First Supplemental Indenture - Toledo-Lucas County Port Authority and Society National Bank
FIRST SUPPLEMENTAL INDENTURE
Between
TOLEDO-LUCAS COUNTY PORT AUTHORITY
and
SOCIETY NATIONAL BANK,
as Trustee
_________________________
$36,120,000
Toledo-Lucas County Port Authority
Airport Refunding and Improvement Revenue Bonds, Series 1994-1
(Burlington Air Express Project)
_________________________
Dated
as of
March 1, 1994
This First Supplemental Indenture
supplements a Trust Indenture
dated as of April 1, 1989 between
the Toledo-Lucas County Port
Authority and the above-named
Trustee (successor by merger to
Society Bank & Trust, formerly
known as Trustcorp Bank, Ohio).
Squire, Sanders & Dempsey
Bond Counsel
<PAGE>
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of March 1,
1994, is made by and between the TOLEDO-LUCAS COUNTY PORT AUTHORITY
(the "Issuer"), a port authority and a political subdivision, and
a body corporate and politic, in and of, and duly created and
validly existing under, the laws of the State of Ohio (the
"State"), and SOCIETY NATIONAL BANK, a national banking association
duly organized and validly existing under the laws of the United
States of America and duly authorized to exercise corporate trust
powers under the laws of the State, with its principal corporate
trust office located in Cleveland, Ohio, operating by and through
its Toledo, Ohio corporate trust office (successor by merger to
Society Bank & Trust, formerly known as Trustcorp Bank, Ohio), as
Trustee (the "Trustee"), under the circumstances summarized in the
following recitals (the capitalized words and terms not defined in
this First Supplemental Indenture have the meanings assigned to
them in Article I of the Trust Indenture between the Issuer and the
Trustee dated as of April 1, 1989 (the "Original Indenture")):
1. By virtue of the authority of the laws of the State
including, without limitation, Section 13 of Article VIII of the
Ohio Constitution and Sections 4582.01 through 4582.20 of the Ohio
Revised Code, and the Bond Legislation duly adopted by the
Legislative Authority, the Issuer heretofore executed and delivered
the Original Indenture to the Trustee to secure the Issuer's
Airport Improvement Revenue Bonds, Series 1989-1 (Burlington Air
Express Project), issued in the original aggregate principal amount
of $30,870,000 and currently outstanding in an aggregate principal
amount of $30,245,000 (the "Refunded Bonds"), and to secure any
Additional Bonds that might thereafter be issued pursuant to
Section 2.04 of the Original Indenture; and
2. The Issuer has determined to issue $36,120,000
Airport Refunding and Improvement Revenue Bonds, Series 1994-1
(Burlington Air Express Project) (the "Series 1994-1 Bonds"), as
Additional Bonds under the Original Indenture, for the purposes of
(i) refunding, at a reduced interest cost, the outstanding
principal amount of the Refunded Bonds and (ii) paying costs of
acquiring, constructing, improving and equipping certain additional
"port authority facilities", including "aviation facilities", both
as defined in the Act (the "1994 Project"), for lease to the
Company for use in connection with the Hub Facility; and
3. Pursuant to the Bond Legislation, including a
resolution duly adopted by the Legislative Authority on December 9,
1993, the Issuer is authorized to enter into this First
Supplemental Indenture to secure the Series 1994-1 Bonds and to do
or cause to be done all acts provided or required herein to be
performed on its part; and
4. All acts and conditions required to happen, exist
and be performed precedent to and in the issuance of the Series
1994-1 Bonds and the execution and delivery of this First
Supplemental Indenture have happened, exist and have been performed
(i) to make the Series 1994-1 Bonds, when issued, delivered and
authenticated, valid special obligations of the Issuer in
accordance with the terms thereof and hereof, and (ii) to make the
Indenture, including this First Supplemental Indenture, a valid,
binding and legal trust agreement for the security of the Series
1994-1 Bonds and any further Additional Bonds in accordance with
the terms of the Original Indenture; and
5. The Trustee has accepted the trusts created by this
First Supplemental Indenture, and in evidence thereof has joined in
the execution hereof;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE
WITNESSETH, that in order to secure the payment of the Bond Service
Charges on the Series 1994-1 Bonds and any further Additional Bonds
hereafter issued according to their true intent and meaning, and to
secure the performance and observance of all the covenants and
conditions therein and in the Indenture contained and to declare
the terms and conditions upon and subject to which the Series 1994-
1 Bonds are and are intended to be issued, held, secured, and
enforced, the Issuer, in consideration of the premises and the
acceptance by the Trustee of the trusts hereby created and of the
purchase and acceptance of the Series 1994-1 Bonds by the Holders
thereof, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, has executed and
delivered this First Supplemental Indenture and does hereby
absolutely and irrevocably assign to Society National Bank, as
Trustee, and to its successors in trust, and its and their assigns,
(i) the right of the Issuer under the Lease to receive, and the
rights and remedies of the Issuer under the Lease to enforce the
payment of, the Basic Rent and other payments to be made under the
Lease specifically relating to the payment of Bond Service Charges
and the rights of the Issuer to receive and enforce payments under
the Guaranty corresponding to the Basic Rent and other payments to
