payment from Lessee for the amounts paid by the Owner Trustee under this
Section 7.01.
ARTICLE VIII
SUCCESSOR AND SEPARATE TRUSTEES
SECTION 8.01. NOTICE OF SUCCESSOR OWNER TRUSTEE.
In the case of any appointment of a successor to the Owner
Trustee pursuant to the Trust Agreement including upon any merger, conversion,
consolidation or sale of substantially all of the corporate trust business of
the Owner Trustee pursuant to the Trust Agreement, the successor Owner Trustee
shall give prompt written notice thereof to the Indenture Trustee, Lessee and
the Certificate Holders.
SECTION 8.02. RESIGNATION OF INDENTURE TRUSTEE; APPOINTMENT
OF SUCCESSOR.
(a) The Indenture Trustee or any successor thereto may resign
at any time without cause by giving at least 30 days' prior written notice to
Lessee, the Owner Trustee, the Owner Participant and each Certificate Holder,
such resignation to be effective upon the acceptance of the trusteeship by a
successor Indenture Trustee. In addition, a Majority in Interest of Certificate
Holders may at any time (but only with the consent of Lessee, which consent
shall not be unreasonably withheld, except that such consent shall not be
necessary if a Lease Event of Default is continuing) remove the Indenture
Trustee without cause by an instrument in writing delivered to the Owner
Trustee, Lessee, the Owner Participant and the Indenture Trustee, and the
Indenture Trustee shall promptly notify each Certificate Holder thereof in
writing, such removal to be effective upon the acceptance of the trusteeship by
a successor Indenture Trustee. In the case of the resignation or removal of the
Indenture Trustee, a Majority in Interest of Certificate Holders may appoint a
successor Indenture Trustee by an instrument signed by such holders, which
successor, so long as no Lease Event of Default shall have occurred and be
continuing, shall be subject to Lessee's reasonable approval. If a successor
Indenture Trustee shall not have been appointed within 30 days after such notice
of resignation or removal, the Indenture Trustee, the Owner Trustee, the Owner
Participant or any Certificate Holder may apply to any court of competent
jurisdiction to appoint a successor Indenture Trustee to act until such time, if
any, as a successor shall have been appointed as above provided. The successor
Indenture Trustee so appointed by such court shall immediately and without
further act be superseded by any successor Indenture Trustee appointed as above
provided.
(b) Any successor Indenture Trustee, however appointed, shall
execute and deliver to the Owner Trustee, the predecessor Indenture Trustee and
Lessee an instrument accepting such appointment and assuming the obligations of
the Indenture Trustee under the Participation Agreement arising from and after
the time of such appointment, and thereupon such
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successor Indenture Trustee, without further act, shall become vested with all
the estates, properties, rights, powers and duties of the predecessor Indenture
Trustee hereunder in the trust hereunder applicable to it with like effect as if
originally named the Indenture Trustee herein; but nevertheless upon the written
request of such successor Indenture Trustee, such predecessor Indenture Trustee
shall execute and deliver an instrument transferring to such successor Indenture
Trustee, upon the trusts herein expressed applicable to it, all the estates,
properties, rights and powers of such predecessor Indenture Trustee, and such
predecessor Indenture Trustee shall duly assign, transfer, deliver and pay over
to such successor Indenture Trustee all monies or other property then held by
such predecessor Indenture Trustee hereunder.
(c) Any successor Indenture Trustee, however appointed, shall
be a bank or trust company having its principal place of business in the Borough
of Manhattan, City and State of New York; Minneapolis, Minnesota; Chicago,
Illinois; Hartford, Connecticut; Wilmington, Delaware; or Boston, Massachusetts
and having (or whose obligations under the Operative Documents are guaranteed by
an affiliated entity having) a combined capital and surplus of at least
$100,000,000, if there be such an institution willing, able and legally
qualified to perform the duties of the Indenture Trustee hereunder upon
reasonable or customary terms.
(d) Any corporation into which the Indenture Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Indenture
Trustee shall be a party, or any corporation to which substantially all the
corporate trust business of the Indenture Trustee may be transferred, shall,
subject to the terms of paragraph (c) of this Section 8.02, be a successor
Indenture Trustee and the Indenture Trustee under this Trust Indenture without
further act.
SECTION 8.03. APPOINTMENT OF ADDITIONAL AND SEPARATE TRUSTEES.
