Exhibit 4.26
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TRANS WORLD AIRLINES, INC.
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Trustee
INDENTURE
Dated as of March 3, 1998
$150,000,000
11 3/8% Senior Notes due 2006
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TABLE OF CONTENTS
Page
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ARTICLE 1.
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1 Definitions........................................................1
Section 1.2 Rules of Construction..............................................1
ARTICLE 2.
THE SECURITIES
Section 2.1 Designation, Form and Dating......................................1
Section 2.2 Execution, Amount, Authentication and Delivery....................2
Section 2.3 Registrar and Paying Agent........................................4
Section 2.4 Paying Agent to Hold Payments In Trust............................4
Section 2.5 Securityholder Lists..............................................6
Section 2.6 Transfer and Exchange.............................................6
Section 2.7 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities........................................................7
Section 2.8 Treasury Securities...............................................8
Section 2.9 Temporary Securities..............................................9
Section 2.10 Cancellation......................................................9
Section 2.11 Defaulted Interest; Interest on Defaulted
Principal ........................................................9
Section 2.12 CUSIP Numbers....................................................10
ARTICLE 3.
REDEMPTIONS AND CERTAIN REPURCHASES
Section 3.1 Optional Redemption-General.......................................10
Section 3.2 Redemption Notice to Trustee......................................10
Section 3.3 Selection of Securities to be Redeemed............................11
Section 3.4 Notice of Redemption..............................................11
Section 3.5 Effect of Notice of Redemption....................................12
Section 3.6 Deposit of Redemption Price.......................................12
Section 3.7 Securities Redeemed in Part.......................................12
Section 3.8 Optional Redemption Upon Public Equity Offering...................12
ARTICLE 4.
COVENANTS, REPRESENTATIONS AND WARRANTIES
Section 4.1 Payment of Securities...........................................12
Section 4.2 Maintenance of Office or Agency.................................13
Section 4.3 Limitation on Restricted Payments...............................13
Section 4.4 Corporate Existence.............................................16
Section 4.5 Payment of Taxes and Other Claims...............................17
Section 4.6 Notices.........................................................17
Section 4.7 Maintenance of Properties and Insurance.........................17
Section 4.8 Default Notices and Compliance Certificates.....................18
Section 4.9 SEC Reports.....................................................18
Section 4.10 Waiver of Stay, Extension or Usury Laws.........................19
Section 4.11 Amendment to Indenture..........................................19
Section 4.12 Limitation on Liens.............................................19
Section 4.13 Books, Records, Access; Confidentiality.........................20
Section 4.14 Repurchase of Securities Upon a Change in Control...............20
Section 4.15 Restrictions on Becoming an Investment Company..................21
Section 4.16 Limitation on Indebtedness......................................21
Section 4.17 Limitation on Restrictions on Distributions from
Restricted Subsidiaries.........................................24
Section 4.18 Limitation on Sales of Assets and Subsidiary Stock..............26
Section 4.19 Limitation on Affiliate Transactions............................27
Section 4.20 Limitation on the Sale or Issuance of Capital Stock
of Restricted Subsidiaries......................................27
Section 4.21 Limitation on Guarantees by Restricted
Subsidiaries ...................................................28
Section 4.22 Limitation on Sale/Leaseback Transactions.......................29
Section 4.23 Application for Rating..........................................29
Section 4.24 Listing.........................................................29
ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.1 Covenant Not to Consolidate, Merge, Convey or
Transfer Except Under Certain Conditions........................29
Section 5.2 Successor Person Substituted....................................30
Section 5.3 Optional Right of Redemption....................................31
ARTICLE 6.
DEFAULT AND REMEDIES
Section 6.1 Events of Default...............................................31
Section 6.2 Acceleration....................................................33
Section 6.3 Other Remedies..................................................33
Section 6.4 Waiver of Past Defaults.........................................33
Section 6.5 Control by Majority.............................................34
Section 6.6 Limitation on Suits.............................................34
Section 6.7 Rights of Holders to Receive Payment............................35
Section 6.8 Collection Suit by Trustee......................................35
Section 6.9 Trustee May File Proofs of Claim................................35
Section 6.10 Application of Proceeds.........................................36
Section 6.11 Undertaking for Costs...........................................37
Section 6.12 Restoration of Rights on Abandonment of
Proceedings.....................................................37
Section 6.13 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default...........................................37
ARTICLE 7.
TRUSTEE
Section 7.1 Duties of Trustee................................................38
Section 7.2 Rights of Trustee................................................39
Section 7.3 Individual Rights of Trustee.....................................39
Section 7.4 Trustee's Disclaimer.............................................39
Section 7.5 Notice of Defaults...............................................39
Section 7.6 Reports by Trustee to Holders....................................40
Section 7.7 Compensation and Indemnity.......................................40
Section 7.8 Replacement of Trustee...........................................41
Section 7.9 Successor Trustee by Merger, etc.................................42
Section 7.10 Eligibility; Disqualification...................................42
Section 7.11 Preferential Collection of Claims Against Company...............42
ARTICLE 8.
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.1 Discharge of Liability on Securities; Defeasance.................42
Section 8.2 Conditions to Defeasance.........................................43
Section 8.3 Application of Trust Money.......................................44
Section 8.4 Repayment to Company.............................................44
Section 8.5 Indemnity for Government Obligations.............................45
Section 8.6 Reinstatement....................................................45
ARTICLE 9.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Without Consent of Holders.......................................45
Section 9.2 With Consent of Holders..........................................46
Section 9.3 Compliance with Trust Indenture Act..............................47
Section 9.4 Revocation and Effect of Consents................................47
Section 9.5 Notation on or Exchange of Securities............................47
Section 9.6 Trustee to Sign Amendments, etc..................................47
Section 9.7 Effect of Supplement and/or Amendment............................48
ARTICLE 10.
MISCELLANEOUS
Section 10.1 Conflict with Trust Indenture Act of 1939......................48
Section 10.2 Notices; Waivers...............................................48
Section 10.3 Communications by Holders with Other Holders...................49
Section 10.4 Certificate and Opinion as to Conditions Precedent.............49
Section 10.5 Statements Required in Certificate or Opinion..................50
Section 10.6 Rules by Trustee, Paying Agent, Registrar......................51
Section 10.7 Holidays.......................................................51
Section 10.8 Governing Law; Waiver of Jury Trial............................51
Section 10.9 No Adverse Interpretation of Other Agreements..................51
Section 10.10 No Recourse Against Others.....................................51
Section 10.11 Benefits of Indenture and the Securities
Restricted ....................................................52
Section 10.12 Successors and Assigns.........................................52
Section 10.13 Counterpart Originals..........................................52
Section 10.14 Severability...................................................52
Section 10.15 Rating Agencies................................................52
Section 10.16 Effect of Headings.............................................53
APPENDIX I Definitions Appendix
APPENDIX II Rule 144A/Regulation S Appendix (including forms of
11 3/8% Senior Note as Exhibits 1 and 2 thereto)
EXHIBIT A Form of Subsidiary Guaranty
INDENTURE dated as of March 3, 1998 between TRANS WORLD AIRLINES,
INC., a Delaware corporation (the "Company"), and FIRST SECURITY BANK,
NATIONAL ASSOCIATION, a national banking association, as Trustee (the
"Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company's 11 3/8% Senior
Notes due 2006 (the "Initial Securities") and, if and when issued pursuant to
a registered exchange for Initial Securities, the Company's 11 3/8% Senior
Notes due 2006 (the "Exchange Securities", and, if and when issued pursuant to
a private exchange for Initial Securities, the Company's 11 3/8% Senior
Notes due 2006 (the "Private Exchange Securities", together with the
Exchange Securities and the Initial Securities, the "Securities").
ARTICLE 1.
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1 Definitions.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to such terms in Section 1 of the Definitions
Appendix attached hereto as Appendix I, which shall be a part of this
Indenture as if fully set forth in this place.
Section 1.2 Rules of Construction.
The rules of construction for this Indenture are set forth in Section 2
of the Definitions Appendix.
ARTICLE 2.
THE SECURITIES
Section 2.1 Designation, Form and Dating.
Provisions relating to the Initial Securities, the Private Exchange
Securities and the Exchange Securities are set forth in the Rule
144A/Regulation S Appendix attached hereto as Appendix II (the "Rule 144A
Appendix") which is hereby incorporated in and expressly made part of this
Indenture. The Initial Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit 1 to the Rule
144A Appendix (with such appropriate insertions, omissions, substitutions and
other variations as are required by this Indenture) and are hereby
incorporated in and expressly made a part of this Indenture. The
Exchange Securities, the Private Exchange Securities, and the Trustee's
certificates of authentication shall be substantially in the form of Exhibit 2
to the Rule 144A Appendix (with such appropriate insertions,
omissions, substitutions and other variations as are required by this
Indenture) and are hereby incorporated in and expressly made a part of this
Indenture. The Securities may have imprinted or otherwise reproduced
thereon such notations, legends or endorsements, not inconsistent with
the provisions of this Indenture, as may be required to comply with any law
or with any rules or regulations pursuant thereto, or with the rules of any
securities market in which the Securities are admitted to trading, or
to conform to general usage. The Company shall approve the form of the
Securities and any notation, legend or endorsement on them. Each Security
shall be dated the date of its authentication and shall bear interest from
the applicable date set forth in the form of Security and shall be
payable, unless previously Tendered, on the dates as specified on the face of
the form of the Security.
The Person in whose name any Security is registered at the close of
business on any Record Date with respect to any Interest Payment Date shall
be entitled to receive the interest and Special Interest, if any, payable
on such Interest Payment Date to the extent provided by such Security, except
if and to the extent the Company shall default in the payment of the
interest or Special Interest due on such Interest Payment Date, in which case
defaulted interest or Special Interest, as the case may be, shall be paid to
the Person in whose name the Outstanding Security is registered at the close
of business on the subsequent record date (which shall be not less than five (5)
Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Company to
the Holders of Securities not less than fifteen (15) days preceding such
subsequent record date (a "Special Record Date").
Section 2.2 Execution, Amount, Authentication and Delivery.
The Securities shall be signed for the Company by the manual or facsimile
signatures of an Officer and a Certifying Officer. The Company's seal shall
be affixed to or reproduced on the Securities. Typographical or other errors
or defects in any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Security which has been duly
authenticated and delivered by the Trustee.
If an officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to $150,000,000 except for
Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities pursuant to Sections 2.6, 2.7,
2.9, 4.14, or 9.5 or in conjunction with a Registered Exchange Offer or any
Private Exchange (as such terms are defined in the Rule 144A Appendix).
The Securities shall be known and designated as the "11 3/8% Senior Notes
due 2006" of the Company. Their Stated Maturity shall be March 1, 2006, and
they shall bear interest at the rate of 11 3/8% per annum, from March 3, 1998
or from the most recent Interest Payment Date to which interest and Special
Interest, if any, have been paid or duly provided for, as the case may be,
payable semi-annually in arrears on March 1 and September 1, commencing
September 1, 1998, until the principal thereof is paid or made available for
payment.
Subject to the limits set forth in the second preceding paragraph of
this Indenture, the Trustee shall authenticate Securities for original
issue upon written order of the Company signed by an Officer and by a
Certifying Officer of the Company. The order shall specify the amount of
Securities to be authenticated and the date on which the original
issue of Securities is to be authenticated, shall provide instructions with
respect to the delivery thereof and shall be accompanied by the documents
specified in Section 10.4 and by the following (provided, however, that the
Trustee is authorized conclusively to rely upon the documents specified in
Section 10.4):
(a) an Officers' Certificate confirming all representations and
warranties of the Company contained in this Indenture as of the date of
authentication;
(b) an Officers' Certificate containing representations and warranties of
the type usual and customary to the issuance of the Securities such as, but not
limited to, representations regarding due authorization of this Indenture; due
authorization of the issuance, sale and delivery of the Securities;
that the Securities, when so issued, sold and delivered against payment
therefor will be duly and validly issued, and constitute valid and binding
obligations of the Company, enforceable in accordance with their terms; that no
consent, approval or authorization of, or designation, declaration, or filing
with, any governmental authority or any other person or entity is
required of the Company in connection with the execution and delivery of
this Indenture or the issuance, sale and delivery of the Securities; and that
the Securities have been registered under the Securities Act or that
registration is not required in connection with the offer, sale and delivery of
the Securities;
(c) an Opinion of Counsel to the effect that the Company has the
requisite corporate power and authority to execute, deliver and perform
its obligations under this Indenture; that the Securities have been duly
authorized and validly issued; and that the offer and sale of the Securities
have been registered or will be exempt from the registration requirements
under the Securities Act; and
(d) execution and delivery by the Company of the Securities and by all
parties thereto of this Indenture;
provided, however, that any Securities in fact authenticated by the Trustee
upon written order of the Company as set forth in the first sentence of this
paragraph shall be deemed to have been duly authenticated hereunder and to
constitute an enforceable contractual obligation of the Company and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities duly authenticated and delivered
hereunder, in each case, notwithstanding any failure of the Company to deliver
any of the documents specified in Section 10.4 or above in this sentence;
The Securities shall be issuable only in registered form, without
coupons, in denominations of $1,000 and any integral multiple thereof,
except that the Global Securities may be issued in a different denomination.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate 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, any guarantor or any Affiliate of the Company.
Section 2.3 Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities
eligible for transfer or exchange may be presented for registration of
transfer or for exchange ("Registrar") and an office or agency where
Securities may be presented for payment or repurchase ("Paying Agent"). The
Registrar shall keep a register of the Securities and of their transfer
and exchange ("Register"). Such Register shall be in written form in the
English language or any other form capable of being converted into such form
within a reasonable time. At all reasonable times such Register shall be open
for inspection by the Trustee. The Company may have one or more
co-Registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent.
