Exhibit 4.2
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WORLDCORP, INC.
AND
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, Trustee
------------------------------
INDENTURE
Dated as of September 30, 1996
------------------------------
$10,000,000
10.00% Senior Subordinated Notes
due September 30, 2000
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Reconciliation and tie between
the Trust Indenture Act of 1939 and Indenture,
dated as of September 30, 1996
Trust Indenture
Act Section Indenture Section
--------------- -----------------
(S) 310(a)(1).............................................................609
(a)(2)...........................................................609
(a)(3)................................................Not Applicable
(a)(4)................................................Not Applicable
(a)(5)......................................................608, 610
(b).........................................................608, 610
(c)...................................................Not Applicable
(S) 311(a)................................................................613
(b)..............................................................613
(S) 312(a)........................................................701, 702(a)
(b)...........................................................702(b)
(c)..............................................................703
(S) 313(a)................................................................703
(b)..............................................................703
(c)..............................................................703
(d)..............................................................703
(S) 314(a)..........................................................704, 1007
(b)...................................................Not Applicable
(c)(1)...........................................................102
(c)(2)...........................................................102
(c)(3)................................................Not Applicable
(d)...................................................Not Applicable
(e)..............................................................102
(f)...................................................Not Applicable
(S) 315(a)................................................................601
(b)..............................................................602
(c)..............................................................601
(d)..............................................................601
(e)..............................................................514
(S) 316(a)................................................................101
(a)(1)(A)........................................................512
(a)(1)(B)........................................................513
(a)(2)................................................Not Applicable
(b)..............................................................508
(S) 317(a)(1).............................................................503
(a)(2)...........................................................504
(b).............................................................1003
(S) 318(a)................................................................107
(c)..............................................................107
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* This table shall not, for any purpose, be deemed to be a part of the
Indenture.
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions................................................. 1
Section 102. Compliance Certificates and Opinions........................ 8
Section 103. Form of Documents Delivered to Trustee...................... 8
Section 104. Acts of Holders............................................. 9
Section 105. Notices, Etc., to Trustee and Company...................... 10
Section 106. Notice to Holders; Waiver.................................. 11
Section 107. Conflict with Trust Indenture Act.......................... 11
Section 108. Effect of Headings and Table of Contents................... 12
Section 109. Successors and Assigns..................................... 12
Section 110. Separability Clause........................................ 12
Section 111. Benefits of Indenture...................................... 12
Section 112. Governing Law.............................................. 12
Section 113. Legal Holidays............................................. 12
Section 114. No Security Interest Created............................... 13
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally............................................ 13
Section 202. Form of Trustee's Certificate of Authentication........... 13
Section 203. Form of Face of Security................................... 14
Section 204. Form of Reverse of Security................................ 15
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms............................................ 19
Section 302. Denominations.............................................. 19
Section 303. Execution, Authentication, Delivery and Dating............. 19
Section 304. Temporary Securities....................................... 20
Section 305. Registration, Registration of Transfer and Exchange........ 21
Section 306. Mutilated, Destroyed, Lost and Stolen Securities........... 22
Section 307. Payment of Interest; Interest Rights Preserved............. 23
Section 308. Persons Deemed Owners...................................... 24
Section 309. Cancellation............................................... 24
Section 310. Computation of Interest.................................... 24
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.................... 25
Section 402. Application of Trust Money................................. 25
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.......................................... 25
Section 502. Acceleration of Maturity; Rescission and
Annulment.................................................. 27
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee..................................... 28
Section 504. Trustee May File Proofs of Claim........................... 29
Section 505. Trustee May Enforce Claims Without Possession
of Securities.............................................. 30
Section 506. Application of Money Collected............................. 30
Section 507. Limitation on Suits........................................ 30
Section 508. Unconditional Right of Holders to Receive
Principal and Interest..................................... 31
Section 509. Restoration of Rights and Remedies......................... 31
Section 510. Rights and Remedies Cumulative............................. 32
Section 511. Delay or Omission Not Waiver............................... 32
Section 512. Control by Holders......................................... 32
Section 513. Waiver of Past Defaults.................................... 32
Section 514. Undertaking for Costs...................................... 33
Section 515. Waiver of Stay or Extension or Usury Laws.................. 33
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities........................ 34
Section 602. Notice of Defaults......................................... 35
Section 603. Certain Rights of Trustee.................................. 35
Section 604. Not Responsible for Recitals or Issuance of
Securities................................................. 36
Section 605. May Hold Securities........................................ 36
Section 606. Money Held in Trust........................................ 37
Section 607. Compensation and Reimbursement............................. 37
Section 608. Disqualification; Conflicting Interests.................... 37
Section 609. Corporate Trustee Required; Eligibility.................... 38
Section 610. Resignation and Removal; Appointment of
Successor.................................................. 38
Section 611. Acceptance of Appointment by Successor..................... 39
Section 612. Merger, Conversion, Consolidation or
Succession to Business..................................... 40
Section 613. Preferential Collection of Claims Against
Company.................................................... 40
Section 614. Appointment of Authenticating Agent........................ 40
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses
of Holders................................................. 42
Section 702. Preservation of Information; Communications to
Holders.................................................... 42
Section 703. Reports by Trustee......................................... 43
Section 704. Reports by Company......................................... 43
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms....... 43
Section 802. Successor Substituted...................................... 44
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders......... 45
Section 902. Supplemental Indentures With Consent of Holders............ 46
Section 903. Execution of Supplemental Indentures....................... 47
Section 904. Effect of Supplemental Indentures.......................... 47
Section 905. Conformity with Trust Indenture Act........................ 47
Section 906. Reference in Securities to Supplemental Indentures......... 47
Section 907. Notice of Supplemental Indentures ......................... 47
Section 908. Subordination Unimpaired................................... 48
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal and Interest.......................... 48
Section 1002. Company Existence; Maintenance of Office or
Agency..................................................... 48
Section 1003. Money for Securities Payments to Be Held in
Trust...................................................... 48
Section 1004. Limitation on Dividends and Other Distributions............ 50
Section 1005. Stock Repurchases.......................................... 50
Section 1006. Senior Indebtedness........................................ 50
Section 1007. Subordination.............................................. 50
Section 1008. Statement as to Compliance................................. 51
iii
ARTICLE ELEVEN
PREPAYMENT OF SECURITIES
Section 1101. Optional Prepayment........................................ 51
Section 1102. Mandatory Prepayment....................................... 51
Section 1103. Applicability of Article................................... 52
Section 1104. Election to Prepay; Notice to Trustee...................... 52
Section 1105. Selection by Trustee of Securities to be Prepaid........... 52
Section 1106. Notice of Prepayment....................................... 52
Section 1107. Deposit of Prepayment Price................................ 53
Section 1108. Securities Payable on Prepayment Date...................... 53
Section 1109. Securities Prepaid in Part................................. 54
ARTICLE TWELVE
SINKING FUND
Section 1201. Sinking Fund............................................... 54
Section 1202. Satisfaction of Sinking Fund Payments with Securities...... 54
Section 1203. Prepayment of Securities for Sinking Fund.................. 55
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
Section 1301. Securities Subordinate to Senior Indebtedness.............. 55
Section 1302. Trustee and Holders of Securities May Rely on
Certificate of Liquidating Agent; Trustee May
Require Further Evidence as to Ownership of Senior
Indebtedness; Trustee Not Fiduciary to Holders of
Senior Indebtedness........................................ 58
Section 1303. Payment Permitted If No Default............................ 58
Section 1304. Trustee Not Charged with Knowledge of
Prohibition................................................ 59
Section 1305. Trustee to Effectuate Subordination........................ 59
Section 1306. Rights of Trustee as Holder of Senior
Indebtedness............................................... 59
Section 1307. Article Applicable to Paying Agents........................ 60
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 1401. Immunity of Incorporators, Stockholders, Officers and
Directors.................................................. 60
iv
INDENTURE, dated as of September 30, 1996, between WORLDCORP, INC., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 00000 Xxxx Xxxxxx
Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, and Norwest Bank Minnesota, National
Association, a national banking association duly organized and existing under
the laws of the United States of America, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its 10.00% Senior
Subordinated Notes due September 30, 2000 (herein called the "Securities") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
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For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
1
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Asset Value" shall mean (A) the market value of the common stock of World
Airways beneficially owned by the Company, the common stock of InteliData
beneficially owned by the Company, the common stock of any other Subsidiary of
the Company beneficially owned by the Company which is listed on an exchange or
quoted on the Nasdaq National Market, and the Common Stock, in each case
measured based on the monthly closing prices of each of the common stocks as
listed on the New York Stock Exchange or the Nasdaq National Market, as the case
may be, plus (B) the value of all other tangible assets of the Company
calculated in accordance with GAAP consistently applied, measured based on the
value of such assets as of the applicable date of calculation.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities.
