EX-99.(C) 6 g90931exv99wxcy.txt T3C A DRAFT OF THE INDENTURE TO BE QUALIFIED EXHIBIT T3C DRAFT OF INDENTURE (SUBJECT TO COMPLETION, FINAL INDENTURE WILL BE SUPPLIED BY AMENDMENT) TRUST INDENTURE AMONG AEROVIAS NACIONALES DE COLOMBIA S.A. AVIANCA ("AVIANCA S.A. OR THE "COMPANY"), AS ISSUER, THE COMPANY'S WHOLLY-OWNED SUBSIDIARY, AVIANCA, INC., AS GUARANTOR (THE "GUARANTOR"), AND THE BANK OF NEW YORK (THE "TRUSTEE") FOR UNITED STATES DOLLAR DENOMINATED NOTES OF THE COMPANY DUE APRIL 30, 2011 DATED AS OF ___. TABLE OF CONTENTS
PAGE ---- ARTICLE 1. DEFINITIONS AND RULES OF CONSTRUCTION; APPLICABILITY OF THE TRUST INDENTURE ACT. Section 1.01. Definitions. Section 1.02. Other Definitions. Section 1.03. Rules of Construction. Section 1.04. Trust Indenture Act. ARTICLE 2. THE SECURITIES. Section 2.01. Form and Dating. Section 2.02. Execution and Authentication. Section 2.03. Agents. Section 2.04. Disbursing or Paying Agent To Hold Money in Trust. Section 2.05. Securityholder Lists. Section 2.06. Transfer and Exchange. Section 2.07. Replacement Securities. Section 2.08. Outstanding Securities. Section 2.09. Treasury Securities Disregarded for Certain Purposes. Section 2.10. Temporary Securities. Section 2.11. Cancellation. Section 2.12. Priority of Payment Section 2.13. Defaulted Interest. Section 2.14. Securities Will Not Be Listed. ARTICLE 3. PREPAYMENT SECTION. Section 3.01. Notice to Trustee. Section 3.02. Selection of Securities To Be Redeemed. Section 3.03. Notice of Prepayment. Section 3.04. Effect of Notice of Prepayment. Section 3.05. Deposit of Prepayment Price. Section 3.06. Securities Redeemed in Part. ARTICLE 4. COVENANTS. Section 4.01. Payment of Securities. Section 4.02. Reporting. Section 4.03. Company's Restrictive Covenants.
i Section 4.04. Notice of Certain Events. Section 4.05 Guaranty ARTICLE 5. SUCCESSORS. Section 5.01. When Company May Merge, etc. Section 5.02. Successor Corporation Substituted. ARTICLE 6. DEFAULTS AND REMEDIES. Section 6.01. Events of Default. Section 6.02. Acceleration. Section 6.03. Other Remedies. Section 6.04. Waiver of Past Defaults. Section 6.05. Control by Majority. Section 6.06. Limitation on Suits. Section 6.07. Rights of Holders To Receive Payment. Section 6.08. Priorities. Section 6.09. Undertaking for Costs. Section 6.10. Proof of Claim. Section 6.11. Actions of a Holder. ARTICLE 7. TRUSTEE. Section 7.01. Duties of Trustee. Section 7.02. Rights of Trustee. Section 7.03. Individual Rights of Trustee; Disqualification. Section 7.04. Trustees Disclaimer. Section 7.05. Notice of Defaults. Section 7.06. Reports by Trustee to Holders. Section 7.07. Compensation and Indemnity. Section 7.08. Replacement of Trustee. Section 7.09. Successor Trustee by Merger, etc. Section 7.10. Eligibility. Section 7.11. Preferential Collection of Claims Against Company. ARTICLE 8. SATISFACTION AND DISCHARGE. Section 8.01. Satisfaction and Discharge of Indenture. Section 8.02. Application of Trust Funds. Section 8.03. Reinstatement. Section 8.04. Repayment to Company.
ii ARTICLE 9. AMENDMENTS. Section 9.01. Without Consent of Holders. Section 9.02. With Consent of Holders. Section 9.03. Compliance with Trust Indenture Act and Section 12.03. Section 9.04. Revocation and Effect of Consents and Waivers. Section 9.05. Notice of Amendment; Notation on or Exchange of Securities. Section 9.06. Trustee Protected. ARTICLE 10. MISCELLANEOUS. Section 10.01. Notices. Section 10.02. Communication by Holders with Other Holders. Section 10.03. Certificate and Opinion as to Conditions Precedent. Section 10.04. Statements Required in Certificate or Opinion. Section 10.05. Rules by Trustee and Agents. Section 10.06. Legal Holidays. Section 10.07. No Recourse Against Others. Section 10.08. Variable Provisions. Section 10.09. Additions, Modifications, and Waivers. Section 10.10. Assignment and Binding Effect. Section 10.11. Entire Agreement. Section 10.12. Captions, Severability, and Interpretation Section 10.13. Multiple Counterparts. Section 10.14. Governing Law.
EXHIBIT A (Face of Security) A-1 (Reverse Side of Security) A-2 iii CROSS-REFERENCE TABLE
TIA SECTION INDENTURE SECTION ------------ ----------------- 310(a)(1) 7.10 (a)(2) 7.10 (a)(3) N.A. (a)(4) N.A. (a)(5) N.A. (b) 7.08; 7.10 (c) N.A. 311(a) 7.11 (b) 7.11 (c) N.A. 312(a) 2.05 (b) 10.02 (c) N.A. 313(a) 7.06 (b)(1) N.A. (b)(2) 7.06 (c) 7.06 (d) 7.06 314(a)(1) 4.02 (a)(2) 10.01 (a)(4) 4.03 (b) N.A. (c) 2.02; 7.02(b); 8.01(3) (d) N.A. (e) 4.03; 12.04 (f) 4.03 315(a)(1) 6.05; 7.01(b)(1) (a)(2) 7.01(b)(2) (b) 7.05; 12.01 (c) 7.01(a)
iv (d)(1) 7.01(b) (d)(2) 7.01(c)(2) (d)(3) 6.05; 7.01(c)(3) (e) 6.09 316(a)(last sentence) 2.09 (a)(1)(A) 6.05 (a)(1)(B) 6.04 (a)(2) N.A. (b) 6.07 (c) 9.04 317(a)(1) 6.03 (a)(2) 6.10 (b) 2.04 318(a) 1.04
------------------- N.A. means not applicable. Note: This Cross-Reference Table shall not, for any purpose, be deemed to be part of this Indenture. v INTRODUCTION: THIS TRUST INDENTURE (the "Indenture") is made and entered into, effective as of ____ (the "Effective Date"), by and between Aerovias Nacionales De Colombia S.A. Avianca ("Avianca S.A." or the "Company"), a sociedad anonima (similar to a corporation) organized under the laws of the Republic of Colombia, as issuer, the Company's wholly-owned subsidiary, Avianca, Inc., a corporation organized under the laws of the State of New York, as guarantor (the "Guarantor") and The Bank of New York, an New York banking corporation (the "Trustee"), as trustee. (The Company, the Guarantor, the Trustee, and such other Persons (as hereinafter defined) as become signatories to this Indenture, directly or by way of amendment, collectively, are herein sometimes referred to as the "Parties," and, individually, are herein sometimes referred to as a "Party"). WITNESSETH: PREAMBLE: FOR GOOD AND VALUABLE CONSIDERATION (the receipt, sufficiency, and adequacy of which are hereby acknowledged), each Party agrees as follows for the benefit of each other Party and for the proportionate and ratable benefit of each and every of the Holders (as hereinafter defined) of the Company's United States dollar denominated notes due Aril 30, 2011 (the "Dollar Notes" or the "Securities"), all of such Holders being expressly intended as third-party beneficiaries of this Indenture: ARTICLE 1. DEFINITIONS AND RULES OF CONSTRUCTION; APPLICABILITY OF THE TRUST INDENTURE ACT. SECTION 1.01. DEFINITIONS. In addition to other capitalized terms defined in other provisions of this Agreement, the following capitalized terms have the following respective meanings: "Affiliate" means, as applied to any entity, any of the following: (i) any person or entity that directly or indirectly owns, controls, or holds with power to vote, twenty percent (20%) or more of the outstanding voting securities of such entity; (ii) any person or entity twenty percent (20%) or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by such entity or by another entity that directly or indirectly owns, controls, or holds with power to vote, twenty percent (20%) or more of the outstanding voting securities of such entity; (iii) any person or entity whose business is operated under a lease or operating agreement by such entity, or any entity substantially all of whose property is operated under an operating agreement with such entity; (iv) any person or entity that operates the business or substantially all of the property of such entity under a lease or operating agreement; (v) any person or entity that controls, is controlled by, or is under common control with such entity, "control" being defined as the power to direct or cause the direction of the management and policies of the relevant entity, whether through holding ownership interests, through agreements or otherwise; (iv) any partnership in which such entity is a general partner; (v) any officer, director, general partner, or person in control (as defined above) of the foregoing items (i) through (iv); or (vi) any relative of the foregoing. "Agent" means any Registrar or any Disbursing or Paying Agent (as such respective terms are defined in Section 2.03 hereof). "Attributable Debt" in respect of a sale and leaseback transaction means, at the time of determination, the present value (discounted at the rate of interest implicit in such transaction, determined in accordance with U.S. GAAP) of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction (including any period for which such lease has been extended or may, at the option of the lessor, be extended). "Board" means the Board of Directors of the Person in question or any officer or committee thereof authorized to act for such Board. "Business Day" means any day that is not a Legal Holiday (as defined in Section10.06 hereof). "Capital Lease Obligation" means, with respect to any capital lease of any entity, the amount of the obligation of such entity thereunder that, in accordance with U.S. GAAP, would appear on a balance sheet of such entity in respect of such capital lease. "CAXDAC Obligations" means the obligations of the Company to the Caja de Auxilios y Prestaciones de la Asociacion Colombiana de Aviadores Civiles ACDAC in respect of Avianca S.A.'s legal obligation, including interest on the unpaid principal amount thereof, to contribute to the common fund established to fund the Special Transitional Regime prescribed in Colombian Decrees 1282, 1283 and 1302 of 1994, as amended by Colombian Law 860 of 2003, and Banking Superintendency External Circular No. 088 of 1995. "Change in Control" means any of the following: (i) on or prior to December 31, 2006, the sale by Oceanair of any beneficial interest in the Company or equity interest in the SPVs; (ii) subsequent to December 31, 2006, the Investor shall cease to beneficially own at least 35% of the outstanding shares of the SPVs or the Company; or (iii) at any time from and after the Effective Date, either (a) the first day on which a majority of the members of the Board of Directors of the Company are not Continuing Directors, or (b) the sale by the Company of all or substantially all of its assets. "Change in Control Date" means the date and time when a Change in Control occurs. ["Change in Control Amount" means: (a) with respect to any Dollar Note in existence as of the Change in Control Date, (i) all Fixed Principal Amounts and all accrued and future interest due or to become due with respect to such Dollar Note, (ii) the Contingent Principal Amount relating to the preceding fiscal year (to the extent not yet paid), and (iii) the Contingent Principal Amounts relating to the current and future fiscal years; provided, that the Contingent Principal Amounts for each of the respective current and future fiscal years shall be deemed, solely for purposes of calculating the Change in Control Amount, to be equal to the difference between (A) 15% of the Company's then LTM EBITDA and (B) the portions of the Fixed Principal Amount that would otherwise have been payable in the applicable Contingent Payments Measuring year, such differenced to be discounted at 10% per annum from the applicable Contingent Payment Dates to the Change in Control Date.] [SUBJECT TO REVIEW AND MUTUAL AGREEMENT] "Company" means the Party named as such above in the Introduction Paragraph hereof until a successor replaces it and duly assumes all of its obligations under the Securities and this Indenture and, thereafter, means such successor. "Continuing Directors" means, as of any date of determination, any member of the Board of Directors of the Company who (i) was a member of such Board of Directors on the Effective Date or (ii) was nominated for election or elected to such Board of Directors with the 2 approval of a majority of the Continuing Directors who were members of such Board at the time of such nomination or election, provided that such nomination or election shall not have been made pursuant to an agreement with any person or entity that is not an Affiliate of the Investor. "Court Approved Transaction" means a Court Approved Transaction, as defined in the Plan of Reorganization. "Debt" means, with respect to any Person, (i) any obligation of such Person to pay the principal of, premium of, if any, interest on (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company, whether or not a claim for such post-petition interest is allowed in such proceeding), penalties, reimbursement or indemnification amounts, fees, expenses or other amounts relating to any indebtedness, and any other liability, contingent or otherwise, of such Person (A) for borrowed money (including instances where the recourse of the lender is to the whole of the assets of such Person or to a portion thereof), (B) evidenced by a note, debenture, or similar instrument (including a purchase money obligation, but excluding ordinary course trade payables) including securities, (C) for any letter of credit or performance bond in favor of such Person, or (D) for the payment of money relating to a capitalized lease obligation; (ii) any liability of others of the kind described in the preceding clause (i), which the Person has guaranteed or which is otherwise its legal liability; (iii) any obligation of the type described in clauses (i) and (ii) secured by a lien to which the property or assets of such Person are subject, whether or not the obligations secured thereby shall have been assumed by or shall otherwise be such Person's legal liability; and (iv) any and all deferrals, renewals, extensions and refunding of, or amendments, modifications or supplements to, any liability of the kind described in any of the preceding clauses (i), (ii) or (iii). "Debt Incurrence Ratio" means Total Net Indebtedness divided by an amount equal to (i) LTM EBITDA of the Company and its subsidiaries on a consolidated basis as of the most recently completed month-end minus (ii) without duplication, any payment to CAXDAC by the Company or its subsidiaries over the same period. "Default" means any event which is, or after notice or passage of time would be, an Event of Default (as defined in Section 6.01 hereof). "Dollar Notes" means the United States dollar denominated promissory notes and securities described above in the Preamble Paragraph hereof issued by the Company under this Indenture "Effective Date" means the date above specified as such in the Introduction Paragraph hereof. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. "Guarantor" means the Party named as such above in the Introduction Paragraph hereof until a successor replaces it and duly assumes all of its obligations under the Securities and this Indenture and, thereafter, means such successor. "Holder" or "Securityholder" means a Person in whose name a Security is registered and the additional Persons described in Section 6.11 hereof. 3 "Indebtedness" means, with respect to any entity, without duplication (a) all indebtedness of such entity for borrowed money (however evidenced) or for the purchase price of property or services payment for which is deferred, but excluding obligations to trade creditors incurred in the ordinary course of business, (b) all indebtedness or obligations secured by any Lien, including Permitted Liens described in items (d) and (i) of the definition of "Permitted Liens" hereunder, but excluding any other Permitted Liens, (c) the undrawn face amount of and all reimbursement and other obligations with respect to letters of credit and bankers' acceptances, whether or not matured, (d) all Purchase Money Indebtedness and Capital Lease Obligations, (e) all Attributable Debt, (f) the net proceeds of the sales of any receivables, (g) any guarantee of any Indebtedness of another, (h) any past due taxes and other amounts owned to any governmental authority (including aviation authorities), to the extent the same are not being contested in good faith and adequately reserved against, and (i) the net present value of (i) the Dollar Notes, (ii) any Contingent Principal Amounts that shall have accrued and become payable and remain unpaid, (iii) the Trust Certificates, and (iv) the Single Payment Rights; but shall exclude any of the foregoing Indebtedness to the extent the same has been incurred pursuant to a Court Approved Transaction. "Indenture" means this Indenture as described above in the Introduction Paragraph hereof, as amended from time to time, including the terms of the Securities and any amendments thereto. "Lien" means any mortgage, pledge, hypothecation, charge, assignment, deposit arrangement, encumbrance, security interest, lien, fiduciary assignment and any security or similar arrangement of any kind or nature whatsoever. "LTM" means, as of any date of determination with respect to any financial measure, the aggregate of such financial measure over the preceding twelve full calendar months. "Oceanair" means Linhas Aereas Ltda., a corporation organized under the laws of Brazil. "Oceanair Subordinated Debt" means indebtedness of the Company to Oceanair or to the SPVs in consideration of any investment or loan made by Oceanair or the SPVs in or to the Company pursuant to section 7.4.7(c) of the Plan of Reorganization. "Officer" means any of the following: the respective President or any of the respective Vice-Presidents of each of the respective Parties hereto. "Officer's Certificate" means a certificate signed by an Officer of the Company. See Sections 10.03 and 10.04 hereof. "Opinion of Counsel" means a written opinion from legal counsel for the Company in connection with this Indenture that is acceptable to the Trustee. See Sections 10.03 and 10.04 hereof. "Party" and "Parties" have the respective meanings as defined above in the Introduction Paragraph hereof. "Person" means any individual, corporation, partnership, limited partnership, limited liability partnership, joint venture, association, limited liability company, joint stock company, 4 trust, unincorporated organization, governmental agency, government or political subdivision thereof, or any other entity of whatsoever nature. "Permitted Liens" means (a) carriers', warehousemen's, materialmen's, mechanics', landlords' or other similar Liens arising by operation of law in the ordinary course of business for sums not yet due or being contested in good faith, provided that a reserve or provision, if any shall be required by U.S. GAAP, shall have been made therefor, (b) any attachment or judgment Lien other than with respect to judgments or awards constituting a default under this Indenture, (c) Liens and rights of set-off in favor of any cash management institutions in respect of overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing house transfers of funds, (d) Liens encumbering assets of any acquired entity so long as such Liens existed at the time of such acquisition and were not created in contemplation thereof, (e) Liens for taxes and other amounts owed to any governmental authority (including aviation authorities) arising by operation of law in the ordinary course of business that are not yet delinquent or that are being diligently contested in good faith by appropriate proceedings and for which adequate reserves shall have been set aside on the Company's books, (f) zoning restrictions, easements, licenses, or other restrictions on the use of any real estate or other minor irregularities in title (including leasehold title) thereto, (g) Liens incurred or deposits made (including, without limitation, surety bonds and appeal bonds) in connection with workers' compensation, unemployment insurance and other types of social security benefits in the ordinary course of business or to the extent required by applicable law, (h) Liens incurred or deposits made (including, without limitation, surety bonds and appeal bonds) in the ordinary course of business to secure the performance of bids, leases, contracts (other than for the borrowing of money), statutory obligations and other similar obligations or arising as a result of progress payments under government contracts, (i) Liens securing Purchase Money Indebtedness, Attributable Debt and Capitalized Lease Obligations to the extent such Indebtedness is permitted to be incurred pursuant to this Indenture and such Liens are confined solely to the asset or assets so acquired or leased, (j) licenses, sublicenses, leases or subleases granted to other persons or entities in the ordinary course of business and not interfering in any material respect with the business of the Company and its subsidiaries, and (k) Liens existing as of the Effective Date or that are approved pursuant to order of the United States Bankruptcy Court for the Southern District of New York. "Plan" and "Plan of Reorganization" means the Third Modified and Restated Joint Plan of Reorganization and the Plan Documents (as defined therein and including without limitation all of the schedules and exhibits thereto, each of which constitute provisions of the Plan of Reorganization as fully as if set forth in the text thereof), as the same may be amended, modified, or supplemented from time to time by any duly authorized amendment or modification (to the extent permitted by the terms thereof and by Bankruptcy Law and Bankruptcy Rules, as such terms are defined therein) of the Company and Avianca, Inc. confirmed by the United States Bankruptcy Court for the Southern District of New York by order dated ___, in the jointly administered Case Nos. 03-11678(ALG) and 03-11679(ALG), which is incorporated herein and made a part hereof by reference as fully and completely as if set forth at length in the text hereof. "Principal" of a Security means the total principal amount equal to the sum of (i) the respective specified Fixed Principal Amount stated on the face of each of the respective Securities (net of all prior principal payments in respect thereof at any relevant time) plus (ii) the aggregate Contingent Principal Amount (as defined on the reverse side of each Security), if any, which is due or overdue or is to become due at the relevant time. 5 "Proceeding" means a liquidation, dissolution, bankruptcy, insolvency, reorganization, receivership, or similar proceeding under Bankruptcy Law, an assignment for the benefit of creditors, any marshalling of assets or liabilities, winding up, or dissolution, but does not include any transaction permitted by and made in compliance with Article 5 hereof. "Purchase Money Indebtedness" means Indebtedness incurred by the Company or a subsidiary of the Company solely for the purpose of financing its acquisition of assets and incurred at the time of such acquisition or within thirty (30) days thereafter. "Restricted Payment" means, with respect to any entity: (a) the declaration or payment of any dividend or the incurrence of any liability to make any other payment or distribution of cash or other property or assets in respect of an equity interest, other than payments, dividends or other distributions from a direct or indirect subsidiary of Avianca S.A. to its parent or to Avianca S.A., (b) any payment on account of the purchase, redemption, defeasance, sinking fund or other retirement of such entity's equity interests or any other payment or distribution made in respect thereof, either directly or indirectly, other than a payment from a direct or indirect subsidiary of Avianca S.A. to its parent or to Avianca S.A. or by Avianca S.A. or a subsidiary of Avianca S.A. to a wholly-owned subsidiary, (c) any payment or prepayment of principal of, premium, if any, or interest, fees or other charges on or with respect to, and any redemption, purchase, retirement, defeasance, sinking fund or similar payment and any claim for rescission with respect to, any Oceanair Subordinated Debt, or (d) any payment made to redeem, purchase, repurchase or retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire an equity interest in such entity now or hereafter outstanding. "SAM" means Sociedad Aeronautica de Medellin, Consolidada S.A., a sociedad anonima under the laws of the Republic of Colombia and a subsidiary of Avianca S.A. "Securities" means the United States dollar denominated promissory notes and securities described above in the Preamble Paragraph hereof issued by the Company under this Indenture. "Senior Debt" means Debt of the Company whenever incurred and outstanding at any time to the extent, if any, the Securities are hereafter expressly in writing made subordinate in right of payment by the Holders. "Single Payment Rights" means the Single Payment Rights, as defined in the Plan of Reorganization. "SPVs" means the two (2) Colombian trust funds (patrimonios autonomos) which, together, own 100% of the common stock of the Company as of the Effective Date. "TIA" means the Trust Indenture Act of 1939 (15 U.S.C. 77aaa-77bbbb), as amended, as in effect on the date of this Indenture, except as otherwise provided in Sections 1.04 and 9.03 hereof. "Total Indebtedness" means all Indebtedness of the Company and its subsidiaries on a consolidated basis, but shall not include CAXDAC Obligations, subordinated indebtedness owed to Oceanair or the SPVs, or debt arising from Court Approved Transactions. "Total Net Indebtedness" means Total Indebtedness less the positive amount, if any, equal to (i) the unrestricted cash of the Company and its subsidiaries as of the most recently completed fiscal month, minus (ii) $35 Million. 6 "Trust Certificate" means the Colombian peso denominated trust certificates or entries on the books of _________, evidencing beneficial interests in the trusted created pursuant to the Contrato de Fiducia Mercantil (Trust Agreement) between the Company, as settlor, and ___________, of even date herewith. "Trust Officer" means any officer or assistant officer of the Trustee assigned by the Trustee to administer its corporate trust matters or to whom a matter concerning the Indenture may be referred. "Trustee" means the Party named as such in the Introduction Paragraph hereof until a successor replaces it and assumes all of its trust duties and responsibilities hereunder and, thereafter, means such successor. "U.S. Government Obligations" means securities that are direct, non-callable, non-redeemable obligations of, or non-callable, non-redeemable obligations guaranteed by, the United States for the timely payment of which obligation or guarantee the full faith and credit of the United States is pledged, or funds having assets consisting solely of such securities, including funds managed by the Trustee or one of its Affiliates (including such funds for which it or its Affiliates receives fees in connection with such management). SECTION 1.02. OTHER DEFINITIONS. The following respective capitalized terms used herein are first defined herein in the following respective Sections hereof:
TERM DEFINED IN SECTION HEREOF ---- ------------------------- "Bankruptcy Law" 6.01 "Contingent Principal Amount" Exhibit A "Contingent Payment Dates" Exhibit A "Custodian" 6.01 "Defaulted Interest" 2.13 "Disbursing or Paying Agent" 2.03 "Event of Default" 6.01 "Excess Cash Payment" Exhibit A "Excess Cash Payment Date" Exhibit A "Fixed Principal Amount" Exhibit A "Fixed Payment Dates" Exhibit A "Legal Holiday" 10.06
7 "Notice" 10.01 "Registrar" 2.03 "Restrictive Covenants" 4.03 "Securityholder" 6.11 Terms defined in the TIA 1.03
