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Exhibit 4(b)(3)
TRUST INDENTURE AND SECURITY AGREEMENT
(UTC Trust No. 1996-A)
(L-14_)
Dated May ___, 1996
Between
_________________,
as Owner Trustee
And
_______________,
as Indenture Trustee
COVERED HOPPERS AND TANK CARS
____________________
Filed with the Surface Transportation Board of the Department
of Transportation pursuant to __ U.S.C. Section ______ on May __,
1996 at ___ [a.m./p.m.], Recordation Number ___, and deposited
in the Office of the Registrar General of Canada pursuant to ▇▇▇▇▇▇▇
▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ (▇▇▇▇▇▇) on May __, 1996.
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TABLE OF CONTENTS
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GRANTING CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
HABENDUM CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Article I. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.01. Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Article II. THE EQUIPMENT NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.01. Form of Equipment Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.02. Terms of Equipment Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.03. Payment from Indenture Estate Only . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.04. Method of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.05. Application of Payments to Principal Amount and Interest . . . . . . . . . . . . . . . . . 9
Section 2.06. Termination of Interest in Indenture Estate. . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.07. Transfer of Equipment Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.08. Mutilated, Destroyed, Lost or Stolen Equipment Notes . . . . . . . . . . . . . . . . . . . 10
Section 2.09. Payment of Transfer Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.10. Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.11. Equally and Ratably Secured . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Article III. RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM THE INDENTURE ESTATE . . . . . . . . . . . . . 13
Section 3.01. Basic Rent Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.02. Payments in the Event of Prepayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.03. Payments after Indenture Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.04. Other Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.05. Distribution of Excepted Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Article IV. ASSUMPTION OF OBLIGATIONS OF OWNER TRUSTEE BY LESSEE . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.01. Assumption of Obligations of Owner Trustee by Lessee . . . . . . . . . . . . . . . . . . . 15
Article V. REMEDIES OF THE INDENTURE TRUSTEE UPON AN INDENTURE EVENT OF DEFAULT . . . . . . . . . . . . . . . . 16
Section 5.01. Indenture Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 5.02. Acceleration; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.03. Remedies with Respect to Indenture Estate . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.04. Right to Cure; Option to Purchase; Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 5.05. Rights of Lessee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.06. Waiver of Existing Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ▇▇
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▇▇▇▇▇▇▇ ▇▇. DUTIES OF THE INDENTURE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.01. Action upon Indenture Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.02. Action upon Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.03. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.04. No Duties Except as Specified in Indenture or Instructions . . . . . . . . . . . . . . . . 25
Section 6.05. No Action Except under Lease, Indenture or Instructions . . . . . . . . . . . . . . . . . . 25
Section 6.06. Disposition of Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.07. Indenture Supplements for Replacements . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.08. Effect of Replacements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.09. Withholding Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.10. Lessee's Right of Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.11. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Article VII.
The Owner Trustee and the Indenture Trustee . . . . . . . . . . . . . . . . . 26
Section 7.01. Acceptance of Trusts and Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.02. Absence of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7.03. No Representations or Warranties as to the Equipment or Documents . . . . . . . . . . . . . 27
Section 7.04. No Segregation of Moneys; No Interest; Investments . . . . . . . . . . . . . . . . . . . . 27
Section 7.05. Reliance; Agents; Advice of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.06. Not Acting in Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Article VIII. CERTAIN LIMITATIONS ON OWNER TRUSTEE'S AND INDENTURE TRUSTEE'S RIGHTS . . . . . . . . . . . . . . . 29
Section 8.01. Certain Limitations on Owner Trustee's and Indenture Trustee's Rights . . . . . . . . . . . 29
Article IX. SUCCESSOR TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 9.01. Notice of Successor Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 9.02. Resignation of Indenture Trustee; Appointment of Successor . . . . . . . . . . . . . . . . 29
Article X. SUPPLEMENTS AND AMENDMENTS TO THIS INDENTURE AND OTHER DOCUMENTS . . . . . . . . . . . . . . . . . . 30
Section 10.01. Supplemental Indentures without Consent of Holders . . . . . . . . . . . . . . . . . . . . 30
Section 10.02. Indenture Trustee Protected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 10.03. Request of Substance, Not Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 10.04. Documents Mailed to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 10.05. Amendments, Waivers, Etc. of Other Documents . . . . . . . . . . . . . . . . . . . . . . . 32
Article XI. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 11.01. Termination of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 11.02. No Legal Title to Indenture Estate in Holders . . . . . . . . . . . . . . . . . . . . . . . 35
Section 11.03. Sale of Equipment by Indenture Trustee is Binding . . . . . . . . . . . . . . . . . . . . . 35
Section 11.04. Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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Section 11.05. Discontinuance of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 11.06. Indenture and Equipment Notes for Benefit of Owner Trustee, Indenture Trustee, Owner
Participant and Holders Only . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 11.07. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 11.08. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 11.09. Separate Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 11.10. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 11.11. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 11.12. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 11.13. Normal Commercial Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 11.14. No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
EXHIBIT A - Form of Trust Indenture Supplement
EXHIBIT B - Terms of Equipment Notes
EXHIBIT C - Loan Participant
APPENDIX A - Definitions
ANNEX A1 - Amortization Schedule (A-1)
ANNEX A2 - Amortization Schedule (A-2)
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TRUST INDENTURE AND SECURITY AGREEMENT
(UTC TRUST NO. 1996-A)(L-14_)
This TRUST INDENTURE AND SECURITY AGREEMENT (UTC Trust No. 1996-A)
(L-14_) dated May ___, 1996 (this "Indenture"), between _________________, a
_____________ trust company, not in its individual capacity, except as
otherwise expressly set forth in Section 7.03 hereof, but solely as trustee
under the Trust Agreement referred to below and any successor appointed in
accordance with the terms hereof and of the Trust Agreement (herein in such
trustee capacity called the "Owner Trustee"), and _______________, a national
banking association, as Indenture Trustee hereunder and any successor appointed
in accordance with the terms hereof (herein called the "Indenture Trustee");
WITNESSETH:
WHEREAS, the Owner Participant and the Owner Trustee in its individual
capacity have entered into the Trust Agreement whereby, among other things, (i)
the Owner Trustee establishes a certain trust for the use and benefit of the
Owner Participant, subject, however, to the Indenture Estate created pursuant
hereto for the use and benefit of, and with the priority of payment to, the
holders of the Equipment Notes, and (ii) the Owner Trustee is authorized and
directed to execute and deliver this Indenture;
WHEREAS, the Owner Trustee and the Indenture Trustee desire by this
Indenture, among other things, (i) to provide in accordance with this Indenture
for the issuance by the Owner Trustee of the Equipment Notes in [two] series on
the Initial Closing Date and the issuance of Equipment Notes in [two] series on
the Subsequent Closing Date and (ii) to provide for the assignment, mortgage
and pledge by the Owner Trustee to the Indenture Trustee, as part of the
Indenture Estate hereunder, among other things, of, and the grant of a security
interest in, certain of the Owner Trustee's right, title and interest in and to
the Equipment and the Lease and certain payments and other amounts received
hereunder or thereunder, in accordance with the terms hereof, in trust, as
security for, among other things, the Owner Trustee's obligations for the equal
and ratable benefit of the holders of the Equipment Notes; and
WHEREAS, all things necessary to make this Indenture the legal, valid
and binding obligation of the Owner Trustee and the Indenture Trustee, for the
uses and purposes herein set forth, in accordance with its terms, have been
done and performed and have happened.
GRANTING CLAUSE
NOW, THEREFORE, THIS TRUST INDENTURE AND SECURITY AGREEMENT
WITNESSETH, that, to secure the prompt payment of the principal of and interest
and Make-Whole Amount, if any, on and all other amounts due with respect to,
each series of the Equipment Notes, as provided in the Indenture Supplement
under which such series of Equipment Notes is issued, from time to time
outstanding hereunder and the performance and observance by the Owner Trustee
of all the agreements, covenants and provisions herein and in each series of
the Equipment Notes all for the benefit of the holders of the Equipment Notes
of such series, and for the uses and purposes and subject to the terms and
provisions hereof, and in consideration of the premises and of the covenants
herein contained, and of the acceptance of the Equipment Notes of such series
by the Loan Participant, the Owner Trustee does hereby sell, assign, transfer,
convey, mortgage, pledge, and confirm unto the Indenture Trustee, its
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successors and assigns, for the security and benefit of the holders of the
Equipment Notes of each series from time to time, a security interest in and
mortgage lien on all right, title and interest of the Owner
Trustee in and to the following described property, rights, interests and
privileges insofar as it does not constitute Excepted Property (which
collectively, including all property hereafter required to be subjected to the
Lien of this Indenture by any instrument supplemental hereto, but excluding
Excepted Property, being herein called the "Indenture Estate"), to wit:
(1) the Lease, including, without limitation, all amounts
of Basic Rent, Supplemental Rent, insurance proceeds and other
payments of any kind for or with respect to the Equipment, subject to
Lessee's rights under the Lease, including, without limitation,
Lessee's right of quiet enjoyment;
(2) the Equipment, the Replacement Units and all
substitutions therefor in which the Owner Trustee shall from time to
time acquire an interest under the Lease, all as more particularly
described in the Indenture Supplements and Lease Supplements executed
and delivered with respect to the Equipment or any such Replacement
Units or any substitutions therefor, as provided in this Indenture and
the Lease;
(3) all requisition proceeds with respect to the
Equipment or any Unit thereof (to the extent of the Owner Trustee's
interest therein pursuant to the terms of the Lease);
(4) all monies and securities now or hereafter paid or
deposited or required to be paid or deposited with the Indenture
Trustee pursuant to any term of this Indenture, the Lease or the
Participation Agreement or required to be held by the Indenture
Trustee hereunder or thereunder; and
(5) all proceeds of the foregoing.
Notwithstanding the foregoing provisions:
(a) there shall be excluded from the foregoing sale,
assignment, transfer, conveyance, mortgage, pledge or security
interest granted by this Indenture and from the Indenture Estate all
Excepted Property;
(b) (i) the Owner Trustee and the Owner Participant
shall at all times retain the right, to the exclusion of the Indenture
Trustee (A) to Excepted Property and to commence an action at law to
obtain such Excepted Property and (B) to adjust Basic Rent and the
percentages relating to Stipulated Loss Value and Termination Value as
provided in Section 3.4 of the Lease and Section 2.6 of the
Participation Agreement;
(ii) the Owner Trustee and the Indenture Trustee
shall each retain the right to receive from the Lessee all notices,
certificates, reports, filings, opinions of Counsel, copies of all
documents and all information which the Lessee is permitted or
required to give or furnish to the Lessor pursuant to the Lease or to
the Owner Trustee pursuant to any other Operative Agreement and to
exercise the inspection rights provided for in Section 13.2 of the
Lease, to give any notice of default under Section 15 of the Lease and
to retain the right to cause the Lessee to
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take any action and execute and deliver such documents and
assurances as the Lessor may from time to time reasonably request
pursuant to Section 16.2 of the Lease;
(iii) so long as no Indenture Event of Default
shall have occurred and be continuing (but subject to the provisions
of Section 10.05), the Owner Trustee shall retain the right, to the
exclusion of the Indenture Trustee, to exercise all rights of the
Lessor under the Lease (other than the right to receive any funds to
be delivered to the Lessor under the Lease (except funds which
constitute or are delivered with respect to Excepted Property)); and
(c) the leasehold interest granted to the Lessee under
the Lease shall not be subject to the security interest granted by
this Indenture, and nothing in this Indenture shall affect the rights
of the Lessee under the Lease so long as no Lease Event of Default has
occurred and is continuing; and
(d) as between the Owner Trustee and the Indenture
Trustee, nothing contained in this Granting Clause shall prevent the
Owner Trustee, as the Lessor under the Lease, from seeking specific
performance of the covenants of the Lessee under the Lease relating to
the insurance, maintenance, possession and use of the Units and from
maintaining separate insurance with respect to the Units to the extent
permitted by Section 12.5 of the Lease.
HABENDUM CLAUSE
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, in trust for the benefit and
security of the holders of each series of the Equipment Notes from time to
time, without any priority of any one Equipment Note of a particular series
over any other Equipment Note of the same series or any one series of the
Equipment Notes over any other, and for the uses and purposes, and subject to
the terms and provisions, set forth in this Indenture.
It is expressly agreed that anything herein contained to the contrary
notwithstanding, the Owner Trustee shall remain liable under each of the
Operative Agreements to which it is a party to perform all of the obligations,
if any, assumed by it thereunder, all in accordance with and pursuant to the
terms and provisions thereof, and the Indenture Trustee and the holders of the
Equipment Notes shall have no obligation or liability under any of the
Operative Agreements to which the Owner Trustee is a party by reason of or
arising out of this assignment, nor shall the Indenture Trustee (unless the
Indenture Trustee shall have become the "Lessor" under the Lease) or the
holders of the Equipment Notes be required or obligated in any manner to
perform or fulfill any obligations of the Owner Trustee under or pursuant to
any of the Operative Agreements to which the Owner Trustee is a party or,
except as herein expressly provided, to make any payment, or to make any
inquiry as to the nature or sufficiency of any payment received by it, or
present or file any claim, or take any action to collect or enforce the payment
of any amounts which may have been assigned to it or to which it may be
entitled at any time or times.
Subject to the terms and conditions hereof, the Owner Trustee does
hereby constitute the Indenture Trustee the true and lawful attorney of the
Owner Trustee, irrevocably, with full power (in the name of the Owner Trustee
or otherwise), upon the occurrence and during the continuation of an Indenture
Event of Default, to ask, require, demand, receive, compound and give
acquittance for any and
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all moneys and claims for moneys due and to become due to the Owner Trustee
(other than Excepted Property), under or arising out of the Lease, or to
endorse any checks or other instruments or orders in connection therewith and
to file any claims or take any action or institute any proceedings which the
Indenture Trustee may deem to be necessary or advisable in the premises. The
Owner Trustee has directed the Lessee to make all payments of Rent (other than
Excepted Property) payable to the Owner Trustee by the Lessee and all other
amounts which are required to be paid to or deposited with the Owner Trustee
pursuant to the Lease directly to the Indenture Trustee at such address as the
Indenture Trustee shall specify, for application as provided in this Indenture.
The Owner Trustee agrees that promptly on receipt thereof, it will transfer to
the Indenture Trustee any and all moneys from time to time received by it
constituting part of the Indenture Estate, for distribution by the Indenture
Trustee pursuant to this Indenture, except that the Owner Trustee shall accept
for distribution pursuant to the Trust Agreement any amounts distributed to it
by the Indenture Trustee as expressly provided in this Indenture and any
Excepted Property.
The Owner Trustee agrees that at any time and from time to time, upon
the written request of the Indenture Trustee, the Owner Trustee will promptly
and duly execute and deliver or cause to be executed and delivered any and all
such further instruments and documents as the Indenture Trustee may reasonably
deem to be necessary in order to obtain the full benefits of this assignment
and of the rights and powers herein granted.
The Owner Trustee does hereby warrant and represent that it has not
assigned or pledged, and hereby covenants that it will not assign or pledge, so
long as the assignment hereunder shall remain in effect, any of its right,
title or interest hereby assigned, to anyone other than the Indenture Trustee,
and that it will not (other than in respect of Excepted Property), except as
provided in or permitted by this Indenture, accept any payment from the Lessee,
enter into an agreement amending or supplementing any of the Operative
Agreements, execute any waiver or modification of, or consent under the terms
of any of the Operative Agreements (other than the Tax Indemnity Agreement),
settle or compromise any claim (other than claims in respect of Excepted
Property) against the Lessee arising under any of the Operative Agreements, or
submit or consent to the submission of any dispute, difference or other matter
arising under or in respect of any of the Operative Agreements, to arbitration
thereunder.