"Authorized Newspaper" means a newspaper of general circulation in the
relevant area, printed in the English language and customarily published on each
Business Day therein.
"Bankruptcy Laws" has the meaning specified in Section 501(7).
2
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board or any director or directors and/or
officer or officers of the Company to whom that board or committee shall have
duly delegated its authority.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" means any stock of any class of the Company that has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, a Vice Chairman
of the Board, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of execution of this Indenture is located at Northwest
Bank of Minnesota, National Association, Corporate Trust Operations, X.X. Xxx
0000, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000.
"Corporation" includes corporations, associations, companies and business
trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Event of Default" has the meaning specified in Section 501.
3
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" shall mean the generally accepted accounting principles at the time
promulgated by the United States Financial Accounting Standards Board.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" of any Person shall mean and include all obligations of such
Person which in accordance with GAAP shall be classified upon a balance sheet of
such Person as liabilities of such Person, and in any event shall include all
(i) obligations of such Person for borrowed money or which have been incurred in
connection with the acquisition of property or assets, (ii) obligations secured
by any lien or other charge to property or assets owned by such Person, even
though such Person has not assumed or become liable for the payment of such
obligations, (iii) obligations created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such
Person, notwithstanding the fact that the rights and remedies of the seller,
lender or lessor under such agreement in the event of default are limited to
repossession or sale of property, (iv) guaranties, (v) capitalized rentals under
any capitalized lease and (vi) any recourse obligations arising upon a sale of
assets. Any Indebtedness extended or renewed, other than at the option of the
obligor pursuant to the terms thereof, will be deemed to have been incurred at
the time of such extension or renewal.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.
"InteliData" means InteliData Technologies Corporation, a Delaware
corporation and successor by merger to US Order, Inc., a Delaware corporation
and formerly a subsidiary of the Company.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for prepayment or otherwise.
"Officers' Certificate" means a certificate signed by at least two officers
of the Company, one signature being that of the Chairman of the Board, a Vice
Chairman of the Board, the President or a Vice President, and the other
signature being that of the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee.
4
"Old Notes" means the outstanding 10.00% Senior Subordinated Notes due
September 30, 2000 issued by the Company, with an original aggregate principal
amount of $10,000,000.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or prepayment money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are
to be prepaid, notice of such prepayment has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) Securities that have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be 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 the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
5
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities, means the
place or places where the principal of and interest on the Securities are
payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Prepayment Date", when used with respect to any Security to be prepaid,
means the date fixed for such prepayment by or pursuant to this Indenture.
"Purchase Agreement" means the Purchase Agreement, dated as of September
30, 1996, by and among the Company and the purchasers named therein.
"Regular Record Date" for the interest payable on any Interest Payment Date
means the date specified for that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee customarily performing corporate trust functions.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" means at any date, (i) all Indebtedness of the
Company for money borrowed from any institutional lender secured by any lien or
other charge to the property or assets owned by the Company, whether created
prior to, or after the date of the issuance of the Securities, including
principal and interest on such Indebtedness and all other amounts due on or in
connection with such Indebtedness including all charges, fees and expenses and
(ii) all interest on any Indebtedness referred to in clause (i) accruing during
the pendency of any bankruptcy or insolvency proceeding, whether or not allowed
thereunder. Notwithstanding the foregoing, Senior Indebtedness shall not
include (a) Indebtedness which is pursuant to its terms or any agreement
6
relating thereto or by operation of law subordinated or junior in right of
payment or otherwise to any other Indebtedness of the Company, and (b) any
Indebtedness which, when incurred and without respect to any election under
Section 1111(b) of the Federal Bankruptcy Code, is without recourse to the
Company and (c) the Old Notes.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal or such installment of
principal or interest on such Security is due and payable.
"Subordinated Indebtedness" means any Indebtedness other than the
Securities and the Old Notes that is not Senior Indebtedness. Subordinated
Indebtedness shall include, without limitation, (a) the Company's 7% Convertible
Subordinated Debentures due 2004 and (b) any Indebtedness of the Company to any
Subsidiary of the Company.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities
shall mean the Trustee with respect to Securities.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Vice President", when used with respect to the Company, means any vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president".
"Warrants" means the warrants, dated September 30, 1996 and expiring
September 30, 2000, to acquire 120,000 shares of Common Stock issued to the
original purchasers of the Securities and including additional warrants,
issuable to such purchasers on October 1, 1997 and expiring on September 30,
2001, to acquire 40,000 shares of Common Stock and additional
7
warrants, issuable to such purchasers on October 1, 1998 and expiring on
September 30, 2002, to acquire 40,000 shares of Common Stock, which additional
warrants will be issued only if certain market conditions set forth in the
Purchase Agreement are met.
"World Airways" means World Airways, Inc., a Delaware corporation and
majority owned subsidiary of the Company.
Section 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
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
8
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.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion are based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a 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 the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
9
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(e) The Company may, in the circumstances permitted by the Trust Indenture
Act, fix any day as the record date for the purpose of determining the Holders
of Securities entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders. If not set by the
Company prior to the first solicitation of a Holder of Securities made by any
Person in respect of any such action, or, in the case of any such vote, prior to
such vote, the record date for any such action or vote shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation or vote, as
the case may be. With regard to any record date for action to be taken by the
Holders of the Securities, only the Holders of Securities on such date (or their
duly designated proxies) shall be entitled to give or take, or vote on, the
relevant action.
(f) Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount. Any notice given or action
taken by a Holder or its agents with regard to different parts of such principal
amount pursuant to this paragraph shall have the same effect as if given or
taken by separate Holders of each such different part.
Section 105. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument,
10
Attention: Secretary, or at any other address previously furnished in
writing to the Trustee by the Company.
All such notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, registered or certified with postage prepaid, if
mailed; when answered back if telexed; upon electronically confirmed receipt, if
telecopied; and the next Business Day after timely delivery to the courier, if
sent by nationally recognized overnight air courier guaranteeing next day
delivery.
Section 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Any notice to a Holder which is mailed in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives such notice. 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 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. All
such notices and communications shall be deemed to have been duly given: at the
time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, registered or certified with postage prepaid, if mailed;
when answered back if telexed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by nationally
recognized overnight air courier guaranteeing next day delivery.