(a) Whenever (i) the Indenture Trustee shall deem it necessary
or desirable in order to conform to any law of any jurisdiction in which all or
any part of the Trust Indenture Estate shall be situated or to make any claim or
bring any suit with respect to or in connection with the Trust Indenture Estate,
this Trust Indenture, any other Indenture Agreement, the Secured Certificates or
any of the transactions contemplated by the Participation Agreement, (ii) the
Indenture Trustee shall be advised by counsel satisfactory to it that it is so
necessary or prudent in the interests of the Certificate Holders (and the
Indenture Trustee shall so advise the Owner Trustee and Lessee), or (iii) the
Indenture Trustee shall have been requested to do so by a Majority in Interest
of Certificate Holders, then in any such case, the Indenture Trustee and, upon
the written request of the Indenture Trustee, the Owner Trustee, shall execute
and deliver an indenture supplemental hereto and such other instruments as may
from time to time be necessary or advisable either (1) to constitute one or more
bank or trust companies or one or more persons approved by the Indenture
Trustee, either to act jointly with the Indenture Trustee as additional trustee
or trustees of all or any part of the Trust Indenture Estate, or to act as
separate trustee or trustees of all or any part of the Trust Indenture Estate,
in each case with such rights, powers, duties and obligations consistent with
this Trust Indenture as may be provided in such supplemental indenture or other
instruments as the Indenture Trustee or a Majority in Interest of Certificate
Holders may deem necessary or advisable, or (2) to clarify, add to or subtract
from the rights, powers, duties and obligations theretofore granted any such
additional and separate trustee, subject in each case to the remaining
provisions of this Section 8.03. If the Owner
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Trustee shall not have taken any action requested of it under this Section
8.03(a) that is permitted or required by its terms within 15 days after the
receipt of a written request from the Indenture Trustee so to do, or if an Event
of Default shall have occurred and be continuing, the Indenture Trustee may act
under the foregoing provisions of this Section 8.03(a) without the concurrence
of the Owner Trustee; and the Owner Trustee hereby irrevocably appoints (which
appointment is coupled with an interest) the Indenture Trustee, its agent and
attorney-in-fact to act for it under the foregoing provisions of this Section
8.03(a) in either of such contingencies. The Indenture Trustee may, in such
capacity, execute, deliver and perform any such supplemental indenture, or any
such instrument, as may be required for the appointment of any such additional
or separate trustee or for the clarification of, addition to or subtraction from
the rights, powers, duties or obligations theretofore granted to any such
additional or separate trustee. In case any additional or separate trustee
appointed under this Section 8.03(a) shall die, become incapable of acting,
resign or be removed, all the assets, property, rights, powers, trusts, duties
and obligations of such additional or separate trustee shall revert to the
Indenture Trustee until a successor additional or separate trustee is appointed
as provided in this Section 8.03(a).
(b) No additional or separate trustee shall be entitled to
exercise any of the rights, powers, duties and obligations conferred upon the
Indenture Trustee in respect of the custody, investment and payment of monies
and all monies received by any such additional or separate trustee from or
constituting part of the Trust Indenture Estate or otherwise payable under any
Operative Document to the Indenture Trustee shall be promptly paid over by it to
the Indenture Trustee. All other rights, powers, duties and obligations
conferred or imposed upon any additional or separate trustee shall be exercised
or performed by the Indenture Trustee and such additional or separate trustee
jointly except to the extent that applicable Law of any jurisdiction in which
any particular act is to be performed renders the Indenture Trustee incompetent
or unqualified to perform such act, in which event such rights, powers, duties
and obligations (including the holding of title to all or part of the Trust
Indenture Estate in any such jurisdiction) shall be exercised and performed by
such additional or separate trustee. No additional or separate trustee shall
take any discretionary action except on the instructions of the Indenture
Trustee or a Majority in Interest of Certificate Holders. No trustee hereunder
shall be personally liable by reason of any act or omission of any other trustee
hereunder, except that the Indenture Trustee shall be liable for the
consequences of its lack of reasonable care in selecting, and Indenture
Trustee's own actions in acting with, any additional or separate trustee. Each
additional or separate trustee appointed pursuant to this Section 8.03 shall be
subject to, and shall have the benefit of Articles IV through VIII and Article X
hereof insofar as they apply to the Indenture Trustee. The powers of any
additional or separate trustee appointed pursuant to this Section 8.03 shall not
in any case exceed those of the Indenture Trustee hereunder.