IT IS HEREBY COVENANTED AND AGREED by and between the parties hereto
as follows:
ARTICLE I.
DEFINITIONS
Section 1.01. Certain Definitions. Unless the context otherwise
requires, all capitalized terms used herein and not otherwise defined shall
have the meanings set forth in Appendix A hereto for all purposes of this
Indenture, and include the plural as well as the singular. All references to
articles, sections, clauses, schedules and appendices in this Indenture are to
articles, sections, clauses, schedules and appendices in and to this Indenture
unless otherwise indicated. All accounting terms not otherwise defined herein
or in Appendix A hereto have the meanings assigned to them in accordance with
generally accepted accounting principles. The words herein, hereof and
hereunder and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision.
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ARTICLE II.
THE EQUIPMENT NOTES
Section 2.01. Form of Equipment Notes. The Equipment Notes shall
be substantially in the form set forth below:
1996-A ____% EQUIPMENT NOTE, SERIES ___
(Secured by, among others, Lease Obligations of
Union Tank Car Company)
Issued in Connection with Certain Railroad Rolling Stock
No.______
Chicago, Illinois
____________ __, 1996
$________________
_________________, not in its individual capacity, but solely as owner
trustee (herein in such capacity called the "Owner Trustee") under that certain
Trust Agreement (UTC Trust No. 1996-A) (L-14_), dated May ___, 1996, as from
time to time supplemented and amended (herein called the "Trust Agreement"),
between the Owner Trustee in its individual capacity and the institution
referred to therein as the "Owner Participant", hereby promises to pay to
_______________________________, or registered assigns, the principal sum of
$____________ in lawful currency of the United States of America, in
installments payable on the dates set forth in Exhibit A hereto, commencing
_____________, 199_, and thereafter to and including _________, 200_, each such
installment to be in an amount equal to the corresponding percentage (if any)
of the remaining principal amount hereof set forth in Exhibit A hereto,
together with interest thereon on the amount of such principal amount remaining
unpaid from time to time from and including the date hereof until such
principal amount shall be due and payable, payable on __________, 199_ and on
each _____________ and _____________ thereafter to the maturity date hereof at
the rate of ___% per annum (computed on the basis of a 360-day year of twelve
30-day months). Interest on any overdue principal and (to the extent legally
enforceable) on overdue interest shall be paid from the due date thereof at the
rate of ___% per annum (computed on the basis of a 360-day year of twelve
30-day months), payable on demand.
All payments of principal and interest and Make-Whole Amount, if any,
to be made hereunder and under the Trust Indenture and Security Agreement (UTC
Trust No. 1996-A) (L-14_), dated May ___, 1996, as from time to time amended
and supplemented (herein called the "Indenture", the defined terms therein not
otherwise defined herein being used herein with the same meanings), between the
Owner Trustee and _______________, as Indenture Trustee thereunder for the
holder of this Equipment Note and the holders of other Equipment Notes
outstanding thereunder (herein in such capacity called the "Indenture Trustee")
shall be made only from the income and proceeds from the Indenture Estate and
only to the extent that the Indenture Trustee shall have sufficient income or
proceeds from the Indenture Estate to make such payments in accordance with the
terms of Article III of the Indenture. Each holder hereof, by its acceptance
of this Equipment Note, agrees that it will look solely to the income and
proceeds from the Indenture Estate to the extent available for distribution to
the holder hereof as provided in the Indenture and that none of the Owner
Trustee, the Owner Participant, the Indenture Trustee or their permitted
successors and assigns is or shall be personally liable to the holder hereof
for any amount
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payable under this Equipment Note or the Indenture or, except as expressly
provided in the Participation Agreement or the Indenture, for any liability
under the Participation Agreement or (in the case of the Owner Trustee or the
Indenture Trustee) the Indenture.
Payments with respect to the principal amount hereof, Make-Whole
Amount, if any, and interest thereon shall be payable in U.S. dollars in
immediately available funds at the principal bond and trustee administration
office of the Indenture Trustee, or as otherwise provided in the Indenture.
Each such payment shall be made on the date such payment is due and without any
presentment or surrender of this Equipment Note. Whenever the date scheduled
for any payment to be made hereunder or under the Indenture shall not be a
Business Day, then such payment need not be made on such scheduled date but may
be made on the next succeeding Business Day with the same force and effect as
if made on such scheduled date and (provided such payment is made on such next
succeeding Business Day) no interest shall accrue on the amount of such payment
from and after such scheduled date to the time of such payment on such next
succeeding Business Day.
Each holder hereof, by its acceptance of this Equipment Note, agrees
that each payment received by it hereunder shall be applied, first, to the
payment of accrued but unpaid interest on this Equipment Note then due, second,
to the payment of the unpaid principal amount of this Equipment Note then due,
third, to the payment of any Make-Whole Amount then due, and fourth, to the
payment of the remaining outstanding principal amount of this Equipment Note;
provided, that the Owner Trustee may only prepay this Equipment Note as
provided in Sections 2.10, 3.02 and 3.03 of the Indenture.
This Equipment Note is one of the Equipment Notes referred to in the
Indenture which have been or are to be issued by the Owner Trustee pursuant to
the terms of the Indenture and relates to the Units described in Lease
Supplement No. ___. The Indenture Estate is held by the Indenture Trustee as
security for the Equipment Notes. Reference is hereby made to the Indenture
for a statement of the rights of the holder of, and the nature and extent of
the security for, this Equipment Note, as well as for a statement of the terms
and conditions of the trusts created by the Indenture, to all of which terms
and conditions in the Indenture each holder hereof agrees by its acceptance of
this Equipment Note.
This Equipment Note is not subject to redemption or prepayment except
as provided in Sections 2.10, 3.02 and 3.03 of the Indenture. This Equipment
Note is subject to purchase by the Owner Trustee without a Make-Whole Amount as
provided in Section 5.04(b) of the Indenture. The holder hereof, by its
acceptance of this Equipment Note, agrees to be bound by said provisions.
This Equipment Note is a registered Equipment Note and is
transferable, as provided in the Indenture, only upon surrender of this
Equipment Note for registration of transfer duly endorsed by, or accompanied by
a written statement of transfer duly executed by, the registered holder hereof
or his attorney duly authorized in writing. Prior to the due presentation for
registration of transfer of this Equipment Note, the Owner Trustee and the
Indenture Trustee may deem and treat the registered holder of this Equipment
Note as the absolute owner and holder hereof for the purpose of receiving
payment of all amounts payable with respect hereto and for all other purposes
and shall not be affected by any notice to the contrary.
THIS EQUIPMENT NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 AND MAY NOT BE TRANSFERRED IN VIOLATION OF SUCH ACT. THIS
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EQUIPMENT NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Indenture Trustee by manual signature, this Equipment Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
In Witness Whereof, the Owner Trustee has caused this Equipment Note
to be executed by one of its authorized officers as of the date hereof.
_________________, not in its
individual capacity, but solely as Owner
Trustee
By: ___________________________________
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[FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Equipment Notes referred to in the within-mentioned
Indenture.
____________________,
as Indenture Trustee
By:_____________________________
Authorized Officer
[Insert from Annex A, the related Amortization Schedule]
Section 2.02. Terms of Equipment Notes. There shall be issued and
delivered to the Loan Participant an Equipment Note under each of the [two]
series of the Equipment Notes related to each Lease Supplement executed and
delivered in respect of the Units delivered on the Initial Closing Date and the
Subsequent Closing Date in the maturity and bearing the interest rate as set
forth in Exhibit B hereto, in an aggregate principal amount equal to that
portion of the loan made by the Loan Participant to the Owner Trustee pursuant
to Section 2 of the Participation Agreement relating to the Units under such
Lease Supplement. Such Equipment Note, shall evidence the loan made by the
Loan Participant in connection with the purchase of the Equipment by the Owner
Trustee from the Lessee, each such Equipment Note to be substantially in the
form set forth in Section 2.01, with deletions and insertions as appropriate,
duly authenticated by the Indenture Trustee and dated the Initial Closing Date
of the Equipment or the Subsequent Closing Date of the Equipment, as
applicable, and as having been issued in connection with the Equipment under a
related Lease Supplement.
The principal amount of and interest on each Equipment Note issued
pursuant to the provisions of this Indenture shall be payable as set forth in
the form thereof contained in Section 2.01 and Annex A. Interest accrued on
the Equipment Notes shall be computed on the basis of a 360-day year of twelve
30-day months on the principal amount thereof remaining unpaid from time to
time from and including the date thereof to but excluding the date of payment.
The Owner Trustee shall furnish to the Indenture Trustee a copy of each
Equipment Note issued pursuant to the provisions of this Indenture. The
aggregate principal amount of Equipment Notes which may be outstanding at any
one time shall be limited to the aggregate amount set forth in Exhibit B
hereto.
No Equipment Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless it shall have been
authenticated by or on behalf of the Indenture Trustee by manual signature.
Section 2.03. Payment from Indenture Estate Only. Notwithstanding
any other provision herein or in the Equipment Notes to the contrary, all
payments to be made under the Equipment Notes and this Indenture and the
relevant Indenture Supplement shall be made only from the income and the
proceeds from the Indenture Estate and only to the extent that the Indenture
Trustee shall have received sufficient income or proceeds from the Indenture
Estate to make such payments in accordance with the terms of Article III
hereof. Each holder of an Equipment Note, by its acceptance of such Equipment
Note, agrees that it will look solely to the income and proceeds from the
Indenture Estate to the extent available for distribution to such holder as
herein provided and that none of the Owner Trustee, the Owner Participant, the
Indenture Trustee or their permitted successors and assigns is or shall be
personally liable to the
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holder of any Equipment Note for any amount payable under such Equipment Note
or the Indenture or, except as expressly provided in the Participation
Agreement or the Indenture, for any liability under the Participation Agreement
or (in the case of the Owner Trustee or the Indenture Trustee) the Indenture.
Section 2.04. Method of Payment. (a) The principal of and
Make-Whole Amount, if any, and interest on each Equipment Note will be payable
in U.S. dollars in immediately available funds at the principal corporate trust
administration office of the Indenture Trustee or as otherwise directed in the
manner provided herein. Notwithstanding the foregoing or any provision in any
Equipment Note to the contrary, the Indenture Trustee will pay, or cause to be
paid, if so requested by any holder of an Equipment Note by written notice to
the Owner Trustee and the Indenture Trustee, all amounts payable by the Owner
Trustee hereunder to such holder or a nominee therefor either (i) by
transferring by wire in immediately available funds to an account maintained by
such holder with a bank in the United States the amount to be distributed to
such holder or (ii) by mailing a check denominated in U.S. dollars to such
holder at such address as such holder shall have specified in such notice, in
any case without any presentment or surrender of any Equipment Note, except
that the holder of an Equipment Note shall surrender such Equipment Note to the
Indenture Trustee upon payment in full of the principal amount of and interest
on such Equipment Note and such other sums payable to such holder hereunder or
under the Equipment Note.
(b) Whenever the date scheduled for any payment to be made
hereunder or under any Equipment Note shall not be a Business Day, then such
payment need not be made on such scheduled date but may be made on the next
succeeding Business Day with the same force and effect as if made on such
scheduled date and (provided such payment is made on such next succeeding
Business Day) no interest shall accrue on the amount of such payment from and
after such scheduled date to the time of such payment on such next succeeding
Business Day.
Section 2.05. Application of Payments to Principal Amount and
Interest. In the case of each Equipment Note, each payment of principal
thereof and Make-Whole Amount, if any, and interest thereon shall be applied,
first, to the payment of accrued but unpaid interest on such Equipment Note
then due thereunder, second, to the payment of the unpaid principal amount of
such Equipment Note then due thereunder, third, to the payment of any
Make-Whole Amount then due thereon and fourth, to the payment of the remaining
outstanding principal amount of such Equipment Note; provided, that the Owner
Trustee may only prepay such Equipment Note in accordance with the provisions
of Section 2.10, 3.02 and 3.03 hereof.
Section 2.06. Termination of Interest in Indenture Estate. A
holder shall have no further interest in, or other right with respect to, the
Indenture Estate when and if the principal amount of and interest on all
Equipment Notes held by such holder and all other sums payable to such holder
hereunder and under such Equipment Notes and under the Participation Agreement
shall have been paid in full.
Section 2.07. Transfer of Equipment Notes. The Indenture Trustee
shall maintain at its corporate trust administration office in Chicago,
Illinois or in the city in which the corporate trust office of a successor
Indenture Trustee is located, a register for the purpose of registering
transfers and exchanges of Equipment Notes. A holder of an Equipment Note
intending to transfer such Equipment Note to a new payee, or to exchange any
Equipment Note or Equipment Notes held by it for an Equipment Note or Equipment
Notes of a different denomination or denominations, may surrender such
Equipment Note or Equipment Notes to the Indenture Trustee at such principal
corporate trust
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administration office of the Indenture Trustee, together with a written request
from such holder for the issuance of a new Equipment Note or Equipment Notes,
specifying the denomination or denominations (each of which shall be not less
than $1,000,000 or a whole multiple thereof or such smaller denomination as may
be necessary due to the original issuance of Equipment Notes of the applicable
maturity in an aggregate principal amount not evenly divisible by $1,000,000)
of the same, and, in the case of a surrender for registration of transfer, the
name and address of the transferee or transferees. Promptly upon receipt of
such documents, the Owner Trustee will issue, and the Indenture Trustee will
authenticate, a new Equipment Note or Equipment Notes of the same series, in
the same aggregate principal amount and dated the same date or dates as, with
the same payment schedule, in the form set forth in Section 2.01 in the same
maturity and bearing the same interest rate as the Equipment Note or Equipment
Notes surrendered, in such denomination or denominations and payable to such
payee or payees as shall be specified in the written request from such holder.
All Equipment Notes issued upon any registration of transfer or exchange of
Equipment Notes shall be the valid obligations of the Owner Trustee evidencing
the same respective obligations, and entitled to the same security and benefits
under this Indenture, as the Equipment Notes surrendered upon such registration
of transfer or exchange. The Indenture Trustee shall make a notation on each
new Equipment Note or Equipment Notes of the amount of all payments or
prepayments of principal and interest previously made on the old Equipment Note
or Equipment Notes with respect to which such new Equipment Note or Equipment
Notes is or are issued. From time to time, the Indenture Trustee will provide
the Owner Trustee and the Lessee with such information as it may request as to
the registered holders of Equipment Notes. The Owner Trustee shall not be
required to exchange any surrendered Equipment Notes as above provided during
the 10-day period preceding the due date of any payment on such Equipment
Notes.
Prior to the due presentment for registration of transfer of an
Equipment Note, the Owner Trustee and the Indenture Trustee may deem and treat
the registered holder of such Equipment Note as the absolute owner and holder
of such Equipment Note for the purpose of receiving payment of all amounts
payable with respect to such Equipment Note and for all other purposes and
shall not be affected by any notice to the contrary.
The Indenture Trustee will promptly notify the Owner Trustee and the
Lessee of each request for a registration of transfer of an Equipment Note.
The Indenture Trustee will promptly cancel and destroy all Equipment Notes
surrendered for transfer or exchange pursuant to this Section.
Section 2.08. Mutilated, Destroyed, Lost or Stolen Equipment Notes.
