Exhibit 4.7
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TRUST INDENTURE AND SECURITY AGREEMENT
(GATX Rail Trust No. 2000-1)
Dated as of April 3, 2000
between
WILMINGTON TRUST COMPANY,
not in its individual capacity except as expressly
provided herein but solely as Owner Trustee
and
BANK ONE, NA,
as Indenture Trustee
Assorted Railroad Tank
Cars and Covered ▇▇▇▇▇▇ Cars
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Table of Contents
Page
Article I.
Definitions.................................................................... 4
Section 1.01. Certain Definitions................................... 4
Article II.
The Equipment Notes............................................................ 4
Section 2.01. Form of Equipment Notes............................... 4
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; Assumption of
Obligations of Owner Trustee by the Lessee.....................................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.............14
Section 3.04. Other Payments........................................15
Section 3.05. Distribution of Excepted Property.....................15
Section 3.06. Assumption of Obligations of Owner Trustee
by the Lessee.........................................15
Article IV.
Remedies of the Indenture Trustee upon an Indenture Event of Default...........17
Section 4.01. Indenture Events of Default...........................17
Section 4.02. Acceleration; Rescission and Annulment................19
Section 4.03. Remedies with Respect to Indenture Estate.............19
Section 4.04. Right to Cure; Option to Purchase; Etc................22
Section 4.05. Rights of Lessee......................................24
Section 4.06. Waiver of Existing Defaults...........................24
Article V.
Duties of the Indenture Trustee................................................24
Section 5.01. Action upon Indenture Event of Default................24
Section 5.02. Action upon Instructions..............................25
Section 5.03. Indemnification.......................................26
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Section 5.04. No Duties Except as Specified in Indenture
or Instructions.........................................26
Section 5.05. No Action Except under Lease, Indenture
or Instructions.........................................26
Section 5.06. Disposition of Units....................................27
Section 5.07. Indenture Supplements for Replacements..................27
Section 5.08. Effect of Replacements..................................27
Section 5.09. Withholding Taxes.......................................27
Section 5.10. Lessee's Right of Quiet Enjoyment.......................27
Article VI.
The Owner Trustee and the Indenture Trustee......................................28
Section 6.01. Acceptance of Trusts and Duties.........................28
Section 6.02. Absence of Duties.......................................28
Section 6.03. No Representations or Warranties as to
the Equipment or Documents..............................28
Section 6.04. No Segregation of Moneys; No Interest; Investments......29
Section 6.05. Reliance; Agents; Advice of Counsel.....................29
Section 6.06. Not Acting in Individual Capacity.......................30
Article VII.
Certain Limitations on Owner Trustee's and Indenture Trustee's Rights............30
Article VIII.
Successor Trustees...............................................................30
Section 8.01. Notice of Successor Owner Trustee.......................30
Section 8.02. Resignation of Indenture Trustee; Appointment
of Successor............................................30
Article IX.
Supplements and Amendments to this Indenture and Other Documents.................32
Section 9.01. Supplemental Indentures without Consent of Holders......32
Section 9.02. Indenture Trustee Protected.............................33
Section 9.03. Request of Substance, Not Form..........................33
Section 9.04. Documents Mailed to Holders.............................34
Section 9.05. Amendments, Waivers, Etc. of Other Documents............34
Article X.
Miscellaneous....................................................................36
Section 10.01. Termination of Indenture................................36
Section 10.02. No Legal Title to Indenture Estate in Holders...........37
Section 10.03. Sale of Equipment by Indenture Trustee is Binding.......37
Section 10.04. Remedies Cumulative.....................................37
Section 10.05. Discontinuance of Proceedings...........................37
Section 10.06. Indenture and Equipment Notes for Benefit of
Owner Trustee, Indenture Trustee, Owner
Participant and Holders Only............................37
Section 10.07. Notices.................................................38
Section 10.08. Severability............................................39
Section 10.09. Separate Counterparts...................................39
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Section 10.10. Successors and Assigns.................................39
Section 10.11. Headings...............................................40
Section 10.12. Governing Law..........................................40
Section 10.13. Normal Commercial Relations............................40
Section 10.14. No Recourse Against Others.............................40
EXHIBIT A- Form of Trust Indenture Supplement
EXHIBIT B- Terms of Equipment Notes
EXHIBIT C- Loan Participants
APPENDIX A- Definitions
ANNEX A- Amortization Schedule
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TRUST INDENTURE AND SECURITY AGREEMENT
(GATX Rail Trust No. 2000-1)
This TRUST INDENTURE AND SECURITY AGREEMENT (GATX Rail Trust No. 2000-
1) dated as of April 3, 2000 (this "Indenture"), between Wilmington Trust
Company, not in its individual capacity except as expressly provided in Section
6.03 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 Bank
One, NA, 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 for the issuance by the Owner
Trustee of the Equipment Notes, 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 premium, if any, on and all other amounts due with respect to, the Equipment
Notes 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 the Equipment Notes all for the benefit of the holders of the Equipment
Notes, 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 by the Loan Participant,
the Owner Trustee does hereby sell, assign, transfer, convey, mortgage, pledge,
and confirm unto the Indenture Trustee, its successors and assigns, for the
security and benefit of the holders of the Equipment Notes from time to time, a
first priority 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,
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[Trust Indenture and Security Agreement (GATX Rail Trust No. 2000-1)]
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 and prosecute an action at law to obtain
such Excepted Property and (B) to adjust Basic Rent, the percentages
relating to Stipulated Loss Value and Termination Value and the Early
Purchase Price and the Basic Term Purchase Price as provided in Section 3.4
of the Lease and Section 2.6 of the Participation Agreement; and
(ii) the Owner Trustee and the Indenture Trustee shall each
retain the right to receive from 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
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[Trust Indenture and Security Agreement (GATX Rail Trust No. 2000-1)]
(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.
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 the Equipment Notes from time to time, without any
priority of any one Equipment Note 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.
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), to ask, require, demand, receive,
compound and give acquittance for any and 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 (other than Excepted
Property) 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
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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.
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.
Article II.
The Equipment Notes
Section 2.01. Form of Equipment Notes. The Equipment Notes shall be
substantially in the form set forth below:
8.10% EQUIPMENT NOTE
(Secured by, among others, Lease Obligations of
GATX Rail Corporation)
GATX Rail Trust No. 2000-1 Series [I/II/III/IV]
Issued in Connection with certain Railroad Rolling Stock
No. ______ Chicago, Illinois
April __, 2000
$________________
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[Trust Indenture and Security Agreement (GATX ▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇-▇)]
▇▇▇▇▇▇▇▇▇▇ Trust Company, not in its individual capacity, but solely
as owner trustee (herein in such capacity called the "Owner Trustee") under that
certain Trust Agreement (GATX Rail Trust No. 2000-1), dated as of April 3, 2000,
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 Bank One, NA, as Pass Through Trustee, or its registered assigns, the
principal sum of $_____________________________ (or such lesser amount as shall
equal the unpaid principal amount of this Equipment Note), in lawful currency of
the United States of America, in installments payable on the dates set forth in
Exhibit A hereto, commencing _____________ and thereafter to and including
January 13, 2020 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 each
January 13 and July 13, commencing July 13, 2000, to the maturity date hereof at
the rate of 8.10% 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 10.10% 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 premium, if any, to be made
hereunder and under the Trust Indenture and Security Agreement (GATX Rail Trust
No. 2000-1), dated as of April 3, 2000 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 Bank, One, NA, 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
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, premium, 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
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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 premium 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 premium as provided
in Section 4.04(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 UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY OTHER
JURISDICTION AND MAY NOT BE TRANSFERRED IN VIOLATION OF SUCH ACT OR ANY SUCH
APPLICABLE LAWS. THIS EQUIPMENT NOTE 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, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
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.
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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.
WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee
By:
---------------------------------
[FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Equipment Notes referred to in the within-mentioned
Indenture.
BANK ONE, NA,
as Indenture Trustee
By:
---------------------------------
Authorized Officer
[Insert the related Amortization Schedule from Annex A]
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Section 2.02. Terms of Equipment Notes. There shall be issued and
delivered to the Loan Participant one Equipment Note of the relevant Series for
each Lease Supplement executed and delivered in respect of the Units delivered
on the Closing Date in the maturity, principal amount and bearing the interest
rate as set forth for such Series in Exhibit B hereto, and the Equipment Notes
related to each such Lease Supplement shall be 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. Each such Equipment Note shall evidence the
loan made by the Loan Participant in connection with the purchase of such Units
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 Closing Date of the Equipment, 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 for the relevant Series.
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 of any one Series which may be
outstanding at any one time shall be limited to the aggregate amount of such
Series set forth in Exhibit B hereto. The aggregate principal amount of all
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. All payments to be
made under the Equipment Notes and this Indenture 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 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.
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Section 2.04. Method of Payment. (a) The principal of and premium, 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 premium, 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 premium 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 of any Series 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 administration office of the Indenture Trustee, together with a written
request from such holder for the issuance of a new
9
Equipment Note or Equipment Notes of such Series, 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 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 of any Series 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 such 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
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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 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 of any Series
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 a Determination 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 of the relevant Basic
Group 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) a premium in an amount equal to 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 of any Series shall be prepaid in whole or in
part by the Owner Trustee on a Rent Payment Date upon at least 25 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 or the deemed
occurrence of an Event of Loss pursuant to Section 9.1 of the Lease 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 15 or more Units on a Determination Date
pursuant to Section 11.2 of the Lease, such prepayment shall be made on such
Determination 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 of the relevant Basic Group 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
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application of any Basic Rent paid on or prior to the date of such prepayment,
but without the payment of any Make-Whole Amount or other premium.