The Company may enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
notify the Trustee of the name and address of any such Agent. If the Company
fails to maintain a Registrar or Paying Agent, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar and Paying Agent.
Section 2.4 Paying Agent to Hold Payments In Trust.
Each Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all Payments held by the Paying Agent for
the payment of principal of, repurchase or redemption price, if any, of,
interest on, and Special Interest, if any, with respect to, the Securities
(whether such Payment has been paid to it by the Company or any other
obligor on the Securities), and shall notify the Trustee of any default by
the Company (or any other obligor on the Securities) in making any such
Payment. The Company at any time may require a Paying Agent to Pay all Payments
held by it to the Trustee and account for any funds disbursed and the Trustee
may at any time during the continuance of any payment default, upon written
request to a Paying Agent, require such Paying Agent to Pay all Payments held
by it to the Trustee and to account for any Payments distributed. Upon doing
so the Paying Agent shall have no further liability for the Payments.
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of, repurchase or
redemption price, if any, of, interest on, or Special Interest, if any, with
respect to, any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto Payments sufficient to pay the
principal, repurchase or redemption price, if any, of, interest or Special
Interest, if any, so becoming due until such Payments shall be Paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee of such action or any failure so to act.
The Company will, on or before each due date for the payment of the
principal of, repurchase or redemption price, if any, of, interest on, or
Special Interest, if any, with respect to any of the Securities, deposit with a
Paying Agent Payments (in same day funds) sufficient to pay the principal,
repurchase or redemption price, if any, of, interest or Special Interest, if
any, so becoming due, such Payments to be held in trust for the benefit of
the Persons entitled to such principal, repurchase or redemption price,
if any, of, interest, or Special Interest, if any, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of such
action or any failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(a) hold all Payments received by it as such agent for the payment of
the principal of, repurchase or redemption price, if any, of, interest on, or
Special Interest, if any, with respect to the Securities (whether such
Payments have been paid to it by the Company or by any other obligor on the
Securities) in trust for the benefit of the Persons entitled thereto
until such Payments shall be paid to such Persons or otherwise disposed of as
herein provided;
(b) promptly give the Trustee notice of any failure by the Company (or
any other obligor upon the Securities) to make any payment of the principal
of, repurchase or redemption price, if any, of, interest on, or Special
Interest, if any, with respect to, the Securities when the same shall be due
and payable; and
(c) at any time during the continuance of any such failure, upon the
written request of the Trustee, forthwith pay to the Trustee all Payments so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, Pay, or
direct any Paying Agent to Pay, to the Trustee all Payments held in trust by
the Company or such Paying Agent, such Payments to be held by the Trustee upon
the same trusts as those upon which such Payments were held by the Company or
such Paying Agent; and, upon such Payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect
to such Payments held by it as Paying Agent.
Any Payments deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, redemption or
repurchase price, if any, of, interest on or Special Interest, if any,
with respect to, any Security and unclaimed for two (2) years after such
principal, redemption, repurchase price, interest or Special Interest has
become due and payable shall be paid to the Company on its request, or
(if then held by the Company) shall be discharged from such trust, unless
otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof and all liability of the Trustee or such Paying Agent with
regard to such Payments, and all liability of the Company as trustee thereof,
shall thereupon cease.
Section 2.5 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 Securityholders identified as to series. If the Trustee is not
the Registrar, the Company shall furnish to the Trustee on or before each
Interest Payment Date and at such other times as the Trustee may request in
writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Securityholders.
Section 2.6 Transfer and Exchange.
When Securities are presented to the Registrar or a co- Registrar with
a request to register the transfer or to exchange them for an equal
principal amount of Securities of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested if
its requirements, for such transactions are met. To permit registrations
of transfers and exchanges, the Company shall execute and the Trustee
shall authenticate Securities at the Registrar's request. All Securities
presented for registration of transfer, exchange, redemption or payment shall
(if so required by the Company or the Trustee) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee, duly executed by the Holder or
his attorney duly authorized in writing. The Company may require payment
of a sum sufficient to pay all taxes, assessments or other governmental
charges in connection with any registration of transfer or exchange, but not
for any exchange pursuant to Sections 2.9, 3.7, 4.14 or 9.5 or any other
Tender not involving any transfer of Securities (other than to the
Company). No service charge shall be made for any such transaction.
In the case of any Security which is Tendered in part only, upon such
Tender the Company shall execute and the Trustee shall authenticate and make
available for delivery to the Holder thereof, without service charge, a new
Security or Securities of any authorized denomination as requested by such
Holder in aggregate principal amount equal to the non-Tendered portion of the
principal of such Security. No Securities will be issued in denominations of
less than $1,000 upon tender of the Securities.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Company, evidencing the same debt of the
same series and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such transfer or exchange.
Section 2.7 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities.
In case any temporary or definitive Security shall become mutilated,
defaced or be apparently destroyed, lost or stolen, subject to compliance
with the following sentence and in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute, and the Trustee shall authenticate and
deliver, a new Security, bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated or defaced Security, or in
lieu of and substitution for the Security so apparently destroyed, lost or
stolen. In every case the applicant for a substitute Security shall
furnish to the Company and to the Trustee and any agent of the Company or the
Trustee such security or indemnity as may be required by them to
indemnify and defend and to save each of them harmless and, in every case
of destruction, loss or theft, evidence to their satisfaction of the
apparent destruction, loss or theft of such Security and of the ownership
thereof.
Upon the issuance of any substitute Security pursuant to the preceding
paragraph, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected
therewith. In case any Security which has matured or is about to mature, or
has been tendered for repurchase pursuant to any of the provisions hereof
(as evidenced by an irrevocable written notice from the Holder to the Company
and the Trustee), shall become mutilated or defaced or be apparently destroyed,
lost or stolen, the Company may, instead of issuing a substitute Security, pay
or authorize the payment of such Security (without surrender of such Security
except in the case of a mutilated or defaced Security), as applicable,
if the applicant for such payment shall furnish to the Company and to the
Trustee and any agent of the Company or the Trustee such security or indemnity
as any of them may require to save each of them harmless from all risks,
however remote, and, in every case of apparent destruction, loss or theft,
the applicant shall also furnish to the Company and the Trustee and any agent
of the Company or the Trustee evidence to their satisfaction of the
apparent destruction, loss or theft of such Security and of the ownership
thereof.
Every substitute Security issued pursuant to the provisions of this
Section by virtue of the fact that any Security is apparently destroyed,
lost or stolen shall constitute an additional contractual obligation of
the Company, whether or not the apparently destroyed, lost or stolen Security
shall be at any time enforceable by anyone and shall be entitled to all
the benefits of (but shall also be subject to all the limitations of rights
set forth in) this Indenture equally and proportionately with any and all
other Securities duly authenticated and delivered hereunder. Every
substitute Security issued pursuant to the provisions of this Section by
virtue of the fact that any Security is mutilated or defaced shall constitute
an additional contractual obligation of the Company and shall be entitled to
all the benefits of (but shall also be subject to all the limitations
of rights set forth in) this Indenture equally and proportionately with any
and all other Securities of the same series duly authenticated and
delivered hereunder. All Securities shall be held and owned upon the
express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated or defaced or apparently destroyed, lost or stolen Securities
and shall preclude any and all other rights or remedies notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect
to the replacement or payment of negotiable instruments or other
securities without their surrender.
Section 2.8 Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have given or concurred in any amendment, request, demand,
authorization, direction, notice, consent or waiver under this Indenture,
Securities owned by the Company (including Securities Tendered), an Affiliate
of the Company, any other obligor upon the Securities, any Affiliate of such
obligor upon the Securities or any Person who has given or concurred in any
such amendment, request, demand, authorization, direction, notice, consent or
waiver under the direction of, by agreement with, or as a condition or in
consideration of any exchange offer by or transfer of such Person's Securities
to the Company, an Affiliate of the Company, any other obligor, any
Affiliate of such obligor or any such Person, shall be disregarded and deemed
not to be Outstanding for the purpose of any such determination, except that,
for the purposes of determining whether the Trustee shall be protected in
relying on any such amendment, request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows are so
owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee that neither the Company nor any such other
obligor, Affiliate or Person is affiliated with the pledgee or any Affiliate
of the pledgee and that the pledgee has the present right (subject to no
contrary obligation or understanding) so to act with respect to the
Securities on the basis of its best interests as a Holder independently of
any direction by or interest of the Company. In case of a dispute as to such
right, the Trustee in good faith shall be entitled to rely upon the advice
of counsel, including counsel for the Company. Upon request of the Trustee,
the Company shall promptly furnish to the Trustee a certificate of a
Certifying Officer listing and identifying all Securities, if any, known by
the Company to be owned or held by or for the account of any of the
above-described Persons; and subject to Sections 7.1 and 7.2 herein, the
Trustee shall be entitled to accept such certificate as conclusive evidence of
the facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination. The
Company shall not, directly or indirectly, pay or cause to be paid any
remuneration, whether by way of supplemental or additional interest, fee or
otherwise, or grant any additional security, to any Holder of Securities as
consideration for or as an inducement to giving or concurring in any
amendment, request, demand, authorization, direction, notice, consent or
waiver under this Indenture unless such remuneration is concurrently paid,
or such security is concurrently granted, as the case may be, on the
same terms ratably to the Holders of all Securities then Outstanding
(regardless of whether any such Holder has given or concurred in such
amendment, request, demand, authorization, direction, notice, consent or
waiver under this Indenture).
For purposes of this Section and without limiting the generality of
the foregoing, Securities which are subject to a binding contract or
irrevocable tender offer (including an offer which is in any way conditioned
upon or simultaneous with, or requires as a condition precedent (whether
by contract or otherwise) or which cannot be effected without, the agreement
or consent of the transferor to any amendment, request, demand,
authorization, direction, notice, consent or waiver hereunder) pursuant to
which ownership (direct or indirect) is to be transferred (including for
example, Securities tendered to the Company or any other Person in an exchange
transaction) shall be deemed owned by such transferee, and therefore,
any such simultaneous agreement or consent by the transferor shall be
invalid.
Section 2.9 Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare, and, upon written order of the Company, the Trustee shall
authenticate, temporary Securities in any authorized denominations.
Temporary Securities shall be substantially in the form of definitive
Securities of the same series but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate
and deliver definitive Securities in exchange for temporary Securities.
Until so exchanged, the temporary Securities shall be entitled to the
same benefits under this Indenture as definitive Securities of the same
series.
Section 2.10 Cancellation.
The Company may at any time deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange (including
without limitation, Initial Securities exchanged for Exchange Securities,
Private Exchange Securities or both), repurchase or payment. All
Securities purchased pursuant to any Offer to Purchase shall be canceled. The
Trustee and no one else shall cancel all Securities surrendered for
transfer, exchange, repurchase or cancellation. The Company may not issue new
Securities to replace Securities it has paid (upon Tender or otherwise) or
which have been delivered to the Trustee for cancellation. The Trustee shall
destroy all canceled Securities and, if requested, deliver a certificate of
such destruction to the Company. If the Company shall acquire any of the
Securities, such acquisition shall not operate as a satisfaction of the
indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
Section 2.11 Defaulted Interest; Interest on Defaulted Principal.
If the Company defaults in a payment of interest on, or Special
Interest, if any, with respect to, the Securities, it shall pay the
defaulted interest, plus interest on the defaulted interest or Special
Interest, as the case may be, at the rate then borne on the Securities to the
extent permitted by law and the terms thereof, to the persons who are
Securityholders on a subsequent Special Record Date. The Company shall
fix the Special Record Date and payment date. At least fifteen (15) days
before the Special Record Date, the Company shall mail to each Securityholder
a notice that states the Special Record Date, the payment date and the
amount of defaulted interest or Special Interest, as the case may be, to
be paid. If the Company defaults in the payment of principal on the
Securities (whether on acceleration, at maturity, upon tender for
repurchase, or otherwise), it shall pay interest on such defaulted principal
at the rate then borne by the Securities to the Trustee upon demand. The
Trustee shall apply any such payment in accordance with the provisions of
Section 6.10.
Section 2.12 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use) and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided, however, that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE 3
REDEMPTIONS AND CERTAIN REPURCHASES
Section 3.1 Optional Redemption-General
Except as set forth in Sections 3.8 and 5.3, the Securities Outstanding
shall not be subject to redemption in whole or in part at the option of the
Company prior to March 1, 2002. On or after March 1, 2002, the Securities may
be redeemed at any time in whole or in part (in any integral multiple of
$1,000) by the Company at its sole option at redemption prices (expressed as
a percentage of principal amount) as set forth below during the twelve
month periods beginning March 1 of the years shown below, plus in each case an
amount equal to accrued and unpaid interest and Special Interest, if any, with
respect to, the Securities to and including the redemption date:
Redemption Year
Price ---- 2002 105.688% 2003
102.844% 2004 and thereafter 100.000%
Section 3.2 Redemption Notice to Trustee.
If the Company elects to redeem Securities as provided in Section 3.1,
3.8 or 5.3, it shall notify the Trustee of the redemption date, the
principal amount of Securities and all other information needed for the notice
to be given by the Trustee pursuant to Section 3.4.
The Company shall give the notice provided for in this Section at
least ten (10) days (unless a shorter notice shall be satisfactory to the
Trustee) prior to the date the Trustee must give notice pursuant to Section
3.4.
Section 3.3 Selection of Securities to be Redeemed.
If less than all the Securities are to be redeemed, the Trustee shall
select the Securities to be redeemed on either a pro rata basis or by lot.