In case, by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it shall be impracticable to give
notice of any event to Holders by mail when such notice is required to be given
pursuant to any provision of this Indenture, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture
Act through the operation of Section 318(c) thereof, such imposed duties shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
11
provision shall be deemed to apply to this Indenture as so modified or shall be
deemed to be so excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, any Paying Agent, the Holders and the holders of Senior Indebtedness,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 112. Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed in
accordance with the internal laws of the State of Delaware without regard to its
conflict of laws principles or rules, provided, however, that the rights,
duties, standard of care and immunities of the Trustee in connection with the
administration of its trust hereunder shall be governed by the laws of the State
of New York.
Section 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Prepayment Date, sinking fund
payment date or Stated Maturity of any Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest or principal 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 Interest Payment Date, Prepayment Date,
sinking fund payment date or at the Stated Maturity, provided that no interest
shall accrue for the period
12
from and after such Interest Payment Date, Prepayment Date, sinking fund payment
date or Stated Maturity, as the case may be.
Section 114. No Security Interest Created.
----------------------------
Except as provided in Section 607 herein, nothing in this Indenture or in
the Securities, express or implied, shall be construed to constitute a security
interest under the Uniform Commercial Code or similar legislation, as now or
hereafter enacted and in effect in any jurisdiction where property of the
Company or its Subsidiaries is or may be located.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
---------------
The Securities and the Trustee's certificate of authentication shall be in
substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with any organizational document, any applicable law or with
the rules of any securities exchange on which the Securities are listed or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved or may
be produced in any other manner permitted by the rules of any securities
exchange upon which the Securities may be listed all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
Section 202. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
This is one of the Securities therein referred to in the within-mentioned
Indenture.
Norwest Bank Minnesota, National
Association, as Trustee
By
---------------------------
Authorized Officer
13
Section 203. Form of Face of Security.
------------------------
WORLDCORP, INC.
10.00% SENIOR SUBORDINATED NOTE
Due September 30, 2000
_______________
Registered Note No. R-___ September 30, 1996
$____________
WorldCorp, Inc., a Delaware corporation (herein called the "Company," which
term includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ____________________ or registered
assigns, on the thirtieth day of September, 2000, the principal amount of
______________________________ Dollars ($__________) and to pay interest
(computed on the basis of a 360-day year of twelve 30-day months) on the
principal amount from time to time remaining unpaid hereon at the rate of 10.00%
per annum from the date hereof or from and including the most recent Interest
Payment Date to which interest has been paid or duly provided for until
maturity, payable on March 31 and September 30 in each year, commencing on March
31, 1997, and at maturity, and to pay interest on overdue principal and (to the
extent legally enforceable) on any overdue installment of interest at the rate
of 12.00% per annum after maturity or the date due thereof, until paid. Any
such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed and upon such
notice as may be required by such exchange, all as more fully provided in said
Indenture. Notice of a Special Record Date shall be given to Holders of
Securities not less than 10 days prior to such Special Record Date. Payment of
the principal of and interest on the Securities shall be made by wire transfer
of immediately available funds to the accounts specified by the Holders thereof
or, if no such account is specified, by mailing a check to each such Holder's
registered address.
This Note was issued on January __, 1997, in substitution of a note issued
on September 30, 1996, with original issue discount ("OID") for federal income
tax purposes. For each $1,000
14
principal amount of this Note, the issue price is $965.35 and the amount
of OID is $34.65. The yield to maturity of this Note is 11.253%, compounded
semi-annually.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Security may be declared due prior to its expressed maturity date,
voluntary prepayments may be made hereon and certain prepayments are required to
be made hereon, all in the events, on the terms and in the manner provided in
the Indenture. Such prepayments include (i) certain required prepayments on
September 30, 1998 and September 30, 1999 and upon the occurrence of certain
events specified in the Indenture, and (ii) certain optional prepayments. The
principal of this Security may not be prepaid prior to the expressed maturity
date except as provided in the Indenture.
WORLDCORP, INC.
By:
--------------------------------------
Name:
Title:
Section 204. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of Securities of the
Company designated as its 10.00% Senior Subordinated Notes due September 30,
2000 (herein called the "Securities"), limited in aggregate principal amount to
$10,000,000, issued and to be issued under an Indenture, dated as of September
30, 1996 (herein called the "Indenture"), between the Company and Norwest Bank
Minnesota, National Association, as Trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee, the holders of Senior Indebtedness and the Holders
of the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
15
In the event of prepayment of this Security in part only, a new Security or
Securities for the unpaid portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
The indebtedness evidenced by this Security is, in all respects,
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness, and this Security is issued subject to the provisions of
the Indenture with respect thereto. Each Holder of this Security, by accepting
the same, (a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination so provided, and (c) appoints the
Trustee his attorney-in-fact for any and all such purposes. The Company shall
not make any payment of principal or interest, as applicable, on the Securities
while the Company is in default with respect to any Senior Indebtedness, except
as provided in the Indenture.
If an Event of Default shall occur and be continuing, the principal of all
the Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
Outstanding, and, under certain limited circumstances, by the Company and the
Trustee without the consent of the Holders. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities at the time Outstanding, on behalf of the
Holders of all the Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed or to convert this Security as provided in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and interest on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or
16
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in fully registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange except as provided in the Indenture, and the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, except as provided in this Security, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
All terms used in this Security that are defined in the Indenture shall
have the meanings assigned to them in the Indenture. The Company will furnish to
any Holder upon written request and without charge a copy of the Indenture.
[ASSIGNMENT FORM]
If you the holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
----------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code) and irrevocably appoint
--------------------------------------------------------------------------------
17
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
--------------------------------------------------------------------------
Date: _____________________ Your Signature:_______________________________
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee:________________________________
18
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms.
---------------
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is limited to $10,000,000, except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to Section 304, 305, 306,
1109 or 1203.
The Securities shall be known and designated as the "10.00% Senior
Subordinated Notes due September 30, 2000" of the Company. Their Stated
Maturity shall be September 30, 2000 and they shall bear interest at the rate of
10.00% per annum, from the date of original issuance of Securities pursuant to
this Indenture or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, as the case may be, payable semi-annually on
March 31 and September 30, commencing March 31, 1997, until the principal
thereof is paid or made available for payment. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will be paid
to the Person in whose name the Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest, which shall be March 15 or September 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date.
The principal of and interest by wire transfer of immediately
available funds to the accounts specified by the Holders thereof or, if no such
account is specified, by mailing a check to each such Holder's registered
address.
The Securities shall be prepayable as provided in Article Eleven.
The Securities shall be subject to sinking fund payments as provided
in Article Twelve.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Thirteen and shall be senior in right of
payment to Subordinated Indebtedness as provided in Article Ten.
Section 302. Denominations.
-------------
The Securities shall be issuable in registered form without coupons
and only in denominations of $1,000 and any integral multiple thereof.
19
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, any Vice Chairman, its President and Chief Executive
Officer or one of its Vice Presidents, under its corporate seal reproduced
thereon and attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall either at one time or from time to time pursuant
to such instructions as may be described therein authenticate and deliver such
Securities as in this Indenture provided and not otherwise. Such Company Order
shall specify the amount of Securities to be authenticated and the date on which
the original issue of Securities is to be authenticated, and shall certify that
all conditions precedent to the issuance of such Securities contained in this
Indenture have been complied with. The aggregate principal amount of Securities
Outstanding at any time may not exceed the amount set forth in Section 301,
except as provided in Section 306.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
20
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company in a Place of Payment, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of authorized
denominations. Until so exchanged the temporary Securities shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities.
Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at one of its offices or agencies
maintained pursuant to Section 1002 a register (the register maintained in such
office being herein sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Person responsible for the maintenance of the Security Register is referred to
herein as the "Security Registrar." The Trustee is hereby initially appointed
Security Registrar for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security at the
office or agency in a Place of Payment, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities, of any authorized denominations and
of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities, of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Security Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental
21
charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 304, 1109, 1203
or not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities during a period beginning at the opening of business
15 days before the day of the mailing of a notice of prepayment of Securities to
be prepaid under Section 1105 or Section 1203 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for prepayment in whole or in part, except the
unpaid portion of any Security being prepaid in part.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, together with
such other security or indemnity as may be reasonably required by the Trustee to
save it harmless, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, 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 upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security, subject to satisfaction of
the foregoing conditions.
Upon the issuance of any new Security under this Section, 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.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
22
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Security that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest. Payment of
interest on the Securities shall be made by wire transfer of immediately
available funds to the accounts specified by the Holders thereof or, if no such
account is specified, by mailing a check to each such Holder's registered
address.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder on such Date, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or Clause (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities
23
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
---------------------
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Section 307) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Section 309. Cancellation.
------------
All Securities surrendered for payment, prepayment, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Securities held by the Trustee shall be
disposed of in accordance with its customary procedures and a certificate of
disposition shall be delivered to the Company, unless, by a Company Order, the
Company shall direct the canceled Securities be returned to it.
Section 310. Computation of Interest.
-----------------------
24
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
----------------------------------------
This Indenture shall upon Company Request cease to be of further
effect (except that the Company's obligations under Sections 607 and 402 hereof
shall survive), and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when (1) all Securities theretofore authenticated and delivered (other than (A)
Securities that have been destroyed, lost or stolen and that have been replaced
or paid as provided in Section 306 and (B) Securities for whose payment money
has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for cancellation;
(2) the Company has paid or caused to be paid all other sums payable hereunder
by the Company; and (3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Section 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
-----------------
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or Article
Thirteen or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
25
(1) Default shall occur in the payment of interest on any Security
when the same shall have become due and such default shall continue for more
than 10 calendar days; or
(2) Default shall occur in the making of any required prepayment on
any of the Securities as provided in Section 1102 or sinking fund payment as
provided in Section 1201 or in the making of any other payment of the principal
of any Securities at the Stated Maturity; or
(3) Default shall be made in the payment of the principal of or
interest or premium on Indebtedness of the Company and its Subsidiaries
aggregating in excess of $5.0 million, as and when the same shall become due and
payable by the lapse of time, by declaration of acceleration, by call for
redemption or otherwise, and such default shall continue beyond the period of
grace, if any, allowed with respect thereto unless such default is being
contested in good faith by appropriate actions or proceedings; or
(4) Default shall occur in the observance or performance of any other
covenant of this Indenture which is not remedied within 30 calendar days after
the Company has received written notice thereof; or
(5) Any representation or warranty made by the Company herein, or made
by the Company in any statement or certificate furnished by the Company in
connection with the consummation of the issuance and delivery of the Securities
or furnished by the Company pursuant hereto, is untrue in any material respect
as of the date of the issuance or making thereof; or
(6) Any judgment, writ or warrant of attachment or any similar process
in an aggregate amount in excess of $5.0 million shall be entered or filed
against the Company or any Subsidiary or against any property or assets of
either and remain unpaid, unvacated, unbonded or unstayed (through appeal or
otherwise) for a period of 60 days after the date of entry or filing thereof; or
(7) The Company or any Subsidiary shall:
(A) generally not pay its debts as they become due or admit in
writing its inability to pay its debts generally as they become due;
(B) file a petition in bankruptcy or for reorganization or for the
adoption of an arrangement under the Federal Bankruptcy Code, or any
similar applicable bankruptcy or insolvency law, as now or in the
future amended (herein collectively called "Bankruptcy Laws"), or an
answer or other pleading admitting or failing to deny the material
allegations of such a petition or seeking, consenting to or
acquiescing in relief provided for under the Bankruptcy Laws;
(C) make an assignment of all or a substantial part of its
property for the benefit of its creditors;
26
(D) seek or consent to or acquiesce in the appointment of a
receiver, liquidator, custodian or trustee of it or for all or a
substantial part of its property;
(E) be subject to the entry of a court order, which shall not be
vacated, set aside or stayed within 45 days from the date of entry,
appointing a receiver, liquidator, custodian or trustee of it or for
all or a substantial part of its property;
(F) be subject to the institution against it of bankruptcy,
reorganization, arrangement or insolvency proceedings, or other
proceedings pursuant to the Bankruptcy Laws or any other proceedings
for judicial modification or alteration of the rights of creditors,
which proceedings are not dismissed within 60 days after such
institution or which otherwise result in the Company or such
Subsidiary being finally adjudicated a bankrupt or insolvent; or
(G) be subject to the assumption of custody or sequestration by a
court of competent jurisdiction of all or a substantial part of its
property, which custody or sequestration shall not be suspended or
terminated within 60 days from its inception.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
When any Event of Default described in paragraph (1) or (2) of Section
501 has occurred and is continuing, any holder of any Security may, and when any
Event of Default described in paragraphs (3) through (6), both inclusive, of
said Section 501 has occurred and is continuing, the Holder or Holders of a
majority in aggregate principal amount of the Securities at the time outstanding
may, by notice in writing, declare the entire principal and all interest accrued
on all Securities, to be, and all Securities shall thereupon become, forthwith
due and payable, without any presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived. When any Event of Default
described in paragraph (7) of Section 501 has occurred and is continuing, all of
the Securities, and all interest accrued thereon, shall automatically become
forthwith due and payable, without any presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived. Upon the Securities becoming
due and payable as a result of any Event of Default as aforesaid, the Company
will forthwith pay to the Holders of the Securities the entire principal of, and
interest accrued on, the Securities. No course of dealing on the part of any
holder of Securities, nor any delay or failure on the part of any holder of
Securities to exercise any of its rights, shall operate as a waiver of such
rights or otherwise prejudice such holder's rights, powers and remedies. The
Company further agrees to pay to the Holder or Holders of the Securities all
costs and expenses incurred by them in the collection or enforcement of any
Securities upon any default hereunder or thereon, including reasonable
compensation to such Holder's or Holders' attorneys for all services rendered in
connection therewith.
27
The provisions of this Section 502 are subject to the condition that if the
principal of and accrued interest on all or any outstanding Securities have been
declared immediately due and payable by reason of the occurrence of any Event of
Default, the Holders of a majority in aggregate principal amount of the
Securities then outstanding may within 90 days of the Securities becoming due
and payable, by written instrument filed with the Company, rescind and annul
such declaration and the consequences thereof, provided that at the time such
declaration is annulled and rescinded:
(1) no judgment or decree has been entered for the payment of any
monies due pursuant to the Securities or this Indenture;
(2) all arrears of interest upon all the Securities and all other sums
payable under the Securities and under this Indenture (except any principal or
interest on the Securities that has become due and payable solely by reason of
such declaration under this Section 502) shall have been duly paid;
(3) each and every default and Event of Default shall have been made
good, cured or waived pursuant to Section 513;
and provided further, that no such rescission and annulment shall extend to or
affect any subsequent Event of Default or impair any right consequent thereto.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if,
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 10 calendar days, or
(2) default is made in the payment of the principal of any
Security at the Maturity thereof, or
(3) default is made in the payment of any mandatory prepayment
required pursuant to Section 1102 when due, or
(4) default is made in the payment of any sinking fund payment
required pursuant to Section 1201 when due,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and, to the extent that payment of such interest shall
be legally enforceable, interest on any overdue principal
28
and on any overdue interest, at the rate or rates prescribed therefor in such
Securities and, in addition thereto, 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.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may, but shall not
be obligated to, institute a judicial proceeding for the collection of the sums
so due and unpaid, may prosecute such proceeding to judgment or final decree,
and may enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities, wherever situated.