(c) If at any time the Indenture Trustee shall deem it no
longer necessary or desirable in order to conform to any such law or take any
such action or shall be advised by such counsel that it is no longer so
necessary or desirable in the interest of the Certificate Holders, or in the
event that the Indenture Trustee shall have been requested to do so in writing
by a Majority in Interest of Certificate Holders, the Indenture Trustee and,
upon the written request of the Indenture Trustee, the Owner Trustee, shall
execute and deliver an indenture supplemental hereto and all other instruments
and agreements necessary or proper to remove any additional or separate trustee.
The Indenture Trustee may act on behalf of the Owner Trustee under this Section
8.03(c) when and to the extent it could so act under Section 8.03(a) hereof.
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ARTICLE IX
SUPPLEMENT AND AMENDMENTS TO THIS TRUST INDENTURE
AND OTHER DOCUMENTS
SECTION 9.01. INSTRUCTIONS OF MAJORITY; LIMITATIONS.
(a) Except as provided in Section 5.02 hereof, and except
with respect to Excluded Payments, the Owner Trustee agrees it shall not
enter into any amendment of or supplement to the Lease, the Purchase
Agreement, the Purchase Agreement Assignment, the Consent and Agreement or
the Guarantee, or execute and deliver any written waiver or modification of,
or consent under, the terms of the Lease, the Purchase Agreement, the
Purchase Agreement Assignment, the Consent and Agreement or the Guarantee,
unless such supplement, amendment, waiver, modification or consent is
consented to in writing by the Indenture Trustee and a Majority in Interest
of Certificate Holders. Anything to the contrary contained herein
notwithstanding, without the necessity of the consent of any of the
Certificate Holders or the Indenture Trustee, (i) any Excluded Payments
payable to the Owner Participant may be modified, amended, changed or waived
in such manner as shall be agreed to by the Owner Participant and Lessee and
(ii) the Owner Trustee and Lessee may enter into amendments of or additions
to the Lease to modify Section 5 (except to the extent that such amendment
would affect the rights or exercise of remedies under Section 15 of the
Lease), Section 9 or Section 19 of the Lease so long as such amendments,
modifications and changes do not and would not affect the time of, or reduce
the amount of, Rent payments until after the payment in full of all Secured
Obligations or otherwise adversely affect the Certificate Holders.
(b) Without limiting the provisions of Section 9.01(a)
hereof and subject to Section 5.02(a)(2)(i) hereof, the Indenture Trustee
agrees with the Certificate Holders that it shall not enter into any
amendment, waiver or modification of, supplement or consent to this Trust
Indenture, the Lease, the Purchase Agreement, the Purchase Agreement
Assignment, the Consent and Agreement, the Guarantee or the Participation
Agreement, or any other agreement included in the Trust Indenture Estate,
unless such supplement, amendment, waiver, modification or consent is
consented to in writing by a Majority in Interest of Certificate Holders, or
does not adversely affect the Certificate Holders, but upon the written
request of a Majority in Interest of Certificate Holders, the Indenture
Trustee shall from time to time enter into any such supplement or amendment,
or execute and deliver any such waiver, modification or consent, as may be
specified in such request and as may be (in the case of any such amendment,
supplement or modification), to the extent such agreement is required, agreed
to by the Owner Trustee and Lessee or, as may be appropriate, the
Manufacturer; PROVIDED, HOWEVER, that, without the consent of each holder of
an affected Secured Certificate then outstanding, no such amendment of or
supplement to this Trust Indenture, the Lease, the Purchase Agreement, the
Purchase Agreement Assignment, the Consent and Agreement, the Guarantee or
the Participation Agreement or waiver or modification of the terms of, or
consent under, any thereof, shall (i) modify any of the provisions of this
Section 9.01, or of Sections 2.02, 2.10, 2.11, 2.15, 4.02, 4.04(c), 4.04(d),
5.02 or 5.06 hereof, Section 14 (except to add an Event of Default) of the
Lease, the definitions of "Event of Default", "Default", "Lease Event of
Default", "Lease Default", "Majority in Interest of Certificate Holders",
"Make-Whole Amount" or "Certificate Holder", or the percentage of Certificate
Holders required to take or approve any action hereunder, (ii) reduce the
amount, or
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change the time of payment or method of calculation of any amount, of Principal
Amount, Make-Whole Amount, if any, or interest with respect to any Secured
Certificate, or alter or modify the provisions of Article III hereof with
respect to the order of priorities in which distribution thereunder shall be
made as among the Certificate Holders, the Owner Trustee and Lessee, (iii)
reduce, modify or amend any indemnities in favor of the Certificate Holders,
(iv) consent to any change in the Trust Indenture or the Lease which would
permit redemption of Secured Certificates earlier than permitted under Section
2.10 or 2.11 hereof or the purchase of the Secured Certificates other than as
permitted by Section 2.14 hereof, (v) modify any of the provisions of Section
3(d)(v) of the Lease, or modify, amend or supplement the Lease or consent to any
assignment of the Lease, in either case releasing Lessee from its obligations in
respect of the payment of Basic Rent, Stipulated Loss Value or Termination Value
for the Aircraft or altering the absolute and unconditional character of the
obligations of Lessee to pay Rent as set forth in Sections 3 and 18 of the Lease
or (vi) permit the creation of any Lien on the Trust Indenture Estate or any
part thereof other than Permitted Liens or deprive any Certificate Holder of the
benefit of the Lien of this Trust Indenture on the Trust Indenture Estate,
except as provided in connection with the exercise of remedies under Article IV
hereof. So long as no Lease Event of Default has occurred and is continuing,
without the consent of Lessee no amendment or supplement to this Trust Indenture
or waiver or modification of the terms hereof shall adversely affect Lessee.