(c) Unless Lessee shall have elected pursuant to Section 6.9 of the
Participation Agreement or Section 22.1 of the Lease to assume all of the rights
and obligations of the Owner Trustee under this Indenture in respect of the
Equipment Notes of any Series, each Equipment Note of such Series shall be
prepaid in whole or in part by the Owner Trustee on the Determination Date
specified by Lessee to Owner Trustee and Indenture Trustee in accordance with
Section 6.9 of the Participation Agreement or Section 22.1 of the Lease, as the
case may be, in the event that Lessee exercises a purchase option under Section
6.9 of the Participation Agreement or Section 22.1 of the Lease, as the case may
be, with respect to any Unit or Units related to such Equipment Note, 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 date of any prepayment under Section 6.9 of the Participation
Agreement or Section 22.1 of the Lease, as the case may be (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 of the relevant Basic Group 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 prepayment after giving effect to the
application of any Basic Rent paid on or prior to the date of such prepayment,
and (iii) a premium in an amount equal to the aggregate 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) On the Refunding Date specified by the Lessee 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, a premium in an amount equal to the Make-Whole Amount, if any.
(e) The Indenture Trustee shall give prompt notice of any prepayment
of any Equipment Notes to all holders of the Equipment Notes as soon as the
Indenture Trustee shall have knowledge that such prepayment is expected 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 expected
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 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; Assumption of
Obligations of Owner Trustee by the Lessee
Section 3.01. Basic Rent Distribution. Except as otherwise provided
in Section 3.03 or 3.05, each installment of 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 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 to pay in full the aggregate amount of the
payment or payments of principal, premium, 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, premium, 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 through 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
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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 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 4.02, 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 IV), 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 5.03 (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 premium, 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 4.02 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.
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(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 6.04(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 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 premium, 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
premium, 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.
Section 3.06. Assumption of Obligations of Owner Trustee by the
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 on a full recourse basis in connection with the purchase by
the Lessee of Units pursuant to Section 6.9 of the Participation Agreement or
Section 22.1 of the Lease and, if on or prior to the applicable purchase date:
15
(a) The Lessee shall have delivered to the Indenture Trustee and the
Owner Trustee a certificate, dated the date of such purchase, of a Responsible
Officer of the Lessee stating that the 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 Indenture Default shall have occurred and be continuing
immediately subsequent to such purchase or assumption after giving effect to the
indenture supplement referred to below and the Indenture Trustee and the Owner
Trustee shall have received a certificate, dated the date of such purchase, of a
Responsible Officer of the Lessee to such effect;
(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 and the Owner Trustee shall have received
an opinion or opinions of counsel for the Lessee, dated the date of such
purchase which without unusual qualification and permitting reliance on proposed
Treasury Regulations shall be to the effect that, after giving effect to the
indenture supplement referred to below:
(i) this Indenture, the indenture supplement referred to below
and the Equipment Notes issued thereunder each constitutes the legal, valid
and binding obligation of the Lessee, enforceable against the Lessee in
accordance with their respective 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;
(ii) all filings and recordings and other action necessary or
appropriate to protect the interests of the Indenture Trustee in the Units
to be so purchased by the Lessee have been accomplished;
(iii) no holder of Equipment Notes will be required to recognize
gain or loss for tax purposes in connection with such assumption; and
(iv) covering such other matters as the Indenture Trustee shall
reasonably request that are customary for transactions of this type; and
(e) upon delivery of an indenture supplement giving effect to such
assumption reasonably satisfactory to the Indenture Trustee and execution and
delivery of Equipment Notes reflecting such assumption, each 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
16
the Equipment Notes and under this Indenture in respect of the Equipment Notes
or otherwise related to such Units (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. In the event that the affected Owner
Participant under Section 6.9 of the Participation Agreement holds less than
100% of the Beneficial Interest and the Lessee is therefore purchasing less than
all the Units pursuant to said Section 6.9 or the Lessee elects to purchase less
than all of the Units pursuant to Section 22.1 of the Lease, as the case may be,
the assumption by the Lessee of the rights and obligations of the Owner Trustee
under this Indenture in respect of that portion of the indebtedness evidenced by
the Equipment Notes which relates to such purchased Units shall be made on the
same terms and conditions as are described in clauses (a) through (e) above
except that (x) the opinion under clause (d) above shall be appropriately
modified to reflect such partial assumption of indebtedness, and (y) the
indenture supplement shall provide for a wholly new and separate indenture
between the Lessee and the Indenture Trustee for that portion of such
indebtedness evidenced by the Equipment Notes which is to be assumed by the
Lessee and secured by the Units to be purchased; and this Indenture shall
thereafter relate only to that portion of the indebtedness evidenced by the
Equipment Notes remaining outstanding under this Indenture after such
assumption. Any such new and separate indenture shall contain the same terms and
provisions of this Indenture with only such changes thereto which are necessary
to reflect the replacement of the Owner Trustee with the Lessee and which do not
adversely affect the rights of the holders of the Equipment Notes.
Article IV.
Remedies of the Indenture Trustee upon an Indenture Event of Default
Section 4.01. 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 4.04(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, premium, if any, or interest on, any Equipment Note or 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 any covenant or obligation of them or any of them, in this
Indenture or the Equipment Notes (other than as set forth in clause (b) above)
or in the Participation Agreement or by the Guarantor in the Guaranty, 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
17
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 or the
Owner Participant under the Participation Agreement, or by the Owner Trustee
hereunder or by the Guarantor in the Guaranty, or by any representative or
Affiliate of the Owner Trustee or the Owner Participant or the Guarantor 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), the Owner Participant, the OP General Partner or the Guarantor 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), the Owner Participant, the OP General Partner or the Guarantor 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), the Owner Participant, the OP
General Partner or the Guarantor, a receiver, trustee or liquidator of the
Indenture Estate, the Owner Trustee (as Owner Trustee and not in its individual
capacity), the Owner Participant, the OP General Partner or the Guarantor, 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), the Owner Participant, the OP General Partner or the Guarantor 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), the Owner Participant, the OP General Partner or the
Guarantor, 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), the
Owner Participant, the OP General Partner or the Guarantor, 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), the Owner Participant, the OP General Partner or the Guarantor or of
any substantial part of its property and such jurisdiction, custody or
18
control shall remain in force unrelinquished, unstayed or unterminated for a
period of 60 days; or
(i) any repudiation by the Guarantor of its obligations under the
Guaranty; or
(j) the Guaranty ceases to be in full force and effect.
Notwithstanding any provision herein to the contrary, if an Indenture Event of
Default described in clause (e), (f), (g) or (h) of this Section 4.01 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 IV 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 4.02. 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
4.04, declare the unpaid principal amount of all Equipment Notes then
outstanding and accrued interest thereon to be due and payable, it being agreed
that no Make-Whole Amount or other premium should be payable in such event. 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 IV, 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 the
Equipment Notes, and the principal on any Equipment Notes that has 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 the Equipment Notes that have become due solely because of such acceleration,
have been cured or waived.
Section 4.03. 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 V hereof shall, subject to Sections 4.04 and 4.05, 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 IV 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.
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(b) Subject to Section 4.04 and Section 4.05, the Indenture Trustee
may, if at the time such action may be lawful and always subject to compliance
with any mandatory legal requirements, either 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 4.02; provided further, that, in the event the
circumstances contemplated by Section 4.04(c) exist, the Indenture Trustee shall
not be allowed to deliver the notice required by this Section 4.03(b) (x) until
the earlier of (1) such time as such circumstances no longer exist or (2) the
expiration of the 90 day period set forth in Section 4.04(c) or (y) if the
circumstances contemplated by the second proviso of Section 4.04(c) then exist.
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 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 4.04 and Section 4.05, 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
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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 4.04 and Section 4.05, take possession of and remove the
Indenture Estate. Upon every such taking of possession, the Indenture 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 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 discretion to protect the Indenture
Estate and the Indenture Trustee, as trustee and individually, against any and
all such liabilities.
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(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 4.04. 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 of Default (other than arising from
such failure to pay Basic Rent or which is concurrently being cured pursuant to
this Section 4.04(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 IV), 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 4.04(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 IV), 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 (other than the payment of Basic Rent) 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 $3,000,000. Upon any cure by the Owner Participant or the Owner
Trustee in accordance with the first sentence of this Section 4.04(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
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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 4.04(a) except by demanding of the Lessee payment of
such amount or by prosecuting an action against the Lessee to require the
payment of such amount; provided further, that with respect to any amounts
advanced by and owing to the Owner Trustee and the Owner Participant, the Owner
Trustee and the Owner Participant shall be expressly subordinated to the right
of the holders of the Equipment Notes to receive any and all amounts then due
and owing on the Equipment Notes prior to any payment from the Lessee to the
Owner Trustee or the Owner Participant.