If any Equipment Note shall become mutilated, destroyed, lost or stolen, the
Owner Trustee shall, upon the written request of the holder of such Equipment
Note, issue, and the Indenture Trustee shall authenticate and deliver in
replacement thereof, a new Equipment Note of the same series in the form set
forth in Section 2.01, payable to the same holder in the same principal amount,
of the same maturity, with the same payment schedule, bearing the same interest
rate and dated the same date as the Equipment Note so mutilated, destroyed,
lost or stolen. The Indenture Trustee shall make a notation on each new
Equipment Note of the amount of all payments or prepayments of principal and
interest theretofore made on the Equipment Note so mutilated, destroyed, lost
or stolen and the date to which interest on such old Equipment Note has been
paid. If the Equipment Note being replaced has become mutilated, such
Equipment Note shall be surrendered to the Indenture Trustee and forwarded to
the Owner Trustee by the Indenture Trustee. If the Equipment Note being
replaced has been destroyed, lost or stolen, the holder of such Equipment Note
shall furnish to the Owner Trustee and the Indenture Trustee such security or
indemnity as may be required by them to save the Owner Trustee and the
Indenture Trustee harmless and evidence satisfactory
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to the Owner Trustee and the Indenture Trustee of the destruction, loss or
theft of such Equipment Note and of the ownership thereof.
Section 2.09. Payment of Transfer Taxes. Upon the transfer of any
Equipment Note or Equipment Notes pursuant to Section 2.07, the Owner Trustee
or the Indenture Trustee may require from the party requesting such new
Equipment Note or Equipment Notes payment of a sum to reimburse the Owner
Trustee or the Indenture Trustee for, or to provide funds for the payment of,
any tax or other governmental charge in connection therewith.
Section 2.10. Prepayments. (a) Each Equipment Note shall be
prepaid in whole or in part by the Owner Trustee on a Rent Payment Date (or, in
the circumstance provided in the last sentence of Section 10.3 of the Lease, on
the Termination Date) upon at least 25 days' prior notice from the Owner
Trustee (or the Lessee on its behalf) to the Indenture Trustee in the event
that the Lease as applicable to any Unit or Units related to such Equipment
Note is terminated pursuant to Section 10 thereof, at a price equal to the sum
of (i) as to principal thereof, an amount equal to the product obtained by
multiplying the unpaid principal amount of such Equipment Note as at the date
of such prepayment (after deducting therefrom the principal installment, if
any, due on or prior to the date of such prepayment) by a fraction, the
numerator of which shall be the Equipment Cost of such Unit or Units and the
denominator of which shall be the aggregate Equipment Cost of all Units
included in the Indenture Estate under the related Indenture Supplement
immediately prior to the date of such prepayment, (ii) as to interest, the
aggregate amount of interest accrued and unpaid in respect of the principal
amount to be prepaid pursuant to clause (i) above on the date of such payment
(after giving effect to the application of any Basic Rent paid on or prior to
the date of such prepayment) and (iii) if prepaid prior to the Make-Whole
Termination Date, the Make-Whole Amount, if any, applicable in respect of the
principal amount to be prepaid pursuant to clause (i) above on the date of such
prepayment.
(b) Each Equipment Note shall be prepaid in whole or in part by
the Owner Trustee on a Rent Payment Date upon at least 15 days' prior notice
from the Owner Trustee (or the Lessee on its behalf) to the Indenture Trustee
in connection with the occurrence of an Event of Loss with respect to any Unit
or Units related to such Equipment Note if such Unit or Units are not replaced
pursuant to Section 11.2(i) of the Lease, or in the event Lessee shall be
required to settle for 10 or more Units on the date of payment therefor
determined pursuant to Section 11.2 of the Lease, such prepayment shall be made
on such date, at a price equal to the sum of (i) as to principal thereof, an
amount equal to the product obtained by multiplying the aggregate unpaid
principal amount of such Equipment Note as at such prepayment date (after
deducting therefrom the principal installment, if any, due on such date) by a
fraction, the numerator of which shall be the Equipment Cost of such Unit or
Units and the denominator of which shall be the aggregate Equipment Cost of all
Units included in the Indenture Estate under the related Indenture Supplement
immediately prior to such date, and (ii) as to interest, the aggregate amount
of interest accrued and unpaid in respect of the principal amount to be prepaid
pursuant to clause (i) above to but not including the date of prepayment after
giving effect to the application of any Basic Rent paid on or prior to the date
of such prepayment, but without the payment of any Make-Whole Amount.
(c) Unless Lessee shall have elected to assume all of the rights
and obligations of the Owner Trustee under this Indenture in respect of the
Equipment Notes, each Equipment Note shall be prepaid in whole by the Owner
Trustee on the Business Day specified by Lessee to Owner Trustee and Indenture
Trustee in accordance with Section 6.9 of the Participation Agreement, in the
event that Lessee exercises the purchase option under Section 6.9 of the
Participation Agreement with respect to the Equipment, at
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a price equal to the sum of (i) as to principal thereof, an amount equal to the
unpaid principal amount of such Equipment Note as at the date of any prepayment
under Section 6.9 of the Participation Agreement (after deducting therefrom the
principal installment, if any, due on the prepayment date), (ii) as to
interest, the aggregate amount of interest accrued and unpaid in respect of the
principal amount to be prepaid pursuant to clause (i) above on the date of such
prepayment after giving effect to the application of any Basic Rent paid on or
prior to the date of such prepayment, and (iii) if prepaid prior to the
Make-Whole Termination Date applicable to such Equipment Notes, the Make- Whole
Amount, if any, applicable in respect of the principal amount to be prepaid
pursuant to clause (i) above on the date of such payment.
(d) Each Equipment Note shall be prepaid in whole or in part by
the Owner Trustee on the Early Purchase Date in the event that Lessee exercises
the purchase option under Section 22.1 of the Lease with respect to the
Equipment, at a price equal to the sum of (i) as to principal thereof, an
amount equal to the product obtained by multiplying the aggregate unpaid
principal amount of such Equipment Note as at the Early Purchase Date (after
deducting therefrom the principal installment, if any, due on the prepayment
date) by a fraction, the numerator of which shall be the Equipment Cost of such
Unit or Units to be purchased and the denominator of which shall be the
aggregate Equipment Cost of all Units included in the Indenture Estate
immediately prior to the date of such prepayment and (ii) as to interest, the
aggregate amount of interest accrued and unpaid in respect of the principal
amount to be prepaid pursuant to clause (i) above on the date of such
prepayment after giving effect to the application of any Basic Rent paid on or
prior to the date of such prepayment.
(e) On the Refunding Date specified by the Lessee to the Owner
Trustee and to the Indenture Trustee in accordance with Section 10.2(f) of the
Participation Agreement, all Equipment Notes shall be prepaid in whole but not
in part on such Refunding Date, in the event of a refunding or refinancing
pursuant to Section 10.2 of the Participation Agreement, at a price in addition
to any other amounts due to the holders of the Equipment Notes under this
Indenture equal to the unpaid principal amount thereof together with accrued
but unpaid interest thereon, plus, if prepaid prior to the Make-Whole
Termination Date, the Make-Whole Amount, if any.
(f) Each Equipment Note shall be prepaid in whole but not in part
on the Mandatory Refinancing Date, at a price in addition to any other amounts
due to the holders of the Equipment Notes under this Indenture equal to the
unpaid principal amount thereof together with accrued but unpaid interest
thereon, but without the payment of any Make- Whole Amount.
(g) The Indenture Trustee shall give prompt notice of any
prepayment of any of the Equipment Notes to all holders of such series of the
Equipment Notes as soon as the Indenture Trustee shall have knowledge that such
prepayment is to occur, which notice shall specify the Equipment Note or Notes
to be prepaid, the principal amount of such Equipment Note or Notes to be
prepaid and the date of prepayment, which date shall be not less than 25 days
after the date of such notice.
Section 2.11. Equally and Ratably Secured. All Equipment Notes at
any time outstanding under this Indenture shall be equally and ratably secured
hereby without preference, priority or distinction on account of the date or
dates or the actual time or times of the issue or maturity of such Equipment
Notes so that all Equipment Notes of any series at any time issued and
outstanding hereunder shall have the same rights, Liens and preferences under
and by virtue of this Indenture.
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ARTICLE III.
RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME
FROM THE INDENTURE ESTATE
Section 3.01. Basic Rent Distribution. Except as otherwise
provided in Section 3.03, each installment of Interim Interest and Basic Rent
as well as any installment of interest on overdue installments of Basic Rent,
and any other moneys paid over by the Lessee or the Owner Trustee to the
Indenture Trustee for such purpose, shall be distributed by the Indenture
Trustee as promptly as possible (it being understood that any payments of
Interim Interest and Basic Rent received by the Indenture Trustee on a timely
basis and in accordance with the provisions of Section 3.6 of the Lease shall
be distributed on the date received in the funds so received) in the following
order of priority: first, so much of such installment as shall be required for
the purpose shall be distributed and paid to the holders of the Equipment Notes
of such series to pay in full the aggregate amount of the payment or payments
of principal, Make- Whole Amount, if any, and interest (as well as any interest
on overdue principal or interest) then due, such distribution to be made
ratably, without priority of one over the other, in the proportion that the
amount of such payment or payments then due with respect to each such Equipment
Note bears to the aggregate amount of payments then due under all such
Equipment Notes; and second, the balance, if any, of such installment remaining
thereafter shall be distributed to the Owner Trustee for distribution in
accordance with the terms of the Trust Agreement. The portion of each such
installment distributed to a holder of an Equipment Note shall be applied by
such holder in payment of such Equipment Note in accordance with the terms of
Section 2.05.
Section 3.02. Payments in the Event of Prepayment. (a) Except as
otherwise provided in Section 3.03 or 3.05, in the event of any prepayment of
an Equipment Note or Notes, in whole or in part, in accordance with the
provisions of Section 2.10 any amount received shall in each case be
distributed and paid in the following order of priority: first, so much of such
amount as shall be required for the purpose of prepayment shall be distributed
and paid to the holders of such Equipment Note or Notes to pay the aggregate
amount of the payment of principal, Make-Whole Amount, if any, and interest to
be prepaid on such Equipment Note or Notes pursuant to Section 2.10, such
prepayment to be made ratably to such Equipment Note or Notes to which such
prepayment relates, without priority of one over any other, in the proportion
that the amount to be prepaid on each such Equipment Note bears to the
aggregate amount to be paid on all such Equipment Notes; and second, the
balance, if any, of such amount remaining thereafter shall be distributed to
the Owner Trustee for distribution in accordance with the terms of the Trust
Agreement.
(b) Except as otherwise provided in Section 3.03 or 3.05 hereof,
any amounts received directly or through the Lessee from any governmental
authority or other party pursuant to Section 11 of the Lease with respect to
any Unit as the result of an Event of Loss, to the extent that such amounts are
not at the time required to be paid to the Lessee pursuant to said Section 11,
and any amounts of insurance proceeds for damage to the Indenture Estate
received directly or though the Lessee from any insurer pursuant to Section 12
of the Lease with respect thereto as the result of an Event of Loss, to the
extent such amounts are not at the time required to be paid to the Lessee
pursuant to said Section 12, shall be applied as provided in clause (a) of this
Section 3.02.
Section 3.03. Payments after Indenture Event of Default. (a)
Except as provided in Section 3.05, all payments received and amounts realized
by the Indenture Trustee after an Indenture Event of Default shall have
occurred and be continuing and after the Indenture Trustee has declared (as
assignee
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from the Owner Trustee of the Lease) the Lease to be in default pursuant to
Section 15 thereof or has declared the Equipment Notes to be accelerated
pursuant to Section 5.02, as the case may be, or has elected to foreclose or
otherwise exercise any remedies under this Indenture (including any amounts
realized by the Indenture Trustee from the exercise of any remedies pursuant to
Section 15 of the Lease, or Article V), as well as all payments or amounts then
held or thereafter received by the Indenture Trustee as part of the Indenture
Estate while such Indenture Event of Default shall be continuing, shall be
distributed forthwith by the Indenture Trustee in the following order of
priority:
First, so much of such payments or amounts as shall be
required to reimburse the Indenture Trustee for any fees which are due
and payable for its services under this Indenture and any tax, expense
(including reasonable attorney's fees) or other loss incurred by the
Indenture Trustee (to the extent reimbursable and not previously
reimbursed and to the extent incurred in connection with its duties as
Indenture Trustee) shall be distributed to the Indenture Trustee;
Second, so much of such payments or amounts as shall be
required to reimburse the holders of the Equipment Notes for payments
made by them to the Indenture Trustee pursuant to Section 6.03 (to the
extent not previously reimbursed), and to pay such holders of the
Equipment Notes the amounts payable to them pursuant to the provisions
of the Participation Agreement, shall be distributed to such holders
of the Equipment Notes, without priority of one over the other, in
accordance with the amount of the payment or payments made by, or
payable to, each such holder;
Third, so much of such payments or amounts remaining as shall
be required to pay the principal of, and Make-Whole Amount, if any, to
the extent received from the Lessee as Supplemental Rent, and accrued
interest (to the date of distribution) on all Equipment Notes, payable
to the Loan Participant, then due and payable, whether by declaration
of acceleration pursuant to Section 5.02 or otherwise, and in case the
aggregate amount so to be distributed shall be insufficient to pay in
full the aforesaid amounts, then, ratably, without priority of one
over the other, in the proportion that the aggregate unpaid principal
amount of all Equipment Notes held by each such holder, plus the
accrued but unpaid interest thereon to the date of distribution, bears
to the aggregate unpaid principal amount of all Equipment Notes, plus
the accrued but unpaid interest thereon to the date of distribution;
and
Fourth, the balance, if any, of such payments or amounts
remaining thereafter shall be distributed to the Owner Trustee for
distribution in accordance with the terms of the Trust Agreement.
(b) Except as provided in Sections 3.03(a) and 3.05, if an
Indenture Default or Indenture Event of Default shall have occurred and be
continuing, the Indenture Trustee shall not make any distribution to the Owner
Trustee but shall hold amounts otherwise distributable to the Owner Trustee as
collateral security for the obligations secured hereby and invested as provided
in Section 7.04(b) until the earliest to occur of (a) the date on which such
Indenture Default or Indenture Event of Default shall have been cured or waived
and (b) such acceleration occurs and such amounts are applied pursuant to
Section 3.03(a); provided, that if any amounts are held pursuant to this
Section 3.03(b) for a period of 180 days during which time the Equipment Notes
could, but shall not have been, accelerated, then (x) all amounts then held by
the Indenture Trustee under this Section 3.03(b) with respect to such Indenture
Default or Indenture Event of Default which have been so held for at least 90
days shall on the 181st day
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be distributed to the Owner Trustee for distribution in accordance with the
terms of the Trust Agreement and (y) any such amounts which are being held
pursuant to this Section 3.03(b) with respect to such Indenture Default or
Indenture Event of Default but which have not been held for at least 90 days
shall, on the 91st day following the date on which such amount was initially
received by the Indenture Trustee, thereafter be distributed to the Owner
Trustee for distribution in accordance with the terms of the Trust Agreement.
Section 3.04. Other Payments. Except as otherwise provided in
Section 3.03 or 3.05, (a) any payments received by the Indenture Trustee for
which no provision as to the application thereof is made in the Lease or the
Participation Agreement or elsewhere in this Article III, and (b) all payments
received and amounts realized by the Indenture Trustee under the Lease or
otherwise with respect to the Equipment to the extent received or realized at
any time after payment in full of the principal of and interest and Make-Whole
Amount, if any, on all Equipment Notes, as well as any other amounts remaining
as part of the Indenture Estate after payment in full of the principal of and
interest and Make-Whole Amount, if any, shall be distributed forthwith by the
Indenture Trustee in the order of priority set forth in Section 3.03(a), except
that in the case of any payment described in clause (b) above, such payment
shall be distributed omitting clause "third" of such Section 3.03(a) on all
Equipment Notes issued hereunder.
Any payments received by the Indenture Trustee for which provision as
to the application thereof is made in the Lease or the Participation Agreement
but not elsewhere in this Indenture shall be applied to the purposes for which
such payments were made in accordance with the provisions of the Lease or the
Participation Agreement, as the case may be.
