Exhibit 4.28
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TRANS WORLD AIRLINES, INC.
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Trustee
INDENTURE
Dated as of April 21, 1998
$43,200,000
11 3/8% Senior Secured Notes due 2003
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TABLE OF CONTENTS
Page
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ARTICLE 1.
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1 Definitions.................................................. 1
Section 1.2 Rules of Construction........................................ 1
ARTICLE 2.
THE SECURITIES
Section 2.1 Designation, Form and Dating................................. 1
Section 2.2 Execution, Amount, Authentication and Delivery............... 2
Section 2.3 Registrar and Paying Agent................................... 4
Section 2.4 Paying Agent to Hold Payments In Trust....................... 5
Section 2.5 Securityholder Lists......................................... 6
Section 2.6 Transfer and Exchange........................................ 6
Section 2.7 Mutilated, Defaced, Destroyed, Lost and
Stolen Securities............................................ 7
Section 2.8 Treasury Securities.......................................... 8
Section 2.9 Temporary Securities......................................... 9
Section 2.10 Cancellation................................................. 9
Section 2.11 Defaulted Interest; Interest on Defaulted Principal.......... 10
Section 2.12 CUSIP Numbers................................................ 10
ARTICLE 3.
REDEMPTIONS
Section 3.1 Optional Redemption.......................................... 10
Section 3.2 Redemption Notice to Trustee................................. 11
Section 3.3 Selection of Securities to be Redeemed....................... 11
Section 3.4 Notice of Redemption......................................... 11
Section 3.5 Effect of Notice of Redemption............................... 12
Section 3.6 Deposit of Redemption Price.................................. 12
Section 3.7 Securities Redeemed in Part.................................. 12
Section 3.8 Mandatory Redemption......................................... 12
ARTICLE 4.
COVENANTS, REPRESENTATIONS AND WARRANTIES
Section 4.1 Payment of Securities........................................ 14
Section 4.2 Maintenance of Office or Agency.............................. 15
Section 4.3 Limitation on Dividends and Acquisition
of Common Stock.............................................. 15
Section 4.4 Corporate Existence.......................................... 16
Section 4.5 Payment of Taxes and Other Claims............................ 17
Section 4.6 Notices...................................................... 17
Section 4.7 Maintenance of Properties and Insurance...................... 18
Section 4.8 Default Notices and Compliance Certificates.................. 18
Section 4.9 SEC Reports.................................................. 19
Section 4.10 Waiver of Stay, Extension or Usury Laws...................... 20
Section 4.11 Amendment to Certain Agreements.............................. 20
Section 4.12 Title to Collateral and Limitation
on Liens; Sale of Aircraft; Total Loss
With Respect to Aircraft..................................... 20
Section 4.13 Books, Records, Access; Confidentiality...................... 23
Section 4.14 Security Interests........................................... 24
Section 4.15 Repurchase of Securities Upon a Change in Control............ 24
Section 4.16 Restrictions on Becoming an Investment Company............... 25
Section 4.17 Listing...................................................... 25
ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.1 Covenant Not to Consolidate, Merge,
Convey or Transfer Except Under Certain Conditions........... 25
Section 5.2 Successor Person Substituted................................. 26
Section 5.3 Limitation on Lease of Properties............................ 27
ARTICLE 6.
DEFAULT AND REMEDIES
Section 6.1 Events of Default............................................ 27
Section 6.2 Acceleration................................................. 29
Section 6.3 Other Remedies............................................... 29
Section 6.4 Waiver of Past Defaults...................................... 30
Section 6.5 Control by Majority.......................................... 30
Section 6.6 Limitation on Suits.......................................... 30
Section 6.7 Rights of Holders to Receive Payment......................... 31
Section 6.8 Collection Suit by Trustee................................... 31
Section 6.9 Trustee May File Proofs of Claim............................. 31
Section 6.10 Application of Proceeds...................................... 32
Section 6.11 Undertaking for Costs........................................ 33
Section 6.12 Restoration of Rights on Abandonment of Proceedings.......... 33
Section 6.13 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default........................................ 34
ARTICLE 7.
TRUSTEE
Section 7.1 Duties of Trustee............................................ 34
Section 7.2 Rights of Trustee............................................ 35
Section 7.3 Individual Rights of Trustee................................. 36
Section 7.4 Trustee's Disclaimer......................................... 36
Section 7.5 Notice of Defaults........................................... 36
Section 7.6 Reports by Trustee to Holders................................ 36
Section 7.7 Compensation and Indemnity................................... 36
Section 7.8 Replacement of Trustee....................................... 37
Section 7.9 Successor Trustee by Merger, etc............................. 38
Section 7.10 Eligibility; Disqualification................................ 38
Section 7.11 Preferential Collection of Claims Against Company............ 39
ARTICLE 8.
DISCHARGE OF INDENTURE
Section 8.1 Termination of Company's Obligations......................... 39
Section 8.2 Application of Trust Money................................... 40
Section 8.3 Repayment to Company......................................... 41
Section 8.4 Reinstatement................................................ 41
ARTICLE 9.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Without Consent of Holders................................... 42
Section 9.2 With Consent of Holders...................................... 42
Section 9.3 Compliance with Trust Indenture Act.......................... 43
Section 9.4 Revocation and Effect of Consents............................ 43
Section 9.5 Notation on or Exchange of Securities........................ 44
Section 9.6 Trustee to Sign Amendments, etc.............................. 44
Section 9.7 Effect of Supplement and/or Amendment........................ 44
ARTICLE 10.
SECURITY
Section 10.1 Other Operative Documents.................................... 45
Section 10.2 Opinions, Certificates and Appraisals........................ 45
Section 10.3 Authorization of Actions to be Taken by the
Trustee Under the Operative Documents........................ 46
Section 10.4 Payment of Expenses.......................................... 46
Section 10.5 Authorization of Receipt of Funds by the Trustee
Under the Operative Documents................................ 47
ARTICLE 11.
MISCELLANEOUS
Section 11.1 Conflict with Trust Indenture Act of 1939.................... 47
Section 11.2 Notices; Waivers............................................. 47
Section 11.3 Communications by Holders with Other Holders................. 48
Section 11.4 Certificate and Opinion as to Conditions Precedent........... 48
Section 11.5 Statements Required in Certificate or Opinion................ 49
Section 11.6 Rules by Trustee, Paying Agent, Registrar.................... 50
Section 11.7 Holidays..................................................... 50
Section 11.8 Governing Law; Waiver of Jury Trial.......................... 50
Section 11.9 No Adverse Interpretation of Other Agreements................ 50
Section 11.10 No Recourse Against Others................................... 51
Section 11.11 Benefits of Indenture and the Securities Restricted.......... 51
Section 11.12 Successors and Assigns....................................... 51
Section 11.13 Counterpart Originals........................................ 51
Section 11.14 Severability................................................. 51
Section 11.15 Effect of Headings........................................... 52
ARTICLE 12.
RELEASE OF COLLATERAL
Section 12.1 Release of Collateral........................................ 52
APPENDIX I Definitions Appendix
APPENDIX II Rule 144A/Regulation S Appendix (including forms of
11 3/8% Senior Secured Note as Exhibits 1 and 2
thereto)
EXHIBIT A Form of Aircraft Mortgage and Security Agreement
INDENTURE dated as of April 21, 1998 between TRANS WORLD AIRLINES,
INC., a Delaware corporation (the "Company"), and FIRST SECURITY BANK,
NATIONAL ASSOCIATION, a national banking association, as Trustee (the
"Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Company's 11 3/8%
Senior Secured Notes due 2003 (the "Initial Securities") and, if and when
issued pursuant to a resale of Initial Securities, the Company's 11 3/8%
Senior Secured Notes due 2003 (the "Resale Securities") and, if and when
issued pursuant to a registered exchange for Initial Securities or Resale
Securities, the Company's 11 3/8% Senior Secured Notes due 2003 (the
"Exchange Securities") and, if and when issued pursuant to a private
exchange for Initial Securities, the Company's 11 3/8% Senior Secured Notes
due 2003 (the "Private Exchange Securities" and, together with the Resale
Securities, the Exchange Securities and the Initial Securities, the
"Securities").
ARTICLE 1.
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1 Definitions.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to such terms in Section 1 of the Definitions
Appendix attached hereto as Appendix I, which shall be a part of this
Indenture as if fully set forth in this place.
Section 1.2 Rules of Construction.
The rules of construction for this Indenture are set forth in Section
2 of the Definitions Appendix.
ARTICLE 2.
THE SECURITIES
Section 2.1 Designation, Form and Dating.
Provisions relating to the Initial Securities, the Resale Securities,
the Private Exchange Securities and the Exchange Securities are set forth
in the Rule 144A/Regulation S Appendix attached hereto as Appendix II (the
"Rule 144A Appendix") which is hereby incorporated in and expressly made
part of this Indenture. The Initial Securities and the Resale Securities
and the Trustee's certificate of authentication with respect to each
thereof shall be substantially in the form of Exhibit 1 to the Rule 144A
Appendix (with such appropriate insertions, omissions, substitutions and
other variations as are required by this Indenture) and are hereby
incorporated in and expressly made a part of this Indenture. The Exchange
Securities, the Private Exchange Securities, and the Trustee's certificates
of authentication shall be substantially in the form of Exhibit 2 to the
Rule 144A Appendix (with such appropriate insertions, omissions,
substitutions and other variations as are required by this Indenture) and
are hereby incorporated in and expressly made a part of this Indenture.
The Securities may have imprinted or otherwise reproduced thereon such
notations, legends or endorsements, not inconsistent with the provisions of
this Indenture, as may be required to comply with any law or with any rules
or regulations pursuant thereto, or with the rules of any securities market
in which the Securities are admitted to trading, or to conform to general
usage. The Company shall approve the form of the Securities and any
notation, legend or endorsement on them. Each Security shall be dated the
date of its authentication and shall bear interest from the applicable date
set forth in the form of Security and shall be payable, unless previously
Tendered, on the dates as specified on the face of the form of the
Security.
The Person in whose name any Security is registered at the close of
business on any Record Date with respect to any Interest Payment Date shall
be entitled to receive the interest and Special Interest, if any, payable
on such Interest Payment Date to the extent provided by such Security,
except if and to the extent the Company shall default in the payment of the
interest or Special Interest due on such Interest Payment Date, in which
case defaulted interest or Special Interest, as the case may be, shall be
paid to the Person in whose name the Outstanding Security is registered at
the close of business on the subsequent record date (which shall be not
less than five (5) Business Days prior to the date of payment of such
defaulted interest) established by notice given by mail by or on behalf of
the Company to the Holders of Securities not less than fifteen (15) days
preceding such subsequent record date (a "Special Record Date").
Section 2.2 Execution, Amount, Authentication and Delivery.
The Securities shall be signed for the Company by the manual or
facsimile signatures of an Officer and a Certifying Officer. The Company's
seal shall be affixed to or reproduced on the Securities. Typographical or
other errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security
which has been duly authenticated and delivered by the Trustee.
If an officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $43,200,000
except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities pursuant
to Sections 2.6, 2.7, 2.9, 4.15, or 9.5 or in conjunction with a Registered
Exchange Offer or any Private Exchange (as such terms are defined in the
Rule 144A Appendix).
The Securities shall be known and designated as the "11 3/8% Senior
Secured Notes due 2003" of the Company. Their Stated Maturity shall be
April 15, 2003, and, subject to the increases in the rate of interest set
forth in Section 4.12 hereof and in the Securities, they shall bear
interest at the rate of 11 3/8% per annum, from April 21, 1998 or from the
most recent Interest Payment Date to which interest and Special Interest,
if any, have been paid or duly provided for, as the case may be, payable
semi- annually in arrears on April 15 and October 15, commencing October
15, 1998, until the principal thereof is paid or made available for
payment.
Subject to the limits set forth in the second preceding paragraph of
this Indenture, the Trustee shall authenticate Securities for original
issue upon written order of the Company signed by an Officer and by a
Certifying Officer of the Company. The order shall specify the amount of
Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated, shall provide instructions with respect
to the delivery thereof and shall be accompanied by the documents specified
in Sections 10.2 and 11.4 and by the following (provided, however, that the
Trustee shall be authorized conclusively to rely upon the documents
specified in Section 11.4):
(a) the grant to the Trustee, by assignment, pledge, or otherwise
pursuant to the Mortgage, of a security interest in the Collateral;
(b) Officers' Certificates or other satisfactory confirmation (i)
with respect to the Mortgage and the Collateral, that the Company is the
legal and beneficial owner of the Collateral, free and clear of all Liens
except Permitted Liens; and (ii) describing the actions taken to make,
obtain and accomplish all necessary filings, confirmations and
identifications referred to in Section 4.14 hereof;
(c) compliance with all applicable provisions of Sections 4.12 and
4.14 hereof;
(d) an Officers' Certificate confirming all representations and
warranties of the Company contained in this Indenture and the other
Operative Documents as of the date of authentication;
(e) an Officers' Certificate containing representations and warranties
of the type usual and customary to the issuance of the Securities such as,
but not limited to, representations regarding due authorization of this
Indenture; due authorization of the issuance and delivery of the
Securities; that the Securities, when so issued and delivered against
delivery of the Aircraft under the Aircraft Sale Agreement will be duly and
validly issued, and constitute valid and binding obligations of the
Company, enforceable in accordance with their terms; that no consent,
approval or authorization of, or designation, declaration, or filing with,
any governmental authority or any other person or entity is required of the
Company in connection with the execution and delivery of this Indenture or
the issuance and delivery of the Securities; and that the Securities have
been registered under the Securities Act or that registration is not
required in connection with the offer, issuance and delivery of the
Securities;
(f) an Opinion of Counsel to the effect that the Company has the
requisite corporate power and authority to execute, deliver and perform its
obligations under this Indenture and the other Operative Documents; that
the Securities have been duly authorized and validly issued; and that the
offer and issuance of the Securities have been registered or will be exempt
from the registration requirements under the Securities Act; and
(g) execution and delivery by the Company of the Securities and by all
parties thereto of this Indenture and all other Operative Documents;
provided, however, that any Securities in fact authenticated by the Trustee
upon written order of the Company as set forth in the first sentence of
this paragraph shall be deemed to have been duly authenticated hereunder
and to constitute an enforceable contractual obligation of the Company and
shall be entitled to all the benefits of this Indenture and the other
Operative Documents equally and proportionately with any and all other
Securities duly authenticated and delivered hereunder, in each case,
notwithstanding any failure of the Company to deliver any of the documents
specified in Sections 10.2 and 11.4 or above in this sentence.
The Securities shall be issuable only in registered form, without
coupons, in denominations of $1,000 and any integral multiple thereof,
except that the Global Securities may be issued in a different
denomination.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by
such agent. An authenticating agent has the same rights as an Agent to
deal with the Company, any guarantor or any Affiliate of the Company.
Section 2.3 Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities
eligible for transfer or exchange may be presented for registration of
transfer or for exchange ("Registrar") and an office or agency where
Securities may be presented for payment or repurchase ("Paying Agent").
The Registrar shall keep a register of the Securities and of their transfer
and exchange ("Register"). Such Register shall be in written form in the
English language or any other form capable of being converted into such
form within a reasonable time. At all reasonable times such Register shall
be open for inspection by the Trustee. The Company may have one or more
co-Registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent.
The Company may enter into an appropriate agency agreement with any
Agent not a party to this Indenture. Such agency agreement shall implement
the provisions of this Indenture that relate to such Agent. The Company
shall notify the Trustee of the name and address of any such Agent. If the
Company fails to maintain a Registrar or Paying Agent, the Trustee shall
act as such.
The Company initially appoints the Trustee as Registrar and Paying
Agent.
Section 2.4 Paying Agent to Hold Payments In Trust.
Each Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all Payments held by the Paying Agent for
the payment of principal of, repurchase or redemption price, if any, of,
interest on, and Special Interest, if any, with respect to, the Securities
(whether such Payment has been paid to it by the Company or any other
obligor on the Securities), and shall promptly notify the Trustee of any
default by the Company (or any other obligor on the Securities) in making
any such Payment. The Company at any time may require a Paying Agent to
Pay all Payments held by it to the Trustee and account for any funds
disbursed and the Trustee may at any time during the continuance of any
payment default, upon written request to a Paying Agent, require such
Paying Agent to Pay all Payments held by it to the Trustee and to account
for any Payments distributed. Upon doing so the Paying Agent shall have no
further liability for the Payments.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of, repurchase or redemption
price, if any, of, interest on, or Special Interest, if any, with respect
to, any of the Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto Payments sufficient to pay the principal,
repurchase or redemption price, if any, of, interest or Special Interest,
if any, so becoming due until such Payments shall be Paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the
Trustee of such action or any failure so to act.
The Company will, on or before each due date for the payment of the
principal of, repurchase or redemption price, if any, of, interest on, or
Special Interest, if any, with respect to any of the Securities, deposit
with a Paying Agent Payments (in same day funds) sufficient to pay the
principal, repurchase or redemption price, if any, of, interest or Special
Interest, if any, so becoming due, such Payments to be held in trust for
the benefit of the Persons entitled to such principal, repurchase or
redemption price, if any, of, interest, or Special Interest, if any, and
(unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of such action or any failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will:
(a) hold all Payments received by it as such agent for the payment of
the principal of, repurchase or redemption price, if any, of, interest on,
or Special Interest, if any, with respect to the Securities (whether such
Payments have been paid to it by the Company or by any other obligor on the
Securities) in trust for the benefit of the Persons entitled thereto until
such Payments shall be paid to such Persons or otherwise disposed of as
herein provided;
(b) promptly give the Trustee notice of any failure by the Company (or
any other obligor upon the Securities) to make any payment of the principal
of, repurchase or redemption price, if any, of, interest on, or Special
Interest, if any, with respect to, the Securities when the same shall be
due and payable; and
(c) at any time during the continuance of any such failure, upon the
written request of the Trustee, forthwith pay to the Trustee all Payments
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, Pay,
or direct any Paying Agent to Pay, to the Trustee all Payments held in
trust by the Company or such Paying Agent, such Payments to be held by the
Trustee upon the same trusts as those upon which such Payments were held by
the Company or such Paying Agent; and, upon such Payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such Payments held by it as Paying Agent.
Any Payments deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of,
redemption or repurchase price, if any, of, interest on or Special
Interest, if any, with respect to, any Security and unclaimed for two (2)
years after such principal, redemption, repurchase price, interest or
Special Interest has become due and payable shall be paid to the Company on
its request, or (if then held by the Company) shall be discharged from such
trust, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof and all liability of the Trustee or such
Paying Agent with regard to such Payments, and all liability of the Company
as trustee thereof, shall thereupon cease.
Section 2.5 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Securityholders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee on or before each Interest Payment Date and at such
other times as the Trustee may request in writing a list in such form and
as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders.
Section 2.6 Transfer and Exchange.
When Securities are presented to the Registrar or a co-Registrar with
a request to register the transfer or to exchange them for an equal
principal amount of Securities of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met. To permit registrations of
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar's request. All Securities
presented for registration of transfer, exchange, redemption or payment
shall (if so required by the Company or the Trustee) be duly endorsed by,
or be accompanied by a written instrument or instruments of transfer in
form satisfactory to the Company and the Trustee, duly executed by the
Holder or his attorney duly authorized in writing. The Company may require
payment of a sum sufficient to pay all taxes, assessments or other
governmental charges in connection with any registration of transfer or
exchange, but not for any exchange pursuant to Sections 2.9, 3.7, 4.15 or
9.5 or any other Tender not involving any transfer of Securities (other
than to the Company). No service charge shall be made for any such
transaction.
In the case of any Security which is Tendered in part only, upon such
Tender the Company shall execute and the Trustee shall authenticate and
make available for delivery to the Holder thereof, without service charge,
a new Security or Securities of any authorized denomination as requested by
such Holder in aggregate principal amount equal to the non-Tendered portion
of the principal of such Security. No Securities will be issued in
denominations of less than $1,000 upon tender of the Securities.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Company, evidencing the same debt of the
same series and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such transfer or exchange.
Section 2.7 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security shall become mutilated,
defaced or be apparently destroyed, lost or stolen, subject to compliance
with the following sentence and in the absence of notice to the Company or
the Trustee that such Security has been acquired by a bona fide purchaser,
the Company shall execute, and the Trustee shall authenticate and deliver,
a new Security, bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated or defaced Security, or in lieu
of and substitution for the Security so apparently destroyed, lost or
stolen. In every case the applicant for a substitute Security shall
furnish to the Company and to the Trustee and any agent of the Company or
the Trustee such security or indemnity as may be reasonably required by
them to indemnify and defend and to save each of them harmless and, in
every case of destruction, loss or theft, evidence to their satisfaction of
the apparent destruction, loss or theft of such Security and of the
ownership thereof.
Upon the issuance of any substitute Security pursuant to the preceding
paragraph, the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith. In case any Security which has matured or is
about to mature, or has been tendered for repurchase pursuant to any of the
provisions hereof (as evidenced by an irrevocable written notice from the
Holder to the Company and the Trustee), shall become mutilated or defaced
or be apparently destroyed, lost or stolen, the Company may, instead of
issuing a substitute Security, pay or authorize the payment of such
Security (without surrender of such Security except in the case of a
mutilated or defaced Security), as applicable, if the applicant for such
payment shall furnish to the Company and to the Trustee and any agent of
the Company or the Trustee such security or indemnity as any of them may
reasonably require to save each of them harmless from all risks, however
remote, and, in every case of apparent destruction, loss or theft, the
applicant shall also furnish to the Company and the Trustee and any agent
of the Company or the Trustee evidence to their satisfaction of the
apparent destruction, loss or theft of such Security and of the ownership
thereof.
Every substitute Security issued pursuant to the provisions of this
Section by virtue of the fact that any Security is apparently destroyed,
lost or stolen shall constitute an additional contractual obligation of the
Company, whether or not the apparently destroyed, lost or stolen Security
shall be at any time enforceable by anyone and shall be entitled to all the
benefits of (but shall also be subject to all the limitations of rights set
forth in) this Indenture equally and proportionately with any and all other
Securities duly authenticated and delivered hereunder. Every substitute
Security issued pursuant to the provisions of this Section by virtue of the
fact that any Security is mutilated or defaced shall constitute an
additional contractual obligation of the Company and shall be entitled to
all the benefits of (but shall also be subject to all the limitations of
rights set forth in) this Indenture equally and proportionately with any
and all other Securities of the same series duly authenticated and
delivered hereunder. All Securities shall be held and owned upon the
express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated or defaced or apparently destroyed, lost or stolen Securities and
shall preclude any and all other rights or remedies notwithstanding any law
or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities
without their surrender.
Section 2.8 Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have given or concurred in any amendment, request, demand,
authorization, direction, notice, consent or waiver under this Indenture or
any other Operative Document, Securities owned by the Company (including
Securities Tendered), an Affiliate of the Company, any other obligor upon
the Securities, any Affiliate of such obligor upon the Securities or any
Person who has given or concurred in any such amendment, request, demand,
authorization, direction, notice, consent or waiver under the direction of,
by agreement with, or as a condition or in consideration of any exchange
offer by or transfer of such Person's Securities to the Company, an
Affiliate of the Company, any other obligor, any Affiliate of such obligor
or any such Person, shall be disregarded and deemed not to be Outstanding
for the purpose of any such determination, except that, for the purposes of
determining whether the Trustee shall be protected in relying on any such
amendment, request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee that neither the Company nor any such other obligor,
Affiliate or Person is affiliated with the pledgee or any Affiliate of the
pledgee and that the pledgee has the present right (subject to no contrary
obligation or understanding) so to act with respect to the Securities on
the basis of its best interests as a Holder independently of any direction
by or interest of the Company. In case of a dispute as to such right, the
Trustee in good faith shall be entitled to rely upon the advice of counsel,
including counsel for the Company. Upon request of the Trustee, the
Company shall promptly furnish to the Trustee a certificate of a Certifying
Officer listing and identifying all Securities, if any, known by the
Company to be owned or held by or for the account of any of the above-
described Persons; and subject to Sections 7.1 and 7.2 herein, the Trustee
shall be entitled to accept such certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination. The
Company shall not, directly or indirectly, pay or cause to be paid any
remuneration, whether by way of supplemental or additional interest, fee or
otherwise, or grant any additional security, to any Holder of Securities as
consideration for or as an inducement to giving or concurring in any
amendment, request, demand, authorization, direction, notice, consent or
waiver under this Indenture or any other Operative Document unless such
remuneration is concurrently paid, or such security is concurrently
granted, as the case may be, on the same terms ratably to the Holders of
all Securities then Outstanding (regardless of whether any such Holder has
given or concurred in such amendment, request, demand, authorization,
direction, notice, consent or waiver under this Indenture or any other
Operative Document).