(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 accelerated
pursuant to Section 4.02, (ii) the Equipment Notes shall have been accelerated
pursuant to Section 4.02 or (iii) the Indenture Trustee, as assignee hereunder
of the Lease, shall have declared the Lease to be in default and shall have
commenced the exercise of any additional remedy in respect of the Units under
the Lease, then and in any such case, upon 30 days' notice (which notice shall
be irrevocable) from the Owner Trustee to the Indenture Trustee designating a
date of purchase (the "Purchase Date") which shall be a Determination Date, each
holder of an Equipment Note will be obligated to, 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 without any Make-
Whole Amount or other premium, 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. During such 30-day notice period, the Indenture Trustee shall
not exercise any of the rights, remedies or powers pursuant to Section 15 of the
Lease or this Article IV, so long as the Owner Participant (or any nominee of
the Owner Participant reasonably acceptable to the Indenture Trustee) has
notified the Indenture Trustee that the notice so provided by the Owner Trustee
or its nominee pursuant to this Section 4.04(b) constitutes the binding
obligation of the Owner Trustee or its nominee to purchase the Equipment Notes.
(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) unless the Indenture Trustee as security
assignee of the Owner Trustee has
23
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 assumed the Lease 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, 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 and no Indenture Event of Default unrelated to a Lease Event of
Default occurring solely pursuant to Section 14(g) or 14(h) of the Lease shall
have occurred and be continuing, the Indenture Trustee shall refrain from so
foreclosing or exercising such other remedies hereunder. Nothing in this Section
4.04(c) shall prevent the Indenture Trustee from foreclosing or exercising such
other remedies hereunder to the extent the Lessee fails to comply with any
provisions of any order issued in connection with the assumption of the Lease.
Section 4.05. Rights of Lessee. Notwithstanding the provisions of
this Indenture, including, without limitation, Section 4.03, 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, 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 4.06. 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, premium, if any, or interest on any
Equipment Note, or (ii) in respect of a covenant or provision hereof which under
Article IX 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 V.
Duties of the Indenture Trustee
Section 5.01. Action upon Indenture Event of Default. If any payments
of Basic Rent or payments of the principal or interest or premium, 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
24
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, facsimile, 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 5.03, 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 5.01 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 10 Business Days after
the same shall have become due, unless the 10-Day Period within which, pursuant
to Section 4.04(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 10 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 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 5.02. Action upon Instructions. Subject to the terms of
Sections 5.01 and 5.03, 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 premium, if any, on the Equipment Notes
in accordance with the terms of this Indenture, or,
25
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 5.03. Indemnification.
---------------
(a) The Indenture Trustee shall not be required to take any action or
refrain from taking any action under Section 5.01 (other than the first two
sentences thereof) or 5.02 or Article IV 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 5.01 or 5.02 or Article IV, 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 5.03. Each Loan Participant so participating shall
be entitled to reimbursement for such participation in accordance with Article
III.
Section 5.04. 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 received pursuant to
the terms of Section 5.01 or 5.02; 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 5.05. 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
26
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 5.01 or 5.02.
Section 5.06. 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 5.07. 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 5.08. 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 5.09. Withholding Taxes. The Indenture Trustee, as agent for
the Owner Trustee, shall exclude and withhold from each payment of principal,
premium, 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
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 the
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 appropriate
documentation showing the payment thereof, together with such additional
documentary evidence as such holders may reasonably request from time to time.
Section 5.10. 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 5.10.
27
Article VI.
The Owner Trustee and the Indenture Trustee
Section 6.01. 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 5.04; and the Owner Trustee shall not be liable for any
action or inaction of the Indenture Trustee and the Indenture Trustee shall not
be 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 6.02. Absence of Duties. Except in accordance with written
instructions or requests furnished pursuant to Section 5.01 or Section 5.02 and
except as provided in, and without limiting the generality of, Section 5.04, 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 6.03. 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
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warranties made by it in its individual capacity in Sections 3.1 and 3.3,
respectively, of the Participation Agreement.
Section 6.04. No Segregation of Moneys; No Interest; Investments.
--------------------------------------------------
(a) Subject to Section 6.04(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, 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 6.05. 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
29
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 6.06. 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.
Article VII.
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 4.03 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 VIII.
Successor Trustees
Section 8.01. 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 8.02. 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 8.02. The Indenture Trustee or any successor thereto
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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 8.02(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 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,
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shall, subject to the terms of paragraph (c) of this Section, be the Indenture
Trustee under this Indenture without further act.
Article IX.
Supplements and Amendments to this Indenture and Other Documents
Section 9.01. 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 Equipment Notes contained, or to evidence
(in accordance with Article VIII) 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 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 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 the first sentence of Section 4.03(a) or Section 4.05 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 9.02 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 the Equipment Notes and of the Owner Trustee under this Indenture;
provided, however,
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without the consent of each holder of an Equipment Note affected thereby, no
such supplemental indenture shall:
(1) 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, premium, if any, or interest on any Equipment Note, or reduce
the principal amount thereof or the premium, 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 premium,
if any, or interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment of principal or premium, if
any, or interest on or after the date such principal or premium, 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 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
(4) modify any provisions of this Section 9.01(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 the first sentence of Section 4.03(a) or Section 4.05 be
so altered or modified without such Lessee consent.
Section 9.02. Indenture Trustee Protected. If in the opinion of the
Indenture Trustee any document required to be executed pursuant to the terms of
Section 9.01 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 9.03. Request of Substance, Not Form. It shall not be
necessary for the consent of the holders of Equipment Notes under Section
9.01(b) to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
33
Section 9.04. Documents Mailed to Holders. Promptly after the
execution by the Indenture Trustee of any document entered into pursuant to
Section 9.01(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 9.05. Amendments, Waivers, Etc. of Other Documents.
(a) Notwithstanding any provision of this Indenture to the contrary,
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 under any of such agreements, 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 9.05 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 9.05,
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, 3.6 (except insofar as it relates to the address or account
information of the Owner Trustee or Indenture Trustee) (other than as such
Sections 3.1 through 3.4 and 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 (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
34
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; provided, further, that, subject to the
Indenture Trustee's rights to exercise remedies under Section 15 of the
Lease without the prior consent of the Owner Trustee, and whether or not an
Indenture Event of Default shall have occurred and be continuing, no such
modification, amendment or supplement of the Lease or other action referred
to in the preceding proviso shall be taken without the prior written
consent of the Owner Trustee with respect to any of the provisions of
Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 (with respect to insurance
coverage of the interests of the Owner Trustee and the Owner Participant),
13, 14, 15 (in respect of the obligation to pay and the measure of money
damages), 16 (with respect to filings or recordings benefiting the Owner
Trustee or the Owner Participant), 17, 18, 19, 20, 22, 23, 25.1 and 25.5 of
the Lease 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 pursuant to this proviso;
(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
35
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 the Equipment Notes.
(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 9.05, 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 the 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 the 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.
Article X.
Miscellaneous
Section 10.01. 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, and (iii) the payment in full of the principal amount of
and interest on all Equipment Notes outstanding hereunder and all other sums
payable
36
to the Indenture Trustee and the holders of the Equipment Notes hereunder and
under such Equipment Notes and under the Participation Agreement.
Section 10.02. 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 10.03. 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
the 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 10.04. 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 10.05. 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 10.06. 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 the
Equipment Notes any legal or equitable right, remedy or claim under or in
respect of this Indenture or any Equipment Note.
37
Section 10.07. Notices.
Unless otherwise expressly specified or permitted by the terms hereof,
all communications and notices provided for herein shall be in writing or by
facsimile capable of creating a written record, and any such notice shall become
effective (i) upon personal delivery thereof, including, without limitation, by
overnight mail or courier service, (ii) in the case of notice by United States
mail, certified or registered, postage prepaid, return receipt requested, upon
receipt thereof, or (iii) in the case of notice by such facsimile, upon
confirmation of receipt thereof, provided such transmission is promptly further
confirmed in writing by either of the methods set forth in clause (i) or (ii),
in each case addressed to the following Person at its respective address set
forth below or at such other address as such Person may from time to time
designate by written notice to the other Persons listed below:
If to the Owner Trustee: Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to Owner Participant.
If to Owner Participant: With copies to:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
38
If to the Indenture Bank One, NA
Trustee: 1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust
Services Division
(GATX Rail Trust No. 2000-1)
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Lessee: GATX Rail Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
(GATX Trust Rail No. 2000-1)
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Loan At such address as is set forth on
Participant: 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.
Notwithstanding the foregoing provisions, for purposes of Sections
4.01, 4.02, 4.04, 5.01 and 5.02, 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 10.08. 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 10.09. 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 10.10. 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
39
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 10.11. 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 10.12. 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.
Section 10.13. 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 10.14. 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 the Equipment Notes by accepting
an Equipment Note waives and releases all such liability. The waiver and
release are part of the consideration of the Equipment Notes.
* * *
40
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, as of the day and year first above written.
BANK ONE, NA,
as Indenture Trustee
By: ________________________________
Name: ______________________________
Title: _____________________________
WILMINGTON TRUST COMPANY,
not in its individual capacity except
as expressly provided in Section 6.03
hereof but solely as Owner Trustee
By: ________________________________
Name: ______________________________
Title: _____________________________
41
EXHIBIT A
TRUST INDENTURE SUPPLEMENT NO. _
(GATX Rail Trust No. 2000-1)
This Indenture Supplement No. __ (GATX Rail Trust No. 2000-1), dated ______
____, ______ (this "Indenture Supplement"), of Wilmington Trust Company, a
Delaware corporation, not in its individual capacity except as expressly
provided herein but solely as owner trustee (the "Owner Trustee") under the
Trust Agreement (GATX Rail Trust No. 2000-1), dated as of April 3, 2000 (the
"Trust Agreement"), between the Owner Trustee in its individual capacity and
, as Owner Participant;
WITNESSETH:
WHEREAS, the Trust Indenture and Security Agreement (GATX Rail Trust No.