Section 3.05. Distribution of Excepted Property. All amounts
constituting Excepted Property received by the Indenture Trustee shall be paid
promptly by the Indenture Trustee to the Person or Persons entitled thereto.
ARTICLE IV.
ASSUMPTION OF OBLIGATIONS OF OWNER TRUSTEE BY LESSEE
Section 4.01. Assumption of Obligations of Owner Trustee by Lessee.
In the event that the Lessee shall have elected to assume all of the rights and
obligations of the Owner Trustee under this Indenture in respect of the
Equipment Notes in connection with the purchase by Lessee of Equipment pursuant
to Section 6.9 of the Participation Agreement and, if on or prior to the
purchase date:
(a) Lessee shall have delivered to the Indenture Trustee a
certificate, dated the date of such purchase, of a Responsible Officer stating
that Lessee has paid to the Owner Trustee all amounts required to be paid to
the Owner Trustee pursuant to Section 3.3 of the Lease in connection with such
purchase and assumption;
(b) no event which constitutes or, with the lapse of time or
notice, or both, would become, an Event of Default under this Agreement after
giving effect to the indenture supplement referred to below shall have occurred
and be continuing immediately subsequent to such purchase or assumption and the
Indenture Trustee shall have received a certificate, dated the date of such
purchase, of a Responsible Officer to such effect;
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(c) the Indenture Trustee shall have received, on or prior to the
date of such purchase, evidence of all filings, recordings and other action
referred to in the Opinion or Opinions of Counsel referred to below;
(d) the Indenture Trustee shall have received an Opinion or
Opinions of Counsel for Lessee, dated the date of such purchase which without
unusual qualification shall be to the effect that, after giving effect to the
indenture supplement referred to below:
(i) this Indenture constitutes the legal, valid and
binding obligation of Lessee, enforceable against Lessee in accordance
with its terms, except as the same may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general principles
of equity, and except as limited by applicable laws which may affect
the remedies provided for in this Indenture, which laws, however, do
not in the opinion of such counsel make the remedies provided for in
this Agreement inadequate for the practical realization of the rights
and benefits provided for in this Indenture; and
(ii) the Lien on the Equipment constitutes a
fully-perfected Lien and all filing, recording or other action
(specifying the same) necessary to perfect and protect the Lien of
this Agreement has been accomplished.
(e) upon delivery of an indenture supplement giving effect to such
assumption reasonably satisfactory to the Indenture Trustee, dated the date of
such purchase;
then, automatically and without the requirement of further action by any
person, effective as of the date of such purchase, the Owner Trustee shall be
released from all of its obligations under the Equipment Notes and under this
Indenture in respect of the Equipment Notes or otherwise (other than any
obligations or liabilities of the Owner Trustee in its individual capacity
incurred on or prior to the date of such purchase or arising out of or based
upon events occurring on or prior to the date of such purchase, which
obligations and liabilities shall remain the sole responsibility of the Owner
Trustee) and the Lien of this Indenture upon the sale proceeds paid or payable
to the Owner Trustee shall be discharged. If requested by the Owner Trustee,
the Indenture Trustee shall execute and deliver an instrument, in form and
substance satisfactory to the Owner Trustee, confirming such release and
discharge.
ARTICLE V.
REMEDIES OF THE INDENTURE TRUSTEE UPON AN INDENTURE
EVENT OF DEFAULT
Section 5.01. Indenture Events of Default. The following events
shall constitute "Indenture Events of Default" and each such Indenture Event of
Default shall be deemed to exist and continue so long as, but only so long as,
it shall not have been remedied:
(a) subject to Section 5.04(a), a Lease Event of Default (other
than a Lease Event of Default by reason of a default by the Lessee to pay any
amounts which are part of the Excepted Property); or
(b) default by the Owner Trustee in making any payment when due of
principal of, Make-Whole Amount, if any, or interest on, any series of the
Equipment Notes or any Equipment Note or
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Equipment Notes, and the continuance of such default unremedied for 10 Business
Days after the same shall have become due and payable; or
(c) any failure by the Owner Trustee or the Owner Participant to
observe or perform in any material respect any covenant or obligation of them
or any of them, in this Indenture or the Equipment Notes or any series thereof
(other than as set forth in clause (b) above) or in the Participation
Agreement, if such failure is not remedied within a period of 30 days after
there has been given to the Owner Trustee, the Owner Participant and the Lessee
by the Indenture Trustee or by any holder of an Equipment Note a written notice
specifying such failure and requiring it to be remedied; or
(d) any representation or warranty made by the Owner Trustee
(except to the extent made with respect to _________________, in its individual
capacity) or the Owner Participant under the Participation Agreement, or by the
Owner Trustee hereunder, or by any representative of the Owner Trustee or the
Owner Participant in any document or certificate furnished to the Indenture
Trustee or the Loan Participant in connection herewith or therewith or pursuant
hereto or thereto, shall prove at any time to have been incorrect in any
material respect as of the date made and such incorrectness shall remain
material and continue unremedied for a period of 30 days after there has been
given to the Owner Trustee and the Owner Participant a written notice
specifying such incorrectness, stating that such incorrectness is a default
hereunder and requiring it to be remedied by the Indenture Trustee or by any
holder of an Equipment Note; or
(e) the Owner Trustee (as Owner Trustee and not in its individual
capacity) or the Owner Participant shall consent to the appointment of a
custodian, receiver, trustee or liquidator of itself or of a substantial part
of its property or shall make a general assignment for the benefit of
creditors; or
(f) the Owner Trustee (as Owner Trustee and not in its individual
capacity) or the Owner Participant shall file, or consent by answer or
otherwise to the filing against it of, a petition for relief or reorganization
or arrangement or any other petition in bankruptcy, for liquidation or to take
advantage of any bankruptcy or insolvency law of any jurisdiction; or
(g) an order, judgment or decree shall be entered by any court of
competent jurisdiction appointing, without the consent of the Owner Trustee (as
Owner Trustee and not in its individual capacity) or the Owner Participant, a
receiver, trustee or liquidator of the Indenture Estate, the Owner Trustee (as
Owner Trustee and not in its individual capacity) or the Owner Participant, or
of any substantial part of its property, or granting any order for relief in
respect of the Owner Trustee (as Owner Trustee and not in its individual
capacity) or the Owner Participant under the Federal bankruptcy laws, and any
such order, judgment or decree of appointment shall remain in force
undismissed, unstayed or unvacated for a period of 60 days after the date of
entry thereof; or
(h) a petition against the Owner Trustee (as Owner Trustee and not
in its individual capacity) or the Owner Participant, in a proceeding under the
Federal bankruptcy laws or other insolvency law, as now or hereafter in effect,
shall be filed and shall not be withdrawn or dismissed within 60 days
thereafter, or if, under the provisions of any law providing for reorganization
or winding-up of corporations which may apply to the Owner Trustee (as Owner
Trustee and not in its individual capacity) or the Owner Participant, any court
of competent jurisdiction shall assume jurisdiction, custody or control of the
Indenture Estate, the Owner Trustee (as Owner Trustee and not in its individual
capacity) or the
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Owner Participant or of any substantial part of its property and such
jurisdiction, custody or control shall remain in force unrelinquished, unstayed
or unterminated for a period of 60 days.
Notwithstanding any provision herein to the contrary, if an Indenture Event of
Default described in clause (e), (f), (g) or (h) of this Section 5.01 results
solely from the bankruptcy, reorganization, compromise, arrangement,
insolvency, readjustment of debt, dissolution or liquidation of Owner Trustee
solely in its individual capacity, and can be cured by the appointment of a
substitute Owner Trustee without adversely affecting the rights of the
Indenture Trustee hereunder, then Indenture Trustee shall refrain from the
exercise of any of the rights, powers or remedies pursuant to this Article V
for a period of 45 days, provided Owner Participant is diligently seeking to,
and does, replace the bank or trust company then serving as Owner Trustee which
replacement shall be deemed to cure such Indenture Event of Default.
Section 5.02. Acceleration; Rescission and Annulment. If an
Indenture Event of Default occurs and is continuing, the Indenture Trustee may,
and upon the directions of a Majority in Interest shall, subject to Section
5.04, declare the unpaid principal amount of all Equipment Notes then
outstanding and accrued interest thereon to be due and payable. At any time
after the Indenture Trustee has declared the unpaid principal amount of all
Equipment Notes then outstanding to be due and payable and prior to the sale of
any of the Indenture Estate pursuant to this Article V, a Majority in Interest,
by written notice to the Owner Trustee, the Lessee and the Indenture Trustee,
may rescind and annul such declaration and thereby annul its consequences if:
(i) there has been paid to or deposited with the Indenture Trustee an amount
sufficient to pay all overdue installments of interest on all of the Equipment
Notes, and the principal of and Make-Whole Amount, if any, on any Equipment
Notes that have become due otherwise than by such declaration of acceleration,
(ii) the rescission would not conflict with any judgment or decree, and (iii)
all other Indenture Defaults and Indenture Events of Default, other than
nonpayment of principal or interest on any of the Equipment Notes that have
become due solely because of such acceleration, have been cured or waived.
Section 5.03. Remedies with Respect to Indenture Estate. (a)
After an Indenture Event of Default shall have occurred and so long as such
Indenture Event of Default shall be continuing, then and in every such case the
Indenture Trustee, as assignee hereunder of the Lease or as mortgagee hereunder
of the Equipment or otherwise, may, and when required pursuant to the
provisions of Article VI hereof shall, subject to Sections 5.04 and 5.05,
exercise any or all of the rights and powers and pursue any and all of the
remedies pursuant to Section 15 of the Lease and this Article V and may recover
judgment in its own name as Indenture Trustee against the Indenture Estate and
may take possession of all or any part of the Indenture Estate, and may exclude
the Owner Trustee and the Owner Participant and all persons claiming under any
of them wholly or partly therefrom; provided, however, that nothing in this
Indenture shall permit or require the Indenture Trustee to take any action
contrary to, or to disturb, the Lessee's rights under the Lease, except in
accordance with the provisions of the Lease. The Indenture Trustee, after the
occurrence of any Indenture Event of Default, shall give the Owner Participant
and the Owner Trustee 10 Business Days' (or such shorter period as practical)
prior notice of the date before which the Indenture Trustee shall not exercise
any remedy which would result in the exclusion of the Owner Trustee from the
Indenture Estate or any part thereof; provided, however, such notice period
shall not be in addition to any other notice period provided herein and;
provided, further, that the failure to give such notice shall have no effect on
any action taken by the Indenture Trustee.
(b) Subject to Section 5.04 and Section 5.05, the Indenture
Trustee may, if at the time such action may be lawful and always subject to
compliance with any mandatory legal requirements, either
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with or without taking possession, and either before or after taking
possession, and without instituting any legal proceedings whatsoever, and
having first given notice of such sale by registered mail to the Owner Trustee,
the Owner Participant and the Lessee once at least 20 days prior to the date of
such sale or the date on which the Indenture Trustee enters into a binding
contract for a private sale, and any other notice which may be required by law,
sell and dispose of the Indenture Estate, or any part thereof, or interest
therein, at public auction to the highest bidder or at private sale in one lot
as an entirety or in separate lots, and either for cash or on credit and on
such terms as the Indenture Trustee may determine, and at any place (whether or
not it be the location of the Indenture Estate or any part thereof) and time
designated in the notice above referred to; provided, however, that,
notwithstanding any provision herein to the contrary, the Indenture Trustee
shall not sell any of the Indenture Estate or exercise any other remedies which
would result in the exclusion of the Owner Trustee from the Indenture Estate or
any part thereof unless a declaration of acceleration has been made pursuant to
Section 5.02; provided, further, that, in the event the circumstances
contemplated by Section 5.04(c) exist, the Indenture Trustee shall not be
allowed to deliver the notice required by this Section 5.03(b) until the
earlier of (x) such time as such circumstances no longer exist or (y) the
expiration of the 90 day period set forth in Section 5.04(c). Any such public
sale or sales may be adjourned from time to time by announcement at the time
and place appointed for such sale or sales, or for any such adjourned sale or
sales, without further notice, and the Indenture Trustee or the holder or
holders of any Equipment Notes, or any interest therein, may bid and become the
purchaser at any such public sale. The Indenture Trustee may exercise such
right without possession or production of the Equipment Notes or proof of
ownership thereof, and as representative of the holders of each series may
exercise such right without including the holders as parties to any suit or
proceeding relating to foreclosure of any property in the Indenture Estate.
The Owner Trustee hereby irrevocably constitutes the Indenture Trustee the true
and lawful attorney-in-fact of the Owner Trustee (in the name of the Owner
Trustee or otherwise) for the purpose of effectuating any sale, assignment,
transfer or delivery for enforcement of the Lien of this Indenture, whether
pursuant to foreclosure or power of sale or otherwise, to execute and deliver
all such bills of sale, assignments and other instruments as the Indenture
Trustee may consider necessary or appropriate, with full power of substitution,
the Owner Trustee hereby ratifying and confirming all that such attorney or any
substitute shall lawfully do by virtue hereof. Nevertheless, if so requested
by the Indenture Trustee or any purchaser, the Owner Trustee shall ratify and
confirm any such sale, assignment, transfer or delivery, by executing and
delivering to the Indenture Trustee or such purchaser all bills of sale,
assignments, releases and other proper instruments to effect such ratification
and confirmation as may be designated in any such request.
(c) Subject to Section 5.04 and Section 5.05, the Owner Trustee
agrees, to the fullest extent that it lawfully may, that, in case one or more
of the Indenture Events of Default shall have occurred and be continuing, then,
in every such case, the Indenture Trustee may take possession of all or any
part of the Indenture Estate and may exclude the Owner Trustee and the Owner
Participant and all persons claiming under any of them wholly or partly
therefrom. At the request of the Indenture Trustee, the Owner Trustee shall
promptly execute and deliver to the Indenture Trustee such instruments of title
and other documents as the Indenture Trustee may deem necessary or advisable to
enable the Indenture Trustee or an agent or representative designated by the
Indenture Trustee, at such time or times and place or places as the Indenture
Trustee may specify, to obtain possession of all or any part of the Indenture
Estate. If the Owner Trustee shall fail for any reason to execute and deliver
such instruments and documents to the Indenture Trustee, the Indenture Trustee
may pursue all or part of the Indenture Estate wherever it may be found and may
enter any of the premises of the Lessee wherever the Indenture Estate may be or
be supposed to be and search for the Indenture Estate and, subject to Section
5.05, take possession of and remove the Indenture Estate. Upon every such
taking of possession, the Indenture
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Trustee may, from time to time, at the expense of the Indenture Estate, make
all such expenditures for maintenance, insurance, repairs, replacements,
alterations, additions and improvements to any of the Indenture Estate, as it
may deem proper. In each such case, the Indenture Trustee shall have the right
to use, operate, store, control or manage the Indenture Estate, and to carry on
the business and to exercise all rights and powers of the Owner Trustee
relating to the Indenture Estate, as the Indenture Trustee shall deem best,
including the right to enter into any and all such agreements with respect to
the maintenance, operation, leasing or storage of the Indenture Estate or any
part thereof as the Indenture Trustee may determine; and the Indenture Trustee
shall be entitled to collect and receive all tolls, rents, revenues, issues,
income, products and profits of the Indenture Estate and every part thereof,
without prejudice, however, to the right of the Indenture Trustee under any
provision of this Indenture to collect and receive all cash held by, or
required to be deposited with, the Indenture Trustee hereunder. Such tolls,
rents, revenues, issues, income, products and profits shall be applied to pay
the expenses of holding and operating the Indenture Estate and of conducting
the business thereof, and of all maintenance, repairs, replacements,
alterations, additions and improvements, and to make all payments which the
Indenture Trustee may be required or may elect to make, if any, for taxes,
assessments, insurance or other proper charges upon the Indenture Estate or any
part thereof (including the employment of engineers and accountants to examine,
inspect and make reports upon the properties and books and records of the
Indenture Estate), and all other payments which the Indenture Trustee may be
required or authorized to make under any provision of this Indenture, as well
as just and reasonable compensation for the services of the Indenture Trustee,
and of all persons properly engaged and employed by the Indenture Trustee,
including the reasonable expenses of the Indenture Trustee.