be made under the Lease specifically relating to the payment of
Bond Service Charges, and (ii) all right, title and interest of the
Issuer in and to the Revenues including, without limitation, the
moneys and investments in the Special Funds (except any moneys that
are required to be rebated to the United States of America), the
Basic Rent, the Net Facility Revenues and the Issuer Payments,
TO HAVE AND TO HOLD unto the Trustee and its successors
in that trust and its and their assigns forever;
BUT IN TRUST, NEVERTHELESS, and subject to the terms of
the Indenture,
(a) except as provided otherwise in the Indenture, for
the equal and proportionate benefit, security and protection of all
present and future Holders of the Bonds issued or to be issued
under and secured by the Indenture,
(b) for the enforcement of the payment of the Bond
Service Charges on the outstanding Bonds, when payable, according
to the true intent and meaning thereof and of the Indenture, and
(c) to secure the observance and performance of and
compliance with the covenants, agreements, obligations, terms and
conditions of the Indenture,
in each case without preference, priority or distinction, as to
lien or otherwise, of any one Bond over any other by reason of
designation, number, date of the Bonds or of authorization,
issuance, sale, execution, authentication, delivery or maturity
thereof, or otherwise, so that, except as otherwise provided in the
Indenture, each Bond and all Bonds shall have the same right, lien
and privilege under the Indenture, and shall be secured equally and
ratably thereby, it being intended that the lien and security of
the Indenture take effect from the date of the Original Indenture,
without regard to the date of the actual issue, sale or disposition
of the Bonds, as though upon that date all of the Bonds were
actually issued, sold and delivered to purchasers for value;
provided, however, that if
(i) the principal of the Series 1994-1
Bonds and the interest due or to become due
thereon together with any premium required by
redemption of any of the Series 1994-1 Bonds
prior to maturity shall be well and truly
paid, at the times and in the manner mentioned
in the Series 1994-1 Bonds, according to the
true intent and meaning thereof, or the
outstanding Series 1994-1 Bonds shall have
been paid and discharged in accordance with
Article IX of the Original Indenture, and
(ii) all the covenants, agreements,
obligations, terms and conditions of the
Issuer under the Indenture shall have been
kept, observed and performed, and there shall
have been paid to the Trustee, the Registrar,
the Paying Agents and the Authenticating
Agents all sums of money due to them in
accordance with the terms and provisions
hereof,
then this First Supplemental Indenture and the rights hereby
assigned shall cease, determine and be void except as provided in
Section 9.03 of the Original Indenture with respect to the survival
of certain provisions thereof; otherwise, this First Supplemental
Indenture shall be and remain in full force and effect.
IT IS EXPRESSLY DECLARED that all Bonds issued hereunder
and secured hereby are to be issued, authenticated and delivered,
and that all Revenues assigned hereby are to be dealt with and
disposed of under, upon and subject to and in accordance with the
terms, conditions, stipulations, covenants, agreements,
obligations, trusts, uses and purposes provided in the Indenture
including this First Supplemental Indenture. The Issuer has agreed
and covenanted, and agrees and covenants with the Trustee and with
each and all Holders, as follows:
Section 1. Issuance of Series 1994-1 Bonds. It is
determined to be necessary to, and the Issuer shall, issue, sell
and deliver its $36,120,000 aggregate principal amount of Series
1994-1 Bonds for the purposes of (i) refunding the Refunded Bonds
at a reduced interest cost thereby providing funds sufficient,
together with other available moneys in the Special Funds, to
retire the portion the Refunded Bonds heretofore called for
mandatory sinking fund redemption pursuant to Section 4.01(a) of
the Original Indenture, on April 1, 1994, pursuant to such call for
mandatory sinking fund redemption, and to pay all interest due on
that date and to retire, pursuant to call for optional redemption
pursuant to Section 4.01(d) of the Original Indenture, all
remaining outstanding Refunded Bonds on April 21, 1994, and
including moneys sufficient for the payment of the premium and any
accrued interest required by Section 4.01(d) of the Original
Indenture in connection with such optional redemption, and (ii)
paying costs of the acquisition, construction, improvement and
equipping of the 1994 Project, including those facilities generally
described Exhibit A to the Fourth Supplement to Lease of even date
herewith between the Issuer and the Company (the "Fourth
Supplement"), and which 1994 Project consists of the "1994
Additional Project" leased to the Company for use in connection
with the Hub Facility, and the "1994 Airport Improvements", all as
more fully described in Exhibit A to the Fourth Supplement, the
terms of which are hereby approved. The Series 1994-1 Bonds shall
be issued as Additional Bonds under and in accordance with the
Original Indenture, particularly Section 2.04 thereof, except
subparagraph 9 of the second paragraph thereof which shall only
apply to future series of Additional Bonds, and upon satisfaction
of the conditions stated therein (other than those in that
subparagraph 9), the proceeds of the Series 1994-1 Bonds and other
available funds shall be allocated and deposited by the Trustee on
the date of issuance of the Series 1994-1 Bonds in accordance with
Section 3 hereof.