2000-1) dated as of April 3, 2000 (the "Indenture"), between the Owner Trustee
and Bank One, NA 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 Equipment 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 premium, 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
A-1
Equipment Notes and for the uses and purposes and subject to the terms and
provisions set forth in the Indenture.
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, as of the day and
year first above written.
WILMINGTON TRUST COMPANY,
not in its individual capacity except
as expressly provided herein but
solely as Owner Trustee
By: _________________________________
Name: _______________________________
Title: ______________________________
A-3
EXHIBIT B
Terms of Equipment Notes
------------------------
Interest Rate
Series Principal Amount Interest Rate After Maturity Final Maturity
------ ---------------- ------------- -------------- --------------
Series I $ 9,884,000 8.10% 10.10% January 13, 2020
Series II $22,707,000 8.10% 10.10% January 13, 2020
Series III $10,786,000 8.10% 10.10% January 13, 2020
Series IV $18,382,000 8.10% 10.10% January 13, 2020
EXHIBIT C
Loan Participant
----------------
Percentage of
Equipment Notes Loan Participant Principal Amount
--------------- ---------------- ----------------
Equipment Notes Bank One, NA, as Trustee under the Pass 100%
Through Trust Agreement, dated as of
April 3, 2000 between Bank One, NA and
GATX Rail Corporation, as supplemented
by Trust Supplement No. 1 thereto dated
April 3, 2000.
ANNEX A
-------
Amortization Schedule
8.10% Equipment Note
2000-1
Series I
Percentage of Remaining Principal
Payment Date Balance Payment (1)
------------ ---------------------------------
Apr 13 2000 0.0000000%
Jul 13 2000 0.0000000%
Jan 13 2001 0.0000000%
Jul 13 2001 0.0000000%
Jan 13 2002 0.0000000%
Jul 13 2002 0.0000000%
Jan 13 2003 2.5365582%
Jul 13 2003 2.6231419%
Jan 13 2004 2.7087698%
Jul 13 2004 2.7841870%
Jan 13 2005 2.8639240%
Jul 13 2005 2.9483629%
Jan 13 2006 3.0379322%
Jul 13 2006 3.1331141%
Jan 13 2007 3.2165833%
Jul 13 2007 3.3419498%
Jan 13 2008 3.4574976%
Jul 13 2008 3.5813217%
Jan 13 2009 7.4286887%
Jul 13 2009 0.0000000%
Jan 13 2010 8.0026601%
Jul 13 2010 0.0000000%
Jan 13 2011 8.7228915%
Jul 13 2011 0.0000000%
Jan 13 2012 9.5564941%
Jul 13 2012 0.0000000%
Jan 13 2013 15.3363115%
Jul 13 2013 0.0000000%
Jan 13 2014 21.4819982%
Jul 13 2014 0.0000000%
Jan 13 2015 29.6689750%
Jul 13 2015 0.0000000%
Jan 13 2016 25.4547879%
Jul 13 2016 0.0000000%
Jan 13 2017 0.0000000%
Jul 13 2017 0.0000000%
Jan 13 2018 0.0000000%
Jul 13 2018 0.0000000%
Jan 13 2019 64.2493611%
Jul 13 2019 0.0000000%
Jan 13 2020 100.0000000%
(1) The Percentage should be applied to the remaining principal balance of the
Equipment Note after giving effect to prepayment, if any, to be made on the
Payment Date.
(1)
ANNEX A
-------
Amortization Schedule
8.10% Equipment Note
2000-1
Series II
Percentage of Remaining Principal
Payment Date Balance Payment (1)
------------ ---------------------------------
Apr 13 2000 0.0000000%
Jul 13 2000 0.0000000%
Jan 13 2001 0.0000000%
Jul 13 2001 0.0000000%
Jan 13 2002 0.0000000%
Jul 13 2002 0.0000000%
Jan 13 2003 1.7164733%
Jul 13 2003 2.6277372%
Jan 13 2004 2.7136432%
Jul 13 2004 2.7739251%
Jan 13 2005 2.8689174%
Jul 13 2005 2.9373368%
Jan 13 2006 3.0430397%
Jul 13 2006 3.1212068%
Jan 13 2007 3.2396635%
Jul 13 2007 3.3296337%
Jan 13 2008 3.4634520%
Jul 13 2008 3.5678890%
Jan 13 2009 3.7204522%
Jul 13 2009 3.8642186%
Jan 13 2010 3.9973351%
Jul 13 2010 4.1869073%
Jan 13 2011 4.3457267%
Jul 13 2011 4.5683998%
Jan 13 2012 9.5477387%
Jul 13 2012 0.0000000%
Jan 13 2013 10.5555556%
Jul 13 2013 0.0000000%
Jan 13 2014 11.8012423%
Jul 13 2014 0.0000000%
Jan 13 2015 17.4491931%
Jul 13 2015 0.0000000%
Jan 13 2016 30.5873877%
Jul 13 2016 0.0000000%
Jan 13 2017 22.6482729%
Jul 13 2017 0.0000000%
Jan 13 2018 0.0000000%
Jul 13 2018 0.0000000%
Jan 13 2019 64.2493611%
Jul 13 2019 0.0000000%
Jan 13 2020 100.0000000%
(1) The Percentage should be applied to the remaining principal balance of the
Equipment Note after giving effect to prepayment, if any, to be made on the
Payment Date.
(2)
ANNEX A
-------
Amortization Schedule
8.10% Equipment Note
2000-1
Series III
Percentage of Remaining Principal
Payment Date Balance Payment (1)
------------ ---------------------------------
Apr 13 2000 0.0000000%
Jul 13 2000 0.0000000%
Jan 13 2001 0.0000000%
Jul 13 2001 0.0000000%
Jan 13 2002 0.0000000%
Jul 13 2002 0.0000000%
Jan 13 2003 1.6762891%
Jul 13 2003 2.4460432%
Jan 13 2004 2.4926254%
Jul 13 2004 2.5714718%
Jan 13 2005 2.6393417%
Jul 13 2005 2.7108914%
Jan 13 2006 2.7700377%
Jul 13 2006 2.8658126%
Jan 13 2007 2.9503645%
Jul 13 2007 3.0400572%
Jan 13 2008 3.1169310%
Jul 13 2008 3.2362460%
Jan 13 2009 3.3444816%
Jul 13 2009 3.4602076%
Jan 13 2010 7.1473751%
Jul 13 2010 0.0000000%
Jan 13 2011 9.9997119%
Jul 13 2011 0.0000000%
Jan 13 2012 13.5401121%
Jul 13 2012 0.0000000%
Jan 13 2013 16.9826204%
Jul 13 2013 0.0000000%
Jan 13 2014 22.1836388%
Jul 13 2014 0.0000000%
Jan 13 2015 30.9142683%
Jul 13 2015 0.0000000%
Jan 13 2016 48.5252427%
Jul 13 2016 0.0000000%
Jan 13 2017 0.0000000%
Jul 13 2017 0.0000000%
Jan 13 2018 0.0000000%
Jul 13 2018 0.0000000%
Jan 13 2019 45.5708285%
Jul 13 2019 0.0000000%
Jan 13 2020 100.0000000%
(1) The Percentage should be applied to the remaining principal balance of the
Equipment Note after giving effect to prepayment, if any, to be made on the
Payment Date.
(3)
ANNEX A
-------
Amortization Schedule
8.10% Equipment Note
2000-1
Series IV
Percentage of Remaining Principal
Payment Date Balance Payment (1)
------------ ---------------------------------
Apr 13 2000 0.0000000%
Jul 13 2000 0.0000000%
Jan 13 2001 0.0000000%
Jul 13 2001 0.0000000%
Jan 13 2002 0.0000000%
Jul 13 2002 0.0000000%
Jan 13 2003 1.9510991%
Jul 13 2003 2.4390244%
Jan 13 2004 2.5000000%
Jul 13 2004 2.5641026%
Jan 13 2005 2.6471504%
Jul 13 2005 2.7031350%
Jan 13 2006 2.7782344%
Jul 13 2006 2.8576260%
Jan 13 2007 2.9590948%
Jul 13 2007 3.0313902%
Jan 13 2008 3.1261561%
Jul 13 2008 3.2270384%
Jan 13 2009 3.3346488%
Jul 13 2009 3.4700959%
Jan 13 2010 7.1473884%
Jul 13 2010 0.0000000%
Jan 13 2011 8.6032648%
Jul 13 2011 0.0000000%
Jan 13 2012 13.1512110%
Jul 13 2012 0.0000000%
Jan 13 2013 16.4209804%
Jul 13 2013 0.0000000%
Jan 13 2014 21.3058525%
Jul 13 2014 0.0000000%
Jan 13 2015 29.3598334%
Jul 13 2015 0.0000000%
Jan 13 2016 45.0711851%
Jul 13 2016 0.0000000%
Jan 13 2017 0.0000000%
Jul 13 2017 0.0000000%
Jan 13 2018 0.0000000%
Jul 13 2018 0.0000000%
Jan 13 2019 52.0861181%
Jul 13 2019 0.0000000%
Jan 13 2020 100.0000000%
(1) The Percentage should be applied to the remaining principal balance of the
Equipment Note after giving effect to prepayment, if any, to be made on the
Payment Date.
(4)
___________________________________________
TRUST INDENTURE AND SECURITY AGREEMENT
(GATX Rail Trust No. 2000-2)
Dated as of April 3, 2000
between
WILMINGTON TRUST COMPANY,
not in its individual capacity except as expressly
provided herein but solely as Owner Trustee
and
BANK ONE, NA,
as Indenture Trustee
Assorted Railroad Tank
Cars and Covered ▇▇▇▇▇▇ Cars
___________________________________________
Table of Contents
Page
Article I. Definitions.................................................................... 4
Section 1.01. Certain Definitions..................................... 4
Article II. The Equipment Notes............................................................ 4
Section 2.01. Form of Equipment Notes................................. 4
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;
Assumption of Obligations of Owner Trustee by the Lessee....................... 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............... 14
Section 3.04. Other Payments.......................................... 15
Section 3.05. Distribution of Excepted Property....................... 15
Section 3.06. Assumption of Obligations of Owner Trustee by the
Lessee.................................................. 15
Article IV. Remedies of the Indenture Trustee upon an Indenture Event of Default........... 17
Section 4.01. Indenture Events of Default............................. 17
Section 4.02. Acceleration; Rescission and Annulment.................. 19
Section 4.03. Remedies with Respect to Indenture Estate............... 19
Section 4.04. Right to Cure; Option to Purchase; Etc.................. 22
Section 4.05. Rights of Lessee........................................ 24
Section 4.06. Waiver of Existing Defaults............................. 24
Article V. Duties of the Indenture Trustee................................................ 24
Section 5.01. Action upon Indenture Event of Default.................. 24
Section 5.02. Action upon Instructions................................ 25
Section 5.03. Indemnification......................................... 26
i
PAGE>
Section 5.04. No Duties Except as Specified in Indenture or
Instructions................................................... 26
Section 5.05. No Action Except under Lease, Indenture
or Instructions................................................ 26
Section 5.06. Disposition of Units........................................... 27
Section 5.07. Indenture Supplements for Replacements......................... 27
Section 5.08. Effect of Replacements......................................... 27
Section 5.09. Withholding Taxes.............................................. 27
Section 5.10. Lessee's Right of Quiet Enjoyment.............................. 27
Article VI. The Owner Trustee and the Indenture Trustee......................................... 28
Section 6.01. Acceptance of Trusts and Duties................................ 28
Section 6.02. Absence of Duties.............................................. 28
Section 6.03. No Representations or Warranties as to the Equipment or
Documents...................................................... 28
Section 6.04. No Segregation of Moneys; No Interest;
Investments.................................................... 29
Section 6.05. Reliance; Agents; Advice of Counsel............................ 29
Section 6.06. Not Acting in Individual Capacity.............................. 30
Article VII. Certain Limitations on Owner Trustee's and Indenture Trustee's Rights............... 30
Article VIII. Successor Trustees.................................................................. 30
Section 8.01. Notice of Successor Owner Trustee.............................. 30
Section 8.02. Resignation of Indenture Trustee; Appointment of
Successor...................................................... 30
Article IX. Supplements and Amendments to this Indenture and Other Documents.................... 32
Section 9.01. Supplemental Indentures without Consent of
Holders........................................................ 32
Section 9.02. Indenture Trustee Protected.................................... 33
Section 9.03. Request of Substance, Not Form................................. 33
Section 9.04. Documents Mailed to Holders.................................... 33
Section 9.05. Amendments, Waivers, Etc. of Other Documents................... 34
Article X. Miscellaneous....................................................................... 36
Section 10.01. Termination of Indenture....................................... 36
Section 10.02. No Legal Title to Indenture Estate in Holders.................. 37
Section 10.03. Sale of Equipment by Indenture Trustee is
Binding........................................................ 37
Section 10.04. Remedies Cumulative............................................ 37
Section 10.05. Discontinuance of Proceedings.................................. 37
Section 10.06. Indenture Trustee, Owner Participant and
Holders Only Indenture and Equipment Notes for
Benefit of Owner Trustee,...................................... 37
Section 10.07. Notices........................................................ 38
Section 10.08. Severability................................................... 39
Section 10.09. Separate Counterparts.......................................... 39
Section 10.10. Successors and Assigns......................................... 39
ii
Section 10.11. Headings........................................................ 40
Section 10.12. Governing Law................................................... 40
Section 10.13. Normal Commercial Relations..................................... 40
Section 10.14. No Recourse Against Others...................................... 40
EXHIBIT A- Form of Trust Indenture Supplement
EXHIBIT B- Terms of Equipment Notes
EXHIBIT C- Loan Participants
APPENDIX A- Definitions
ANNEX A- Amortization Schedule
iii
TRUST INDENTURE AND SECURITY AGREEMENT
(GATX Rail Trust No. 2000-2)
This TRUST INDENTURE AND SECURITY AGREEMENT (GATX Rail Trust No. 2000-
2) dated as of April 3, 2000 (this "Indenture"), between Wilmington Trust
---------
Company, not in its individual capacity except as expressly provided in Section
6.03 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 Bank
-------------
One, NA, 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 for the issuance by the Owner
Trustee of the Equipment Notes, 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 premium, if any, on and all other amounts due with respect to, the Equipment
Notes 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 the Equipment Notes all for the benefit of the holders of the Equipment
Notes, 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 by the Loan Participant,
the Owner Trustee does hereby sell, assign, transfer, convey, mortgage, pledge,
and confirm unto the Indenture Trustee, its successors and assigns, for the
security and benefit of the holders of the Equipment Notes from time to time, a
first priority 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,
1
TRUST INDENTURE AND SECURITY AGREEMENT (GATX Rail Trust No. 2000-2)
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 and prosecute an action at law to obtain such
Excepted Property and (B) to adjust Basic Rent, the percentages relating to
Stipulated Loss Value and Termination Value and the Early Purchase Price
and the Basic Term Purchase Price as provided in Section 3.4 of the Lease
and Section 2.6 of the Participation Agreement; and
(ii) the Owner Trustee and the Indenture Trustee shall each retain
the right to receive from 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
2
(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.
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 the Equipment Notes from time to time, without any
priority of any one Equipment Note 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.
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), to ask, require, demand, receive,
compound and give acquittance for any and 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 (other than Excepted
Property) 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
3
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.
----------
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.
Article II.
The Equipment Notes
Section 2.01. Form of Equipment Notes. The Equipment Notes shall be
-----------------------
substantially in the form set forth below:
8.10% EQUIPMENT NOTE
(Secured by, among others, Lease Obligations of
GATX Rail Corporation)
GATX Rail Trust No. 2000-2 Series [I/II/III/IV]
Issued in Connection with certain Railroad Rolling Stock
No. ______ Chicago, Illinois
April __, 2000
$________________
4
Wilmington Trust Company, not in its individual capacity, but solely
as owner trustee (herein in such capacity called the "Owner Trustee") under that
-------------
certain Trust Agreement (GATX Rail Trust No. 2000-2), dated as of April 3, 2000,
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 Bank One, NA, as Pass Through Trustee, or its registered assigns, the
principal sum of $_____________________________ (or such lesser amount as shall
equal the unpaid principal amount of this Equipment Note), in lawful currency of
the United States of America, in installments payable on the dates set forth in
Exhibit A hereto, commencing July 13, 2002 and thereafter to and including
---------
January 13, 2020 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 each
January 13 and July 13, commencing July 13, 2000, to the maturity date hereof at
the rate of 8.10% 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 10.10% 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 premium, if any, to be made
hereunder and under the Trust Indenture and Security Agreement (GATX Rail Trust
No. 2000-2), dated as of April 3, 2000 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 Bank, One, NA, 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
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, premium, 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
5
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 premium 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 premium as provided
in Section 4.04(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 UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY OTHER
JURISDICTION AND MAY NOT BE TRANSFERRED IN VIOLATION OF SUCH ACT OR ANY SUCH
APPLICABLE LAWS. THIS EQUIPMENT NOTE 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, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
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.
6
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.
WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee
By:_____________________________
[FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Equipment Notes referred to in the within-mentioned
Indenture.
BANK ONE, NA,
as Indenture Trustee
By:_____________________________
Authorized Officer
[Insert the related Amortization Schedule from Annex A]
7
Section 2.02. Terms of Equipment Notes. There shall be issued and
------------------------
delivered to the Loan Participant one Equipment Note of the relevant Series for
each Lease Supplement executed and delivered in respect of the Units delivered
on the Closing Date in the maturity, principal amount and bearing the interest
rate as set forth for such Series in Exhibit B hereto, and the Equipment Notes
---------
related to each such Lease Supplement shall be 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. Each such Equipment Note shall evidence the
loan made by the Loan Participant in connection with the purchase of such Units
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 Closing Date of the Equipment, 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 for the relevant Series.
-------
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 of any one Series which may be
outstanding at any one time shall be limited to the aggregate amount of such
Series set forth in Exhibit B hereto. The aggregate principal amount of all
---------
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. All payments to be
----------------------------------
made under the Equipment Notes and this Indenture 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 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.