For purposes of this Section and without limiting the generality of
the foregoing, Securities which are subject to a binding contract or
irrevocable tender offer (including an offer which is in any way
conditioned upon or simultaneous with, or requires as a condition precedent
(whether by contract or otherwise) or which cannot be effected without, the
agreement or consent of the transferor to any amendment, request, demand,
authorization, direction, notice, consent or waiver hereunder) pursuant to
which ownership (direct or indirect) is to be transferred (including for
example, Securities tendered to the Company or any other Person in an
exchange transaction) shall be deemed owned by such transferee, and
therefore, any such simultaneous agreement or consent by the transferor
shall be invalid.
Section 2.9 Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare, and, upon written order of the Company, the Trustee shall
authenticate, temporary Securities in any authorized denominations.
Temporary Securities shall be substantially in the form of definitive
Securities of the same series but may have variations that the Company
reasonably considers appropriate and necessary for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate and deliver definitive Securities in exchange for temporary
Securities. Until so exchanged, the temporary Securities shall be entitled
to the same benefits under this Indenture as definitive Securities of the
same series.
Section 2.10 Cancellation.
The Company may at any time deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange
(including without limitation, Initial Securities exchanged for Exchange
Securities, Private Exchange Securities or both), repurchase or payment.
All Securities purchased pursuant to any Offer to Purchase shall be
canceled. The Trustee and no one else shall cancel all Securities
surrendered for transfer, exchange, repurchase or cancellation. The
Company may not issue new Securities to replace Securities it has paid
(upon Tender or otherwise) or which have been delivered to the Trustee for
cancellation. The Trustee shall destroy all canceled Securities and, if
requested, deliver a certificate of such destruction to the Company. If
the Company shall acquire any of the Securities, such acquisition shall not
operate as a satisfaction of the indebtedness represented by such
Securities unless and until the same are delivered to the Trustee for
cancellation.
Section 2.11 Defaulted Interest; Interest on Defaulted Principal.
If the Company defaults in a payment of interest on, or Special
Interest, if any, with respect to, the Securities, it shall pay the
defaulted interest, plus interest on the defaulted interest or Special
Interest, as the case may be, at the rate then borne on the Securities to
the extent permitted by law and the terms thereof, to the persons who are
Securityholders on a subsequent Special Record Date. The Company shall fix
the Special Record Date and payment date. At least fifteen (15) days
before the Special Record Date, the Company shall mail to each
Securityholder a notice that states the Special Record Date, the payment
date and the amount of defaulted interest or Special Interest, as the case
may be, to be paid. If the Company defaults in the payment of principal on
the Securities (whether on acceleration, at maturity, upon tender for
repurchase, or otherwise), it shall pay interest on such defaulted
principal at the rate then borne by the Securities to the Trustee upon
demand. The Trustee shall apply any such payment in accordance with the
provisions of Section 6.10.
Section 2.12 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use) and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided, however, that
any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and any
such redemption shall not be affected by any defect in or omission of such
numbers.
ARTICLE 3.
REDEMPTIONS
Section 3.1 Optional Redemption.
The Securities Outstanding shall not be subject to redemption in whole
or in part at the option of the Company prior to April 15, 2001. On or
after April 15, 2001, the Securities may be redeemed at any time in whole
or in part (in any integral multiple of $1,000) by the Company at its sole
option at redemption prices (expressed as a percentage of principal amount)
as set forth below during the twelve-month periods beginning April 15 of
the years shown below, plus in each case an amount equal to accrued and
unpaid interest and Special Interest, if any, with respect to, the
Securities to and including the redemption date:
Redemption
Year Price
---- -----
2001 104.550%
2002 102.275%
Section 3.2 Redemption Notice to Trustee.
If the Company elects to redeem Securities as provided in Section 3.1,
it shall notify the Trustee of the redemption date, the principal amount of
Securities and all other information needed for the notice to be given by
the Trustee pursuant to Section 3.4.
The Company shall give the notice provided for in this Section at
least ten (10) days (unless a shorter notice shall be satisfactory to the
Trustee) prior to the date the Trustee must give notice pursuant to Section
3.4.
Section 3.3 Selection of Securities to be Redeemed.
If less than all the Securities are to be redeemed, the Trustee shall
select the Securities to be redeemed on either a pro rata basis or by lot.
The Trustee shall make the selection from Securities outstanding not
previously called for redemption. The Trustee may select for redemption
portions of the principal of Securities that have denominations larger than
$1,000. Securities and portions of them it selects shall be in amounts of
$1,000 or whole multiples of $1,000. Provisions of this Indenture that
apply to Securities called for redemption also apply to portions of
Securities called for redemption.
Section 3.4 Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail by first-class mail a notice of redemption to each
Holder whose Securities are to be redeemed.
The notice shall identify the Securities and the principal amount
thereof to be redeemed and shall state:
(a) the principal amount of each Security held by each such
Holder to be redeemed;
(b) the redemption date;
(c) the redemption price (including the amount of accrued and
unpaid interest and Special Interest, if any, to be paid on the
Securities called for redemption);
(d) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
redemption date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued;
(e) the name and address of the Paying Agent;
(f) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(g) that, unless the Company defaults in making the redemption
payment, interest on the Securities to be redeemed ceases to accrue on
and after the redemption date and the only remaining right of the
Holders of such Securities is to receive payment of the redemption
price upon surrender to the Paying Agent of the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense.
Section 3.5 Effect of Notice of Redemption.
Once a notice of redemption is mailed, Securities called for
redemption become due and payable on the redemption date at the redemption
price and, on and after such date (unless the Company shall default in the
payment of the redemption price), such Securities shall cease to bear
interest. Upon surrender to the Paying Agent, such Securities shall be
paid at the redemption price plus accrued interest and Special Interest, if
any, to the redemption date.
Section 3.6 Deposit of Redemption Price.
On or before 10:00 a.m., Eastern Time, on the redemption date, the
Company shall deposit with the Paying Agent money in funds immediately
available on the redemption date sufficient to pay the redemption price of
and accrued interest on and Special Interest, if any, with respect to, all
Securities to be redeemed on that date.
Section 3.7 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security equal in principal amount
to the unredeemed portion of the Security surrendered.
Section 3.8 Mandatory Redemption.
Subject to the other provisions of this Section 3.8, the Company
shall, until all the Securities are paid or payment thereof has been
provided for, deposit in accordance with Section 3.6, at least one Business
Day prior to October 15 in each year, commencing October 15, 2000 (each
such date being hereinafter referred to as a "Mandatory Redemption Date"),
an amount in cash sufficient to redeem an aggregate principal amount of
Securities (the "Mandatory Redemption Amount") equal to $1,840,000 on
October 15, 2000 and $1,838,000 on each of October 15, 2001 and October 15,
2002 (or, if the aggregate principal amount of Securities Outstanding on
any such Mandatory Redemption Date is less than the principal amount
required to so be redeemed, then all the Outstanding Securities shall be
redeemed on such date), at a redemption price (expressed as a percentage of
the aggregate principal amount of Securities Outstanding) of 100% plus
accrued and unpaid interest and Special Interest, if any, to the Mandatory
Redemption Date (subject to the right of holders of record on the relevant
record date to receive interest and Special Interest, if any, due on the
relevant Interest Payment Date). Each such deposit shall be applied to the
redemption of Securities on such Mandatory Redemption Date as herein
provided. The Trustee shall, on or before the thirtieth day prior to such
Mandatory Redemption Date (but not sooner than 45 days before such date),
select, in the manner provided in Section 3.3, the Securities to be
redeemed on the next Mandatory Redemption Date and cause notice of the
redemption thereof to be given in the name and at the expense of the
Company in the manner provided in Section 3.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms
and in the manner set forth in Sections 3.5 and 3.7.
At its option the Company may at any time reduce its obligation to pay
any Mandatory Redemption Amount in cash by delivering to the Trustee at
least 45 days before the related Mandatory Redemption Date (i) Securities
which have been acquired by the Company in open market purchases (and, for
avoidance of doubt, not acquired by way of any redemption or Offer to
Purchase hereunder) and have not been called for redemption under any
provision of this Indenture, together with (ii) an Officers' Certificate
directing the Trustee to cancel the Securities and stating the election of
the Company to have credited against such Mandatory Redemption Amount on
such Mandatory Redemption Date a specified principal amount of Securities
so delivered. Each such Officers' Certificate shall state that the
Securities forming the basis of such credit do not include any Securities
theretofore credited against any Mandatory Redemption Amount pursuant to
this Section 3.8. All Securities made the basis of a credit against a
Mandatory Redemption Amount shall be credited at 100% of their principal
amount. Although the Company may obtain credit against any Mandatory
Redemption Amount in advance of the related Mandatory Redemption Date as
provided herein, any such credit shall be applied against such Mandatory
Redemption Amounts in the order in which they become due.
In case of the failure of the Company to deliver such Officers'
Certificate, the Mandatory Redemption Amount due on such Mandatory
Redemption Date shall be paid entirely in cash without the option to reduce
the Company's obligation to make such payment as specified in this Section
3.8.
Each Mandatory Redemption Amount shall be automatically reduced by
$613,000 for each Aircraft that is sold in accordance with Section 4.12(c)
or that is the subject of a Total Loss, provided, that in each case, the
Company has complied in full with the applicable provisions of Section 4.12
with respect to such sale or Total Loss, as the case may be. The effective
date of any such reduction shall be either the Payment Date with respect to
the related Offer to Purchase (so long as the Company does not default in
the payment of the purchase price with respect to such Offer to Purchase)
or, if no such Offer to Purchase is required pursuant to the provisions of
Section 4.12, then such effective date shall be (with respect to the sale
of an Aircraft) the date of consummation of the sale of such Aircraft or
(with respect to Total Loss of an Aircraft) the date that is twenty-five
days after the Total Loss Date with respect to such Total Loss, provided,
however, that such reduction shall not apply to any Mandatory Redemption
Amount for which a notice of redemption has been given under Section 3.8 on
or prior to such effective date.
On or after the Mandatory Redemption Date and upon Request (and so
long as no Event of Default has occurred and is continuing), the Trustee
shall promptly return to the Company any funds it is holding under this
Section 3.8 in excess of the Mandatory Redemption Amount (as reduced
pursuant to the provisions of this Section 3.8) related to such Mandatory
Redemption Date and shall promptly authenticate and mail to the Company a
new Security or Securities in an aggregate principal amount equal to that
portion (if any) of the Securities delivered to the Trustee and not used by
the Company as a credit under this Section 3.8 (provided, however, that the
Company has previously delivered to the Trustee sufficient executed
Securities to enable the Trustee to so authenticate such Securities).
ARTICLE 4.
COVENANTS, REPRESENTATIONS AND WARRANTIES
Section 4.1 Payment of Securities.
The Company shall pay the principal of, interest on and Special
Interest, if any, with respect to, the Securities on the dates and in the
manner provided in this Indenture and in the Securities.
The Company shall pay interest semi-annually in arrears on each
Interest Payment Date, commencing October 15, 1998. Interest shall be paid
on each Interest Payment Date in an amount equal to the interest accrued
for the period beginning from the Issue Date, or from the most recent date
to which interest and Special Interest, if any, have been paid. All
interest and Special Interest, if any, due and payable on the Securities
shall be paid in cash, except that the Company may at its option, make such
Payments by check mailed to the address of the Person entitled thereto as
it appears in the Register; provided, however, that such Payments on a
certificated Security will be made by wire transfer to a U.S. dollar
account maintained by a Holder with a bank in New York City if such Holder
owns at least $250,000 in aggregate principal amount of certificated
Securities and elects payment by wire transfer by giving written notice to
the Company and the Trustee to such effect designating such account no
later than 10 days immediately preceding the relevant due date for payment
(or such other date as the Company and the Trustee may accept in their
discretion).
An installment of principal, interest or Special Interest, if any,
shall be considered paid on the date due if the Trustee or Paying Agent
(other than the Company or any Affiliate thereof) holds on that date
Payments designated for and sufficient to pay such installment and the
Trustee or Paying Agent is not prohibited from Paying such Payments to the
Holders of the Securities pursuant to this Indenture.
The Company shall pay interest at the rate set forth in this Indenture
and the Securities and the Company shall pay interest on unpaid interest or
Special Interest, if any, at the same rate to the extent legally permitted.
Section 4.2 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be surrendered for
registration of transfer or exchange or for presentation for payment or
repurchase and where notices and demands to or upon the Company in respect
of the Securities and this Indenture may be served. At the request of the
Company, said office or agency may be the office of an agent appointed by
the Trustee for such purpose. The Company shall give prompt written notice
to the Trustee of the location, and any change in the location, of such
office or agency not designated or appointed by the Trustee. If at any
time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an
office or agency in the Borough of Manhattan, The City of New York, for
such purposes. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of
any such other office or agency.
Section 4.3 Limitation on Dividends and Acquisition of Common Stock.
The Company will not declare or pay any dividend or make any distribution
on its Common Stock, Employee Preferred Stock or other Capital Stock of the
Company (other than dividends or distributions payable in the Company's Common
Stock or Employee Preferred Stock or options, warrants or other rights to
acquire, subscribe for or purchase the Company's Common Stock or Employee
Preferred Stock) and will not, and will not permit any of its Subsidiaries to,
purchase, redeem or otherwise acquire for value any shares of its Common Stock,
Employee Preferred Stock or other Capital Stock of the Company, whether in cash
or Property or in obligations of the Company, if, at the time of such
declaration, payment, distribution, purchase, redemption or other acquisition
or, after giving effect thereto, a Default or Event of Default shall have
occurred and be continuing; provided, that notwithstanding anything to the
contrary written above, this Section 4.3 shall not apply to: (a) any purchase
or redemption of Common Stock or Preferred Stock by the Company or an employee
stock ownership or benefit plan (i) from union employees or former union
employees, or their respective transferees, pursuant to the terms of agreements
with labor unions existing on the date hereof; (ii) from recipients or their
transferees of such stock from employee stock ownership or benefit plans subject
to ERISA; (iii) from employee stock ownership or benefit plans subject to ERISA
in order to provide cash benefits to employees pursuant to the terms of such
plans; and (iv) as required by ERISA; (b) any purchase or redemption of Common
Stock or Preferred Stock by an employee stock ownership or benefit plan subject
to ERISA for an aggregate consideration, without regard to purchases or
redemptions pursuant to clause (a) above, of up to $200,000,000; (c) the
payment of fixed or mandatory dividends on or scheduled redemptions or exchanges
of any of the Company's 8% Preferred Stock and 9 1/4,% Preferred Stock and the
payment of any interest on the securities issuable upon such exchange; (d) the
payment of any dividends on or the purchase, redemption or other acquisition or
retirement of the Common Stock or Preferred Stock of the Company within sixty
(60) days after the date of declaration of such dividend or the commitment to
make such purchase, redemption or other acquisition or retirement, if at said
date of declaration or commitment such payment or commitment complied with this
Section 4.3; (e) the purchase, redemption, retirement or other acquisition of
any shares of the Company's Common Stock or Preferred Stock in exchange for, or
out of the proceeds of the substantially concurrent sale of, Common Stock or
Preferred Stock of the Company; (f) any consolidation or merger with or into
any Person or conveyance or transfer of all or substantially all of the
Company's Property to one or more Persons substantially as an entirety, not
prohibited by the terms of Section 5.1; and (g) the
conversion of Employee Preferred Stock into Common Stock.
Section 4.4 Corporate Existence.
(a) Except as otherwise provided in Article 5, the Company shall do
or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence and the corporate existence of each of
its Subsidiaries engaged in substantial business activity each in
accordance with the respective organizational documents of the Company and
each such Subsidiary and the rights (charter and statutory), licenses,
permits, approvals and governmental franchises of the Company and each such
Subsidiary necessary to the conduct of its respective business; provided,
however, that the Company shall not be required to preserve any such right,
license or franchise, or to preserve the corporate existence of any such
Subsidiary, if the Board of Directors shall determine that the preservation
thereof is no longer in the interest of the Company and that termination of
the corporate existence is not disadvantageous to the Holders in any
material respect.
(b) The Company shall continue to be an air carrier certificated
under Section 604(b) of the Federal Aviation Act.
(c) The Company is and, to the extent required to operate its
business as presently conducted and to perform its obligations under this
Indenture and the Operative Documents, shall remain a "citizen of the
United States" as defined in Section 101(16) of the Federal Aviation Act.
Section 4.5 Payment of Taxes and Other Claims.
The Company shall, and shall cause each of its Subsidiaries to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all taxes, assessments and governmental charges levied or
imposed upon the Company and each Subsidiary or upon the income, profits or
Property of the Company and each Subsidiary or upon the Collateral and (b)
all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a Lien upon the Collateral or the other Property of the
Company or a Subsidiary; provided, however, that the Company or a
Subsidiary, as the case may be, shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
(i) the amount, applicability or validity of which is being contested in
good faith by appropriate proceedings as permitted by and in accordance
with the provisions of the Operative Documents, to the extent applicable,
and for which adequate reserves have been established in accordance with
GAAP, as in effect from time to time, or (ii) if the Company delivers to
the Trustee a Certificate of an Officer stating that such non-payment and
non-discharge is in the interest of the Company and not prejudicial in any
material respect to the Holders.
Nothing contained herein or in the Securities shall be deemed to
impose on the Trustee or on the Company any obligation to pay on behalf of
the Holder of any Securities any tax, assessment or governmental charge
required by any present or future law of the U.S. or of any state, county,
municipality or other taxing authority thereof to be paid on behalf of, or
withheld from the amount payable to, the Holder of any Securities; rather
any tax, assessment or governmental charge shall, to the extent required by
law, be withheld from the amounts provided for herein.
Section 4.6 Notices.
The Company shall notify the Trustee in writing of any of the
following promptly (and in any event within five (5) Business Days after
an Officer learns of the occurrence thereof) describing the same and, if
applicable, the steps being taken by the Person(s) affected with respect
thereto:
(a) In the event that any Indebtedness of the Company or any
Significant Subsidiary of the Company in a principal amount in excess of
$10,000,000 (i) is declared due and payable before its stated maturity
because of the occurrence of any default (or any event which, with notice
or the lapse of time, or both, shall constitute such default) under such
Indebtedness or (ii) is not paid at its stated maturity; or
(b) Any litigation, arbitration proceeding or governmental proceeding
involving damages or potential liability in excess of $10,000,000 is
instituted against the Company or any of its Subsidiaries which, if
adversely determined, would have a material adverse effect on the business,
operations or financial condition of the Company and its Subsidiaries taken
as a whole.
Section 4.7 Maintenance of Properties and Insurance.
Except as otherwise provided in this Indenture, the Company shall, and
shall cause each of its Subsidiaries to, cause all Collateral and other
Properties owned by or leased to it and used or useful in the conduct of
the business of the Company or any such Subsidiary, as the case may be, to
be maintained and kept in good repair, working order and condition, except
for reasonable wear and use, and supplied with all necessary equipment and
shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company
may be necessary, so that the business carried on in connection therewith
may be properly and advantageously conducted at all times, except, in every
case, as and to the extent that the Company or any such Subsidiary may be
prevented by fire, strikes, lockouts, acts of God, inability to obtain
labor or materials, governmental restrictions, enemy action, civil
commotion or unavoidable casualty or similar causes beyond the control of
the Company or such Subsidiary; provided, however, that subject to all
requirements of the Operative Documents, nothing in this Section 4.7 shall
prevent the Company or any such Subsidiary from discontinuing the use,
operation or maintenance of any such Properties, or disposing of any of
them, if such discontinuance or disposal is, in the good faith judgment of
an Officer of the Company (or other agent employed by the Company) having
managerial responsibility for any such Property (or, in the case of any
materially important item, with respect to operations or value, in the good
faith judgment of the Company as expressed in a resolution of the Board of
Directors), desirable in the conduct of the Company's business or that of
its Subsidiaries.
For so long as any Collateral or Property is deemed to be useful to
the conduct of the business of the Company or its Subsidiaries, the Company
shall, or shall cause such Subsidiaries to, maintain appropriate insurance,
in accordance with industry practice, on such Collateral and Properties and
as required under the provisions of the applicable Operative Documents.
Notwithstanding the provisions of this Section 4.7, to the extent
there exists any inconsistency between the provisions hereof and the
provisions of the Mortgage relating to Property which constitutes
Collateral, the provisions of the Mortgage shall prevail as to all
Collateral.
Section 4.8 Default Notices and Compliance Certificates.
Contemporaneously with furnishing quarterly financial reports to the
Trustee under Section 4.9(a) or mailing quarterly statements to the Trustee
and Holders under Section 4.9(c), the Company shall furnish to the Trustee
a Certifying Officer's Certificate to the effect that no Default or Event
of Default has occurred or is continuing, or, if there is any such Default
or Event of Default, describing it and the steps, if any, being taken to
cure it.
The Company shall deliver to the Trustee within one hundred twenty
(120) days after the end of each fiscal year in which any of the Securities
remain Outstanding a certificate of the principal executive officer,
principal financial officer or principal accounting officer of the Company
(which need not comply with the provisions of Section 11.5) stating whether
or not, to the knowledge of the signer after due inquiry, the Company is in
compliance with all conditions and covenants under this Indenture and the
Operative Documents (determined without regard to any period of grace or
requirement of notice), and if the Company is not in compliance with all
such conditions and covenants, describing each Default or Event of Default
and its status. The first certificate to be delivered by the Company
pursuant to this Section 4.8 shall be for the fiscal year ending December
31, 1998.
Section 4.9 SEC Reports.
(a) The Company shall deliver to the Trustee as soon as practicable
after it files them with the SEC, copies of the annual reports and of the
information, documents, and other reports (or copies of such portions of
any of the foregoing as the SEC may by rules and regulations prescribe)
which the Company is required to file with the SEC pursuant to Sections 13
or 15(d) of the Exchange Act. The Company also shall comply with the other
provisions of TIA Section 314(a).
(b) So long as any of the Securities remain Outstanding, the Company
shall cause its annual report to stockholders and any quarterly or other
financial reports furnished by it to stockholders generally, to be mailed
to the Holders of such Outstanding Securities at their addresses appearing
in the Register.
(c) At any time the Company does not have a class of securities
registered, or is not otherwise required to file quarterly and other
reports under the Exchange Act, the Company will prepare or cause to be
prepared, for each of the first three (3) quarters of each fiscal year, an
unaudited balance sheet of the Company and its consolidated Subsidiaries as
at the end of such quarter and related unaudited consolidated statements of
income and retained earnings and cash flow of the Company and its
consolidated Subsidiaries for such quarter and the portion of the fiscal
year through such date, setting forth in each case in comparative form the
figures for the corresponding year-to-date period in the previous year,
certified by the principal financial officer of the Company, and for each
fiscal year, an audited balance sheet of the Company and its consolidated
Subsidiaries as at the end of such year and related audited consolidated
statements of income and retained earnings and cash flow of the Company and
its consolidated Subsidiaries for such year, setting forth in comparative
form the figures for the previous year, reported on without a qualification
arising out of the scope of the audit, by the Company's independent public
accountants. All financial statements will be prepared by a nationally
recognized auditing firm and will be prepared in accordance with generally
accepted accounting principles, as in effect from time to time,
consistently applied, except for changes with which the Company's
independent public accountants concur and except that quarterly statements
may be subject to year-end adjustments. The Company will cause a copy of
the respective financial statements to be mailed to the Trustee and each of
the Holders of the Securities within forty-five (45) days after the close
of each of the first three (3) quarters of each fiscal year and within one
hundred twenty (120) days after the close of each fiscal year, to the
addresses set forth in Section 11.2 or, in the case of each of the Holders,
to such Holder's address as set forth in the Register of the Securities.
Section 4.10 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim, and will resist any and all efforts to be compelled to take the
benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive the Company from paying all or any
portion of the principal of, interest on, or Special Interest, if any, with
respect to, the Securities as contemplated herein, wherever enacted, now or
at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture and the Operative Documents; and (to the
extent that it may lawfully do so) the Company hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power granted to the Trustee
herein and in the Operative Documents, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 4.11 Amendment to Certain Agreements.
The Company shall not enter into or consent to any amendment,
supplement or other modification of the Operative Documents except as
permitted under Article 9 hereof.
Section 4.12 Title to Collateral and Limitation on Liens; Sale of
Aircraft; Total Loss With Respect to Aircraft.