If any event referred to in Section 503(1) through (4) with respect to
Securities or any other Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders of Securities by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to file and prove a claim for the
whole amount of principal and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary or
advisable in order to have claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements, and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such judicial proceeding,
and to collect and receive any moneys or other property payable or deliverable
on any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder 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 Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to
29
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and may be
a member of the creditors' committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
------------------------------
Any money 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 money on account of principal or interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal and interest, respectively; and
THIRD: The balance, if any, to the Company or to whomsoever may be
lawfully entitled to receive the same as a court of competent jurisdiction
may direct.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities;
30
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal and Interest.
----------------------------------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and (subject to Section 307) interest on such
Security on the Stated Maturity or Maturities expressed in such Security.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
31
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders 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.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 512. Control by Holders.
------------------
The Holders of at least a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities,
provided that:
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, expose the Trustee to personal liability or be
unduly prejudicial to Holders not joining therein, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
-----------------------
By Act delivered to the Company and the Trustee, the Holders of not less
than a majority in principal amount of the Outstanding Securities may on behalf
of the Holders of all the Securities waive any past default hereunder with
respect to such Securities and its consequences, except a default:
(1) in the payment of the principal of or interest on any
Security, or
32
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to waive any past default hereunder.
If a record date is fixed, the Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, whether or not such Holders remain Holders after such record
date; provided, that unless such consent of the holders of a majority in
principal amount of the Outstanding Securities shall have been obtained prior to
the date which is 90 days after such record date, any such waiver previously
given shall automatically and without further action by any Holder be canceled
and of no further effect.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
---------------------
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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Trustee, by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Securities, or by any Holder for the enforcement of the payment
of the principal of or interest on any Security on or after the Stated Maturity
expressed in such Security (or, in the case of prepayment on or after the
Prepayment Date).
Section 515. Waiver of Stay or 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 or
take the benefit or advantage of, any stay or extension law or any usury law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) 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 herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
33
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision of
this Indenture are specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture.
(b) In case 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 man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture; and
34
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 602. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder with respect
to Securities, the Trustee shall transmit by mail to all Holders of Securities,
as their names and addresses appear in the Security Register, notice of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default in the
payment of the principal or interest or in the payment of any prepayments
required hereunder or in the payment of any sinking fund payment on any
Security, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee of the board of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interests of the Holders of the
Securities. For the purpose of this Section, the term "default" means any event
-------
which is, or after notice or lapse of time or both would become, an Event of
Default.
Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein
35
specifically prescribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee or any Authenticating Agent shall not be accountable
for the use or application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company
36
with the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
Section 607. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities.
Section 608. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310 of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
37
Section 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) 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 in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
by giving written notice thereof to the Company. If the instrument of acceptance
by a successor Trustee required by Section 611 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities.
(c) The Trustee may be removed at any time with respect to the
Securities by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
38
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to any or all Securities, or (ii) subject to Section 514,
any Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to any or
all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the Securities and shall
comply with the applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities shall be appointed
by Act of the Holders of a majority in principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 611, any Holder who has
been a bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities and each appointment of a
successor Trustee with respect to the Securities to all Holders of Securities in
the manner provided in Section 106. Each notice of appointment shall include the
name of the successor Trustee with respect to the Securities and the address of
its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to the Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder, subject nevertheless to its
lien, if any, provided for in Section 607.
39
(b) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of Section 311 of the Trust Indenture Act regarding the collection of
such claims against the Company (or any such other obligor). A Trustee that has
resigned or been removed shall be subject to and comply with said Section 311 to
the extent required thereby.
Section 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents with respect to
the Securities (which may be an Affiliate of the Company) which shall be
authorized to act on behalf of the Trustee to authenticate Securities issued
upon registration of transfer or exchange or partial prepayment thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business and in good standing under the laws of the United States of
America, any State or the District of Columbia,
40
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of no less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for the Securities may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee for any
Securities may at any time terminate the agency of an Authenticating Agent for
such Securities by giving written notice thereof to such Authenticating Agent
and to the Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Securities with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment thereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
Except with respect to an Authenticating Agent appointed at the request of
the Company, the Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, pursuant to the
provisions of Section 607.
If an appointment with respect to the Securities is made pursuant to this
Section, the Securities may have endorsed thereon, in addition to the Trustee's
certificate of authentication, an alternative certificate of authentication in
the following form:
41
This is one of the Securities described therein referred to in the within-
mentioned Indenture.
Norwest Bank Minnesota, National Association, as
Trustee
By
---------------------------------
As Authenticating Agent
By
---------------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not more than 15 days after each Regular Record
Date, a list, in such form as such Trustee may reasonably require, of the
names and addresses of the Holders of the Securities as of such date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that if and so long as the Trustee is Security Registrar, no
such list shall be required.
Section 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
42
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
(a) Within 60 days after January 15 of each year, the Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act if and to
the extent and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 704. Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission. Delivery
of such reports to the Trustee is for informational purposes only and the
Trustee's receipt of such reports shall not constitute constructive notice of
any information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
43
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
(a) The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee the due and punctual payment of the principal of
and interest on all the Securities and the performance or observance of
every covenant of this Indenture on the part of the Company to be performed
or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
(b) For purposes of this Section, any Indebtedness that becomes an
obligation of the Company or any Subsidiary as a result of such transaction
shall be treated as having been incurred by the Company or such Subsidiary at
the time of such transaction.
Section 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such
44
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities. In the case of a lease, the predecessor Person shall not be released
from its obligations to pay the principal of and interest on the Securities. All
Securities issued by the successor Person shall in all respects have the same
legal priority as the Securities theretofore or thereafter authenticated, issued
and delivered in accordance with the terms of this Indenture.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of the Securities or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of the Securities; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities and to add
to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate
45
the administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(6) to add or change or eliminate any provisions of this Indenture as
shall be necessary or desirable in accordance with any amendments to the
Trust Indenture Act; or
(7) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action pursuant
to this clause (7) shall not adversely affect the interests of the Holders
of Securities in any material respect.
Section 902. Supplemental Indentures With Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon upon the prepayment thereof,
or change the method of determination of interest thereon, or change any
provisions with respect to prepayments pursuant to Article Eleven or
sinking fund payments pursuant to Article Twelve, or change any Place of
Payment where, or the coin or currency in which, any Security or impair the
right to institute suit for the enforcement of any such payment or the
provisions of this Indenture with respect to the subordination of the
Securities, in a manner adverse to the Holders, or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of
46
the Holder of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1008, or the deletion of
this proviso, in accordance with the requirements of Sections 611(b) and
901(7).
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
47
Section 907. Notice of Supplemental Indentures.
---------------------------------
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice to all Holders of such fact, setting forth in general terms
the substance of such supplemental indenture, in the manner provided in Section
106. Any failure of the Company to give such notice, or any defect therein,
shall not in any way impair or affect the validity of any such supplemental
indenture.
Section 908. Subordination Unimpaired.
------------------------
No supplemental indenture executed pursuant to this Article shall directly
or indirectly modify the provisions of Article Thirteen in any manner that might
alter the subordination of the Securities.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal and Interest.