(c) At any time after the date hereof, the Owner Trustee and
the Indenture Trustee may enter into one or more agreements supplemental hereto
without the consent of any Certificate Holder for any of the following purposes:
(i) (a) to cure any defect or inconsistency herein or in the Secured
Certificates, or to make any change not inconsistent with the provisions hereof
(PROVIDED that such change does not adversely affect the interests of any
Certificate Holder in its capacity solely as Certificate Holder) or (b) to cure
any ambiguity or correct any mistake; (ii) to evidence the succession of another
party as the Owner Trustee in accordance with the terms of the Trust Agreement
or to evidence the succession of a new trustee hereunder pursuant hereto, the
removal of the trustee hereunder or the appointment of any co-trustee or
co-trustees or any separate or additional trustee or trustees; (iii) to convey,
transfer, assign, mortgage or pledge any property to or with the Indenture
Trustee or to make any other provisions with respect to matters or questions
arising hereunder so long as such action shall not adversely affect the
interests of the Certificate Holders in its capacity solely as Certificate
Holder; (iv) to correct or amplify the description of any property at any time
subject to the Lien of this Trust Indenture or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subject to the Lien of this Trust Indenture, the Airframe or Engines or any
Replacement Airframe or Replacement Engine; (v) to add to the covenants of the
Owner Trustee for the benefit of the Certificate Holders, or to surrender any
rights or power herein conferred upon the Owner Trustee, the Owner Participant
or Lessee; (vi) to add to the rights of the Certificate Holders; and (vii) to
include on the Secured Certificates any legend as may be required by law.
SECTION 9.02. TRUSTEES PROTECTED.
If, in the opinion of the institution acting as Owner Trustee
under the Trust Agreement or the institution acting as Indenture Trustee
hereunder, any document required to be executed by it pursuant to the terms of
Section 9.01 hereof adversely affects any right, duty,
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immunity or indemnity with respect to such institution under this Trust
Indenture or the Lease, such institution may in its discretion decline to
execute such document.
SECTION 9.03. DOCUMENTS MAILED TO CERTIFICATE HOLDERS.
Promptly after the execution by the Owner Trustee or the
Indenture Trustee of any document entered into pursuant to Section 9.01 hereof,
the Indenture Trustee shall mail, by first class mail, postage prepaid, a copy
thereof to Lessee and to each Certificate Holder at its address last set forth
in the Secured Certificate Register, but the failure of the Indenture Trustee to
mail such copies shall not impair or affect the validity of such document.
SECTION 9.04. NO REQUEST NECESSARY FOR LEASE SUPPLEMENT OR
TRUST AGREEMENT AND INDENTURE SUPPLEMENT.
No written request or consent of the Indenture Trustee, the
Certificate Holders or the Owner Participant pursuant to Section 9.01 hereof
shall be required to enable the Owner Trustee to enter into any Lease Supplement
specifically required by the terms of the Lease or to execute and deliver a
Trust Agreement and Indenture Supplement specifically required by the terms
hereof.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. TERMINATION OF TRUST INDENTURE.