The Trustee shall make the selection from Securities outstanding not previously
called for redemption. The Trustee may select for redemption portions of the
principal of Securities that have denominations larger than $1,000.
Securities and portions of them it selects shall be in amounts of $1,000 or
whole multiples of $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called
for redemption.
Section 3.4 Notice of Redemption.
At least 30 days but not more than 60 days before a redemption
date, the Company shall mail by first-class mail a notice of redemption to
each Holder whose Securities are to be redeemed.
The notice shall identify the Securities and the principal amount thereof
to be redeemed and shall state:
(a) the principal amount of each Security held by each such Holder to be
redeemed;
(b) the redemption date;
(c) the redemption price (including the amount of accrued and unpaid
interest, Special Interest and Applicable Premium, if any, to be paid on the
Securities called for redemption);
(d) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the redemption
date, upon surrender of such Security, a new Security or Securities in
principal amount equal to the unredeemed portion will be issued;
(e) the name and address of the Paying Agent;
(f) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price; and
(g) that, unless the Company defaults in making the redemption
payment, interest on the Securities to be redeemed ceases to accrue on and
after the redemption date and the only remaining right of the Holders of such
Securities is to receive payment of the redemption price upon surrender to
the Paying Agent of the Securities.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense.
Section 3.5 Effect of Notice of Redemption.
Once a notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date at the redemption price and, on
and after such date (unless the Company shall default in the payment of the
redemption price), such Securities shall cease to bear interest. Upon
surrender to the Paying Agent, such Securities shall be paid at the
redemption price plus accrued interest, Special Interest and Applicable
Premium, if any, to the redemption date.
Section 3.6 Deposit of Redemption Price.
On or before 10:00 a.m., Eastern Time, on the redemption date, the
Company shall deposit with the Paying Agent money in funds immediately
available on the redemption date sufficient to pay the redemption price of
and accrued interest on and Special Interest and Applicable Premium, if any,
with respect to, all Securities to be redeemed on that date.
Section 3.7 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee shall
authenticate for the Holder a new Security equal in principal amount to the
unredeemed portion of the Security surrendered.
Section 3.8 Optional Redemption Upon Public Equity Offering.
The Securities may be redeemed in part by the Company at its sole option
if, on or before March 1, 2001, the Company receives Net Cash Proceeds of one
or more Public Equity Offerings. The Company may use all or a portion of any
such Net Cash Proceeds to redeem up to $52,500,000 aggregate principal
amount of the Securities, within 90 days of such Public Equity Offering, at
a redemption price (expressed as a percentage of the aggregate principal
amount of Securities Outstanding) of 111.375% plus accrued and unpaid
interest and Special Interest, if any, to the redemption date (subject to the
right of holders of record on the relevant record date to receive interest and
Special Interest, if any, due on the relevant Interest Payment Date);
provided, however, that at least $97,500,000 aggregate principal amount of the
Securities shall remain Outstanding after each such redemption. Any
such redemption shall be subject to the provisions of Sections 3.2
through 3.7, inclusive.
ARTICLE 4.
COVENANTS, REPRESENTATIONS AND WARRANTIES
Section 4.1 Payment of Securities.
The Company shall pay the principal of, interest on and Special
Interest, if any, with respect to, the Securities on the dates and in the
manner provided in this Indenture and in the Securities.
The Company shall pay interest semi-annually in arrears on each
Interest Payment Date, commencing September 1, 1998. Interest shall be
paid on each Interest Payment Date in an amount equal to the interest accrued
for the period beginning from the Issue Date, or from the most recent date to
which interest and Special Interest, if any, have been paid. All interest
and Special Interest, if any, due and payable on the Securities shall be paid
in cash, except that the Company may at its option, make such Payments by
check mailed to the address of the Person entitled thereto as it appears in
the Register.
An installment of principal, interest or Special Interest, if any,
shall be considered paid on the date due if the Trustee or Paying Agent (other
than the Company or any Affiliate thereof) holds on that date Payments
designated for and sufficient to pay such installment and the Trustee or Paying
Agent has not received instructions from the Company not to make such payment or
is not prohibited from Paying such Payments to the Holders of the
Securities pursuant to this Indenture.
The Company shall pay interest at the rate set forth in the Securities and
the Company shall pay interest on unpaid interest or Special Interest, if
any, at the same rate to the extent legally permitted.
Section 4.2 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be surrendered for
registration of transfer or exchange or for presentation for payment or
repurchase and where notices and demands to or upon the Company in respect
of the Securities and this Indenture may be served. At the request of the
Company, said office or agency may be the office of an agent appointed by the
Trustee for such purpose. The Company shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office
or agency not designated or appointed by the Trustee. If at any time the
Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate
Trust Office.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The
Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 4.3 Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary, directly or indirectly, to make a Restricted Payment if at
the time the Company or such Restricted Subsidiary makes such Restricted
Payment: (1) a Default shall have occurred and be continuing (or would result
therefrom); (2) the Company is not able to Incur an additional $1.00
of Indebtedness pursuant to paragraph (a) of Section 4.16; or (3) the
aggregate amount of such Restricted Payment and all other Restricted Payments
since the Issue Date (the amount of any such Restricted Payment, if other than
cash, as determined in good faith by the Company, whose determination shall
be conclusive and evidenced by a resolution of the Board of Directors or
a certificate of the chief financial or accounting officer of the Company
delivered to the Trustee prior to the making of such Restricted Payment)
would exceed the sum of:
(A) 50% of the Consolidated Net Income accrued during the period
(treated as one accounting period) from the beginning of the fiscal quarter
immediately following the fiscal quarter during which the Securities are
originally issued to the end of the most recent fiscal quarter for which
financial statements are publicly available prior to the date of such
Restricted Payment (or, in case such Consolidated Net Income shall be a
deficit, minus 100% of such deficit);
(B) the aggregate net proceeds (including 50% of the fair market
value of property other than cash (as determined in good faith by the
Company, whose determination shall be conclusive and evidenced by a
resolution of the Board of Directors or a certificate of the chief
financial or accounting officer of the Company delivered to the Trustee
prior to the making of such Restricted Payment)) received by the Company or
any Restricted Subsidiary from the issuance or sale, subsequent to the Issue
Date, of its Capital Stock (other than Disqualified Stock) and Indebtedness
of the Company or any Restricted Subsidiary that has been converted into
or exchanged for its Capital Stock (other than Disqualified Stock) subsequent
to the Issue Date (other than an issuance or sale to a Restricted
Subsidiary and other than an issuance or sale to an employee stock
ownership plan or to a trust established by the Company or any of its
Subsidiaries for the benefit of their employees); and
(C) an amount equal to the sum of (i) the net reduction in
Investments in Unrestricted Subsidiaries resulting from dividends,
repayments of loans or advances or other transfers of assets, in each
case to the Company or any Restricted Subsidiary from Unrestricted
Subsidiaries, and (ii) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of an
Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated
a Restricted Subsidiary; provided, however, that the foregoing sum shall
not exceed, in the case of any Unrestricted Subsidiary, the amount of
Investments previously made (and treated as a Restricted Payment) by the
Company or any Restricted Subsidiary in such Unrestricted Subsidiary.
(b) The provisions of the foregoing paragraph (a) shall not prohibit:
(i) any Restricted Payment made by exchange for, or out of the
net proceeds (including 50% of the fair market value of property other
than cash (as determined in good faith by the Company, whose
determination shall be conclusive and evidenced by a resolution of the
Board of Directors or a certificate of the chief financial or
accounting officer of the Company delivered to the Trustee prior to the
making of such Restricted Payment)) of the substantially concurrent
sale of, Capital Stock of the Company (other than Disqualified
Stock and other than Capital Stock issued or sold to a Subsidiary of
the Company or an employee stock ownership plan or to a trust
established by the Company or any of its Subsidiaries for the benefit of
their employees); provided, however, that (A) such Restricted Payment shall
be excluded in the calculation of the amount of Restricted Payments and
(B) to the extent used to make such Restricted Payment, the net proceeds
from such sale shall be excluded from the calculation of amounts under
clause (3)(B) of paragraph (a) above;
(ii) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations made by
exchange for, or out of the proceeds of the substantially concurrent sale
of, Indebtedness of the Company which is permitted to be Incurred
pursuant to Section 4.16; provided, however, that such purchase,
repurchase, redemption, defeasance or other acquisition or retirement for
value shall be excluded in the calculation of the amount of Restricted
Payments;
(iii) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividend would
have complied with this Section 4.3; provided, however, that such
dividend shall be included in the calculation of the amount of Restricted
Payments;
(iv) the declaration or payment of dividends on or payment of
liquidated damages with respect to (A) any Preferred Stock
outstanding on the Issue Date or (B) any Preferred Stock (other than
Disqualified Stock) issued after the Issue Date that ranks on parity
with or junior to Preferred Stock outstanding on the Issue Date;
provided, however, that any dividend referred to in the foregoing
clause (A) or, subject to the following proviso, clause (B), shall be
included in the calculation of the amount of Restricted Payments and
provided further, that the Company may elect to exclude from the
calculation of amounts under clause 3(B) of paragraph (a) above any Net
Cash Proceeds received by the Company from the issue or sale of Preferred
Stock pursuant to the foregoing clause (B) (which election must be made
by written notice to the Trustee within ten (10) Business Days of the
receipt of such Net Cash Proceeds) and, if such election is made, any
dividend, distribution, purchase, redemption, acquisition or retirement on
or of the Preferred Stock for which such election is made shall not be a
Restricted Payment;
(v) (A) the payment of cash in lieu of issuing fractional
shares of Capital Stock of the Company in connection with the
exercise of options or warrants, the conversion of convertible
securities or the redemption of interests in employee stock ownership or
benefits plans, (B) the purchase or redemption of its Capital Stock by
the Company from employee stock ownership or benefit plans subject
to ERISA to the extent required by ERISA, (C) repurchases of its
Capital Stock which occur upon the exercise of stock options if such
Capital Stock represents a portion of the exercise price of such
options, (D) the purchase, redemption, acquisition, cancellation or
other retirement for value of shares of Capital Stock of the Company
or any Restricted Subsidiary, options on any such shares or related
stock appreciation rights or similar securities held by officers or
employees or former officers or employees (or their estates or
beneficiaries under their estates), upon their death, disability,
retirement, termination of employment or pursuant to any agreement under
which such shares of stock or related rights were issued; provided that
the aggregate cash consideration paid pursuant to this clause (D)
for such purchase, redemption, acquisition, cancellation or other
retirement of such shares of Capital Stock or related rights after the
Issue Date does not exceed an aggregate amount of $10,000,000;
provided further that the amount of any payment, purchase,
redemption, repurchase, acquisition, cancellation or other retirement
paid pursuant to this clause (D) shall be included in the amount of
Restricted Payments;
(vi) any purchase or redemption of Capital Stock of the Company
resulting from the consolidation or merger with or into any Person or
conveyance, transfer or lease of all or substantially all of the
Company's or any Restricted Subsidiary's property to one or more
Persons substantially as an entirety not prohibited by Section 5.1 (other
than any consolidation, merger or other transactions involving only the
Company and a Restricted Subsidiary of the Company or involving only
Restricted Subsidiaries of the Company); provided that the amount of
such purchase or redemption shall be excluded in the calculation of
the amount of Restricted Payments; or
(vii) the exchange of Preferred Stock (other than Disqualified
Capital Stock) for Indebtedness of the Company permitted to be incurred
under Section 4.16; provided that the liquidation value of the Preferred
Stock exchanged shall be included in the calculation of the amount of
Restricted Payments but only to the extent of the Net Cash Proceeds of
such Preferred Stock received after the Issue Date.
Section 4.4 Corporate Existence.
(a) Except as otherwise provided in Article 5, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate existence of each
Restricted Subsidiary and the corporate existence of each other
Subsidiary of the Company engaged in substantial business activity each in
accordance with the respective organizational documents of the Company and
each such Subsidiary and the rights (charter and statutory), licenses, permits,
approvals and governmental franchises of the Company and each such Subsidiary
necessary to the conduct of its respective business; provided, however, that
the Company shall not be required to preserve any such right, license or
franchise, or (other than with respect to the Restricted Subsidiaries) to
preserve the corporate existence of any such Subsidiary, if the Board of
Directors shall determine that the preservation thereof is no longer in the
interest of the Company and that termination of the corporate existence is not
disadvantageous to the Holders in any material respect.
(b) The Company shall continue to be an air carrier certificated
under Section 604(b) of the Federal Aviation Act.
(c) The Company is and, to the extent required to operate its business
as presently conducted and to perform its obligations under this
Indenture, shall remain a "citizen of the United States" as defined in
Section 101(16) of the Federal Aviation Act.
Section 4.5 Payment of Taxes and Other Claims.
The Company shall, and shall cause each of its Subsidiaries to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all taxes, assessments and governmental charges levied or
imposed upon the Company and each Subsidiary or upon the income, profits or
Property of the Company and each Subsidiary and (b) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a
Lien upon the Property of the Company or a Subsidiary; provided, however, that
the Company or a Subsidiary, as the case may be, shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim (i) the amount, applicability or validity of which is being
contested in good faith by appropriate proceedings as permitted by and in
accordance with the provisions of this Indenture, to the extent applicable,
and for which adequate reserves have been established in accordance with GAAP,
as in effect from time to time, or (ii) if the Company delivers to the
Trustee a Certificate of an Officer stating that such non-payment and
non-discharge is in the interest of the Company and not prejudicial in any
material respect to the Holders.
