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EXHIBIT 4.6
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FIRST AMENDMENT
TO
TRUST INDENTURE AND SECURITY AGREEMENT
Dated as of May 1, 1998
between
FIRST UNION NATIONAL BANK,
in its individual capacity only as
expressly set forth herein and
otherwise solely as Owner Trustee
and
WILMINGTON TRUST COMPANY,
as Indenture Trustee
One Boeing 737-3H4 Aircraft N620SW
Southwest Airlines Co.
Series SWA 1996 Trust N620SW Certificates
(Southwest Airlines 1996 Trust N620SW)
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FIRST AMENDMENT TO
TRUST INDENTURE AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO TRUST INDENTURE AND SECURITY AGREEMENT dated
as of May 1, 1998 (this "Amendment") between FIRST UNION NATIONAL BANK, in its
individual capacity only as expressly set forth herein and otherwise solely as
Owner Trustee under that certain Trust Agreement establishing the Southwest
Airlines 1996 Trust N620SW and dated as of June 1, 1996 (in such capacity, the
"Owner Trustee") and WILMINGTON TRUST COMPANY, as Indenture Trustee (the
"Indenture Trustee"), amends that certain related Trust Indenture and Security
Agreement dated as of June 1, 1996 (the "Original Indenture") between the Owner
Trustee and the Indenture Trustee (the Original Indenture, as supplemented by
Trust Agreement and Trust Indenture and Security Agreement Supplement dated
June 3, 1996 by the Owner Trustee, relating to the aircraft having U.S.
registration number N620SW, being referred to herein as the "Indenture"),
W I T N E S S E T H :
WHEREAS, except as otherwise defined in this Amendment, the
capitalized terms used herein shall have the meanings attributed thereto in the
Indenture;
WHEREAS, a counterpart to the Indenture was recorded by the Federal
Aviation Administration on July 17, 1996 and assigned Conveyance No. S098303;
WHEREAS, the Owner Trustee has agreed to refinance the Series SWA 1996
Trust N620SW-1 Certificates with Series SWA 1996 Trust N620SW Certificates; and
WHEREAS, in order to effect such refinancing, the Owner Trustee and
the Indenture Trustee have agreed to amend the Indenture as provided for below;
NOW THEREFORE, in consideration of the mutual agreements contained
herein, the parties hereto agree as follows:
Section 1. Amendments to the Indenture. The Indenture is, effective
as of the date hereof, hereby amended as follows:
(a) The definitions of "Business Day" and "Holder" in
Section 1.01(b) of the Indenture are amended in their entirety to read
as follows:
"Business Day" means any day other than a Saturday or
Sunday or a day on which commercial banks are required or
authorized to close in the City of Dallas, Texas; New York,
New York; or the city and state in which (i) so long as any
Certificates shall be Outstanding, each of the Indenture
Trustee and the Pass Through Trustee and (ii) thereafter, the
Owner Trustee, has its principal place of business; or the
city and state in which the Indenture Trustee, the Pass
Through Trustee or the Owner Trustee, as the case may be,
receives and disburses funds.
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"Holder" or "Certificate Holder" means a Person in
whose name a Certificate is registered on the Register
including, so long as it holds a Series SWA 1996 Trust N620SW
Certificate, the Pass Through Trustee.
(b) The following new definitions are inserted in Section
1.01(b) of the Indenture after the definition of "Owner Trustee":
"Pass Through Certificate" means any of the Pass
Through Certificates issued pursuant to the Pass Through Trust
Agreement.
"Pass Through Trust" means each pass through trust
created pursuant to the Pass Through Trust Agreement.
"Pass Through Trust Agreement" means the Pass Through
Trust Agreement dated as of February 1, 1993, between the
Company and the Pass Through Trustee, as supplemented by Trust
Supplement No. 1998-A, dated as of May 1, 1998, as the same
may from time to time be further amended, supplemented or
otherwise modified.