SECTION 1.03. RULES OF CONSTRUCTION. Unless the context otherwise requires, all provisions of this Indenture are to be interpreted and construed in accordance with the following rules of construction: (1) As used herein, all capitalized terms defined in this Indenture have the respective meanings ascribed to them in the various provisions of this Indenture wherein first defined; (2) Any capitalized term used in this Indenture that is not defined herein has the respective meaning ascribed to such term, if any, in the TIA or the rules and regulations promulgated thereunder; (3) Each and every accounting term not otherwise defined herein has the respective meaning ascribed to it in accordance with generally accepted accounting principles in the United States; (4) The word "or" is not exclusive; (5) Words in the singular include the plural, and words in the plural include the singular; (6) The words "herein," "hereof," "hereunder," and other words of similar import refer to this Indenture as a whole and not to any particular article, section, or other subdivision; (7) The word "including" means including without limitation; (8) All pronouns and adjectives used in this Indenture indicating gender are to be construed to include the masculine, feminine, and neuter genders; (9) All exhibits, schedules, and other documents attached or annexed to this Indenture or incorporated herein by reference are to be considered and construed to be an integral part of this Indenture as fully and completely as if set forth entirely in the text hereof; (10) Unless otherwise specified, all section, article, schedule, and exhibit references in this Indenture are to the respective section in, article of, or schedule or exhibit to this Indenture, as the same may be amended or modified from time to time in accordance with the provisions hereof; 8 (11) Headings are used in this Indenture for convenience of reference only and do not constitute a part of this Indenture for any other purpose. None of the headings used in this Indenture limit or otherwise affect the provisions of this Indenture; (12) All provisions of this Indenture apply to successive events and transactions; and (13) All provisions hereof are severable from one another, and each should be interpreted and construed so as to be valid and enforceable to the fullest extent permitted under applicable law. If one or more provisions hereof, or any portion of any provision hereof, is not completely enforceable under applicable law, it is to be interpreted and construed so as to be unenforceable to the most limited extent possible without affecting the enforceability of the remainder of such provision or the remaining provisions hereof. In this connection, the Parties expressly authorize any arbitrator, court, or other competent authority having jurisdiction hereof to modify any such unenforceable provision, or portion thereof, in order that such provision or portion will be enforceable to the fullest extent permitted by applicable law. Each of the Parties hereto have participated equally in the negotiation hereof, and none of the provisions hereof are to be construed more strictly against one of the Parties than against the other based upon the rule of construction that a document is to be construed more strictly against the party who actually prepared it. SECTION 1.04. TRUST INDENTURE ACT. The provisions of TIA Sections 310 through 317 that impose duties on any Person (including the provisions automatically deemed included herein unless expressly excluded by this Indenture) are a part of and govern this Indenture upon and so long as this Indenture and the Securities of the Company issued hereunder are subject to the TIA. If any provision of this Indenture limits, qualifies, or conflicts with such duties, the imposed duties are to be deemed to control. If a provision of the TIA requires or permits a provision of this Indenture and the TIA provision is amended, then the Indenture provision shall be automatically amended to like effect. Any reference to a requirement under the TIA shall only apply upon and so long as the Indenture is qualified under and subject to the TIA. ARTICLE 2. THE SECURITIES. SECTION 2.01. FORM AND DATING. The Securities and the certificate of authentication must be substantially in the form of EXHIBIT A, attached hereto. The Securities will have all notations, legends or endorsements required by Section 2.11 hereof, or applicable law, stock exchange rule, automated quotation system rule, agreements to which the Company is subject, or usage. Each Security will be dated the date of its authentication. SECTION 2.02. EXECUTION AND AUTHENTICATION. (a) One Officer of the Company shall sign each of the Securities on behalf of the Company by manual or facsimile signature. If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security is still valid. 9 (b) No Security will be valid until an authorized signatory Officer of the Trustee, on behalf of the Trustee manually signs the certificate of authentication on the Security. Such signature will be conclusive evidence that the Security has been authenticated under this Indenture. (c) The Trustee shall authenticate Securities for original issue up to the aggregate Fixed Principal Amount specified in the first paragraph of Exhibit A hereto in accordance with an Officer's Certificate of the Company. The aggregate Fixed Principal Amount of Securities outstanding at any time will never exceed such specified amount except as provided in Section 2.07 hereof. (d) The Trustee may appoint an authenticating agent acceptable to the Company to authenticate the Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or any Affiliate thereof. SECTION 2.03. AGENTS. The Company shall maintain an office or agency in the continental United States where Holders may present Securities for registration of transfer or for exchange ("Registrar") and where they may present Securities for payment (the "Disbursing or Paying Agent"). Whenever the Company must issue or deliver Securities pursuant to this Indenture, the Trustee shall authenticate the Securities at the Company's request. The Creditors Representative (as defined in the Plan) shall appoint the Registrar and Paying Agent as provided in the Plan (under the definitions of "Dollar Notes Indenture Trustee" and "Disbursing Agent"), and may appoint more than one Registrar or Paying Agent. The Creditors Representative shall notify the Trustee of the name and address of any Disbursing or Paying Agent that is not, or does not become, a Party to this Indenture. If the Creditors Representative does not appoint another Registrar or Paying Agent, the Trustee shall serve as such. SECTION 2.04. DISBURSING OR PAYING AGENT TO HOLD MONEY IN TRUST. On or prior to each due date of the Principal and interest on any Security, the Company shall deposit with the Disbursing or Paying Agent a sum sufficient to pay such Principal and interest then becoming due. The Company shall require each Disbursing or Paying Agent (other than the Trustee) to agree in writing that the Disbursing or Paying Agent shall: (i) hold in trust for the benefit of the Holders or the Trustee all money held by the Disbursing or Paying Agent for the payment of the Principal of or interest on the Securities and (ii) notify the Trustee of any Default by the Company in making any such payment. While any such Default continues, the Trustee may require a Disbursing or Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Disbursing or Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by the Disbursing or Paying Agent; and the Trustee may require the same of any Disbursing or Paying Agent during the continuance of any Event of Default. Upon complying with this Section, the Disbursing or Paying Agent will have no further liability for the money delivered to the Trustee. If the Company or any of its Affiliates serves as Disbursing or Paying Agent, it shall segregate the money held by it as Disbursing or Paying Agent and hold it as a separate trust fund. SECTION 2.05. SECURITYHOLDER LISTS. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, the Company shall furnish to the Trustee, in writing at least 10 Business Days before each Principal or interest payment 10 date and at such other times as the Trustee may request, a list in such form and as of such date, as the Trustee may reasonably require of the names and addresses of all Holders. SECTION 2.06. TRANSFER AND EXCHANGE. The Securities will be issued in registered form and will be transferable only upon surrender of a Security for registration of transfer. When any Security is presented to the Registrar with a request to register a transfer or to exchange it for an equal principal amount of Securities of other denominations, the Registrar shall register the transfer or make the exchange if its reasonable and customary requirements for such transactions are met, and the Security has not been redeemed. The Company may charge a reasonable fee for any registration of transfer or exchange but not for any exchange pursuant to Section 2.10, 3.06, or 9.05 hereof. All Securities issued upon any transfer or exchange pursuant to the terms of this Indenture will evidence the same debt and will be entitled to the same benefits under this Indenture and the Plan as the Securities surrendered upon such transfer or exchange. SECTION 2.07. REPLACEMENT SECURITIES. If a mutilated Security is surrendered to the Trustee of if the Holder of a Security claims that the Security has been lost, destroyed, or wrongfully taken, then, in the absence of notice to the Company that the Security has been acquired by a protected purchaser, the Company shall issue a replacement Security. If required by the Trustee or the Company, an indemnity bond must be provided by any such Holder that is sufficient in the judgment of both to protect the Company, the Trustee, and the Agents from any loss which any of them may suffer if a Security is replaced. The Company or the Trustee may charge the Holder for its reasonable expenses in replacing a Security. Every replacement Security is an additional obligation of the Company. SECTION 2.08. OUTSTANDING SECURITIES. Securities outstanding at any time are all Securities authenticated by the Trustee (including, but not limited to, those delivered to the Disbursing or Paying Agent for placement in the Disputed Claims Reserve established on account of Class 7 Claims) except for those canceled by the Registrar, those delivered to it for cancellation, and those described in this Section 2.08 as not outstanding. A Security does not cease to be outstanding because the Company or any of its Affiliates holds the Security. If a Security is replaced pursuant to Section 2.07 hereof (other than a mutilated Security surrendered for replacement), it ceases to be outstanding unless the Company receives proof satisfactory to it that the replaced Security is held by a protected purchaser. If Securities are considered paid under Section 4.01 hereof, they cease to be outstanding and interest on them ceases to accrue. SECTION 2.09. TREASURY SECURITIES DISREGARDED FOR CERTAIN PURPOSES. In determining whether the Holders of the required Principal amount of Securities have concurred in any direction, waiver, or consent, Securities owned by the Company or any of its Affiliates will be disregarded and deemed not to be outstanding, except that, for the purposes of determining whether the Trustee will be protected in relying on any such direction, waiver, or consent, only Securities that the Trustee knows are so owned will be so disregarded. Securities so owned that have been pledged in good faith will not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee's right to deliver any such direction, waiver, or consent with respect to the Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor. 11 SECTION 2.10. TEMPORARY SECURITIES. Until definitive Securities are ready for delivery, the Company may use temporary Securities. Temporary Securities will be substantially in the form of definitive Securities, but may have variations that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall deliver definitive Securities in exchange for temporary Securities. Until such exchange, temporary Securities will be entitled to the same rights, benefits, and privileges, as well as subject to the same conditions, qualifications, and limitations, as definitive Securities. SECTION 2.11. CANCELLATION. The Company at any time may deliver Securities to the Trustee for cancellation. The Disbursing or Paying Agent, if not the Trustee, shall forward to the Trustee any Securities surrendered to it for payment. The Trustee shall cancel all Securities surrendered for registration of transfer, exchange, payment, or cancellation and shall dispose of canceled Securities according to its standard procedures or as the Company otherwise directs in writing. Except as expressly provided in Section 2.07 hereof, the Company shall not issue new Securities to replace Securities that it has paid or that have been delivered to the Trustee for cancellation. SECTION 2.12. PRIORITY OF PAYMENT. The Company does not now have outstanding any Senior Debt. Unless and until the Holders expressly subordinate the Securities in their right of payment to any Senior Debt of the Company at any time outstanding, the Securities will rank pari passu in right of payment to all other Debt of the Company at any time outstanding, except (i) Oceanair Subordinated Debt and (ii) Debt that by its terms is expressly made subordinate in the right of payment to the Securities; and as to the Debt of the Company described in the foregoing clauses (i) and (ii) at any time outstanding, the Securities are senior in right of payment. SECTION 2.13. DEFAULTED INTEREST. If the Company defaults in a payment of interest on the Securities ("Defaulted Interest") such Defaulted Interest shall cease to be payable to the Holder on the relevant record date, and the Company shall pay the Defaulted Interest, together with interest thereon, to the Persons that are Holders on a subsequent special record date. The Company shall notify the Trustee of the amount of Defaulted Interest, together with interest thereon, to be paid and pay over such amount to the Trustee. The Trustee shall then fix a special record date and, at the Company's expense, shall notify all registered Holders not less than 10 days prior to such special record date of the proposed payment, of the special record date, and of the payment date. SECTION 2.14. SECURITIES WILL NOT BE LISTED. None of the Securities will be listed by the Company on any stock exchange or on Nasdaq, but the Company shall obtain a CUSIP number for the Securities from Standard & Poor's CUSIP Service Bureau. 12 ARTICLE 3 PREPAYMENT SECTION 3.01. NOTICE TO TRUSTEE. The Company may prepay the Fixed Principal Amount of all or of a portion of the Securities at any time, without premium or penalty, by paying to the Holders the sum of the following: [TO BE NEGOTIATED]. SECTION 3.02. SECURITIES TO BE PREPAID PRO RATA. If the Fixed Principal Amount of the Securities to be prepaid is less than the full Fixed Principal Amount of all Securities then outstanding, the Trustee shall proportion the aggregate Fixed Principal Amount to be prepaid on a pro rata basis among all then outstanding Securities. SECTION 3.03. NOTICE OF PREPAYMENT. At least 30 days, but not more than 60 days, before a prepayment date, the Company shall mail a Notice of prepayment to each Holder whose Securities are to be prepaid. Such Notice must specify that it is a Notice of prepayment, identify the Securities to be redeemed, and state all of the following: (1) The prepayment date; (2) The prepayment price consisting of the sum of the following: (i) the aggregate Fixed Principal Amount to be prepaid, and (ii) all accrued, unpaid interest thereon through the prepayment date, if any; (3) The name and address of the Disbursing or Paying Agent; (4) That, unless the Company defaults in making such prepayment or the Disbursing or Paying Agent is prohibited from making such payment pursuant to the terms of this Indenture, interest on the Fixed Principal Amount of Securities (or portions thereof) called for prepayment ceases to accrue on and after the prepayment date; and (6) The CUSIP number of the Securities and state that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. At the Company's written request, the Trustee shall give such Notice of prepayment in the Company's name and at its expense. SECTION 3.04. EFFECT OF NOTICE OF PREPAYMENT. Once Notice of prepayment is mailed, Securities called for prepayment become due and payable on the prepayment date at the prepayment price. Failure to give Notice of prepayment, or any defect in such Notice given, to any Holder will not affect the validity of the Notice of prepayment given to any other Holder. 13 SECTION 3.05. DEPOSIT OF PREPAYMENT PRICE. On or before the prepayment date, the Company shall deposit with the Disbursing or Paying Agent (or, if the Company or any of its Affiliates is the Disbursing or Paying Agent, shall segregate and hold in trust) money sufficient to pay the prepayment price of all Securities to be prepaid on that date other than Securities or portions of Securities called for prepayment that have been delivered by the Company to the Registrar for cancellation. Unless the Company shall default in the payment of the prepayment price of Securities called for prepayment, interest on such Securities will cease to accrue after the prepayment date. SECTION 3.06. TERMINATION OF RESTRICTIVE COVENANTS. In the event that the Company shall, in accordance with this Article 3, prepay in full all Fixed Principal Amounts in respect of all Securities (the date of such full prepayment, the "Full Prepayment Date"), then the Restrictive Covenants set forth in Sections 4.03(a)(3) - (5) shall be of no further force and effect as of the Full Prepayment Date and no Event of Default shall result from the failure of the Company to comply with such Restrictive Covenants from and after the Full Prepayment Date. ARTICLE 4. COVENANTS AND GUARANTY. SECTION 4.01. PAYMENT OF SECURITIES. (a) The Company shall pay the Principal of the Securities on the dates and in the manner provided in the Securities and this Indenture. Principal will be considered paid on the date due if the Disbursing or Paying Agent holds in accordance with this Indenture on that date money sufficient to pay all Principal then due and the Disbursing or Paying Agent is not prohibited from paying such money to the Holders on such date pursuant to the terms of this Indenture. (b) Each Holder shall be entitled to receive in full the interest on the Securities held by such Holder, on the dates and in the manner provided in the Plan, the Securities and this Indenture, and the Company shall pay to the Paying Agent such full amount of interest as and when due, as necessary to ensure that each Holder actually receives payment in full. Interest will be considered paid on the date due if the Paying Agent holds in accordance with this Indenture on that date money sufficient to pay all interest then due and the Paying Agent is not prohibited from paying such money to a Holder on such date pursuant to the terms of this Indenture or any applicable law. If for any reason whatsoever, whether legal, equitable, administrative or otherwise, the Company tenders to the Paying Agent (i) less than the full amount of interest then due to a Holder under the Securities or this Indenture, or (ii) an amount that, upon payment by the Paying Agent of payments on the Securities to a Holder (after any required reductions or deductions), is less than the full amount of interest then due to a Holder under the Securities or this Indenture, then the Company shall immediately tender to the Paying Agent the amount of such shortfall (and any additional amount necessary to pay any reductions or deductions from such shortfall payment) so that the net amount received by such Holder will not be less than the full amount of interest then due under the Plan, the Securities and this Indenture. (c) The Company shall pay interest on overdue Principal at the rate borne by the Securities. In addition, the Company shall pay interest on overdue Defaulted Interest at the same rate to the extent lawful. 14 SECTION 4.02. REPORTING. Within 45 days after the end of each fiscal quarter, the Company shall file with the Trustee, and mail or cause to be mailed to each and every Holder, a copy of its consolidated, unaudited financial statements for such quarter and the period of the fiscal year then ended, together with copies of all supplementary and periodic information, documents, and reports, if any, that the Company has publicly disseminated during such quarter. Within 90 after the end of each fiscal year, the Company shall file with the Trustee, and mail or cause to be mailed to each and every Holder, a copy of its consolidated, audited financial statements for such fiscal year, together with a copy of any annual report that the Company furnishes or has furnished to its shareholders for such fiscal year. The Company shall also comply with the other provisions of TIA Section 314(a). Delivery of such reports, information, and documents to the Trustee is for informational purposes only, and the Trustee's receipt of such will not constitute Notice or constructive notice of any information contained therein or determinable from information contained therein, including the Company's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers' Certificates). SECTION 4.03. COMPANY'S RESTRICTIVE COVENANTS. (a) COMPLIANCE WITH RESTRICTIVE COVENANTS. The Company shall comply with each and every of the following covenants (collectively, the "Restrictive Covenants"): (1) AFFILIATE TRANSACTIONS. The Company shall not, nor shall it permit any of its subsidiaries to, enter into or be a party to any transaction with any Affiliate of the Company or such Subsidiary, except upon fair and reasonable terms that are no less favorable to the Company or such subsidiary than would be obtained in a comparable arm's length transaction with an entity not so affiliated with the Company or such subsidiary; provided, that the foregoing restriction shall not apply to (i) transactions in and among the Company, Avianca, Inc., SAM, or any wholly-owned subsidiary of any of the foregoing, or (ii) the reasonable and customary compensation of the officers and directors of the Company and its subsidiaries. (2) SHAREHOLDER LOANS. The Company shall not, nor shall it permit any of its subsidiaries to, make any loans to Oceanair or to an Affiliate of Oceanair (other than to the Company or a subsidiary of the Company), unless at the time of such loan: (i) there shall exist no default under this Indenture; (ii) Oceanair shall have invested in the Company the full amount called for under the Plan; (iii) the principal and accrued but unpaid interest on all outstanding loans by the Company and its subsidiaries to Oceanair and its Affiliates (other than the Company and its subsidiaries) in the aggregate and after giving effect to such loan, shall not exceed two million dollars ($2,000,000); and (iv) such loan shall be upon fair and reasonable terms that are no less favorable to the Company or such subsidiary than would be obtained in a comparable arm's length transaction with an entity not so affiliated with the Company, such subsidiary or the Investor. 15 (3) RESTRICTED PAYMENTS. The Company shall not, nor shall it permit any of its subsidiaries to, make any Restricted Payment on or prior to December 31, 2008, unless: (i) at the time of such Restricted Payment: (A) there shall exist no default under this Indenture; (B) the Company shall have unrestricted cash in an amount greater than or equal to $45 million, after giving effect to such Restricted Payment; (C) the Company shall have paid the Contingent Payment scheduled for April 30 of the calendar year in which the Restricted Payment is proposed to be made; (D) Oceanair shall have invested in the Company the full amount called for under the Plan; and (ii) the amount of such Restricted Payment shall be no greater than the lesser of (Y) ten percent (10%) of the Company's consolidated EBITDA for the most recently completed fiscal year, or (Z) the amount by which the Company's consolidated EBITDA for the most recently completed fiscal year exceeds the projection contained in the Company's June 13, 2004 Business Plan (as defined in the Plan). (4) INDEBTEDNESS. The Company shall not, nor shall it permit any subsidiary, to incur Indebtedness after the Effective Date and prior to December 31, 2008, other than the following: (i) intercompany Indebtedness to the Company or any subsidiary, including Indebtedness to SAM incurred in the ordinary course; (ii) Indebtedness incurred to refinance Indebtedness existing on the Effective Date or otherwise permitted by this Indenture, provided that: (I) the principal amount of such refinancing Indebtedness shall not exceed the principal and accrued but unpaid interest in respect of the Indebtedness so refinanced; and (II) Indebtedness which refinances Indebtedness existing on the Effective Date shall not accrue interest at a rate greater than the Indebtedness so refinanced and the monthly amortization of the principal amount of such refinancing Indebtedness shall not exceed the monthly amortization of the Indebtedness so refinanced; (iii) Indebtedness in respect of currency, interest rate and other hedging agreements; (iv) Indebtedness subordinated in right of payment of any principal, interest or other amounts to the Dollar Notes and the Trust Certificates; (v) Indebtedness owed to banks and other financial institutions in the ordinary course in respect of overdrafts and related liabilities that are cured within five (5) business days; 16 (vi) Indebtedness arising from agreements providing for indemnification, purchase price adjustments, and similar obligations and incurred in connection with the purchase or sale of assets; provided that any such Indebtedness with a term greater than thirty (30) days beyond the effective date of such purchase or sale shall be considered other Indebtedness for purposes of item (x) below; (vii) intercompany guaranties of Indebtedness among the Company and its subsidiaries, and guaranties of Indebtedness of suppliers of the Company and its subsidiaries incurred in the ordinary course; (viii) Purchase Money Indebtedness and Capital Lease Obligations, in an amount not to exceed fifty million dollars ($50,000,000) in the aggregate; provided, that any such Indebtedness shall be included in any calculation of the Debt Incurrence Ratio pursuant to subsections (ix) and (x) below; (ix) Indebtedness of entities acquired by or merged into the Company or any subsidiary and assumed in connection with such transaction; provided that, after giving effect to such transaction and the incurrence of such Indebtedness, the Company and its subsidiaries (including the acquired or merged entity) shall have on a consolidated basis a Debt Incurrence Ratio of not more than 2.75:1 but not less than zero; and (x) other Indebtedness, provided that, after giving effect to the incurrence of such Indebtedness, the Company and its subsidiaries shall have on a consolidated basis a Debt Incurrence Ratio of not more than 2.75:1 but not less than zero. (5) LIENS. The Company shall not, nor shall it permit any subsidiary, to, in either case prior to December 31, 2008, create, incur, assume or permit to exist any Lien on or with respect to any real or personal property of such entity, except for Permitted Liens, unless such real or personal property shall equally and ratably secure the Dollar Notes and the Trust Certificates. (6) CHANGE IN CONTROL. Upon the occurrence of a Change in Control, each Holder of a Dollar Note will have the right to require the Company to repurchase all or any portion (at the Holder's election) of such Dollar Note at an offer price in cash equal to the applicable Change in Control Amount. The Company shall provide notice of a Change in Control and of such repurchase rights to all Holders of Dollar Notes pursuant to the procedures set forth in this Indenture. (b) COMPLIANCE CERTIFICATE. The Company shall deliver to the Trustee, within 45 days after the end of each fiscal year of the Company, commencing with the fiscal year 2004, a certificate signed by the principal executive officer, principal financial officer, or principal accounting officer of the Company, as to the signer's knowledge of the Company's compliance with all conditions and covenants contained in this Indenture (determined without regard to any period of grace or requirement of Notice provided herein), including without limitation, all of the Restrictive Covenants. SECTION 4.04. NOTICE OF CERTAIN EVENTS. The Company shall give prompt Notice to the Trustee and any Disbursing or Paying Agent of (i) any Proceeding, (ii) any Default or Event of Default, (iii) any cure or waiver of any Default or Event of 17 Default, (iv) any payment default or notice of default in respect of any Senior Debt, and (v) if and when the Securities are listed on any stock exchange. SECTION 4.05. GUARANTY. The Guarantor hereby unconditionally and irrevocably guarantees the full and prompt payment and performance of all of the Company's obligations under this Indenture and under each and every of the Securities that the Company issues pursuant hereto. ARTICLE 5. [INTENTIONALLY OMITTED] ARTICLE 6. DEFAULTS AND REMEDIES. SECTION 6.01. EVENTS OF DEFAULT. An "Event of Default" occurs if: (1) The Company fails to pay interest on any Security when the same becomes due and payable and such failure continues for a period of 30 days; (2) The Company fails to pay the Principal of any Security when the same becomes due and payable; (3) The Company fails to comply with any of its other obligations contained in the Securities, this Indenture or, to the extent the same concern the rights of any Holder, the Plan, and such failure continues for the period and after the Notice specified below; (4) The Company pursuant to or within the meaning of any Bankruptcy Law: (A) Commences a voluntary case; (B) Consents to the entry of an order for relief against it in an involuntary case; (C) Consents to the appointment of a Custodian of it or for all or substantially all of its property; or (D) Makes a general assignment for the benefit of its creditors; or (5) A court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (A) Is for relief against the Company in an involuntary case; 18 (B) Appoints a Custodian of the Company or for all or substantially all of its property; or (C) Orders the liquidation of the Company, and the order or decree remains unstayed and in effect for 60 days. The foregoing will constitute Events of Default whatever the reason for any such Event of Default, whether it is voluntary or involuntary, or is effected by operation of law or pursuant to any judgment, decree, or order of any court or any order, rule, or regulation of any administrative or governmental body; provided, however, a Default under Section 6.01(3) above that is objectively capable of being cured is not an Event of Default until the Trustee or the Holders of at least 33% of the aggregate outstanding Fixed Principal Amount of the Securities give Notice to the Company and the Trustee of the Default, and the Company does not cure the Default, or it is not waived, within 60 days after receipt of the Notice. Such Notice must specify the Default, demand that it be remedied to the extent consistent with law, and state that the Notice is a "Notice of Default." As used herein, the term "Bankruptcy Law" means title 11 of the U.S. Code or any similar federal, state, or foreign law for the relief of debtors, and the term "Custodian" means any receiver, trustee, assignee, liquidator, or similar official under any Bankruptcy Law. SECTION 6.02. ACCELERATION. If an Event of Default occurs and is continuing, the Trustee by Notice to the Company, or the Holders of at least 33% in aggregate outstanding Fixed Principal Amount of the Securities by Notice to the Company and the Trustee, may declare the Fixed Principal Amount of and accrued and unpaid interest on all the Securities to be due and payable; provided, however, that such acceleration will be automatic (without need for notice) upon the occurrence of any Event of Default under Section 6.01(4) or Section 6.01(5) hereof. Upon such declaration the Fixed Principal Amount and accrued and unpaid interest will be due and payable immediately. The Holders of a majority of the aggregate outstanding Fixed Principal Amount of the Securities by Notice to the Company and the Trustee may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of Principal or interest that has become due solely because of the acceleration. The Company shall, in any event, pay all reasonable expenses of the Trustee in relation to the foregoing, and the Company shall promptly deliver to all Holders an officer's certificate regarding any such rescission and related cure or waiver. No Event of Default shall in any circumstance give rise to a right of the Trustee or the Holders to accelerate any Contingent Principal Amount. SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of Principal or interest due and payable on the Securities or to enforce the performance of any provision of the Securities or this Indenture. The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default will not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law. SECTION 6.04. WAIVER OF PAST DEFAULTS. The Holders of a majority of the aggregate, outstanding Fixed Principal Amount of the Securities by Notice to the Trustee may waive an existing Default and its consequences except: 19 (1) A Default in the payment of the Principal of or interest on any Security; or (2) A Default with respect to a provision that under Section 9.02 hereof cannot be amended without the consent ------------ of each Holder affected. SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority of the aggregate, outstanding Fixed Principal Amount of the Securities may direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture, is unduly prejudicial to the rights of other Holders, or would involve the Trustee in personal liability or expense for which the Trustee has not received a satisfactory indemnity. SECTION 6.06. LIMITATION ON SUITS. A Holder may pursue a remedy with respect to this Indenture or the Securities at any time after the stated maturity of the Securities, and otherwise only if: (1) The Holder gives to the Trustee Notice of a continuing Event of Default; (2) The Holders of at least 33% of the aggregate outstanding Fixed Principal Amount of the Securities make a written request to the Trustee to pursue the remedy; (3) The Trustee either (i) gives to such Holders Notice it will not comply with the request, or (ii) does not comply with the request within 30 days after receipt of the request; and (4) The Holders of a majority of the aggregate outstanding Fixed Principal Amount of the Securities do not give the Trustee a written direction inconsistent with the request prior to the earlier of the date, if ever, on which the Trustee delivers a Notice under Section 6.06(3)(i) above or the expiration of the period described in Section 6.06(3)(ii) above. No Holder shall use this Indenture to prejudice the rights of another Securityholder or to obtain a preference or priority over another Securityholder. SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Except as expressly provided in Section 6.06 hereof, the right of any Holder of a Security to receive payment of Principal and interest on the Security, on or after the respective due dates expressed in the Security, or to bring suit for the enforcement of any such payment on or after such respective dates, will not be impaired or affected without the consent of such Holder. Nothing in this Indenture limits or defers the right or ability of any Holders to petition for commencement of a case under applicable Bankruptcy Law to the extent consistent with such Bankruptcy Law. SECTION 6.08. PRIORITIES. During the continuance of an Event of Default, any money or other property distributable in respect of the Company's obligations under this Indenture will be paid in the following order: 20 (1) First: to the Trustee (including any predecessor Trustee) for amounts due under Section 7.07 hereof; (2) Second: to holders of Senior Debt to the extent, if any, that the Holders have expressly subordinated the Securities in their right of payment to such Senior Debt, as contemplated by Section 2.12 hereof; (3) Third: to the Holders for amounts due and unpaid on the Securities for Principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities for Principal and interest, respectively; and (4) Fourth: to the Company (or such other Person(s) as may be legally entitled thereto. The Trustee may fix a record date and payment date for any payment to Holders. SECTION 6.09. UNDERTAKING FOR COSTS. In any suit against the Trustee (i) for any action taken or omitted by it as Trustee or (ii) for the enforcement of any right or remedy under this Indenture, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. SECTION 6.10. PROOF OF CLAIM. In the event of any Proceeding, the Trustee may (and, if applicable pursuant to the terms of the applicable subordination agreement, the trustee for or holders of Senior Debt may) file a claim for the unpaid balance of the Securities in the form required in the Proceeding and cause the claim to be approved or allowed. Nothing herein contained is to be deemed to authorize the Trustee or the holders of Senior Debt to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment, or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee or the holders of Senior Debt to vote in respect of the claim of any Securityholder in any Proceeding. SECTION 6.11. ACTIONS OF A HOLDER. For the purpose of providing any consent, waiver, or instruction to the Company or the Trustee, a "Holder" or "Securityholder" includes a Person who provides to the Company or the Trustee, as the case might be, an affidavit of beneficial ownership of a Security, together with a satisfactory indemnity against any loss, liability, or expense to such Party to the extent that it acts upon such affidavit of beneficial ownership (including any consent, waiver or instructions given by a Person providing such affidavit and indemnity). 21 ARTICLE 7. TRUSTEE. SECTION 7.01. DUTIES OF TRUSTEE. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of its own affairs, except during the continuance of an Event of Default: (1) The Trustee need perform only those duties that are specifically set forth in this Indenture and no others; and (2) In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture. (b) The Trustee will not be relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (1) This Section 7.01(b) does not limit the effect of Section 7.01(a) immediately above; (2) The Trustee will not be liable for any error of judgment made in good faith by a Trust Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; (3) The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof; and (4) The Trustee may refuse to perform any duty or exercise any right or power that would require it to expend its own funds or risk any liability if it reasonably believes that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it. (c) The Trustee will not be liable for interest on any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. (d) Every provision of this Indenture that in any way relates to the Trustee is subject to Paragraphs (a), (b), and (c) of this Section 7.01. 22 SECTION 7.02 RIGHTS OF TRUSTEE. (a) The Trustee may rely on any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document. (b) Before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on any Officers' Certificate or any Opinion of Counsel. The Trustee may also consult with counsel on any matter relating to the Indenture or the Securities, and the Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such advice of counsel. (c) The Trustee may act through agents. However, the Trustee will not be responsible or liable for the misconduct or negligence of any agent it appoints with due care. (d) The Trustee will not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers. (e) Except in connection with compliance with TIA Section 310 or 311, the Trustee will only be charged with knowledge of Trust Officers. SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE; DISQUALIFICATION. The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or any of its Affiliates with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. However, the Trustee is subject to TIA Sections 310(b) and 311. SECTION 7.04. TRUSTEES DISCLAIMER. The Trustee will have no responsibility for the validity or adequacy of this Indenture or the Securities. Moreover, the Trustee will not be accountable for the Company's use of the proceeds from the Securities, and it will not be responsible for any statements made in respect of the Securities other than Trustee's authentication of them. SECTION 7.05. NOTICE OF DEFAULTS. If a continuing Default is known or made known to the Trustee, the Trustee shall mail to the Holders a Notice of the Default within 30 days after it obtains such knowledge; provided, however, the Trustee may withhold such Notice if and so long as a committee of its Trust Officers in good faith determines that withholding the Notice is in the interests of the Holders, except in the case of a Default in payment on any Security (in which event, such Notice must be timely mailed). The Trustee shall mail to all of the Holders copies of: (i) all Notices it receives from any Securityholder under Section 6.06 hereof, (ii) all Notices the Trustee provides to any Securityholder pursuant to Section 6.06(3)(i) hereof, and (iii) all Notices received by the Trustee pursuant to Section 4.04 hereof. SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. If required pursuant to TIA Section 313(a), within 60 days after [ ] of each year, the Trustee shall mail to all Holders a brief report dated as of such reporting date that complies with TIA Section 23 313(a). The first reporting date is [ ]. The Trustee also shall comply with the other reporting, mailing, and filing provisions of TIA Sections 313(b), (c), and (d). SECTION 7.07. COMPENSATION AND INDEMNITY. (a) The Company shall pay to the Trustee from time to time reasonable compensation for its services, including compensation for any Agent capacity in which it serves. The Trustee's compensation will not be limited by any law on compensation of a trustee of an express trust. Subject to the limitation set forth in Section 7.07(c) below, the Company also shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it, including the reasonable compensation and out-of-pocket expenses of the Trustee's agents and counsel. (b) Subject to the limitation set forth in Section 7.07(c) below, the Company shall indemnify, defend, and hold harmless the Trustee from and against any loss, liability, or expense incurred by it, including in any Agent capacity in which it serves; provided, however, the Company need not pay for any settlement made without its written consent, which consent it shall not unreasonably withhold. The Trustee shall promptly give the Company Notice of any claim for which it seeks indemnity. The Trustee shall cooperate with the Company in connection with the Company's defense of any such claim. The Trustee may have separate counsel, and the Company shall pay the reasonable fees and expenses of such separate counsel. (c) The Company need not reimburse any expense or indemnify against any loss, liability, or expense incurred by the Trustee through gross negligence, willful misconduct, or bad faith. (d) To secure the Company's payment obligations in this Section 7.07, the Trustee will have, and the Company hereby grants the Trustee, a lien prior to the lien of the Securities on all money or property held or collected by the Trustee, except that held in trust to pay Principal and interest on particular Securities. (e) Without prejudice to its rights hereunder, when the Trustee incurs expenses or renders services after the occurrence of an Event of Default specified in Section 6.01(4) or (5) hereof, such expenses and compensation for the Trustee's services are intended to constitute expenses of administration under any Bankruptcy Law. SECTION 7.08. REPLACEMENT OF TRUSTEE. (a) A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee's acceptance of appointment as provided in this Section 7.08. The Trustee may resign by giving the Company Notice thereof. The Holders of a majority of the aggregate outstanding Fixed Principal Amount of the Securities may remove the Trustee by giving the Trustee and the Company Notice thereof. The Company may remove the Trustee if: (1) The Trustee fails to comply with Section 7.10 hereof; (2) The Trustee is adjudged a bankrupt or an insolvent; (3) A receiver or public officer takes charge of the Trustee or its property; or (4) The Trustee becomes incapable of acting. 24 (b) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. If a successor Trustee is not appointed and does not take office by acceptance of its appointment within 30 days after the retiring Trustee resigns, the retiring Trustee may appoint a successor Trustee at any time prior to the date on which a successor Trustee takes office. If a successor Trustee does not take office by accepting its appointment within 45 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company, or, subject to Section 6.09 hereof, any Holder may petition any court of competent jurisdiction for the appointment of a successor Trustee. (c) If the Trustee fails to comply with Section 7.10 hereof, any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. At any time within one (1) year after a successor Trustee appointed by the Company or a court pursuant to this Section 7.08 takes office, the Holders of a majority of the aggregate outstanding Fixed Principal Amount of the Securities may appoint a successor Trustee to replace such successor Trustee. (d) A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers, and duties of the Trustee under this Indenture. The successor Trustee shall mail a Notice of its succession to all of the Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.07 hereof. SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC. If the Trustee consolidates, merges, converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act will become the successor Trustee, if such successor corporation is eligible and qualified under Section 7.10 hereof. SECTION 7.10. ELIGIBILITY. This Indenture must always have a Trustee who satisfies the requirements of TIA Sections 310(a)(1) and 310(a)(2). The Trustee must always have a combined capital and surplus of at least [$ ] as set forth in its most recent published annual report of condition. The Trustee will be deemed to be in compliance with the capital and surplus requirement set forth in the preceding sentence if its obligations are guaranteed by a Person which could otherwise act as Trustee hereunder and which meets such capital and surplus requirement and the Trustee has at least the minimum capital and surplus required by TIA Section 310(a)(2). SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. Upon and so long as the Indenture is qualified under the TIA, the Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed is subject to TIA Section 311(a) to the extent indicated therein. 25 ARTICLE 8. SATISFACTION AND DISCHARGE. SECTION 8.01. SATISFACTION AND DISCHARGE OF INDENTURE. (a) This Indenture will cease to be of further effect (except as to any surviving rights of indemnification and of registration of transfer or exchange of Securities expressly provided for herein), and the Trustee, on demand of and at expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when: (1) Either (A) All Securities theretofore authenticated and delivered (other than (i) Securities that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 2.07 hereof and (ii) Securities for whose payment in full money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 8.04 hereof) have been delivered to the Trustee for cancellation; or (B) All such Securities not theretofore delivered to the Trustee for cancellation (i) have become due and payable, or (ii) will become due and payable at their stated maturity within one (1) year, and The Company has deposited or caused to be deposited with the Trustee as trust funds in trust an amount of money or U.S. Government Obligations for the purpose of paying and sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation for Principal and interest to the date of such deposit (in the case of Securities that have become due and payable) or to the stated maturity, as the case may be; [IMPOSSIBLE TO CALCULATE?] (2) The Company has paid or caused to be paid all other sums payable hereunder by the Company; and (3) The Company has delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been fully satisfied. (b) Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Holders under Section 4.01 hereof, to the Trustee under Section 7.07 hereof, and, if money or U.S. Government Obligations shall have been deposited with the Trustee pursuant to Section 8.01(a)(1) above, the obligations of the Trustee under Section 8.02 hereof shall survive. SECTION 8.02. APPLICATION OF TRUST FUNDS. The Trustee or the Disbursing or Paying Agent shall hold in trust, for the benefit of the Holders, all money and U.S. Government Obligations deposited with it (or into which such money and U.S. Government Obligations are reinvested) pursuant to Section 8.01 hereof. It shall apply such deposited 26 money and money from U.S. Government Obligations in accordance with this Indenture to the payment of the Principal and interest on the Securities. Money and U.S. Government Obligations so held in trust are not subject to the Trustee's rights under Section 7.07 hereof. SECTION 8.03. REINSTATEMENT. If the Trustee or Disbursing or Paying Agent is unable to apply any money or U.S. Obligations in accordance with Section 8.01 hereof by reason of any order or judgment of any court or governmental authority enjoining, restraining, or otherwise prohibiting such application, then the Company's obligations under this Indenture and the Securities will be revived and reinstated as though no deposit had occurred pursuant to this Article 8, until such time as the Trustee or Disbursing or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with Section 8.01 hereof; provided, however, that if the Company makes any payment of Principal of or interest on any Security following the reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of such Securities to receive such payment from the money or U.S. Government Obligations held by the Trustee or Disbursing or Paying Agent after payment in full to the Holders. SECTION 8.04. REPAYMENT TO COMPANY. The Trustee and Disbursing or Paying Agent shall promptly turn over to the Company upon written request any excess money or U.S. Government Obligations held by them at any time. The Trustee and the Disbursing or Paying Agent also shall pay to the Company upon its written request, but subject to the Trustee first having sent 30 days' written notice to all then Holders of outstanding Securities following the Company's request hereunder, any money held by them for payment of Principal or interest that remains unclaimed for two (2) years after the right to such money has matured. After payment to the Company, Holders entitled to such money shall look to the Company for payment as unsecured general creditors unless an abandoned property law designates another Person. ARTICLE 9. AMENDMENTS. SECTION 9.01. WITHOUT CONSENT OF HOLDERS. The Company and the Trustee may amend this Indenture or the Securities without the consent of any Holder: (1) To cure any ambiguity, defect, or inconsistency; or (2) To make any change that does not materially, adversely affect the rights of any Holder. SECTION 9.02. WITH CONSENT OF HOLDERS. The Company and the Trustee may amend this Indenture or the Securities with the written consent of the Holders of at least a majority of the aggregate outstanding Fixed Principal Amount of the Securities (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer, for Senior Notes). However, without the written consent of each Securityholder affected, an amendment under this Section cannot: 27 (1) Reduce the amount of Securities whose Holders must consent to an amendment or waiver; (2) Reduce the rate or amount of interest on or change the time for payment of interest on any Security; (3) Reduce the Principal of or change the fixed maturity of any Security; (4) Make any Security payable in money other than that stated in the Security; (5) Waive any payment default in respect of any of the respective Holders' Securities; or (6) Make any change in Section 6.04 hereof, Section 6.07 hereof, or this Section 9.02. It will not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, but it will be sufficient if such written consent approves the substance of all material terms thereof. SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT AND SECTION 10.03. Every amendment to this Indenture or the Securities must comply with the TIA as then in effect, so long as the Indenture and Securities are subject to the TIA. The Trustee is entitled to, and the Company shall provide, an Opinion of Counsel and Officers' Certificate that the Trustee's execution of any amendment or supplemental indenture is permitted under this Article 9. SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS AND WAIVERS. (a) A consent to an amendment or a waiver by a Holder of a Security will bind the Holder and every subsequent Holder of that Security or portion of the Security that evidences the same Debt as the consenting Holder's Security, even if notation of the consent or waiver is not made on the Security. However, any such Holder or subsequent Holder may revoke the consent or waiver as to such Holder's Security or portion of the Security if the Trustee receives the Notice of revocation before the date the amendment or waiver becomes effective. After an amendment or waiver properly becomes effective, it will bind all Holders. (b) The Company may fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described in Section 9.02 above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the provisions of Section 9.04(a) above, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, will be entitled to give such consent or to revoke any consent previously given or take any such action, whether or not such Persons continue to be Holders after such record date. No such consent will be valid or effective for more than 120 days after such record date. SECTION 9.05. NOTICE OF AMENDMENT; NOTATION ON OR EXCHANGE OF SECURITIES. After any amendment under this Article 9 becomes effective, the Company shall mail to all Holders a notice briefly describing such amendment. However, the failure to give such notice to all Holders, or any defect therein, will not impair or affect the validity of an amendment under this Article. The Company or the Trustee may place an appropriate notation about an amendment or waiver on any 28 Security thereafter authenticated. The Company may issue in exchange for affected Securities new Securities that reflect the amendment or waiver. SECTION 9.06. TRUSTEE PROTECTED. The Trustee need not sign any supplemental indenture that adversely affects its rights. ARTICLE 10. MISCELLANEOUS. SECTION 10.01. NOTICES. Each and every notice or communication to the respective Parties hereto that is required by this Indenture must be made in writing and sent to the Party to whom directed, at its respective address set forth below, by hand delivery, by a national or international courier service for next Business Day delivery, or by first-class U.S. mail: COMPANY: Attention: GUARANTOR: Attention: TRUSTEE: Attention: [ADD ANY AGENTS THAT ARE PARTIES] Any Party by written notice to the other Parties as aforesaid and to the Holders as provided in the next sentence hereof may designate additional or different addresses for subsequent notices. Each and every notice or communication to the Holders that is required by this Indenture must be made in writing and sent by hand delivery, by a national or international courier service for next Business Day delivery, or by first-class U.S. mail to each respective Holder's address shown on the register kept by the Registrar. (All such written notices and communications addressed and sent to the Parties or Holders in the foregoing manner, collectively, are herein called "Notices"). Failure to mail a Notice to, a or any defect in a Notice mailed to any Holder will not affect the sufficiency of the Notices properly mailed to other Holders. If a Notice is delivered or mailed in the manner provided above within the respective time period for such Notice prescribed in the various provisions of this Indenture requiring that Notice be given, it will be deemed to have been duly given, whether or not the addressee receives it. Whenever the Company mails a notice to the Holders, it shall also deliver or mail a copy thereof to the Trustee and each Agent at the same time. SECTION 10.02. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS. Holders may communicate with other Holders with respect to their rights under this Indenture or the Securities pursuant to the provisions of, and subject to the requirements, conditions, and limitations 29 imposed by, TIA Section 312(b). The Company, the Trustee, and Registrar and anyone else will have the protection of TIA Section 312(c). SECTION 10.03. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee the following: (1) An Officer's Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been satisfied; and (2) An Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been satisfied. SECTION 10.04. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each Officer's Certificate or Opinion of Counsel with respect to satisfaction of a condition or compliance with a covenant provided for in this Indenture must include the following: (1) A statement that each Person making such certificate or opinion has read such covenant or condition; (2) A brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) A statement that, in the opinion of such Person, the Person has made such examination or investigation as is reasonably necessary to enable such Person to express an informed opinion as to whether or not such covenant has been complied with or such condition has been satisfied; and (4) A statement as to whether or not, in the opinion of such Person, such covenant has been complied with or such condition has been satisfied. SECTION 10.05. RULES BY TRUSTEE AND AGENTS. The Trustee may make reasonable rules for the taking of actions by, or holding meetings of, Holders. Any Agent may make reasonable rules and set reasonable requirements for its functions. SECTION 10.06. LEGAL HOLIDAYS. As used herein, a "Legal Holiday" means a Saturday, a Sunday, or any day on which banking institutions are not required to be open in any place where a payment pursuant to this Indenture or any of the Securities is to be made. If a payment date is a Legal Holiday in any place of payment, the Company, the Trustee, or any Disbursing or Paying Agent may make such payment at that place on the next succeeding day that is not a Legal Holiday, and no interest will accrue for the intervening period. 30 SECTION 10.07. NO RECOURSE AGAINST OTHERS. No director, officer, employee, or stockholder of the Company will, as a result of its capacity as such, have any liability for any of the obligations of the Company under this Indenture or under any of the Securities, for the Company's Default thereunder or breach of any of the provisions thereof, or for any claim based on, in respect of, or by reason of such obligations or their creation. SECTION 10.08. VARIABLE PROVISIONS. (a) The Company hereby appoints the Trustee as the initial Registrar and Disbursing or Paying Agent. (b) In determining whether the Trustee has a conflicting interest as defined in TIA Section 310(b)(1), the following are excluded: [ ]. SECTION 10.09. ADDITIONS, MODIFICATIONS, AND WAIVERS. All additions, modifications, alterations, and amendments hereto, as well as all waivers of any provision hereof (or of any right or remedy conferred hereby), that are permitted by Article 9 of this Indenture must be made by an express written declaration that specifically refers to the provisions hereof in question and that is signed by a duly authorized representative of each of the Parties hereto and by the requisite number of Holders in each instance when required. A written waiver by a Party or the requisite number of Holders at any time will be effective only in that specific instance and only for the precise purpose for which given, and it is not to be construed as a waiver of any other provision, right, or remedy, or as a consent to any similar action in the future. SECTION 10.10. BINDING EFFECT. This Indenture is binding upon, and is to inure to the benefit of, each of the Parties, each of the Holders, and each of their respective heirs, executors, administrators, personal representatives, trustees, receivers, successors, and permitted assigns. SECTION 10.11. ENTIRE AGREEMENT. This Indenture, the Securities issued by the Company hereunder, and the Company's Plan of Reorganization contain the entire agreement between and among the Parties and the Holders with respect to the transactions contemplated hereunder and all of the subject matters hereof. The provisions of this Indenture and the form of Security attached hereto as EXHIBIT A supersede all prior drafts, inquiries, offers, correspondence, understandings, and the like between and among the Parties and the Holders with respect thereto, regardless of whether written or oral. SECTION 10.12. CAPTIONS, SEVERABILITY, AND INTERPRETATION. The headings and captions set forth herein are for convenience of reference only and are not to be used in construing or interpreting the provisions hereof. Each and every provision hereof is intended to be severable from one another and should be interpreted and construed so as to be valid and enforceable under applicable law to the greatest extent possible. If one or more provisions hereof, or any portion of any provision hereof, is not completely enforceable under applicable law, it is to be interpreted and construed so as to be unenforceable to the most limited extent possible without affecting the enforceability of the remainder of such provision or the remaining provisions hereof. In this connection, the Parties expressly authorize any arbitrator, court, or other competent authority having jurisdiction hereof to modify any such unenforceable provision, or portion thereof, in order that such provision or portion will be enforceable to 31 the fullest extent permitted by applicable law. Each of the Parties hereto have participated equally in the negotiation hereof, and none of the provisions hereof are to be construed more strictly against one of the Parties than against another based upon the rule of construction that a document is to be construed more strictly against the party who actually prepared it. SECTION 10.13. MULTIPLE COUNTERPARTS. The Parties may execute this Indenture in any number of multiple counterparts, each of which is to be deemed an original, and all of such counterparts together constitute one and the same instrument. One fully executed original hereof is sufficient to prove this Indenture. SECTION 10.14. GOVERNING LAW. All of the provisions of this Indenture and of the Securities issued by the Company hereunder are in all respects (including, but not limited to, all matters of construction, interpretation, performance, breach, and the consequences of breach) to be governed by and construed in accordance with the internal, substantive laws of the State of New York, without regard to any of its rules or principles concerning any conflicts of laws. SECTION 10.15 CONSENT TO JURISDICTION AND APPOINTMENT OF AGENT FOR SERVICE OF PROCESS. IN THE EVENT OF ANY DISPUTE ARISING IN CONNECTION WITH THIS INDENTURE AND/OR IN THE EVENT THE TRUSTEE OR ANY HOLDER BRINGS SUIT FOR THE ENFORCEMENT OF ANY RIGHTS OR REMEDIES ARISING UNDER THIS INDENTURE, THE COMPANY HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION AND VENUE OF THE UNITED STATES FEDERAL COURTS FOR THE SOUTHERN DISTRICT OF NEW YORK; AND THE COMPANY HEREBY WAIVES ALL OBJECTIONS TO THE JURISDICTION AND PROPER VENUE OF SUCH COURTS (INCLUDING, BUT NOT LIMITED TO, ALL CLAIMS OF FORUM INCONVENIENCE). THE COMPANY HEREBY APPOINTS AVIANCA, INC., HAVING OFFICES LOCATED AT 720 5TH AVENUE, 5TH FLOOR, NEW YORK, NEW YORK 10019-4107, AS ITS AGENT FOR SERVICE OF PROCESS. IN WITNESS WHEREOF, each of the Parties has caused this Indenture to be executed and delivered by its duly authorized respective Officers, effective as of the Effective Date set forth at the beginning hereof. [SIGNATURES ON NEXT PAGE] 32 COMPANY: AEROVIAS NACIONALES DE COLOMBIA S.A. AVIANCA By: ___________________________________________ (Type Name and Title of Authorized Officer) GUARANTOR: AVIANCA, INC. By: ___________________________________________ (Type Name and Title of Authorized Officer) TRUSTEE: THE BANK OF NEW YORK By: ___________________________________________ (Type Name and Title of Authorized Officer) 33 EXHIBIT A A-1 (FACE OF SECURITY) AEROVIAS NACIONALES DE COLOMBIA S.A. AVIANCA UNITED STATES DOLLAR DENOMINATED NOTE DUE APRIL 30, 2011 No. _________ $ ___________ For value received, AEROVIAS NACIONALES DE COLOMBIA S.A. AVIANCA ("Avianca S.A." or the "Company"), a sociedad anonima (similar to a corporation) organized under the laws of the Republic of Colombia, promises to pay to _____, or its registered assigns, the minimum, fixed principal sum of _______ Dollars ($___) (the "Fixed Principal Amount"), together with accrued interest thereon as stated on the reverse side of this Security, plus the aggregate Contingent Principal Amounts (as defined on the reverse side hereof) that are owing hereunder, if any. The Company shall pay to the Holder hereof all installments of principal and interest owing under this Security in accordance with the provisions set forth herein. See the reverse side of this Security, the Indenture (as defined on the reverse side hereof), the Plan of Reorganization (as defined in the Indenture), and the Act (as defined on the reverse side hereof and in the Indenture) for additional provisions of this Security. Dated: __ Authenticated: __ ______, as Trustee AEROVIAS NACIONALES DE COLOMBIA S.A. AVIANCA, as Issuer By: _____________________________ By: _______________________ (Type Name and Title of (Type Name and Title of Authorized Officer) Authorized Officer) GUARANTY The undersigned Guarantor hereby unconditionally and irrevocably guarantees the full and prompt payment and performance of all of the Company's obligations under this Security and under the Indenture pursuant to which the Company issued this Security. AVIANCA, INC. By: _____________________________ (Type Name and Title of Authorized Officer) A-2 (REVERSE OF SECURITY) AEROVIAS NACIONALES DE COLOMBIA S.A. AVIANCA UNITED STATES DOLLAR DENOMINATED NOTE DUE APRIL 30, 2011 1. INDENTURE. Aerovias Nacionales De Colombia S.A. Avianca ("Avianca S.A." or the "Company"), a sociedad anonima (similar to a corporation) organized under the laws of the Republic of Colombia, issued this Security under a Trust Indenture dated as of ___ (the "Indenture") among the Company, as issuer, its wholly-owned subsidiary, Avianca, Inc, a New York corporations, as guarantor (the "Guarantor"), and ____, a _____, as trustee (the "Trustee"). The terms, conditions, and provisions of this Security include those stated in the Indenture and also those made part of the Indenture by the Trust Indenture Act of 1939 (15 U.S.C. 77aaa-77bbbb) (the "Act"), and all provisions of the Indenture and of the Act are hereby incorporated herein by reference as fully as if set forth at length in the text hereof. The Indenture, in turn, incorporates by reference the terms, conditions, and provisions of the Third Modified and Restated Joint Plan of Reorganization of the Company and its wholly-owned subsidiary, Avianca, Inc. (the "Plan" or "Plan of Reorganization"). This Security is subject to all terms, conditions, and provisions of the foregoing, and the Holder of this Security is referred to the Indenture, the Plan of Reorganization, and the Act for a statement of such terms, conditions, and provisions. All capitalized terms used in this Security, but not defined herein, have the same respective meanings as defined in the Indenture, the Plan of Reorganization, and/or the Act. 2. PRINCIPAL. (a) FIXED PRINCIPAL AMOUNT. Subject to section 4 below, the Company promises to pay to the Holder of this Security the Fixed Principal Amount of this Security in eight (8) installments on the payment dates set forth below (collectively, the "Fixed Payment Dates"). The amount of each such installment of the Fixed Principal Amount that the Company shall pay on each Fixed Payment Date will be equal to the following specified percentages of the aggregate, minimum Fixed Principal Amount set forth on the face of this Security:
SPECIFIED % OF FIXED PAYMENT DATE FIXED PRINCIPAL AMOUNT ------------------ ---------------------- June 30, 2005 6.7% December 31, 2005 9.5% June 30, 2006 10.0% December 31, 2006 17.5% June 30, 2007 11.3% December 31, 2007 18.8% June 30, 2008 12.8% December 31, 2008 13.4% ---- 100%
(b) EXCESS CASH PAYMENT. If the Company's Effective Date Cash Balance (as defined in the Plan of Reorganization) exceeds $45,000,000, the Company is required, by the provisions of the Plan, to make an additional payment to the Holder hereof in an amount equal to the Holder's Pro Rata share of the aggregate Excess Cash Payment, which is defined by the Plan as meaning twenty-five percent (25%) of the amount, if any, by which the Effective Date Cash Balance exceeds $45,000,000 (the "Excess Cash Payment"); provided that said share of the amount, if any, by which the Excess Cash Payment, if any, exceeds $(US)1,000,000 shall be applied as a prepayment of the installments of interest payable under the Dollar Notes in direct order of maturity. The Excess Cash Payment is due on a date that is no more than thirty (30) days after the Effective Date (the "Excess Cash Payment Date"). (c) CONTINGENT PRINCIPAL AMOUNT. In addition to paying the aggregate Fixed Principal Amount of this Security, pursuant to the terms of the Plan of Reorganization, the Company is also obligated, under certain circumstances, to make payments of additional Principal (collectively, all of such additional Principal payments are herein called the "Contingent Principal Amounts") to the Holder of this Security. The respective amount of each such payment, if any, is dependent upon the consolidated financial performance of Reorganized Avianca and its subsidiary, SAM (as defined in the Plan of Reorganization), as measured by their consolidated EBITDA (as defined in the Plan). If the EBITDA of Reorganized Avianca-SAM for each calendar year ending December 31, 2005, through December 31, 2010 (collectively, the "Contingent Payments Measuring Years") exceeds the amounts specified below, then on April 30 of the immediately succeeding calendar year (collectively, the "Contingent Payment Dates"), the Company is obligated to pay to the Holder of this Security its Pro Rata share of the aggregate Contingent Principal Amounts due to all Holders of all Allowed Class 7 and Class 8 Claims (as defined in the Plan). The annual, aggregate Contingent Payment Amounts, if any, to be so distributed is the amount, if any, by which 15% of the consolidated EBITDA of the Reorganized Avianca-SAM for each of the Contingent Payments Measuring Years exceeds the total "Fixed Payment Amount" for each such year specified in the following schedule:
CALENDAR YEAR SPECIFIED TOTAL ENDED DECEMBER 31 FIXED PAYMENT AMOUNT ----------------- -------------------- 2005 $10,000,000 2006 $12,500,000 2007 $12,500,000 2008 $10,000,000 2009 $ 0 2110 $ 0
3. INTEREST. (a) CALCULATION. The Company promises to pay interest on the unpaid Fixed Principal Amount of this Security that is from time to time outstanding at the simple interest rate of ten percent (10%) per annum. The Company shall pay such interest semi-annually on each of the respective Fixed Payment Dates, commencing June 30, 2005, through December 31, 2008, subject to the provisions for prepayment or postponement of interest contained in sections 2(b), 3(b) and 4 hereof. Interest on the unpaid Fixed Principal Amount of this Security will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance of this Security. Interest will be computed on the basis of a 360-day year of twelve 30-day months. No interest will accrue, and no payment of interest will be made by the Company, on or with respect to any Excess Cash Payment or Contingent Principal Amounts owing under this Security, unless any such amount is not paid when due (in which event, interest will accrue thereon at the rate of ten percent (10%) per annum from the date due until paid in full). (b) CREDIT OF A PORTION OF EXCESS CASH PAYMENT AGAINST FUTURE INTEREST. The Holder's Pro Rata share of the amount by which the aggregate Excess Cash Payment exceeds $1,000,000 2 will be will be applied as a prepayment of the installments of interest due and payable under this Security in the direct order of their maturity. 4. PROVISION FOR INCREMENTAL COMPLIANCE COSTS. Notwithstanding the foregoing, (a) payment of interest and, to the extent necessary, a portion of the Fixed Principal Amount otherwise due on December 31, 2007 shall be deferred in an amount equal to the lesser of (i) $1,000,000.000, and (ii) one half of any Incremental Compliance Costs as of such date (such lesser amount, the "First Compliance Contribution"), and (b) payment of interest and, to the extent necessary, a portion of the Fixed Principal Amount otherwise due on December 31, 2008 shall be deferred in an amount equal to the lesser of (i) the difference between $2,000,000.000 and the amount deferred pursuant to the foregoing clause (a), and (ii) the difference between one half of any Incremental Compliance Costs as of such date and the amount deferred pursuant to the foregoing clause (a) (such lesser amount, the "Second Compliance Contribution"). The amounts so deferred shall not accrue interest, shall in no manner affect the Principal and interest payments otherwise due on subsequent dates, and shall be subsequently payable up to the amounts deferred in accordance with the following schedule: April 30, 2008 - an amount equal to one half of 85% of the excess of Avianca's EBITDA for the immediately preceding fiscal year over $71,602,255; April 30, 2009 - (A) first, an amount equal to 85% of the excess of Avianca's EBITDA for the immediately preceding fiscal year over $68,475,255, to the extent of the Second Compliance Contribution, and (B) second, an amount equal to one half of 85% of the excess of Avianca's EBITDA for the immediately preceding fiscal year over $68,475,255, to the extent such excess EBITDA is not applied in accordance with the foregoing clause (A); April 30, 2010 - (A) first, an amount equal to 85% of the excess of Avianca's EBITDA for the immediately preceding fiscal year over $65,241,127, to the extent of the unpaid portion of the Second Compliance Contribution, and (B) second, an amount equal to one half of 85% of the excess of Avianca's EBITDA for the immediately preceding fiscal year over $65,241,127, to the extent such excess EBITDA is not applied in accordance with the foregoing clause (A); April 30, 2011 - (A) first, an amount equal to 85% of the excess of Avianca's EBITDA for the immediately preceding fiscal year over $61,896,616, to the extent of the unpaid portion of the Second Compliance Contribution, and (B) second, an amount equal to one half of 85% of the excess of Avianca's EBITDA for the immediately preceding fiscal year over $61,896,616, to the extent such excess EBITDA is not applied in accordance with the foregoing clause (A); provided, that in the event that the amounts specified in such schedule are inadequate to repay the deferred amounts, Avianca's obligation on the unpaid balance of the deferred amounts shall be cancelled on April 30, 2011. 5. METHOD OF PAYMENT. Principal and interest will be paid to each Person who is a registered holder of this Security at the close of business on the first (1st) day of the month during which the applicable Fixed Payment Date and/or Contingent Payment Date occurs (each a "Record Date"), except as otherwise provided herein or in the Indenture. The Holder hereof must surrender this Security 3 to a Disbursing or Paying Agent to collect the final payment of any Contingent Principal Amount due hereunder. The Company shall make all payments of Principal and interest owing hereunder in money of the United States that at the time of payment is legal tender for payment of public and private debts. However, the Company may pay Principal and interest by wire transfer or check payable in such money. The Company may mail a principal and interest check to a record Holder's registered address. 6. AGENTS. Initially, the Trustee, with offices at _____ , shall serve as Registrar and Disbursing or Paying Agent. The Company may change any such Agent without notice. The Company or an Affiliate may act in any such capacity. Subject to certain conditions, the Company may change the Trustee. 7. PREPAYMENT. The Company may prepay all or any portion of the Fixed Principal Amount owing under this Security in accordance with the provisions of Article 3 of the Indenture. 8. NOTICE OF PREPAYMENT. Notice of prepayment will be mailed at least thirty (30) days, but not more than sixty (60) days before, the prepayment date to each Holder of Securities to be prepaid at such Holder's registered address. 9. DENOMINATIONS, TRANSFER, AND EXCHANGE. The Securities are in registered form without coupons in denominations of $1,000 and whole multiples of $1,000. The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes required by law. The Registrar need not exchange or register the transfer of any Security or portion of a Security selected for prepayment. Also, it need not exchange or register the transfer of any Securities for a period of fifteen (15) days before a selection of Securities to be redeemed. 10. PERSONS DEEMED OWNERS. Subject to the provisions of Section 6.11 of the Indenture, the registered Holder of a Security may be treated as its owner for all purposes. 11. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the Indenture or the Securities may be amended, and any Default may be waived, with the consent of the Holders of a majority in Principal amount of the Securities. Without the consent of any Holders of Securities, the Indenture or the Securities may be amended to cure any ambiguity, defect or inconsistency, to provide for assumption of Company obligations to Holders of Securities or to make any change that does not adversely affect the rights of any Holder of any Securities. 12. SUCCESSORS. When any successor assumes all the obligations of the Company under the Securities and the Indenture in accordance with the provisions thereof, the Company will be released from those obligations, except as provided in the Indenture. 13. SATISFACTION AND DISCHARGE PRIOR TO PREPAYMENT OR MATURITY. Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Securities and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of all Principal and interest owing under the Securities to prepayment or maturity. [IMPOSSIBLE TO CALCULATE?]. 14. DEFAULTS AND REMEDIES. Subject to the Indenture, if an Event of Default (as defined in the Indenture) occurs and is continuing, the Trustee or the Holders of at least 33% of the aggregate outstanding Fixed Principal Amount of the Securities may declare all of the Securities to be due and payable immediately. Holders of Securities may not enforce the 4 Indenture or the Securities except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the Securities. Subject to certain limitations, Holders of a majority of the aggregate outstanding Fixed Principal Amount of the Securities may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Securities notice of any continuing Default (except a Default in payment of principal or interest) if it determines that withholding notice is in their interests. The Company must furnish an annual compliance certificate to the Trustee. 15. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the Indenture, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not Trustee, subject to the provisions of the Indenture and the Act. 16. NO RECOURSE AGAINST OTHERS. A director, officer, employee, or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder of any Securities by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities. 17. AUTHENTICATION. This Security will not be valid until authenticated by a manual signature of the Trustee. 18. ABBREVIATIONS. Customary abbreviations may be used in the name of any Holder of any Securities or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). 19. GOVERNING LAW. All of the provisions hereof are in all respects (including, but not limited to, all matters of construction, interpretation, performance, breach, and the consequences of breach) to be governed by and construed in accordance with the internal, substantive laws of the State of New York, without regard to any of its rules or principles concerning any conflicts of laws. 20. CONSENT TO JURISDICTION AND APPOINTMENT OF AGENT FOR SERVICE OF PROCESS. IN THE EVENT OF ANY DISPUTE ARISING IN CONNECTION WITH THIS INDENTURE AND/OR IN THE EVENT THE TRUSTEE OR ANY HOLDER BRINGS SUIT FOR THE ENFORCEMENT OF ANY RIGHTS OR REMEDIES ARISING UNDER THIS INDENTURE, THE COMPANY HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION AND VENUE OF THE UNITED STATES FEDERAL COURTS FOR THE SOUTHERN DISTRICT OF NEW YORK; AND THE COMPANY HEREBY WAIVES ALL OBJECTIONS TO THE JURISDICTION AND PROPER VENUE OF SUCH COURTS (INCLUDING, BUT NOT LIMITED TO, ALL CLAIMS OF FORUM INCONVENIENCE). THE COMPANY HEREBY APPOINTS AVIANCA, INC., HAVING OFFICES LOCATED AT 720 5TH AVENUE, 5TH FLOOR, NEW YORK, NEW YORK 10019-4107, AS ITS AGENT FOR SERVICE OF PROCESS. 21. COPIES OF INDENTURE AND PLAN OF REORGANIZATION. THE COMPANY SHALL FURNISH TO ANY HOLDER OF THIS SECURITY, UPON WRITTEN REQUEST AND WITHOUT CHARGE, A COPY OF (I) THE INDENTURE AND/OR (II) THE PLAN OF REORGANIZATION. REQUESTS MAY BE MADE TO: AVIANCA, 720 5TH AVENUE, 5TH FLOOR, NEW YORK, NEW YORK 10019-410. 5