The Series 1994-1 Bonds shall be issuable, only in fully
registered form, substantially in the form set forth as Exhibit A
to this First Supplemental Indenture; shall be numbered in such
manner as determined by the Trustee in order to distinguish each
Series 1994-1 Bond from any other Series 1994-1 Bond; shall be in
the denominations of $5,000 and any integral multiples thereof; and
shall be dated of even date with this First Supplemental Indenture.
The Bonds shall bear interest from the most recent date to which
interest has been paid or duly provided for or, if no interest has
been paid or duly provided for, from their date.
Section 2. Terms and Provisions of the Series 1994-1
Bonds.
(a) Interest Rates and Principal Maturities. The Series
1994-1 Bonds shall mature on April 1 in the years and in the
principal amounts, and shall bear interest at the annual interest
rates, payable on each Interest Payment Date, in accordance with
the schedule set forth below:
Principal Amount Annual
Year of of Series 1994-1 Interest
Maturity Bonds Maturing Rate
2004 8,170,000 7.00%
2009 5,385,000 7.25%
2014 8,200,000 7.375%
2019 14,365,000 7.50%
(b) Mandatory Sinking Fund Redemption. (i) The Series
1994-1 Bonds maturing on April 1,2004 shall be subject to mandatory
redemption pursuant to mandatory sinking fund requirements, at a
redemption price of 100% of the principal amount redeemed plus
interest accrued to the redemption date, on the Principal Payment
Date in the years specified below and in the principal amounts set
forth opposite the respective year of redemption:
<PAGE>
Refunding 1994 Project
Year Amount Amount Total
1995 $560,000 $70,000 $630,000
1996 630,000 90,000 720,000
1997 665,000 100,000 765,000
1998 710,000 105,000 815,000
1999 755,000 115,000 870,000
2000 805,000 120,000 925,000
2001 855,000 130,000 985,000
2002 630,000 140,000 770,000
2003 670,000 150,000 820,000
If retired only by mandatory sinking fund redemption prior to their
stated maturity, there would remain $870,000 principal amount
($710,000 principal amount of which constitutes refunding bonds) of
the Series 1994-1 Bonds maturing on April 1, 2004 to be paid at
maturity.
(ii) The Series 1994-1 Bonds maturing on April 1, 2009
shall be subject to mandatory redemption pursuant to mandatory
sinking fund requirements, at a redemption price of 100% of the
principal amount redeemed plus interest accrued to the redemption
date, on the Principal Payment Date in the years specified below
and in the principal amounts set forth opposite the respective year
of redemption:
Refunding 1994 Project
Year Amount Amount Total
2005 $760,000 $170,000 $930,000
2006 820,000 180,000 1,000,000
2007 880,000 195,000 1,075,000
2008 935,000 210,000 1,145,000
If retired only by mandatory sinking fund redemption prior to their
stated maturity, there would remain $1,235,000 principal amount
($1,010,000 principal amount of which constitutes refunding bonds)
of the Series 1994-1 Bonds maturing on April 1, 2009 to be paid at
maturity.
(iii) The Series 1994-1 Bonds maturing on April 1, 2014
shall be subject to mandatory redemption pursuant to mandatory
sinking fund requirements, at a redemption price of 100% of the
principal amount redeemed plus interest accrued to the redemption
date, on the Principal Payment Date in the years specified below
and in the principal amounts set forth opposite the respective year
of redemption:
Refunding 1994 Project
Year Amount Amount Total
2010 $1,080,000 $240,000 $1,320,000
2011 1,155,000 260,000 1,415,000
2012 1,240,000 275,000 1,515,000
2013 1,335,000 295,000 1,630,000
If retired only by mandatory sinking fund redemption prior to their
stated maturity, there would remain $2,320,000 principal amount
(all which constitutes refunding bonds) of the Series 1994-1 Bonds
maturing on April 1, 2014 to be paid at maturity.