---------------------------------
The Company shall pay the principal of and interest on the Securities on
the dates and in the manner provided in the Securities and this Indenture. An
installment of principal or interest shall be considered paid on the date it is
due if the Holders of the Securities receive the money sufficient to pay the
installment. The Company shall pay interest on overdue principal at the rate of
12.00% per annum; it shall pay interest, including post-petition interest in the
event of a proceeding under the Bankruptcy Laws, on overdue installments of
interest at the same rate to the extent lawful.
Section 1002. Company Existence; Maintenance of Office or Agency.
--------------------------------------------------
Subject to this Section 1002, the Company will 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 Subsidiary in accordance with the
respective organizational documents of each Subsidiary and the rights (statutory
and other), licenses and franchises of the Company and each Subsidiary;
provided, however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate existence of any Subsidiary, if
the Board of Directors shall determine in good faith (i) such preservation or
existence is not material to the conduct of business of the Company and (ii) the
loss of such right, license or franchise or the dissolution of such Subsidiary
does not have and is not likely to have a material adverse impact on the
Holders.
48
Section 1003. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of any of the principal of or interest on any of the
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee in writing of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it will, prior to each due date of any of the principal of or
interest on any Securities, deposit with a Paying Agent a sum sufficient to pay
the principal or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee in
writing of its action or failure so to act.
The Company will cause each Paying Agent for the Securities 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:
(1) hold all sums held by it for the payment of the principal of or
interest on the Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(2) give the Trustee written notice of any default by the Company (or
any other obligor upon the Securities) in the making of any payment of
principal or interest on the Securities; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums 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 by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums 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
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or interest on any
Security and remaining unclaimed for two years after such principal or interest
has become due and payable shall be paid to the
49
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; 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 respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in the Wall Street Journal or New York Times and an
Authorized Newspaper in the Borough of Manhattan in New York, New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 1004. Limitation on Dividends and Other Distributions.
-----------------------------------------------
The Company shall not declare or pay any dividend or make any distribution
on or in respect of any of its capital stock or to its stockholders (other than
dividends or distributions payable solely in its capital stock) or purchase,
redeem or otherwise acquire or retire for value any capital stock or any
warrants, rights or options (including any securities convertible into or
exercisable or exchangeable for such capital stock, but not including the
Securities or the Warrants) of the Company or any Subsidiary, provided, however,
that unless a default or an Event of Default has occurred and is continuing,
such provisions shall not prevent (i) the retirement of any shares of the
Company's capital stock by exchange for, or out of the proceeds of, the
substantially concurrent sale of other shares of its capital stock, (ii) the
purchase, redemption, retirement or other acquisition for value, at any time, of
the Common Stock using $25.0 million in cash and up to 650,000 shares of Common
Stock using shares of common stock of World Airways, $.001 par value per share,
of which the Company is the owner or (iii) any prepayment of the Securities
pursuant to the terms thereof; provided, further, that such provisions shall not
prevent the payment of any dividend within 60 days after the date of declaration
thereof, if at said date of declaration such payment complied with the
provisions of this limitation on dividends. The Company shall also be able to
repurchase, redeem, retire or otherwise acquire for value up to $5.0 million of
additional shares of Common Stock for every $15.0 million increase in Asset
Value at such time compared to the Asset Value as of September 12, 1996.
Section 1005. Stock Repurchases.
-----------------
Each Subsidiary shall be permitted to, directly or indirectly, repurchase,
redeem, retire or otherwise acquire for value any of its shares of capital stock
of any class or any warrants, rights, options to purchase or acquire any shares
of its capital stock.
Section 1006. Senior Indebtedness.
-------------------
The Company agrees that Senior Indebtedness shall not exceed $50.0 million.
50
Section 1007. Subordination.
-------------
The Company shall cause all future Subordinated Indebtedness to be
subordinated to the Securities in the same manner, on the same terms and to the
same extent as the Securities are subordinated to Senior Indebtedness pursuant
to Article Thirteen hereof, and the Company shall include such terms in any
agreement, note or instrument evidencing such future Subordinated Indebtedness.
Section 1008. Statement as to Compliance.
--------------------------
(a) The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement, which need not comply with Section
102, signed by the President or a Vice President and by the Treasurer, an
Assistant Treasurer, the Controller or an Assistant Controller of the Company,
stating as to each signer thereof, that
(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his supervision, and
(2) whether the officer knows of any defaults by the Company under
this Indenture throughout such year or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to
him and the nature and status thereof.
(b) The Company will deliver to the Trustee, within 30 days after the end
of each fiscal quarter of the Company, a written statement, which need not
comply with Section 102, signed by the President or a Vice President and by the
Treasurer, an Assistant Treasurer, the Controller or an Assistant Controller and
the Company, stating, as to each signer thereof, that the Company is in
compliance with Section 1006 and that no prepayment of the Notes is required
under Section 1102 hereof.
ARTICLE ELEVEN
PREPAYMENT OF SECURITIES
Section 1101. Optional Prepayment.
-------------------
The Securities may be prepaid at the election of the Company, in whole or
from time to time in part (in units of at least $250,000) at par, together with
accrued interest, to the Prepayment Date.
Section 1102. Mandatory Prepayment.
--------------------
51
If the Asset Value at the end of any fiscal quarter of the Company is less
than $70.0 million, then the Company shall prepay 50% of each of the Outstanding
Securities within 60 days of the end of such fiscal quarter. If the Asset Value
at the end of any fiscal quarter of the Company is less than $50.0 million, then
the Company shall prepay all of the Outstanding Securities within 60 days of the
end of such fiscal quarter.
If the Company sells any shares of common stock of InteliData Technologies
Corporation, as successor to US Order, Inc., 20% of the net proceeds (i.e.,
gross proceeds less direct costs associated with such sales) or 20% of the net
proceeds of each installment if such sale is by installment received by the
Company upon such sale will be used to prepay the Outstanding Securities
(rounded down to the lowest xxxxx which is divisible pro rata into the
Outstanding Securities) within 30 days or 30 days from an installment payment if
such sale is by installment. Upon written request by the Trustee, the Company
shall provide the Trustee with reasonable documentation of such sale within five
business days of the Company's receipt of such request.
Section 1103. Applicability of Article.
------------------------
Prepayment of Securities as permitted by any provision of this Indenture
shall be made in accordance with such provision and this Article.
Section 1104. Election to Prepay; Notice to Trustee.
-------------------------------------
The election of the Company to prepay any Securities pursuant to Section
1101 shall be evidenced by a Board Resolution. In case of any prepayment at the
election of the Company of less than all the Securities, the Company shall, at
least 60 days prior to the Prepayment Date fixed by the Company (unless a
shorter period shall be satisfactory to the Trustee), notify the Trustee of such
Prepayment Date and of the principal amount of Securities to be prepaid. In
case of any prepayment at the election of the Company of all of the Securities,
the Company shall, at least 45 days prior to the Prepayment Date fixed by the
Company (unless a shorter period shall be satisfactory to the Trustee), notify
the Trustee of such Prepayment Date.
Section 1105. Selection by Trustee of Securities to be Prepaid.
------------------------------------------------
If less than all the Securities are to be prepaid pursuant to Section 1101,
the Securities to be prepaid shall be prepaid from the Outstanding Securities
not previously called for prepayment pursuant to Section 1101, pro rata, and the
Trustee may provide for the selection for prepayment of portions (equal to
$1,000 or any integral multiple thereof) of the principal amount of Securities
of a denomination larger than $1,000.
The Trustee shall promptly notify the Company and the Security Registrar in
writing of the principal amount of the Securities to be prepaid.
52
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the prepayment of Securities shall relate, in the
case of any Securities prepaid or to be prepaid only in part, to the portion of
the principal amount of such Securities which has been or is to be prepaid.