Upon (or at any time after) payment in full of the Principal
Amount of, Make-Whole Amount, if any, and interest on and all other amounts due
under all Secured Certificates and provided that there shall then be no other
Secured Obligations due to the Certificate Holders and the Indenture Trustee
hereunder or under the Participation Agreement, the Owner Trustee shall direct
the Indenture Trustee to execute and deliver to or as directed in writing by the
Owner Trustee an appropriate instrument releasing the Aircraft and the Engines
from the Lien of this Trust Indenture and releasing the Lease, the Purchase
Agreement, the Purchase Agreement Assignment with the Consent and Agreement
attached thereto and the Guarantee from the assignment and pledge thereof
hereunder and the Indenture Trustee shall execute and deliver such instrument as
aforesaid and give written notice thereof to Lessee; PROVIDED, HOWEVER, that
this Trust Indenture and the trusts created hereby shall earlier terminate and
this Trust Indenture shall be of no further force or effect upon any sale or
other final disposition by the Indenture Trustee of all property constituting
part of the Trust Indenture Estate and the final distribution by the Indenture
Trustee of all monies or other property or proceeds constituting part of the
Trust Indenture Estate in accordance with the terms hereof. Except as aforesaid
otherwise provided, this Trust Indenture and the trusts created hereby shall
continue in full force and effect in accordance with the terms hereof.
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SECTION 10.02. NO LEGAL TITLE TO TRUST INDENTURE ESTATE IN
CERTIFICATE HOLDERS
No holder of a Secured Certificate shall have legal title to
any part of the Trust Indenture Estate. No transfer, by operation of law or
otherwise, of any Secured Certificate or other right, title and interest of any
Certificate Holder in and to the Trust Indenture Estate or hereunder shall
operate to terminate this Trust Indenture or entitle such holder or any
successor or transferee of such holder to an accounting or to the transfer to it
of any legal title to any part of the Trust Indenture Estate.
SECTION 10.03. SALE OF AIRCRAFT BY INDENTURE TRUSTEE IS
BINDING.
Any sale or other conveyance of the Trust Indenture Estate, or
any part thereof (including any part thereof or interest therein), by the
Indenture Trustee made pursuant to the terms of this Trust Indenture shall bind
the Certificate Holders and shall be effective to transfer or convey all right,
title and interest of the Indenture Trustee, the Owner Trustee, the Owner
Participant and such holders in and to such Trust Indenture Estate or part
thereof. No purchaser or other grantee shall be required to inquire as to the
authorization, necessity, expediency or regularity of such sale or conveyance or
as to the application of any sale or other proceeds with respect thereto by the
Indenture Trustee.
SECTION 10.04. TRUST INDENTURE FOR BENEFIT OF THE OWNER
TRUSTEE, THE INDENTURE TRUSTEE, OWNER PARTICIPANT, LESSEE AND CERTIFICATE
HOLDERS.
Nothing in this Trust Indenture, whether express or implied,
shall be construed to give any person other than the Owner Trustee, the
Indenture Trustee, the Owner Participant, Lessee and the Certificate Holders,
any legal or equitable right, remedy or claim under or in respect of this Trust
Indenture.
SECTION 10.05. NOTICES.
Unless otherwise expressly specified or permitted by the terms
hereof, all notices, requests, demands, authorizations, directions, consents,
waivers or documents provided or permitted by this Trust Indenture to be made,
given, furnished or filed shall be in writing, personally delivered or mailed by
certified mail, postage prepaid, or by facsimile or confirmed telex, and (i) if
to the Owner Trustee, addressed to it at its office at MAC: U1254-031, 00 Xxxxx
Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attention: Corporate Trust Department
(Telecopy No. (000) 000-0000), with a copy to the Owner Participant addressed as
provided in clause (iii) below, (ii) if to the Indenture Trustee, addressed to
it at its office at, for U.S. MAIL at Corporate Trust Department, X.X. Xxx 000,
Xxxxxx, Xxxxxxxxxxxxx 00000-0000, and for OVERNIGHT COURIER at Corporate Trust
Department, 0 Xxxxxx xx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000 (Telecopy
No. (000) 000-0000), (iii) if to any Participant, Lessee or any Certificate
Holder, addressed to such party at such address as such party shall have
furnished by notice to the Owner Trustee and the Indenture Trustee, or, until an
address is so furnished, addressed to the address of such party (if any) set
forth on the signature pages to the Participation Agreement or in the Secured
Certificate Register. Whenever any notice in writing is required to be given by
the Owner Trustee, any Participant or the Indenture Trustee or any Certificate
Holder or Lessee to
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any of the other of them, such notice shall be deemed given and such requirement
satisfied when such notice is received, or if such notice is mailed by certified
mail, postage prepaid, three Business Days after being mailed, addressed as
provided above. Any party hereto may change the address to which notices to such
party will be sent by giving notice of such change to the other parties to this
Trust Indenture.