"Pass Through Trustee" means Wilmington Trust Company
in its capacity as trustee under the Pass Through Trust
Agreement, and such other Person that may from time to time be
acting as successor trustee under the Pass Through Trust
Agreement.
(c) The first sentence of Section 6.02 of the Indenture
is amended to be and read in its entirety as follows:
"If the Owner Trustee shall have given notice of
redemption or purchase to the Indenture Trustee pursuant to
its rights under Section 8.03(e)(ii), each Outstanding
Certificate shall be redeemed or purchased in whole at a
Redemption Price equal to 100% of its principal amount plus
accrued and unpaid interest thereon (including, without
limitation, interest on overdue interest) to but excluding the
applicable Redemption Date as determined below and all other
amounts payable to the Holders hereunder or under the
Participation Agreement and, in the case of the Series SWA
1996 Trust N620SW-I Certificate, the Break Amount, if any,
and, in the case of the Series SWA 1996 Trust N620SW
Certificates, if to be purchased or redeemed pursuant to
Section 8.03(e)(ii)(A) prior to the one year anniversary of
the first occurrence of the relevant Lease Event of Default,
and, if such purchase or redemption is effected prior to the
Premium Termination Date in respect of any Certificate, the
Premium, if any, in respect of such Certificate."
(d) Clause (iii) of Section 9.13(b)(1) of the Indenture
is amended to be and read in its entirety as follows:
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"(iii) to effect cures pursuant to Section 20 of the Lease;
provided that this will not be deemed to cure the related
Indenture Event of Default unless permitted by the terms of
Section 8.03(e)(i), and".
(e) Exhibits A-1, B, B-1 and B-2 to the Indenture are
replaced in their entirety by Exhibits A-1, B, B-1 and B-2 hereto.
Said revised Exhibits B, B-1 and B-2 shall, for all purposes, be
deemed to have been, and are, completed in accordance with Article 15
of the Indenture.
Section 2. Lease Amendment. As of the date hereof, the Lessee
and the Owner Trustee are entering into First Amendment to Sale and Lease
Agreement (the "Lease Amendment") to the Sale and Lease Agreement dated as of
June 1, 1996 relating to the Aircraft, which Sale and Lease Agreement (together
with Sale and Lease Agreement Supplement No. One, dated June 3, 1996 thereto)
was recorded with the Federal Aviation Administration on July 17, 1996 and
assigned Conveyance No. S098304. The Lease Amendment is attached hereto and,
without limiting the generality of the Granting Clause of the Indenture, is
covered by the Lien of the Indenture and is made part of the Indenture Estate.
Section 3. Amendment and Incorporation by Reference. This
Amendment is and shall be construed as an amendment and supplement to the
Indenture and shall form a part thereof, and the Indenture is hereby
incorporated herein by reference and is hereby ratified, approved and
confirmed.
Section 4. GOVERNING LAW. THIS AMENDMENT IS BEING DELIVERED IN
THE STATE OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
Section 5. Execution in Counterparts. This Amendment may be
executed by the Owner Trustee and the Indenture Trustee in separate
counterparts, each of which when so executed and delivered is an original, but
all such counterparts shall together constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the Owner Trustee and the Indenture
Trustee have caused this Amendment to be duly executed by their respective
officers thereunto duly authorized, as of the day and year first above written.
FIRST UNION NATIONAL BANK
in its individual capacity
only as expressly set forth
herein and otherwise solely as
Owner Trustee
By:
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Corporate Trust Officer
WILMINGTON TRUST COMPANY,
not in its individual
capacity, except as otherwise
expressly provided herein,
but solely as Indenture Trustee
By:
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Senior Financial Services Officer
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Exhibit A-1 to
First Amendment to
Trust Indenture and
Security Agreement
Form of Series SWA 1996 Trust N620SW Installment Certificates
$______________ No._____________
Dated as of June 3, 1996
SERIES SWA 1996 TRUST N620SW CERTIFICATE
FIRST UNION NATIONAL BANK
Not in its Individual Capacity
but Solely as Owner Trustee
Under the Trust Agreement
Dated as of June 1, 1996
Issued in connection with Aircraft N620SW
Leased to
SOUTHWEST AIRLINES CO.