Section 1106. Notice of Prepayment.
--------------------
Notice of prepayment shall be given by first-class mail, postage prepaid,
mailed not less than 10 business days prior to the Prepayment Date, to the
Trustee and to each Holder of Securities, at his address appearing in the
Security Register.
All notices of prepayment shall state:
(a) the Prepayment Date,
(b) if less than all the Outstanding Securities are to be
prepaid, the principal amounts of the Securities to be prepaid,
(c) that on the Prepayment Date the principal amount of the
Securities to be prepaid will become due and payable upon each such
Security to be prepaid and that (unless the Company shall default in
payment of such principal amounts) interest thereon will cease to accrue on
and after said date,
(d) the place or places where such Securities are to be
surrendered for payment of the principal amounts to be prepaid, and
(e) that the prepayment is for a sinking fund payment, if such is
the case.
Notice of prepayment of Securities to be prepaid at the election of the
Company shall be given by the Company or, at the Company's request received by
the Trustee at least 45 days prior to the Prepayment Date, by the Trustee in the
name and at the expense of the Company.
Section 1107. Deposit of Prepayment Price.
---------------------------
At or prior to 9:00 a.m. (New York City time) on any Prepayment Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in same day funds sufficient to pay
the principal amounts to be prepaid, and (except if the Prepayment Date shall be
an Interest Payment Date) accrued interest on, all the Securities or portions
thereof which are to be prepaid on that date.
Section 1108. Securities Payable on Prepayment Date.
-------------------------------------
53
Notice of prepayment having been given as aforesaid, the Securities so to
be prepaid shall, on the Prepayment Date, become due and payable in the
principal amounts to be prepaid therein specified, and from and after such date
(unless the Company shall default in the payment of the principal amounts to be
prepaid and accrued interest) such Securities shall cease to bear interest.
Upon surrender of any such Security for prepayment in accordance with said
notice, such Security shall be paid by the Company in the principal amounts to
be prepaid, together with accrued interest to the Prepayment Date; provided,
however, that installments of interest whose Maturity is on or prior to the
Prepayment Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Security called for prepayment shall not be so paid upon surrender
thereof for prepayment, the principal shall, until paid, bear interest from the
Prepayment Date at the rate borne by the Security.
Section 1109. Securities Prepaid in Part.
--------------------------
Any Security which is to be prepaid only in part shall be surrendered at an
office or agency of the Company maintained for that purpose pursuant to Section
1002 (with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security or
Securities, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unpaid portion of
the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUND
Section 1201. Sinking Fund.
------------
The Company shall prepay pursuant to a sinking fund and there shall become
due and payable 20% of the outstanding principal amount of the Outstanding
Securities, or such lesser amount as would constitute payment in full of the
Outstanding Securities on such date, on September 30, 1998 and September 30,
1999. No premium shall be payable in connection with any such sinking fund
payment.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Securities (other than any
previously called for prepayment or any sinking fund payment) and (2) may apply
as a credit Securities that have been
54
prepaid at the election of the Company (but not pursuant to Section 1102)
pursuant to the terms of such Securities in satisfaction of all or any part of
any sinking fund payment with respect to the Securities required to be made;
provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee for
prepayment through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
Section 1203. Prepayment of Securities for Sinking Fund.
------------------------------------------
Not less than 60 days prior to each sinking fund payment date for the
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment pursuant to
Section 1201, the portion thereof, if any, that is to be satisfied by payment of
cash and the portion thereof, if any, that is to be satisfied by delivering and
crediting Securities pursuant to Section 1202 and the basis for such credit and
will also deliver to the Trustee any Securities to be so delivered that have not
theretofore been delivered to the Trustee. Not less than 30 days before each
such sinking fund payment date, the Trustee shall cause notice of the prepayment
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1106. Such notice having been duly given, the
prepayment of such Securities shall be made upon the terms and in the manner
stated in Sections 1107, 1108 and 1109.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
Section 1301. Securities Subordinate to Senior Indebtedness.
---------------------------------------------
The Company covenants and agrees that anything in this Agreement or the
Securities to the contrary notwithstanding, the indebtedness evidenced by the
Securities is subordinate and junior in right of payment to all Senior
Indebtedness to the extent provided herein, and each holder of Securities, by
his acceptance thereof, likewise covenants and agrees to the subordination
herein provided and shall be bound by the provisions hereof. Senior
Indebtedness shall continue to be Senior Indebtedness and entitled to the
benefits of these subordination provisions irrespective of any amendment,
modification or waiver of any term of the Senior Indebtedness or extension or
renewal of the Senior Indebtedness, as long as such indebtedness,
notwithstanding any such amendment, modification or waiver, continues to meet
the definition of Senior Indebtedness.
In the event that the Company shall default in the payment of any principal
of (or premium, if any) or interest on any Senior Indebtedness when the same
becomes due and payable, whether at maturity or at a date fixed for prepayment
or by declaration of acceleration or otherwise, then, upon written notice of
such default to the Company by the holders of Senior Indebtedness or any trustee
therefor or representative thereof, unless and until such default shall
55
have been cured or waived or shall have ceased to exist, no direct or indirect
payment (in cash, property, securities, by set-off or otherwise) shall be made
or agreed to be made on account of the principal of or interest on any of the
Securities, or in respect of any prepayment, retirement, purchase or other
acquisition of any of the Securities.
In the event of:
(a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
relating to the Company, its creditors or its property,
(b) any proceeding for the liquidation, dissolution or other winding
up of the Company, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit of creditors, or
(d) any other marshalling of the assets of the Company,
all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall be
made to any holder of any of the Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), which would
otherwise (but for these subordination provisions) be payable or deliverable in
respect of the Securities shall be paid or delivered directly to the holders of
Senior Indebtedness in accordance with the priorities then existing among such
holders until all Senior Indebtedness (including any interest thereof accruing
after the commencement of any such proceedings) shall have been paid in full.
In the event of any such proceeding, after payment in full of all sums owing
with respect to Senior Indebtedness, the holders of the Securities, together
with the holders of any obligations of the Company ranking on a parity with the
Securities, shall be entitled to be paid from the remaining assets of the
Company the amounts at the time due and owing on account of unpaid principal of
and interest on the Securities and such other obligations before any payment or
other distribution, whether in cash, property or otherwise, shall be made on
account of any capital stock or any obligations of the Company ranking junior to
the Securities and such other obligations.
In the event that, notwithstanding the foregoing, any payment or
distribution of any character, whether in cash, securities or other property
(other than securities of the Company or
56
any other corporation provided for by a plan of reorganization or readjustment
the payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness evidenced by the
Securities, to the payment of all Senior Indebtedness at the time outstanding
and to any securities issued in respect thereof under any such plan of
reorganization or readjustment), or any Security shall be received by any Holder
in contravention of any of the terms hereof, such payment or distribution or
security shall be received in trust for the benefit of, and shall be paid over
or delivered and transferred to, the holders of the Senior Indebtedness at the
time outstanding in accordance with the priorities then existing among such
holders for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay all such Senior Indebtedness in full. In
the event of the failure of any Holder to endorse or assign any such payment,
distribution or security, each holder of Senior Indebtedness is hereby
irrevocably authorized to endorse or assign the same.
No present or future holder of any Senior Indebtedness shall be prejudiced
in the right to enforce subordination of the indebtedness evidenced by the
Securities by any act or failure to act on the part of the Company. Nothing
contained herein shall impair, as between the Company and the Holders of
Securities, the obligation of the Company to pay to such Holders the principal
of and interest on such Securities or prevent any Holder or the Trustee from
exercising all rights, powers and remedies otherwise permitted by applicable law
or hereunder upon a default or Event of Default hereunder, all subject to the
rights of the holders of the Senior Indebtedness to receive cash, securities or
other property otherwise payable or deliverable to the Holders.