Nothing contained herein or in the Securities shall be deemed to
impose on the Trustee or on the Company any obligation to pay on behalf of
the Holder of any Securities any tax, assessment or governmental charge
required by any present or future law of the U.S. or of any state, county,
municipality or other taxing authority thereof to be paid on behalf of,
or withheld from the amount payable to, the Holder of any Securities;
rather any tax, assessment or governmental charge shall, to the extent
required by law, be withheld from the amounts provided for herein.
Section 4.6 Notices.
The Company shall notify the Trustee in writing of any of the following
promptly (and in any event within five (5) Business Days after an Officer
learns of the occurrence thereof) describing the same and, if applicable,
the steps being taken by the Person(s) affected with respect thereto:
(a) In the event that any Indebtedness of the Company or any
Significant Subsidiary of the Company in a principal amount in excess of
$15,000,000 (i) is declared due and payable before its stated maturity because
of the occurrence of any default (or any event which, with notice or the lapse
of time, or both, shall constitute such default) under such Indebtedness or (ii)
is not paid at its stated maturity; or
(b) Any litigation, arbitration proceeding or governmental proceeding
involving damages or potential liability in excess of $15,000,000 is
instituted against the Company or any of its Subsidiaries which, if
adversely determined, would have a material adverse effect on the
business, operations or financial condition of the Company and its Subsidiaries
taken as a whole.
Section 4.7 Maintenance of Properties and Insurance.
Except as otherwise provided in this Indenture, the Company shall, and
shall cause each of its Subsidiaries to, cause all Properties owned by or
leased to it and used or useful in the conduct of the business of the Company
or any such Subsidiary, as the case may be, to be maintained and kept in
good repair, working order and condition, except for reasonable wear and use,
and supplied with all necessary equipment and shall cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary, so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times, except, in every case, as and to the extent that
the Company or any such Subsidiary may be prevented by fire, strikes, lockouts,
acts of God, inability to obtain labor or materials, governmental
restrictions, enemy action, civil commotion or unavoidable casualty or
similar causes beyond the control of the Company or such Subsidiary;
provided, however, that nothing in this Section 4.7 shall prevent the Company
or any such Subsidiary from discontinuing the use, operation or maintenance of
any such Properties, or disposing of any of them, if such Property or
Properties are, in the good faith judgment of an Officer of the Company (or
other agent employed by the Company) having managerial responsibility for
any such Property (or, in the case of any materially important item, with
respect to operations or value, in the good faith judgment of the Company as
expressed in a resolution of the Board of Directors), no longer necessary or
useful in the conduct of the Company's business or that of its Subsidiaries.
For so long as any Property is deemed to be useful to the conduct of
the business of the Company or its Subsidiaries, the Company shall, or shall
cause such Subsidiaries to, maintain appropriate insurance, in accordance
with industry practice, on such Properties.
Section 4.8 Default Notices and Compliance Certificates.
Contemporaneously with furnishing reports to the Trustee pursuant to
Section 4.9, the Company shall furnish to the Trustee a Certifying Officer's
Certificate to the effect that such officer has conducted or supervised a
review of the activities of the Company and of performance under this Indenture
and that, to the knowledge of such officer, based on such review, the Company
has fulfilled all of its obligations under this Indenture or, if there has
been a Default, specifying each Default known to him, its nature and status.
The Company shall deliver to the Trustee within one hundred twenty (120)
days after the end of each fiscal year in which any of the Securities remain
Outstanding a certificate of the principal executive officer, principal
financial officer or principal accounting officer of the Company (which
need not comply with the provisions of Section 10.5) stating whether or not,
to the knowledge of the signer, the Company is in compliance with all
conditions and covenants under this Indenture (determined without regard
to any period of grace or requirement of notice), and if the Company is not in
compliance with all such conditions and covenants, describing each Default or
Event of Default and its status. The first certificate to be delivered by the
Company pursuant to this Section 4.8 shall be for the fiscal year ending
December 31, 1998.
Section 4.9 SEC Reports.
(a) The Company shall file with the Trustee and provide, or cause the
Trustee to provide, Holders of Securities, within 30 days after it files with,
or furnishes to, the SEC, copies of its annual report and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company is
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act or is required to furnish to the SEC pursuant to Section 4.9(b). The
Company shall also comply with the other provisions of TIA Section 314(a).
(b) Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or l5(d) of the
Exchange Act or otherwise report on an annual and quarterly basis on forms
provided for such annual and quarterly reporting pursuant to rules and
regulations promulgated by the SEC, the Company shall continue to file with,
or furnish to, the SEC (i) within 90 days after the end of each fiscal year (or
such shorter period as the SEC may in the future prescribe), annual reports
on Form 10-K (or any successor form) containing the information required to
be contained therein (or required in such successor form), including annual
financial statements audited by an internationally recognized independent
public accountant with respect to such year and prepared in accordance with GAAP
and all applicable exhibits, (ii) within 45 days after the end of each of the
first three fiscal quarters of each fiscal year (or such shorter period as
the SEC may in the future prescribe), reports on Form 10-Q (or any successor
form) containing substantially the same information required to be contained
therein prepared in accordance with GAAP and (iii) promptly from time to time
after the occurrence of an event required to be therein reported, such other
reports on Form 8-K (or any successor form) containing substantially the
same information required to be contained therein.
Section 4.10 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim,
and will resist any and all efforts to be compelled to take the benefit or
advantage of, any stay or extension law or any usury law or other law that
would prohibit or forgive the Company from paying all or any portion of
the principal of, interest on, or Special Interest, if any, with respect
to, the Securities as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do
so) the Company hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power granted to the Trustee herein, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 4.11 Amendment to Indenture.
The Company shall not enter into or consent to any amendment,
supplement or other modification of this Indenture except as permitted under
Article 9 hereof.
Section 4.12 Limitation on Liens.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, Incur or suffer to exist any Lien
of any nature whatsoever upon or with respect to any of its Properties
(including Capital Stock of a Restricted Subsidiary), whether owned at the
Issue Date or thereafter acquired, other than Permitted Liens,
without effectively providing that the Securities shall be secured
equally and ratably with (or prior to) the obligations so secured for so long as
such obligations are so secured.
Section 4.13 Books, Records, Access; Confidentiality.
(a) The Company shall, and shall cause each of its Subsidiaries
to, (i) maintain complete and accurate books and records in which full and
correct entries in conformity with GAAP shall be made of all dealings and
transactions in relation to its respective business and activities and (ii)
permit authorized representatives of the Trustee to visit and inspect
the Properties of the Company or its Subsidiaries, and any or all such
books and records in the possession of the Company, and to make copies and
take extracts therefrom all upon reasonable notice and at such reasonable
times during normal business hours and as often as may be reasonably requested.
(b) The Trustee and its authorized representatives referred to in clause
(a) above agree not to use any information obtained pursuant to this Section
4.13 for any purpose other than as required in order to discharge their
respective duties hereunder and except as otherwise required for such
purpose to keep confidential and not to disclose any such information to
any person except that (i) the recipient of the information may disclose
any information which becomes publicly available other than as a result of
disclosure by such recipient, (ii) the recipient of the information may
disclose any information which its counsel reasonably concludes is necessary to
be disclosed by law, pursuant to any court or administrative order or ruling
or in any pending legal or administrative proceeding or
investigation after notice to the Company adequate, subject to applicable
laws, to allow the Company to obtain a protective order or other appropriate
remedy, provided that the recipient of the information will (if not otherwise
required in order to discharge its duties as aforesaid) cooperate with the
Company's efforts to obtain a protective order or other reliable assurance that
confidential treatment will be accorded any such information required to be
so disclosed, and (iii) the recipient of the information may disclose any
information necessary to be disclosed pursuant to any provision of the TIA.
Section 4.14 Repurchase of Securities Upon a Change in Control.
(a) In the event that there shall occur a Change in Control, the
Company shall make an Offer to Purchase all of the Outstanding Securities, at
a purchase price equal to 101% of the aggregate principal amount of the
Securities Outstanding, plus accrued and unpaid interest and Special Interest,
if any, to and including the repurchase date. The right to require
such repurchase of Securities shall not continue after a discharge of the
Company from its obligations with respect to the Securities in accordance with
Article 8.
(b) The Company shall commence such Offer to Purchase within thirty
(30) days after the occurrence of a Change in Control.
Section 4.15 Restrictions on Becoming an Investment Company.
The Company shall not become an investment company within the meaning of
the Investment Company Act of 1940 as such statute and the regulations
thereunder and any successor statute or regulations thereto may from time to
time be in effect.
Section 4.16 Limitation on Indebtedness.
(a) Neither the Company nor the Restricted Subsidiaries shall Incur,
directly or indirectly, any Indebtedness; provided, however, that the Company
may Incur Indebtedness so long as, on the date of such Incurrence and after
giving effect thereto, the Consolidated Coverage Ratio exceeds (i) 2.00
to 1 for Indebtedness Incurred on or prior to December 31, 1999, (ii) 2.25
to 1 for Indebtedness Incurred after December 31, 1999 and on or prior to
December 31, 2001 and (iii) 2.50 to 1 for Indebtedness Incurred after December
31, 2001.
(b) Notwithstanding the foregoing paragraph (a), the Company and
the Restricted Subsidiaries may Incur any or all of the following
Indebtedness:
(1) Indebtedness of the Company Incurred subsequent to the Issue
Date; provided, however, that (A) after giving effect to any such
Incurrence, the aggregate principal amount of such Indebtedness then
outstanding does not exceed $400,000,000, (B) the Stated Maturity of
any such Indebtedness is at least one year after the Stated Maturity of
the Securities, (C) the Average Life of any such Indebtedness at
the time that it is Incurred is not less than the Average Life of the
Securities at such time and (D) except for Liens permitted by clause (p)
of the definition of Permitted Liens, such Indebtedness is not secured by
a Lien on any asset of the Company or its Restricted
Subsidiaries;
(2) Aircraft Acquisition Debt;
(3) Indebtedness of the Company owed to and held by a Restricted
Subsidiary or Indebtedness of a Restricted Subsidiary owed to and
held by the Company or a Restricted Subsidiary; provided, however, that
any subsequent issuance or transfer of any Capital Stock which results in
any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or
any subsequent transfer of such Indebtedness (other than to the Company
or another Restricted Subsidiary) shall be deemed in each case, to
constitute the Incurrence of such Indebtedness by the Company;
(4) the Securities and the Exchange Securities;
(5) Indebtedness Incurred to finance the cost (including
the cost of design, development, acquisition, construction,
installation, improvement, transportation or integration) of plant,
property and equipment used or to be used in the airline business or any
other business that is substantially related, ancillary or complementary
thereto (including any Capital Lease Obligation and the cost of the
Capital Stock of a Person that becomes a Restricted Subsidiary to
the extent of the fair market value of the plant, property and equipment
of such Person at the time it becomes a Restricted Subsidiary) to be
acquired by the Company or a Restricted Subsidiary after the Issue
Date; provided that such Indebtedness is incurred within 270 days after
such plant, property and equipment has been placed into service; and
provided further that (A) the principal amount of such Indebtedness does
not exceed 80% of the cost of such plant, property or equipment financed
thereby and (B) the aggregate principal amount of all Indebtedness
Incurred pursuant to the provisions described under this clause (5)
shall not exceed $70,000,000 at any time outstanding; and provided
further that the limitations described in clauses (A) and (B) of
the immediately preceding proviso shall not apply to Indebtedness
Incurred to finance the cost of (i) airport facilities, reservations
centers or maintenance facilities or (ii) information technology
systems, including all related hardware and software;
(6) Indebtedness outstanding on the Issue Date (other than
Indebtedness described in clause (1), (2), (3), (4) or (5) of this Section
4.16);
(7) Indebtedness of the Company not to exceed, at any time
outstanding, 2.0 times the Net Cash Proceeds received by the Company
after the Issue Date from the issuance and sale of its Capital Stock
(other than Disqualified Stock) to a Person that is not a Subsidiary of
the Company, to the extent such Net Cash Proceeds are not included
in the calculation of amounts under clause (3)(B) of Section 4.3(a) or
used to make a Restricted Payment pursuant to clause (i) of Section
4.3(b); provided that such Indebtedness (A) is Incurred within 180 days
following receipt of such Net Cash Proceeds and (B) does not have a
Stated Maturity that is prior to the first anniversary of the Stated
Maturity of the Securities and has an Average Life longer than
the Securities at the time of Incurrence of such Indebtedness;
(8) Acquired Indebtedness; provided that prior to the Incurrence
thereof the Company shall have (i) made an Offer to Purchase all of the
Outstanding Securities at a purchase price equal to 100% of the principal
amount thereof, plus the Applicable Premium as of, and accrued and
unpaid interest and Special Interest, if any, to, the Payment Date, and
(ii) such Payment Date shall have occurred and money sufficient to pay
the purchase price of all Securities or portions thereof tendered for
purchase pursuant to such Offer to Purchase shall have been
deposited with the Trustee. Any such Offer to Purchase shall
contain information concerning the business of the Company which the
Company in good faith believes will enable the Holders of the Securities
to make an informed decision with respect to such Offer to Purchase and
will include (A) the most recent annual and quarterly financial statements
and "Management's Discussion and Analysis of Financial Condition and
Results of Operations" contained in the documents required to be filed
with the Trustee pursuant to Section 4.9 (which requirements may be
satisfied by delivery of such documents together with the Offer to
Purchase), (B) a description of material developments, if any, in the
Company's business subsequent to the date of the latest of such
financial statements referred to in clause (A) (including a
description of the events requiring the Company to make such Offer to
Purchase), (C) if applicable, appropriate pro forma financial information
concerning such Offer to Purchase and the events requiring the Company
to make the Offer to Purchase and (D) any other information
required by applicable law to be included therein.