(d) If an Indenture Event of Default occurs and is continuing and
the Indenture Trustee shall have obtained possession of a Unit, the Indenture
Trustee shall not be obligated to use or operate such Unit or cause such Unit
to be used or operated directly or indirectly by itself or through agents or
other representatives or to lease, license or otherwise permit or provide for
the use or operation of such Unit or Equipment by any other Person unless (i)
the Indenture Trustee shall have been able to obtain insurance in kinds, at
rates and in amounts satisfactory to it in its reasonable discretion to protect
the Indenture Estate and the Indenture Trustee, as trustee and individually,
against any and all liability for loss or damage to such Unit and for public
liability and property damage resulting from use or operation of such Unit and
(ii) funds are available in the Indenture Estate to pay for all such insurance
or, in lieu of such insurance, the Indenture Trustee is furnished with
indemnification from the holders of the Equipment Notes or any other Person
upon terms and in amounts satisfactory to the Indenture Trustee in its
reasonable discretion to protect the Indenture Estate and the Indenture
Trustee, as trustee and individually, against any and all such liabilities.
(e) Notwithstanding anything contained herein, so long as the Pass
Through Trustee under any Pass Through Trust Agreement is the registered holder
of any Equipment Note issued hereunder, the Indenture Trustee is not authorized
or empowered to acquire title to any Indenture Estate or take any action with
respect to any Indenture Estate so acquired by it if such acquisition or action
would cause the trust created by the Trust Agreement or the Pass Through Trust
Agreement to fail to qualify as a "grantor trust" for federal income tax
purposes.
Section 5.04. Right to Cure; Option to Purchase; Etc.
(a) Right to Cure. (A) If there shall occur a Lease Event of
Default in respect of the payment of Basic Rent pursuant to Section 14(a) of
the Lease, then as long as no other Indenture Event
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of Default (other than arising from such failure to pay Basic Rent or which is
concurrently being cured pursuant to this Section 5.04(a)) shall have occurred
and be continuing the Owner Participant or the Owner Trustee may (but need not)
pay to the Indenture Trustee, at any time prior to the expiration of a period
of 10 Business Days (a "10-Day Period") after receiving written notice of such
default from the Indenture Trustee (prior to the expiration of which 10-Day
Period the Indenture Trustee shall not declare the Lease in default pursuant to
Section 15 thereof or exercise any of the rights, powers or remedies pursuant
to such Section 15 or this Article V), an amount equal to the full amount of
such payment of Basic Rent, together with any interest due thereon on account
of the delayed payment thereof, and such payment by the Owner Participant or
the Owner Trustee shall be deemed to cure any Indenture Event of Default which
arose from such failure of the Lessee (but such cure shall not relieve the
Lessee of any of its obligations and shall not cure any other Indenture Event
of Default) or (B) if there shall occur a Lease Event of Default in respect of
any other payment of Rent (other than Basic Rent) or a Lease Event of Default
shall have occurred and be continuing, which Lease Event of Default is curable
by the payment of money (it being understood that actions such as the obtaining
of insurance or the procuring of maintenance services can be so effected), then
as long as no other Indenture Event of Default (other than arising from such
Lease Event of Default or which is concurrently being cured pursuant to this
Section 5.04(a)) shall have occurred and be continuing the Owner Participant or
the Owner Trustee may (but need not) pay to the Indenture Trustee, at any time
prior to the expiration of a period of 30 days (a "30-Day Period") after
receiving written notice of such Lease Event of Default from the Indenture
Trustee (prior to the expiration of which 30-Day Period the Indenture Trustee
shall not declare the Lease in default pursuant to Section 15 thereof or
exercise any of the rights, powers or remedies pursuant to such Section 15 or
this Article V), an amount equal to the full amount of such payment of Rent,
together with any interest due thereon on account of the delayed payment
thereof or otherwise make such payment as shall effect such cure, and such
payment by the Owner Participant or the Owner Trustee shall be deemed to cure
any Indenture Event of Default which arose from such Lease Event of Default
(but such cure shall not relieve the Lessee of any of its obligations);
provided however, Owner Participant and Owner Trustee, collectively, shall not
be entitled to (x) cure more than three consecutive or six total defaults in
the payment of Basic Rent, or (y) cure other Lease Events of Default if the
outstanding amount which has been paid by the Owner Participant or the Owner
Trustee and not reimbursed to such parties by the Lessee pursuant to this
clause (y) exceeds in the aggregate $5,000,000, as adjusted annually for
inflation as of January 1 of each calendar year, by the percentage change in
the Consumer Price Index, All Urban Consumers, All Cities, as compared to the
prior calendar year as published by the Bureau of Labor Statistics of the
United States Department of Labor. Upon any cure by the Owner Participant or
the Owner Trustee in accordance with the first sentence of this Section
5.04(a), the Owner Participant or the Owner Trustee shall, to the extent of
their respective payments, be subrogated to the rights of the Indenture
Trustee, as assignee hereunder of the Owner Trustee to receive such payment of
Rent (and any interest due thereon on account of the delayed payment thereof)
or right of reimbursement, and shall be entitled to receive such payment upon
its receipt by the Indenture Trustee as aforesaid (but in each case only if all
amounts of principal and interest at the time due and payable on the Equipment
Notes shall have been paid in full); provided that neither the Owner
Participant nor the Owner Trustee shall attempt to recover any such amount paid
by it on behalf of the Lessee pursuant to this Section 5.04(a) except by
demanding of the Lessee payment of such amount or by commencing an action
against the Lessee to require the payment of such amount.
(b) Option to Purchase Equipment Notes. In the event that (i) at
any time one or more Lease Events of Default shall have occurred and any such
Lease Event of Default shall have continued for a period of 180 days or more
during which time the Equipment Notes could, but shall not, have been
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accelerated pursuant to Section 5.02, (ii) the Equipment Notes shall have been
accelerated pursuant to Section 5.02, (iii) the Indenture Trustee, as assignee
hereunder of the Lease, shall have exercised (or given notice of its intention
to exercise) any remedy in respect of the Units under the Lease, or (iv) the
Indenture Trustee shall commence foreclosure of the Lien of this Indenture or
otherwise exercise remedies which would result in the exclusion of the Owner
Trustee from the Indenture Estate or any part thereof (or give notice of its
intention to foreclose or exercise remedies), then and in any such case, so
long as the Lessee and its Affiliates do not individually or in the aggregate
own more than 20% of the Beneficial Interest, upon 30 days' notice from the
Owner Trustee to the Indenture Trustee designating a date of purchase (the
"Purchase Date") which shall be the second day of any month, each holder of an
Equipment Note agrees that it will, upon and subject to receipt by the
Indenture Trustee from the Owner Trustee or its nominee of an amount equal to
the aggregate unpaid principal amount of all Equipment Notes, together with
accrued interest thereon to the Purchase Date, plus all other sums then due and
payable to such holder of an Equipment Note hereunder, but, except in the case
of purchase of the Equipment Notes pursuant to clause (iv) above if the right
to exercise any remedies arises because of an Indenture Event of Default
arising from action attributable to the Owner Trustee or the Owner Participant,
without any Make-Whole Amount, forthwith sell, assign, transfer and convey to
the Owner Trustee or its nominee on the Purchase Date all of the right, title
and interest of such holder in and to the Equipment Notes then held by such
holder, and the Owner Trustee or its nominee shall assume all of such holder's
obligations under the Participation Agreement; provided that the Owner Trustee
or its nominee must purchase all and not less than all of the Equipment Notes
then outstanding.
(c) Restrictions on Certain Actions. Notwithstanding any
provision of this Indenture to the contrary, the Indenture Trustee shall not
foreclose the Lien of this Indenture or otherwise exercise remedies hereunder
which would result in the exclusion of the Owner Trustee from the Indenture
Estate or any part thereof as a result of an Indenture Event of Default that
constitutes or occurs solely by virtue of one or more Lease Events of Default
(at a time when no other Indenture Event of Default unrelated to any Lease
Event of Default shall have occurred and be continuing) (it being acknowledged
that an Indenture Event of Default arising under Section 2.10(f) shall be
deemed to occur solely as a result of an Event of Default under Section 14(k)
of the Lease) unless the Indenture Trustee as security assignee of the Owner
Trustee has proceeded or is then currently proceeding, to the extent it is then
entitled to do so hereunder and under the Lease and is not then stayed or
otherwise prevented from doing so by operation of law, to exercise one (or
more, as it shall in its good faith discretion determine) of the comparable
remedies provided for in Section 15 of the Lease with respect to the Equipment,
provided that in the event the Indenture Trustee shall be so stayed or
otherwise prevented from exercising such remedies under the Lease, it shall in
any event refrain from so foreclosing or exercising such other remedies
hereunder for a period of not less than 90 days, and further provided that in
the event the Lessee as debtor in a proceeding under Chapter 11 of the
Bankruptcy Code (or any trustee appointed for the Lessee as debtor in any such
bankruptcy case) shall have affirmed the Lease and no Lease Event of Default
other than as specified in Section 14(g) or Section 14(h) of the Lease has
occurred and is continuing, with the approval of the bankruptcy court having
jurisdiction over such case, under Section 365 of the Bankruptcy Code or any
amended or successor version thereof, the Indenture Trustee shall refrain from
so foreclosing or exercising such other remedies hereunder.
Section 5.05. Rights of Lessee. Notwithstanding the provisions of
this Indenture, including, without limitation, Section 5.03, so long as no
Lease Event of Default shall have occurred and be continuing, neither the
Indenture Trustee nor the Owner Trustee shall take any action contrary to, or
disturb, the Lessee's rights under the Lease, except in accordance with the
provisions of the Lease,
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including, without limitation, (i) the right to receive all monies due and
payable to it in accordance with the provisions of the Lease and (ii) the
Lessee's rights to possession and use of, and of quiet enjoyment of, the
Equipment.
Section 5.06. Waiver of Existing Defaults. A Majority in Interest
by notice to the Indenture Trustee on behalf of all holders of the Equipment
Notes may waive any past default hereunder and its consequences, except a
default: (i) in the payment of the principal of, Make-Whole Amount, if any, or
interest on any Equipment Note, or (ii) in respect of a covenant or provision
hereof which under Article X hereof cannot be modified or amended without the
consent of the holder of each Equipment Note affected. Upon any such waiver,
such default shall cease to exist, and any Indenture Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
ARTICLE VI.
DUTIES OF THE INDENTURE TRUSTEE
Section 6.01. Action upon Indenture Event of Default. If any
payments of Interim Interest or Basic Rent or payments of the principal or
interest or Make-Whole Amount, if any, on the Equipment Notes due and payable
on any Rent Payment Date shall not have been paid in full on such Rent Payment
Date, the Indenture Trustee shall give telephonic notice within one Business
Day (followed by prompt written notice) to the Owner Trustee, the Owner
Participant, the Loan Participant and the Lessee specifying the amount and
nature of such deficiency in payment. In the event the Indenture Trustee shall
have knowledge of an Indenture Event of Default or an Indenture Default, the
Indenture Trustee shall give prompt notice of such Indenture Event of Default
or Indenture Default to the Lessee, the Owner Trustee, the Owner Participant
and the Loan Participant by telegram, telex, or telephone (to be promptly
confirmed in writing). In the event the Owner Trustee shall have knowledge of
an Indenture Event of Default or an Indenture Default, the Owner Trustee shall
give notice of such Indenture Event of Default or Indenture Default in the same
manner to the Lessee, the Indenture Trustee, the Owner Participant and the Loan
Participant. Subject to the terms of Section 6.03, the Indenture Trustee shall
take such action, or refrain from taking such action, with respect to such
Indenture Event of Default or Indenture Default as the Indenture Trustee shall
be instructed in writing by a Majority in Interest. If the Indenture Trustee
shall not have received instructions as above provided within 20 days after the
mailing of notice of such Indenture Event of Default or such Indenture Default
to the Loan Participant by the Indenture Trustee, the Indenture Trustee may,
but shall not be obligated to, take such action, or refrain from taking such
action, with respect to such Indenture Event of Default or Indenture Default as
it shall determine to be advisable in the best interests of the Loan
Participant. Any provision of this Section 6.01 to the contrary
notwithstanding, the Indenture Trustee shall not declare the Lease to be in
default solely in respect of the Lessee's failure to make any payment of Basic
Rent within 5 Business Days after the same shall have become due, unless the
10-Day Period within which, pursuant to Section 5.04(a), the Owner Participant
or the Owner Trustee are entitled to cure such failure shall have expired. For
all purposes of this Indenture, in the absence of actual knowledge, neither the
Owner Trustee nor the Indenture Trustee shall be deemed to have knowledge of an
Indenture Event of Default (except, in the case of the Indenture Trustee, the
failure of the Lessee to pay any installment of Basic Rent that is required to
be paid directly to the Indenture Trustee within the 5 Business Days after the
same shall become due or the failure of the Lessee to maintain insurance as
required under Section 12 of the Lease if the Indenture Trustee shall receive
notice thereof from an insurer or insurance broker) unless notified in writing
by the Lessee, the
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Owner Trustee, one or more Loan Participants or the Owner Participant; and
"actual knowledge" (as used in the foregoing clause) of the Owner Trustee or
the Indenture Trustee shall mean actual knowledge of an officer in the
Corporate Trust Administration of the Owner Trustee or the Corporate Trust
Department of the Indenture Trustee, as the case may be.
Section 6.02. Action upon Instructions. Subject to the terms of
Sections 6.01 and 6.03, upon the written instructions at any time and from time
to time of a Majority in Interest, the Indenture Trustee shall take such of the
following actions as may be specified in such instructions (subject to the
rights of the other parties thereto, except to the extent assigned hereunder):
(i) subject to and solely to the extent permitted by the terms hereof and of
the Lease, give such notice, direction or consent, or exercise such right,
remedy or power hereunder or under the Lease or in respect of any part or all
of the Indenture Estate or take such other action as shall be specified in such
instructions; and (ii) after an Indenture Event of Default shall have occurred
and so long as such Indenture Event of Default shall be continuing, approve as
satisfactory to it all matters required by the terms of the Lease to be
satisfactory to the Owner Trustee, it being understood that without the written
instructions of a Majority in Interest the Indenture Trustee shall not take any
action described in clauses (i) and (ii) above.
Upon the expiration or earlier termination of the Lease Term with
respect to any Unit under the Lease and after payment of the portion of the
principal of, together with interest and Make-Whole Amount, if any, on the
Equipment Notes in accordance with the terms of this Indenture, or, if and so
long as no Indenture Event of Default shall have occurred and be continuing,
upon the transfer by the Owner Trustee to the Lessee or its designee of any
Unit pursuant to Section 10 or 11 of the Lease or the retention by the Owner
Trustee of any Unit pursuant to Section 10. 3 of the Lease, then the Indenture
Trustee shall in either such case, upon the written request of the Owner
Trustee, and receipt by the Indenture Trustee of funds necessary to prepay the
Equipment Notes required to be prepaid in connection with such purchase,
termination, retention or Event of Loss, execute and deliver to, or as directed
in writing by, the Owner Trustee an appropriate instrument (in due form for
recording) furnished by the Owner Trustee or the Lessee releasing such property
from the Lien of this Indenture.