SECTION 10.06. SEVERABILITY.
Any provision of this Trust Indenture which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 10.07. NO ORAL MODIFICATION OR CONTINUING WAIVERS.
No term or provision of this Trust Indenture or the Secured
Certificates may be changed, waived, discharged or terminated orally, but only
by an instrument in writing signed by the Owner Trustee and the Indenture
Trustee, in compliance with Section 9.01 hereof. Any waiver of the terms hereof
or of any Secured Certificate shall be effective only in the specific instance
and for the specific purpose given.
SECTION 10.08. SUCCESSORS AND ASSIGNS.
All covenants and agreements contained herein shall be binding
upon, and inure to the benefit of, each of the parties hereto and the permitted
successors and assigns of each, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by any Certificate
Holder shall bind the successors and assigns of such holder. This Trust
Indenture and the Trust Indenture Estate shall not be affected by any amendment
or supplement to the Trust Agreement or by any other action taken under or in
respect of the Trust Agreement, except that each reference in this Trust
Indenture to the Trust Agreement shall mean the Trust Agreement as amended and
supplemented from time to time to the extent permitted hereby, thereby and by
the Participation Agreement. Each Certificate Holder by its acceptance of a
Secured Certificate agrees to be bound by this Trust Indenture and all
provisions of the Participation Agreement applicable to a Loan Participant or a
Certificate Holder.
SECTION 10.09. HEADINGS.
The headings of the various Articles and sections herein and
in the table of contents hereto are for convenience of reference only and shall
not define or limit any of the terms or provisions hereof.
SECTION 10.10. NORMAL COMMERCIAL RELATIONS.
Anything contained in this Trust Indenture to the contrary
notwithstanding, the Owner Trustee, the Indenture Trustee, any Participant or
any bank or other Affiliate of such Participant may conduct any banking or other
financial transactions, and have banking or other commercial relationships, with
Lessee, fully to the same extent as if this Trust Indenture were
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not in effect, including without limitation the making of loans or other
extensions of credit to Lessee for any purpose whatsoever, whether related to
any of the transactions contemplated hereby or otherwise.
SECTION 10.11. GOVERNING LAW; COUNTERPART FORM.
THIS TRUST INDENTURE SHALL IN ALL RESPECTS BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. THIS TRUST
INDENTURE IS BEING DELIVERED IN THE STATE OF NEW YORK. This Trust Indenture may
be executed by the parties hereto in separate counterparts (or upon separate
signature pages bound together into one or more counterparts), each of which
when so executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 10.12. VOTING BY CERTIFICATE HOLDERS.
All votes of the Certificate Holders shall be governed by a
vote of a Majority in Interest of Certificate Holders, except as otherwise
provided herein.
SECTION 10.13. BANKRUPTCY.
It is the intention of the parties that the Owner Trustee, as
lessor under the Lease (and the Indenture Trustee as assignee of the Owner
Trustee hereunder), shall be entitled to the benefits of Section 1110 with
respect to the right to take possession of the Aircraft, Airframe, Engines and
Parts as provided in the Lease in the event of a case under Chapter 11 of the
Bankruptcy Code in which Lessee is a debtor, and in any instance where more than
one construction is possible of the terms and conditions hereof or any other
pertinent Operative Document, each such party agrees that a construction which
would preserve such benefits shall control over any construction which would not
preserve such benefits.
SECTION 10.14. NO ACTION CONTRARY TO LESSEE'S RIGHTS UNDER
THE LEASE.
Notwithstanding any of the provisions of this Trust Indenture
or the Trust Agreement to the contrary, neither the Indenture Trustee nor the
Owner Trustee will take any action contrary to Lessee's rights under the Lease,
including the right to possession and use of, and the quiet enjoyment of, the
Aircraft, except in accordance with provisions of the Lease.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust
Indenture to be duly executed by their respective officers thereof duly
authorized as of the day and year first above written.