Senior Indebtedness shall not be deemed to have been paid in full unless
the holders thereof shall have received cash, securities or other property equal
to the amount of such Senior Indebtedness then outstanding. Upon the payment in
full of all Senior Indebtedness, the Holders of Securities shall be subrogated
to all rights of any holders of Senior Indebtedness to receive any further
payments or distributions applicable to the Senior Indebtedness until the
indebtedness evidenced by the Securities shall have been paid in full, and such
payments or distributions received by such holders, by reason of such
subrogation, of cash, securities or other property which otherwise would be paid
or distributed to the holders of Senior Indebtedness, shall, as between the
Company and its creditors other than the holders of Senior Indebtedness, on the
one hand, and such holders, on the other hand, be deemed to be a payment by the
Company on account of Senior Indebtedness, and not on account of the Securities.
The provisions of this Section 1301 shall not impair any right, interests,
remedies or powers of any secured creditor of the Company in respect of any
security interest the creation of which is not prohibited by the provisions of
this Agreement.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
57
Section 1302. Trustee and Holders of Securities May Rely on Certificate of
------------------------------------------------------------
Liquidating Agent; Trustee May Require Further Evidence as to
-------------------------------------------------------------
Ownership of Senior Indebtedness; Trustee Not Fiduciary to
----------------------------------------------------------
Holders of Senior Indebtedness.
------------------------------
Upon any payment or distribution of assets of the Company referred to in
this Article Thirteen, the Trustee and the Holders shall be entitled to rely
upon an order or decree made by any court of competent jurisdiction in which a
dissolution or winding up or liquidation or reorganization or arrangement
proceedings are pending or upon a certificate of the trustee in bankruptcy,
receiver, assignee for the benefit of creditors or other Person making such
payment or distribution, delivered to the Trustee or to the Holders, for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Thirteen. In the absence of any such bankruptcy trustee, receiver, assignee or
other Person, the Trustee shall be entitled to rely upon a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a trustee
or representative on behalf of such holder) as evidence that such Person is a
holder of such Senior Indebtedness (or is such a trustee or representative). In
the event that the Trustee determines, in good faith, that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payments or distributions pursuant to this
Article Thirteen, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, as to the extent to which such Person is entitled to
participate in such payment or distribution, and as to other facts pertinent to
the rights of such Person under this Article Thirteen, and if such evidence is
not furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants and obligations as are specifically set
forth in this Article Thirteen, and no implied covenants or obligations with
respect to the holders of Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Indebtedness and, subject to the provisions of Section
601, the Trustee shall not be liable to any holder of Senior Indebtedness if it
shall in good faith pay over or deliver to Holders of Securities, the Company or
any other Person moneys or assets to which any holder of Senior Indebtedness
shall be entitled by virtue of this Article Thirteen or otherwise.
Section 1303. Payment Permitted If No Default.
-------------------------------
Nothing contained in this Article Thirteen or elsewhere in this Indenture,
or in any of the Securities, shall prevent (a) the Company at any time, except
during the pendency of any dissolution, winding up, liquidation or
reorganization proceedings referred to in, or under the conditions described in,
Section 1301, from making payments of the principal of or interest on the
Securities or (b) the application by the Trustee or any Paying Agent of any
moneys deposited
58
with it hereunder to payments of the principal of or interest on the Securities,
if the Trustee, such Paying Agent or Exchange Agent, as the case may be, did not
have the written notice provided for in Section 1304 by the times referred to
therein of any event prohibiting the making of such deposit or exchange, and the
Trustee, any Paying Agent or Exchange Agent shall not be affected by any notice
to the contrary received by it on or after such times.
Section 1304. Trustee Not Charged with Knowledge of Prohibition.
-------------------------------------------------
Anything in this Article Thirteen or elsewhere in this Indenture contained
to the contrary notwithstanding, the Trustee shall not at any time be charged
with knowledge of the existence of any facts that would prohibit the making of
any payment of money to or by the Trustee and shall be entitled conclusively to
assume that no such facts exist and that no event specified in Section 1301 has
happened, until the Trustee shall have received an Officers' Certificate to that
effect or notice in writing to that effect signed by or on behalf of the holder
or holders, or their representatives, of Senior Indebtedness who shall have been
certified by the Company or otherwise established to the reasonable satisfaction
of the Trustee to be such holder or holders or representatives or from any
trustee under any indenture pursuant to which such Senior Indebtedness shall be
outstanding; provided, however, that, if prior to the third Business Day
preceding the date upon which by the terms hereof any money becomes payable for
any purpose (including, without limitation, the payment of either the principal
of or interest on any Security), or in the event of the execution of an
instrument pursuant to Section 401 acknowledging satisfaction and discharge of
this Indenture, then if prior to the second Business Day preceding the date of
such execution, the Trustee or any Paying Agent shall not have received with
respect to such money the Officers' Certificate or notice provided for in this
Section 1304, then, anything herein contained to the contrary notwithstanding,
the Trustee or such Paying Agent shall have full power and authority to receive
such money and apply the same to the purpose for which they were received and
shall not be affected by the notice to the contrary which may be received by it
on or after such date. The Company shall give prompt written notice to the
Trustee and to the Paying Agent of any facts that would prohibit the payment of
money to or by the Trustee or any Paying Agent.
Section 1305. Trustee to Effectuate Subordination.
-----------------------------------
Each Holder of Securities by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination as between such Holder and holders of Senior
Indebtedness as provided in this Article and appoints the Trustee its attorney-
in-fact for any and all such purposes.
Section 1306. Rights of Trustee as Holder of Senior Indebtedness.
--------------------------------------------------
The Trustee shall be entitled to all the rights set forth in this Article
with respect to any Senior Indebtedness that may at the time be held by it, to
the same extent as any other holder of
59
Senior Indebtedness; provided, however, that nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder; and provided, further,
that nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
Section 1307. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if the Paying Agent were named
in this Article in addition to or in place of the Trustee; provided, however,
that Sections 1304 and 1306 shall not apply to the Company or any Affiliate of
the Company if the Company or such Affiliate acts as Paying Agent.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 1401. Immunity of Incorporators, Stockholders, Officers and Directors.
---------------------------------------------------------------
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by this Indenture or in any of the
Securities or implied therefrom; and that any and all such personal liability of
every name and nature, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants
60
or agreements contained in this Indenture or in any of the Securities or implied
therefrom are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Securities.
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
61
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
[SEAL] WORLDCORP, INC.
By:
------------------------------------------
X. Xxxxxxx Xxxxxxx, III
President and Chief Executive Officer
Attest:
---------------------------
Xxxxxx X. Xxxxxxxx
Secretary
[SEAL] NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
By:
------------------------------------------
Name:
Title:
Attest:
---------------------------
62
Commonwealth of Virginia
SS:
City of Xxxxxxx
On the ____ day of January, 1997 before me personally came X. Xxxxxxx
Xxxxxxx, III, to me known, who, being by me duly sworn, did depose and say that
he is President and Chief Executive Office, of WORLDCORP, INC., one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[SEAL]
------------------------------
Notary Public
State of
---------------
SS:
County of
--------------
On the _________ day of January, 1997, before me personally came
________________, to me known, who, being by me duly sworn, did depose and say
that he is ___________________________ of Norwest Bank Minnesota, National
Association, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporation's seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
[SEAL]
------------------------------
Notary Public
63