Section 6.03. Indemnification. (a) The Indenture Trustee shall
not be required to take any action or refrain from taking any action under
Section 6.01 (other than the first two sentences thereof) or 6.02 or Article V
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnification against such risk is not reasonably assured to it.
The Indenture Trustee shall not be required to take any action under Section
6.01 or 6.02 or Article V, nor shall any other provision of this Indenture be
deemed to impose a duty on the Indenture Trustee to take any action, if the
Indenture Trustee shall have been advised in writing by independent counsel
that such action is contrary to the terms hereof or of the Lease or the
Participation Agreement, or is otherwise contrary to law.
(b) Each Loan Participant may, but shall not be required to,
participate in any indemnification of the Indenture Trustee given pursuant to
paragraph (a) of this Section 6.03. Each Loan Participant so participating
shall be entitled to reimbursement for such participation in accordance with
Article III.
Section 6.04. No Duties Except as Specified in Indenture or
Instructions. The Indenture Trustee shall not have any duty or obligation to
manage, control, use, sell, dispose of or otherwise deal with the Equipment or
any other part of the Indenture Estate, or to otherwise take or refrain from
taking any action under, or in connection with, this Indenture, the Lease, or
the Participation Agreement, except as expressly provided by the terms of this
Indenture or as expressly provided in written instructions
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received pursuant to the terms of Section 6.01 or 6.02; and no implied duties
or obligations shall be read into this Indenture against the Indenture Trustee.
Each of the Owner Trustee (only in its individual capacity) and the Indenture
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take such action as may be necessary duly to discharge any liens or
encumbrances on any part of the Indenture Estate, or on any properties of the
Owner Trustee assigned, pledged or mortgaged as part of the Indenture Estate,
which result from claims against it in its individual capacity not related to
the ownership of the Equipment (in the case of the Owner Trustee),
administration of the Indenture Estate (in the case of the Indenture Trustee)
or any other transaction under this Indenture or the Trust Agreement or any
document included in the Indenture Estate.
Section 6.05. No Action Except under Lease, Indenture or
Instructions. The Indenture Trustee agrees that it will not manage, control,
use, sell, dispose of or otherwise deal with the Equipment or other property
constituting part of the Indenture Estate except (i) as required by the terms
of the Lease and the Participation Agreement, (ii) in accordance with the
powers granted to, or the authority conferred upon, the Indenture Trustee
pursuant to this Indenture, or (iii) in accordance with the express terms
hereof or with written instructions pursuant to Section 6.01 or 6.02.
Section 6.06. Disposition of Units. At any time and from time to
time prior to the expiration of the Lease Term, any Unit for which the
provisions of Section 11.4(a) of the Lease has been satisfied may be disposed
of in accordance with the provisions of Section 11.4(a) of the Lease, and the
Owner Trustee shall, from time to time, direct the Indenture Trustee to,
provided no Lease Event of Default shall have occurred and be continuing,
execute and deliver to it, or as directed in writing by the Owner Trustee, an
appropriate instrument furnished by the Owner Trustee or the Lessee releasing
such Unit from the Lien of the Indenture, but only in respect of such Unit.
Section 6.07. Indenture Supplements for Replacements. In the event
of a Replacement Unit being substituted as contemplated by Section 11.2 of the
Lease, the Owner Trustee and the Indenture Trustee agree for the benefit of the
holders of the Equipment Notes and the Lessee, subject to compliance by the
Lessee with its obligations set forth in Section 11 of the Lease, to execute
and deliver an Indenture Supplement substantially in the form of Exhibit A
hereto and, provided no Lease Event of Default or Lease Default shall have
occurred and be continuing, execute and deliver to the Lessee an appropriate
instrument releasing the Unit being replaced from the Lien of the Indenture.
Section 6.08. Effect of Replacements. In the event of the
substitution of a Replacement Unit, all provisions of this Indenture relating
to the Unit or Units being replaced shall be applicable to such Replacement
Unit with the same force and effect as if such Replacement Unit was the same
Unit being replaced.
Section 6.09. Withholding Taxes. The Indenture Trustee, as agent
for the Owner Trustee, shall exclude and withhold from each payment of
principal, Make-Whole Amount, if any, and interest and other amounts due
hereunder or under the Equipment Notes any and all withholding taxes applicable
thereto as required by law. The Indenture Trustee agrees to act as such
withholding agent and, in connection therewith, whenever any present or future
taxes or similar charges are required to be withheld with respect to any
amounts payable in respect of any of the Equipment Notes, to withhold such
amounts and timely pay the same to the appropriate authority in the name of and
on behalf of the holders of such Equipment Notes, that it will file any
necessary withholding tax returns or statements when due, and that, as promptly
as possible after the payment thereof, it will deliver to each holder of an
Equipment Note
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appropriate documentation showing the payment thereof, together with such
additional documentary evidence as such holders may reasonably request from
time to time.
Section 6.10. Lessee's Right of Quiet Enjoyment. Notwithstanding
any of the provisions of this Indenture to the contrary, so long as Lessee is
in compliance with its obligations under the Lease (including applicable grace
periods) and no Lease Event of Default has occurred and is continuing
unremedied, the Indenture Trustee will comply with Section 8 of the
Participation Agreement to the same extent as if it were the Lessor under the
Lease. Each holder of an Equipment Note, by its acceptance thereof, consents
in all respects to the terms of the Lease and the Participation Agreement and
agrees to the provisions of this Section 6.10.
Section 6.11. Compensation and Indemnity. (a) The Owner Trustee
shall pay to the Indenture Trustee, from time to time, on demand, all funds
received for such purposes from the Lessee for (i) reasonable compensation for
the Indenture Trustee's services, which compensation shall not be limited by
any law on compensation of a trustee of an express trust, (ii) reimbursement
for all reasonable out-of-pocket expenses incurred by the Indenture Trustee in
connection with the performance of its duties under this Indenture (including
the reasonable compensation and expenses of the Indenture Trustee's counsel and
any agent appointed in accordance with Section 7.05 and (iii) in respect of any
loss or liability incurred by it arising out of or in connection with its
acceptance or administration of the trust or trusts hereunder except (A) as
such expenses or loss or liability might result from the gross negligence or
wilful misconduct of the Indenture Trustee or the inaccuracy of any
representation or warranty of the Indenture Trustee in Section 3.3 of the
Participation Agreement, and (B) as otherwise excluded by the terms of Sections
7.1 and 7.2 of the Participation Agreement from the Lessee's indemnities under
said sections; provided that, so long as the Lease is in effect, the Indenture
Trustee shall not make any claim under this Section 6. 11 for any claim or
expense indemnified against by the Lessee under the Participation Agreement
without first making demand on the Lessee for payment of such claim or expense.
The Indenture Trustee shall notify the Owner Trustee and the Lessee promptly of
any claim for which it may seek indemnity. The Owner Trustee shall have the
right to defend the claim and the Indenture Trustee shall cooperate in the
defense. The Indenture Trustee may have separate counsel and the Owner
Trustee, subject to limitations set forth in the preceding sentence, shall pay
the reasonable fees and expenses of such counsel. The Owner Trustee need not
pay for any settlement made without its and the Lessee's consent.
ARTICLE VII.
THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE
Section 7.01. Acceptance of Trusts and Duties. The Indenture
Trustee accepts the trusts hereby created and applicable to it and agrees to
perform the same but only upon the terms of this Indenture and agrees to
receive and disburse all moneys received by it constituting part of the
Indenture Estate in accordance with the terms hereof. The Indenture Trustee
shall not be answerable or accountable under any circumstances, except for its
own willful misconduct or gross negligence (or negligence or willful misconduct
in the case of application or investment of moneys constituting the Indenture
Estate) or breach of any of its representations or warranties or covenants set
forth herein or in the Participation Agreement, or the performance of its
obligations under the last sentence of Section 6.04; and the Owner Trustee
shall not be liable for any action or inaction of the Indenture Trustee and the
Indenture Trustee shall not be
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liable for any action or inaction of the Owner Trustee. The Owner Trustee
shall not be deemed a trustee for, or agent of, the holders of the Equipment
Notes for any purpose.
Section 7.02. Absence of Duties. Except in accordance with written
instructions or requests furnished pursuant to Section 6.01 or Section 6.02 and
except as provided in, and without limiting the generality of, Section 6.04,
the Indenture Trustee shall have no duty (i) to see to any registration of the
Equipment or any recording or filing of the Lease, or of this Indenture or any
other document, or to see to the maintenance of any such registration,
recording or filing, (ii) to see to any insurance on the Equipment or to effect
or maintain any such insurance, whether or not the Lessee shall be in default
with respect thereto, (iii) to confirm, verify or inquire into the failure to
receive any financial statements of the Lessee or (iv) to inspect the Equipment
at any time or ascertain or inquire as to the performance or observance of any
of the Lessee's covenants under the Lease with respect to the Equipment.
Notwithstanding the foregoing, the Indenture Trustee will furnish to any Loan
Participant, so long as such Loan Participant or its nominees shall hold any of
the Equipment Notes, promptly upon receipt thereof, duplicates or copies of all
reports, notices, requests, demands, certificates, financial statements and
other instruments furnished to the Indenture Trustee under this Indenture, to
the extent that the same shall not have been furnished to the Indenture Trustee
and the Loan Participants pursuant to the Lease.
Section 7.03. No Representations or Warranties as to the Equipment
or Documents. Neither the Owner Trustee nor the Owner Trustee in its
individual capacity nor the Indenture Trustee makes or shall be deemed to have
made (i) any representation or warranty, express or implied, as to the value,
condition, design, operation, merchantability or fitness for use of the
Equipment or as to their title thereto, or any other representation or warranty
with respect to the Equipment whatsoever, or (ii) any representation or
warranty as to the validity, legality or enforceability of this Indenture, the
Trust Agreement, the Participation Agreement, the Equipment Notes, the Lease,
any Lease Supplement, any Indenture Supplement or any other document or
instrument or as to the correctness of any statement contained in any thereof
(except as to the representations and warranties made by the Owner Trustee in
its individual capacity as set forth in Section 3.1 of the Participation
Agreement), except that the Owner Trustee and the Indenture Trustee each in its
individual capacity hereby confirms the representations and warranties made by
it in its individual capacity in Sections 3. 1 and 3.3, respectively, of the
Participation Agreement.
Section 7.04. No Segregation of Moneys; No Interest; Investments.
(a) Subject to Section 7.04(b), no moneys received by the Indenture Trustee
hereunder need be segregated in any manner except to the extent required by
law, and any such moneys may be deposited under such general conditions for the
holding of trust funds as may be prescribed by law applicable to the Indenture
Trustee, and, except as otherwise agreed by the Owner Trustee or the Indenture
Trustee, as the case may be, neither the Owner Trustee nor the Indenture
Trustee shall be liable for any interest thereon.
(b) Any amounts held by the Indenture Trustee pursuant to the
express terms of this Indenture or the Lease and not required to be distributed
as herein provided shall be invested and reinvested by the Indenture Trustee
from time to time in Specified Investments at the written direction and at the
risk and expense of the Lessee, except that in the absence of any such
direction, such amounts need not be invested and reinvested and except that
after a Lease Event of Default shall have occurred and be continuing, such
amounts shall be so invested and reinvested by the Indenture Trustee in
Indenture Investments. Any net income or gain realized as a result of any such
investments or reinvestment shall be held as part of the Indenture Estate and
shall be applied by the Indenture Trustee at the same times,
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on the same conditions and in the same manner as the amounts in respect of
which such income or gain was realized are required to be distributed in
accordance with the provisions hereof or of the Lease pursuant to which such
amounts were required to be held and if no Lease Event of Default shall have
occurred and be continuing any excess shall be paid to the Lessee. Any such
Specified Investments or Indenture Investments may be sold or otherwise reduced
to cash (without regard to maturity date) by the Indenture Trustee whenever
necessary to make any application as required by such provisions. The
Indenture Trustee shall have no liability for any loss resulting from any such
investment or reinvestment other than by reason of the willful misconduct or
gross negligence of the Indenture Trustee.
Section 7.05. Reliance; Agents; Advice of Counsel. The Indenture
Trustee shall incur no liability to anyone acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. The Indenture
Trustee may accept a copy of a resolution of the Board of Directors of any
party to the Participation Agreement, certified by the Secretary or an
Assistant Secretary of such party as duly adopted and in full force and effect,
as conclusive evidence that such resolution has been duly adopted by said Board
and that the same is in full force and effect. As to any fact or matter the
manner of ascertainment of which is not specifically described herein, the
Indenture Trustee may for all purposes hereof rely on a certificate, signed by
an officer of the Lessee, as to such fact or matter, and such certificate shall
constitute full protection to the Indenture Trustee for any action taken or
omitted to be taken by it in good faith in reliance thereon. The Indenture
Trustee shall furnish to the Owner Trustee upon request such information and
copies of such documents as the Indenture Trustee may have and as are necessary
for the Owner Trustee to perform its duties under Article II hereof. The
Indenture Trustee shall assume, and shall be fully protected in assuming, that
the Owner Trustee is authorized by the Trust Agreement to enter into this
Indenture and to take all action permitted to be taken by it pursuant to the
provisions hereof, and need not inquire into the authorization of the Owner
Trustee with respect thereto. In the administration of the trusts hereunder,
the Indenture Trustee may execute any of the trusts or powers hereof and
perform its powers and duties hereunder directly or through agents or attorneys
and may, at the reasonable expense of the Indenture Estate, consult with
independent counsel, accountants and other skilled persons to be selected and
employed by it, and the Indenture Trustee shall not be liable for anything
done, suffered, or omitted in good faith by it in accordance with the written
advice or opinion of any such independent counsel, accountants or other skilled
persons acting within such persons' area of competence (so long as the
Indenture Trustee shall have exercised reasonable care in selecting such
persons).
Section 7.06. Not Acting in Individual Capacity. The Owner Trustee
and the Indenture Trustee each acts hereunder solely as trustee hereunder and,
in the case of the Owner Trustee, under the Trust Agreement and not in its
individual capacity unless otherwise expressly provided; and all Persons, other
than the holders of Equipment Notes to the extent expressly provided in this
Indenture, having any claim against the Owner Trustee or the Indenture Trustee
by reason of the transactions contemplated hereby shall, subject to the Lien
and priorities of payment as herein provided, look only to the Indenture Estate
for payment or satisfaction thereof.
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ARTICLE VIII.
CERTAIN LIMITATIONS ON OWNER TRUSTEE'S
AND INDENTURE TRUSTEE'S RIGHTS
Section 8.01. Certain Limitations on Owner Trustee's and Indenture
Trustee's Rights. Each of the Owner Trustee and the Indenture Trustee agree
that it shall have no right against the holders of the Equipment Notes or the
Indenture Estate (except in the case of the Indenture Trustee as expressly
provided in Section 5.03 hereof) for any fee as compensation for its services
hereunder or any expenses or disbursements incurred in connection with the
exercise and performance of its powers and duties hereunder or any
indemnification against liability which it may incur in the exercise and
performance of such powers and duties but, on the contrary, shall look solely
to the Lessee for such payment and indemnification and that neither the Owner
Trustee nor the Indenture Trustee shall have any lien on nor security interest
in the Indenture Estate as security for such compensation, expenses, reasonable
counsel fees, if any, disbursements and indemnification.
ARTICLE IX.
SUCCESSOR TRUSTEES
Section 9.01. Notice of Successor Owner Trustee. In the case of
any appointment of a successor Owner Trustee pursuant to the Trust Agreement or
any merger, conversion, consolidation or sale of substantially all the business
involving the Owner Trustee pursuant to the Trust Agreement, the successor
Owner Trustee shall give prompt written notice thereof to the Indenture
Trustee, the Lessee and the holders of all Equipment Notes at the time
outstanding.