8
Section 2.04. Method of Payment. (a) The principal of and premium, 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 premium, 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 premium 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 of any Series 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 administration office of the Indenture Trustee, together with a written
request from such holder for the issuance of a new
9
Equipment Note or Equipment Notes of such Series, 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 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 of any Series 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 such 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
10
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 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 of any Series
-----------
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 a Determination 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 of the relevant Basic
Group 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) a premium in an amount equal to 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 of any Series shall be prepaid in whole or in
part by the Owner Trustee on a Rent Payment Date upon at least 25 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 or the deemed
occurrence of an Event of Loss pursuant to Section 9.1 of the Lease 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 15 or more Units on a Determination Date
pursuant to Section 11.2 of the Lease, such prepayment shall be made on such
Determination 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 of the relevant Basic Group 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
11
application of any Basic Rent paid on or prior to the date of such prepayment,
but without the payment of any Make-Whole Amount or other premium.
(c) Unless Lessee shall have elected pursuant to Section 6.9 of the
Participation Agreement or Section 22.1 of the Lease to assume all of the rights
and obligations of the Owner Trustee under this Indenture in respect of the
Equipment Notes of any Series, each Equipment Note of such Series shall be
prepaid in whole or in part by the Owner Trustee on the Determination Date
specified by Lessee to Owner Trustee and Indenture Trustee in accordance with
Section 6.9 of the Participation Agreement or Section 22.1 of the Lease, as the
case may be, in the event that Lessee exercises a purchase option under Section
6.9 of the Participation Agreement or Section 22.1 of the Lease, as the case may
be, with respect to any Unit or Units related to such Equipment Note, 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 date of any prepayment under Section 6.9 of the Participation
Agreement or Section 22.1 of the Lease, as the case may be (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 of the relevant Basic Group 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 prepayment after giving effect to the
application of any Basic Rent paid on or prior to the date of such prepayment,
and (iii) a premium in an amount equal to the aggregate 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) On the Refunding Date specified by the Lessee 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, a premium in an amount equal to the Make-Whole Amount, if any.
(e) The Indenture Trustee shall give prompt notice of any prepayment
of any Equipment Notes to all holders of the Equipment Notes as soon as the
Indenture Trustee shall have knowledge that such prepayment is expected 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 expected
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 at any time issued and outstanding hereunder
shall have the same rights, Liens and preferences under and by virtue of this
Indenture.
12
Article III.
Receipt, Distribution and Application of Income
from the Indenture Estate; Assumption of
Obligations of Owner Trustee by the Lessee
Section 3.01. Basic Rent Distribution. Except as otherwise provided
-----------------------
in Section 3.03 or 3.05, each installment of 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 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 to pay in full the aggregate amount of the
payment or payments of principal, premium, 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, premium, 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 through 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
13
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 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 4.02, 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 IV), 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 5.03 (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 premium, 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 4.02 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.
14
(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 6.04(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 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 premium, 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
premium, 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.
Section 3.06. Assumption of Obligations of Owner Trustee by the
-------------------------------------------------
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 on a full recourse basis in connection with the purchase by
the Lessee of Units pursuant to Section 6.9 of the Participation Agreement or
Section 22.1 of the Lease and, if on or prior to the applicable purchase date:
15
(a) The Lessee shall have delivered to the Indenture Trustee and the
Owner Trustee a certificate, dated the date of such purchase, of a Responsible
Officer of the Lessee stating that the 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 Indenture Default shall have occurred and be continuing
immediately subsequent to such purchase or assumption after giving effect to the
indenture supplement referred to below and the Indenture Trustee and the Owner
Trustee shall have received a certificate, dated the date of such purchase, of a
Responsible Officer of the Lessee to such effect;
(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 and the Owner Trustee shall have received an
opinion or opinions of counsel for the Lessee, dated the date of such purchase
which without unusual qualification and permitting reliance on proposed Treasury
Regulations shall be to the effect that, after giving effect to the indenture
supplement referred to below:
(i) this Indenture, the indenture supplement referred to below
and the Equipment Notes issued thereunder each constitutes the legal, valid
and binding obligation of the Lessee, enforceable against the Lessee in
accordance with their respective 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;
(ii) all filings and recordings and other action necessary or
appropriate to protect the interests of the Indenture Trustee in the Units
to be so purchased by the Lessee have been accomplished;
(iii) no holder of Equipment Notes will be required to recognize
gain or loss for tax purposes in connection with such assumption; and
(iv) covering such other matters as the Indenture Trustee shall
reasonably request that are customary for transactions of this type; and
(e) upon delivery of an indenture supplement giving effect to such
assumption reasonably satisfactory to the Indenture Trustee and execution and
delivery of Equipment Notes reflecting such assumption, each 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
16
the Equipment Notes and under this Indenture in respect of the Equipment Notes
or otherwise related to such Units (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. In the event that the affected Owner
Participant under Section 6.9 of the Participation Agreement holds less than
100% of the Beneficial Interest and the Lessee is therefore purchasing less than
all the Units pursuant to said Section 6.9 or the Lessee elects to purchase less
than all of the Units pursuant to Section 22.1 of the Lease, as the case may be,
the assumption by the Lessee of the rights and obligations of the Owner Trustee
under this Indenture in respect of that portion of the indebtedness evidenced by
the Equipment Notes which relates to such purchased Units shall be made on the
same terms and conditions as are described in clauses (a) through (e) above
except that (x) the opinion under clause (d) above shall be appropriately
modified to reflect such partial assumption of indebtedness, and (y) the
indenture supplement shall provide for a wholly new and separate indenture
between the Lessee and the Indenture Trustee for that portion of such
indebtedness evidenced by the Equipment Notes which is to be assumed by the
Lessee and secured by the Units to be purchased; and this Indenture shall
thereafter relate only to that portion of the indebtedness evidenced by the
Equipment Notes remaining outstanding under this Indenture after such
assumption. Any such new and separate indenture shall contain the same terms and
provisions of this Indenture with only such changes thereto which are necessary
to reflect the replacement of the Owner Trustee with the Lessee and which do not
adversely affect the rights of the holders of the Equipment Notes.
Article IV.
Remedies of the Indenture Trustee upon an Indenture Event of Default
Section 4.01. 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 4.04(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, premium, if any, or interest on, any Equipment Note or 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 any covenant or obligation of them or any of them, in this
Indenture or the Equipment Notes (other than as set forth in clause (b) above)
or in the Participation Agreement or by the Guarantor in the Guaranty, 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
17
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 or the
Owner Participant under the Participation Agreement, or by the Owner Trustee
hereunder or by the Guarantor in the Guaranty, or by any representative or
Affiliate of the Owner Trustee or the Owner Participant or the Guarantor 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), the Owner Participant or the Guarantor 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), the Owner Participant or the Guarantor 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), the Owner Participant or the
Guarantor, a receiver, trustee or liquidator of the Indenture Estate, the Owner
Trustee (as Owner Trustee and not in its individual capacity), the Owner
Participant or the Guarantor, 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), the Owner Participant or the Guarantor
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), the Owner Participant or the Guarantor, 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), the Owner
Participant or the Guarantor, 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), the Owner Participant or the
Guarantor 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; or
18
Notwithstanding any provision herein to the contrary, if an Indenture Event of
Default described in clause (e), (f), (g) or (h) of this Section 4.01 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 IV 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 4.02. 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
4.04, declare the unpaid principal amount of all Equipment Notes then
outstanding and accrued interest thereon to be due and payable, it being agreed
that no Make-Whole Amount or other premium should be payable in such event. 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 IV, 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 the
Equipment Notes, and the principal on any Equipment Notes that has 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 the Equipment Notes that have become due solely because of such acceleration,
have been cured or waived.
Section 4.03. 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 V hereof shall, subject to Sections 4.04 and 4.05, 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 IV 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.
(b) Subject to Section 4.04 and Section 4.05, the Indenture Trustee
may, if at the time such action may be lawful and always subject to compliance
with any mandatory legal requirements, either 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
19
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 4.02; provided further, that, in the event the circumstances
-------- -------
contemplated by Section 4.04(c) exist, the Indenture Trustee shall not be
allowed to deliver the notice required by this Section 4.03(b) (x) until the
earlier of (1) such time as such circumstances no longer exist or (2) the
expiration of the 90 day period set forth in Section 4.04(c) or (y) if the
circumstances contemplated by the second proviso of Section 4.04(c) then exist.
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 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 4.04 and Section 4.05, 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 4.04 and Section
4.05, take possession of and remove the Indenture Estate. Upon every such
taking of
20
possession, the Indenture 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 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 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.
21
Section 4.04. 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 of Default (other than arising from
such failure to pay Basic Rent or which is concurrently being cured pursuant to
this Section 4.04(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 IV), 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 4.04(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 IV), 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 (other than the payment of Basic Rent) 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 $3,000,000. Upon any cure by the Owner Participant or the Owner
Trustee in accordance with the first sentence of this Section 4.04(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 4.04(a) except by demanding of the Lessee
payment of such amount or by prosecuting an
22
action against the Lessee to require the payment of such amount; provided
--------
further, that with respect to any amounts advanced by and owing to the Owner
-------
Trustee and the Owner Participant, the Owner Trustee and the Owner Participant
shall be expressly subordinated to the right of the holders of the Equipment
Notes to receive any and all amounts then due and owing on the Equipment Notes
prior to any payment from the Lessee to the Owner Trustee or the Owner
Participant.