(iv) The Series 1994-1 Bonds maturing on April 1, 2019
(all of which constitute refunding bonds) shall be subject to
mandatory redemption pursuant to mandatory sinking fund
requirements, at a redemption price of 100% of the principal amount
redeemed plus interest accrued to the redemption date, on the
Principal Payment Date in the years specified below and in the
principal amounts set forth opposite the respective year of
redemption:
Refunding
Year Amount
2015 $2,385,000
2016 2,565,000
2017 2,765,000
2018 3,110,000
If retired only by mandatory sinking fund redemption prior to their
stated maturity, there would remain $3,540,000 principal amount of
the Series 1994-1 Bonds maturing on April 1, 2019 to be paid at
maturity.
(v) The procedures and conditions for the satisfaction
of the mandatory sinking fund requirements set forth in Section
4.01(a) of the Original Indenture with respect to the Refunded
Bonds (referred to as the "Project Bonds" therein), beginning with
the third sentence of the first paragraph of that Section 4.01(a),
shall apply to the Series 1994-1 Bonds and are incorporated herein
by reference as fully as if set forth here with all references
therein to the "Project Bonds" instead to refer to the "Series
1994-1 Bonds maturing on the applicable maturity date".
(c) Optional Redemption. The Series 1994-1 Bonds shall
be subject to redemption on or after April 1, 2004 (from funds
other than those deposited in accordance with the mandatory sinking
fund requirements applicable to the Series 1994-1 Bonds), at the
option of the Issuer, in whole on any date or in part on any
Interest Payment Date, at redemption prices equal to the following
percentages of the principal amount redeemed plus, in each case,
interest accrued to the redemption date:
Redemption Period (dates inclusive) Redemption Price
April 1, 2004 through March 31, 2005 102%
April 1, 2005 through March 31, 2006 101%
April 1, 2006 and thereafter 100%
If optional redemption at a redemption price exceeding 100% of the
principal amount to be redeemed is to take place as of any
applicable mandatory redemption date identified in subsection (b)
of this Section, the Series 1994-1 Bonds, or portions thereof, to
be so redeemed shall be selected (by lot within a maturity) prior
to the selection of the Series 1994-1 Bonds to be redeemed on the
same date by operation of the mandatory redemption provisions of
that subsection (b).
(d) Extraordinary Optional Redemption. Subject to the
terms of the Lease, the Series 1994-1 Bonds shall be subject to
redemption by the Issuer, upon 45 days prior written notice to the
Trustee, in whole on any date upon the occurrence of any of the
events described in subparagraphs (i), (ii) and (iii) of the first
paragraph of Section 4.01(b) of the Original Indenture at a
redemption price of 100 percent of the principal amount redeemed
plus interest accrued to the redemption date.
(e) Mandatory Redemption Upon a Determination of
Taxability. The Series 1994-1 Bonds shall be subject to mandatory
redemption upon the occurrence of a Determination of Taxability
with respect to the Series 1994-1 Bonds. "Determination of
Taxability" is used herein as defined in Section 1.01 of the
Original Indenture with respect to the Refunded Bonds (referred to
therein as the "Project Bonds") and that definition shall apply to
the Series 1994-1 Bonds and is incorporated herein by reference as
fully as if set forth here, with all references to the "Project
Bonds" instead to refer to the Series 1994-1 Bonds. The procedures
and conditions for implementation of the mandatory redemption upon
a Determination of Taxability set forth in Section 4.01(c) of the
Original Indenture with respect to the Refunded Bonds shall apply
to the Series 1994-1 Bonds and are incorporated herein by reference
as fully as if set forth here, with all references therein to the
"Project Bonds" instead to refer to the Series 1994-1 Bonds.
(f) Redemption - Generally. The provisions of Sections
4.02 through 4.05 of the Original Indenture shall apply to the
Series 1994-1 Bonds; provided, that, for purposes of the Series
1994-1 Bonds, references therein to Section 4.01(b) shall refer to
subsection (d) of this Section 2 and references therein to Section
4.01(d) shall refer to subsection (c) of this Section 2.