Section 9.02. Resignation of Indenture Trustee; Appointment of
Successor. The resignation or removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee shall become effective only upon
the successor Indenture Trustee's acceptance of appointment as provided in this
Section 9.02. The Indenture Trustee or any successor thereto may resign at any
time without cause by giving at least 30 days' prior written notice to the
Owner Trustee, the Owner Participant, the Lessee and the holders of the
Equipment Notes. A Majority in Interest may at any time remove the Indenture
Trustee without cause by an instrument in writing delivered to the Owner
Trustee, the Owner Participant, the Lessee and the Indenture Trustee. The
Owner Trustee may remove the Indenture Trustee if: (1) the Indenture Trustee
fails to comply with Section 9.02(c); (2) the Indenture Trustee is adjudged a
bankrupt or an insolvent; (3) a receiver or public officer takes charge of the
Indenture Trustee or its property; or (4) the Indenture Trustee becomes
incapable of performing its duties hereunder.
(a) In the case of the resignation or removal of the Indenture
Trustee, the Owner Trustee shall, unless otherwise directed by a Majority in
Interest, promptly appoint a successor Indenture Trustee, provided that a
Majority in Interest may appoint, within one year after such resignation or
removal, a successor Indenture Trustee which may be other than the successor
Indenture Trustee appointed as provided above, and such successor Indenture
Trustee appointed as provided above shall be superseded by the successor
Indenture Trustee so appointed by a Majority in Interest. If a successor
Indenture Trustee shall not have been appointed and accepted its appointment
hereunder within 60 days after the Indenture Trustee gives notice of
resignation or is removed as provided above, the retiring Indenture Trustee,
the Lessee, the Owner Trustee or a Majority in Interest may petition any court
of competent jurisdiction for the appointment of a successor Indenture Trustee.
Any successor Indenture Trustee so
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appointed by such court shall immediately and without further act be superseded
by any successor Indenture Trustee appointed as provided in the proviso to the
first sentence of this paragraph (a) within one year from the date of the
appointment by such court.
(b) Any successor Indenture Trustee, however appointed, shall
execute and deliver to the Owner Trustee and the Lessee and to the predecessor
Indenture Trustee an instrument accepting such appointment, and thereupon such
successor Indenture Trustee, without further act, shall become vested with all
the estates, properties, rights, powers, duties and trusts of the predecessor
Indenture Trustee hereunder in the trusts hereunder applicable to it with like
effect as if originally named the Indenture Trustee herein; but nevertheless,
upon the written request of such successor Indenture Trustee, such predecessor
Indenture Trustee shall execute and deliver an instrument transferring to such
Indenture Trustee, upon the trusts herein expressed applicable to it, all the
estates, properties, rights, powers and trusts of such predecessor Indenture
Trustee, and such Indenture Trustee shall duly assign, transfer, deliver and
pay over to such successor Indenture Trustee all moneys or other property then
held by such predecessor Indenture Trustee hereunder.
(c) The Indenture Trustee shall be a bank or trust company
organized under the laws of the United States or any State thereof having a
combined capital and surplus of at least $100,000,000, if there be such an
institution willing, able and legally qualified to perform the duties of the
Indenture Trustee hereunder upon reasonable or customary terms.
(d) Any corporation into which the Indenture Trustee may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Indenture Trustee
shall be a party, or any corporation to which substantially all the corporate
trust business of the Indenture Trustee may be transferred, shall, subject to
the terms of paragraph (c) of this Section, be the Indenture Trustee under this
Indenture without further act.
ARTICLE X.
SUPPLEMENTS AND AMENDMENTS
TO THIS INDENTURE AND OTHER DOCUMENTS
Section 10.01. Supplemental Indentures without Consent of Holders.
(a) The Owner Trustee and the Indenture Trustee, at any time and from time to
time, without notice to or the consent of any holders of any Equipment Notes,
may enter into one or more indentures supplemental hereto for any of the
following purposes:
(i) to correct or amplify the description of any property
at any time subject to the Lien of this Indenture or better to assure,
convey and confirm unto the Indenture Trustee any property subject or
required to be subject to the Lien of this Indenture or to subject to
the Lien of this Indenture any Unit or Units substituted for any Unit
or Units in accordance with the Lease; provided, however, that
indenture supplements entered into for the purpose of subjecting to
the Lien of this Indenture any Unit or Units substituted for any in
accordance with the Lease need only be executed by the Owner Trustee;
or
(ii) to evidence the succession of another trustee to the
Owner Trustee and the assumption by any such successor of the
covenants of the Owner Trustee herein and in the
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Equipment Notes contained, or to evidence (in accordance with Article
IX) the succession of a new Indenture Trustee hereunder; or
(iii) to add to the covenants of the Owner Trustee, for the
benefit of the holders of any of the Equipment Notes, or to surrender
any right or power herein conferred upon the Owner Trustee; or
(iv) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising hereunder so long as any such action does
not adversely affect the interests of the holders of any of the
Equipment Notes;
provided that no such supplement to this Indenture or waiver or modification of
the terms hereof shall adversely affect in a substantive manner the interests
of the Lessee without the Lessee's prior written consent, and in no event shall
the terms of the proviso to Section 5.03(a) or Section 5.05 be so altered or
modified without such Lessee consent.
(b) Supplemental Indentures with Consent of Majority In Interest.
With the written consent of a Majority in Interest, the Owner Trustee (but only
on the written request of the Owner Participant) may, and the Indenture
Trustee, subject to Section 10.02 hereof, shall, at any time and from time to
time, enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights and
obligations of holders of any of the Equipment Notes and of the Owner Trustee
under this Indenture; provided, however, without the consent of each holder of
an Equipment Note affected thereby, no such supplemental indenture shall:
(1) except as expressly provided by Section 10.01(c),
change the final maturity of the principal of any Equipment Note, or
change the dates or amounts of payment of any installment of the
principal of, Make- Whole Amount, if any, or interest on any Equipment
Note, or reduce the principal amount thereof or the Make- Whole
Amount, if any, or interest thereon, or change to a location outside
the United States the place of payment where, or the coin or currency
in which, any Equipment Note or the Make-Whole Amount, if any, or
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment of principal or Make-Whole Amount,
if any, or interest on or after the date such principal or Make-Whole
Amount, if any, or interest becomes due and payable; or
(2) create any Lien with respect to the Indenture Estate
ranking prior to, or on a parity with, the security interest created
by this Indenture except such as are permitted by this Indenture, or
deprive any holder of an Equipment Note of the benefit of the Lien on
the Indenture Estate created by this Indenture; or
(3) reduce the percentage in principal amount of any of
the Equipment Notes, the consent of whose holders is required for any
such supplemental indenture, or the consent of whose holders is
required for any waiver (of compliance with certain provisions of this
Indenture, or of certain defaults hereunder and their consequences)
provided for in this Indenture; or
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(4) modify any provisions of this Section 10.01(b),
except to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the holder of each
Equipment Note affected thereby;
provided that no such supplement to this Indenture or waiver or modification of
the terms hereof shall adversely affect in a substantive manner the interests
of the Lessee without the Lessee's prior written consent, and in no event shall
the terms of the proviso to Section 5.03(a) or Section 5.05 be so altered or
modified without such Lessee consent.
Section 10.02. Indenture Trustee Protected. If in the opinion of
the Indenture Trustee any document required to be executed pursuant to the
terms of Section 10.01 adversely affects any right, duty, immunity or indemnity
in favor of the Indenture Trustee under this Indenture, the Participation
Agreement or the Lease, the Indenture Trustee may in its discretion decline to
execute such document.
Section 10.03. Request of Substance, Not Form. It shall not be
necessary for the consent of the holders of Equipment Notes under Section
10.01(b) to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Section 10.04. Documents Mailed to Holders. Promptly after the
execution by the Indenture Trustee of any document entered into pursuant to
Section 10.01(b), the Indenture Trustee shall mail, by first-class mail,
postage prepaid, a conformed copy thereof to each holder of an Equipment Note
at its address last known to the Indenture Trustee, but the failure of the
Indenture Trustee to mail such conformed copies shall not impair or affect the
validity of such document.
Section 10.05. Amendments, Waivers, Etc. of Other Documents. (a)
Without the consent of a Majority in Interest, the respective parties to the
Lease, the Participation Agreement and the Trust Agreement may not modify,
amend or supplement any of such agreements, or give any consent, waiver,
authorization or approval thereunder, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions thereof or of
modifying in any manner the rights of the respective parties thereunder;
provided, however, that the actions specified in subsection (b) of this Section
10.05 may be taken, except as otherwise expressly provided therein, without the
consent of the Indenture Trustee or of a Majority in Interest or any holder of
an Equipment Note.
(b) Subject to the provisions of subsection (c) of this Section
10.05, the respective parties to the Lease, the Trust Agreement and the
Participation Agreement, at any time and from time to time without the consent
of the Indenture Trustee or of a Majority in Interest or any holder of an
Equipment Note, may:
(1) so long as no Indenture Event of Default shall have
occurred and be continuing, modify, amend or supplement the Lease, or
give any consent, waiver, authorization or approval with respect
thereto, except that without the consent of a Majority in Interest,
the parties to the Lease shall not modify, amend or supplement, or
give any consent, waiver, authorization or approval for the purpose of
adding any provisions to or changing in any manner or eliminating any
of the provisions thereof or of modifying in any manner the rights of
the respective parties thereunder, with respect to the following
provisions of the Lease: Sections 2, 3.1 (if the result thereof would
be to shorten the Basic Term to a period shorter than the period
ending with the final maturity of the Equipment Notes), 3.2, 3.3, 3.4,
3.5, 3.6 (except insofar as it relates to the
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address or account information of the Owner Trustee or Indenture
Trustee) (other than as such Sections 3.1 through 3.6 may be amended
pursuant to Section 3.4 of the Lease as originally executed), 4, 6
(but only to the extent such Section is made operative by Section 15),
7, 8, 9, 10 (except that additional requirements may be imposed on the
Lessee's ability to terminate the Lease with respect to a Unit), 11
(except that additional requirements may be imposed on the Lessee's
ability to replace a Unit subject to an Event of Loss), 12 (including
the Letter Agreement referred to therein) (except that additional
insurance requirements may be imposed on the Lessee), 13, 14, 15, 16,
17, 18, 19, 20, 21, 22 (if the result thereof would be to provide any
renewal or purchase option contained in such Section prior to the
final maturity of the Equipment Notes), 24, 25.1, 25.4, 25.6, 25. 10,
and any definition of terms used in the Lease, to the extent that any
modification of such definition would result in a modification of the
Lease not permitted as aforesaid in this clause (1) of subsection (b);
provided that, in the event an Indenture Event of Default shall have
occurred and be continuing, the Indenture Trustee shall have all
rights of the Owner Trustee as "Lessor" under the Lease to modify,
amend or supplement the Lease or give any consent, waiver,
authorization or approval thereunder, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions thereof or of modifying in any manner the rights of the
"Lessor" thereunder;
(2) modify, amend or supplement the Trust Agreement, or
give any consent, waiver, authorization or approval with respect
thereto, except that without the consent of a Majority of Interest,
the parties to the Trust Agreement shall not modify, amend or
supplement, or give any consent, waiver, authorization or approval for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions thereof or of modifying in any
manner the rights of the respective parties thereunder, with respect
to Sections 2.1, 2.2, 3.1, 4.4, 7.1, 7.2, 9.1, 10.1, 10.2, 10.7, 10.11
or any other Section of the Trust Agreement if such action would
materially adversely affect the interest of the Loan Participants, and
any definition of terms used in the Trust Agreement, to the extent
that any modification of such definition would result in a
modification of the Trust Agreement not permitted pursuant to this
subsection (b);
(3) modify, amend or supplement the Participation
Agreement, or give any consent, waiver, authorization or approval with
respect thereto, except that without the consent of a Majority of
Interest, the parties to the Participation Agreement shall not modify,
amend or supplement, or give any consent, waiver, authorization or
approval for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions thereof or of
modifying in any manner the rights of the respective parties
thereunder, with respect to the following provisions of the
Participation Agreement: Sections 1, 2, 3, 4, 5, 6, 7, 10.2, 10.5,
10.7, 10.9 and 10.13 (a), each provision of the Participation
Agreement which specifically refers to the Indenture Trustee or Loan
Participants and any definition of terms used in the Participation
Agreement, to the extent that any modification of such definition
would result in a modification of the Participation Agreement not
permitted pursuant to this subsection (b); and
(4) modify, amend or supplement any of said agreements in
order to cure any ambiguity, to correct or supplement any provision
thereof which may be defective or inconsistent with any other
provision thereof or any provision of this Indenture, or to make any
other provision with respect to matters or questions arising
thereunder or under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided any such action shall
not adversely affect the interests of the holders of any of the
Equipment Notes.
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(c) No modification, amendment, supplement, consent, waiver,
authorization or approval with respect to the Lease or the Participation
Agreement, whether effected pursuant to subsection (a) or pursuant to
subsection (b) of this Section 10.05, and anything in such subsections or
elsewhere in this Indenture to the contrary notwithstanding, shall, without the
consent of the holder of each Equipment Note affected thereby:
(1) modify, amend or supplement the Lease in such a way
as to extend the time of payment of Basic Rent or Stipulated Loss
Value and any other amounts payable under, or as provided in, the
Lease upon the occurrence of an Event of Loss or Termination Value and
any other amounts payable under, or as provided in, the Lease upon
termination thereof or reduce the amount of any installment of Basic
Rent so that the same is less than the payment of interest and
principal on such Equipment Notes, as the case may be, to be made from
such installment of Basic Rent or reduce the aggregate amount of
Stipulated Loss Value and any other amounts payable under, or as
provided in, the Lease upon the occurrence of an Event of Loss so that
the same is less than the accrued interest on and principal of the
Equipment Notes required to be paid at the time of such payments, or
reduce the amount of Termination Value and any other amounts payable
under, or as provided in, the Lease upon termination thereof so that
the same is less than the accrued interest on and principal of such
Equipment Notes required to be paid at the time of such payments; or
(2) modify, amend or supplement the Lease in such a way
as to, or consent to any assignment of the Lease or give any consent,
waiver, authorization or approval which would, release the Lessee from
its obligation in respect of payment of Basic Rent or Stipulated Loss
Value and any other amounts payable under, or as provided in, the
Lease upon the occurrence of an Event of Loss, or Termination Value
and any other amounts payable under, or as provided in, the Lease upon
termination thereof, except for any such assignment pursuant to
Section 6.8 of the Participation Agreement, and except as provided in
the Lease.
(d) Anything contained in this Section 10.05 or otherwise in this
Indenture to the contrary notwithstanding, whether or not an Indenture Event of
Default shall have occurred and be continuing, the Indenture Trustee shall not
modify, amend or supplement the Lease or any other Operative Agreement with
respect to which rights have been assigned to the Indenture Trustee as part of
the Indenture Estate, or give any consent, waiver, authorization or approval
thereunder, in any manner that would materially adversely affect the interest
of the Owner Trustee or the Owner Participant.
ARTICLE XI.