(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 accelerated
pursuant to Section 4.02, (ii) the Equipment Notes shall have been accelerated
pursuant to Section 4.02 or (iii) the Indenture Trustee, as assignee hereunder
of the Lease, shall have declared the Lease to be in default and shall have
commenced the exercise of any additional remedy in respect of the Units under
the Lease, then and in any such case, upon 30 days' notice (which notice shall
be irrevocable) from the Owner Trustee to the Indenture Trustee designating a
date of purchase (the "Purchase Date") which shall be a Determination Date, each
-------------
holder of an Equipment Note will be obligated to, 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 without any Make-
Whole Amount or other premium, 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. During such 30-day notice period, the Indenture Trustee shall
not exercise any of the rights, remedies or powers pursuant to Section 15 of the
Lease or this Article IV, so long as the Owner Participant (or any nominee of
the Owner Participant reasonably acceptable to the Indenture Trustee) has
notified the Indenture Trustee that the notice so provided by the Owner Trustee
or its nominee pursuant to this Section 4.04(b) constitutes the binding
obligation of the Owner Trustee or its nominee to purchase the Equipment Notes.
(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) 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
23
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 assumed the Lease 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, 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 and no Indenture Event of Default unrelated to a Lease Event
of Default occurring solely pursuant to Section 14(g) or 14(h) of the Lease
shall have occurred and be continuing, the Indenture Trustee shall refrain from
so foreclosing or exercising such other remedies hereunder. Nothing in this
Section 4.04(c) shall prevent the Indenture Trustee from foreclosing or
exercising such other remedies hereunder to the extent the Lessee fails to
comply with any provisions of any order issued in connection with the assumption
of the Lease.
Section 4.05. Rights of Lessee. Notwithstanding the provisions of
----------------
this Indenture, including, without limitation, Section 4.03, 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, 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 4.06. 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, premium, if any, or interest on any
Equipment Note, or (ii) in respect of a covenant or provision hereof which under
Article IX 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 V.
Duties of the Indenture Trustee
Section 5.01. Action upon Indenture Event of Default. If any
--------------------------------------
payments of Basic Rent or payments of the principal or interest or premium, 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, facsimile,
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
5.03, the Indenture Trustee shall take such action, or
24
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 5.01 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 10 Business Days after
the same shall have become due, unless the 10-Day Period within which, pursuant
to Section 4.04(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 10 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 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 5.02. Action upon Instructions. Subject to the terms of
------------------------
Sections 5.01 and 5.03, 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 premium, 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
25
(in due form for recording) furnished by the Owner Trustee or the Lessee
releasing such property from the Lien of this Indenture.
Section 5.03. Indemnification.
---------------
(a) The Indenture Trustee shall not be required to take any action or
refrain from taking any action under Section 5.01 (other than the first two
sentences thereof) or 5.02 or Article IV 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 5.01 or 5.02 or Article IV, 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 5.03. Each Loan Participant so participating shall
be entitled to reimbursement for such participation in accordance with Article
III.
Section 5.04. 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 received pursuant to
the terms of Section 5.01 or 5.02; 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 5.05. 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 5.01 or 5.02.
26
Section 5.06. 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 5.07. 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 5.08. 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 5.09. Withholding Taxes. The Indenture Trustee, as agent for
-----------------
the Owner Trustee, shall exclude and withhold from each payment of principal,
premium, 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
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 the
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 appropriate
documentation showing the payment thereof, together with such additional
documentary evidence as such holders may reasonably request from time to time.
Section 5.10. 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 5.10.
27
Article VI.
The Owner Trustee and the Indenture Trustee
Section 6.01. 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 5.04; and the Owner Trustee shall not be liable for any
action or inaction of the Indenture Trustee and the Indenture Trustee shall not
be 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 6.02. Absence of Duties. Except in accordance with written
-----------------
instructions or requests furnished pursuant to Section 5.01 or Section 5.02 and
except as provided in, and without limiting the generality of, Section 5.04, 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 6.03. 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.
28
Section 6.04. No Segregation of Moneys; No Interest; Investments.
--------------------------------------------------
(a) Subject to Section 6.04(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, 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 6.05. 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
29
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 6.06. 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.
Article VII.
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 4.03 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 VII.
Successor Trustees
Section 8.01. 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 8.02. 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 8.02. 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
30
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
8.02(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 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.
31
Article IX.
Supplements and Amendments to this Indenture and Other Documents
Section 9.01. 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 Equipment Notes contained, or to evidence
(in accordance with Article VIII) the succession of a new Indenture Trustee
hereunder; or
(ii) to add to the covenants of the Owner Trustee, for the
benefit of the holders 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 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 the first sentence of Section 4.03(a) or Section 4.05 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 9.02 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 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:
32
(1) 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, premium, if any, or interest on any Equipment Note, or reduce
the principal amount thereof or the premium, 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 premium,
if any, or interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment of principal or premium, if
any, or interest on or after the date such principal or premium, 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 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
(4) modify any provisions of this Section 9.01(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 the first sentence of Section 4.03(a) or Section 4.05 be
so altered or modified without such Lessee consent.
Section 9.02. Indenture Trustee Protected. If in the opinion of the
---------------------------
Indenture Trustee any document required to be executed pursuant to the terms of
Section 9.01 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 9.03. Request of Substance, Not Form. It shall not be
------------------------------
necessary for the consent of the holders of Equipment Notes under Section
9.01(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 9.04. Documents Mailed to Holders. Promptly after the
---------------------------
execution by the Indenture Trustee of any document entered into pursuant to
Section 9.01(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.
33
Section 9.05. Amendments, Waivers, Etc. of Other Documents.
--------------------------------------------
(a) Notwithstanding any provision of this Indenture to the contrary,
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 under any of such agreements, 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 9.05 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 9.05,
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, 3.6 (except insofar as it relates to the address or account
information of the Owner Trustee or Indenture Trustee) (other than as such
Sections 3.1 through 3.4 and 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 (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; provided, further, that,
-------- -------
subject to the Indenture Trustee's rights to exercise remedies under
Section 15 of the Lease without the
34
prior consent of the Owner Trustee, and whether or not an Indenture Event
of Default shall have occurred and be continuing, no such modification,
amendment or supplement of the Lease or other action referred to in the
preceding proviso shall be taken without the prior written consent of the
Owner Trustee with respect to any of the provisions of Sections 3, 4, 5, 6,
7, 8, 9, 10, 11, 12 (with respect to insurance coverage of the interests of
the Owner Trustee and the Owner Participant), 13, 14, 15 (in respect of the
obligation to pay and the measure of money damages), 16 (with respect to
filings or recordings benefiting the Owner Trustee or the Owner
Participant), 17, 18, 19, 20, 22, 23, 25.1 and 25.5 of the Lease 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 pursuant to this proviso;
(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 the
Equipment Notes.
35
(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 9.05, 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 the 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 the 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.
Article X.
Miscellaneous
Section 10.01. 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, and (iii) 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 the Equipment Notes
hereunder and under such Equipment Notes and under the Participation Agreement.
36
Section 10.02. 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 10.03. 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 the
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 10.04. 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 10.05. 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 10.06. 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 the
Equipment Notes any legal or equitable right, remedy or claim under or in
respect of this Indenture or any Equipment Note.
37
Section 10.07. Notices.
-------
Unless otherwise expressly specified or permitted by the terms hereof,
all communications and notices provided for herein shall be in writing or by
facsimile capable of creating a written record, and any such notice shall become
effective (i) upon personal delivery thereof, including, without limitation, by
overnight mail or courier service, (ii) in the case of notice by United States
mail, certified or registered, postage prepaid, return receipt requested, upon
receipt thereof, or (iii) in the case of notice by such facsimile, upon
confirmation of receipt thereof, provided such transmission is promptly further
confirmed in writing by either of the methods set forth in clause (i) or (ii),
in each case addressed to the following Person at its respective address set
forth below or at such other address as such Person may from time to time
designate by written notice to the other Persons listed below:
If to the Owner Trustee: Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust
Administration
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to Owner Participant.
If to Owner Participant: With copies to:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
38
If to the Indenture Bank One, NA
Trustee: 1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust
Services Division
(GATX Rail Trust No. 2000-2)
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Lessee: GATX Rail Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
(GATX Trust Rail No. 2000-2)
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Loan At such address as is set forth on
Participant: 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.
Notwithstanding the foregoing provisions, for purposes of Sections
4.01, 4.02, 4.04, 5.01 and 5.02, 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 10.08 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 10.09 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 10.10 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
39
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 10.11 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 10.12 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.
Section 10.13 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 10.14 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 the Equipment Notes by accepting
an Equipment Note waives and releases all such liability. The waiver and
release are part of the consideration of the Equipment Notes.
* * *
40
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, as of the day and year first above written.
BANK ONE, NA,
as Indenture Trustee
By:______________________________
Name:____________________________
Title:___________________________
WILMINGTON TRUST COMPANY,
not in its individual capacity
except as expressly provided in
Section 6.03 hereof but solely as
Owner Trustee
By:______________________________
Name:____________________________
Title:___________________________
41
EXHIBIT A
TRUST INDENTURE SUPPLEMENT NO._
(GATX Rail Trust No. 2000-2)
This Indenture Supplement No. __ (GATX Rail Trust No. 2000-2), dated ______
____, ______ (this "Indenture Supplement"), of Wilmington Trust Company, a
--------------------
Delaware corporation, not in its individual capacity except as expressly
provided herein but solely as owner trustee (the "Owner Trustee") under the
-------------
Trust Agreement (GATX Rail Trust No. 2000-2), dated as of April 3, 2000 (the
"Trust Agreement"), between the Owner Trustee in its individual capacity and
---------------
, as Owner Participant;
WITNESSETH:
WHEREAS, the Trust Indenture and Security Agreement (GATX Rail Trust No.