Section 3. Application of Proceeds of Series 1994-1
Bonds. The proceeds of sale of the Series 1994-1 Bonds shall be
allocated and deposited as provided in the Bond Legislation for the
Series 1994-1 Bonds. In accordance therewith, $154,258.85 of those
proceeds representing accrued interest shall be deposited into the
Interest Account in the Bond Fund, $3,546,984.00 of those proceeds,
representing the Bond Funded Reserve Requirement for the Series
1994-1 Bonds, shall be deposited into the Bond Funded Reserve Fund,
$29,086,562.64 of those proceeds shall be deposited in the Escrow
Fund pursuant to the Escrow Agreement hereafter described and the
balance of those proceeds shall be deposited into the Proceeds
Account of the Project Fund. Concurrently all amounts on deposit
in the Principal and Interest Accounts in the Bond Fund (but not
the Earnings Account) and the Bond Funded Reserve Fund (except to
the extent directed to be retained as described above), in each
case prior to the deposits described in the preceding sentence,
shall be transferred in immediately available funds to Society
National Bank, as trustee (the "Escrow Trustee") under the Escrow
Agreement dated as of even date herewith (the "Escrow Agreement")
among the Issuer, the Company and the Escrow Trustee, for deposit,
investment and redemption of the Refunded Bonds, all in accordance
with the terms of the Escrow Agreement. In accordance with the
Escrow Agreement, all investment earnings on the Escrow Fund shall,
upon receipt by the Escrow Trustee, be transferred to the Trustee
for deposit into the Proceeds Account of the Project Fund. The
Trustee represents and warrants that, as of the date of issuance of
the Series 1994-1 Bonds and except for moneys to be deposited in
the Project Fund from the proceeds of the Series 1994-1 Bonds,
there are and shall be no moneys deposited in or credited to the
Project Fund or the Company Funded Reserve Fund. The Company
Funded Reserve Fund was heretofore released pursuant to the terms
of the Indenture and, accordingly, there is no Company Funded
Reserve Requirement with respect to the Series 1994-1 Bonds and
Section 5.04(f) of the Original Indenture shall be of no further
force and effect.
Section 4. Special Funds. Moneys in the Special Funds
pertaining to the Series 1994-1 Bonds shall be held, invested, used
and disposed of in accordance with Article V of the Original
Indenture except as expressly set forth herein and in the Lease, it
being understood and agreed that the 1994 Additional Project
constitutes an "Additional Project" for all purposes of the
Indenture and the Lease and that the 1994 Project constitutes a
"Project" for all purposes of the Indenture; provided, that the
amount that may be disbursed from the Project Fund to pay "issuance
costs" (as that term is used in Section 147(g) of the Code) with
respect to the Series 1994-1 Bonds shall not exceed $722,400. The
subparagraph numbered (v) of the definition of Eligible
Investments, as heretofore set forth in Article I of the Indenture
is hereby amended to read as set forth below, and that
subparagraph, as heretofore set forth therein, is hereby deleted
therefrom:
(v) investment agreements (which term shall not include
repurchase agreements) with a bank or bank holding
company or an insurance company rated by a Rating Service
in at least the second highest long term debt rating
category, without distinction as to number or symbol
assigned within a category, or, if such bank, bank
holding company or insurance company has no long term
debt rating, rated by a Rating Service in the highest
short term debt rating category; provided that any such
agreement shall be in writing and shall contain
provisions that require the termination of such agreement
not more than sixty (60) days after the provider of such
agreement is downgraded by a Rating Service, if such
downgrade results in the provider being disqualified as
an investment agreement provider under this paragraph
(v);
Section 5. Basic Rent, Net Facility Revenues and Issuer
Payments; Amendment of Section 5.04(c) and Exhibit B of the
Original Indenture. As permitted by the Indenture, upon the
issuance of the Series 1994-1 Bonds and the defeasance of the
Refunded Bonds, Section 5.04(c) of the Original Indenture is hereby
amended, in its entirety, to read as follows:
(c) Application of Basic Rent, Net Facility
Revenues and Issuer Payments. On or prior to October 31,
2013, so long as there are any outstanding Series 1994-1
Bonds, all Basic Rent shall be paid by the Company
directly to the Trustee and shall be in an amount which
is sufficient to make the payments to be made from Basic
Rent as described below. If the Lease is terminated in
accordance with its terms prior to October 31, 2013 (or
earlier with respect to Additional Bonds other than
Series 1994-1 Bonds), the Net Facility Revenues derived
from the Hub Facility shall be applied, but only to the
extent thereof, to the payments to be made from Basic
Rent, as described below, when due; provided, however,
that nothing herein requires or shall be construed to
require that the Issuer make such payments except solely
from and to the extent of such Net Facility Revenues. On
and after November 1, 2013 (or earlier with respect to
Additional Bonds other than Series 1994-1 Bonds), so long
as there are any outstanding Series 1994-1 Bonds, the
Issuer shall pay, but only out of Net Revenues, the