INTEREST RATE MATURITY DATE
_____________ July 2, 2019
FIRST UNION NATIONAL BANK, not in its individual capacity, but
solely as owner trustee (the "Owner Trustee") under that certain Trust
Agreement dated as of June 1, 1996, between the Owner Trustee in its individual
capacity and the institution referred to therein as the "Owner Participant"
relating to the Aircraft (herein as such Trust Agreement may be amended or
supplemented from time to time called the "Trust Agreement"), for value
received, hereby promises to pay to _______________ or registered assigns the
principal sum of ______________ Dollars in installments on each Installment
Payment Date as set forth herein with the final installment due and payable on
the Maturity Date specified above and to pay interest on the principal amount
remaining unpaid from time to time at the rate per annum specified above from
_______________ or from the most recent date to which interest has been paid or
duly provided for, semiannually, on January 2 and July 2 in each year,
commencing July 2, 1998, until the principal hereof is paid or made available
for payment in full. All amounts payable by the Owner Trustee hereunder and
under the related Trust Indenture and Security Agreement dated as of June 1,
1996, as supplemented and amended by Trust Agreement and Trust Indenture and
Security Agreement Supplement dated June 3,
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1996 and First Amendment to Trust Indenture and Security Agreement dated as of
May 1, 1998 (as further amended or supplemented from time to time referred to
herein as the "Indenture", the defined terms therein not otherwise defined
herein being used herein with the same meanings), by and among the Owner
Trustee and Wilmington Trust Company, as Indenture Trustee thereunder, shall be
made only from the income and proceeds of the Indenture Estate and the other
amounts referred to in Section 3.03 of the Indenture. Each Holder hereof, by
its acceptance of this Certificate, agrees that (a) it will look solely to the
income and proceeds of the Indenture Estate and the other amounts referred to
in Section 3.03 of the Indenture for payment of such amounts, to the extent
available for distribution to the Holder hereof as provided in the Indenture
and (b) neither the Owner Trustee, the Owner Participant nor the Indenture
Trustee is or shall be personally liable to the Holder hereof for any amount
payable hereunder or under the Indenture or, except as provided in the
Indenture, for any liability under the Indenture.
Any amount of interest or principal (including any Installment
Payment Amount) payable hereunder which is not paid when due shall, to the
maximum extent permitted by law, bear interest from the due date thereof until
the date of payment at an interest rate equal to the interest rate specified
above plus 2% per annum. Any other amounts payable to the Holder hereof
hereunder (including, without limitation, Premium) or under the Indenture which
is not paid when due shall bear interest from the due date thereof, until the
date of payment at an interest rate equal to the Overdue Rate. All
computations of interest hereunder shall be calculated on the basis of a year
of twelve 30-day months.
The interest or Installment Payment Amount (other than that
payable on the Maturity Date hereof) so payable, and punctually paid or duly
provided for, on the applicable Interest Payment Date or Installment Payment
Date, as the case may be, will, as provided in the Indenture, be paid to the
Person in whose name this Certificate (or one or more predecessor Certificates)
is registered at the close of business on the Record Date for payment of such
interest or Installment Payment Amount, which shall be the fifteenth day
(whether or not a Business Day) next preceding such Interest Payment Date or
Installment Payment Date, as the case may be. Any such interest or Installment
Payment Amount not so punctually paid or duly provided for shall forthwith
cease to be payable to the registered Holder hereof on such Record Date (or to
the Person in whose name this Certificate is registered upon issuance) and may
be paid to the Person in whose name this Certificate (or one or more
predecessor Certificates) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Installment or Defaulted Interest
to be fixed by the Indenture Trustee, notice whereof shall be given to Holders
of Certificates entitled thereto not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Certificates may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
Payment of the principal of, Premium, if any, and interest on
this Certificate will be made at the principal corporate trust office of the
Indenture Trustee, or the office or agency maintained by the Indenture Trustee
for such purpose, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest and Installment Payment Amounts
(other than that
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payable on the Maturity Date hereof) may be made at the option of the Indenture
Trustee or the Paying Agent by check mailed on or before the due date to the
address of the Holder entitled thereto as such address shall appear on the
Register.
This Certificate shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose unless this Certificate
has been executed on behalf of the Owner Trustee by the manual or facsimile
signature of any authorized officer of the Owner Trustee, and authenticated by
the Indenture Trustee by the manual signature of an authorized officer or
signatory of the Indenture Trustee, in each case as specified in Section 2.02
of the Indenture.
Reference is made to the Indenture and all supplements and
amendments thereto (copies of which are on file with the Indenture Trustee at
its principal corporate trust office) for a more complete statement of the
terms and provisions thereof, including a statement of the properties thereby
conveyed, pledged and assigned, the nature and extent of the security, the
respective rights thereunder of the Owner Trustee, the Indenture Trustee and
the Holders of the Certificates, the terms upon which the Certificates are, and
are to be, executed and delivered, and the terms upon which the Certificates
may be redeemed as well as for a statement of the terms and conditions of the
trust created by the Indenture, to all of which terms and conditions in the
Indenture each Holder hereof agrees by its acceptance of this Certificate.
On each Installment Payment Date, the Holder hereof will
receive a payment of principal equal to the Installment Payment Percentage for
such Installment Payment Date multiplied by the initial principal amount of
this Certificate which is set forth herein, all as shown on Exhibit A hereto.
As more fully provided in the Indenture, the Certificates are
subject to redemption on not less than 30 nor more than 60 days' notice by
mail, under the circumstances set forth in the Indenture, at a Redemption Price
equal to the unpaid principal amount thereof, Premium, if any, plus accrued
interest thereon to the Redemption Date.
If an Indenture Event of Default shall occur and be
continuing, the principal of the Certificates may be declared due and payable
in the manner and with the effect provided in the Indenture. If, and only if,
such an Indenture Event of Default constitutes a Lease Event of Default by the
Company under the Lease, the Indenture Trustee may, to the exclusion of the
Owner Trustee, exercise one or more of the remedies of the Owner Trustee
provided in the Lease. Such remedies include (but are not limited to) the
right to repossess and use or operate the Aircraft, to sell or relet the
Aircraft free and clear of the Company's rights and retain the proceeds and to
require the Company to pay as liquidated damages (i) any unpaid Basic Rent plus
an amount equal to the excess of the Stipulated Loss Value of the Aircraft over
the aggregate fair market rental value thereof for the remainder of the term
for the Aircraft, (ii) any unpaid Basic Rent plus the excess of the Stipulated
Loss Value of the Aircraft over the fair market sales value thereof or (iii) if
the Aircraft has been sold, any unpaid Basic Rent plus the excess of the
Stipulated Loss Value thereof over the net sales proceeds.
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By acceptance of this Certificate, the Holder hereof agrees to
be bound by the provisions of the Participation Agreement applicable to
Holders.
The Owner Trustee or the Owner Participant may cure any
default by the Company under the Lease arising from the failure of the Company
to make any payment of Basic Rent under the Lease, provided that such failure
of the Company is not the third consecutive such failure, or the fifth or
subsequent cumulative such failure. The Owner Trustee or the Owner Participant
may (but need not) cure any other default by the Company in the performance of
its obligations under the Lease which can be cured by the payment of money, by
making such payment on behalf of the Company, subject, however, to certain
limitations.
The right of the Holder of this Certificate to institute
action for any remedy under the Indenture, including the enforcement of payment
of any amount due hereon, is subject to certain restrictions specified in the
Indenture.