2000-2) dated as of April 3, 2000 (the "Indenture"), between the Owner Trustee
---------
and Bank One, NA 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 Equipment 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 premium, 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
A-1
Equipment Notes and for the uses and purposes and subject to the terms and
provisions set forth in the Indenture.
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, as of the day and
year first above written.
WILMINGTON TRUST COMPANY,
not in its individual capacity
except as expressly provided
herein but solely as Owner Trustee
By:___________________________________
Name:_________________________________
Title:________________________________
A-3
EXHIBIT B
Terms of Equipment Notes
------------------------
Interest Rate After
Series Principal Amount Interest Rate Maturity Final Maturity
-------------- ---------------- -------------- -------------------- ----------------
Series I $ 9,222,000 8.10% 10.10% January 13, 2020
Series II $21,460,000 8.10% 10.10% January 13, 2020
Series III $10,144,000 8.10% 10.10% January 13, 2020
Series IV $17,284,000 8.10% 10.10% January 13, 2020
EXHIBIT C
Loan Participant
----------------
Percentage of
Equipment Notes Loan Participant Principal Amount
----------------- ---------------------------------------- -----------------
Equipment Notes Bank One, NA, as Trustee under the Pass 100%
Through Trust Agreement, dated as of
April 3, 2000 between Bank One, NA and
GATX Rail Corporation, as supplemented
by Trust Supplement No. 1 thereto dated
April 3, 2000.
ANNEX A
-------
Amortization Schedule
8.10% Equipment Note
2000-2
Series I
Percentage of Remaining Principal
Payment Date Balance Payment (1)
------------ ---------------------------------
Apr 13 2000 0.0000000%
Jul 13 2000 0.0000000%
Jan 13 2001 0.0000000%
Jul 13 2001 0.0000000%
Jan 13 2002 0.0000000%
Jul 13 2002 1.3873378%
Jan 13 2003 2.5699276%
Jul 13 2003 2.6231419%
Jan 13 2004 2.7087698%
Jul 13 2004 2.7841871%
Jan 13 2005 2.8639241%
Jul 13 2005 2.9483629%
Jan 13 2006 3.0379322%
Jul 13 2006 3.1331141%
Jan 13 2007 3.2165833%
Jul 13 2007 3.3419498%
Jan 13 2008 3.4574976%
Jul 13 2008 3.5813217%
Jan 13 2009 7.4286887%
Jul 13 2009 0.0000000%
Jan 13 2010 8.0026602%
Jul 13 2010 0.0000000%
Jan 13 2011 8.7228916%
Jul 13 2011 0.0000000%
Jan 13 2012 9.5564942%
Jul 13 2012 0.0000000%
Jan 13 2013 10.5662581%
Jul 13 2013 0.0000000%
Jan 13 2014 11.7819844%
Jul 13 2014 0.0000000%
Jan 13 2015 21.7339732%
Jul 13 2015 0.0000000%
Jan 13 2016 32.9662311%
Jul 13 2016 0.0000000%
Jan 13 2017 0.0000000%
Jul 13 2017 0.0000000%
Jan 13 2018 15.0213606%
Jul 13 2018 0.0000000%
Jan 13 2019 64.2493611%
Jul 13 2019 0.0000000%
Jan 13 2020 100.0000000%
(1) The Percentage should be applied to the remaining principal balance of the
Equipment Note after giving effect to prepayment, if any, to be made on the
Payment Date.
(1)
ANNEX A
-------
Amortization Schedule
8.10% Equipment Note
2000-2
Series II
Percentage of Remaining Principal
Payment Date Balance Payment (1)
------------ ---------------------------------
Apr 13 2000 0.0000000%
Jul 13 2000 0.0000000%
Jan 13 2001 0.0000000%
Jul 13 2001 0.0000000%
Jan 13 2002 0.0000000%
Jul 13 2002 1.3193217%
Jan 13 2003 2.5743138%
Jul 13 2003 2.6277372%
Jan 13 2004 2.7136432%
Jul 13 2004 2.7739251%
Jan 13 2005 2.8689174%
Jul 13 2005 2.9373368%
Jan 13 2006 3.0430397%
Jul 13 2006 3.1212069%
Jan 13 2007 3.2396635%
Jul 13 2007 3.3296337%
Jan 13 2008 3.4634520%
Jul 13 2008 3.5678890%
Jan 13 2009 3.7204522%
Jul 13 2009 3.8642186%
Jan 13 2010 3.9973351%
Jul 13 2010 4.1869073%
Jan 13 2011 4.3457267%
Jul 13 2011 4.5683998%
Jan 13 2012 4.9502263%
Jul 13 2012 4.8369524%
Jan 13 2013 10.5555556%
Jul 13 2013 0.0000000%
Jan 13 2014 11.8012423%
Jul 13 2014 0.0000000%
Jan 13 2015 13.3802817%
Jul 13 2015 0.0000000%
Jan 13 2016 15.4471545%
Jul 13 2016 0.0000000%
Jan 13 2017 35.5411221%
Jul 13 2017 0.0000000%
Jan 13 2018 5.6370013%
Jul 13 2018 0.0000000%
Jan 13 2019 64.2493612%
Jul 13 2019 0.0000000%
Jan 13 2020 100.0000000%
(1) The Percentage should be applied to the remaining principal balance of the
Equipment Note after giving effect to prepayment, if any, to be made on the
Payment Date.
(2)
ANNEX A
-------
Amortization Schedule
8.10% Equipment Note
2000-2
Series III
Percentage of Remaining Principal
Payment Date Balance Payment (1)
------------ ---------------------------------
Apr 13 2000 0.0000000%
Jul 13 2000 0.0000000%
Jan 13 2001 0.0000000%
Jul 13 2001 0.0000000%
Jan 13 2002 0.0000000%
Jul 13 2002 0.9506578%
Jan 13 2003 2.3876404%
Jul 13 2003 2.4460431%
Jan 13 2004 2.4926254%
Jul 13 2004 2.5714718%
Jan 13 2005 2.6393417%
Jul 13 2005 2.7108914%
Jan 13 2006 2.7700377%
Jul 13 2006 2.8658125%
Jan 13 2007 2.9503644%
Jul 13 2007 3.0400572%
Jan 13 2008 3.1169310%
Jul 13 2008 3.2362459%
Jan 13 2009 3.3444816%
Jul 13 2009 3.4602076%
Jan 13 2010 7.1473751%
Jul 13 2010 0.0000000%
Jan 13 2011 7.7202544%
Jul 13 2011 0.0000000%
Jan 13 2012 11.7489332%
Jul 13 2012 0.0000000%
Jan 13 2013 16.0426849%
Jul 13 2013 0.0000000%
Jan 13 2014 20.7212341%
Jul 13 2014 0.0000000%
Jan 13 2015 28.3436541%
Jul 13 2015 0.0000000%
Jan 13 2016 42.8941718%
Jul 13 2016 0.0000000%
Jan 13 2017 0.0000000%
Jul 13 2017 0.0000000%
Jan 13 2018 0.0000000%
Jul 13 2018 0.0000000%
Jan 13 2019 55.7876298%
Jul 13 2019 0.0000000%
Jan 13 2020 100.0000000%
(1) The Percentage should be applied to the remaining principal balance of the
Equipment Note after giving effect to prepayment, if any, to be made on the
Payment Date.
(3)
ANNEX A
-------
Amortization Schedule
8.10% Equipment Note
2000-2
Series IV
Percentage of Remaining Principal
Payment Date Balance Payment (1)
------------ ---------------------------------
Apr 13 2000 0.0000000%
Jul 13 2000 0.0000000%
Jan 13 2001 0.0000000%
Jul 13 2001 0.0000000%
Jan 13 2002 0.0000000%
Jul 13 2002 1.1580939%
Jan 13 2003 2.3947035%
Jul 13 2003 2.4390244%
Jan 13 2004 2.5000000%
Jul 13 2004 2.5641026%
Jan 13 2005 2.6471504%
Jul 13 2005 2.7031350%
Jan 13 2006 2.7782344%
Jul 13 2006 2.8576260%
Jan 13 2007 2.9590948%
Jul 13 2007 3.0313901%
Jan 13 2008 3.1261561%
Jul 13 2008 3.2270384%
Jan 13 2009 3.3346488%
Jul 13 2009 3.4700959%
Jan 13 2010 7.1473885%
Jul 13 2010 0.0000000%
Jan 13 2011 7.7203370%
Jul 13 2011 0.0000000%
Jan 13 2012 10.0944652%
Jul 13 2012 0.0000000%
Jan 13 2013 15.5209992%
Jul 13 2013 0.0000000%
Jan 13 2014 19.9236090%
Jul 13 2014 0.0000000%
Jan 13 2015 26.9811605%
Jul 13 2015 0.0000000%
Jan 13 2016 40.0703195%
Jul 13 2016 0.0000000%
Jan 13 2017 0.0000000%
Jul 13 2017 0.0000000%
Jan 13 2018 0.0000000%
Jul 13 2018 0.0000000%
Jan 13 2019 60.1882953%
Jul 13 2019 0.0000000%
Jan 13 2020 100.0000000%
(1) The Percentage should be applied to the remaining principal balance of the
Equipment Note after giving effect to prepayment, if any, to be made on the
Payment Date.
(4)