Issuer Payments directly to the Trustee, on or before
each Issuer Payment Date, in amounts which are sufficient
to make all of the deposits and payments required to be
made on or before each Issuer Payment Date as described
below. The Basic Rent, the Issuer Payments and any
amounts paid to the Trustee under the Guaranty or
otherwise received by the Trustee, including from the
Issuer, in payment of Bond Service Charges shall be
deposited by the Trustee as follows (provided that any
interest or penalty paid to the Trustee with respect to
a late Basic Rent payment pursuant to Section 3.6 of the
Lease shall be promptly delivered by the Trustee to the
Issuer):
(1) To the applicable subaccounts of the Principal
Account and the Interest Account of the Bond Fund,
commencing on or prior to the April 1994 Rental Payment
Date, and monthly thereafter on or prior to each Rental
Payment Date, the amounts set forth in or pursuant to
Section 3.1 of the Lease unless otherwise provided, and
provided for, therein;
(2) To the applicable subaccounts of the Principal
Account and the Interest Account of the Bond Fund, on or
prior to each Issuer Payment Date, the amounts set forth
on the Issuer Payment Schedule attached as Exhibit B
hereto and incorporated herein by reference and, on or
prior to the date established by the Trustee, the amount
of any accelerated Issuer Payments accelerated pursuant
to Section 7.03 hereof; provided, that in the event that
the Issuer issues Additional Bonds, the Issuer Payment
Schedule shall, if necessary, be adjusted to include any
Issuer Payments to be made by the Issuer with respect to
such Additional Bonds to the extent that the Issuer has
agreed to make such payments out of Net Revenues, which
adjustment may be by preparation and delivery of
additional or replacement schedules to be attached as
part of Exhibit B or by Supplemental Indenture; and
provided, further, that if any of the Bonds are redeemed
other than pursuant to the mandatory sinking fund
requirements of the Indenture, there shall be prepared by
the Trustee and delivered to the Issuer replacement
schedules to be attached as Exhibit B hereto setting
forth the amounts of Issuer Payments to be paid pursuant
to this subparagraph after such redemption;
(3) Except as otherwise provided herein, to the
applicable account in the Bond Funded Reserve Fund: (i)
on or prior to the Rental Payment Date or Issuer Payment
Date next succeeding the date on which the amount on
deposit in such account in the Bond Funded Reserve Fund
is below the applicable Bond Funded Reserve Requirement
in part because moneys are transferred from such account
in the Bond Funded Reserve Fund to the Interest Account
or the Principal Account pursuant to the provisions of
Section 5.04(e) hereof an amount equal to the amount
necessary to repay the transfer, and (ii) on or prior to
the Rental Payment Date or Issuer Payment Date next
succeeding the date on which the Company or the Issuer,
as applicable, receives notice pursuant to Section 5.05
hereof that the balance in an account of the Bond Funded
Reserve Fund is less than ninety percent (90%) of the
applicable Bond Funded Reserve Requirement, and monthly
thereafter on or prior to each Rental Payment Date or
Issuer Payment Date until the balance is restored, an
amount not less than 1/3rd of the amount necessary to
make the balance in such account of the Bond Funded
Reserve Fund at least equal to the applicable Bond Funded
Reserve Requirement; and
(4) In each case and on or prior to each Rental
Payment Date or Issuer Payment Date any amount which may
be necessary to make up any previous deficiency in any of
the payments described above and to make up any
deficiency or loss in the respective funds or accounts to
which payments are required to be made, in connection
with investments or otherwise, including without
limitation, the restoration of any amounts paid from any
of those funds or accounts pursuant to this Indenture,
except as provided otherwise expressly herein.
The Basic Rent and Issuer Payments to be made with
respect to any series of Additional Bonds shall be made
in accordance with this subsection; provided, however,
that, in any event, the aggregate of the Basic Rent and,
as applicable, Issuer Payments to be made hereunder shall
always be sufficient to pay, when due, the Bond Service
Charges.
The Issuer Payment Schedule, Exhibit B to the Indenture is hereby
amended, in its entirety, by replacing said Schedule with the
Issuer Payment Schedule set forth in Exhibit B hereto. The
provisions of Section 5.04(c) and Exhibit B of the Original
Indenture, as set forth therein, are hereby replaced by the
provisions set forth in or pursuant to this Section 5 and the
provisions of Section 5.04(c) and Exhibit B of the Original
Indenture are deleted from the Indenture and of no further force
and effect.
Section 6. Concerning the Trustee. The Trustee hereby
accepts the trusts hereby declared and provided and agrees to
perform the same upon the terms and conditions set forth in the
Original Indenture and in this First Supplemental Indenture.
Except as specifically provided by the Original Indenture or set
forth herein, the Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this
First Supplemental Indenture or the due execution thereof by the
Issuer, nor for or in respect of the recitals contained herein, all
of which recitals are made solely by the Issuer.