MISCELLANEOUS
Section 11.01. Termination of Indenture. With respect to each Unit,
this Indenture and the trusts created hereby shall terminate and this Indenture
shall be of no further force or effect upon the earliest to occur of (i) the
termination of the Lease Term with respect to such Unit by Lessee pursuant to
Section 10 or Section 22.1 thereof and upon payment in full to the Indenture
Trustee of the amounts required to be paid pursuant to Section 2.10(a) in
respect of such Unit, (ii) the termination of the Lease with respect to such
Unit pursuant to Section 11 thereof and upon payment in full to the Indenture
Trustee of the amounts required to be paid pursuant to Section 2. 10(b) in
respect of such Unit, (iii) the termination of the Lease with respect to all
Units pursuant to Section 6.9 of the Participation Agreement and upon
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payment in full to the Indenture Trustee of the amounts required to be paid
pursuant to Section 2.10(c) in respect of such Units and (iv) the payment in
full of the principal amount of and interest on all Equipment Notes outstanding
hereunder and all other sums payable to the Indenture Trustee and the holders
of all of the Equipment Notes hereunder and under such Equipment Notes and
under the Participation Agreement.
Section 11.02. No Legal Title to Indenture Estate in Holders. No
holder of an Equipment Note shall have legal title to any part of the Indenture
Estate. No transfer, by operation of law or otherwise, of any Equipment Note
or other right, title and interest of any holder of an Equipment Note in and to
the Indenture Estate or hereunder shall operate to terminate this Indenture or
the trusts hereunder or entitle any successor or transferee of such holder to
an accounting or to the transfer to it of legal title to any part of the
Indenture Estate.
Section 11.03. Sale of Equipment by Indenture Trustee is Binding.
Any sale or other conveyance of the Equipment by the Indenture Trustee made
pursuant to the terms of this Indenture or the Lease shall bind the holders of
any Equipment Notes, the Owner Trustee and the Owner Participant and shall be
effective to transfer or convey all right, title and interest of the Indenture
Trustee, the Owner Trustee, the Owner Participant and such holders of the
Equipment Notes in and to the Equipment. No purchaser or other grantee shall
be required to inquire as to the authorization, necessity, expediency or
regularity of such sale or conveyance or as to the application of any sale or
other proceeds with respect thereto by the Indenture Trustee.
Section 11.04. Remedies Cumulative. Each and every right, power and
remedy herein specifically given to the Indenture Trustee or otherwise in this
Indenture shall be cumulative and shall be in addition to every other right,
power and remedy herein specifically given or now or hereafter existing at law,
in equity or by statute, and each and every right, power and remedy whether
specifically herein given or otherwise existing may be exercised from time to
time and as often and in such order as may be deemed expedient by the Indenture
Trustee, and the exercise or the beginning of the exercise of any power or
remedy shall not be construed to be a waiver of the right to exercise at the
time or thereafter any other right, power or remedy. No delay or omission by
the Indenture Trustee in the exercise of any right, remedy or power or in the
pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the Owner Trustee or the
Lessee or to be an acquiescence therein.
Section 11.05. Discontinuance of Proceedings. In case the Indenture
Trustee shall have proceeded to enforce any right, power or remedy under this
Indenture by foreclosure, entry or otherwise, and such proceedings shall have
been discontinued or abandoned for any reason or shall have been determined
adversely to the Indenture Trustee, then and in every such case the Owner
Trustee, the Owner Participant, the Indenture Trustee and the Lessee shall be
restored to their former positions and rights hereunder with respect to the
Indenture Estate, and all rights, remedies and powers of the Indenture Trustee
shall continue as if no such proceedings had been undertaken (but otherwise
without prejudice).
Section 11.06. Indenture and Equipment Notes for Benefit of Owner
Trustee, Indenture Trustee, Owner Participant and Holders Only. Nothing in
this Indenture, whether express or implied, shall be construed to give to any
Person other than the Owner Trustee (individually and as trustee), the
Indenture Trustee, the Owner Participant (as set forth herein) and the holders
of any Equipment Notes any legal or equitable right, remedy or claim under or
in respect of this Indenture or any such Equipment Note.
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Section 11.07. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices required or permitted under the
terms and provisions hereof shall be in writing, and shall become effective
when deposited in the United States mail, with proper postage for first class
registered or certified mail prepaid, when delivered personally, or, if
promptly confirmed by mail as provided above, when dispatched by telegram,
telex or other written telecommunication addressed (i) if to the Owner Trustee,
at its office at ________________, Attention: _______________, (ii) if to the
Indenture Trustee, at its office at ________________, Attention:
_______________, (iii) if to the Loan Participant, at such address as is set
forth on Schedule 2 of the Participation Agreement or, if not so specified, at
the address set forth in the register maintained pursuant to Section 2.07
hereof, or at such address as such Loan Participant shall have furnished by
notice to the Owner Trustee and the Indenture Trustee, (iv) if to the Lessee,
at ________________, Attention: _____________, (v) if to the Owner Participant,
________________, Attention: _____________, and (vi) if to any of the foregoing
Persons, at such other address as such Person shall from time to time designate
by written notice to the other parties hereto in accordance with this Section
11.07.
Notwithstanding the foregoing provisions, for purposes of Sections
5.01, 5.02, 5.04, 6.01 and 6.02, written notice shall be deemed given when it
is in fact received (by mail or otherwise) by any addressee at the respective
addresses specified above.
Section 11.08. Severability. Any provision of this Indenture which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction. In the event
of any inconsistency or conflict between any provision of this Indenture and
any provision of the Trust Agreement, such provision in this Indenture shall
govern and control.
Section 11.09. Separate Counterparts. This Indenture may be
executed in any number of counterparts (and each of the parties hereto shall
not be required to execute the same counterpart). Each counterpart of this
Indenture including a signature page executed by each of the parties hereto
shall be an original counterpart of this Indenture, but all of such
counterparts together shall constitute one instrument.
Section 11.10. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the Owner
Trustee and its successors and permitted assigns, the Owner Participant and its
successors and permitted assigns, and the Indenture Trustee and its successors
and permitted assigns, and each holder of an Equipment Note, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument
or action by any holder of an Equipment Note shall bind the successors and
assigns of such holder.
Section 11.11. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 11.12. Governing Law. This Indenture shall in all respects
be governed by, and construed in accordance with, the laws of the State of New
York, including all matters of construction, validity and performance.
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Section 11.13. Normal Commercial Relations. Anything contained in
this Indenture to the contrary notwithstanding, the Owner Participant, the
Owner Trustee or the Indenture Trustee or any affiliate of the Owner
Participant, the Owner Trustee or the Indenture Trustee may enter into
commercial banking or other financial transactions, and conduct banking or
other commercial relationships, with the Lessee, any holder of an Equipment
Note or the Indenture Trustee (in its individual capacity or otherwise) fully
to the same extent as if this Indenture were not in effect, including, without
limitation, the making of loans or other extensions of credit for any purpose
whatsoever.
Section 11.14. No Recourse Against Others. No director, officer,
employee or stockholder, as such, of Lessee, Owner Trustee, Owner Participant
or Indenture Trustee shall have any liability for any obligations of Lessee,
Owner Participant, Owner Trustee or Indenture Trustee or under the Equipment
Notes or the Indenture or for any claim based on, in respect of or by reason of
such obligations or their creation. Each holder of an Equipment Note by
accepting an Equipment Note waives and releases all such liability. The waiver
and release are part of the consideration of such Equipment Note.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed by their respective officers or attorneys-in-fact, as the case
may be, thereunto duly authorized, on the day and year first above written.
__________, not in its individual capacity except
as set forth in Section 7.03 hereof, but solely
as Owner Trustee
By: _____________________________________________
Name:
Title:
_______________, as Indenture Trustee
By: _____________________________________________
Name:
Title:
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43
State of )
) SS
County of )
On this ____ day of May 1996, before me personally appeared
___________________, to me personally known, who being by me duly sworn, say
that he is ____________________ of ______________, that said instrument was
signed on such date on behalf of said corporation by authority of its Board of
Directors, and he acknowledged that the execution of the foregoing instrument
was the free act and deed of said corporation.
__________________________________
Notary Public
[Notarial Seal]
My commission expires:
State of Illinois )
) SS
County of ▇▇▇▇ )
On this ____ day of May 1996, before me personally appeared
____________________, to me personally known, who being by me duly sworn, say
that he is the ___________________ of ____________, that said instrument was
signed on such date on behalf of said corporation by authority of its Board of
Directors, and he acknowledged that the execution of the foregoing instrument
was the free act and deed of said corporation.
___________________________________
Notary Public
[Notarial Seal]
My commission expires:
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44
EXHIBIT A
TRUST INDENTURE SUPPLEMENT NO.__
(UTC TRUST NO. 1996-A)
(L-14_)
This Indenture Supplement No. _ (UTC Trust No. 1996-A) (L-14_), dated
May ___, 1996 (this "Indenture Supplement"), of _________________, a
_____________ trust company, not in its individual capacity but solely as
trustee (the "Owner Trustee") under the Trust Agreement (UTC Trust No. 1996-A)
(L-14_), dated May ___, 1996 (the "Trust Agreement"), between the Owner Trustee
in its individual capacity and ____________________, a ________ corporation, as
Owner Participant:
WITNESSETH:
WHEREAS, the Trust Indenture and Security Agreement (UTC Trust No.
1996-A) (L-14_) dated May ___, 1996 (the "Indenture"), between the Owner
Trustee and _______________, as Indenture Trustee (the "Indenture Trustee"),
provides for the execution and delivery of Indenture Supplements thereto
substantially in the form hereof each of which shall particularly describe the
Units covered by a related Lease Supplement under the Lease, by having attached
thereto a copy of such related Lease Supplement, and shall specifically
mortgage such Units to the Indenture Trustee;
WHEREAS, the Indenture includes the Units described in the copy of
Lease Supplement No. __ attached hereto and made a part hereof; and
WHEREAS, an executed counterpart of the Indenture is attached to this
Indenture Supplement;
NOW, THEREFORE, in order to secure the prompt payment of the principal
of, and Make-Whole Amount, if any, and interest on all of the Equipment Notes
from time to time outstanding under the Indenture and the performance and
observance by the Owner Trustee of all the agreements, covenants and provisions
in the Indenture for the benefit of the holders of the Equipment Notes and in
the Equipment Notes, subject to the terms and conditions of the Indenture, and
in consideration of the premises and of the covenants contained in the
Indenture and of the acceptance of the Equipment Notes by the holders thereof,
and of the sum of $1.00 paid to the Owner Trustee by the Indenture Trustee at
or before the delivery hereof, the receipt whereof is hereby acknowledged, the
Owner Trustee (i) has sold, assigned, transferred, pledged and confirmed, and
does hereby sell, assign, transfer, pledge and confirm, a security interest in
and mortgage lien on all right, title and interest of the Owner Trustee in and
to the property comprising the Equipment described in the copy of Lease
Supplement No. __ attached hereto, and (ii) has sold, assigned, transferred and
set over, a security interest in and mortgage lien on all of the right, title
and interest of the Owner Trustee under, in and to such Lease Supplement
(excluding, however, any rights to Excepted Property thereunder), referred to
above, to the Indenture Trustee, its successors and assigns, in the trust
created by the Indenture for the benefit of the holders from time to time of
the Equipment Notes.
To have and to hold all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, in trust for the benefit and
security of the holders from time to time of the Equipment Notes and for the
uses and purposes and subject to the terms and provisions set forth in the
Indenture.
A-1
45
It is the intention of the parties hereto that all Equipment Notes
issued and outstanding under this Indenture Supplement rank on a parity with
each other Equipment Note and with each other series of the Equipment Notes and
that, as to each other Equipment Note of and each other series of the Equipment
Notes, they be secured equally and ratably by the collateral described herein,
without preference, priority or distinction of any one thereof over any other
by reason of difference in time of issuance or otherwise, and that each such
Equipment Note be entitled to the same benefits and security in the Indenture
and this Indenture Supplement as each other.
The Equipment Notes issued under this Indenture Supplement shall be
designated as Equipment Notes 1996-A, Series A or Series B. The Equipment
Notes shall be substantially in the form set forth in Section 2.01 of the
Indenture. The Equipment Notes issued under this Indenture Supplement shall be
dated the date of issuance thereof, shall be issued in the maturities and
principal amounts and shall bear interest as specified in Exhibits B and B-1
hereto. The principal of each Equipment Note shall be payable in installments,
on each Installment Payment Date and the Maturity Date, in amounts equal to the
Installment Payment Amount for each such Installment Payment Date and Maturity
Date as set forth for such Equipment Notes.
This Supplement shall be construed as supplemental to the Indenture
and shall form a part of it, and the Indenture is hereby incorporated by
reference herein and is hereby ratified, approved and confirmed.
This Supplement may be executed by the Owner Trustee in separate
counterparts, each of which when so executed and delivered is an original, but
all such counterparts shall together constitute but one and the same
Supplement.
AND FURTHER, the Owner Trustee hereby acknowledges that the Equipment
referred to in the aforesaid Lease Supplement attached hereto and made a part
hereof has been delivered to the Owner Trustee and is included in the property
of the Owner Trustee covered by all the terms and conditions of the Trust
Agreement, subject to the pledge or mortgage thereof under the Indenture.
IN WITNESS WHEREOF, the Owner Trustee has caused this Indenture
Supplement to be duly executed by one of its duly authorized officers, on the
day and year first above written.
____________, not in its individual capacity, but
solely as Owner Trustee
By: _____________________________________________
Name:
Title:
A-2
46
State of )
) SS
County of )
On this ____ day of May 1996, before me personally appeared
_______________, to me personally known, who being by me duly sworn, say that
he is _____________ of _____________, that said instrument was signed on such
date on behalf of said corporation by authority of its Board of Directors, and
he acknowledged that the execution of the foregoing instrument was the free act
and deed of said corporation.
___________________________________________
Notary Public
[Notarial Seal]
My commission expires:
A-3
47
EXHIBIT B
TERMS OF EQUIPMENT NOTES (INITIAL CLOSING)
Principal Amount Interest Rate Final Maturity
---------------- ------------- --------------
Series A1: $ %
Series A2: $ %
TERMS OF EQUIPMENT NOTES (SUBSEQUENT CLOSING)
Principal Amount Interest Rate Final Maturity
---------------- ------------- --------------
Series B1: $ %
Series B2: $ %
B-1
48
EXHIBIT C
LOAN PARTICIPANT (INITIAL CLOSING)
PERCENTAGE OF
EQUIPMENT NOTES LOAN PARTICIPANT PRINCIPAL AMOUNT
--------------- ---------------- ----------------
Series A1 _______________, %
as trustee under the Pass Through Trust
Agreement, dated May ___, 1996,
between _______________
and Union Tank Car Company
Series A2 _______________, %
as trustee under the Pass Through Trust
Agreement, dated May ___, 1996,
among _______________,
Union Tank Car Company and Procor Limited
LOAN PARTICIPANT (SUBSEQUENT CLOSING)
PERCENTAGE OF
EQUIPMENT NOTES LOAN PARTICIPANT PRINCIPAL AMOUNT
--------------- ---------------- ----------------
Series B1 _______________, %
as trustee under the Pass Through Trust
Agreement, dated May ___, 1996,
between _______________
and Union Tank Car Company
Series B2 _______________, %
as trustee under the Pass Through Trust
Agreement, dated May ___, 1996,
among _______________,
Union Tank Car Company and Procor Limited
C-1
49
ANNEX A1
AMORTIZATION SCHEDULES
1996 % EQUIPMENT NOTE, SERIES A
Amortization Schedule for Equipment Note No. 1, Series A attached hereto.
▇▇▇▇▇ ▇▇-▇
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇-▇
INSTALLMENT
PAYMENT INSTALLMENT
DATE PERCENTAGE
---------- ----------
▇▇▇▇▇ ▇▇-▇
▇▇
▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ SCHEDULES
1996 % EQUIPMENT NOTE, SERIES A
Amortization Schedule for Equipment Note No. 2, Series A attached hereto.
▇▇▇▇▇ ▇▇-▇
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇-▇
INSTALLMENT
PAYMENT INSTALLMENT
DATE PERCENTAGE
---------- ----------
Annex A2-2