(9) Refinancing Indebtedness in respect of Indebtedness
Incurred pursuant to paragraph (a) or pursuant to clause (1), (2), (3),
(4), (5), (6), (7), (8) above or this clause (9);
(10) Indebtedness (A) in respect of performance, surety,
appeal or similar bonds provided in the ordinary course of business,
and (B) arising from agreements providing for indemnification,
adjustment of purchase price or similar obligations, or from Guarantees
or letters of credit, surety bonds or performance bonds securing
any obligations of the Company or any of the Restricted
Subsidiaries pursuant to such agreements, in any case Incurred in
connection with the disposition of any business, assets of the Company or
any of the Restricted Subsidiaries, including all or any interest in any
Restricted Subsidiary, and not exceeding the gross proceeds therefrom,
other than Guarantees of Indebtedness Incurred by any Person acquiring
all or any portion of such business, assets or Restricted Subsidiary or
any of the Restricted Subsidiaries for the purpose of financing such
acquisition;
(11) Hedging Obligations consisting of Interest Rate Agreements,
Fuel Protection Agreements or Currency Agreements;
(12) Indebtedness Incurred in satisfaction of payment obligations
arising out of collective bargaining agreements with labor unions
representing employees of the Company or its Restricted Subsidiaries;
(13) Indebtedness arising from aircraft lessor financing of
improvements to or maintenance of aircraft, engines or related parts and
equipment leased by the Company or its Restricted Subsidiaries;
(14) Indebtedness Incurred in satisfaction of "return condition"
obligations of the Company or its Restricted Subsidiaries under
aircraft leases in an aggregate principal amount not to exceed $25,000,000
at any time outstanding;
(15) Indebtedness under working capital and/or Receivables
financing facilities in an aggregate principal amount not to exceed
$150,000,000 at any time outstanding and Guarantees thereof by
Restricted Subsidiaries not prohibited under Section 4.21;
provided that such Indebtedness is not secured by a Lien on any assets
of the Company or its Restricted Subsidiaries other than
Receivables and Capital Stock of special purpose Subsidiaries
of the Company formed to effect a Receivables- based financing;
(16) Indebtedness issued in satisfaction of trade payables
arising in the ordinary course of business; provided that (A) the
principal amount of such Indebtedness does not exceed the amount of such
trade payables (including accrued interest or finance charges), (B)
the Stated Maturity of such Indebtedness is no more than 180 days after
the date of Incurrence thereof and (C) the aggregate principal
amount of such Indebtedness does not exceed $50,000,000 at any time
outstanding; and
(17) Indebtedness of the Company or any Restricted Subsidiary in
an aggregate principal amount which, together with all other
Indebtedness of the Company and the Restricted Subsidiaries
outstanding on the date of such Incurrence (other than Indebtedness
permitted by clauses (1) through (16) above or paragraph (a) of this
Section 4.16) does not exceed $100,000,000.
(c) Notwithstanding the foregoing, neither the Company nor any
Restricted Subsidiary shall Incur any Indebtedness pursuant to the foregoing
paragraph (b) if the proceeds thereof are used, directly or indirectly, to
Refinance any Subordinated Obligations unless such Indebtedness shall be
subordinated to the Securities, to at least the same extent as such Subordinated
Obligations.
(d) For purposes of determining compliance with this Section 4.16,
(i) in the event that an item of Indebtedness meets the criteria of more
than one of the types of Indebtedness described above, the Company, in
its sole discretion, will classify such item of Indebtedness and only be
required to include the amount and type of such Indebtedness in one of the
above clauses and (ii) an item of Indebtedness may be divided and classified in
more than one of the types of Indebtedness described above.
Section 4.17 Limitation on Restrictions on Distributions from
Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary to
create or otherwise cause or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to (a) pay dividends or make any other distributions on its Capital
Stock to the Company or a Restricted Subsidiary or pay any Indebtedness
owed to the Company, (b) make any loans or advances to the Company or (c)
transfer any of its property or assets to the Company except:
(i) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the Issue Date;
(ii) any encumbrance or restriction with respect to a Restricted
Subsidiary or its property or assets pursuant to an agreement relating to
any Indebtedness or Preferred Stock Incurred by such Restricted Subsidiary
on or prior to the date on which such Restricted Subsidiary became a
Restricted Subsidiary or was acquired by the Company (other than
Indebtedness or Preferred Stock Incurred as consideration in, or to
provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of related transactions pursuant
to which such Restricted Subsidiary became a Restricted Subsidiary or
was acquired by the Company) and outstanding on such date;
(iii) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness or Preferred Stock Incurred
pursuant to an agreement referred to in clause (i) or (ii) of this Section
4.17 or this clause (iii) or contained in any amendment to an agreement
referred to in clause (i) or (ii) of this Section 4.17 or this clause
(iii); provided, however, that the encumbrances and restrictions
with respect to such Restricted Subsidiary contained in any such
refinancing agreement or amendment are in the aggregate no less favorable
to the Securityholders than encumbrances and restrictions with respect
to such Restricted Subsidiary contained in such predecessor
agreements;
(iv) any restriction with respect to a Restricted Subsidiary
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets
of such Restricted Subsidiary pending the closing of such sale or
disposition;
(v) any encumbrances and restrictions existing under or by reason
of applicable law or regulation;
(vi) any encumbrances and restrictions (A) that restrict in a
customary manner the subletting, assignment or transfer of any property or
asset that is a lease, license, conveyance or contract or similar
property or asset, (B) existing by virtue of any transfer of,
agreement to transfer, option or right with respect to, or Lien on, any
property or assets of the Company or any Restricted Subsidiary not
otherwise prohibited by this Indenture or (C) arising or agreed to in the
ordinary course of business not relating to any Indebtedness, and that do
not (as determined by the Company and certified in a resolution of the
Board of Directors or a certificate of the chief financial or chief
accounting officer of the Company delivered to the Trustee prior to
or promptly following such encumbrance or restriction becoming
effective), individually or in the aggregate, (1) detract from the value
of property or assets of the Company or any Restricted Subsidiary in any
manner material to the Company or any Restricted Subsidiary or (2)
materially adversely affect the Company's ability to make principal or
interest (including Special Interest, if any) payments on the Securities;
(vii) any encumbrance or restriction contained in the terms of
any Indebtedness or any agreement pursuant to which such Indebtedness was
issued if (A) the encumbrance or restriction applies only in the event of
a payment default or default with respect to a financial covenant
contained in such Indebtedness or agreement, (B) the encumbrance or
restriction is not materially more disadvantageous to the Holders of
the Securities than is customary in comparable financings (as determined
by the Company and certified in a resolution of the Board of Directors or
a certificate of the chief financial or chief accounting officer of the
Company delivered to the Trustee prior to or promptly following such
encumbrance or restriction becoming effective), and (C) such encumbrance
or restriction will not materially adversely affect the Company's
ability to make principal or interest (including Special Interest, if
any) payments on the Securities (as determined by the Company and
certified in a resolution of the Board of Directors or a certificate of
the chief financial or chief accounting officer of the Company delivered
to the Trustee prior to or promptly following such encumbrance or
restriction becoming effective); and
(viii) any encumbrance or restriction resulting from any financing
transaction involving the sale of Receivables or aircraft and/or
related engines, spare parts and equipment to a special purpose
Subsidiary of the Company formed to effect such financing and which
applies only to such special purpose Subsidiary and its assets.
Nothing contained in this Section 4.17 shall prevent the Company or
any Restricted Subsidiary from (1) creating, incurring, assuming or
suffering to exist any Liens otherwise permitted in Section 4.12 or (2)
restricting the sale or other disposition of property or assets of the Company
or any of its Restricted Subsidiaries that secure Indebtedness of the
Company or any of its Restricted Subsidiaries.
Section 4.18 Limitation on Sales of Assets and Subsidiary Stock.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, consummate any Asset Disposition
unless the Company or such Restricted Subsidiary receives consideration
at the time of such Asset Disposition at least equal to the fair market
value (including as to the value of all non-cash consideration), as
determined in good faith by the Board of Directors or by the chief financial or
accounting officer of the Company, of the shares and assets subject to
such Asset Disposition and at least 80% of the consideration thereof
received by the Company or such Restricted Subsidiary is in the form of cash
or cash equivalents. If the Company or any Restricted Subsidiary engages
in an Asset Disposition, the Company may use the Net Available Cash from such
Asset Disposition, within one year after the later of such Asset Disposition
and the receipt of such Net Available Cash (such later date, the "Trigger
Date"), to (i) permanently repay or prepay any then outstanding Senior
Indebtedness of the Company or any Restricted Subsidiary or (ii) invest in or
acquire (or enter into a legally binding commitment to invest in or
acquire) Additional Assets; provided that the transaction subject to any such
commitment be consummated within 180 days after the date of such commitment. If
any such legally binding commitment to invest in or acquire such Additional
Assets is terminated, then the Company may, within 90 days of such
termination or the Trigger Date, whichever is later, use such Net Available
Cash as provided in clause (i) or (ii) (without giving effect to the
parenthetical contained in such clause (ii)) above. The amount of such Net Cash
Proceeds not so used as set forth above in this paragraph constitutes
"Excess Proceeds."
(b) When the aggregate amount of Excess Proceeds exceeds $10,000,000,
the Company shall, within 30 days thereof, apply such aggregate Excess
Proceeds (1) first, to make an Offer to Purchase Outstanding Securities at
100% of their principal amount plus accrued and unpaid interest and Special
Interest, if any, to the Purchase Date and, to the extent required by the
terms thereof, any other Indebtedness of the Company that is pari passu with
the Securities at a price no greater than 100% of the principal amount
thereof plus accrued interest to the date of purchase and (2) second, to
the extent of any remaining Excess Proceeds following the completion of the
Offer to Purchase, to any other use as determined by the Company which is not
otherwise prohibited by this Indenture. Upon the completion of an Offer to
Purchase pursuant to this paragraph (b), the amount of Excess Proceeds shall
be reset to zero.
(c) For purposes of this Section 4.18, the following are deemed to be
cash or cash equivalents: (x) the assumption of Indebtedness of the Company or
any Restricted Subsidiary and the release of the Company or such Restricted
Subsidiary from all liability on such Indebtedness in connection with such
Asset Disposition and (y) securities received by the Company or any
Restricted Subsidiary from the transferee that are promptly converted by
the Company or such Restricted Subsidiary into cash.
Section 4.19 Limitation on Affiliate Transactions.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, enter into or permit to exist any transaction (including
the purchase, sale, lease or exchange of any property or employee
compensation arrangements) with any Affiliate of the Company (an "Affiliate
Transaction") unless the terms thereof (1) are no less favorable to the
Company or such Restricted Subsidiary than those that could be obtained at
the time of such transaction in arm's-length dealings with a Person who is
not such an Affiliate and (2) if such Affiliate Transaction involves an
amount in excess of $2,000,000 (i) are set forth in writing and (ii) have been
approved by a majority of the members of the Board of Directors having no
personal stake in such Affiliate Transaction. If such Affiliate
Transaction involves an amount in excess of $10,000,000, a fairness opinion
must be obtained from an internationally recognized investment banking firm,
appraisal firm or auditing firm with respect to the financial terms of such
Affiliate Transaction.
(b) The provisions of the foregoing paragraph (a) shall not prohibit or
apply to (i) any Restricted Payment permitted to be paid pursuant to Section
4.3, (ii) loans or advances to employees in the ordinary course of business and
in an amount that does not exceed $1,000,000 in the aggregate outstanding at
any one time, (iii) the payment of reasonable fees to directors of the Company
and its Restricted Subsidiaries who are not employees of the Company or
its Restricted Subsidiaries, (iv) any Affiliate Transaction between the
Company and a Restricted Subsidiary or between Restricted Subsidiaries, (v)
any issuance of securities, or other payments, awards or grants in cash,
securities or otherwise pursuant to, or the funding of, employment
arrangements, stock options and stock ownership plans approved by the Board of
Directors, (vi) the grant of stock options or similar rights to employees
and directors of the Company pursuant to plans approved by the Board of
Directors and (vii) any Affiliate Transaction entered into pursuant to
agreements with labor unions.
Section 4.20 Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries.
The Company shall not sell or otherwise dispose of any Capital Stock
of a Restricted Subsidiary, and shall not permit any such Restricted
Subsidiary, direct or indirectly, to issue or sell or otherwise dispose of any
of its Capital Stock except (i) to the Company or a Wholly Owned Subsidiary,
(ii) the issuance and sale of directors' qualifying shares, (iii) if,
immediately after giving effect to any such issuance, sale or other
disposition, such Restricted Subsidiary would no longer constitute a
Restricted Subsidiary and any Investment in such Person remaining after
giving effect thereto would have been permitted to be made under Section 4.3
if made on the date of such issuance, sale or other disposition, (iv) if
such sale or other disposition is of all or any portion of the Capital Stock
of a Restricted Subsidiary and the Net Available Cash received from such
sale or other disposition are applied in accordance with Section 4.18, or (v)
to the extent the ownership by a Person other than the Company or a Wholly
Owned Subsidiary is required by applicable law and except that any Restricted
Subsidiary may issue or permit to exist (x) Preferred Stock issued to and
held by the Company or a Wholly Owned Subsidiary; provided, however, that
upon either (A) the transfer or other disposition by the Company or such
Wholly Owned Subsidiary of any Preferred Stock so permitted to a Person other
than the Company or another Wholly Owned Subsidiary or (B) such Wholly Owned
Subsidiary ceasing to be a Wholly Owned Subsidiary, the provisions of this
clause (x) will no longer be applicable to such Preferred Stock and such
Preferred Stock will be deemed to have been issued at the time of such transfer
or other disposition or such cessation; and (y) Preferred Stock issued by a
Person prior to the time such Person becomes a Restricted Subsidiary (including
by way of a merger or consolidation with another Restricted Subsidiary),
which Preferred Stock was not issued in anticipation of and was
outstanding prior to such transaction; provided, however, that on the date of
such acquisition and after giving effect thereto, the Company would have been
able to Incur at least $1.00 of additional Indebtedness pursuant to
Section 4.16(a).