Section 7. The Original Indenture. Wherever in the
Original Indenture the name "Trustcorp Bank, Ohio" appears it is
hereby amended to read "Society National Bank" and references to
its corporate trust office are amended to read "its Toledo, Ohio
corporate trust office". Wherever in the Original Indenture the
date "October 1, 2012" appears it is hereby amended to read
"November 1, 2013". Except as explicitly modified by this First
Supplemental Indenture, each and every term and condition contained
in the Original Indenture shall apply to this First Supplemental
Indenture with such omissions, variations and modifications
thereof as may be appropriate to make the same conform to this
First Supplemental Indenture. In accordance with Section 8.05 of
the Original Indenture, all the terms and conditions of this First
Supplemental Indenture shall be part of the terms and conditions of
the Indenture.
Section 8. Binding Effect. This First Supplemental
Indenture shall inure to the benefit of and shall be binding upon
the Issuer and the Trustee and their respective successors and
assigns, subject, however, to the limitations contained in the
Indenture.
Section 9. Counterparts. This First Supplemental
Indenture may be executed in counterpart, and in any number of
counterparts, each of which shall be regarded as an original and
all of which shall constitute but one and the same instrument.
SECTION 10. GOVERNING LAW. THIS FIRST SUPPLEMENTAL
INDENTURE AND THE SERIES 1994-1 BONDS SHALL BE DEEMED TO BE
CONTRACTS MADE UNDER THE LAWS OF THE STATE AND FOR ALL PURPOSES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE.
[Balance of Page Intentionally Left Blank]
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this First
Supplemental Indenture to be executed for it and in its name and on
its behalf by its duly authorized officers; and the Trustee, in
token of its acceptance of the trusts created hereunder, has caused
this First Supplemental Indenture to be executed for it and in its
name and on its behalf by its duly authorized officer, as Trustee
and as Registrar for the Series 1994-1 Bonds, all as of the day and
year first above written.
Signed as to the Issuer TOLEDO-LUCAS COUNTY PORT AUTHORITY
in the presence of:
___________________________ By: _______________________________
Chairman
___________________________ And By:__________________________
Witnesses as to the Issuer) Secretary
Signed as to the Trustee and SOCIETY NATIONAL BANK, as
Registrar the presence of: Trustee, and as Registrar for the
Series 1994-1 Bonds
________________________________
By:______________________________
Vice President
________________________________
(Witnesses as to the Trustee and
Registrar)
Approved as to form by ________________________
Staff Counsel
<PAGE>
FISCAL OFFICER'S CERTIFICATE
The undersigned, Fiscal Officer of the Issuer under the
foregoing First Supplemental Indenture, certifies hereby that the
moneys required to meet the obligations of the Issuer during the
year 1994 under the foregoing First Supplemental Indenture have
been appropriated lawfully by the Board of Directors of the Issuer
for that purpose, are in the Special Funds created under the
Indenture and are in the custody of the Trustee or in the process
of collection to the credit of an appropriate fund, free from any
previous encumbrances. This Certificate is given in compliance
with Sections 5705.41 and 5705.44, Ohio Revised Code.
Dated: March __, 1994 ________________________________
Secretary, Toledo-Lucas County
Port Authority
<PAGE>
EXHIBIT B
Issuer Payment Schedule
The following schedule sets forth the Issuer Payments to
be made by the Issuer pursuant to Section 5.04(c) of the Indenture,
which payments are to be paid on the Issuer Payments Dates next
preceding the dates set forth on such schedule.