(a) The Company represents and warrants that it has, and covenants
that it shall continue to have, full power and lawful authority to grant,
release, convey, assign, transfer, mortgage, pledge, hypothecate and
otherwise create the security interests in the Collateral referred to in
Article 10; the Company shall warrant, preserve and defend the interest and
title of the Trustee to the Collateral, against the claims of all persons
and will maintain and preserve the security interests contemplated by
Article 10; and the Company shall not, and not permit any of its
Subsidiaries to, directly or indirectly, incur, assume or suffer to exist
any Lien of any nature whatsoever upon or with respect to the Collateral,
other than Permitted Liens. The Company shall cause the Operative
Documents, including all necessary financing statements, notifications of
secured transactions and other assurances or instruments to be properly
recorded, registered and filed and to be kept, recorded, registered and
filed in such manner and in such places as may be required by law and shall
take all such other actions as may be required in order to make effective
the security interests intended to be created in connection with this
Indenture. The Company shall furnish to the Trustee the Opinions of
Counsel required by Section 10.2 to confirm such action.
(b) The Company shall not, directly or indirectly, consummate any
sale, lease, transfer or other disposition of any Collateral except as
permitted in paragraph (c) of this Section 4.12 or in the other Operative
Documents.
(c) (i) The Company may, at any time after the earlier to occur of
the conversion of the Equity Notes into Common Stock or such other
securities, cash or other Property, in each case, as provided in and in
accordance with Article 13 of the Equity Notes Indenture or the payment
in full of the Equity Notes, sell one or more of the Aircraft upon
compliance with the following requirements:
(A) the Company shall (unless the Company is not required to make
such Offer to Purchase pursuant to the proviso in this clause (A) or
the provisions of Section 4.12(e)) have commenced an Offer to Purchase
Securities in an aggregate principal amount (the "Sale OTP Amount")
equal to (for each Aircraft so sold) (1) the aggregate principal
amount of the Securities Outstanding on the date of the commencement
of such Offer to Purchase minus (2) the product of (x) the Redemption
Value as of such date multiplied by (y) the number of Aircraft that
will remain subject to the Mortgage after giving effect to such sale,
at a purchase price (expressed as a percentage of principal amount of
Securities to be purchased) equal to (I) 102%, if such Offer to
Purchase is commenced prior to the first anniversary of the Issue
Date, or (II) 101%, if such Offer to Purchase is commenced on or after
the first anniversary of the Issue Date, plus, in each case, accrued
and unpaid interest and Special Interest, if any, on such Securities
to and including the Payment Date, provided, however, that if the
foregoing calculation with respect to any such sale of an Aircraft
results in a negative number, no Offer to Purchase shall be required
with respect to such sale of such Aircraft;
(B) the Company shall have given the Trustee prior notice of the
pending sale of such Aircraft (which notice shall be given by the
Company at least 15 days prior to the date of commencement of the
Offer to Purchase (if any) for such Aircraft or, if no Offer to
Purchase is required pursuant to the proviso in Section 4.12(c)(i)(A)
or the provisions of Section 4.12(e), at least 15 days prior to the
date of consummation of the sale of such Aircraft);
(C) the Company shall have deposited with the Trustee an amount
in cash equal to the purchase price with respect to the Offer to
Purchase (if any) for such Aircraft on or prior to the date of sale of
such Aircraft (which cash amount shall remain on deposit with the
Trustee until the payment of the purchase price on the applicable
Payment Date with respect to such Offer to Purchase); and
(D) no Event of Default shall have occurred and be continuing or
would result from the sale of such Aircraft.
(ii) Effective as of the day immediately following the Payment
Date with respect to the Offer to Purchase in connection with any sale of
an Aircraft, the interest rate borne by the Securities then Outstanding
shall be automatically, without any further act or deed, increased, if at
all, by a per annum percent equal to the product of (A) 1.50 multiplied
by (B) a fraction, (x) the numerator of which shall be the aggregate
principal amount of Securities Outstanding on such Payment Date (after
giving effect to the purchase of Securities pursuant to the Offer to
Purchase on such Payment Date), minus the product of (1) the Redemption
Value as of such Payment Date multiplied by (2) the number of Aircraft
that will remain subject to the Mortgage after giving effect to such
sale, and (y) the denominator of which shall be the aggregate principal
amount of Securities Outstanding on such Payment Date (after giving
effect to the purchase of Securities pursuant to the Offer to Purchase on
such Payment Date). Any such increase shall be in addition to Special
Interest, if any, then accruing with respect to such Security which
Special Interest shall continue to accrue in accordance with the
provisions of such Security. If, pursuant to the proviso in Section
4.12(c)(i)(A) or the provisions of Section 4.12(e), the Company is not
required to make an Offer to Purchase in connection with a sale of
Aircraft, then there shall be no increase in the rate of interest with
respect to such sale. The amount of the increase in the interest rate
borne by the Securities will be recalculated and reset following each
sale of an Aircraft as of the Payment Date for the relevant Offer to
Purchase. If on any such Payment Date the foregoing calculation results
in a negative number or a numerator equal to zero, there shall be no
increase in the interest rate resulting from such calculation and any
such increase then in effect shall be reset to zero.
(iii) Upon Request by the Company, payment by the Company of the
Trustee's costs (including reasonable legal fees and disbursements)
incurred in complying with such Request and satisfaction of the
requirements of Section 4.12(c)(i), the Trustee shall release from the
Lien of the Operative Documents, all right, title and interest of the
Trustee in and to any Aircraft so sold and shall (so long as no Event of
Default then exists) promptly after the Payment Date with respect to any
Offer to Purchase made in connection with such sale, return to the
Company any cash held in excess of the purchase price of the Securities
tendered for purchase in connection with such Offer to Purchase. The
Trustee may enter into any arrangements (including, without limitation,
escrow arrangements) as it shall deem necessary or desirable to
accomplish the intents and purposes of this Section 4.12(c).
(d) In the event that there shall occur a Total Loss with respect to
any Aircraft, the Company shall (unless the Company is not required to
make such Offer to Purchase pursuant to the next succeeding sentence or
the provisions of Section 4.12(e)) make an Offer to Purchase an aggregate
principal amount of Outstanding Securities (the "Total Loss OTP Amount")
equal to (for each Aircraft subject to such Total Loss) (i) the
aggregate principal amount of the Securities Outstanding on the date such
Offer to Purchase (if any) is required to be commenced hereunder minus
(ii) the product of (A) the Redemption Value as of such date multiplied
by (B) the number of Aircraft remaining that were not subject to such
Total Loss, at a purchase price equal to 100% of the aggregate principal
amount of Securities to be purchased, plus accrued and unpaid interest
and Special Interest, if any, on such Securities, to and including the
Payment Date. If the foregoing calculation with respect to any such
Total Loss results in a negative number, no Offer to Purchase shall be
required with respect to such Total Loss. The Company shall commence
such Offer to Purchase (if any) within thirty (30) days after the Total
Loss Date with respect to any such Total Loss. Upon Request by the
Company and payment by the Company the purchase price with respect to
such Offer to Purchase (if any) and the Trustee's costs (including
reasonable legal fees and disbursements) incurred in complying with such
Request, the Trustee shall release from the Lien of the Operative
Documents, all right, title and interest of the Trustee in and to the
Aircraft that was the subject of such Total Loss.
(e) At its option the Company may reduce in whole or in part its
obligation to pay any Sale OTP Amount or Total Loss OTP Amount in cash by
delivering to the Trustee at least 15 days before the date of
commencement of the related Offer to Purchase (i) Securities which have
been acquired by the Company in open market purchases (and, for avoidance
of doubt, not acquired by way of any redemption or Offer to Purchase
hereunder) and have not been called for redemption under any provision of
this Indenture, together with (ii) an Officers' Certificate directing the
Trustee to cancel such Securities and stating the election of the Company
to have credited against such Sale OTP Amount or Total Loss OTP Amount,
as the case may be, a specified principal amount of Securities so
delivered. Each such Officers' Certificate shall state that the
Securities forming the basis of such credit do not include any Securities
theretofore credited against any Sale OTP Amount or Total Loss OTP Amount
pursuant to this Section 4.12(e). All Securities made the basis of a
credit against a Sale OTP Amount or Total Loss OTP Amount shall be
credited at 100% of their principal amount. Although the Company may
obtain credit against the Sale OTP Amount or Total Loss OTP Amount, as
the case may be, in advance of the related Payment Date as provided
herein, any such credit shall be applied against such Sale OTP Amounts or
Total Loss OTP Amounts, as the case may be, in the order in which they
become due. In case of the failure of the Company to deliver such
Officers' Certificate, the Sale OTP Amount or Total Loss OTP Amount, as
the case may be, due on the Payment Date therefor shall be paid entirely
in cash without the option to reduce the Company's obligation to make
such payment as specified in this Section 4.12(e). If the principal
amount of the Securities made the basis of a credit against any Sale OTP
Amount (calculated, for this purpose, as of the date the Company is
required to give to the Trustee the notice of the pending sale pursuant
to Section 4.12(c)(i)(B)) or Total Loss OTP Amount (calculated, for this
purpose, as of the date twenty-five days after the Total Loss Date with
respect to such Total Loss), as the case may be, equals or exceeds such
Sale OTP Amount or Total Loss OTP Amount, as the case may be, and the
Company has otherwise complied with the applicable provisions of this
Section 4.12(e), then the Company shall not be required to make the Offer
to Purchase for which such Sale OTP Amount or Total Loss OTP Amount, as
the case may be, was calculated. Such calculations shall be set forth in
detail in the Officers' Certificate required under this Section 4.12(e).
The Trustee shall promptly authenticate and mail to the Company a new
Security or Securities in an aggregate principal amount equal to that
portion (if any) of the Securities delivered to the Trustee and not used
by the Company as a credit under this Section 4.12(e) (provided, that
the Company has previously delivered to the Trustee sufficient executed
Securities to enable the Trustee to so authenticate such Securities).
Section 4.13 Books, Records, Access; Confidentiality.
(a) The Company shall, and shall cause each of its Subsidiaries to,
(i) maintain complete and accurate books and records in which full and
correct entries in conformity with GAAP shall be made of all dealings and
transactions in relation to its respective business and activities, and
(ii) permit authorized representatives of the Trustee to visit and inspect
the Properties of the Company or its Subsidiaries, and any or all books,
records and documents in the possession of the Company relating to the
Collateral, including the records, logs, and other materials referred to in
Section 2.1(c) of the Mortgage, and to make copies and take extracts
therefrom and to visit and inspect the Collateral, all upon reasonable
notice and at such reasonable times during normal business hours and as
often as may be reasonably requested.
(b) The Trustee and its authorized representatives referred to in
clause (a) above agree not to use any information obtained pursuant to this
Section 4.13 for any purpose other than as required in order to discharge
their respective duties hereunder and under the Operative Documents and
except as otherwise required for such purpose to keep confidential and not
to disclose any such information to any person except that (i) the
recipient of the information may disclose any information which becomes
publicly available other than as a result of disclosure by such recipient,
(ii) the recipient of the information may disclose any information which
its counsel reasonably concludes is necessary to be disclosed by law or
legal process, pursuant to any court or administrative order or ruling or
in any pending legal or administrative proceeding or investigation after
notice to the Company adequate, subject to applicable laws, to allow the
Company to obtain a protective order or other appropriate remedy, provided
that the recipient of the information will (if not otherwise required in
order to discharge its duties as aforesaid) cooperate at the Company's
expense with the Company's efforts to obtain a protective order or other
reliable assurance that confidential treatment will be accorded any such
information required to be so disclosed, and (iii) the recipient of the
information may disclose any information necessary to be disclosed pursuant
to any provision of the TIA.
Section 4.14 Security Interests.
The Company and its Subsidiaries shall perform any and all acts and
execute any and all documents (including, without limitation, the
execution, amendment or supplementation of any financing statement and
continuation statement or other statement) for filing under the provisions
of the Federal Aviation Act and the applicable Uniform Commercial Code and
the rules and regulations thereunder or any other statute, rule or
regulation of any applicable federal, state or local jurisdiction, which
are necessary or advisable, from time to time, in order to grant and
maintain in favor of the Trustee for the benefit of the Holders a valid,
perfected Lien on the Collateral.
The Company and its Subsidiaries shall deliver or cause to be
delivered to the Trustee from time to time such other documentation,
consents, authorizations, approvals and orders in form and substance
satisfactory to the Trustee as it shall deem reasonably necessary or
advisable to perfect or maintain the Liens for the benefit of the Holders.
Section 4.15 Repurchase of Securities Upon a Change in Control.
(a) In the event that there shall occur a Change in Control, the
Company shall make an Offer to Purchase all of the Outstanding Securities,
at a purchase price equal to 101% of the aggregate principal amount of the
Securities Outstanding, plus accrued and unpaid interest and Special
Interest, if any, to and including the repurchase date. The right to
require such repurchase of Securities shall not continue after a discharge
of the Company from its obligations with respect to the Securities in
accordance with Article 8.
(b) The Company shall commence such Offer to Purchase within thirty
(30) days after the occurrence of a Change in Control.
Section 4.16 Restrictions on Becoming an Investment Company.
The Company shall not become an investment company within the meaning
of the Investment Company Act of 1940 as such statute and the regulations
thereunder and any successor statute or regulations thereto may from time
to time be in effect.
Section 4.17 Listing.
No later than the earliest to occur of (i) the effectiveness of the
initial Exchange Offer Registration Statement and (ii) the effectiveness of
the initial Shelf Registration Statement, in either case, filed under (and
as defined in) the Registration Rights Agreement, the Company shall use its
reasonable best efforts to cause the Exchange Securities and the Private
Exchange Securities to be listed on the American Stock Exchange, or such
other stock exchange or market as the Common Stock of the Company is then
principally traded provided, that such Securities meet the minimum
requirements for listing on any such exchange or market, and, if
applicable, to use its reasonable best efforts to maintain such listing for
so long as any of the Exchange Securities or Private Exchange Securities
are Outstanding.
ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.1 Covenant Not to Consolidate, Merge, Convey or Transfer
Except Under Certain Conditions.
The Company shall not consolidate with, or merge with or into, or
convey or transfer (excluding by way of lease) all or substantially all of
its Properties (as determined at the time of such transfer without regard
to any prior conveyance or transfer or series of conveyances or transfers
made on unrelated transactions) to any other Person, or permit any Person
to convey, lease or transfer all or substantially all of its Properties to
the Company, unless:
(a) The Company shall be the continuing Person or the Person (if
other than the Company) formed by such consolidation or into which the
Company is merged or to which all or substantially all of the Properties of
the Company are conveyed or transferred (the "surviving Person"): (i)
shall be a corporation organized and existing under the laws of the United
States of America or any state thereof or the District of Columbia; (ii)
shall expressly assume prior to or simultaneously with the consummation of
such transaction, by an indenture and other agreements supplemental hereto
and to the Operative Documents, executed and delivered to the Trustee in
form reasonably satisfactory to the Trustee, the due and punctual payment
of the principal of, interest on and Special Interest, if any, with respect
to, all the Securities and the observance and performance of every
covenant, condition and obligation of this Indenture, the Securities and
the Operative Documents on the part of the Company to be observed or
performed;
(b) Immediately before and immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing hereunder;
(c) In the case of any such conveyance or transfer, such conveyance
or transfer includes, without limitation, all of the Collateral and in any
event such consolidation, merger, conveyance or transfer shall be on such
terms as shall fully preserve the Lien and security of each of the
Operative Documents, the priority thereof purported to be established
thereby and the rights and powers of the Trustee and the Holders of the
Securities under each of the Operative Documents; and
(d) The Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that (i) such merger, consolidation,
transfer, conveyance, or acquisition of assets and such supplemental
indenture (if any) comply with the terms of this Indenture, (ii) this
Indenture and the Securities constitute the valid and legally binding
obligations of the surviving Person, and (iii) this Indenture and the other
Operative Documents are enforceable against the surviving Person in
accordance with their terms.
Section 5.2 Successor Person Substituted.
Upon any consolidation or merger, or any conveyance or transfer
(excluding by way of lease) of all or substantially all of the Properties
of the Company in accordance with Section 5.1, the surviving entity formed
by such consolidation or into which the Company is merged or the surviving
entity to which such conveyance or transfer is made shall succeed to, and
be substituted for, and be bound by and obligated to pay the obligations
of, and may exercise every right and power of, the Company under this
Indenture, the Securities and the Operative Documents with the same effect
as if such successor had been named as the Company herein and therein, but
the predecessor Company in the event of any such conveyance or transfer
shall not be released from the obligation to pay the principal of, interest
on and Special Interest, if any, with respect to the Securities.
Such surviving entity may cause to be signed, and may issue either in
its own name or in the name of the Company prior to such succession any or
all of the Securities issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee; and, upon the
order of such surviving entity, instead of the Company, and subject to all
the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities which
previously shall have been signed and delivered by the officers of the
Company to the Trustee for authentication, and any Securities which such
surviving entity thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date
of the execution hereof.
In case of any such consolidation, merger, sale, transfer or
conveyance such changes in phraseology and form (but not in substance) may
be made in the Securities thereafter to be issued as may be appropriate.
Section 5.3 Limitation on Lease of Properties.
Without limitation of the prohibitions set forth in the other
Operative Documents, the Company shall not lease all or substantially all
of its Properties to any Person.
ARTICLE 6.
DEFAULT AND REMEDIES
Section 6.1 Events of Default.
An "Event of Default" occurs if:
(a) the Company defaults in the payment of interest on, or Special
Interest, if any, with respect to, any Security when the same becomes due
and payable and the default continues for thirty (30) days;
(b) the Company defaults in the payment of the principal amount of any
Securities when the same becomes due and payable at maturity, upon
acceleration, redemption, tender for repurchase or otherwise;
(c) the Company fails to comply with the agreements or covenants
contained in Sections 3.8, 4.3 or 4.12 hereof, takes or agrees to take any
action prohibited by Section 5.1 hereof, discontinues or agrees to
discontinue substantially all of its commercial airlines operations or
fails to comply with the covenants contained in Sections 3, 6.3, 6.5 or 6.8
of the Mortgage within the time periods (if any) provided therein;
(d) (i) the Company fails in any material respect to comply with any
of its other agreements contained in the Securities, this Indenture or the
other Operative Documents or (ii) any representation or warranty made by
the Company in this Indenture, the other Operative Documents or any
Mortgage Supplement or in any certificate of the Company delivered
hereunder or under any such document shall prove to have been untrue in any
material respect when made, and in any such case such default continues for
the period and after the notice specified below;
(e) there shall be a default or an event under or with respect to any
Indebtedness of the Company or any of its Significant Subsidiaries in
excess of $10,000,000 in principal amount, whether such Indebtedness now
exists or shall hereafter be created, and the effect of any such default or
event is to cause the principal amount of any such Indebtedness to become
due, to have the date of payment thereof fixed prior to its stated maturity
or the date it would otherwise become due and while any Securities are
Outstanding, or to be unpaid at maturity while any Securities are
Outstanding;
(f) the Company or any of its Significant Subsidiaries pursuant to or
within the meaning of any Bankruptcy Law (as hereinafter defined):
(i) commences a voluntary case or proceeding,
(ii) consents to the entry of an order for relief against it in
an involuntary case or proceeding,
(iii) consents to the appointment of a Custodian (as hereinafter
defined) of it or for all or substantially all of its Property,
(iv) makes a general assignment for the benefit of its creditors,
or
(v) generally is unable to pay its debts as the same become due;
(g) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any of its Significant
Subsidiaries in an involuntary case or proceeding,
(ii) appoints a Custodian of the Company or any of its
Significant Subsidiaries for all or substantially all of its
properties, or
(iii) orders the liquidation of the Company or any of its
Significant Subsidiaries,
and in each case the order and decree remains unstayed and in effect for
sixty (60) consecutive days;
(h) final, non-appealable judgments for the payment of money, which
judgments, in the aggregate, exceed $10,000,000 shall be rendered against
the Company or any of its Significant Subsidiaries by a court of competent
jurisdiction and remain undischarged, unstayed and unsatisfied for the
period and after the notice specified below; or
(i) any of the Operative Documents ceases, without the consent of the
Trustee, to be in full force and effect.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means
any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
A Default under clause (d), (e) or (h) of this Section 6.1 is not an
Event of Default until the Trustee notifies the Company, or the Holders of
at least twenty-five percent (25%) in aggregate principal amount of the
Securities Outstanding notify the Company and the Trustee, of the Default
and the Company does not cure the Default within sixty (60) days with
respect to clauses (d) and (h), or within thirty (30) days with respect to
clause (e), after receipt of the notice; provided, however, that the
Company shall be permitted such longer period of time, if any, as may be
provided for under the other Operative Documents in respect of any
particular Default. The notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default." When a Default
is cured, it ceases.
Section 6.2 Acceleration.
If an Event of Default (other than an Event of Default specified in
Section 6.1(f) or (g)) occurs, and is continuing, the Trustee may, by
notice to the Company, or the Holders of at least twenty-five percent (25%)
in aggregate principal amount of the Securities Outstanding may, by notice
to the Company and the Trustee, and the Trustee shall, upon the request of
such Holders, declare all unpaid principal of, accrued interest and Special
Interest, if any, to the date of acceleration on the Securities Outstanding
(if not then due and payable) to be due and payable and upon any such
declaration, the same shall become and be immediately due and payable. If
an Event of Default specified in Section 6.1(f) or (g) occurs, all unpaid
principal of, accrued interest on and Special Interest, if any, with
respect to, the Securities Outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act on the
part of the Trustee or any Securityholder. Upon payment of such principal
amount, interest, and Special Interest, if any, all of the Company's
obligations under the Securities and this Indenture, other than obligations
under Sections 7.7 and 8.4, shall terminate. The Holders of a majority in
principal amount of the Securities then Outstanding by notice to the
Trustee may rescind an acceleration and its consequences if (a) all
existing Events of Default, other than the non-payment as to the Securities
of the principal, interest or Special Interest, if any, which has become
due solely by such declaration of acceleration, have been cured or waived,
(b) to the extent the payment of such interest is permitted by law,
interest on overdue installments of interest and on overdue principal which
has become due otherwise than by such declaration of acceleration, has been
paid, (c) the rescission would not conflict with any judgment or decree of
a court of competent jurisdiction, and (d) all payments due to the Trustee
and any predecessor Trustee under Section 7.7 have been made.
Section 6.3 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect
the payment of principal of, interest on or Special Interest, if any, with
respect to the Securities or to enforce the performance of any provision of
the Securities or this Indenture including, without limitation, instituting
proceedings and exercising and enforcing, or directing exercise and
enforcement of, all rights and remedies of the Trustee under the other
Operative Documents.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Securityholder in exercising any
right or remedy accruing upon an Event of Default shall not impair the
right or remedy or constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
Section 6.4 Waiver of Past Defaults.
Subject to Sections 6.7, 9.2 and 9.6, the Holders of a majority in
aggregate principal amount of the Securities Outstanding by notice to the
Trustee may authorize the Trustee to waive an existing Default or Event of
Default and its consequences, except a Default (a) in the payment of
principal of, or interest on, or Special Interest with respect to, any
Security as specified in clauses (a) and (b) of Section 6.1 or (b) in
respect of a covenant or provision hereof which cannot be modified or
amended without the consent of the Holder of each Security affected. When
a Default or Event of Default is waived, it is cured and ceases, and the
Company, the Holders and the Trustee shall be restored to their former
positions and rights hereunder respectively; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.
Section 6.5 Control by Majority.
The Holders of a majority in aggregate principal amount of the
Securities Outstanding may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any
trust or power conferred on it; provided that the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with
such direction. The Trustee may refuse to follow any direction hereunder
or authorization under Section 6.4 that legal counsel to the Trustee
determines in good faith conflicts with law or this Indenture, that the
Trustee reasonably determines may be unduly prejudicial to the rights of
another Securityholder, or that the Trustee reasonably determines may
subject the Trustee to personal liability. However, the Trustee shall have
no liability for any actions or omissions to act which are in accordance
with any such direction or authorization.
Section 6.6 Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(a) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(b) the Holders of at least twenty-five percent (25%) in principal
amount of the Securities Outstanding make a written request to the Trustee
to pursue the remedy;
(c) such Holder or Holders offer to the Trustee indemnity reasonably
satisfactory to the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within sixty (60)
days after receipt of the request and the offer of indemnity; and
(e) during such 60-day period the Holders of a majority in aggregate
principal amount of the Securities Outstanding do not give the Trustee a
direction which, in the reasonable opinion of the Trustee, is inconsistent
with such request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such
other Securityholder.
Section 6.7 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security to receive payment of principal of, interest on,
and Special Interest, if any, with respect to, the Security in cash, on or
after the respective due dates expressed in the Security, or to bring suit
for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of the Holder.
It is hereby expressly understood, intended and agreed that any and
all actions which a Holder of the Securities may take to enforce the
provisions of this Indenture and/or collect Payments due hereunder or under
the Securities, except to the extent that such action is determined to be
on behalf of all Holders of the Securities, shall be in addition to and
shall not in any way change, adversely affect or impair the rights and
remedies of the Trustee or any other Holder of the Securities thereunder or
under this Indenture and the other Operative Documents, including the right
to foreclose upon and sell the Collateral or any part thereof and to apply
any proceeds realized in accordance with the provisions of this Indenture.
Section 6.8 Collection Suit by Trustee.
If an Event of Default in payment of interest or principal specified
in clause (a) or (b) of Section 6.1 occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Securities for the whole
amount of principal, accrued interest and Special Interest, if any,
remaining unpaid, together with interest on overdue principal and on
overdue installments of interest to the extent that payment of such
interest is permitted by law, in each case at the rate per annum provided
for by the Securities, and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
Section 6.9 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Securities), its creditors or its Property
and shall be entitled and empowered to collect and receive any moneys or
other Property payable or deliverable on any such claims and to distribute
the same, and any Custodian in any such judicial proceedings is hereby
authorized by each Securityholder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments
directly to the Securityholders, to pay to the Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agent and counsel, and any other amounts due the Trustee
under Section 7.7, and unless prohibited by law or applicable regulations
to vote on behalf of the Holders of Securities for the election of a
trustee in bankruptcy or other person performing similar functions.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder
in any such proceeding except, as aforesaid, for the election of a trustee
in bankruptcy or person performing similar functions.
Section 6.10 Application of Proceeds.
Any moneys collected by the Trustee pursuant to this Article shall be
applied in the following order at the date or dates fixed by the Trustee
and, in case of the distribution of such moneys on account of principal,
interest, or Special Interest, if any, upon presentation of the several
Securities and stamping (or otherwise noting) thereon the payment, or
issuing Securities in reduced principal amounts in exchange for the
presented Securities if only partially paid, or upon surrender thereof if
fully paid:
FIRST: To the payment of reasonable costs and expenses actually
incurred, including reasonable compensation to the Trustee, its
predecessors, if any, and their respective agents and attorneys
(including amounts due and unpaid under Section 7.7), and of all
reasonable costs, fees, expenses and liabilities incurred and all
advances made by any and all of the foregoing (including amounts due
and unpaid under Section 7.7), except as a result of negligence or bad
faith;
SECOND: In case the entire principal of the Securities shall not
have become and be then due and payable, as to any Securities (a)
first to the payment of interest and Special Interest, if any, in
default in the order of the maturity of the installments of such
interest and Special Interest, if any, with interest (to the extent
that such interest has been collected by the Trustee) upon the overdue
installments of interest or Special Interest, if any, at the rate of
interest specified in the Securities and (b) second to the payment of
principal of the Securities as the same shall become due and payable,
such payments to be made ratably to the Persons entitled thereto,
without discrimination or preference;
THIRD: In case the entire principal of the Securities shall have
become and shall be then due and payable, as to any Securities, to the
payment of the whole amount then owing and unpaid upon all the
Securities for principal, interest and Special Interest, with interest
upon the overdue principal, and (to the extent that such interest has
been collected by the Trustee) upon overdue installments of interest
or Special Interest, if any, at the same rate as the rate of interest
specified in this Indenture or in the Securities; and in case such
moneys shall be insufficient to pay in full the whole amount so due
and unpaid upon the Securities, then to the payment of such principal,
interest and Special Interest, if any, without preference or priority
of any of principal, interest or Special Interest, if any, over the
other, or any installment of interest or Special Interest, if any,
over any other installment of interest or Special Interest, if any, or
of any Security over any other Security, ratably to the aggregate of
such principal, and accrued and unpaid interest and Special Interest;
and
FOURTH: To the payment of the remainder, if any, after payment
in full of the entire principal balance, if any, of the Securities and
all interest, Special Interest and other amounts due upon or in
respect of such Securities, to the Company or any other Person
lawfully entitled thereto.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Securityholders pursuant to
this Section 6.10.
Section 6.11 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court of
competent jurisdiction in its discretion may require in any suit for the
enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.7, or a suit
by Holders of more than ten percent (10%) in principal amount of the
Securities Outstanding.
Section 6.12 Restoration of Rights on Abandonment of Proceedings.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Trustee, then and in every such case the Company, the Trustee and the
Securityholders shall be restored respectively to their former positions
and rights hereunder, and all rights, remedies and powers of the Company,
the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
Section 6.13 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default.
No right or remedy herein conferred upon or reserved to the Trustee or
to the Securityholders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of any of the
Securities to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right
or power or shall be construed to be a waiver of any such Event of Default
or an acquiescence therein; and, subject to the other applicable provisions
of this Indenture, every power and remedy given by this Indenture or by law
to the Trustee or to the Securityholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
Any right or remedy herein conferred upon or reserved to the Trustee
may be exercised by it in its capacity as Trustee, as it may deem most
efficacious, if it is then acting in such capacity.
ARTICLE 7.
TRUSTEE
Section 7.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties as are
specifically set forth in this Indenture and the other Operative
Documents and no others.
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct or bad faith, except that:
(i) This paragraph (c) does not limit the effect of paragraph
(b) of this Section 7.1 or of Section 7.2.
(ii) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
(d) The Trustee shall be under no obligation to exercise any of the
rights, trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such request,
order or direction.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.1.
(f) Funds held in trust for the benefit of the Holders of the
Securities by the Trustee or any Paying Agent on deposit with itself or
elsewhere shall be held in distinct, identifiable accounts, and other funds
or investments of any nature or from any source whatsoever may be held in
such accounts, except, in each case, to the extent required by law. The
Trustee shall not be liable for interest on any money received by it except
as the Trustee may agree with the Company.
Section 7.2 Rights of Trustee.
(a) The Trustee may rely on any document reasonably believed by it to
be genuine and to have been signed or presented by the proper person.
Subject to Section 7.1(b)(ii), the Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, which shall conform to
Section 11.5. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such certificate or opinion.
(c) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through its attorneys
and agents and the Trustee shall not be responsible for the misconduct or
negligence of any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
Section 7.3 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or Affiliates of the Company with the
same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Sections 7.10
and 7.11.
Section 7.4 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the
Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities or in this Indenture other
than its certificate of authentication.
Section 7.5 Notice of Defaults.
If a Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to each Securityholder notice of the
Default within ninety (90) days after the occurrence thereof except as
otherwise permitted by the TIA. Except in the case of a Default in payment
of principal of, or interest on, or Special Interest, if any, with respect
to, any Security, the Trustee may withhold the notice if and so long as it,
in good faith, determines that withholding the notice is in the interests
of the Securityholders.
Section 7.6 Reports by Trustee to Holders.
If circumstances require any report to Holders under TIA Section 313(a), it
shall be mailed to Securityholders within sixty (60) days after each May 15
(beginning with the May 15 following the date of this Indenture) as of
which such circumstances exist. The Trustee also shall comply with the
remainder of TIA Section 313.
The Company shall promptly notify the Trustee if the Securities become
listed on or delisted from any stock exchange or other recognized trading
market.
The Trustee shall, upon the written request of any Holder of
Securities but subject to applicable laws and contractual limitations,
provide to such Holder copies of any reports, certificates, opinions or
other materials of any kind or nature required to be delivered to the
Trustee under this Indenture or any of the other Operative Documents or
otherwise delivered by or on behalf of the Company to the Trustee.
Section 7.7 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation, as agreed upon from time to time, for its services hereunder
and under the other Operative Documents. The Trustee's compensation shall
not be limited by any law on compensation of a trustee of an express trust.
The Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it in any such
capacities. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel and all
agents and other persons not regularly in its employ.
The Company shall indemnify the Trustee and each predecessor Trustee
for, and hold each of them harmless against, any loss or liability incurred
by each of them in connection with the administration of this Indenture and
its duties hereunder. In connection with any defense of such a claim, the
Trustee may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not reimburse any
expense or indemnify against any loss or liability incurred by the Trustee
or any predecessor Trustee through the negligence or bad faith of such
Trustee or each such predecessor Trustee.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a Lien (legal and equitable) prior to the Securities on
all money or Property held or collected by the Trustee, in its capacity as
Trustee, or otherwise distributable to Securityholders, except money,
securities or Property held in trust to pay principal of or interest on
particular Securities (including, without limitation, pursuant to Section
8.1(b) hereof).
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(f) or (g) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.8 Replacement of Trustee.
The Trustee may resign by so notifying the Company and the Holders in
writing. The Holders of a majority in aggregate principal amount of the
Securities Outstanding may remove the Trustee by so notifying the Trustee
in writing and may appoint a successor Trustee with the Company's consent,
which consent shall not be unreasonably refused or delayed. The Company
may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or other public officer takes charge of the Trustee or
its Property;
(d) the Trustee becomes incapable of acting; or
(e) no Default or Event of Default has occurred and is continuing and
the Company determines in good faith to remove the Trustee.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after any such successor Trustee takes
office, the Holders of a majority in aggregate principal amount of the
Securities Outstanding may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall transfer all Property held by it as
Trustee to the successor Trustee, subject to the Lien provided in Section
7.7, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Securityholder.
No resignation or removal of the Trustee and no appointment of a
successor Trustee, pursuant to this Article, shall become effective until
the acceptance of appointment by the successor Trustee under this Section
7.8. If a successor Trustee does not take office within sixty (60) days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least ten percent (10%) in principal amount of
the Securities Outstanding may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder of
Securities may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee which shall retain its claim pursuant to
Section 7.7.
Section 7.9 Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to,
another corporation, the resulting, surviving or transferee corporation
without any further act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Section 310(a)(1). The Trustee shall have a combined capital and surplus
of at least $50,000,000 as set forth in its most recent, published annual report
of condition. The Trustee shall comply with TIA Section 310(b); provided,
however, that there shall be excluded from the operation of TIA 310(b)(1) any
indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Company are outstanding,
if the requirements for such exclusion set forth
in TIA Section 310(b)(1) are met.
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE 8.
DISCHARGE OF INDENTURE
Section 8.1 Termination of Company's Obligations.
(a) The Company may terminate its obligations under this Indenture,
except those obligations referred to in the last paragraph of Section
8.1(b), if all Securities previously authenticated and delivered (other
than destroyed, lost or stolen Securities which have been replaced or paid
or Securities for whose payment Payments have theretofore been held in
trust and thereafter repaid to the Company, as provided in Section 8.3)
have been delivered to the Trustee for cancellation and the Company has
paid all sums payable by it hereunder.
(b) The Company may terminate all its obligations under this
Indenture except those obligations referred to in the immediately
succeeding paragraph if
(i) the Company has irrevocably deposited or caused to be
irrevocably deposited with the Trustee or a Paying Agent, under the
terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee and any such Paying Agent, as trust funds
in trust solely for the benefit of the Holders for that purpose, cash
or U.S. Government Obligations maturing as to principal and interest,
in such amounts and at such times as are sufficient without
consideration of any reinvestment of any such interest to pay the then
maximum possible principal of, and the then maximum possible interest
and Special Interest with respect to, the Securities Outstanding to
maturity provided, that the Trustee or such Paying Agent shall have
been irrevocably instructed to apply such money or the proceeds of
such U.S. Government Obligations to the payment of said principal,
interest and Special Interest, if any, with respect to the Securities.
(ii) No Default or Event of Default with respect to the
Securities shall have occurred and be continuing (A) on the date of
such deposit described in clause (i), or (B) insofar as paragraph (f)
of Section 6.1 is concerned, at any time during the period ending on
the 91st day after the date of such deposit or, if longer, ending on
the day following the expiration of the longest preference period
applicable to the Company in respect of such deposit (it being
understood that the condition in this clause (B) is a condition
subsequent and shall not be deemed satisfied until the expiration of
such period);
(iii) Such termination and deposit described in clause (i) shall
not (A) cause the Trustee to have a conflicting interest as defined in
TIA Section 310(b) or otherwise for purposes of the TIA with respect
to any securities of the Company, or (B) result in the trust arising
from such deposit to constitute, unless it is qualified as, a
regulated investment company under the Investment Company Act of 1940,
as amended;
(iv) Such termination and deposit described in clause (i) shall
not result in a breach or violation of or constitute a default under,
this Indenture or any other material agreement or instrument to which
the Company is a party or by which it is bound;
(v) The Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of the Securities will not
recognize income, gain or loss for federal income tax purposes as a
result of such termination and deposit described in clause (i) and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
termination and deposit had not occurred; and
(vi) The Company shall have delivered to the Trustee and any
Paying Agent an Officer's Certificate and an Opinion of Counsel, each
stating that all conditions precedent and subsequent provided for
above in this Section 8.1(b) have been complied with.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.3, 2.4, 2.5, 2.6, 2.7, 4.1, 4.2, 4.8, 4.17, 7.7, 7.8, 8.2, 8.3,
8.4 and 10.4 shall survive until the Securities are no longer Outstanding.
Thereafter, the Company's obligations in Sections 7.7 and 8.3 shall
survive.
(c) After the effectiveness of any termination of its obligations
(except, in the case of Section 8.1(b), as set forth in the last paragraph
thereof), under this Indenture in accordance with Section 8.1(a) or (b)
above (such effective date, the "Indenture Discharge Date") and payment of
all obligations of the Company accrued under Section 7.7, the Trustee upon
Request shall acknowledge in writing the discharge of the Company's
obligations under this Indenture except for those surviving obligations
specified above.
Section 8.2 Application of Trust Money.
The Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.1, and shall apply the
deposited money and the money from U.S. Government Obligations in accordance
with this Indenture to the payment of principal of, and interest and Special
Interest, if any, on, the Securities. The obligations of the Trustee and Paying
Agent under this Section 8.2 shall survive, notwithstanding any termination or
discharge of the Company's obligations
pursuant to Section 8.1, until all Securities are paid in full.
The Company shall pay and indemnify the Trustee or Paying Agent, as
the case may be, against any tax, fee or other charge imposed on or
assessed against the money or U.S. Government Obligations deposited
pursuant to Section 8.1(b)(i) or the principal and interest received in
respect thereof.
Section 8.3 Repayment to Company.
Anything in Section 8.1(b) to the contrary notwithstanding, the
Trustee or Paying Agent, as the case may be, shall deliver or pay to the
Company from time to time upon Company Request any money or U.S.
Government Obligations (or other Property and any proceeds therefrom) held
by it as provided in Section 8.1(b) which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee and to the Paying Agent, if
applicable, are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent termination under said
Section 8.1(b). The Trustee and the Paying Agent shall Pay to the Company
any Payments held by them for the payment of principal, interest and
Special Interest, if any, that remains unclaimed for two (2) years after
the Stated Maturity of such payment of principal, interest or Special
Interest, as the case may be; provided, however, that the Trustee or such
Paying Agent before making any Payment shall at the expense of the Company
cause to be published once in the national edition of The New York Times or
The Wall Street Journal or, if such newspapers are not then in circulation,
in a newspaper of general circulation in the City of New York and mail to
each Holder entitled to such money, notice that such Payments remain
unclaimed and that, after a date specified therein which shall be at least
thirty (30) days from the date of such publication or mailing, any
unclaimed balance of such Payments then remaining will be repaid to the
Company. After payment to the Company, Securityholders entitled to
Payments must look to the Company for payment as general creditors unless
an applicable abandoned property law designates another person.
Section 8.4 Reinstatement.
Anything herein to the contrary notwithstanding, (i) if the Trustee or
Paying Agent, as the case may be, is unable to apply any money or U.S.
Government Obligations in accordance with Section 8.1 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, or
(ii) the deposited money or U.S. Government Obligations (or the proceeds
thereof) are, for any reason (including any repayment to the Company under
Section 8.3), insufficient in amount, then the Company's obligations under this
Indenture shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.1 until such time as the Trustee, or Paying Agent, as the
case may be, is permitted to apply all such money or U.S. Government
Obligations and the proceeds of the investment thereof in accordance with
Section 8.1, or the deficiency is cured in the manner set forth in Section
8.1(b), as the case may be. In such event, the Trustee will invest all such
money or the proceeds from U.S. Government Obligations at the Company's request
in other U.S. Government Obligations and, upon written notice from the Company,
so long as there exists no Event of Default, to the extent and only to the
extent provided in the first sentence of Section 8.3 return to the Company any
money or U.S. Government Obligations deposited with the Trustee pursuant to
Section 8.1. If the Company has made any payment of interest on, principal of,
or Special Interest, if any, with respect to any Securities because of an event
described in clause (i) of the first sentence of this Section 8.4, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or Paying Agent, as the case may be.
ARTICLE 9.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Without Consent of Holders.
The Company and the Trustee, as the case may be, may amend or
supplement this Indenture, the Securities or the other Operative Documents
without notice to or consent of any Securityholder:
(a) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(b) to provide for the assumption of the Company's obligations to the
Holders of the Securities in the case of a merger or consolidation or
transfer of all or substantially all of the assets of the Company or
otherwise to comply with Article 5;
(c) to comply with any requirements of the SEC in connection with the
qualification of this Indenture under the TIA; or
(d) to cure any ambiguity, defect or inconsistency or to make any
other change, in each case, provided that such action does not materially
adversely affect the interests of any Securityholder.
Section 9.2 With Consent of Holders.
Subject to Section 6.7, the Company (by resolution of its Board of
Directors if required) and the Trustee may amend or supplement this
Indenture, the Securities or the other Operative Documents without notice
to any Securityholder but with the written consent of the Required Holders.
Subject to Sections 6.4, 6.5 and 6.7, the Required Holders may authorize
the Trustee to, and the Trustee, subject to Section 9.6, upon such
authorization shall, waive compliance by the Company with any provision of
this Indenture, the Securities or the other Operative Documents. However,
an amendment, supplement or waiver, including a waiver pursuant to any
provision of Section 6.4, may not without the consent of each
Securityholder affected:
(a) reduce the amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(b) reduce the rate or extend the time for payment of interest on, or
Special Interest, if any, with respect to, any Security;
(c) reduce the principal of, or the amount of Special Interest, if
any, with respect to (in each case, whether on redemption, repurchase or
otherwise), or change the fixed maturity of any Security;
(d) change the place of payment where, or the coin or currency in
which, any Security (or the repurchase or redemption price thereof),
interest thereon, or Special Interest, if any, with respect thereto is
payable;
(e) waive a default in the payment of the principal of, or interest
on, or Special Interest with respect to any Security;
(f) make any changes in Sections 2.8, 6.4, 6.7 or 6.10 or the third
sentence of this Section 9.2 or change the time at which any Security may
or must be redeemed hereunder; or
(g) reduce any amount payable upon exercise of any repurchase rights
thereof or otherwise change any repurchase right provision or impair the
right of any Holder to institute suit for the enforcement of any such
payment on any Security when due or adversely effect any repurchase rights
hereunder.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves
the substance thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall mail to the Holders affected thereby a
brief notice describing such amendment, supplement or waiver. Any failure
of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amendment,
supplement or waiver.
Section 9.3 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
Section 9.4 Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of
a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Security or portion of a Security. Such revocation
shall be effective only if the Trustee receives the notice of revocation
before the date the amendment, supplement or waiver becomes effective.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of
clauses (a) through (g) of Section 9.2. In that case the amendment,
supplement or waiver shall bind each Holder of a Security who has consented
to it and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder's Security; provided,
however, that no amendment, supplement or waiver relating to any impairment
of the right to receive principal, interest and Special Interest, if any,
when due and payable consented to by a Holder shall be binding upon any
subsequent Holder of a Security or a portion of a Security that evidences
the same debt as the consenting Holder's Security unless notation with
regard thereto is made upon such Security or the Security representing such
portion.
Section 9.5 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Security
about the changed terms and return it to the Holder. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new Security that
reflects the changed terms.
Section 9.6 Trustee to Sign Amendments, etc.
The Trustee shall be entitled to receive and rely upon an Officers'
Certificate and an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article 9 has
been duly authorized by the Company and is authorized or permitted by this
Indenture and the other applicable Operative Documents. The Trustee may,
but shall not be obligated to, execute any such amendment, supplement or
waiver which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 9.7 Effect of Supplement and/or Amendment.
Upon the execution of any supplemental indenture and/or any such
amendment or supplement to the other Operative Documents pursuant to the
provisions of this Article 9, this Indenture and such Operative Documents
shall be and be deemed to be modified and amended in accordance therewith
and the respective rights, limitations of rights, obligations, duties and
immunities under this Indenture and the other Operative Documents of the
Trustee, the Company and the Holders of Securities shall thereafter be
determined, exercised and enforced hereunder and thereunder subject in all
respects to such modifications and amendments, and all terms and conditions
of any such supplemental indenture and/or any such amendment or supplement
to the other Operative Documents shall be and be deemed to be part of the
terms and conditions of this Indenture and the other Operative Documents
for any and all purposes.
ARTICLE 10.
SECURITY
Section 10.1 Other Operative Documents.
To secure the due and punctual payment, performance and observance of
the Obligations, the Company has simultaneously with the execution of this
Indenture entered into or caused to be assigned to the Trustee the other
Operative Documents and has made an assignment and pledge of or otherwise
transferred or caused to be transferred its right, title and interest in
and to the Collateral to the Trustee pursuant to the other Operative
Documents and in the manner and to the extent therein provided. Each
Securityholder, by accepting a Security, agrees to all of the terms and
provisions of each Operative Document (including, without limitation, the
provisions providing for the release of Collateral), as the same may be in
effect or may be amended from time to time pursuant to its terms and the
terms hereof. The Company will execute, acknowledge and deliver to the
Trustee such further assignments, transfers, assurances or other
instruments as the Trustee may reasonably require or request, and will do
or cause to be done all such acts and things as may be necessary or proper,
or as may be reasonably required by the Trustee to assure and confirm to
the Trustee the security interest in the Collateral contemplated hereby and
by the other Operative Documents or any part thereof, as from time to time
constituted, so as to render the same available for the security and
benefit of this Indenture and of the Securities secured hereby, according
to the intent and purposes herein expressed.
Section 10.2 Opinions, Certificates and Appraisals.
(a) The Company shall furnish to the Trustee promptly after the
execution and delivery of this Indenture but prior to authentication of any
Securities, Opinions of Counsel covering such jurisdictions as the Owner
Trustee may reasonably request either (i) stating that in the opinion of
such Counsel the actions necessary to be taken under the Federal Aviation
Act, the Uniform Commercial Code of all applicable jurisdictions, or
otherwise with respect to the recording, registering and filing of this
Indenture, the other Operative Documents, financing statements or other
instruments to make effective and to perfect the Liens intended to be
created by the Mortgage have been taken and reciting with respect to the
security interests in the Collateral, the details of such actions, or (ii)
stating that, in the opinion of such Counsel, no such action is necessary
to make such Liens effective and perfected.
(b) The Company shall furnish to the Trustee within one hundred and
twenty (120) days after January 1 in each year beginning with January 1,
1999, an Opinion of Counsel, dated as of such date, either (i)(A) stating
that, in the opinion of such Counsel, action has been taken with respect to
the recording, registering, filing, rerecording, re-registering and
refiling (in this section, "recordation") of all supplemental indentures,
financing statements, continuation statements or other instruments of
further assurance as is necessary to maintain the Lien intended to be
created by the Mortgage (if not then terminated pursuant to its terms) and
the perfection thereof and reciting with respect to the security interests
in the Collateral the details of such action or referring to prior Opinions
of Counsel in which such details are given, and (B) stating that all
financing statements and continuation statements have been executed and
filed that are necessary as of such date and during the succeeding
seventeen (17) months fully to maintain the Lien of the Securityholders and
the Trustee intended to be created hereunder and under the Mortgage with
respect to the security interest in the Collateral and the perfection
thereof, or (ii) stating that, in the opinion of such Counsel, no such
action is necessary to maintain such Lien and the perfection thereof.
(c) The release of any Collateral from the terms of the Mortgage will not
be deemed to impair the security under this Indenture in contravention of the
provisions hereof if and to the extent the Collateral is released pursuant to
the Mortgage or this Indenture, as applicable. To the extent applicable, the
Company shall cause TIA Section 314(d) relating to the release of Property or
securities from the Lien of the Mortgage and relating to the substitution
therefor of any Property or securities to be subjected to the Lien of the
Mortgage, to be complied with. Any certificate or opinion required by TIA
Section 314(d) may be made by an Officer of the Company, except in cases where
TIA Section 314(d) requires that such certificate or opinion be made by
an independent person.
Section 10.3 Authorization of Actions to be Taken by the Trustee Under
the Operative Documents.
The Trustee may, in its sole discretion and without the consent of the
Securityholders, take all actions it deems necessary or appropriate to (a)
enforce any of the terms of the Operative Documents and (b) collect and
receive any and all amounts payable in respect of the obligations of the
Company hereunder and thereunder. Subject to the provisions of this
Indenture and the other Operative Documents, the Trustee shall have power
to institute and to maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Collateral by any acts which may
be unlawful or in violation of the other Operative Documents or this
Indenture, and such suits and proceedings as it may deem expedient to
preserve or protect its interest and the interests of the Securityholders
in the Collateral (including power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any
legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance
with, such enactment, rule or order would impair the security interest
hereunder or be prejudicial to the interests of the Securityholders or of
the Trustee).
Section 10.4 Payment of Expenses.
On demand of the Trustee, the Company forthwith shall pay or
satisfactorily provide for all reasonable expenditures incurred by the
Trustee under this Article 10, and all such sums shall be a Lien upon the
Collateral and shall be secured thereby.
Section 10.5 Authorization of Receipt of Funds by the Trustee Under
the Operative Documents.
The Trustee is authorized to receive any funds for the benefit of
Securityholders distributed under the Operative Documents, and to make
further distributions of such funds to the Holders according to the
provisions of this Indenture and the other Operative Documents.
ARTICLE 11.
MISCELLANEOUS
Section 11.1 Conflict with Trust Indenture Act of 1939.
If and to the extent that any provision of this Indenture limits,
qualifies, or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the TIA, such imposed duties shall control.
Section 11.2 Notices; Waivers.
Any request, demand, authorization, direction, notice, consent, waiver
or other document provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with
(a) the Company shall be sufficient for every purpose hereunder if in
writing (including telecopied communications) and made, given, furnished or
filed by personal delivery or mailed by registered or certified mail or by
nationally recognized overnight courier, postage or courier charges, as the
case may be, prepaid, to or with the Company at:
Trans World Airlines, Inc.
One City Centre
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President & General Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) the Trustee shall be sufficient for every purpose hereunder if in
writing (including telecopied communications) and made, given, furnished or
filed by personal delivery or mailed by registered or certified mail or by
nationally recognized overnight courier, postage or courier charges, as the
case may be, prepaid, to or with the Trustee at:
First Security Bank, National Association
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to any of the above parties at any other address or telecopier number
subsequently furnished in writing by it to each of the other parties listed
above. An affidavit by any person representing or acting on behalf of the
Company or the Trustee as to such mailing, having any registry receipt
required by this Section attached, shall be conclusive evidence of the
giving of such demand, notice or communication.
Any notice or communication mailed to a Holder shall be mailed to such
holder by first-class mail or by nationally recognized overnight courier,
postage or courier charges, as the case may be, prepaid, at such holder's
address as it appears on the Register and shall be sufficiently given to
such holder if so mailed within the time prescribed.
Failure to mail a notice or send a communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other
Holders. Notices to the Trustee or to the Company are deemed given only
when received. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by the Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
Section 11.3 Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other person
shall have the protection of TIA section 312(c).
Section 11.4 Certificate and Opinion as to Conditions Precedent.
Upon any Request or application by the Company to the Trustee to take
any action under this Indenture or the other Operative Documents, the
Company shall furnish to the Trustee: (a) an Officers' Certificate, and
(b) an Opinion of Counsel, each stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with, provided, that in
the case of any such application or Request as to which the furnishing of
an Officers' Certificate or Opinion of Counsel is specifically required by
any provision of this Indenture or the other Operative Documents relating
to such particular application or Request, no additional certificate or
opinion, as the case may be, need be furnished.
Section 11.5 Statements Required in Certificate or Opinion.
Each certificate or opinion provided for and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in
this Indenture or the other Operative Documents shall include: (a) a
statement that the Person signing such certificate or opinion has read such
condition or covenant and the definitions herein or therein relating
thereto; (b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (c) a statement that,
in the opinion of such Person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion
as to whether or not such condition or covenant has been complied with; and
(d) a statement as to whether or not in the opinion of such Person, such
condition or covenant has been complied with.
Any certificate or opinion of an Officer or an engineer, insurance
broker, accountant or other expert may be based, insofar as it relates to
legal matters, upon a certificate or opinion of or upon representations by
counsel, unless such officer, engineer, insurance broker, accountant or
other expert knows that the certificate or opinion or representations with
respect to the matters upon which his opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should have known that the
same were erroneous.
Any certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon the certificate or opinion of or
representations by an officer or officers of the Company stating that the
information with respect to such factual matters is in possession of the
Company, unless such counsel knows that the certificate or opinion or
representations with respect to the matters upon which his opinion may be
based as aforesaid are erroneous and insofar as it relates to legal matters
in a jurisdiction or area of law beyond the expertise of such counsel, such
counsel may rely upon the opinion of counsel qualified in such other
jurisdiction or area of law.
Wherever in this Indenture or the other Operative Documents in
connection with any application, certificate or report to the Trustee it is
provided that the Company shall deliver any document as a condition of the
granting of such application or as evidence of the Company's compliance
with any term hereof, it is intended that the truth and accuracy at the
time of the granting of such application or at the effective date of such
certificate or report, as the case may be, of the facts and opinions stated
in such document shall in each such case be a condition precedent to the
right of the Company to have such application granted or to the sufficiency
of such certificate or report. Nevertheless, in the case of any such
application, certificate or report, any document required by any provision
of this Indenture or the other Operative Documents to be delivered to the
Trustee as a condition of the granting of such application or as evidence
of such compliance may be received by the Trustee as conclusive evidence of
any statement therein contained and shall be full warrant, authority and
protection to the Trustee acting on the faith thereof.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents.
Whenever any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements or opinions or
other instruments under this Indenture or any other Operative Document such
Person may, but need not, consolidate such instruments into one.
Section 11.6 Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Registrar, Paying Agent or Tender Agent may make
reasonable rules for their respective functions.
Section 11.7 Holidays.
In the event that any date for the payment of any amount due hereunder
shall not be a Business Day, then (notwithstanding any other provision of
this Indenture) such payment need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if
made on the due date, and no interest or Special Interest, if any, shall
accrue from such due date to and including the next succeeding Business
Day.
Section 11.8 Governing Law; Waiver of Jury Trial.
(a) The laws of the State of New York shall govern this Indenture and
the Securities without regard to principles of conflict of laws.
(b) The Company and the Trustee each waive any right to have a jury
participate in resolving any dispute, whether sounding in contract, tort,
or otherwise arising out of, connected with, related to or incidental to
the relationship established between them in connection with this
Indenture. Instead, any disputes resolved in court will be resolved in a
bench trial without a jury.
Section 11.9 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any agreement of the
Company or any of its Subsidiaries which is unrelated to this Indenture,
the Securities or the other Operative Documents. Any such agreement may
not be used to interpret this Indenture.
Section 11.10 No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by
accepting a Security waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the Securities.
Section 11.11 Benefits of Indenture and the Securities Restricted.
Subject to the provisions of Section 11.12 hereof, nothing in this
Indenture or the Securities, express or implied, shall give or be construed
to give to any Person, firm or corporation, other than the parties hereto
and the Holders, any legal or equitable right, remedy or claim under or in
respect of this Indenture or under any covenant, condition, or provision
herein contained, all such covenants, conditions and provisions, subject to
Section 11.12 hereof, being for the sole benefit of the parties hereto and
of the Holders.
Section 11.12 Successors and Assigns.
This Indenture and all obligations of the Company hereunder shall be
binding upon the successors and permitted assigns of the Company, and
shall, together with the rights and remedies of the Trustee hereunder,
inure to the benefit of the Trustee, the Holders, and their respective
successors and assigns. Any assignment in violation hereof shall be null
and void ab initio.
Section 11.13 Counterpart Originals.
This Indenture may be signed in two or more counterparts, each of
which shall be deemed an original, but all of which shall together
constitute one and the same agreement.
Section 11.14 Severability.
The provisions of this Indenture are severable, and if any clause or
provision shall be held invalid, illegal or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall
affect in that jurisdiction only such clause or provision, or part thereof,
and shall not in any manner affect such clause or provision in any other
jurisdiction or any other clause or provision of this Indenture in any
jurisdiction, and a Holder shall have no claim therefor against any party
hereto.
Section 11.15 Effect of Headings.
The Article and Section headings and the Table of Contents contained
in this Indenture have been inserted for convenience of reference only, and
are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of this Indenture.
ARTICLE 12.
RELEASE OF COLLATERAL
Section 12.1 Release of Collateral.
The Collateral securing the obligations evidenced by the Securities
shall be subject to release from the Lien of this Indenture and the other
Operative Documents from and to the extent provided by this Indenture and
the other Operative Documents.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
TRANS WORLD AIRLINES, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
RULE 144A/REGULATION S APPENDIX
Appendix II
To the Indenture between
Trans World Airlines, Inc.
and
First Security Bank, National Association, as Trustee
dated as of April 21, 1998
for the Company's 11 3/8% Senior Secured Notes due 2003
RULE 144A/REGULATION S APPENDIX
FOR INITIAL ISSUANCE AND FOR
SUBSEQUENT OFFERINGS TO QUALIFIED INSTITUTIONAL BUYERS PURSUANT
TO
RULE 144A, INSTITUTIONAL "ACCREDITED INVESTORS" (AS DEFINED
IN RULE 501(A)(1), (2), (3) or (7)) AND TO CERTAIN PERSONS
IN OFFSHORE TRANSACTIONS IN RELIANCE ON REGULATION S
PROVISIONS RELATING TO INITIAL SECURITIES, RESALE SECURITIES,
-------------------------------------------------------------
PRIVATE EXCHANGE SECURITIES
---------------------------
AND EXCHANGE SECURITIES
-----------------------
1. Definitions
1.1 Definitions
For the purposes of this Appendix the following terms shall have the
meanings indicated below:
"Beneficiary" means Seven Sixty Seven Leasing, Inc., as beneficiary
under the Trust Agreement dated as of January 24, 1995 between the
Beneficiary and the Owner Trustee.
"Definitive Security" means a certificated Security bearing the
restricted securities legend set forth in Section 2.3(d) and which is held
by an IAI.
"Depository" means The Depository Trust Company, its nominees and
their respective successors.
"Exchange Securities" means the 11 3/8% Senior Secured Notes due 2003
to be issued pursuant to the Indenture in connection with a Registered
Exchange Offer pursuant to the Registration Rights Agreement.
"IAI" means an institutional "accredited investor" as described in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Securities" means the 11 3/8% Senior Secured Notes due 2003,
issued under the Indenture on or about the date of the Indenture to the
Owner Trustee, the Beneficiary, CL/PK, the Participants (as such terms are
defined in the Sale Agreement) and the Placement Agent as contemplated by
the Sale Agreement.
"Owner Trustee" means First Security Bank, National Association, not
in its individual capacity, but solely as Owner Trustee under the Trust
Agreement dated as of January 24, 1995 between the Beneficiary and the
Owner Trustee.
"Placement Agent" means Lazard Freres & Co. LLC.
"Placement Agreement" means the Placement Agreement, dated as of April
9, 1998, between the Company and the Placement Agent.
"Private Exchange" means the offer by the Company, pursuant to the
Registration Rights Agreement, to the Placement Agent to issue and deliver
to the Placement Agent, in exchange for the Initial Securities held by the
Placement Agent which constitute payment of fees, a like aggregate
principal amount of Private Exchange Securities.
"Private Exchange Securities" means the 11 3/8% Senior Secured Notes
due 2003 to be issued pursuant to the Indenture to the Placement Agent in a
Private Exchange.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A
under the Securities Act.
"Registered Exchange Offer" means the offer by the Company, pursuant
to the Registration Rights Agreement, to certain Holders of Initial
Securities or Resale Securities, to issue and deliver to such Holders, in
exchange for the Initial Securities or Resale Securities, as the case may
be, a like aggregate principal amount of Exchange Securities registered
under the Securities Act.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of April 21, 1998, among the Company, the Placement
Agent and the Owner Trustee relating to the Registered Exchange Offer.
"Resale Securities" means the 11 3/8% Senior Secured Notes due 2003 to
be issued pursuant to the Indenture upon resales of (i) the Initial
Securities held by the holders of the Initial Securities or (ii) the Resale
Securities held by any subsequent transferee to, in each case, any of their
subsequent transferees (other than those transfers to persons that are
contemplated by the Sale Agreement to occur on the Closing Date as
described in Section 4.04 thereof).
"Sale Agreement" means the Aircraft Sale and Note Purchase Agreement,
made and entered into as of April 9, 1998, among the Company, the Owner
Trustee and the Beneficiary.
"Securities" means the Initial Securities, the Resale Securities, the
Exchange Securities and the Private Exchange Securities, treated as a
single class.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a Global
Security (as appointed by the Depository), or any successor person thereto
and shall initially be the Trustee.
"Shelf Registration Statement" means the registration statement of the
Company, in connection with the offer and sale of Initial Securities or
Private Exchange Securities, pursuant to the Registration Rights Agreement.
"Transfer Restricted Securities" means Securities that bear or are
required to bear the legend set forth in Section 2.3(d) hereto.
1.2 Other Definitions
Defined in this Rule 144A/Regulation S
---------------------------------------
Term Appendix in the Section indicated below
---- ---------------------------------------
"Agent Members"...........................................................2.1(b)
"Global Security".........................................................2.1(b)
"Indenture"..................................................................2.2
"Regulation S"............................................................2.1(c)
"Rule 144A"...............................................................2.1(a)
Unless otherwise indicated, all Section numbers referenced herein are
to Sections of this Rule 144A/Regulation S Appendix.
2. The Securities.
2.1 Form and Dating.
The Initial Securities are being offered and sold by the Company
pursuant to the Sale Agreement and the Placement Agreement in reliance on
Section 4(2) of the Securities Act and shall be issued initially in the
form of definitive, fully registered Securities without interest coupons
with the restricted securities legend set forth in Exhibit 1 hereto,
registered in the name of, or as instructed by, the Owner Trustee, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. Resales of Initial Securities shall be in the form or forms
provided below in this Section 2.1.
(a) Global Securities. Resale Securities resulting from
Securities offered and sold to a QIB in reliance on Rule 144A under the
Securities Act ("Rule 144A") as provided in the Sale Agreement, shall be
issued in the form of one permanent global Security in definitive, fully
registered form without interest coupons with the global securities legend
and restricted securities legend set forth in Exhibit 1 hereto (the "Global
Security"), which shall be deposited on behalf of the purchasers of the
Resale Securities represented thereby with the Trustee, at its New York
office, as custodian for the Depository (or with such other custodian as
the Depository may direct), and registered in the name of the Depository or
a nominee of the Depository, duly executed by the Company and authenticated
by the Trustee as hereinafter provided. The aggregate principal amount of
the Global Security may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depository or its
nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only
to the Global Security deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(b), authenticate and deliver initially one Global
Security in respect of Resale Securities that are resold pursuant to Rule
144A that (a) shall be registered in the name of the Depository for such
Global Security or the nominee of such Depository and (b) shall be
delivered by the Trustee to such Depository or pursuant to such
Depository's instructions or held by the Trustee as custodian for the
Depository.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under the Indenture with respect to the Global
Security held on their behalf by the Depository or by the Trustee as the
custodian of the Depository or under any Global Security, and the
Depository may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of the Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the
Depository and its Agent Members, the operation of customary practices of
such Depository governing the exercise of the rights of a holder of a
beneficial interest in any Global Security.
(c) Certificated Securities. Except as provided in this Section
2.1 or Section 2.3 or 2.4, owners of beneficial interests in the Global
Security will not be entitled to receive physical delivery of certificated
Securities. Purchasers of Resale Securities who are IAI's and are not QIBs
or who are non-U.S. persons within the meaning of Regulation S under the
Securities Act ("Regulation S") will receive Definitive Securities;
provided, however, that upon transfer of such Definitive Securities to a
QIB in reliance on Rule 144A, such Definitive Securities will, unless the
applicable Global Security has previously been exchanged for Definitive
Securities, be exchanged for an interest in the Global Security pursuant to
the provisions of Section 2.3.
2.2 Authentication. The Trustee shall authenticate and deliver: (1)
Initial Securities for original issue on the Issue Date in an aggregate
principal amount of $43,200,000, (2) Resale Securities upon a transfer of
Initial Securities permitted in accordance with the terms of the Securities
and consistent with the applicable restrictions on transfer set forth in
the legend in Section 2.3(d) hereof and (3) Exchange Securities or Private
Exchange Securities for issue only in a Registered Exchange Offer or a
Private Exchange, respectively, pursuant to the Registration Rights
Agreement, for a like principal amount of Initial Securities or Resale
Securities, in the case of (1) and (3) above, upon a written order of the
Company signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of the Company. Such order shall
specify the amount of the Securities to be authenticated and the date on
which the original issue of Securities is to be authenticated and whether
the Securities are to be Initial Securities, Exchange Securities or Private
Exchange Securities. The aggregate principal amount of Securities
Outstanding at any time may not exceed $43,200,000 except as provided in
Section 2.7 of the Indenture of which this Rule 144A/Regulation S Appendix
forms a part (as it may be amended, restated, supplemented or otherwise
modified from time to time, the "Indenture").
2.3 Transfer and Exchange. (a) Transfer and Exchange of Definitive
Securities. When Definitive Securities are presented to the Registrar or a
co-Registrar with a request:
(i) to register the transfer of such Definitive Securities; or
(ii) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar or co-Registrar shall register the transfer or make the
exchange as requested if its reasonable requirements for such transaction
are met; provided, however, that the Definitive Securities surrendered for
transfer or exchange shall be accompanied by a duly executed Assignment
Form in the form attached to Exhibit 1 hereto.
(b) Restrictions on Transfer of a Definitive Security for a
Beneficial Interest in the Global Security. A Definitive Security may not
be exchanged for a beneficial interest in the Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the
Trustee of a Definitive Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Trustee,
together with:
(i) certification that such Definitive Security is being
transferred to a QIB in accordance with Rule 144A; and
(ii) written instructions directing the Trustee to make, or to
direct the Securities Custodian to make, an adjustment on its books
and records with respect to the Global Security to reflect an increase
in the aggregate principal amount of the Securities represented by
such Global Security, such instructions to contain information
regarding the Depository account to be credited with such increase,
then the Trustee shall cancel such Definitive Security and cause, or direct
the Securities Custodian to cause, in accordance with the standing
instructions and procedures existing between the Depository and the
Securities Custodian, the aggregate principal amount of Securities
represented by the Global Security to be increased by the aggregate
principal amount of the Definitive Security to be exchanged and shall
credit or cause to be credited to the account of the Person specified in
such instructions a beneficial interest in the Global Security equal to the
principal amount of the Definitive Security so canceled. If no Global
Security is then outstanding, the Company shall issue and the Trustee shall
authenticate, upon written order of the Company in the form of an Officers'
Certificate, a new Global Security in the appropriate principal amount.
(c) Transfer and Exchange of the Global Security.
(i) The transfer and exchange of the Global Security or
beneficial interests therein shall be effected through the Depository,
in accordance with the Indenture (including applicable restrictions on
transfer set forth herein, if any) and the procedures of the
Depository therefor. A transferor of a beneficial interest in the
Global Security shall deliver to the Registrar a written order given
in accordance with the Depository's procedures containing information
regarding the participant account of the Depository to be credited
with a beneficial interest in the Global Security. The Registrar
shall, in accordance with such instructions, instruct the Depository
to credit to the account of the Person specified in such instructions
a beneficial interest in the Global Security and to debit the account
of the Person making the transfer the beneficial interest in the
Global Security being transferred.
(ii) Notwithstanding any other provisions of this Rule
144A/Regulation S Appendix (other than the provision set forth in
Section 2.4 hereof), the Global Security may not be transferred as a
whole except by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor
Depository or a nominee of such successor Depository.
(iii) In the event that the Global Security is exchanged for
Securities in definitive registered form pursuant to Section 2.4
hereof or Section 2.9 of the Indenture prior to the consummation of a
Registered Exchange Offer or the effectiveness of a Shelf Registration
Statement with respect to such Securities, such Securities may be
exchanged only in accordance with such procedures as are substantially
consistent with the provisions of this Section 2.3 (including the
certification requirements intended to ensure that such transfers
comply with Rule 144A or Regulation S, as the case may be) and such
other procedures as may from time to time be adopted by the Company.
(d) Legends.
(i) Except as permitted by the following paragraphs (ii), (iii)
and (iv), each Security certificate evidencing the Global Securities
and the Definitive Securities (and all Securities issued in exchange
therefor or in substitution thereof) shall bear a legend in
substantially the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT,
OR ANY STATE SECURITIES LAWS. NEITHER THESE SECURITIES NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED, OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER.
THE HOLDER OF THESE SECURITIES BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL, OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE RESALE
RESTRICTION TERMINATION DATE WHICH IS THE DATE WHICH IS TWO YEARS
AFTER THE LATER OF THE DATE OF ORIGINAL ISSUANCE OF THESE SECURITIES
AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THESE SECURITIES (OR ANY PREDECESSOR OF THESE
SECURITIES) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A UNDER THE SECURITIES ACT, (D) PURSUANT TO OFFERS AND SALES
TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH
(a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR
TO ANY SUCH OFFER, SALE, OR TRANSFER (i) PURSUANT TO CLAUSES (D), (E)
OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND
(ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF
TRANSFER IN THE FORM ATTACHED TO OR ON THE REVERSE SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE."
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS THE TRUSTEE MAY
REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS."
Regulation S Securities will also bear the following additional legend:
[ON OR PRIOR TO THE 40TH DAY AFTER THE LATER OF THE COMMENCEMENT OF
THE OFFERING AND THE CLOSING DATE, TRANSFERS OF REGULATION S
SECURITIES TO U.S. PERSONS SHALL BE LIMITED TO TRANSFERS TO QUALIFIED
INSTITUTIONAL BUYERS PURSUANT TO RULE 144A UNDER THE SECURITIES ACT.]
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by the Global
Security) pursuant to Rule 144 under the Securities Act:
(A) in the case of any Transfer Restricted Security that is
a Definitive Security, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a
certificated Security that does not bear the legend set forth
above and rescind any restriction on the transfer of such
Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security that is
represented by the Global Security, the Registrar shall permit
the Holder thereof to exchange such Transfer Restricted Security
for a certificated Security that does not bear the legend set
forth above and rescind any restriction on the transfer of such
Transfer Restricted Security, if the Holder certifies in writing
to the Registrar that its request for such exchange was made in
reliance on such Rule 144.
(iii) After a transfer of any Initial Securities, Resale
Securities or Private Exchange Securities during the period of the
effectiveness of a Shelf Registration Statement with respect to such
Initial Securities, Resale Securities or Private Exchange Securities,
as the case may be, all requirements pertaining to legends on such
Initial Security, Resale Security or such Private Exchange Security
will cease to apply, the requirements requiring any such Initial
Security, Resale Security or such Private Exchange Security issued to
certain Holders to be issued in global form will cease to apply, and a
certificated Initial Security, Resale Security or Private Exchange
Security without legends will be available to the transferee of the
Holder of such Initial Securities, Resale Securities or Private
Exchange Securities upon exchange of such transferring Holder's
certificated Initial Security, Resale Security or Private Exchange
Security or directions to transfer such Holder's interest in the
Global Security, as applicable.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Securities or Resale Securities pursuant to
which Holders of such Initial Securities or Resale Securities are
offered Exchange Securities in exchange for their Initial Securities
or Resale Securities, all requirements pertaining to such Initial
Securities or Resale Securities that Initial Securities or Resale
Securities issued to certain Holders be issued in global form will
cease to apply and certificated Initial Securities or Resale
Securities with the Restricted Securities Legend set forth in Exhibit
1 hereto will be available to Holders of such Initial Securities or
Resale Securities that do not exchange their Initial Securities or
Resale Securities, and Exchange Securities in certificated or global
form will be available to Holders that exchange such Initial
Securities or Resale Securities in such Registered Exchange Offer.
(v) Upon consummation of a Private Exchange with respect to the
Initial Securities pursuant to which Holders of such Initial
Securities are offered Private Exchange Securities in exchange for
their Initial Securities, Private Exchange Securities in definitive
form with the Restricted Securities Legend set forth in Exhibit 1
hereto will be available to Holders that exchange such Initial
Securities in such Private Exchange.
(e) Cancellation or Adjustment of the Global Security. At such
time as all beneficial interests in the Global Security have either been
exchanged for certificated or Definitive Securities, redeemed, repurchased
or canceled, such Global Security shall be returned to the Depository for
cancellation or retained and canceled by Trustee. At any time prior to
such cancellation, if any beneficial interest in the Global Security is
exchanged for certificated or Definitive Securities, redeemed, repurchased
or canceled, the principal amount of Securities represented by such Global
Security shall be reduced and an adjustment shall be made on the books and
records of the Trustee (if it is then the Securities Custodian for such
Global Security) with respect to the Custodian, to reflect such reduction.
(f) Obligations with Respect to Transfers and Exchanges of
Securities.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate certificated
Securities, Definitive Securities and any Global Security at the
Registrar's or co-Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessment or similar governmental charge payable
upon exchange or transfer pursuant to Sections 2.9, 3.7, 4.15 or 9.5
of the Indenture).
(iii) The Registrar or co-Registrar shall not be required to
register the transfer or exchange of any certificated or Definitive
Security tendered for repurchase in whole or in part pursuant to an
Offer to Purchase (as defined in Appendix I to the Indenture), except
the unredeemed portion of any certificated or Definitive Security
being repurchased in part and except to the Company.
(iv) Prior to the due presentation for registration of transfer
of any Security, the Company, the Trustee, the Paying Agent, the
Registrar or any co-Registrar may deem and treat the person in whose
name a Security is registered as the absolute owner of such Security
for the purpose of receiving payment of principal of, premium, if any,
or, interest on, or Special Interest, if any, with respect to, such
Security and for all other purposes whatsoever, whether or not such
Security is overdue and none of the Company, the Trustee, the Paying
Agent, the Register or any co-Registrar shall be affected by notice to
the contrary.
(v) All Securities issued upon any transfer or exchange pursuant
to the terms of the Indenture shall evidence the same debt and shall
be entitled to the same benefits under the Indenture as the Securities
surrendered upon such transfer or exchange.
(g) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of the Global Security, a member of or a
participant in the Depository or other Person with respect to the
accuracy of the records of the Depository or its nominee or of any
participant or member thereof with respect to any ownership interest
in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depository)
of any notice (including any notice of redemption) or the payment of
any amount under or with respect to such Securities. All notices and
communications to be given to the Holders and all payments to be made
to Holders under the Securities shall be given or made only to or upon
the order of the registered Holders (which shall be the Depository or
its nominee in the case of the Global Security). The rights of
beneficial owners in the Global Security shall be exercised only
through the Depository subject to the applicable rules and procedures
of the Depository. The Trustee may rely and shall be fully protected
in relying upon information furnished by the Depository with respect
to its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on
transfer imposed under the Indenture or under applicable law with
respect to any transfer of any interest in any Security (including any
transfers between or among Depository participants, members or
beneficial owners in the Global Security) other than to require
delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required
by, the terms of the Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements
hereof.
2.4 Certificated Securities.
(a) All or any portion of the Global Security deposited with the
Depository or with the Trustee as custodian for the Depository pursuant to
Section 2.1 shall be transferable to the beneficial owners thereof in the
form of certificated Securities in an aggregate principal amount equal to
the principal amount of such certificated security, in exchange for such
interest in the applicable Global Security, only if such transfer complies
with Section 2.3 and (i) the Depository notifies the Company that it is
unwilling or unable to continue as Depository for such Global Security or
if at any time such Depository ceases to be a "clearing agency" registered
under the Exchange Act, or (ii) an Event of Default (as defined in the
Indenture) has occurred and is continuing or (iii) the Company, in its sole
discretion, notifies the Trustee in writing such Global Security or Global
Securities shall be exchangeable.
(b) Any Global Security that is transferable to the beneficial
owners thereof pursuant to this Section shall be surrendered by the
Depository to the Trustee located in the Borough of Manhattan, The City of
New York, to be so transferred, in whole or from time to time in part,
without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Security, an equal aggregate
principal amount of certificated Resale Securities of authorized
denominations. Any portion of the Global Security transferred pursuant to
this Section shall be executed, authenticated and delivered only in
denominations of $1,000 principal amount and any integral multiple thereof
(except that the Global Security may be issued in a different denomination)
and registered in such names as the Depository shall direct. Any
certificated Resale Security delivered in exchange for an interest in the
Global Security shall, except as otherwise provided by Section 2.3, bear
the legend set forth in Section 2.3(d).
(c) Subject to the provision of Section 2.4(b), the registered
Holder of the Global Security may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under
the Indenture or the Securities.
(d) In the event of the occurrence of any of the events
specified in Section 2.4(a), the Company will promptly make available to
the Trustee a reasonable supply of certificated Securities in definitive,
fully registered form without interest coupons.
EXHIBIT 1
to
RULE 144A/REGULATION S APPENDIX
[FORM OF FACE OF INITIAL SECURITY AND RESALE SECURITY]
[Global Securities Legend]*
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT, OR ANY STATE SECURITIES LAWS. NEITHER THESE SECURITIES NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED
BY RULE 144A THEREUNDER.
THE HOLDER OF THESE SECURITIES BY ITS ACCEPTANCE HEREOF AGREES
TO OFFER, SELL, OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE RESALE
RESTRICTION TERMINATION DATE WHICH IS THE DATE WHICH IS TWO YEARS AFTER THE
LATER OF THE DATE OF ORIGINAL ISSUANCE OF THESE SECURITIES AND THE LAST DATE
ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THESE
SECURITIES (OR ANY PREDECESSOR OF THESE SECURITIES) ONLY (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER
THE SECURITIES ACT, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a)(1), (2) (3), OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE, OR TRANSFER (i) PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO
REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM ATTACHED TO OR ON THE
REVERSE SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS THE TRUSTEE MAY REASONABLY
REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
[Regulation S Securities Legend]
[ON OR PRIOR TO THE 40TH DAY AFTER THE LATER OF THE
COMMENCEMENT OF THE OFFERING AND THE CLOSING DATE, TRANSFERS OF REGULATION S
SECURITIES TO U.S. PERSONS SHALL BE LIMITED TO TRANSFERS TO QUALIFIED
INSTITUTIONAL BUYERS PURSUANT TO RULE 144A UNDER THE SECURITIES ACT.]
No. CUSIP No.
$
11 3/8% Senior Secured Note due 2003
TRANS WORLD AIRLINES, INC., a Delaware corporation promises to
pay to __________, or registered assigns, the principal sum of __________
Dollars on April 15, 2003.
Interest Payment Dates: April 15 and October 15.
Record Dates: April 1 and October 1.
Additional provisions of this Security are set forth on the
other side of this Security.
Dated:
TRANS WORLD AIRLINES, INC.
By:________________________________
Name:
Title:
Attest:
________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
First Security Bank, National Association,
as Trustee, certifies that this is one of
the Securities referred to in the
Indenture.
By:_______________________________
Authorized Signatory
______________________
* Only if the Security is a Resale Security transferred pursuant to Rule
144A is the Global Securities Legend applicable.
[FORM OF REVERSE SIDE OF INITIAL SECURITY AND RESALE SECURITY]
11 3/8% Senior Secured Note due 2003
This Security is one of a duly authorized issue of securities
of the Company designated as its 11 3/8% Senior Secured Notes due 2003
(hereinafter called the "Securities"), limited in aggregate principal amount
Outstanding to $43,200,000, issued or to be issued pursuant to an Indenture,
dated as of April 21, 1998 (hereinafter called the "Indenture") between the
Company and First Security Bank, National Association, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture).
1. Interest; Special Interest. The Company promises to pay
interest on the principal amount of this Security at the rate of Eleven and
Three-Eighths percent (11 3/8%) per annum, subject to increase as provided in
paragraph 8 below; provided, however, that if a Registration Default (as
defined in and subject to the provisions of the Registration Rights Agreement)
occurs (each period during which a Registration Default has occurred and is
continuing referred to herein as a "Registration Default Period"), additional
interest will accrue on this Security at a per annum rate of 0.50% for the
first 90 days of the Registration Default Period, at a per annum rate of 1.0%
for the second 90 days of the Registration Default Period, at a per annum rate
of 1.5% for the third 90 days of the Registration Default Period and at a per
annum rate of 1.5% thereafter for the remaining portion of the Registration
Default Period (such additional interest is referred to herein as "Special
Interest"). The Company will pay interest and Special Interest, if any,
semi-annually on the Interest Payment Dates set forth on the face of this
Security, commencing October 15, 1998. Interest on the Securities will accrue
from April 21, 1998 or the most recent Interest Payment Date to which interest
and Special Interest, if any, have been paid. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on and
Special Interest, if any, with respect to, the Securities (except defaulted
interest and interest on defaulted principal) to the persons who are
registered Holders of Securities at the close of business on the Record Date
set forth on the face of this Security next preceding the applicable Interest
Payment Date. Defaulted interest and interest on defaulted principal will be
paid by the Company in accordance with the applicable provisions of the
Indenture. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal, interest and Special
Interest, if any, at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York and at any other
office or agency maintained by the Company for such purpose in money of the
United States that at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the
Company, payment of interest on and Special Interest, if any, with respect to,
the Securities may be by check payable in such money and mailed to a Holder's
registered address; provided further, however, that payments on a certificated
Security will be made by wire transfer to a U.S. dollar account maintained by
a Holder with a bank in New York City if such Holder owns at least $250,000 in
aggregate principal amount of certificated Securities and elects payment by
wire transfer by giving written notice to the Company and the Trustee to such
effect designating such account no later than 10 days immediately preceding
the relevant due date for payment (or such other date as the Company and the
Trustee may accept in their discretion). If a payment date is a legal holiday
at a place of payment, payment may be made at that place on the next
succeeding Business Day, and no interest shall accrue for the intervening
period.
3. Registrar, Paying Agent and Tender Agent. Initially, the
Trustee will act as Registrar and Paying Agent. The Company may change any
Paying Agent or Registrar or co-registrar without prior notice to any
Securityholder. The Company may act in any such capacity, except in certain
circumstances.
4. Indenture. The Company issued the Securities under the
Indenture. The terms of the Securities include those stated in the Indenture
and those made applicable to the Indenture by the TIA. The Securities are
subject to all such terms, and Securityholders are referred to the Indenture
and such Act for a statement of such terms. Subject to paragraph 7 hereof,
the Securities are senior secured obligations of the Company limited to
$43,200,000 aggregate principal amount, except as otherwise provided in the
Indenture. Terms used in this Security and not defined in this Security shall
have the meaning set forth in Section 1 of the Definitions Appendix attached
as Appendix I to the Indenture, which shall be a part of this Security as if
fully set forth in this place. The rules of construction for this Security
are set forth in Section 2 of the Definitions Appendix.
5. Optional and Mandatory Redemption. Except as set forth in
the second paragraph under this paragraph 5, the Securities may not be
redeemed prior to April 15, 2001. On and after that date, the Company may
redeem the Securities at any time in whole or in part (in any integral
multiple of $1,000) at its sole option at redemption prices (expressed as a
percentage of principal amount) as set forth below during the twelve month
periods beginning April 15 of the years shown below, plus in each case an
amount equal to accrued and unpaid interest and Special Interest, if any, with
respect to, the Securities to and including the redemption date:
Year Redemption Price
---- ----------------
2001 104.550%
2002 102.275%
In addition, subject to the provisions of the Indenture, the
Company shall, until all the Securities are paid or payment thereof provided
for, deposit in accordance with Section 3.6 of the Indenture, at least one
Business Day prior to October 15 in each year, commencing October 15, 2000
(each such date being hereinafter referred to as a "Mandatory Redemption
Date"), an amount in cash sufficient to redeem an aggregate principal amount
of Securities (the "Mandatory Redemption Amount") equal to $1,840,000 on
October 15, 2000 and $1,838,000 on each of October 15, 2001 and October 15,
2002 (or, if the aggregate principal amount of Securities Outstanding on any
such Mandatory Redemption Date is less than the principal amount required to
so be redeemed, then all the Outstanding Securities shall be redeemed on such
date), at a redemption price (expressed as a percentage of the aggregate
principal amount of Securities Outstanding) of 100% plus accrued and unpaid
interest and Special Interest, if any, to the Mandatory Redemption Date
(subject to the right of holders of record on the relevant record date to
receive interest and Special Interest, if any, due on the relevant Interest
Payment Date). Each such deposit shall be applied to the redemption of
Securities on such Mandatory Redemption Date as provided in the Indenture.
The Company may at its option receive credit against any or all of the cash
portion of the Mandatory Redemption Amount for open market purchases of
Securities, and such Mandatory Redemption Amount is subject to automatic
reduction in connection with any permitted sale of or Total Loss with respect
to any Aircraft, all as provided in the Indenture.
6. Notice of Redemption. Notice of any redemption will be
mailed at least 30 days but not more than 60 days before the redemption date
to each Holder of Securities to be redeemed at his registered address.
Securities in denominations larger than $1,000 may be redeemed in part but only
in whole multiples of $1,000. If money sufficient to pay the redemption price
of and accrued interest on, and Special Interest, if any, with respect to, all
Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to
accrue on such Securities (or such portions thereof) called for redemption.
7. Security. The Securities are secured by Liens on certain
Properties of the Company pursuant to the Mortgage and the other Operative
Documents described in the Indenture and such Liens are subject to release as
provided herein and in the Mortgage and the other Operative Documents.
8. Offers to Purchase. In the event that there shall occur a
Change in Control, the Company shall make an Offer to Purchase all of the
Outstanding Securities, at a purchase price equal to 101% of the aggregate
principal amount of the Securities Outstanding, plus accrued and unpaid
interest and Special Interest, if any, to and including the repurchase date.
The right to require such repurchase of Securities shall not continue after a
discharge of the Company from its obligations with respect to the Securities
in accordance with Article 8 of the Indenture. The Company shall commence
such Offer to Purchase within thirty (30) days after the occurrence of a
Change in Control.
In the event that the Company desires to sell any of the
Aircraft as and when permitted in Section 4.12 of the Indenture, the Company
shall (unless the Company is not required to make such Offer to Purchase
pursuant to the provisions of such Section 4.12) have commenced an Offer to
Purchase Securities in an aggregate principal amount (the "Sale OTP Amount")
equal to (for each Aircraft so sold) (a) the aggregate principal amount of the
Securities Outstanding on the date of the commencement of such Offer to
Purchase minus (b) the product of the (i) Redemption Value as of such date
multiplied by (ii) the number of Aircraft that will remain subject to the
Mortgage after giving effect to such sale, at a purchase price (expressed as a
percentage of principal amount of Securities to be purchased) equal to (A)
102%, if such Offer to Purchase is commenced prior to the first anniversary of
the Issue Date, or (B) 101%, if such Offer to Purchase is commenced on or after
the first anniversary of the Issue Date, plus in each case, accrued and unpaid
interest and Special Interest, if any, on such Securities to and including the
Payment Date. Effective as of the day immediately following the Payment Date
with respect to the Offer to Purchase in connection with any sale of an
Aircraft, the interest rate borne by the Securities then Outstanding shall be
subject to possible automatic increase as set forth in Section 4.12 of the
Indenture, and the Aircraft so sold shall be released from the Lien of the
Operative Documents in accordance with the provisions thereof. The Company
may receive credit against any or all of the Sale OTP Amount for open market
purchases of Securities as provided in the Indenture.
In the event that there shall occur a Total Loss with respect
to any Aircraft, the Company shall (unless the Company is not required to make
such Offer to Purchase pursuant to the provisions of Section 4.12 of the
Indenture) make an Offer to Purchase an aggregate principal amount of
Outstanding Securities (the "Total Loss OTP Amount") equal to (for each
Aircraft subject to such Total Loss) (a) the aggregate principal amount of the
Securities Outstanding on the date such Offer to Purchase (if any) is required
to be commenced under the Indenture minus (b) the product of (i) the
Redemption Value as of such date multiplied by (ii) the number of Aircraft
remaining that were not subject to such Total Loss, at a purchase price equal
to 100% of the aggregate principal amount of Securities to be purchased, plus
accrued and unpaid interest and Special Interest, if any, on such Securities,
to and including the Payment Date, and the Aircraft that was the subject of
such Total Loss shall be released from the Lien of the Operative Documents in
accordance with the provisions thereof. The Company shall commence such Offer
to Purchase (if any) within thirty (30) days after the Total Loss Date with
respect to any such Total Loss. The Company may receive credit against any or
all of the Total Loss OTP Amount for open market purchases of Securities as
provided in the Indenture.
"Offer to Purchase" means an offer to purchase all or a
portion, as the case may be, of the Securities by the Company from the Holders
commenced by the mailing (by first class mail, postage prepaid) by the Company
(or, if requested by the Company on at least five Business Days' prior notice
to the Trustee and at the Company's expense, by the Trustee) of a notice to
each Holder (and, if mailed by the Company, to the Trustee) at such Holder's
address appearing in the Register, stating: (i) the covenant pursuant to
which the offer is being made and that all Securities validly tendered will
be accepted for payment, provided, that if Securities in excess of the
aggregate principal amount that the Company has offered to purchase are
tendered by the Holders, then Securities will be purchased from the tendering
Holders pro rata, based on the aggregate principal amount of Securities
tendered by each such Holder; (ii) the purchase price and the date of purchase
(which shall be a Business Day no earlier than 30 days nor later than 60 days
from the date such notice is mailed) (the "Payment Date"); (iii) that any
Security not tendered will continue to accrue interest pursuant to its terms
(including, if such Offer to Purchase is being made pursuant to Section
4.12(c)(i)(A) of the Indenture, a statement that the rate of interest on such
Security may be subject to increase in accordance with the provisions of such
Section); (iv) that, unless the Company defaults in the payment of the
purchase price on the Payment Date, any Security accepted for payment pursuant
to the Offer to Purchase shall cease to accrue interest on and after the
Payment Date; (v) that Holders electing to have a Security purchased pursuant
to the Offer to Purchase will be required to surrender the Security, together
with the form entitled "Option of the Holder to Elect Purchase" attached to
or on the reverse side of the Security completed, to the Paying Agent at the
address specified in the notice at any time beginning with the date of such
notice but prior to the close of business on the Business Day immediately
preceding the Payment Date (or, if such day is a Legal Holiday, on the next
subsequent day which is not a Legal Holiday), and such Holder shall be
entitled to receive from the Paying Agent a non-transferable receipt of
deposit evidencing such deposit; (vi) that, unless the Company defaults in
making the payment of the purchase price or shall otherwise, in its sole
discretion, consent thereto, Holders will be entitled to withdraw their
election only if the Trustee receives, not later than the close of business on
the fifth Business Day immediately preceding the Payment Date, a telegram,
facsimile transmission or letter setting forth the name of such Holder, the
principal amount of Securities delivered for purchase and a statement that
such Holder is withdrawing his election to have such Securities purchased; and
(vii) that Holders whose Securities are being purchased only in part will be
promptly issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered (which new Securities, if such Offer to
Purchase is being made pursuant to Section 4.12(c)(i)(A) of the Indenture,
will cease to be secured by the Aircraft released pursuant to such Section);
provided that each Security purchased and each new Security issued shall be in
a principal amount of $1,000 or integral multiples thereof. The Company shall
place such notice in the national edition of The New York Times or The Wall
Street Journal or, if such newspapers are not then in circulation, in a
financial newspaper of general circulation in New York City. No failure of
the Company to give the foregoing notice shall limit any Holder's right to
exercise a repurchase right. On the Payment Date, the Company shall (i)
accept for payment Securities or portions thereof tendered pursuant to an
Offer to Purchase, provided, that if Securities in excess of the aggregate
principal amount that the Company has offered to purchase are tendered by the
Holders, then Securities will be purchased from the tendering Holders pro
rata, based on the aggregate principal amount of Securities tendered by each
such Holder; (ii) deposit with the Trustee money sufficient to pay the
purchase price of all Securities or portions thereof so accepted; and (iii)
deliver, or cause to be delivered, to the Trustee all Securities or portions
thereof so accepted together with an Officers' Certificate specifying the
Securities or portions thereof accepted for payment by the Company. The
Trustee shall promptly mail to the Holders of Securities so accepted payment
in an amount equal to the purchase price, and the Trustee shall promptly
authenticate, and the Company shall promptly execute and mail (or cause to be
mailed) to such Holders a new Security equal in principal amount to any
unpurchased portion of the Securities surrendered; provided that each Security
purchased and each new Security issued shall be in a principal amount of
$1,000 or integral multiples thereof; provided further that if the Payment
Date is between a regular Record Date and the next succeeding Interest Payment
Date, Securities to be repurchased must be accompanied by payment of an amount
equal to the interest and Special Interest, if any, payable on such succeeding
Interest Payment Date on the principal amount to be repurchased, and the
interest on the principal amount of the Security being repurchased, and Special
Interest, if any, with respect thereto, will be paid on such next succeeding
Interest Payment Date to the registered holder of such Security on the
immediately preceding Record Date. A Security repurchased on an Interest
Payment Date need not be accompanied by any such payment, and the interest on
the principal amount of the Security being repurchased and Special Interest,
if any, with respect thereto, will be paid on such Interest Payment Date to
the registered holder of such Security on the corresponding Record Date. The
Company will publicly announce the results of an Offer to Purchase as soon as
practicable after the Payment Date. The Trustee shall act as the Paying Agent
for an Offer to Purchase. The Company will comply with Rule 14e-l under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable, in the event that the Company
is required to repurchase Securities pursuant to an Offer to Purchase. Both
the notice of the Company and the notice of the Holder having been given as
specified above, the Securities so to be repurchased shall, on the Payment
Date become due and payable at the purchase price applicable thereto and from
and after such date (unless the Company shall default in the payment of such
purchase price) such Securities shall cease to bear interest. If any Security
shall not be paid upon surrender thereof for repurchase, the principal shall,
until paid, bear interest from the Payment Date at the rate borne by such
Security. Any Security which is to be submitted for repurchase only in part
shall be delivered pursuant to the above provisions with (if the Company or
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 such Holder's attorney duly authorized in writing.
9. Denominations, Transfer, Exchange. The Securities shall be
issuable only in registered form without coupons and in denominations of
$1,000 and integral multiples thereof. The transfer of Securities may be
registered and Securities may be exchanged as provided in the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes required by law or
permitted by the Indenture.
10. Persons Deemed Owners. The Company, the Trustee and any
agent of the Company or the Trustee may treat the person in whose name this
Security is registered with the Registrar as the owner for all purposes.
11. Discharge. Subject to certain conditions set forth in
Article 8 of the Indenture, the Company may terminate its obligations under
the Securities and the Indenture, except those obligations referred to in
Section 8.1(b) of the Indenture, if the Company deposits with the Trustee or a
Paying Agent cash or U.S. Government Obligations for the payment of principal
of, interest on, and Special Interest, if any, with respect to, the Securities
to Stated Maturity.
12. Amendments and Waivers. Subject to certain exceptions, the
Indenture, the Securities, or the other Operative Documents may be amended
with the consent of the Holders of at least a majority in principal amount of
the then Outstanding Securities, and any existing Default, Event of Default or
acceleration may be waived with the consent of the Holders of a majority in
principal amount of the then Securities Outstanding. Without the consent of
any Holder, the Indenture, the Securities or any of the Operative Documents
may be amended to, among other things, cure any ambiguity, defect or
inconsistency.
13. Defaults and Remedies. Events of Default under the
Indenture include the following: default for the period specified in the
Indenture in payment of interest on, or Special Interest, if any, with respect
to the Securities; default in payment of the principal amount of any
Securities when the same becomes due and payable (at maturity, upon
acceleration, redemption, tender for repurchase or otherwise); failure by the
Company to comply with specific covenants of the Indenture or of the Mortgage
within the time periods provided therein, discontinuing substantially all of
its commercial airlines operations, or failure to pay over amounts required
under the Mortgage; failure to comply in any material respect with any of its
other agreements contained in the Indenture, the other Operative Documents or
the Securities; a representation or warranty of the Company in the Indenture,
the other Operative Documents or any Mortgage Supplement or in any certificate
of the Company delivered under any such document proves to be untrue in any
material respect when made; the occurrence of certain defaults under any
Indebtedness of the Company or any of its Significant Subsidiaries in excess
of $10,000,000 in principal amount; the rendering or domestication of final
judgments by a court of competent jurisdiction against the Company or any of
its Significant Subsidiaries in an aggregate amount of $10,000,000 or more
which remain undischarged for a period (during which execution is not stayed)
of sixty (60) days after the date on which the right to appeal has expired;
cessation of effectiveness of Operative Documents without the consent of the
Trustee; and certain events of bankruptcy, insolvency or reorganization.
Subject to certain limitations in the Indenture, if an Event of Default occurs
and is continuing, the Trustee or the Holders of twenty-five percent (25%) in
principal amount of the Securities Outstanding may declare all the Securities
to be due and payable immediately, except that in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, all
Securities Outstanding become due and payable immediately without further
action or notice. Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in
principal amount of the then Outstanding Securities may direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from
Securityholders notice of any continuing default (except a default in payment
of principal or interest) if it determines that withholding notice is in their
interests. The Company must furnish compliance certificates to the Trustee.
The above description of Events of Default and remedies is qualified by
reference, and subject in its entirety to the more complete description
thereof contained in the Indenture.
14. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or Affiliates of the Company with the same rights it
would have if it were not Trustee.
15. No Recourse Against Others. A director, officer, employee
or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
16. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
17. Unclaimed Money. If money for the payment of principal of,
interest on, or Special Interest, with respect to, or the purchase price for
the Securities remains unclaimed for two (2) years, the Trustee or Paying
Agent will pay the money back to the Company at its request. After such
payment, Holders entitled to any portion of such money must look to the
Company for payment unless an applicable law designates another person.
18. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
19. CUSIP Numbers. The Company in issuing this Security may
use a "CUSIP" number (if then generally in use) and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided, however, that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and any
such redemption shall not be affected by any defect in or omission of such
numbers.
20. Holders' Compliance with Registration Rights Agreement.
Each Holder of a Security, by acceptance hereof, acknowledges and agrees to
the provisions of the Registration Rights Agreement, including, without
limitation, the obligations of the Holders with respect to a registration and
the indemnification of the Company to the extent provided therein.
21. Governing Law. THIS SECURITY SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
The Company will furnish to any Holder of this Security, upon
written request and without charge, a copy of the Indenture. Request may be
made to: Trans World Airlines, Inc., One City Centre, ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
(Insert Assignee's Soc. Sec. or Tax I.D. No.)
(Print or type assignee's name, address and zip
code)
and irrevocably appoint ______________
agent to transfer this Security on the books of
the Company. The agent may substitute
another to act for him.
Date:________________________________ Signature(s):____________________________
____________________________
(Sign exactly as your name(s)
appear(s) on the other side
of this Security)
Signature(s) guaranteed by:
____________________________
(All signatures must be
guaranteed by a member of a
national securities exchange
or of the National
Association of Securities
Dealers, Inc. or by a
commercial bank or trust
company located in the United
States)
OPTION OF THE HOLDER TO ELECT PURCHASE
If you want to elect to have this Security repurchased by the
Company pursuant to any Offer to Purchase under the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security
repurchased by the Company pursuant to any Offer to Purchase under the
Indenture, state the principal amount to be repurchased:
$___________________________
(in an integral multiple of $1,000)
Date:________________________________ Signature(s):____________________________
____________________________
(Sign exactly as your name(s) appear(s) on
the other side of this Security)
Signature(s) guaranteed by:
_________________________________________
(All signatures must be guaranteed
by a member of a national securities
exchange or of the National Association of
Securities Dealers, Inc. or by a
commercial bank or trust company located
in the United States)
CERTIFICATE OF TRANSFER
Re: 11 3/8% Senior Secured Notes due 2003 (the "Notes") of
Trans World Airlines, Inc. (the "Company")
This Certificate relates to Notes held in definitive form by
___________ (the "Transferor").
The Transferor has requested the Registrar by written order to
exchange or register the transfer of a Note or Notes. In connection with such
request and in respect of each such Note, the Transferor does hereby certify
that the Transferor is familiar with the Indenture relating to the above
captioned Notes and that the transfer of this Note does not require
registration under the Securities Act of 1933 (the "Securities Act"), because:*
[ ] Such Note is being transferred to the Company.
[ ] Such Note is being transferred pursuant to an effective
Registration Statement under the Securities Act.
[ ] Such Note is being transferred to a qualified
institutional buyer (as defined in Rule 144A under the Securities Act) in
reliance on Rule 144A.
[ ] Such Note is being transferred pursuant to an offshore
transaction in accordance with Rule 904 under the Securities Act.
[ ] Such Note is being transferred to an Institutional
"Accredited Investor" within the meaning of Subparagraph (a)(1), (2), (3) or (7)
of Rule 501 under the Securities Act.
[ ] Such Note is being transferred in a transaction meeting
the requirements of Rule 144 under the Securities Act.
The Registrar and the Company are entitled to rely upon this
Certificate and are irrevocably authorized to produce this Certificate or a
copy hereof to any interested party in any administrative or legal proceedings
or official inquiry with respect to the matters covered hereby.
________________________________________
[INSERT NAME OF TRANSFEROR]
By:_____________________________________
Date:________________________________
_____________________________________
* Please check applicable box.
EXHIBIT 2
to
RULE 144A/REGULATION S APPENDIX
[FORM OF FACE OF EXCHANGE SECURITY OR PRIVATE EXCHANGE SECURITY]
[*]
[**]
No. CUSIP No.
$
11 3/8% Senior Secured Note due 2003
TRANS WORLD AIRLINES, INC., a Delaware corporation promises to
pay to __________, or registered assigns, the principal sum of __________
Dollars on April 15, 2003.
Interest Payment Dates: April 15 and October 15.
Record Dates: April 1 and October 1.
Additional provisions of this Security are set forth on the
other side of this Security.
Dated:
TRANS WORLD AIRLINES, INC.
By:_____________________________________
Name:
Title:
Attest:
_____________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
First Security Bank, National Association,
as Trustee, certifies that this is one of
the Securities referred to in the
Indenture.
By:_____________________________
Authorized Signatory
______________________
* If the Security is to be issued in global form add the Global Securities
Legend from Exhibit 1 to the Rule 144A/Regulation S Appendix.
** If the Security is a Private Exchange Security issued in a Private
Exchange to the Placement Agent with respect to Securities acquired in other
than market making or trading activities, add the Restricted Securities Legend
from Exhibit 1 to the Rule 144A/Regulation S Appendix and add the Certificate
of Transfer from such Exhibit to the end of this Exhibit 2.
[FORM OF REVERSE SIDE OF EXCHANGE OR PRIVATE EXCHANGE SECURITY]
11 3/8% Senior Secured Note due 2003
This Security is one of a duly authorized issue of securities
of the Company designated as its 11 3/8% Senior Secured Notes due 2003
(hereinafter called the "Securities"), limited in aggregate principal amount
Outstanding to $43,200,000, issued or to be issued pursuant to an Indenture,
dated as of April 21, 1998 (hereinafter called the "Indenture") between the
Company and First Security Bank, National Association, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture).
1. Interest; Special Interest. The Company promises to pay
interest on the principal amount of this Security at the rate of Eleven and
Three-Eighths percent (11 3/8%) per annum, subject to increase as provided in
paragraph 8 below; provided, however, that if a Registration Default (as
defined in and subject to the provisions of the Registration Rights Agreement)
occurs (each period during which a Registration Default has occurred and is
continuing referred to herein as a "Registration Default Period"), additional
interest will accrue on this Security at a per annum rate of 0.50% for the
first 90 days of the Registration Default Period, at a per annum rate of 1.0%
for the second 90 days of the Registration Default Period, at a per annum rate
of 1.5% for the third 90 days of the Registration Default Period and at a per
annum rate of 1.5% thereafter for the remaining portion of the Registration
Default Period (such additional interest is referred to herein as "Special
Interest"). The Company will pay interest and Special Interest, if any,
semi-annually on the Interest Payment Dates set forth on the face of this
Security, commencing October 15, 1998. Interest on the Securities will accrue
from April 21, 1998 or the most recent Interest Payment Date to which interest
and Special Interest, if any, have been paid. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on and
Special Interest, if any, with respect to, the Securities (except defaulted
interest and interest on defaulted principal) to the persons who are
registered Holders of Securities at the close of business on the Record Date
set forth on the face of this Security next preceding the applicable Interest
Payment Date. Defaulted interest and interest on defaulted principal will be
paid by the Company in accordance with the applicable provisions of the
Indenture. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal, interest and Special
Interest, if any, at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York and at any other
office or agency maintained by the Company for such purpose in money of the
United States that at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the
Company, payment of interest on and Special Interest, if any, with respect to,
the Securities may be by check payable in such money and mailed to a Holder's
registered address; provided further, however, that payments on a certificated
Security will be made by wire transfer to a U.S. dollar account maintained by
a Holder with a bank in New York City if such Holder owns at least $250,000 in
aggregate principal amount of certificated Securities and elects payment by
wire transfer by giving written notice to the Company and the Trustee to such
effect designating such account no later than 10 days immediately preceding
the relevant due date for payment (or such other date as the Company and the
Trustee may accept in their discretion). If a payment date is a legal holiday
at a place of payment, payment may be made at that place on the next
succeeding Business Day, and no interest shall accrue for the intervening
period.
3. Registrar, Paying Agent and Tender Agent. Initially, the
Trustee will act as Registrar and Paying Agent. The Company may change any
Paying Agent or Registrar or co-registrar without prior notice to any
Securityholder. The Company may act in any such capacity, except in certain
circumstances.
4. Indenture. The Company issued the Securities under the
Indenture. The terms of the Securities include those stated in the Indenture
and those made applicable to the Indenture by the TIA. The Securities are
subject to all such terms, and Securityholders are referred to the Indenture
and such Act for a statement of such terms. Subject to paragraph 7 hereof,
the Securities are senior secured obligations of the Company limited to
$43,200,000 aggregate principal amount, except as otherwise provided in the
Indenture. Terms used in this Security and not defined in this Security shall
have the meaning set forth in Section 1 of the Definitions Appendix attached
as Appendix I to the Indenture, which shall be a part of this Security as if
fully set forth in this place. The rules of construction for this Security
are set forth in Section 2 of the Definitions Appendix.
5. Optional and Mandatory Redemption. Except as set forth in
the second paragraph under this paragraph 5, the Securities may not be
redeemed prior to April 15, 2001. On and after that date, the Company may
redeem the Securities at any time in whole or in part (in any integral
multiple of $1,000) at its sole option at redemption prices (expressed as a
percentage of principal amount) as set forth below during the twelve month
periods beginning April 15 of the years shown below, plus in each case an
amount equal to accrued and unpaid interest and Special Interest, if any, with
respect to, the Securities to and including the redemption date:
Year Redemption Price
---- ----------------
2001 104.550%
2002 102.275%
In addition, subject to the provisions of the Indenture, the
Company shall, until all the Securities are paid or payment thereof provided
for, deposit in accordance with Section 3.6 of the Indenture, at least one
Business Day prior to October 15 in each year, commencing October 15, 2000
(each such date being hereinafter referred to as a "Mandatory Redemption
Date"), an amount in cash sufficient to redeem an aggregate principal amount
of Securities (the "Mandatory Redemption Amount") equal to $1,840,000 on
October 15, 2000 and $1,838,000 on each of October 15, 2001 and October 15,
2002 (or, if the aggregate principal amount of Securities Outstanding on any
such Mandatory Redemption Date is less than the principal amount required to
so be redeemed, then all the Outstanding Securities shall be redeemed on such
date), at a redemption price (expressed as a percentage of the aggregate
principal amount of Securities Outstanding) of 100% plus accrued and unpaid
interest and Special Interest, if any, to the Mandatory Redemption Date
(subject to the right of holders of record on the relevant record date to
receive interest and Special Interest, if any, due on the relevant Interest
Payment Date). Each such deposit shall be applied to the redemption of
Securities on such Mandatory Redemption Date as provided in the Indenture.
The Company may at its option receive credit against any or all of the cash
portion of the Mandatory Redemption Amount for open market purchases of
Securities, and such Mandatory Redemption Amount is subject to automatic
reduction in connection with any permitted sale of or Total Loss with respect
to any Aircraft, all as provided in the Indenture.
6. Notice of Redemption. Notice of any redemption will be
mailed at least 30 days but not more than 60 days before the redemption date
to each Holder of Securities to be redeemed at his registered address.
Securities in denominations larger than $1,000 may be redeemed in part but only
in whole multiples of $1,000. If money sufficient to pay the redemption price
of and accrued interest on, and Special Interest, if any, with respect to, all
Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to
accrue on such Securities (or such portions thereof) called for redemption.
7. Security. The Securities are secured by Liens on certain
Properties of the Company pursuant to the Mortgage and the other Operative
Documents described in the Indenture and such Liens are subject to release as
provided herein and in the Mortgage and the other Operative Documents.
8. Offers to Purchase. In the event that there shall occur a
Change in Control, the Company shall make an Offer to Purchase all of the
Outstanding Securities, at a purchase price equal to 101% of the aggregate
principal amount of the Securities Outstanding, plus accrued and unpaid
interest and Special Interest, if any, to and including the repurchase date.
The right to require such repurchase of Securities shall not continue after a
discharge of the Company from its obligations with respect to the Securities
in accordance with Article 8 of the Indenture. The Company shall commence
such Offer to Purchase within thirty (30) days after the occurrence of a
Change in Control.
In the event that the Company desires to sell any of the
Aircraft as and when permitted in Section 4.12 of the Indenture, the Company
shall (unless the Company is not required to make such Offer to Purchase
pursuant to the provisions of such Section 4.12) have commenced an Offer to
Purchase Securities in an aggregate principal amount (the "Sale OTP Amount")
equal to (for each Aircraft so sold) (a) the aggregate principal amount of the
Securities Outstanding on the date of the commencement of such Offer to
Purchase minus (b) the product of the (i) Redemption Value as of such date
multiplied by (ii) the number of Aircraft that will remain subject to the
Mortgage after giving effect to such sale, at a purchase price (expressed as a
percentage of principal amount of Securities to be purchased) equal to (A)
102%, if such Offer to Purchase is commenced prior to the first anniversary of
the Issue Date, or (B) 101%, if such Offer to Purchase is commenced on or after
the first anniversary of the Issue Date, plus in each case, accrued and unpaid
interest and Special Interest, if any, on such Securities to and including the
Payment Date. Effective as of the day immediately following the Payment Date
with respect to the Offer to Purchase in connection with any sale of an
Aircraft, the interest rate borne by the Securities then Outstanding shall be
subject to possible automatic increase as set forth in Section 4.12 of the
Indenture, and the Aircraft so sold shall be released from the Lien of the
Operative Documents in accordance with the provisions thereof. The Company
may receive credit against any or all of the Sale OTP Amount for open market
purchases of Securities as provided in the Indenture.
In the event that there shall occur a Total Loss with respect
to any Aircraft, the Company shall (unless the Company is not required to make
such Offer to Purchase pursuant to the provisions of Section 4.12 of the
Indenture) make an Offer to Purchase an aggregate principal amount of
Outstanding Securities (the "Total Loss OTP Amount") equal to (for each
Aircraft subject to such Total Loss) (a) the aggregate principal amount of the
Securities Outstanding on the date such Offer to Purchase (if any) is required
to be commenced under the Indenture minus (b) the product of (i) the
Redemption Value as of such date multiplied by (ii) the number of Aircraft
remaining that were not subject to such Total Loss, at a purchase price equal
to 100% of the aggregate principal amount of Securities to be purchased, plus
accrued and unpaid interest and Special Interest, if any, on such Securities,
to and including the Payment Date, and the Aircraft that was the subject of
such Total Loss shall be released from the Lien of the Operative Documents in
accordance with the provisions thereof. The Company shall commence such Offer
to Purchase (if any) within thirty (30) days after the Total Loss Date with
respect to any such Total Loss. The Company may receive credit against any or
all of the Total Loss OTP Amount for open market purchases of Securities as
provided in the Indenture.
"Offer to Purchase" means an offer to purchase all or a
portion, as the case may be, of the Securities by the Company from the Holders
commenced by the mailing (by first class mail, postage prepaid) by the Company
(or, if requested by the Company on at least five Business Days' prior notice
to the Trustee and at the Company's expense, by the Trustee) of a notice to
each Holder (and, if mailed by the Company, to the Trustee) at such Holder's
address appearing in the Register, stating: (i) the covenant pursuant to
which the offer is being made and that all Securities validly tendered will
be accepted for payment, provided, that if Securities in excess of the
aggregate principal amount that the Company has offered to purchase are
tendered by the Holders, then Securities will be purchased from the tendering
Holders pro rata, based on the aggregate principal amount of Securities
tendered by each such Holder; (ii) the purchase price and the date of purchase
(which shall be a Business Day no earlier than 30 days nor later than 60 days
from the date such notice is mailed) (the "Payment Date"); (iii) that any
Security not tendered will continue to accrue interest pursuant to its terms
(including, if such Offer to Purchase is being made pursuant to Section
4.12(c)(i)(A) of the Indenture, a statement that the rate of interest on such
Security may be subject to increase in accordance with the provisions of such
Section); (iv) that, unless the Company defaults in the payment of the
purchase price on the Payment Date, any Security accepted for payment pursuant
to the Offer to Purchase shall cease to accrue interest on and after the
Payment Date; (v) that Holders electing to have a Security purchased pursuant
to the Offer to Purchase will be required to surrender the Security, together
with the form entitled "Option of the Holder to Elect Purchase" attached to
or on the reverse side of the Security completed, to the Paying Agent at the
address specified in the notice at any time beginning with the date of such
notice but prior to the close of business on the Business Day immediately
preceding the Payment Date (or, if such day is a Legal Holiday, on the next
subsequent day which is not a Legal Holiday), and such Holder shall be
entitled to receive from the Paying Agent a non-transferable receipt of
deposit evidencing such deposit; (vi) that, unless the Company defaults in
making the payment of the purchase price or shall otherwise, in its sole
discretion, consent thereto, Holders will be entitled to withdraw their
election only if the Trustee receives, not later than the close of business on
the fifth Business Day immediately preceding the Payment Date, a telegram,
facsimile transmission or letter setting forth the name of such Holder, the
principal amount of Securities delivered for purchase and a statement that
such Holder is withdrawing his election to have such Securities purchased; and
(vii) that Holders whose Securities are being purchased only in part will be
promptly issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered (which new Securities, if such Offer to
Purchase is being made pursuant to Section 4.12(c)(i)(A) of the Indenture,
will cease to be secured by the Aircraft released pursuant to such Section);
provided that each Security purchased and each new Security issued shall be in
a principal amount of $1,000 or integral multiples thereof. The Company shall
place such notice in the national edition of The New York Times or The Wall
Street Journal or, if such newspapers are not then in circulation, in a
financial newspaper of general circulation in New York City. No failure of
the Company to give the foregoing notice shall limit any Holder's right to
exercise a repurchase right. On the Payment Date, the Company shall (i)
accept for payment Securities or portions thereof tendered pursuant to an
Offer to Purchase, provided, that if Securities in excess of the aggregate
principal amount that the Company has offered to purchase are tendered by the
Holders, then Securities will be purchased from the tendering Holders pro
rata, based on the aggregate principal amount of Securities tendered by each
such Holder; (ii) deposit with the Trustee money sufficient to pay the
purchase price of all Securities or portions thereof so accepted; and (iii)
deliver, or cause to be delivered, to the Trustee all Securities or portions
thereof so accepted together with an Officers' Certificate specifying the
Securities or portions thereof accepted for payment by the Company. The
Trustee shall promptly mail to the Holders of Securities so accepted payment
in an amount equal to the purchase price, and the Trustee shall promptly
authenticate, and the Company shall promptly execute and mail (or cause to be
mailed) to such Holders a new Security equal in principal amount to any
unpurchased portion of the Securities surrendered; provided that each Security
purchased and each new Security issued shall be in a principal amount of
$1,000 or integral multiples thereof; provided further that if the Payment
Date is between a regular Record Date and the next succeeding Interest Payment
Date, Securities to be repurchased must be accompanied by payment of an amount
equal to the interest and Special Interest, if any, payable on such succeeding
Interest Payment Date on the principal amount to be repurchased, and the
interest on the principal amount of the Security being repurchased, and Special
Interest, if any, with respect thereto, will be paid on such next succeeding
Interest Payment Date to the registered holder of such Security on the
immediately preceding Record Date. A Security repurchased on an Interest
Payment Date need not be accompanied by any such payment, and the interest on
the principal amount of the Security being repurchased and Special Interest,
if any, with respect thereto, will be paid on such Interest Payment Date to
the registered holder of such Security on the corresponding Record Date. The
Company will publicly announce the results of an Offer to Purchase as soon as
practicable after the Payment Date. The Trustee shall act as the Paying Agent
for an Offer to Purchase. The Company will comply with Rule 14e-l under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable, in the event that the Company
is required to repurchase Securities pursuant to an Offer to Purchase. Both
the notice of the Company and the notice of the Holder having been given as
specified above, the Securities so to be repurchased shall, on the Payment
Date become due and payable at the purchase price applicable thereto and from
and after such date (unless the Company shall default in the payment of such
purchase price) such Securities shall cease to bear interest. If any Security
shall not be paid upon surrender thereof for repurchase, the principal shall,
until paid, bear interest from the Payment Date at the rate borne by such
Security. Any Security which is to be submitted for repurchase only in part
shall be delivered pursuant to the above provisions with (if the Company or
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 such Holder's attorney duly authorized in writing.
9. Denominations, Transfer, Exchange. The Securities shall be
issuable only in registered form without coupons and in denominations of
$1,000 and integral multiples thereof. The transfer of Securities may be
registered and Securities may be exchanged as provided in the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes required by law or
permitted by the Indenture.
10. Persons Deemed Owners. The Company, the Trustee and any
agent of the Company or the Trustee may treat the person in whose name this
Security is registered with the Registrar as the owner for all purposes.
11. Discharge. Subject to certain conditions set forth in
Article 8 of the Indenture, the Company may terminate its obligations under
the Securities and the Indenture, except those obligations referred to in
Section 8.1(b) of the Indenture, if the Company deposits with the Trustee or a
Paying Agent cash or U.S. Government Obligations for the payment of principal
of, interest on, and Special Interest, if any, with respect to, the Securities
to Stated Maturity.
12. Amendments and Waivers. Subject to certain exceptions, the
Indenture, the Securities, or the other Operative Documents may be amended
with the consent of the Holders of at least a majority in principal amount of
the then Outstanding Securities, and any existing Default, Event of Default or
acceleration may be waived with the consent of the Holders of a majority in
principal amount of the then Securities Outstanding. Without the consent of
any Holder, the Indenture, the Securities or any of the Operative Documents
may be amended to, among other things, cure any ambiguity, defect or
inconsistency.
13. Defaults and Remedies. Events of Default under the
Indenture include the following: default for the period specified in the
Indenture in payment of interest on, or Special Interest, if any, with respect
to the Securities; default in payment of the principal amount of any
Securities when the same becomes due and payable (at maturity, upon
acceleration, redemption, tender for repurchase or otherwise); failure by the
Company to comply with specific covenants of the Indenture or of the Mortgage
within the time periods provided therein, discontinuing substantially all of
its commercial airlines operations, or failure to pay over amounts required
under the Mortgage; failure to comply in any material respect with any of its
other agreements contained in the Indenture, the other Operative Documents or
the Securities; a representation or warranty of the Company in the Indenture,
the other Operative Documents or any Mortgage Supplement or in any certificate
of the Company delivered under any such document proves to be untrue in any
material respect when made; the occurrence of certain defaults under any
Indebtedness of the Company or any of its Significant Subsidiaries in excess
of $10,000,000 in principal amount; the rendering or domestication of final
judgments by a court of competent jurisdiction against the Company or any of
its Significant Subsidiaries in an aggregate amount of $10,000,000 or more
which remain undischarged for a period (during which execution is not stayed)
of sixty (60) days after the date on which the right to appeal has expired;
cessation of effectiveness of Operative Documents without the consent of the
Trustee; and certain events of bankruptcy, insolvency or reorganization.
Subject to certain limitations in the Indenture, if an Event of Default occurs
and is continuing, the Trustee or the Holders of twenty-five percent (25%) in
principal amount of the Securities Outstanding may declare all the Securities
to be due and payable immediately, except that in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, all
Securities Outstanding become due and payable immediately without further
action or notice. Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in
principal amount of the then Outstanding Securities may direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from
Securityholders notice of any continuing default (except a default in payment
of principal or interest) if it determines that withholding notice is in their
interests. The Company must furnish compliance certificates to the Trustee.
The above description of Events of Default and remedies is qualified by
reference, and subject in its entirety to the more complete description
thereof contained in the Indenture.
14. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or Affiliates of the Company with the same rights it
would have if it were not Trustee.
15. No Recourse Against Others. A director, officer, employee
or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
16. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
17. Unclaimed Money. If money for the payment of principal of,
interest on, or Special Interest, with respect to, or the purchase price for
the Securities remains unclaimed for two (2) years, the Trustee or Paying
Agent will pay the money back to the Company at its request. After such
payment, Holders entitled to any portion of such money must look to the
Company for payment unless an applicable law designates another person.
18. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
19. CUSIP Numbers. The Company in issuing this Security may
use a "CUSIP" number (if then generally in use) and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided, however, that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and any
such redemption shall not be affected by any defect in or omission of such
numbers.
20. Holders' Compliance with Registration Rights Agreement.
Each Holder of a Security, by acceptance hereof, acknowledges and agrees to
the provisions of the Registration Rights Agreement, including, without
limitation, the obligations of the Holders with respect to a registration and
the indemnification of the Company to the extent provided therein.
21. Governing Law. THIS SECURITY SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
The Company will furnish to any Holder of this Security, upon
written request and without charge, a copy of the Indenture. Request may be
made to: Trans World Airlines, Inc., One City Centre, ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
(Insert Assignee's Soc. Sec. or Tax I.D. No.)
(Print or type assignee's name, address and zip
code)
and irrevocably appoint ______________
agent to transfer this Security on the books of
the Company. The agent may substitute
another to act for him.
Date:_________________________________ Signature(s):_________________________
______________________________________
(Sign exactly as your name(s) appear(s)
on the other side of this Security)
Signature(s) guaranteed by:
(All signatures must be guaranteed by a
member of a national securities exchange
or of the National Association of
Securities Dealers, Inc. or by a
commercial bank or trust company located
in the United States)
OPTION OF THE HOLDER TO ELECT PURCHASE
If you want to elect to have this Security repurchased by the
Company pursuant to any Offer to Purchase under the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security
repurchased by the Company pursuant to any Offer to Purchase under the
Indenture, state the principal amount to be repurchased:
$___________________________
(in an integral multiple of $1,000)
Date:_________________________________ Signature(s):__________________________
_______________________________________
(Sign exactly as your name(s) appear(s)
on the other side of this Security)
Signature(s) guaranteed by:
_______________________________________
(All signatures must be guaranteed by a
member of a national securities exchange
or of the National Association of
Securities Dealers, Inc. or by a
commercial bank or trust company located
in the United States)
EXHIBIT A
to
INDENTURE
[FORM OF FACE OF SECURITY]
[Restricted Securities Legend]
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT, OR ANY STATE SECURITIES LAWS. NEITHER THESE SECURITIES NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED, OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THESE SECURITIES BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL, OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE RESALE
RESTRICTION TERMINATION DATE WHICH IS THE DATE WHICH IS TWO YEARS AFTER THE
LATER OF THE DATE OF ORIGINAL ISSUANCE OF THESE SECURITIES AND THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THESE SECURITIES (OR ANY PREDECESSOR OF THESE SECURITIES) ONLY (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING
OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2) (3),
OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED
INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR
SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE, OR TRANSFER (i) PURSUANT TO
CLAUSES (C), (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii)
IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER
IN THE FORM ATTACHED TO OR ON THE REVERSE SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL
BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS THE TRUSTEE MAY
REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
No. CUSIP No.
$
Mandatory Conversion Equity Note due 1999
TRANS WORLD AIRLINES, INC., a Delaware corporation promises to
pay to __________, or registered assigns, the principal sum of __________
Dollars on April 15, 1999.
Interest Payment Dates (if any): The 15th day of each month.
Record Dates: The 1st day of each month.
Additional provisions of this Security are set forth on the other
side of this Security.
Dated:
TRANS WORLD AIRLINES, INC.
By:________________________________________
Name:
Title:
Attest:
________________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
First Security Bank, National Association,
as Trustee, certifies that this
is one of the Securities
referred to in the Indenture.
By:______________________________________
Authorized Signatory
[FORM OF REVERSE SIDE OF SECURITY]
Mandatory Conversion Equity Note due 1999
This Security is one of a duly authorized issue of securities of the
Company designated as its Mandatory Conversion Equity Notes due 1999
(hereinafter called the "Securities"), limited in aggregate principal amount
Outstanding to $31,800,000, issued or to be issued pursuant to an Indenture,
dated as of April 21, 1998 (hereinafter called the "Indenture") between the
Company and First Security Bank, National Association, as Trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture).
1. Interest. This Security shall not bear interest; provided,
however, that upon a default in payment of principal on the Securities
(whether on acceleration, at maturity, upon tender for repurchase or
otherwise) or a Registration Default (as for so long as such default or
Registration Default, as the case may be, shall continue uncured and
unwaived), this Security shall bear interest at the rate of Twelve percent
(12%) per annum, from the date of such default or Registration Default, as
the case may be, payable (a) in the case of a Registration Default, monthly
in arrears on the 15th day of each month commencing the 15th day of the
month next succeeding the month in which such Registration Default
occurred, and (b) in the case of a default in payment of principal, payable
on demand, in each case until the principal thereof is paid or made
available for payment. Interest will be computed on the basis of a 360-day
year of twelve 30-day months. The Company and each Holder of a Security,
by the acceptance hereof, agree that in the event a Registration Default
shall occur and be continuing and the Company shall have failed to use its
reasonable best efforts to avoid or cure such Registration Default, Holders
shall be entitled to make a claim for damages incurred as a result of such
Registration Default, which damages shall not necessarily be limited to the
increase in the interest rate hereunder to 12% per annum; provided,
however, that any amount of interest paid pursuant to this provision shall
be credited against any amount of damages to be paid by the Company in
connection with such claim.
2. Method of Payment. Subject to the provisions of paragraph 8
hereof, the Company will pay interest, if any, on the Securities (except
defaulted interest and interest on defaulted principal) to the persons who
are registered Holders of Securities at the close of business on the Record
Date set forth on the face of this Security next preceding the applicable
Interest Payment Date. Defaulted interest and interest on defaulted
principal will be paid by the Company in accordance with the applicable
provisions of the Indenture. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company will pay principal and
interest, if any, at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York and at any
other office or agency maintained by the Company for such purpose in money
of the United States that at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option
of the Company, payment of interest, if any, on the Securities may be by
check payable in such money and mailed to a Holder's registered address;
provided further, however, that payments on a certificated Security will be
made by wire transfer to a U.S. dollar account maintained by a Holder with
a bank in New York City if such Holder owns at least $250,000 in aggregate
principal amount of certificated Securities and elects payment by wire
transfer by giving written notice to the Company and the Trustee to such
effect designating such account no later than 10 days immediately preceding
the relevant due date for payment (or such other date as the Company and
the Trustee may accept in their discretion). If a payment date is a legal
holiday at a place of payment, payment may be made at that place on the
next succeeding Business Day, and no interest shall accrue for the
intervening period.
3. Registrar, Paying Agent and Tender Agent. Initially, the Trustee
will act as Registrar and Paying Agent. The Company may change any Paying
Agent or Registrar or co-registrar without prior notice to any
Securityholder. The Company may act in any such capacity, except in
certain circumstances.
4. Indenture. The Company issued the Securities under the Indenture.
The terms of the Securities include those stated in the Indenture and those
made applicable to the Indenture by the TIA. The Securities are subject to
all such terms, and Securityholders are referred to the Indenture and such
Act for a statement of such terms. Until converted to Common Stock as
described in paragraph 8 hereof and in the Indenture and subject to
paragraphs 6 and 9 hereof, the Securities are senior secured obligations of
the Company limited to $31,800,000 aggregate principal amount, except as
otherwise provided in the Indenture. Terms used in this Security and not
defined in this Security shall have the meaning set forth in Section 1 of
the Definitions Appendix attached as Appendix I to the Indenture, which
shall be a part of this Security as if fully set forth in this place. The
rules of construction for this Security are set forth in Section 2 of the
Definitions Appendix.
5. Redemption. This Security is not subject to redemption in whole
or in part at any time.
6. Security. The Securities are secured by second priority Liens on
certain Properties of the Company pursuant to the Mortgage and the other
Operative Documents described in the Indenture and such Liens are subject
to release as provided herein and in the Mortgage and the other Operative
Documents. Enforcement of the Lien of the Mortgage is limited to an
aggregate amount of Obligations not exceeding $24,300,000 and is further
restricted due to its second priority status, as more fully set forth in
the Mortgage, and each Holder, by accepting a Security, agrees to all the
provisions thereof.
7. Offers to Purchase. In the event that there shall occur a Change
in Control, the Company shall make an Offer to Purchase all of the
Outstanding Securities, at a purchase price equal to 101% of the aggregate
principal amount of the Securities Outstanding, plus accrued and unpaid
interest, if any, to and including the repurchase date. The right to
require such repurchase of Securities shall not continue after a discharge
of the Company from its obligations with respect to the Securities in
accordance with Article 8 of the Indenture. The Company shall commence
such Offer to Purchase within thirty (30) days after the occurrence of a
Change in Control.
In the event that there shall occur a Total Loss with respect to any
Aircraft, the Company shall (unless the Company is not required to make
such Offer to Purchase pursuant to the provisions of Section 4.12 of the
Indenture) make an Offer to Purchase an aggregate principal amount of
Outstanding Securities (the "Total Loss OTP Amount") equal to (for each
Aircraft subject to such Total Loss) (a) the aggregate principal amount of
the Securities Outstanding on the date such Offer to Purchase (if any) is
required to be commenced under the Indenture, minus (b) the product of (i)
$10,600,000 multiplied by (ii) the number of Aircraft remaining that were
not subject to such Total Loss, at a purchase price equal to 100% of the
aggregate principal amount of Securities to be purchased, plus accrued and
unpaid interest, if any, on such Securities, to and including the Payment
Date, and the Aircraft that was the subject of such Total Loss shall be
released from the Lien of the Operative Documents in accordance with the
provisions thereof. The Company shall commence such Offer to Purchase (if
any) within thirty (30) days after the Total Loss Date with respect to any
such Total Loss. The Company may receive credit against any or all of the
Total Loss OTP Amount for open market purchases of Securities as provided
in the Indenture.
"Offer to Purchase" means an offer to purchase all, or a portion, as
the case may be, of the Securities by the Company from the Holders
commenced by the mailing (by first class mail, postage prepaid) by the
Company (or, if requested by the Company on at least five Business Days'
prior notice to the Trustee and at the Company's expense, by the Trustee)
of a notice to each Holder (and, if mailed by the Company, to the Trustee)
at such Holder's address appearing in the Register, stating: (i) the
covenant pursuant to which the offer is being made and that all Securities
validly tendered will be accepted for payment, provided, that if Securities
in excess of the aggregate principal amount that the Company has offered to
purchase are tendered by the Holders, then Securities will be purchased
from the tendering Holders pro rata, based on the aggregate principal
amount of Securities tendered by each such Holder; (ii) the purchase price
and the date of purchase (which shall be a Business Day no earlier than 30
days nor later than 60 days from the date such notice is mailed) (the
"Payment Date"); (iii) that any Security not tendered will continue to
accrue interest (if any) pursuant to its terms; (iv) that, unless the
Company defaults in the payment of the purchase price on the Payment Date,
any Security accepted for payment pursuant to the Offer to Purchase shall
cease to accrue interest on and after the Payment Date; (v) that Holders
electing to have a Security purchased pursuant to the Offer to Purchase
will be required to surrender the Security, together with the form entitled
"Option of the Holder to Elect Purchase" attached to or on the reverse side
of the Security completed, to the Paying Agent at the address specified in
the notice at any time beginning with the date of such notice but prior to
the close of business on the Business Day immediately preceding the Payment
Date (or, if such day is a Legal Holiday, on the next subsequent day which
is not a Legal Holiday), and such Holder shall be entitled to receive from
the Paying Agent a non-transferable receipt of deposit evidencing such
deposit; (vi) that, unless the Company defaults in making the payment of
the purchase price or shall otherwise, in its sole discretion, consent
thereto, Holders will be entitled to withdraw their election only if the
Trustee receives, not later than the close of business on the fifth
Business Day immediately preceding the Payment Date, a telegram, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Securities delivered for purchase and a statement that such
Holder is withdrawing his election to have such Securities purchased; and
(vii) that Holders whose Securities are being purchased only in part will
be promptly issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered; provided that each
Security purchased and each new Security issued shall be in a principal
amount of $1,000 or integral multiples thereof. The Company shall place
such notice in the national edition of The New York Times or The Wall
Street Journal or, if such newspapers are not then in circulation, in a
financial newspaper of general circulation in New York City. No failure of
the Company to give the foregoing notice shall limit any Holder's right to
exercise a repurchase right. On the Payment Date, the Company shall (i)
accept for payment Securities or portions thereof tendered pursuant to an
Offer to Purchase, provided, that if Securities in excess of the aggregate
principal amount that the Company has offered to purchase are tendered by
the Holders, then Securities will be purchased from the tendering Holders
pro rata, based on the aggregate principal amount of Securities tendered by
each such Holder; (ii) deposit with the Trustee money sufficient to pay
the purchase price of all Securities or portions thereof so accepted; and
(iii) deliver, or cause to be delivered, to the Trustee all Securities or
portions thereof so accepted together with an Officers' Certificate
specifying the Securities or portions thereof accepted for payment by the
Company. The Trustee shall promptly mail to the Holders of Securities so
accepted payment in an amount equal to the purchase price, and the Trustee
shall promptly authenticate, and the Company shall promptly execute and
mail (or cause to be mailed) to such Holders a new Security equal in
principal amount to any unpurchased portion of the Securities surrendered;
provided that each Security purchased and each new Security issued shall be
in a principal amount of $1,000 or integral multiples thereof; provided
further that if the Payment Date is between a regular Record Date and the
next succeeding Interest Payment Date, Securities to be repurchased must be
accompanied by payment of an amount equal to the interest, if any, payable
on such succeeding Interest Payment Date on the principal amount to be
repurchased, and the interest, if any, on the principal amount of the
Security being repurchased, will be paid on such next succeeding Interest
Payment Date to the registered holder of such Security on the immediately
preceding Record Date. A Security repurchased on an Interest Payment Date
need not be accompanied by any such payment, and the interest, if any, on
the principal amount of the Security being repurchased, will be paid on
such Interest Payment Date to the registered holder of such Security on the
corresponding Record Date. The Company will publicly announce the results
of an Offer to Purchase as soon as practicable after the Payment Date. The
Trustee shall act as the Paying Agent for an Offer to Purchase. The
Company will comply with Rule 14e-l under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable, in the event that the Company is required to
repurchase Securities pursuant to an Offer to Purchase. Both the notice of
the Company and the notice of the Holder having been given as specified
above, the Securities so to be repurchased shall, on the Payment Date
become due and payable at the purchase price applicable thereto and from
and after such date (unless the Company shall default in the payment of
such purchase price) such Securities shall cease to bear interest. If any
Security shall not be paid upon surrender thereof for repurchase, the
principal shall, until paid, bear interest from the Payment Date at the
rate and in accordance with the provisions set forth in this Security and
the Indenture. Any Security which is to be submitted for repurchase only
in part shall be delivered pursuant to the above provisions with (if the
Company or 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 such Holder's attorney duly authorized
in writing.
8. Mandatory Conversion. Subject to the provisions of Article 13 of
the Indenture, on the Conversion Date, so long as no Default or Event of
Default shall then exist, this Security (if then Outstanding) shall be
automatically converted into that number of fully paid and non-assessable
shares of Common Stock equal to the sum of (i) the then outstanding
principal amount of this Security, plus (ii) accrued and unpaid interest,
if any, on this Security to the Conversion Date, divided by the lesser of
(A) 0.95 multiplied by the Average Market Price per share of Common Stock
or (B) $10 7/8 (such lesser amount being hereinafter referred to as the
"Conversion Price").
Any such conversion is subject to the procedures, restrictions and
adjustments to the Conversion Price as set forth in Article 13 of the
Indenture, and on or after the effectiveness of the conversion, the Liens
on the Collateral are subject to release as provided in the Indenture.
9. Possible Subordination. If, on the Business Day immediately succeeding
the Issue Date, the Holders (other than Lazard Freres & Co. LLC, as Holder of
the Compensation Notes, as defined in the Placement Agreement) do not include at
least one of the Owner Trustee, Seven Sixty Seven Leasing, Inc. or any member of
the Bank Group, then this Security shall automatically, without any further act
or deed, become an unsecured obligation of the Company and shall rank junior in
priority to all secured indebtedness of the Company and pari passu with all
unsecured indebtedness of the Company, in each case whether such indebtedness is
existing on the Issue Date or thereafter incurred, and the Trustee shall be
authorized to enter into or execute and deliver such agreements, instruments or
other documents as may be reasonably requested by (and at the cost and expense
of) the Company to evidence or confirm the release of Liens on the Collateral or
such subordination of the Securities.
10. Denominations, Transfer, Exchange. The Securities shall be
issuable only in registered form without coupons and in denominations of
$1,000 and integral multiples thereof. The transfer of Securities may be
registered and Securities may be exchanged as provided in the Indenture.
The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes
required by law or permitted by the Indenture.
11. Persons Deemed Owners. The Company, the Trustee and any agent of
the Company or the Trustee may treat the person in whose name the Security
is registered with the Registrar as the owner for all purposes.
12. Discharge. Subject to certain conditions set forth in Article 8
of the Indenture, the Company may terminate its obligations under the
Securities and the Indenture, except those obligations referred to in
Section 8.1(b) of the Indenture, if the Company deposits with the Trustee
or a Paying Agent cash or U.S. Government Obligations for the payment of
principal of, interest, if any, on the Securities to Stated Maturity.
13. Amendments and Waivers. Subject to certain exceptions, the
Indenture, the Securities, or the other Operative Documents may be amended
with the consent of the Holders of at least a majority in principal amount
of the then Outstanding Securities, and any existing Default, Event of
Default or acceleration may be waived with the consent of the Holders of a
majority in principal amount of the then Securities Outstanding. Without
the consent of any Holder, the Indenture, the Securities or any of the
Operative Documents may be amended to, among other things, cure any
ambiguity, defect or inconsistency.
14. Defaults and Remedies. Events of Default under the Indenture
include the following: default for the period specified in the Indenture in
payment of interest, if any, on the Securities; default in payment of the
principal amount of any Securities when the same becomes due and payable
(at maturity, upon acceleration, redemption, tender for repurchase or
otherwise); failure by the Company to comply with specific covenants of the
Indenture or of the Mortgage within the time periods provided therein,
discontinuing substantially all of its commercial airlines operations, or
failure to pay over amounts required under the Mortgage; failure to comply
in any material respect with any of its other agreements contained in the
Indenture, the other Operative Documents or the Securities; a
representation or warranty of the Company in the Indenture, the other
Operative Documents or any Mortgage Supplement or in any certificate of the
Company delivered under any such document proves to be untrue in any
material respect when made; the occurrence of certain defaults under any
Indebtedness of the Company or any of its Significant Subsidiaries in
excess of $10,000,000 in principal amount; the rendering or domestication
of final judgments by a court of competent jurisdiction against the Company
or any of its Significant Subsidiaries in an aggregate amount of
$10,000,000 or more which remain undischarged for a period (during which
execution is not stayed) of sixty (60) days after the date on which the
right to appeal has expired; cessation of effectiveness of Operative
Documents without the consent of the Trustee; and certain events of
bankruptcy, insolvency or reorganization. Subject to certain limitations
in the Indenture, if an Event of Default occurs and is continuing, the
Trustee or the Holders of twenty-five percent (25%) in principal amount of
the Securities Outstanding may declare all the Securities to be due and
payable immediately, except that in the case of an Event of Default arising
from certain events of bankruptcy or insolvency, all Securities Outstanding
become due and payable immediately without further action or notice.
Securityholders may not enforce the Indenture or the Securities except as
provided in the Indenture and the Mortgage. Enforcement of the Lien of the
Mortgage is limited to an aggregate amount of Obligations not exceeding
$24,300,000 and is further restricted due to its second priority status, as
more fully set forth in the Mortgage. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, Holders of a majority in principal amount
of the then Outstanding Securities may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Securityholders
notice of any continuing default (except a default in payment of principal
or interest) if it determines that withholding notice is in their
interests. The Company must furnish compliance certificates to the
Trustee. The above description of Events of Default and remedies is
qualified by reference, and subject in its entirety to the more complete
description thereof contained in the Indenture and the other Operative
Documents.
15. Trustee Dealings with Company. The Trustee under the Indenture,
in its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with and collect obligations owed to it
by the Company or Affiliates of the Company with the same rights it would
have if it were not Trustee.
16. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration
for the issue of the Securities.
17. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
18. Unclaimed Money. If money for the payment of principal of, or
interest, if any, on, or the purchase price for the Securities remains
unclaimed for two (2) years, the Trustee or Paying Agent will pay the money
back to the Company at its request. After such payment, Holders entitled
to any portion of such money must look to the Company for payment unless an
applicable law designates another person.
19. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
20. CUSIP Numbers. The Company in issuing this Security may use a
"CUSIP" number (if then generally in use) and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders;
provided, however, that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that reliance
may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers.
21. Holders' Compliance with Registration Rights Agreement. Each
Holder of a Security, by acceptance hereof, acknowledges and agrees to the
provisions of the Registration Rights Agreement, including, without
limitation, the obligations of the Holders with respect to a registration
and the indemnification of the Company to the extent provided therein.
22. Governing Law. THIS SECURITY SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
The Company will furnish to any Holder of this Security, upon written
request and without charge, a copy of the Indenture. Request may be made
to: Trans World Airlines, Inc., One City Centre, ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary.
ASSIGNMENT FORM
To assign this Security, fill
in the form below:
I or we assign and transfer
this Security to:
(Insert Assignee's Soc. Sec. or
Tax I.D. No.)
(Print or type assignee's name,
address and zip code)
and irrevocably appoint
______________ agent to
transfer this Security on the
books of the Company. The
agent may substitute another to
act for him.
Date:_________________________ Signature(s):________________________________
________________________________
(Sign exactly as your name(s) appear(s) on the
other side of this Security)
Signature(s) guaranteed by:
______________________________________________
(All signatures must be guaranteed by a member
of a national securities exchange or of the
National Association of Securities Dealers,
Inc. or by a commercial bank or trust company
located in the United States)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security repurchased
by the Company pursuant to any Offer to Purchase under the
Indenture, check the box:
[ ]
If you want to elect to have only part of this Security
repurchased by the Company pursuant to any Offer to Purchase
under the Indenture, state the amount to be repurchased:
$ __________________________
(in an integral multiple of $1,000)
Date:_________________________ Signature(s):________________________________
______________________________________________
(Sign exactly as your name(s) appear(s) on the
other side of this Security)
Signature(s) guaranteed by:
______________________________________________
(All signatures must be guaranteed by a member
of a national securities exchange or of the
National Association of Securities Dealers,
Inc. or by a commercial bank or trust company
located in the United States)
CERTIFICATE OF TRANSFER
Re: Mandatory Conversion Equity Notes due 1999 (the "Notes") of Trans World
Airlines, Inc. (the "Company")
This Certificate relates to Notes held in definitive form by
___________ (the "Transferor").
The Transferor has requested the Registrar by written order to
exchange or register the transfer of a Note or Notes. In connection with such
request and in respect of each such Note, the Transferor does hereby certify
that the Transferor is familiar with the Indenture relating to the above
captioned Notes and that the transfer of this Note does not require registration
under the Securities Act of 1933 (the "Securities Act"), because:*
[ ] Such Note is being transferred to the Company.
[ ] Such Note is being transferred pursuant to an effective
Registration Statement under the Securities Act.
[ ] Such Note is being transferred to a qualified institutional
buyer (as defined in Rule 144A under the Securities Act) in reliance on
Rule 144A.
[ ] Such Note is being transferred pursuant to an offshore
transaction in accordance with Rule 904 under the Securities Act.
[ ] Such Note is being transferred to an Institutional "Accredited
Investor" within the meaning of Subparagraph (a)(1), (2), (3) or (7) of Rule 501
under the Securities Act.
[ ] Such Note is being transferred in a transaction meeting the
requirements of Rule 144 under the Securities Act.
The Registrar and the Company are entitled to rely upon this
Certificate and are irrevocably authorized to produce this Certificate or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
___________________________________________
[INSERT NAME OF TRANSFEROR]
By:________________________________________
Date:____________________________
_________________________________
* Please check applicable box.
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