Section 4.21 Limitation on Guarantees by Restricted Subsidiaries.
The Company shall not permit any Restricted Subsidiary, directly or
indirectly, to Guarantee any Indebtedness of the Company which is pari
passu with or subordinate in right of payment to the Securities ("Guaranteed
Indebtedness"), unless (i) such Restricted Subsidiary simultaneously executes
and delivers a Subsidiary Guaranty of payment of the Securities by such
Restricted Subsidiary and (ii) such Restricted Subsidiary waives and will not
in any manner whatsoever claim or take the benefit or advantage of, any
rights of reimbursement, indemnity or subrogation or any other rights against
the Company or any other Restricted Subsidiary as a result of any
payment by such Restricted Subsidiary under its Subsidiary Guaranty;
provided that this paragraph shall not be applicable to (1) any Guarantee by
any Restricted Subsidiary that existed at the time such Person became a
Restricted Subsidiary and was not Incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary or (2)
Guarantees of Indebtedness under working capital facilities of the
Company in an aggregate principal amount not exceeding $50,000,000 at any
time outstanding or, if less, the amount by which $150,000,000 exceeds the
aggregate outstanding principal amount of Indebtedness of the Company under
clause (15) of paragraph (b) of Section 4.16 which is secured by a Lien. If the
Guaranteed Indebtedness is (A) pari passu with the Securities, then the
Guarantee of such Guaranteed Indebtedness shall be pari passu with, or
subordinated to, the Subsidiary Guaranty or (B) subordinated to the
Securities, then the Guarantee of such Guaranteed Indebtedness shall be
subordinated to the Subsidiary Guaranty at least to the extent that the
Guaranteed Indebtedness is subordinated to the Securities.
Notwithstanding the foregoing, any Subsidiary Guaranty by a Restricted
Subsidiary may provide by its terms that it shall be automatically and
unconditionally released and discharged upon (i) any sale, exchange or
transfer, to any Person not an Affiliate of the Company, of all of the
Company's and each Restricted Subsidiary's Capital Stock in, or all or
substantially all the assets of, such Restricted Subsidiary (which sale,
exchange or transfer is not prohibited by this Indenture) or (ii) the release
or discharge of the Guarantee which resulted in the creation of such
Subsidiary Guaranty, except a release or discharge by, or as a result of,
payment under such Guarantee.
Section 4.22 Limitation on Sale/Leaseback Transactions.
The Company shall not, and shall not permit any Restricted Subsidiary
to, enter into any Sale/Leaseback Transaction with respect to any Property
unless (i) the Company or such Restricted Subsidiary would be entitled to (A)
Incur Indebtedness in an amount equal to the Attributable Debt with
respect to such Sale/Leaseback Transaction pursuant to Section 4.16 and
(B) create a Lien on such Property securing such Attributable Debt without
equally and ratably securing the Securities pursuant to Section 4.12, or (ii)
the Sale/Leaseback Transaction is treated as an Asset Disposition and the
Company applies the proceeds of such transaction in compliance with Section
4.18.
Section 4.23 Application for Rating.
The Company shall, within 180 days after the Issue Date, apply to
Xxxxx'x Investors Service, Inc. and Standard & Poor's Ratings Group, to obtain
a rating for the Securities.
Section 4.24 Listing.
No later than the earliest to occur of (i) the effectiveness of the initial
Exchange Offer Registration Statement and (ii) the effectiveness of the
initial Shelf Registration Statement, in either case, filed under (and as
defined in) the Registration Rights Agreement, the Company shall cause the
Exchange Securities to be listed on the American Stock Exchange, or such other
stock exchange or market as the Common Stock of the Company is then
principally traded provided, that such Securities meet the minimum
requirements for listing on any such exchange or market, and, if applicable, to
maintain such listing for so long as any of the Exchange Securities is
Outstanding.
ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.1 Covenant Not to Consolidate, Merge, Convey or Transfer
Except Under Certain Conditions.
The Company shall not consolidate with, or merge with or into, or
convey, transfer or lease, in one transaction or a series of transactions,
all or substantially all of its assets to, any Person unless:
(i) The resulting, surviving or transferee Person (the "Successor
Company") shall be a Person organized and existing under the laws of the
U.S., any state thereof or the District of Columbia and the Successor Company
(if not the Company) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, all the obligations of the Company under the Securities and this
Indenture;
(ii) Immediately after giving effect to such transaction (and treating
any Indebtedness which becomes an obligation of the Successor Company or any
Subsidiary of the Company as a result of such transaction as having been
Incurred by such Successor Company or such Subsidiary at the time of such
transaction), no Default shall have occurred and be continuing;
(iii) Immediately after giving effect to such transaction,
the Successor Company would be able to Incur an additional $1.00 of
Indebtedness pursuant to paragraph (a) of Section 4.16;
(iv) Immediately after giving effect to such transaction, the Successor
Company shall have Consolidated Net Worth in an amount that is not less than
the Consolidated Net Worth of the Company immediately prior to such
transaction; and
(v) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that (i) such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with the terms of this Indenture, (ii) this Indenture and the
Securities constitute the valid and legally binding obligations of the
Successor Company, and (iii) this Indenture is enforceable against the
Successor Company in accordance with its terms.
Section 5.2 Successor Person Substituted.
The Successor Company shall be the successor to the Company and shall
succeed to, and be substituted for, and be bound by and obligated to pay the
obligations of, and may exercise every right and power of, the Company
under this Indenture, but the predecessor Company in the case of a
conveyance, transfer or lease shall not be released from the obligation
to pay the principal of, interest on, and Special Interest, if any, with
respect to, the Securities.
The Successor Company may cause to be signed, and may issue either in
its own name or in the name of the Company prior to such succession any or
all of the Securities issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee; and upon the order of
the Successor Company, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such Successor Company thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All of
the Securities so issued shall in all respects have the same legal rank and
benefit under this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale, transfer or conveyance
such changes in phraseology and form (but not in substance) may be made in
the Securities thereafter to be issued as may be appropriate.
Section 5.3 Optional Right of Redemption.
The Company shall have the right, without the consent of the Holders, to
redeem the Securities in whole, but not in part, at a redemption price equal to
100% of the unpaid principal amount of the Outstanding Securities plus the
Applicable Premium as of, and accrued and unpaid interest and Special Interest
if any, to, the date of redemption in the event that the Company enters into
a binding agreement to consummate any transaction which would be prohibited
by Section 5.1. Such redemption date must occur prior to or simultaneously
with the consummation of such prohibited transaction. Any such redemption
shall be subject to the provisions of Sections 3.2 through 3.7, inclusive.
ARTICLE 6.
DEFAULT AND REMEDIES
Section 6.1 Events of Default.
An "Event of Default" occurs if:
(a) the Company defaults in the payment of interest on, or Special
Interest, if any, with respect to, any Security when the same becomes due and
payable and the default continues for thirty (30) days;
(b) the Company defaults in the payment of the principal of, or
purchase price, if any, with respect to, any Security when the same becomes due
and payable at maturity, upon acceleration, redemption, tender for repurchase or
otherwise;
(c) the Company takes any action prohibited by Section 5.1;
(d) the Company fails to comply with any of the covenants contained in
Sections 4.3, 4.7, 4.9, 4.12, 4.17, 4.19 through 4.24, inclusive, or (except,
in each case, for a failure to Pay the purchase price of Securities in
connection with an Offer to Purchase) 4.14, 4.16 or 4.18, and in any such case
such default continues for the period and after the notice specified below;
(e) any representation or warranty of the Company in this Indenture, or
in any certificate of the Company delivered hereunder or under any such
document shall prove to have been untrue in any material respect when made,
or the Company fails in any material respect to comply with any covenant or
agreement (other than as specified in clauses (a) through (d), inclusive,
above) contained in the Securities or this Indenture, and in any such case
such default continues for the period and after the notice specified below;
(f) an event of default shall have occurred and be continuing
under any other evidence of Indebtedness of the Company or any
Significant Subsidiary of the Company, whether such Indebtedness now exists or
is created hereafter, which event of default results in the acceleration of
such Indebtedness which, together with any such other Indebtedness so
accelerated, aggregates more than $15,000,000;
(g) the Company or any Restricted Subsidiary pursuant to or within the
meaning of any Bankruptcy Law (as hereinafter defined):
(i) commences a voluntary case or proceeding,
(ii) consents to the entry of an order for relief against it in
an involuntary case or proceeding,
(iii) consents to the appointment of a Custodian (as
hereinafter defined) of it or for all or substantially all of its
property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is unable to pay its debts as the same become due;
(h) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any Restricted
Subsidiary in an involuntary case or proceeding,
(ii) appoints a Custodian of the Company or any Restricted
Subsidiary for all or substantially all of its properties, or
(iii) orders the liquidation of the Company or any Restricted
Subsidiary,
and in each case the order and decree remains unstayed and in effect
for sixty (60) consecutive days; or
(i) final, non-appealable judgments for the payment of money which
judgments in the aggregate exceed $15,000,000 shall be rendered against the
Company or any Restricted Subsidiary by a court of competent jurisdiction and
remain undischarged, unstayed and unsatisfied for the period and after the
notice specified below.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means
any receiver, trustee, assignee, liquidator, sequestrator or similar official
under any Bankruptcy Law.
A Default under clause (d), (e), (i) or, with respect to a Restricted
Subsidiary that is not a Significant Subsidiary, (g) or (h) of this Section
6.1 is not an Event of Default until the Trustee notifies the Company, or the
Holders of at least twenty- five percent (25%) in aggregate principal
amount of the Securities Outstanding notify the Company and the Trustee, of
the Default and the Company does not cure the Default within sixty (60) days
with respect to clauses (e) and (i), or within thirty (30) days with respect
to clauses (d) and, with respect to a Restricted Subsidiary that is not a
Significant Subsidiary, (g) and (h), after receipt of the notice. The notice
must specify the Default, demand that it be remedied and state that the notice
is a "Notice of Default." When a Default is cured, it ceases.
Section 6.2 Acceleration.
If an Event of Default (other than an Event of Default specified in
Section 6.1(g) or (h) with respect to the Company or a Restricted Subsidiary
that is a Significant Subsidiary) occurs, and is continuing, the Trustee may, by
notice to the Company, or the Holders of at least twenty-five percent (25%)
in aggregate principal amount of the Securities Outstanding may, by notice to
the Company and the Trustee, and the Trustee shall, upon the request of
such Holders, declare all unpaid principal of, premium, if any, accrued
interest and Special Interest, if any, to the date of acceleration on the
Securities Outstanding (if not then due and payable) to be due and payable and
upon any such declaration, the same shall become and be immediately due
and payable. If an Event of Default specified in Section 6.1(g) or (h) occurs
with respect to the Company or a Restricted Subsidiary that is a Significant
Subsidiary, all unpaid principal of, premium, if any, accrued interest on
and Special Interest, if any, with respect to, the Securities Outstanding
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Securityholder.
Upon payment of such principal amount, interest, and Special Interest, if
any, all of the Company's obligations under the Securities and this
Indenture, other than obligations under Sections 7.7, 8.5 and 8.6, shall
terminate. The Holders of a majority in principal amount of the Securities
then Outstanding by notice to the Trustee may rescind an acceleration and
its consequences if (a) all existing Events of Default, other than the
non-payment as to the Securities of the principal, interest or Special
Interest, if any, which has become due solely by such declaration of
acceleration, have been cured or waived, (b) to the extent the payment of
such interest is permitted by law, interest on overdue installments of
interest and on overdue principal which has become due otherwise than by such
declaration of acceleration, has been paid, (c) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction,
and (d) all payments due to the Trustee and any predecessor Trustee under
Section 7.7 have been made.
Section 6.3 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of, interest on or Special Interest, if any, with respect to the
Securities or to enforce the performance of any provision of the
Securities or this Indenture including, without limitation, instituting
proceedings and exercising and enforcing, or directing exercise and
enforcement of, all rights and remedies of the Trustee under 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 Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. No
remedy is exclusive of any other remedy. All available remedies are
cumulative.
Section 6.4 Waiver of Past Defaults.
Subject to Sections 6.7, 9.2 and 9.6, the Holders of a majority in
aggregate principal amount of the Securities Outstanding by notice to the
Trustee may authorize the Trustee to waive an existing Default or Event
of Default and its consequences, except a Default (a) in the payment of
principal of, or interest on, or Special Interest with respect to, any
Security as specified in clauses (a) and (b) of Section 6.1 or (b) in respect
of a covenant or provision hereof which cannot be modified or amended without
the consent of the Holder of each Security affected. When a Default or Event
of Default is waived, it is cured and ceases, and the Company, the Holders
and the Trustee shall be restored to their former positions and rights
hereunder respectively; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.
Section 6.5 Control by Majority.
The Holders of a majority in aggregate principal amount of the
Securities Outstanding 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 it; provided that the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction. The Trustee may refuse to follow any direction hereunder or
authorization under Section 6.4 that conflicts with law or this Indenture,
that the Trustee determines may be unduly prejudicial to the rights of
another Securityholder, or that the Trustee determines may subject the
Trustee to personal liability. However, the Trustee shall have no liability
for any actions or omissions to act which are in accordance with any such
direction or authorization.