Monthly Monthly Total
Principal Interest Monthly
Month Payment Payment Payment
12/01/2013 193,333.34 104,039.58 297,372.92
01/01/2014 193,333.34 104,039.58 297,372.92
02/01/2014 193,333.34 104,039.58 297,372.92
03/01/2014 193,333.34 104,039.58 297,372.92
04/01/2014 193,333.34 104,039.58 297,372.92
05/01/2014 198,750.00 89,781.25 288,531.25
06/01/2014 198,750.00 89,781.25 288,531.25
07/01/2014 198,750.00 89,781.25 288,531.25
08/01/2014 198,750.00 89,781.25 288,531.25
09/01/2014 198,750.00 89,781.25 288,531.25
10/01/2014 198,750.00 89,781.25 288,531.25
11/01/2014 198,750.00 89,781.25 288,531.25
12/01/2014 198,750.00 89,781.25 288,531.25
01/01/2015 198,750.00 89,781.25 288,531.25
02/01/2015 198,750.00 89,781.25 288,531.25
03/01/2015 198,750.00 89,781.25 288,531.25
04/01/2015 198,750.00 89,781.25 288,531.25
05/01/2015 213,750.00 74,875.00 288,625.00
06/01/2015 213,750.00 74,875.00 288,625.00
07/01/2015 213,750.00 74,875.00 288,625.00
08/01/2015 213,750.00 74,875.00 288,625.00
09/01/2015 213,750.00 74,875.00 288,625.00
10/01/2015 213,750.00 74,875.00 288,625.00
11/01/2015 213,750.00 74,875.00 288,625.00
12/01/2015 213,750.00 74,875.00 288,625.00
01/01/2016 213,750.00 74,875.00 288,625.00
02/01/2016 213,750.00 74,875.00 288,625.00
03/01/2016 213,750.00 74,875.00 288,625.00
04/01/2016 213,750.00 74,875.00 288,625.00
05/01/2016 230,416.67 58,843.75 289,260.42
06/01/2016 230,416.67 58,843.75 289,260.42
07/01/2016 230,416.67 58,843.75 289,260.42
08/01/2016 230,416.67 58,843.75 289,260.42
09/01/2016 230,416.67 58,843.75 289,260.42
10/01/2016 230,416.67 58,843.75 289,260.42
11/01/2016 230,416.67 58,843.75 289,260.42
12/01/2016 230,416.67 58,843.75 289,260.42
<PAGE>
Monthly Monthly Total
Principal Interest Monthly
Month Payment Payment Payment
01/01/2017 230,416.67 58,843.75 289,260.42
02/01/2017 230,416.67 58,843.75 289,260.42
03/01/2017 230,416.67 58,843.75 289,260.42
04/01/2017 230,416.67 58,843.75 289,260.42
05/01/2017 259,166.67 41,562.50 300,729.17
06/01/2017 259,166.67 41,562.50 300,729.17
07/01/2017 259,166.67 41,562.50 300,729.17
08/01/2017 259,166.67 41,562.50 300,729.17
09/01/2017 259,166.67 41,562.50 300,729.17
10/01/2017 259,166.67 41,562.50 300,729.17
11/01/2017 259,166.67 41,562.50 300,729.17
12/01/2017 259,166.67 41,562.50 300,729.17
01/01/2018 259,166.67 41,562.50 300,729.17
02/01/2018 259,166.67 41,562.50 300,729.17
03/01/2018 259,166.67 41,562.50 300,729.17
04/01/2018 259,166.67 41,562.50 300,729.17
05/01/2018 295,000.00 22,125.00 317,125.00
06/01/2018 295,000.00 22,125.00 317,125.00
07/01/2018 295,000.00 22,125.00 317,125.00
08/01/2018 295,000.00 22,125.00 317,125.00
09/01/2018 295,000.00 22,125.00 317,125.00
10/01/2018 295,000.00 22,125.00 317,125.00
11/01/2018 295,000.00 22,125.00 317,125.00
12/01/2018 295,000.00 22,125.00 317,125.00
01/01/2019 295,000.00 22,125.00 317,125.00
02/01/2019 295,000.00 22,125.00 317,125.00
03/01/2019 295,000.00 22,125.00 317,125.00
04/01/2019 295,000.00 22,125.00 317,125.00
<PAGE>
CONSENT OF COMPANY
Burlington Air Express Inc. (formerly known as Burlington
Air Express USA Inc.), the Company as defined in the First
Supplemental Indenture to which this Consent is attached, in
accordance with Section 8.04 of the Original Indenture referred to
therein, hereby acknowledges prior written notice of, and consents
to, the execution and delivery of the foregoing First Supplemental
Indenture.
Dated: March __, 1994 BURLINGTON AIR EXPRESS INC.
By: ________________________
Chairman of the Board
And by: __________________
Treasurer
<PAGE>
CONSENT OF ORIGINAL PURCHASER
The undersigned Miller & Schroeder Financial, Inc., by
its duly authorized officer, hereby certifies that on the date of
this Certificate, pursuant to a Bond Purchase Agreement dated March
___, 1994, it purchased and received delivery of all of the
Toledo-Lucas County Port Authority Airport Refunding and
Improvement Revenue Bonds, Series 1994-1 (Burlington Air Express
Project) dated as of March 1, 1994 (the "Series 1994-1 Bonds") in
exchange for payment therefor and thereupon became the owner of all
of the Series 1994-1 Bonds and as such owner, the undersigned
hereby acknowledges prior written notice of the execution and
delivery of the First Supplemental Indenture to which this Consent
is attached, including the amendments therein of the Original
Indenture referred to therein, and as such owner consents to that
execution and delivery and to those amendments and waives any
required compliance with subparagraph 9 of the second paragraph of
Section 2.04 of the Original Indenture.
Dated: March __, 1994 MILLER & SCHROEDER FINANCIAL, INC.
By: _____________________________
Senior Vice President