The Owner Trustee and the Indenture Trustee will be discharged
from their respective obligations in respect of the Certificates (except for
certain matters, including obligations to register the transfer or exchange of
Certificates, replace stolen, lost or mutilated Certificates, maintain paying
agencies and hold money for payment in trust), and the Indenture Trustee may
thereupon cause the release of the Indenture Estate from the lien of the
Indenture, if (a) the Owner Trustee deposits or causes to be deposited
irrevocably with the Indenture Trustee, in trust, money or Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide money in an amount
sufficient to pay principal of, Premium, if any, and interest on the
Outstanding Certificates on the dates such payments are due in accordance with
the terms of such Certificates and (b) certain other conditions are satisfied,
including the publication by the United States Internal Revenue Service of a
ruling, or a change in or clarification of the applicable Federal income tax
law, in either case to the effect that the deposit and related defeasance would
not cause the Holders of the Certificates to recognize income, gain or loss for
Federal income tax purposes.
As provided in the Indenture and subject to certain
limitations therein set forth, this Certificate is transferable, and upon
surrender of this Certificate for registration of transfer at the principal
corporate trust office of the Registrar, or at the office or agency maintained
for such purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Registrar duly executed by, the Holder or
his attorney duly authorized in writing, one or more new Certificates of the
same maturity and type and of authorized denominations and for the same
aggregate principal amount will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates.
The Certificates are issuable in denominations of $1,000 and integral multiples
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Certificates are exchangeable for a like aggregate principal
amount of Certificates of the same maturity and type and of authorized
denominations, as requested by the Holder surrendering the same, upon
presentation thereof for such purpose at the principal corporate trust office
of the Registrar, or at an office or agency maintained for such purpose.
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No service charge shall be made for any such registration or
transfer or exchange, but the Registrar may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this
Certificate, the Owner Trustee, the Indenture Trustee, the Paying Agent, the
Registrar, the Owner Participant and the Company may deem and treat the person
in whose name this Certificate is registered as the absolute owner hereof for
the purpose of receiving payment of the principal of and interest on this
Certificate and for all other purposes whatsoever whether or not this
Certificate be overdue, and neither the Owner Trustee, the Indenture Trustee,
the Paying Agent, the Registrar, the Owner Participant nor the Company shall be
affected by notice to the contrary.
AS PROVIDED IN THE INDENTURE, THE INDENTURE AND THIS
CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the Owner Trustee has caused this
instrument to be duly executed under its corporate seal.
FIRST UNION NATIONAL BANK,
not in its individual capacity but solely
as Owner Trustee
By:
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Corporate Trust Officer
Issue Date:
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INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY, not in
its individual capacity, but solely
as Indenture Trustee
By:
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Authorized Officer or Signatory
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Exhibit B to
First Amendment to
Trust Indenture and
Security Agreement
Maturity Dates, Principal Amounts,
Interest Rates, Etc. of Series SWA 1996 Trust N620SW Certificates
Premium
Interest Termination Type of
Series Maturity Date Principal Rate Date Certificate
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1998-A July 2, 2019 $23,882,858.75 6.53% February 26, 2010 Installment
TRUST INDENTURE AND SECURITY AGREEMENT [N620SW]
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Exhibit B-1 to
First Amendment to
Trust Indenture and
Security Agreement
PAYMENT DATES AND PAYMENT PERCENTAGES AND AMOUNTS
Aggregate
Installment
Payment Date Payment Percentage Payment Amount
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Exhibit B-2 to
First Amendment to
Trust Indenture and
Security Agreement
ISSUANCE OF SERIES SWA 1996 TRUST N620SW CERTIFICATES
The Series SWA 1996 Trust N620SW Certificates issued hereunder
shall be issued to and shall be payable to the Pass Through Trustee under the
Pass Through Trust Agreement with respect to the grantor trust created thereby,
such trust consisting of the 6.53% Certificate due July 2, 2019.
TRUST INDENTURE AND SECURITY AGREEMENT [N620SW]
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