Section 6.6 Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this Indenture
or the Securities unless:
(a) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(b) the Holders of at least twenty-five percent (25%) in principal
amount of the Securities Outstanding make a written request to the Trustee to
pursue the remedy;
(c) such Holder or Holders offer to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within sixty (60)
days after receipt of the request and the offer of indemnity; and
(e) during such 60-day period the Holders of a majority in aggregate
principal amount of the Securities Outstanding do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with such
request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
Section 6.7 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal of, interest on, and
Special Interest, if any, with respect to, the Security in cash, 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,
shall not be impaired or affected without the consent of the Holder.
It is hereby expressly understood, intended and agreed that any and all
actions which a Holder of the Securities may take to enforce the provisions of
this Indenture and/or collect Payments due hereunder or under the Securities,
except to the extent that such action is determined to be on behalf of all
Holders of the Securities, shall be in addition to and shall not in any
way change, adversely affect or impair the rights and remedies of the Trustee or
any other Holder of the Securities thereunder or under this Indenture.
Section 6.8 Collection Suit by Trustee.
If an Event of Default in payment of interest or principal specified in
clause (a) or (b) of Section 6.1 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against
the Company or any other obligor on the Securities for the whole amount of
principal, accrued interest and Special Interest, if any, remaining unpaid,
together with interest on overdue principal and on overdue installments
of interest to the extent that payment of such interest is permitted by
law, in each case at the rate per annum provided for by the Securities, and
such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
Section 6.9 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relative to the Company (or
any other obligor upon the Securities), its creditors or its Property and
shall be entitled and empowered to collect and receive any moneys or other
Property payable or deliverable on any such claims and to distribute the
same, and any Custodian in any such judicial proceedings is hereby authorized
by each Securityholder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to
the Securityholders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agent and counsel, and any other amounts due the Trustee under Section 7.7,
and unless prohibited by law or applicable regulations to vote on behalf
of the Holders of Securities for the election of a trustee in bankruptcy or
other person performing similar functions. Nothing herein contained shall
be deemed to authorize the Trustee 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 to vote in respect of the
claim of any Securityholder in any such proceeding except, as aforesaid, for
the election of a trustee in bankruptcy or person performing similar
functions.
Section 6.10 Application of Proceeds.
Any moneys collected by the Trustee pursuant to this Article shall be
applied in the following order at the date or dates fixed by the Trustee
and, in case of the distribution of such moneys on account of principal,
interest, or Special Interest, if any, upon presentation of the several
Securities and stamping (or otherwise noting) thereon the payment, or issuing
Securities in reduced principal amounts in exchange for the presented
Securities if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses, including
reasonable compensation to the Trustee, its predecessors, if any,
and their respective agents and attorneys (including amounts due and
unpaid under Section 7.7), and of all costs, fees, expenses and
liabilities incurred, and all advances made, by any and all of the
foregoing (including amounts due and unpaid under Section 7.7), except
as a result of negligence or bad faith;
SECOND: In case the entire principal of the Securities
shall not have become and be then due and payable, as to any
Securities (a) first to the payment of interest and Special Interest, if
any, in default in the order of the maturity of the installments of
such interest and Special Interest, if any, with interest (to the extent
that such interest has been collected by the Trustee) upon the overdue
installments of interest or Special Interest, if any, at the rate of
interest specified in the Securities and (b) second to the payment of
principal of the Securities as the same shall become due and payable,
such payments to be made ratably to the Persons entitled thereto,
without discrimination or preference;
THIRD: In case the entire principal of the Securities
shall have become and shall be then due and payable, as to any
Securities, to the payment of the whole amount then owing and unpaid
upon all the Securities for principal, interest and Special Interest,
with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest or Special Interest, if any, at the same rate as the rate of
interest specified in the Securities; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Securities, then to the payment of such principal, interest and
Special Interest, if any, without preference or priority of any of
principal, interest or Special Interest, if any, over the other, or
any installment of interest or Special Interest, if any, over any other
installment of interest or Special Interest, if any, or of any
Security over any other Security, ratably to the aggregate of such
principal, and accrued and unpaid interest and Special Interest; and
FOURTH: To the payment of the remainder, if any, after payment
in full of the entire principal balance, if any, of the Securities and
all interest, Special Interest and other amounts due upon or in respect of
such Securities, to the Company or any other Person lawfully
entitled thereto.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Securityholders
pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court in
its discretion may require in any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, 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.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.7, or a suit by Holders of more than ten percent
(10%) in principal amount of the Securities Outstanding.
Section 6.12 Restoration of Rights on Abandonment of Proceedings.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
for any reason, or shall have been determined adversely to the Trustee, then
and in every such case the Company, the Trustee and the Securityholders
shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company, the Trustee
and the Securityholders shall continue as though no such proceedings had been
taken.
Section 6.13 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default.
No right or remedy herein conferred upon or reserved to the Trustee or to
the Securityholders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right
or remedy.
No delay or omission of the Trustee or of any Holder of any of the
Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to the other applicable provisions
of this Indenture, every power and remedy given by this Indenture or by law
to the Trustee or to the Securityholders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
Any right or remedy herein conferred upon or reserved to the Trustee may be
exercised by it in its capacity as Trustee, as it may deem most efficacious, if
it is then acting in such capacity.
ARTICLE 7.
TRUSTEE
Section 7.1 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 his own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties as are specifically
set forth in this Indenture and no others.
(ii) 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.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct,
except that:
(i) This paragraph (c) does not limit the effect of paragraph (b)
of this Section 7.1 or of Section 7.2.
(ii) The Trustee shall 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.
(iii) 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 6.5.
(d) The Trustee shall be under no obligation to exercise any of the
rights, trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or
indemnity reasonably satisfactory to the Trustee against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request, order or direction.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.1.
(f) Funds held in trust for the benefit of the Holders of the Securities
by the Trustee or any Paying Agent on deposit with itself or elsewhere, shall
be held in distinct, identifiable accounts, and other funds or investments of
any nature or from any source whatsoever may be held in such accounts,
except, in each case, to the extent required by law. The Trustee shall not be
liable for interest on any money received by it except as the Trustee may agree
with the Company.
Section 7.2 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, which shall conform to Section
10.5. The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such certificate or opinion.
(c) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through its attorneys
and agents and the Trustee shall not be responsible for the misconduct or
negligence of any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it reasonably believes to be authorized or within its
rights or powers.
Section 7.3 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or Affiliates of the Company 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 Sections 7.10 and 7.11.
Section 7.4 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the
Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities or in this Indenture other than
its certificate of authentication.
Section 7.5 Notice of Defaults.
If a Default occurs and is continuing and if it is known to the Trustee,
the Trustee shall mail to each Securityholder notice of the Default within
ninety (90) days after the occurrence thereof except as otherwise permitted
by the TIA. Except in the case of a Default in payment of principal of, or
interest on, or Special Interest, if any, with respect to, any Security,
the Trustee may withhold the notice if and so long as it, in good faith,
determines that withholding the notice is in the interests of the
Securityholders.
Section 7.6 Reports by Trustee to Holders.
If circumstances require any report to Holders under TIA Section 313(a),
it shall be mailed to Securityholders within sixty (60) days after each May 15
(beginning with the May 15 following the date of this Indenture) as of which
such circumstances exist. The Trustee also shall comply with the remainder of
TIA Section 313.
The Company shall notify the Trustee if the Securities become listed
on or delisted from any stock exchange or other recognized trading market.
The Trustee shall, upon the written request of any Holder of Securities
but subject to applicable laws and contractual limitations, provide to
such Holder copies of any reports, certificates, opinions or other materials
of any kind or nature required to be delivered to the Trustee under this
Indenture or otherwise delivered by or on behalf of the Company to the
Trustee.
Section 7.7 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation, as agreed upon from time to time, for its services hereunder.
The Trustee's compensation shall not be limited by any law on compensation of
a trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable disbursements, expenses and advances incurred or
made by it in any capacity hereunder. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents
and counsel and all agents and other persons not regularly in its employ.
The Company shall indemnify the Trustee and each predecessor Trustee for,
and hold each of them harmless against, any loss or liability incurred by
each of them in connection with the administration of this Indenture and
its duties hereunder. In connection with any defense of such a claim, the
Trustee may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not reimburse any expense
or indemnify against any loss or liability incurred by the Trustee or any
predecessor Trustee through the negligence or bad faith of such Trustee or each
such predecessor Trustee.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a Lien (legal and equitable) prior to the Securities on all
money or Property held or collected by the Trustee, in its capacity as
Trustee, or otherwise distributable to Securityholders, except money,
securities or Property held in trust to pay principal of or interest on
particular Securities (including, without limitation, pursuant to Section
8.1(b) hereof).
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(g) or (h) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.8 Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing. The
Holders of a majority in aggregate principal amount of the Securities
Outstanding may remove the Trustee by so notifying the Trustee in writing
and may appoint a successor Trustee with the Company's consent, which
consent shall not be unreasonably refused or delayed. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or other public officer takes charge of the Trustee or its
Property;
(d) the Trustee becomes incapable of acting; or
(e) no Default or Event of Default has occurred and is continuing and
the Company determines in good faith to remove the Trustee.
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. Within one year after the successor Trustee takes office,
the Holders of a majority in aggregate principal amount of the Securities
Outstanding may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall transfer all Property held by it as Trustee to
the successor Trustee, subject to the Lien provided in Section 7.7, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Securityholder.
No resignation or removal of the Trustee and no appointment of a
successor Trustee, pursuant to this Article, shall become effective until the
acceptance of appointment by the successor Trustee under this Section 7.8. If
a successor Trustee does not take office within sixty (60) days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least ten percent (10%) in principal amount of the Securities
Outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder of Securities
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8,
the Company's obligations under Section 7.7 shall continue for the benefit
of the retiring Trustee which shall retain its claim pursuant to Section 7.7.
Section 7.9 Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Section 310(a)(1). The Trustee shall have a combined capital and surplus
of at least $50,000,000 as set forth in its most recent, published annual report
of condition. The Trustee shall comply with TIA Section 310(b); provided,
however, that there shall be excluded from the operation of TIA Section
310(b)(1) any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding, if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA 311(a) to the extent indicated.
ARTICLE 8.
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.1 Discharge of Liability on Securities; Defeasance.
(a) When (i) the Company delivers to the Trustee all outstanding
Securities (other than Securities replaced pursuant to Section 2.7) for
cancellation or (ii) all outstanding Securities have become due and payable,
whether at maturity or as a result of the mailing of a notice of redemption
pursuant to Article 3 hereof and the Company irrevocably deposits with the
Trustee funds sufficient to pay at maturity or upon redemption all
outstanding Securities, including interest thereon to maturity or such
redemption date (other than Securities replaced pursuant to Section 2.7), and if
in either case the Company pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to Section 8.1(c), cease to
be of further effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture by executing and delivering to the Company on
demand of the Company accompanied by an Officers' Certificate and an Opinion
of Counsel, a written instrument to such effect prepared by the Company at its
sole cost and expense.
(b) Subject to Sections 8.1(c) and 8.2, the Company at any time may
terminate (i) all its obligations under the Securities and this Indenture
("legal defeasance option") or (ii) its obligations under Article 3,
Sections 4.3, 4.7, 4.9, 4.12, 4.14 and 4.16 through 4.24, inclusive, and the
operation of Sections 6.1(d), 6.1(e), 6.1(f), 6.1(g), 6.1(h), 6.1(i) (but, in
the case of Sections 6.1(g) and (h), with respect only to Restricted
Subsidiaries) and the limitations contained in Sections 5.1(iii) and (iv)
("covenant defeasance option"). The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant
defeasance option.
If the Company exercises its legal defeasance option, payment of
the Securities may not be accelerated because of an Event of Default with
respect thereto. If the Company exercises its covenant defeasance option,
payment of the Securities may not be accelerated because of an Event of
Default specified in Sections 6.1(d), 6.1(e), 6.1(f), 6.1(g), 6.1(h) and
6.1(i) (but, in the case of Sections 6.1(g) and (h), with respect only to
Restricted Subsidiaries) or because of the failure of the Company to comply with
Section 5.1(iii) or (iv).
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in a writing prepared by the
Company at its sole cost and expense the discharge of those obligations that
the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.3 through 2.8, inclusive, 7.7 and 7.8 and in this
Article 8 shall survive until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections 7.7, 8.4 and 8.5 shall
survive.
Section 8.2 Conditions to Defeasance. The Company may exercise its
legal defeasance option or its covenant defeasance option only if:
(a) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal and interest and
Special Interest, if any, on the Securities to redemption or maturity, as
the case may be;
(b) the Company delivers to the Trustee a certificate from a nationally
recognized firm of independent accountants expressing their opinion
that the payments of principal and interest when due and without reinvestment
on the deposited U.S. Government Obligations plus any deposited money
without investment will provide cash at such times and in such amounts as will
be sufficient to pay when due all of the principal of, interest on and
Special Interest, if any, on all the Securities to redemption or maturity, as
the case may be;
(c) 123 days pass after the deposit is made and during the 123-day
period no Default specified in Sections 6.1(g) or (h) with respect to the
Company or any Restricted Subsidiary that is a Significant Subsidiary occurs
which is continuing at the end of the period;
(d) the deposit does not constitute a default under any other
agreement binding on the Company;
(e) the Company delivers to the Trustee an Opinion of Counsel to
the effect that the trust resulting from the deposit does not constitute, or
is qualified as, a regulated investment company under the Investment Company Act
of 1940;
(f) in the case of the legal defeasance option, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of this Indenture there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm that, the
Securityholders will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred;
(g) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Securityholders will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not occurred;
(h) the Company shall have delivered an Opinion of Counsel to the
effect that the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar law affecting
creditors rights generally under any United States federal or state law and
that the Trustee has a perfected security interest in such trust funds for
the ratable benefit of the Holders;
(i) the Company shall have delivered an Opinion of Counsel in the
Company's jurisdiction of incorporation to the effect that the Securityholders
will not recognize income, gain or loss for such jurisdiction's tax purposes
as a result of such defeasance and will be subject to taxes in such
jurisdiction on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred; and
(j) the Company delivers to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent to
the defeasance and discharge of the Securities as contemplated by this
Article 8 have been complied with.