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION, not in its
individual capacity, except as
expressly provided herein, but
solely as Owner Trustee, Owner Trustee
By:
----------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity, except
as expressly provided herein, but
solely as Indenture Trustee,
Indenture Trustee
By:
----------------------------------
Name:
Title:
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----------------------
EXHIBIT A
TO
TRUST INDENTURE
AND SECURITY AGREEMENT
----------------------
TRUST INDENTURE SUPPLEMENT
[NW ____ _]
This TRUST INDENTURE SUPPLEMENT [NW ____ _], dated
[___________] (herein called this "TRUST INDENTURE SUPPLEMENT") of XXXXX FARGO
BANK NORTHWEST, NATIONAL ASSOCIATION, not in its individual capacity, but solely
as Owner Trustee (herein called the "OWNER TRUSTEE") under that certain Trust
Agreement [NW ____ _] dated as of [_______________] (the "TRUST AGREEMENT"),
between the Owner Trustee and the Owner Participant named therein.
W I T N E S S E T H:
WHEREAS, the TRUST INDENTURE AND SECURITY AGREEMENT [NW ____
_], dated as of [_______________] (as amended and supplemented to the date
hereof, the "TRUST INDENTURE") between the Owner Trustee and STATE STREET BANK
AND TRUST COMPANY, as Indenture Trustee (the "INDENTURE TRUSTEE"), provides for
the execution and delivery of a supplement thereto substantially in the form
hereof, which shall particularly describe the Aircraft, and shall specifically
mortgage such Aircraft to the Indenture Trustee; and
WHEREAS, the Trust Indenture relates to the Airframe and
Engines described below, and a counterpart of the Trust Indenture is attached
hereto and made a part hereof and this Trust Indenture Supplement, together with
such counterpart of the Trust Indenture, is being filed for recordation on the
date hereof with the FAA as one document;
NOW, THEREFORE, this Trust Indenture Supplement witnesseth
that the Owner Trustee hereby confirms that the Lien of the Trust Indenture on
the Trust Indenture Estate covers all of the Owner Trustee's right, title and
interest in and to the following described property:
EXHIBIT A-1
AIRFRAME
One airframe identified as follows:
FAA
Registration Manufacturer's
Manufacturer Model Number Serial Number
------------------------------- --------------------- --------------------- -------------------
together with all of the Owner Trustee's right, title and interest in and to all
Parts of whatever nature, whether now owned or hereinafter acquired and which
are from time to time incorporated or installed in or attached to said airframe.
AIRCRAFT ENGINES
[Two] [Four] aircraft engines, each such engine having 750 or
more rated take-off horsepower or the equivalent thereof, identified as follows:
Manufacturer Manufacturer's Model Serial Number
---------------------------------------- ------------------------------- ----------------------
together with all of the Owner Trustee's right, title and interest in and to all
Parts of whatever nature, whether now owned or hereafter acquired and which are
from time to time incorporated or installed in or attached to any of such
engines.
Together with all of the Owner Trustee's right, title and
interest in and to all Parts of whatever nature, which from time to time are
included within the definition of "Airframe" or "Engine", whether now owned or
hereafter acquired, including all substitutions, renewals and replacements of
and additions, improvements, accessions and accumulations to the Airframe and
Engines (other than additions, improvements, accessions and accumulations which
constitute appliances, parts, instruments, appurtenances, accessories,
furnishings or other equipment excluded from the definition of Parts).
As further security for the obligations referred to above and
secured by the Trust Indenture and hereby, the Owner Trustee has granted,
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 Loan Participants and of the
Certificate Holders, in the
EXHIBIT A-2
trust created by the Trust Indenture, all of the right, title and interest of
the Owner Trustee in, to and under the Lease Supplement [of even date herewith]
covering the property described above.
Notwithstanding any provision hereof, no Excluded Payment
shall constitute security for any of the aforementioned obligations.
TO HAVE AND TO HOLD all and singular the aforesaid property
unto the Indenture Trustee, its successors and assigns, in trust for the equal
and proportionate benefit and security of the Certificate Holders, except as
provided in Section 2.15 and Article III of the Trust Indenture without any
preference, distinction or priority of any one Secured Certificate over any
other by reason of priority of time of issue, sale, negotiation, date of
maturity thereof or otherwise for any reason whatsoever, and for the uses and
purposes and subject to the terms and provisions set forth in the Trust
Indenture.
This Trust Indenture Supplement shall be construed as
supplemental to the Trust Indenture and shall form a part thereof. The Trust
Indenture is each hereby incorporated by reference herein and is hereby
ratified, approved and confirmed.
This Trust Indenture Supplement is being delivered in the
State of New York.
AND, FURTHER, the Owner Trustee hereby acknowledges that the
Aircraft referred to in this Trust Indenture Supplement and the aforesaid Lease
Supplement has been delivered to the Owner Trustee and is included in the
property of the Owner Trustee covered by all the terms and conditions of the
Trust Agreement, subject to the pledge and mortgage thereof under the Trust
Indenture.
EXHIBIT A-3
IN WITNESS WHEREOF, the Owner Trustee has caused this Trust
Indenture Supplement to be duly executed by one of its officers, thereunto duly
authorized, on the day and year first above written.
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Owner Trustee, Owner Trustee
By: ______________________________________
Name:
Title:
EXHIBIT A-4
SCHEDULE I
PRINCIPAL AMOUNT INTEREST RATE MATURITY DATE
------------------- --------------- ---------------
Series A-1.............. $[_________] 7.041%
Series A-2.............. $[_________] 6.841% April 1, 2011
Series B................ $[_________] 7.691%
Series C................ $[_________] 7.626%
[Series D............... $[_________] [_______]%-- option for
A319's and 757's]
SCHEDULE I-1
SECURED CERTIFICATES AMORTIZATION
SERIES A-1
AIRCRAFT: N[_____]
PERCENTAGE OF PRINCIPAL
PAYMENT DATE AMOUNT TO BE PAID
-------------- -------------------------
SCHEDULE I-2
SERIES B
AIRCRAFT: N[_____]
PERCENTAGE OF PRINCIPAL
PAYMENT DATE AMOUNT TO BE PAID
-------------- -------------------------
SCHEDULE I-3
SERIES C
AIRCRAFT: N[_____]
PERCENTAGE OF PRINCIPAL
PAYMENT DATE AMOUNT TO BE PAID
-------------- -------------------------
SCHEDULE I-4
[SERIES D
AIRCRAFT: N[_____]
PERCENTAGE OF PRINCIPAL
PAYMENT DATE AMOUNT TO BE PAID
-------------- -------------------------
SCHEDULE I-5-- option for A319's and 757's]
SCHEDULE II
PASS THROUGH TRUST AGREEMENTS
1. Pass Through Trust Agreement, dated as of June 3, 1999 among Northwest
Airlines Corporation, Northwest Airlines, Inc., and State Street Bank
and Trust Company of Connecticut, National Association, as supplemented
by Trust Supplement No. 2001-1A-1, dated as of June 1, 2001 among
Northwest Airlines, Inc., Northwest Airlines Corporation and State
Street Bank and Trust Company of Connecticut, National Association.
2. Pass Through Trust Agreement, dated as of June 3, 1999 among Northwest
Airlines Corporation, Northwest Airlines, Inc., and State Street Bank
and Trust Company of Connecticut, National Association, as supplemented
by Trust Supplement No. 2001-1A-2, dated as of June 1, 2001 among
Northwest Airlines, Inc., Northwest Airlines Corporation and State
Street Bank and Trust Company of Connecticut, National Association.
3. Pass Through Trust Agreement, dated as of June 3, 1999, among Northwest
Airlines Corporation, Northwest Airlines, Inc., and State Street Bank
and Trust Company of Connecticut, National Association, as supplemented
by Trust Supplement No. 2001-1B, dated as of June 1, 2001 among
Northwest Airlines, Inc., Northwest Airlines Corporation and State
Street Bank and Trust Company of Connecticut, National Association.
4. Pass Through Trust Agreement, dated as of June 3, 1999, among Northwest
Airlines Corporation, Northwest Airlines, Inc., and State Street Bank
and Trust Company of Connecticut, National Association, as supplemented
by Trust Supplement No. 2001-1C, dated as of June 1, 2001 among
Northwest Airlines, Inc., Northwest Airlines Corporation and State
Street Bank and Trust Company of Connecticut, National Association.
[5. Pass Through Trust Agreement, dated as of June 3, 1999, among Northwest
Airlines Corporation, Northwest Airlines, Inc., and State Street Bank
and Trust Company of Connecticut, National Association, as supplemented
by Trust Supplement No. 2001-1D, dated as of [___________, ____] among
Northwest Airlines, Inc., Northwest Airlines Corporation and State
Street Bank and Trust Company of Connecticut, National Association.--
option for A319's and 757's]
SCHEDULE II-1