Before or after a deposit, the Company may make arrangements satisfactory
to the Trustee for the redemption of Securities at a future date in accordance
with Article 3.
Section 8.3 Application of Trust Money. The Trustee shall hold
in trust money or U.S. Government Obligations deposited with it pursuant
to this Article 8. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of, interest on, and Special Interest,
if any, on the Securities.
Section 8.4 Repayment to Company. The Trustee and the Paying Agent
shall promptly turn over to the Company, upon request accompanied by a
certificate from a nationally recognized firm of independent accountants
expressing their opinion that any money or U.S. Government Obligations are in
excess of the amounts sufficient to pay when due all of the principal of,
interest on, and Special Interest, if any, on the Securities to redemption or
maturity, as the case may be, any such excess money or securities held by them.
Subject to any applicable abandoned property law, the Trustee and
the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal, interest or Special Interest that
remains unclaimed for two years, and, thereafter, Securityholders entitled
to the money must look to the Company for payment as general creditors.
Section 8.5 Indemnity for Government Obligations. The Company shall
pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government Obligations.
Section 8.6 Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with
this Article 8 by reason of any legal proceeding or by reason of any order
or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, the Company's obligations under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8 until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article 8; provided, however, that, if the
Company has made any payment of principal of, premium, if any, interest or
Special Interest, if any, on, any Securities because of the reinstatement
of its obligations, the Company shall be subrogated to the rights of the
Holders of such Securities to receive such payment form the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Securities without notice to or consent of any Securityholder:
(a) to provide for uncertificated Securities in addition to or in place of
certificated Securities;
(b) to provide for the assumption of the Company's obligations
to the Holders of the Securities in the case of a merger or consolidation or
transfer of all or substantially all of the assets of the Company or otherwise
to comply with Article 5;
(c) to comply with any requirements of the SEC in connection
with the qualification of this Indenture under the TIA; or
(d) to cure any ambiguity, defect or inconsistency or to make any
other change, in each case, provided that such action does not materially
adversely affect the interests of any Securityholder.
Section 9.2 With Consent of Holders.
Subject to Section 6.7, the Company (by resolution of its Board of
Directors if required) and the Trustee may amend or supplement this Indenture
or the Securities without notice to any Securityholder but with the written
consent of the Required Holders. Subject to Sections 6.4, 6.5 and 6.7,
the Required Holders may authorize the Trustee to, and the Trustee, subject to
Section 9.6, upon such authorization shall, waive compliance by the Company
with any provision of this Indenture or the Securities. However, an
amendment, supplement or waiver, including a waiver pursuant to any
provision of Section 6.4, may not without the consent of each Securityholder
affected:
(a) reduce the amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(b) reduce the rate or extend the time for payment of interest on,
or Special Interest, if any, with respect to, any Security;
(c) reduce the principal of, or the amount of Special Interest, if
any, with respect to (in each case, whether on redemption, repurchase or
otherwise), or change the fixed maturity of any Security;
(d) change the place of payment where, or the coin or currency in
which, any Security (or the repurchase or redemption price thereof), interest
thereon, or Special Interest, if any, with respect thereto is payable;
(e) waive a default in the payment of the principal of, or interest on,
or Special Interest with respect to any Security;
(f) make any changes in Sections 2.8, 6.4, 6.7 or 6.10 or the third
sentence of this Section 9.2 or change the time at which any Security may be
redeemed hereunder;
(g) reduce any amount payable upon exercise of any repurchase
rights thereof or otherwise change any repurchase right provision or impair
the right of any Holder to institute suit for the enforcement of any such
payment on any Security when due or adversely effect any repurchase rights
hereunder; or
(h) make any change in any Subsidiary Guaranty that would adversely
affect any Holder.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.2 becomes
effective, the Company shall mail to the Holders affected thereby a brief
notice describing such amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however in
any way impair or affect the validity of any such amendment, supplement or
waiver.
Section 9.3 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
Section 9.4 Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the consent
as to his Security or portion of a Security. Such revocation shall be
effective only if the Trustee receives the notice of revocation before the
date the amendment, supplement or waiver becomes effective.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of
clauses (a) through (h) of Section 9.2. In that case the amendment,
supplement or waiver shall bind each Holder of a Security who has consented to
it and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security; provided, however,
that no amendment, supplement or waiver relating to any impairment of
the right to receive principal, interest and Special Interest, if any, when
due and payable consented to by a Holder shall be binding upon any subsequent
Holder of a Security or a portion of a Security that evidences the same debt
as the consenting Holder's Security unless notation with regard thereto is
made upon such Security or the Security representing such portion.
Section 9.5 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms.
Section 9.6 Trustee to Sign Amendments, etc.
The Trustee shall be entitled to receive and rely upon an Officers'
Certificate and an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article 9 has
been duly authorized by the Company and is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, execute any
such amendment, supplement or waiver which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Section 9.7 Effect of Supplement and/or Amendment.
Upon the execution of any supplemental indenture pursuant to the provisions
of this Article 9, this Indenture shall be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the Holders of Securities shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
ARTICLE 10.
MISCELLANEOUS
Section 10.1 Conflict with Trust Indenture Act of 1939.
If and to the extent that any provision of this Indenture limits,
qualifies, or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the TIA, such imposed duties shall control.
Section 10.2 Notices; Waivers.
Any request, demand, authorization, direction, notice, consent,
waiver or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with
(a) the Company shall be sufficient for every purpose hereunder if
in writing (including telecopied communications) and made, given, furnished or
filed by personal delivery or mailed by registered or certified mail or by
nationally recognized overnight courier, postage or courier charges, as the
case may be, prepaid, to or with the Company at:
Trans World Airlines, Inc. One City Centre 000 X. 0xx Xxxxxx Xx.
Xxxxx, Xxxxxxxx 00000 Attention: Senior Vice President &
General Counsel
Telecopier No.: (000) 000-0000
(b) the Trustee shall be sufficient for every purpose hereunder if
in writing (including telecopied communications) and made, given, furnished or
filed by personal delivery or mailed by registered or certified mail or by
nationally recognized overnight courier, postage or courier charges, as the
case may be, prepaid, to or with the Trustee at:
First Security Bank, National Association 00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, XX 00000 Attention: Corporate Trust Services
Telecopier No.: (000) 000-0000
or to any of the above parties at any other address or telecopier number
subsequently furnished in writing by it to each of the other parties
listed above. An affidavit by any person representing or acting on
behalf of the Company or the Trustee as to such mailing, having any registry
receipt required by this Section attached, shall be conclusive evidence of
the giving of such demand, notice or communication.
Any notice or communication mailed to a Holder shall be mailed to
such holder by first-class mail or by nationally recognized overnight
courier, postage or courier charges, as the case may be, prepaid, at such
holder's address as it appears on the Register and shall be sufficiently given
to such holder if so mailed within the time prescribed.
Failure to mail a notice or send a communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. Notices
to the Trustee or to the Company are deemed given only when received. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by the Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
Section 10.3 Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other person shall
have the protection of TIA Section 312(c).
Section 10.4 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: (a) an Officers' Certificate, and (b) an Opinion of Counsel, each
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
complied with, provided, that in the case of any such application or
Request as to which the furnishing of an Officers' Certificate or Opinion of
Counsel is specifically required by any provision of this Indenture relating
to such particular application or Request, no additional certificate or
opinion, as the case may be, need be furnished.
Section 10.5 Statements Required in Certificate or Opinion.
Each certificate or opinion provided for and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in
this Indenture shall include: (a) a statement that the Person signing such
certificate or opinion has read such condition or covenant and the definitions
herein or therein relating thereto; (b) 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; (c) a statement
that, in the opinion of such Person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as
to whether or not such condition or covenant has been complied with; and
(d) a statement as to whether or not in the opinion of such Person, such
condition or covenant has been complied with.
Any certificate or opinion of an Officer or an engineer, insurance
broker, accountant or other expert may be based, insofar as it relates
to legal matters, upon a certificate or opinion of or upon representations
by counsel, unless such officer, engineer, insurance broker, accountant or
other expert knows that the certificate or opinion or representations with
respect to the matters upon which his opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should have known that the
same were erroneous.
Any certificate or Opinion of Counsel may be based, insofar as it relates
to factual matters, upon the certificate or opinion of or representations by
an officer or officers of the Company stating that the information with respect
to such factual matters is in possession of the Company, unless such counsel
knows that the certificate or opinion or representations with respect to the
matters upon which his opinion may be based as aforesaid are erroneous and
insofar as it relates to legal matters in a jurisdiction or area of law
beyond the expertise of such counsel, such counsel may rely upon the opinion
of counsel qualified in such other jurisdiction or area of law.
Wherever in this Indenture in connection with any application,
certificate or report to the Trustee it is provided that the Company shall
deliver any document as a condition of the granting of such application or as
evidence of the Company's compliance with any term hereof, it is intended
that the truth and accuracy at the time of the granting of such application
or at the effective date of such certificate or report, as the case may be, of
the facts and opinions stated in such document shall in each such case be a
condition precedent to the right of the Company to have such application
granted or to the sufficiency of such certificate or report. Nevertheless, in
the case of any such application, certificate or report, any document
required by any provision of this Indenture to be delivered to the Trustee as a
condition of the granting of such application or as evidence of such compliance
may be received by the Trustee as conclusive evidence of any statement
therein contained and shall be full warrant, authority and protection to the
Trustee acting on the faith thereof.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Whenever any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements or opinions or
other instruments under this Indenture such Person may, but need not,
consolidate such instruments into one.
Section 10.6 Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Registrar, Paying Agent or Tender Agent may make
reasonable rules for their respective functions.
Section 10.7 Holidays.
In the event that any date for the payment of any amount due hereunder
shall not be a Business Day, then (notwithstanding any other provision of this
Indenture) such payment need not be made on such date, but may be made on the
next succeeding Business Day with the same force and effect as if made on the
due date, and no interest or Special Interest, if any, shall accrue from such
due date to and including the next succeeding Business Day.
Section 10.8 Governing Law; Waiver of Jury Trial.
(a) The laws of the State of New York shall govern this Indenture and
the Securities without regard to principles of conflict of laws.
(b) The Company and the Trustee each waive any right to have a jury
participate in resolving any dispute, whether sounding in contract,
tort, or otherwise arising out of, connected with, related to or
incidental to the relationship established between them in connection
with this Indenture. Instead, any disputes resolved in court will be
resolved in a bench trial without a jury.
Section 10.9 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any agreement of the Company or
any of its Subsidiaries which is unrelated to this Indenture or the Securities.
Any such agreement may not be used to interpret this Indenture.
Section 10.10 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 this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder 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.
Section 10.11 Benefits of Indenture and the Securities Restricted.
Subject to the provisions of Section 10.12 hereof, nothing in this
Indenture or the Securities, express or implied, shall give or be construed to
give to any Person, firm or corporation, other than the parties hereto and
the Holders, any legal or equitable right, remedy or claim under or in
respect of this Indenture or under any covenant, condition, or provision
herein contained, all such covenants, conditions and provisions, subject to
Section 10.12 hereof, being for the sole benefit of the parties hereto and
of the Holders.
Section 10.12 Successors and Assigns.
This Indenture and all obligations of the Company hereunder shall be
binding upon the successors and permitted assigns of the Company, and shall,
together with the rights and remedies of the Trustee hereunder, inure to the
benefit of the Trustee, the Holders, and their respective successors
and assigns. Any assignment in violation hereof shall be null and void ab
initio.
Section 10.13 Counterpart Originals.
This Indenture may be signed in two or more counterparts, each of which
shall be deemed an original, but all of which shall together constitute one and
the same agreement.
Section 10.14 Severability.
The provisions of this Indenture are severable, and if any clause or
provision shall be held invalid, illegal or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall
affect in that jurisdiction only such clause or provision, or part thereof, and
shall not in any manner affect such clause or provision in any other
jurisdiction or any other clause or provision of this Indenture in any
jurisdiction, and a Holder shall have no claim therefor against any party
hereto.
Section 10.15 Rating Agencies.
Any reference in this Indenture to Xxxxx'x Investors Service, Inc.
or Standard & Poor's Ratings Group (each a "rating agency" or an "agency")
shall include its successors or successor publishers of its financial
ratings, and references to the ratings of any such rating agency shall
include comparable ratings in the event of one or more reclassifications of
such ratings by such rating agency after the date hereof. In the event
that any of such rating agencies shall cease to publish applicable ratings,
any provision herein requiring ratings of all of such agencies shall be deemed
to require ratings of only the agency or agencies continuing to publish
applicable ratings. If all of such agencies cease to publish applicable
ratings, any provision herein requiring ratings of any of such agencies shall
be deemed to require ratings that are both (a) certified by the Company in
an Officers' Certificate to be equivalent to the ratings of such agency
or agencies and (b) reasonably satisfactory to the Trustee.
Section 10.16 Effect of Headings.
The Article and Section headings and the Table of Contents contained in
this Indenture have been inserted for convenience of reference only, and are and
shall be without substantive meaning or content of any kind whatsoever and
are not a part of this Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
TRANS WORLD AIRLINES, INC.
By:
Name:
Title:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
as Trustee
By:
Name:
Title:
