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Exhibit 4(c)(1)
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UNION TANK CAR COMPANY
EQUIPMENT TRUST
SERIES __
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EQUIPMENT TRUST AGREEMENT
Dated ____________
Between
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
Trustee,
and
UNION TANK CAR COMPANY
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Filed with the Surface Transportation Board of the Department of
Transportation pursuant to 49 U.S.C. Section 11301 on ______ __, _____, at
[________ a.m./p.m.], recordation number _________, and deposited in the Office
of the Registrar General of Canada pursuant to ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
(▇▇▇▇▇▇) on _______ __, ____, at [________ a.m./p.m.]
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TABLE OF CONTENTS*
ARTICLE ONE Definitions . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . 6
ARTICLE TWO Trust Certificates and Issuance;
Interests Represented and Maturity . . . . . . . . . . . 9
SECTION 2.01. Issuance of Trust Certificates . . . . . . . . . 9
SECTION 2.02. Interests Represented by Trust
Certificates; Interest Payments;
Maturity . . . . . . . . . . . . . . . . . . . 10
SECTION 2.03. Form, Execution and Characteristics
of Trust Certificates . . . . . . . . . . . . . 10
SECTION 2.04. Replacement of Lost Trust Certificates . . . . . 11
ARTICLE THREE Acquisition of Trust Equipment by
Trustee: Deposited Cash . . . . . . . . . . . . . . . . 12
SECTION 3.01. Acquisition of Equipment by Trustee . . . . . . . 12
SECTION 3.02. Payment of Deposited Cash . . . . . . . . . . . . 13
SECTION 3.03. Payment of Deficiency . . . . . . . . . . . . . . 13
SECTION 3.04. Supporting Papers . . . . . . . . . . . . . . . . 13
ARTICLE FOUR Lease of Trust Equipment to the Company . . . . . . . . . 14
SECTION 4.01. Lease of Trust Equipment to the Company . . . . . 14
SECTION 4.02. Equipment Automatically Subjected . . . . . . . . 14
SECTION 4.03. Additional and Substituted Equipment
Subject Hereto . . . . . . . . . . . . . . . . 14
SECTION 4.04. Rental Payments . . . . . . . . . . . . . . . . . 15
SECTION 4.05. Termination of Trust . . . . . . . . . . . . . . 16
SECTION 4.06. Indemnity . . . . . . . . . . . . . . . . . . . . 17
SECTION 4.07. Substitution and Replacement of
Trust Equipment . . . . . . . . . . . . . . . . 17
SECTION 4.08. Maintenance of Trust Equipment;
Casualty Occurrences . . . . . . . . . . . . . 19
__________________________________
* This Table of Contents has been included in the document for
convenience only and does not form a part of, or affect any
construction or interpretation of, this document.
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SECTION 4.09. Possession of Trust Equipment . . . . . . . . . . 20
SECTION 4.10. Marking of Trust Equipment . . . . . . . . . . . 21
ARTICLE FIVE Events of Default and Remedies . . . . . . . . . . . . . . 21
SECTION 5.01. Events of Default . . . . . . . . . . . . . . . . 21
SECTION 5.02. Remedies . . . . . . . . . . . . . . . . . . . . 24
SECTION 5.03. Application of Proceeds . . . . . . . . . . . . . 25
SECTION 5.04. Waivers of Default . . . . . . . . . . . . . . . 25
SECTION 5.05. Obligations of Company Not Affected
by Remedies . . . . . . . . . . . . . . . . . . 26
SECTION 5.06. Company To Deliver Trust Equipment
to Trustee . . . . . . . . . . . . . . . . . . 26
SECTION 5.07. Trustee To Give Notice of Default . . . . . . . . 26
SECTION 5.08. Control by Holders of Trust
Certificates . . . . . . . . . . . . . . . . . 27
SECTION 5.09. Limitations on Suits by Holders of
Trust Certificates . . . . . . . . . . . . . . 27
SECTION 5.10. Unconditional Right of Holders of
Trust Certificates To ▇▇▇ for
Principal and Interest . . . . . . . . . . . . 27
SECTION 5.11. Remedies Cumulative; Subject to
Mandatory Requirements of Law . . . . . . . . . 27
ARTICLE SIX Additional Agreements by the Company . . . . . . . . . . . 28
SECTION 6.01. Guarantee of the Company . . . . . . . . . . . . 28
SECTION 6.02. Discharge of Liens . . . . . . . . . . . . . . . 28
SECTION 6.03. Further Assurances . . . . . . . . . . . . . . . 29
SECTION 6.04. Payment of Expenses; Recording . . . . . . . . . 29
ARTICLE SEVEN Concerning the Holders of Trust Certificates . . . . . . . 30
SECTION 7.01. Evidence of Action Taken by Holders
of Trust Certificates . . . . . . . . . . . . . 30
SECTION 7.02. Proof of Execution of Instruments and
of Holding of Trust Certificates . . . . . . . 30
SECTION 7.03. Trust Certificates Owned by Company . . . . . . . 30
SECTION 7.04. Right of Revocation of Action Taken . . . . . . . 30
SECTION 7.05. Amendment or Waiver . . . . . . . . . . . . . . . 31
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ARTICLE EIGHT The Trustee . . . . . . . . . . . . . . . . . . . . . . .31
SECTION 8.01. Acceptance of Trust . . . . . . . . . . . . . . .31
SECTION 8.02. Duties and Responsibilities of the
Trustee . . . . . . . . . . . . . . . . . . . .31
SECTION 8.03. Application of Rentals . . . . . . . . . . . . .32
SECTION 8.04. Funds May be Held by Trustee;
Investments . . . . . . . . . . . . . . . . . .33
SECTION 8.05. Trustee Not Liable for Delivery Delays
or Defects in Equipment or Title . . . . . . .34
SECTION 8.06. Resignation and Removal; Appointment
of Successor Trustee . . . . . . . . . . . . .34
SECTION 8.07. Acceptance of Appointment by Successor
Trustee . . . . . . . . . . . . . . . . . . . .35
SECTION 8.08. Merger or Consolidation of Trustee . . . . . . .35
SECTION 8.09. Return of Certain Moneys to Company . . . . . . .35
ARTICLE NINE Miscellaneous . . . . . . . . . . . . . . . . . . . . . .36
SECTION 9.01. Rights Confined to Parties and Holders . . . . .36
SECTION 9.02. No Recourse . . . . . . . . . . . . . . . . . . .36
SECTION 9.03. Binding Upon Assigns . . . . . . . . . . . . . .36
SECTION 9.04. Notices . . . . . . . . . . . . . . . . . . . . .36
SECTION 9.05. Effect of Headings: Date Executed;
and Governing Law . . . . . . . . . . . . . . .37
SECTION 9.06. Legal Holidays . . . . . . . . . . . . . . . . .37
SECTION 9.07. Counterparts . . . . . . . . . . . . . . . . . .37
SCHEDULE I - List of Equipment (initial closing)
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EQUIPMENT TRUST AGREEMENT dated _______ __, _____, between
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, solely in its capacity as Trustee, an Illinois
banking corporation (the "Trustee"), and UNION TANK CAR COMPANY, a Delaware
corporation (the "Company");
WHEREAS Union Tank Car Company Equipment Trust Certificates, Series __
(the "Trust Certificates"), are to be issued and sold from time to time, at a
price not less than their principal amount, in an aggregate principal amount
not exceeding $__________; and
WHEREAS the proceeds of the sale of the Trust Certificates together
with such other cash, if any, as may be required to be deposited by the Company
as hereinafter provided are to constitute a fund, to be known as Union Tank Car
Company Equipment Trust, Series __, to be applied by the Trustee from time to
time in part payment of the Cost (as hereinafter defined) of the Trust
Equipment (as hereinafter defined), the remainder of the Cost thereof to be
paid out of advance rentals to be paid by the Company as provided herein; and
WHEREAS title to such Trust Equipment is to be vested in and is to be
retained by the Trustee, and such Trust Equipment is to be leased to the
Company hereunder until title is transferred under the provisions hereof; and
WHEREAS the texts of the Trust Certificates and the guaranty to be
endorsed on the Trust Certificates by the Company are to be substantially in
the following form:
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[Form of Trust Certificate]
THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933
No. R-__________ $___________
UNION TANK CAR COMPANY
Equipment Trust Certificate, Series 26
Total Authorized Issue $
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
Trustee
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, as Trustee under an Equipment Trust
Agreement (the "Agreement") dated ________ __, _____, between ▇▇▇▇▇▇ TRUST AND
SAVINGS BANK, as Trustee (the "Trustee"), and Union Tank Car Company, a
Delaware corporation (the "Company"), hereby certifies that
or registered assigns is entitled to an interest in the principal amount of
Dollars ($ ) in Union Tank Car Company Equipment Trust, Series __,
due and payable on or before __________, ___, ___, and to interest on the amount
of unpaid principal from time to time due and owing pursuant to this Trust
Certificate from the date hereof at the rate of _____% per annum (and, if
applicable, the additional amounts that may become payable under Section 4.04
of the Agreement). Interest on this Trust Certificate shall be calculated on
the basis of a 360-day year of twelve 30-day months.
This Trust Certificate shall be payable as follows (unless payment is
hereof accelerated pursuant to Article Five of the Agreement): the outstanding
principal amount hereof shall be paid on [describe principal payments] and
interest payments on the outstanding principal shall be made [describe interest
payments] on ___________ and ____________ in each year commencing
_________, ___, ______. Interest on any overdue installment of interest and on
any overdue payment of principal, to the extent legally enforceable, shall be
payable at the rate per annum of 1% over the rate specified above. Payments of
principal and interest shall be made by the Trustee to the registered holder
hereof at the corporate trust office of the Trustee in ___________,
___________, in such coin or currency of the United States of America as, at
the time of payment, shall be legal tender for the payment of public and
private debts. Each of such payments shall be made only from and solely out of
rentals or other moneys received by the Trustee and applicable to such payment
under the provisions of the Agreement.
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This Trust Certificate is one of an authorized issue of Trust
Certificates in an aggregate principal amount not exceeding the Total
Authorized Issue set forth above, issued under the Agreement, pursuant to which
certain railroad equipment leased to the Company (or cash or obligations
defined in the Agreement as "Investments" in lieu thereof, as provided in the
Agreement) is held by the Trustee in trust for the equal and ratable benefit of
the registered holders of the Trust Certificates issued thereunder. Reference
is made to the Agreement (a copy of which is on file with the Trustee at its
corporate trust office) for a more complete statement of the terms and
provisions thereof, to all of which the registered holder hereof, by accepting
this Trust Certificate, assents.
This Trust Certificate is transferable in whole or in part by the
registered holder hereof in person or by its duly authorized attorney upon
presentment hereof for registration of transfer to the Trustee at its said
office accompanied by an appropriate instrument of assignment and transfer,
duly executed by the registered holder in person or by such attorney, in form
satisfactory to the Trustee, and thereupon a new fully registered Trust
Certificate or Certificates of the same maturity in authorized denominations
for the then aggregate unpaid principal amount hereof will be issued in the
name of such person or persons as may be designated by such holder. Prior to
due presentment for registration of transfer, the Trustee and the Company may
deem and treat the person in whose name this Trust Certificate is registered as
the absolute owner hereof for the purpose of receiving payment of principal and
interest and for all other purposes and shall not be affected by any notice to
the contrary.
In case of the happening of an Event of Default (as defined in the
Agreement) the principal amount represented by this Trust Certificate may
become or be declared due and payable in the manner and with the effect
provided in the Agreement.
This Trust Certificate shall not be deemed a promise to pay of
▇▇▇▇▇▇ Trust and Savings Bank in its individual capacity and payment by ▇▇▇▇▇▇
Trust and Savings Bank shall be made as Trustee only from and solely out of
rentals or other moneys received by the Trustee and applicable to such payment
and the provisions of this Agreement.
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IN WITNESS WHEREOF, the Trustee has caused this Trust Certificate to
be signed by one of its duly authorized officers, by his/her signature or a
facsimile thereof, and its corporate seal or a facsimile thereof to be hereunto
affixed or imprinted hereon and to be attested by one of its duly authorized
officers, by his/her signature. Neither this Trust Certificate nor the
guaranty endorsed hereon shall be valid or enforceable for any purpose until
this Trust Certificate shall have been so signed by a duly authorized officer
and the corporate seal so attested by such duly authorized officer.
Dated ,
▇▇▇▇▇▇ Trust and Savings Bank, as
Trustee
By
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Authorized Officer
[Corporate Seal]
Attest:
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Authorized Officer
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UNION TANK CAR COMPANY, for valuable consideration, hereby
unconditionally and irrevocably guarantees to the registered holder of the
within Trust Certificate the prompt payment when due of the principal of said
Trust Certificate and of the interest thereon specified in said Trust
Certificate, with interest on any overdue principal and on any overdue
interest, to the extent legally enforceable, at the rate specified in such
Trust Certificate, all in accordance with the terms of said Trust Certificate
and the Equipment Trust Agreement referred to therein.
UNION TANK CAR COMPANY
By
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WHEREAS it is desired to secure to the holders of the Trust
Certificates the payment of the principal thereof when due, whether by
declaration or otherwise, and interest thereon as hereinafter provided;
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, the parties hereto hereby agree as follows:
ARTICLE ONE
Definitions
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SECTION 1.01. Definitions. The following terms (except as
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Agreement shall have the respective meanings hereinafter
specified:
Affiliate of any corporation shall mean any corporation which,
directly or indirectly, controls or is controlled by, or is under
common control with, such corporation. For the purposes of this
definition, control (including controlled by and under common control
with), as used with respect to any corporation, shall mean the
possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such corporation,
whether through the ownership of voting securities or by contract or
otherwise.
Business Day shall mean any day, other than a Saturday or
Sunday or a day on which commercial banking institutions or trust
companies are authorized or required by law, regulation or executive
order to be closed in New York, New York or Chicago, Illinois or, so
long as any Trust Certificate is outstanding, a city and state in
which the Corporate Trust Office of the Trustee is located.
Company shall mean Union Tank Car Company, a Delaware
corporation (whose chief place of business and chief executive office
is currently located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
60606), and any successor or successors to it complying with the
provisions of Section 4.09.
Corporate Trust Office shall mean the principal office of the
Trustee, at which the corporate trust business of the Trustee shall,
at the time in question, be administered, which office is, on the date
of execution of this Agreement, located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Cost, when used in respect of Equipment not built by the
Company or any Affiliate of the Company, shall mean the actual cost
thereof to the Company and, in respect of Equipment built by the
Company or any such Affiliate, shall mean an amount
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not in excess of "car builder's cost", including direct cost of labor,
material and overhead and, in certain circumstances, a nominal
manufacturing profit.
Default shall mean
(1) any Event of Default; and
(2) any event which, with the giving of notice or the
passage of time or both, could constitute an Event of Default.
The Company shall be considered to "be in Default" if a Default shall
have occurred and be continuing.
Deposited Cash shall mean the aggregate of (a) the proceeds
from the sale of the Trust Certificates deposited with the Trustee
pursuant to Section 2.01 and, when required or indicated by the
context, any Investments purchased by the use of such proceeds
pursuant to the provisions of Section 8.04, and (b) any sums restored
to Deposited Cash from rentals pursuant to Section 4.04(B)(l)(b) and
on deposit with the Trustee.
Engineer's Certificate shall mean a certificate signed by a
person appointed by the Company who shall be an engineer, appraiser or
other expert, as the case may require. Such person may be an officer
or employee of the Company except where this Agreement specifically
requires the signature of an independent engineer, appraiser or other
expert.
Equipment shall mean standard-gauge railroad tank cars and
covered ▇▇▇▇▇▇ cars, which tank cars and covered ▇▇▇▇▇▇ cars are
rolling stock used or intended for use in connection with interstate
commerce and which were first put into use on or after __________,
199_; provided, however, in the case of Equipment sold to the Trustee
pursuant to Section 4.07, it shall not include any railroad equipment
first put into use prior to __________.
Event of Default shall mean any event specified in Section
5.01 to be an Event of Default.
The word "holder", when used with respect to Trust
Certificates, shall include the plural as well as the singular number.
Independent Engineer shall mean an engineer, appraiser or
other expert appointed by the Company and approved by the Trustee in
the exercise of reasonable care, who (a) is in fact independent, (b)
does not have any substantial interest, direct or indirect, in the
Company or in any other obligor on the Trust Certificates or in any
Affiliate of the Company or any such other obligor and (c) is not
connected with the Company or any other obligor on the Trust
Certificates or any Affiliate of the Company or any such other
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obligor as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
Investments shall mean (a) bonds, notes or other direct
obligations of the United States of America or obligations for which
the full faith and credit of the United States is pledged to provide
for the payment of the interest and principal and which mature within
one year of the date of purchase, (b) open market commercial paper of
any company incorporated and doing business under the laws of the
United States of America or one of the States thereof given a rating
of "A-1" by Standard & Poor's Corporation or "prime-1" or better by
NCO/Moody's Commercial Paper Division of ▇▇▇▇▇'▇ Investors Service,
Inc. or an equivalent rating by a successor thereto or a similar
nationally recognized rating service substituted therefor, (c)
certificates of deposit or time deposits in banks or trust companies,
including the Trustee, incorporated and doing business under the laws
of the United States of America or one of the States thereof having a
capital and surplus aggregating at least $250,000,000 and (d) The
First National Bank of Chicago Corporate Trust Short Term Investment
Fund, so long as the shares of such fund are rated by Standard &
Poor's Ratings Group and ▇▇▇▇▇'▇ Investors Service, Inc. in one of the
two highest rating categories (without regard to any refinement or
gradation of rating category by numerical modifier or otherwise)
assigned by Standard & Poor's Ratings Group and ▇▇▇▇▇'▇ Investors
Service, Inc. for obligations of that nature.
Officers' Certificate shall mean a certificate signed by the
Chairman of the Board, or the President or any Vice President and by
the Treasurer or any Assistant Treasurer or the Secretary or any
Assistant Secretary of the Company, which officer is in a position to
know the truth and accuracy thereof.
Opinion of Counsel shall mean an opinion in writing signed by
legal counsel who shall be acceptable to the Trustee and who may,
unless in a particular instance the Trustee shall otherwise require,
be an employee of or counsel to the Company. The acceptance by the
Trustee of, and its action on, an Opinion of Counsel shall be
sufficient evidence that such counsel is satisfactory to the Trustee.
Owner shall mean the manufacturer or other person transferring
title to any of the Equipment to the Trustee.
Penalty Rate shall mean 1% per annum over the rate specified
in the Trust Certificates.
Request shall mean a written request for the action therein
specified, delivered to the Trustee, dated not more than 10 days prior
to the date of delivery to the Trustee and signed on behalf of the
Company by the Chairman of the Board, the President, a Vice President
or the Treasurer of the Company.
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Trust Certificates shall mean the Equipment Trust Certificates
issued hereunder.
Trust Equipment shall mean all Equipment at the time subject
to the terms of this Agreement.
Trustee shall mean ▇▇▇▇▇▇ Trust and Savings Bank, solely
in its capacity as Trustee, and, subject to the provisions of Article
Eight, any successor as trustee hereunder.
Value, as used herein, shall mean an amount determined as
follows:
(1) the Value of any unit of Trust Equipment
assigned or transferred by the Trustee as provided in Section
4.07, and as used in Sections 5.01 and 6.05 in respect of
Trust Equipment, shall be deemed to be the greater of (a) the
fair market value thereof and (b) the Cost thereof (as
theretofore certified to the Trustee) less 1/20 of such Cost
for each full year elapsed between the date such unit was
first put into use (as theretofore so certified) and the date
as of which Value is to be determined;
(2) the Value of any unit of Equipment conveyed
to the Trustee as provided in Article Three and in Section
4.07 shall be deemed to be the lesser of (a) the fair market
value thereof and (b) the Cost of such unit or, in the case of
any unit of Equipment not new, the Cost thereof less 1/20 of
such Cost for each full year elapsed between the date such
unit was first put into use and the date of the transfer
thereof to the Trustee; and
(3) the Value of any Unit of Equipment as used in
Section 4.08 shall be deemed to be the cost thereof less
1/20th of such Cost for each full year elapsed between the
date such Unit was first put into use and the date as of which
Value is to be determined.
The words herein, hereof, hereby, hereto, hereunder and words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, paragraph or subdivision hereof.
ARTICLE TWO
Trust Certificates and Issuance;
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Interests Represented and Maturity
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SECTION 2.01. Issuance of Trust Certificates. Upon the sale from
time to time of any of the Trust Certificates, an amount equal to the principal
amount of the Trust Certificates so sold shall, forthwith upon the issuance
thereof, be deposited in cash with the Trustee.
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Thereupon the Trustee shall issue and deliver, as the Company shall
direct by Request, Trust Certificates in the aggregate principal amount so
sold.
The aggregate principal amount of Trust Certificates which shall be
executed and delivered by the Trustee under this Section shall not exceed the
Total Authorized Issue specified in the form of Trust Certificate, and the
aggregate principal amount represented by all the Trust Certificates shall be
payable as hereinafter set forth.
SECTION 2.02. Interests Represented by Trust Certificates; Interest
Payments; Maturity; No Redemption. Each of the Trust Certificates shall
represent an interest in the principal amount therein specified in the trust
created hereunder. The Trust Certificates shall bear interest at _____% per
annum and shall be payable as follows (unless payment thereof is accelerated
pursuant to Article Five of this Agreement): the outstanding principal amount
thereof shall be paid on [describe principal payments], and interest payments
on the outstanding principal shall be paid in [describe interest payments] on
_________ and __________ in each year commencing ___, ___,____, 199[6]. The
Trust Certificates are not redeemable prior to maturity. Interest on the Trust
Certificates shall accrue from the date of original issue and shall be
calculated on the basis of a 360-day year of twelve 30-day months. Interest
shall be payable on overdue installments of interest and on any overdue payment
of principal, to the extent legally enforceable, interest at the Penalty Rate.
Payment of the principal of and interest on the Trust Certificates
shall be made by the Trustee at the Corporate Trust Office in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, but only from and
solely out of rentals or other moneys received by the Trustee and applicable to
such payment under the provisions of this Agreement.
SECTION 2.03. Form, Execution and Characteristics of Trust
Certificates. (a) The Trust Certificates and the guaranty to be endorsed on
the Trust Certificates by the Company as provided in Section 6.01 shall be in
substantially the forms hereinbefore set forth.
(b) The Trust Certificates shall be signed in the name and on
behalf of the Trustee by the manual or facsimile signature of one of its duly
authorized officers and its corporate seal or a facsimile thereof shall be
affixed or imprinted thereon and attested by the manual signature of one of its
duly authorized officers. In case any officer of the Company or the Trustee
whose signature, whether facsimile or not, shall appear on any of the Trust
Certificates shall cease to be such officer of the Company or the Trustee
before the Trust Certificates shall have been issued and delivered by the
Trustee or shall not have been acting in such capacity on the date of the Trust
Certificates, such Trust Certificates may be adopted by the Company, Union or
the Trustee and be issued and delivered as though such person had not ceased to
be or had then been such officer of the Company, Union or the Trustee.
(c) The Trust Certificates (i) shall be issuable in denominations
of U.S. $1,000 or any multiple thereof; (ii) shall be registered, as to both
principal and interest, in the name of the
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holders; (iii) shall be transferable in whole or in part upon presentation and
surrender thereof for transfer at the Corporate Trust Office, accompanied by
appropriate instruments of assignment and transfer, duly executed by the
registered holder of the surrendered Trust Certificate or Certificates or by
duly authorized attorney, in form satisfactory to the Trustee; (iv) shall be
dated as of the date of issue unless issued in exchange for another Trust
Certificate or Certificates bearing unpaid interest from an earlier date, in
which case they shall be dated as of such earlier date; (v) shall entitle the
registered holder to interest from the date thereof; and (vi) shall be
exchangeable for an aggregate principal amount of Trust Certificates of
authorized denominations of like tenor and maturity equal to the then unpaid
principal amount of Trust Certificates being exchanged.
(d) Anything contained herein to the contrary notwithstanding,
prior to due presentment for registration of transfer, the parties hereto may
deem and treat the registered holder of any Trust Certificates as the absolute
owner of such Trust Certificates for all purposes and shall not be affected by
any notice to the contrary.
(e) The Trustee shall cause to be kept at the Corporate Trust
Office books for the registration of transfer of the Trust Certificates and,
upon presentation of the Trust Certificates for such purpose, the Trustee shall
register any transfer as hereinabove provided, and under such reasonable
regulations as it may prescribe.
(f) For any registration, transfer or exchange, the Trustee shall
require the payment of a sum sufficient to reimburse it for any governmental
charge connected therewith.
(g) Each Trust Certificate delivered pursuant to any provision of
this Agreement in exchange or substitution for, or upon the transfer of the
whole or any part, as the case may be, of one or more other Trust Certificates
shall carry all the rights to principal and to interest accrued and unpaid and
to accrue, which were carried by the whole or such part, as the case may be, of
such one or more other Trust Certificates, and, notwithstanding anything
contained in this Agreement, such Trust Certificate shall be so dated that
neither gain nor loss in interest or principal shall result from such exchange,
substitution or transfer and a notation of all previous principal payments
shall be endorsed on the reverse side thereof.
(h) The Trustee shall not be required to issue, transfer or
exchange Trust Certificates for a period of 10 days next preceding any interest
payment date.
SECTION 2.04. Replacement of Lost Trust Certificates. In case any
Trust Certificate shall become mutilated or defaced or be lost, destroyed or
stolen, then on the terms herein set forth, and not otherwise, the Trustee
shall execute and deliver a new Trust Certificate in the then unpaid principal
amount of the predecessor Trust Certificate and bearing such identifying number
or designation as the Trustee may determine, in exchange and substitution for,
and upon cancellation of, the mutilated or defaced Trust Certificate, or in
lieu of and in substitution for the same if lost, destroyed or stolen. The
Company shall execute its guaranty on any Trust Certificates to be so
delivered. The applicant for a new Trust Certificate pursuant
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to this Section shall furnish to the Trustee and to the Company evidence to
their satisfaction of the loss, destruction or theft of such Trust Certificate
alleged to have been lost, destroyed or stolen and of the ownership and
authenticity of such mutilated, defaced, lost, destroyed or stolen Trust
Certificate, and also shall furnish such security or indemnity as may be
required by the Trustee and the Company in their discretion, and shall pay all
expenses and charges of such substitution or exchange. In the case of each of
the original purchasers of Trust Certificates or any institutional investor
transferee, a letter of indemnity in form reasonably satisfactory to the
Company and the Trustee from such purchaser shall be sufficient security and
indemnity. All Trust Certificates are held and owned upon the express
condition that the foregoing provisions are exclusive in respect of the
replacement of mutilated, defaced, lost, destroyed or stolen Trust Certificates
and shall preclude any and all other rights and remedies, any law or statute
now existing or hereafter enacted to the contrary notwithstanding.
ARTICLE THREE
Acquisition of Trust Equipment by
---------------------------------
Trustee: Deposited Cash
-----------------------
SECTION 3.01. Acquisition of Equipment by Trustee. The Company shall
cause to be sold to the Trustee, as trustee for the holders of the Trust
Certificates, as soon as practicable, all of the Equipment described in Schedule
I hereto; provided, however, that if the aggregate Cost of the Trust Equipment
delivered to the Trustee or its agent or agents pursuant to this Article Three,
as specified in the Officers' Certificate theretofore delivered to the Trustee
pursuant to Section 3.04, shall exceed _______% of the aggregate principal
amount of Trust Certificates issued under Section 2.01, upon Request the Trustee
shall execute and deliver to the Company a supplement hereto excluding from this
Agreement Equipment having a Cost in excess of such amount so that the aggregate
Cost of the Trust Equipment shall not exceed _______% of the aggregate principal
amount of the Trust Certificates issued pursuant to Section 2.01. The Trust
Equipment sold to the Trustee shall be delivered to the person or persons
designated by the Trustee as its agent or agents to accept such delivery (who
may be one or more of the officers or agents of the Company) and the certificate
of any such agent or agents as to such delivery and acceptance shall be
conclusive evidence of such delivery.
In the event that the Company shall deem it necessary or desirable to
procure for the use of the Company, and to include in the trust hereby created,
other Equipment in lieu of any units of the Equipment specifically described in
Schedule I hereto prior to the acceptance of such Equipment by the Trustee or
its agent or agents, or in the event that any unit of the Equipment described in
Schedule I hereto shall suffer a Casualty Occurrence as defined in Section
4.08, prior to such acceptance, the Company may cause to be sold to the Trustee
other Equipment, to be substituted under the trust.
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If the aggregate Cost, as specified in the Officers' Certificate
theretofore delivered to the Trustee pursuant to Section 3.04, of the Trust
Equipment delivered to the Trustee or its agent or agents pursuant to this
Article Three shall be less than _______% of the principal amount of the Trust
Certificates issued pursuant to Section 2.01, the Company will cause to be sold
to the Trustee additional Equipment in such amount and of such Cost that such
aggregate final Cost of the Trust Equipment will be at least _______% of the
principal amount of the Trust Certificates issued pursuant to Section 2.01.
SECTION 3.02. Payment of Deposited Cash. From time to time, when
and as any Equipment shall have been accepted by the Trustee or its agent or
agents pursuant to Section 3.01, the Trustee shall (subject to the provisions
of Sections 3.03 and 3.04) pay, upon Request, to the Owner of the accepted
Equipment out of Deposited Cash an amount not exceeding __% of the aggregate
Cost of such Trust Equipment, as specified in the Officers' Certificate
furnished to the Trustee pursuant to Section 3.04(b).
SECTION 3.03. Payment of Deficiency. The Company covenants that,
contemporaneously with any payment by the Trustee pursuant to Section 3.02, it
will either (a) pay to the Trustee the advance rental provided in Section
4.04(A), and thereupon the Trustee shall, upon Request, pay to the Owner of the
delivered Trust Equipment, by the use of such advance rental, the portion of
the Cost of the delivered Trust Equipment not paid out of Deposited Cash as
provided for in Section 3.02 or (b) deliver to the Trustee an executed
counterpart of a receipt from such Owner evidencing the direct payment by the
Company to such Owner of that portion of the Cost of such Trust Equipment equal
to the amount of advance rental required to be paid to the Trustee pursuant to
clause (a) of this sentence in respect of such Trust Equipment or, if the
Company is the Owner of the delivered Trust Equipment, a statement to such
effect; the intention being that the Company shall ultimately pay not less than
__% of the Cost of all the Trust Equipment delivered to the Trustee pursuant to
this Article Three, and the Trustee and the Company shall at any time, if
occasion arises, adjust their accounts and payments to the end that the Trustee
shall pay with Deposited Cash not more than __% of the Cost, and the Company
shall pay as advance rental the remainder, to be not less than __% of such
Cost.
SECTION 3.04. Supporting Papers. The Trustee shall not pay out any
Deposited Cash against the delivery of any of the Trust Equipment unless and
until it shall have received:
(a) a certificate of the agent or agents designated by
the Trustee to receive delivery of the Trust Equipment, stating that
the Trust Equipment described and specified therein by number or
numbers has been delivered to such agent or agents (the date of such
certificate to be presumed conclusively as the date of such delivery);
(b) an Officers' Certificate which shall state (i) that
such Trust Equipment is Equipment as herein defined, (ii) the date
each unit of such Trust Equipment was first put into use or that such
Trust Equipment was first put into use not earlier than a specified
date, (iii) that the Cost of such Trust Equipment is the amount
therein specified
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or is not less than the amount therein specified, (iv) the Value to
the Company, in the opinion of the signers, of such Trust Equipment as
of the date of the Section 3.02 Request and (v) that, in the opinion
of the signers, all conditions precedent provided in this Agreement
relating to the payment in question have been complied with;
(c) (i) an invoice or invoices from the Owner of such
Trust Equipment, if other than the Company, and (ii) a ▇▇▇▇ or bills
of sale of such Trust Equipment from the Owner thereof to the Trustee,
which ▇▇▇▇ or bills of sale shall contain a warranty or guaranty to
the Trustee that the title to the Trust Equipment described therein is
free from all liens and encumbrances (except as permitted herein)
other than the rights of the Company hereunder; and
(d) an Opinion of Counsel to the effect (i) that such
▇▇▇▇ or bills of sale are valid and effective, either alone or in
connection with any other instrument referred to in and accompanying
such opinion, to vest in the Trustee title to such Trust Equipment
free from all liens, security interests and other encumbrances (except
as permitted herein) other than the rights of the Company hereunder,
(ii) that in the case of any Trust Equipment not specifically
described herein, a proper supplement hereto in respect of such Trust
Equipment has been duly executed by the Trustee and the Company and
filed and recorded in accordance with Section 6.05 and (iii) that, in
the opinion of such counsel, all conditions precedent provided for in
this Agreement relating to the payment in question have been complied
with.
Any Officers' Certificate delivered pursuant to this Section may state
that the Cost of the Trust Equipment therein referred to is tentatively
determined, subject to final adjustment to be evidenced in a final Officers'
Certificate to be delivered to the Trustee.
ARTICLE FOUR
Lease of Trust Equipment to the Company
---------------------------------------
SECTION 4.01. Lease of Trust Equipment to the Company. The Trustee
does hereby let and lease to the Company all the Trust Equipment from and after
the respective dates such Trust Equipment is acquired by the Trustee hereunder
to the date on which the final payment of principal and interest on any Trust
Certificate is due.
SECTION 4.02. Equipment Automatically Subjected. As and when any
Equipment shall from time to time be transferred to the Trustee hereunder, the
same shall, ipso facto and without further instrument of lease or transfer,
become subject to all the terms and provisions hereof.
SECTION 4.03. Additional and Substituted Equipment Subject Hereto.
In the event that the Company shall, as provided in Section 3.01 or 4.07, cause
to be transferred to the
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Trustee other Equipment in addition to or in substitution for any of the
Equipment herein specifically described or subjected hereto, such other
Equipment shall be included as part of the Trust Equipment by supplement hereto
to be executed by the Trustee and the Company and shall be subject to all the
terms and conditions hereof in all respects as though it had been part of the
Equipment herein specifically described.
SECTION 4.04. Rental Payments. The Company hereby accepts the
lease of all the Trust Equipment, and covenants and agrees to accept delivery
and possession hereunder of the Trust Equipment; and the Company covenants and
agrees to pay to the Trustee at the Corporate Trust Office (or, in the case of
taxes, to the proper taxing authority), in such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts, rental hereunder which shall be sufficient
to pay and discharge the following items, when and as the same shall become due
and payable (whether or not any of such items shall become due and payable
prior to the acceptance of delivery of any unit of the Trust Equipment).
(A) The Company shall pay to the Trustee, as hereinafter
provided, as advance rental hereunder, sums which in the aggregate
shall be equal to the difference between the aggregate Cost of the
Trust Equipment (other than Trust Equipment subjected hereto pursuant
to Section 4.07) and the portion of such Cost to be provided out of
the proceeds (excluding accrued interest, if any) of the sale of the
Trust Certificates, the intention being that, when all such Trust
Equipment shall have been transferred to the Trustee, the Company
shall have paid or shall pay to the Trustee, as advance rental
hereunder, a sum equal to the amount by which the aggregate Cost of
such Trust Equipment exceeds such proceeds of the sale of the Trust
Certificates. The Company agrees to pay such advance rental as
follows:
(1) at the time of issue of any Trust Certificate
pursuant to Section 2.01 a sum which, when added to the
proceeds of the sale of such Trust Certificate deposited with
or to the credit of the Trustee, will make the total sum
deposited equal to the principal amount of such Trust
Certificate; and
(2) upon delivery of any such Trust Equipment, a
sum equal to the portion of the Cost of such delivered Trust
Equipment not paid out of Deposited Cash as provided for in
Section 3.02, but not less than __% of such Cost.
(B) In Addition to such advance rental the Company shall
pay to the Trustee, as rental for the Trust Equipment (notwithstanding
that any of the Trust Certificates shall have been acquired by the
Company or shall not have been presented for payment), the following:
(1) from time to time upon demand of the Trustee,
(a) the reasonable expenses of the trust hereby created,
including, without limitation, reasonable compensation to the
Trustee and all expenses provided for herein, and (b) an
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amount equal to any expenses incurred or loss of principal
(including interest accrued thereupon at time of purchase) in
connection with any purchase, sale or redemption by the
Trustee of Investments;
(2) from time to time upon demand of the Trustee,
any and all taxes, assessments, and governmental charges which
the Trustee as such may be required to pay, including, without
limitation, all taxes, assessments and governmental charges
upon or on account of the income or property of the Trust, or
upon or on account of this Agreement;
(3) (a) the amounts of interest payable on the
Trust Certificates, when and as the same shall become payable,
and (b) interest at the Penalty Rate from the due date, upon
the amount of any installments of rental payable in respect of
the principal of and interest on the Trust Certificates which
shall not be paid when due, to the extent legally enforceable;
and
(4) the principal of the Trust Certificates, when
and as the same shall become payable, whether upon the date of
maturity thereof or by declaration or otherwise.
Nothing contained herein or in the Trust Certificates shall be deemed
to impose on the Trustee or on the Company any obligation to pay to the
registered holder of any Trust Certificate any tax, assessment or governmental
charge required by any present or future law of the United States of America,
or of any state, county, municipality or other taxing authority thereof, to be
paid on behalf of, or withheld from the amount payable to, the holder of any
Trust Certificate.
The Company shall not be required to pay any tax, assessment or
governmental charge so long as it shall in good faith and by appropriate legal
proceedings contest the validity thereof; provided, however, that in the
judgment of the Trustee and as set forth in an Opinion of Counsel which shall
have been furnished to the Trustee by the Company, the rights or interests of
the Trustee or of the holders of the Trust Certificates will not be endangered
thereby.
SECTION 4.05. Termination of Trust. After all payments which are
required to be made pursuant to this Agreement have been completed and fully
made to the Trustee (1) such payments shall be applied and treated as purchase
money as the full purchase price of the Trust Equipment from the Trustee, (2)
any moneys remaining in the hands of the Trustee after providing for all
outstanding Trust Certificates and after paying the expenses of the Trustee,
including its reasonable compensation, shall be paid to the Company, (3) title
to all the Trust Equipment shall vest in the Company and (4) the Trustee shall
execute for record in public offices, at the expense of the Company, such
instrument or instruments in writing as reasonably shall be requested by the
Company in order to make clear upon public records the Company's title to all
the Trust Equipment under the laws of any jurisdiction; provided, however, that
(except as otherwise provided herein) until that time title to the Trust
Equipment shall not pass
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to or vest in the Company, but title to and ownership of all the Trust
Equipment shall be and remain with the Trustee, notwithstanding the delivery
thereof to and the possession and use thereof by the Company pursuant to this
Agreement.
SECTION 4.06. Indemnity. The Company covenants and agrees to
indemnify the Trustee against any and all claims arising out of or connected
with the ownership or use of any of the Trust Equipment, and particularly
against any and all claims arising out of the use of any patented inventions in
and about the Trust Equipment, and to comply in all respects with the laws of
the United States of America and of all the states and other jurisdictions in
which the Trust Equipment, or any unit thereof, may be operated, and with all
lawful acts, rules, regulations and orders of any commissions, boards and other
legislative, executive, administrative or judicial bodies or officers having
power to regulate or supervise any of the Trust Equipment, including without
limitation all lawful acts, rules, regulations and orders of any body having
competent jurisdiction relating to automatic coupler devices or attachments,
air brakes or other appliances; provided, however, that the Company may in good
faith contest the validity of any such law, act, rule, regulation or order, or
the application thereof to the Trust Equipment or any part thereof, in any
manner which will not in the judgment of the Trustee endanger the rights or
interests of the Trustee or of the holders of the Trust Certificates. The
Company shall not be relieved from any of its obligations hereunder by reason
of the assertion or enforcement of any such claims or the commencement or
prosecution of any litigation in respect thereof. The Company's obligation to
indemnify the Trustee under this Section 4.06 shall survive the termination of
this Agreement.
SECTION 4.07. Substitution and Replacement of Trust Equipment.
Upon Request, the Trustee shall, at any time and from time to time, execute and
deliver a ▇▇▇▇ of sale assigning and transferring to the transferee named by
the Company all the right, title and interest of the Trustee in and to any of
the units of Trust Equipment as provided herein; provided, however, that, at
the option of the Company, (a) there shall be paid to the Trustee cash in an
amount not less than the Value, as of the date of such Request, of the units of
Trust Equipment to be assigned or transferred by the Trustee or (b) there shall
be conveyed to the Trustee, at the time of assignment or transfer of any units
of Trust Equipment, other units of Equipment and of a Value not less than the
Value, as of the date of such Request, of the units of Trust Equipment to be
assigned or transferred.
At the time of delivery of any Request pursuant to the first paragraph
of this Section, the Company shall, if other Equipment is to be conveyed to the
Trustee in substitution for the Trust Equipment to be assigned or transferred
by the Trustee, deliver to the Trustee the following papers:
(1) an Officers' Certificate stating (i) the Value, as of
the date of said Request, of the Trust Equipment so to be assigned or
transferred by the Trustee and the date such Trust Equipment was first
put into use (or that such Trust Equipment was first put into use not
later than a specified date), (ii) that the requested assignment or
transfer by the Trustee will not impair the security under this
Agreement in contravention of the
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provisions hereof, (iii) the Value of such substituted Equipment as of such
date and the date such substituted Equipment was first put into use (or that
such substituted Equipment was first put into use not earlier than a specified
date), (iv) that each unit of Equipment so to be substituted has been marked as
provided in Section 4.10, (v) that each such unit so to be substituted is
Equipment as herein defined and (vi) that the Company is not in Default;
(2) a certificate and a ▇▇▇▇ or bills of sale in respect
of such substituted Equipment as provided for in subparagraphs (a) and
(c) of the first paragraph of Section 3.04;
(3) an Opinion of Counsel to the effect that (i) such
▇▇▇▇ or bills of sale are valid and effective, either alone or
together with any other instruments referred to in and accompanying
such opinion, to vest in the Trustee title to such substituted
Equipment free from all claims, liens, security interests and other
encumbrances (except as permitted herein) other than the rights of the
Company hereunder and (ii) a proper supplement hereto in respect of
each substituted unit of Equipment has been duly executed by the
Trustee and the Company and has been filed with the Surface
Transportation Board of the Department of Transportation pursuant to
the requirements of ___ U.S.C. Section ______ and as otherwise
required by Section 6.05 and has been deposited with the Registrar
General of Canada pursuant to Section 90 of the Railway Act (Canada)
and publication of notice of such deposit in The Canada Gazette in
accordance with said Section 90 has been provided for; and
(4) if the Cost of the Trust Equipment to be assigned or
transferred by the Trustee, less 1/20th of such Cost for each full
year elapsed between the date such Trust Equipment was first put into
use (as previously so certified) and the date as of which the Value
thereof is to be determined hereunder, plus the Cost of all other
Trust Equipment so assigned or transferred within the prior twelve
months, less 1/20th of such Cost for each full year elapsed between
the date such other Trust Equipment was first put into use (as
previously so certified) and the date as of which the Value thereof
was determined, as set forth in the certificate or certificates
required by this Section 4.07, is more than 10% of the principal
amount of Trust Certificates then outstanding, a certificate by an
Independent Engineer stating, as of the date of said Request, both the
Value of the Trust Equipment so to be assigned or transferred by the
Trustee and the Value of such substituted Equipment.
At the time of delivery of any Request pursuant to the first paragraph
of this Section, the Company shall, if cash is to be paid to the Trustee in
respect of the Trust Equipment to be assigned or transferred by the Trustee,
deliver to the Trustee an Officers' Certificate stating to the effect set forth
in clauses (i), (ii) and (vi) of subparagraph (1) of the second paragraph of
this Section.
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Cash deposited with the Trustee pursuant to this Section or Section
4.08 shall, from time to time, be paid over by the Trustee to the Company upon
Request, against conveyance to the Trustee of units of Equipment having a
Value, as of the date of said Request, not less than the amount of cash so
paid, and upon delivery to the Trustee of papers corresponding to those set
forth in the second paragraph of this Section, with such appropriate
modifications as may be approved by the Trustee.
SECTION 4.08. Maintenance of Trust Equipment; Casualty Occurrences.
The Company agrees that it will maintain and keep all the Trust Equipment in
good order and proper repair at its own cost and expense, unless and until it
becomes worn out, unsuitable for use or lost or destroyed (such occurrences
being hereinafter called Casualty Occurrences). Whenever any of the Trust
Equipment shall suffer a Casualty Occurrence, the Company shall on or before
the next following May 15, deliver to the Trustee an Engineer's Certificate
describing such Trust Equipment and stating the Value thereof as of the date
such Trust Equipment suffered such Casualty Occurrence. When the total Value
of all units of the Trust Equipment having suffered a Casualty Occurrence
(exclusive of units having suffered a Casualty Occurrence in respect of which a
payment shall have been made to the Trustee pursuant to this Section) shall
exceed $250,000, the Company, within 30 days after it shall have been informed
of such event, shall deliver to the Trustee an Engineer's Certificate
describing such Trust Equipment and stating the Value thereof as of the date
such Trust Equipment suffered such Casualty Occurrence and either (i) deposit
with the Trustee an amount in cash equal to the Value of such units as of the
date of the Casualty Occurrence in respect of each thereof or (ii) convey to
the Trustee, in accordance with the procedures and requirements of Section
4.07, units of Equipment with a Value, as of the date of such conveyance, not
less than the Value of the units suffering such Casualty Occurrence(s), as of
the date of the Casualty Occurrence in respect of each thereof. The rights and
remedies of the Trustee to enforce or to recover any of the rental payments
shall not be affected by reason of any Casualty Occurrence. Cash deposited
with the Trustee pursuant to this Section shall be held and applied as provided
in the fourth paragraph of Section 4.07.
Upon the deposit of cash with the Trustee pursuant to this Section
4.08, the Trustee shall execute and deliver a ▇▇▇▇ of sale in the form
reasonably requested by the Company assigning and transferring to the
transferee named by the Company all the right, title and interest of the
Trustee in and to the Trust Equipment which has suffered a Casualty Occurrence
and in respect of which such deposit is made.
The Company agrees to furnish to the Trustee on or before May 15 in
every calendar year commencing May 15, ____, and during the continuance of the
lease provided for herein, an Officers' Certificate, dated as of the preceding
February 14, (1) stating the description and numbers of all units of Trust
Equipment that may have suffered a Casualty Occurrence or which have been
withdrawn from use pending major repairs (other than running repairs) since the
date of the last preceding statement (or the date of this Agreement in the case
of the first such statement), (2) that in the case of all the Trust Equipment
repainted or repaired since the date f the last preceding statement (or the
date of this Agreement in the case of the first statement) the plates or
markers required by Section 4.10 have been preserved, or that such Trust
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Equipment when repainted or repaired has been again plated or marked as
required thereby, (3) that no Event of Default has occurred and is continuing,
(4) that, in the opinion of the signers, the Company is in compliance with all
of the terms of this Agreement and (5) covering such other matters as the
Trustee may reasonably request.
The Trustee, by its agents, shall have the right at any reasonable
time (which may be more frequent than once in each calendar year), but shall be
under no duty, to inspect the Trust Equipment at the then existing locations
thereof.
SECTION 4.09. Possession of Trust Equipment. Except as provided in
this Section 4.09, without first obtaining the written consent of the Trustee,
the Company will not (a) assign or transfer its rights hereunder, (b) transfer
the Trust Equipment or any part thereof or (c) part with the possession of, or
suffer or allow to pass out of its possession and control, any of the Trust
Equipment. An assignment or transfer to any corporation which shall acquire
all or substantially all the property of the Company (by merger, consolidation
or otherwise) and which, by execution of an appropriate instrument satisfactory
to the Trustee, shall assume and agree to perform each and all the obligations
and covenants of the Company hereunder and under the guarantee endorsed on the
Trust Certificates shall not be deemed a breach of this covenant and such
assignment, transfer or assumption shall have the effect of releasing the
Company from its obligations hereunder and from its obligations as guarantor of
the Trust Certificates. The appointment of a receiver or receivers in equity
or reorganization or a trustee or trustees in bankruptcy or reorganization for
the Company or for its property shall not be deemed an unauthorized assignment
if, prior to any action by the Trustee to exercise the remedies herein
provided, such receiver or receivers or trustee or trustees shall, pursuant to
court order or decree, in writing duly assume and agree to pay or perform each
and all of the obligations and covenants of the Company hereunder and under the
guaranty endorsed on the Trust Certificates, in such manner that such
obligations shall have the same status as obligations incurred by such receiver
or receivers or trustee or trustees.
Notwithstanding the foregoing, so long as the Company shall not be in
Default, the Company and any of its Affiliates shall be entitled to the
possession and use of the Trust Equipment in accordance with the terms hereof,
and the Company or such Affiliates may also (a) furnish the Trust Equipment or
any part thereof to railroad companies for use upon the lines of railroad owned
or operated by them or over which they have trackage rights and upon connecting
and other railroads in the usual interchange of traffic, or to other than
railroad companies for use in their business, and (b) sublet or contract to
others located in the United States[, Mexico] and Canada all or any part of the
Trust Equipment, but only, in either case, upon and subject to all the terms
and conditions of this Agreement.
Any such sublease or contract may provide that the party acquiring the
use of units of the Trust Equipment, so long as it shall not be in default
under such sublease or contract, shall be entitled, subject to the rights of
the Trustee hereunder, to the possession of such units and the use thereof and,
subject to the provisions of Section 4.10 hereof, may provide for lettering or
marking upon such Equipment for convenience of identification of the leasehold
interest of
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such sublessee therein. Every such lease or contract shall contain provisions
which have the effect of subjecting the rights of the party acquiring the use
of units of the Trust Equipment under such lease or contract to the rights and
remedies of the Trustee in respect of such units.
The Trustee shall have the right to declare the lease provided for
herein terminated in case of any unauthorized assignment or transfer of the
Company's rights hereunder or in case of any unauthorized transfer or sublease
of any of the Trust Equipment. The election of the Trustee to terminate the
lease provided for herein shall have the same effect as the retaking of the
Trust Equipment by the Trustee as hereinafter provided.
SECTION 4.10. Marking of Trust Equipment. The Company shall not
change, or permit to be changed, the numbers of any of the Trust Equipment at
any time covered hereby (or any numbers which may have been substituted as
herein provided) except in accordance with a statement of new numbers to be
substituted therefor which previously shall have been filed with the Trustee by
the Company and which shall be filed and recorded in like manner as this
Agreement.
The Trust Equipment may be lettered, "Union Tank Car Company", "UTLX",
or in some other appropriate manner for convenience of identification of the
leasehold interest of the Company therein, and may also be lettered, in case of
a sublease of any equipment made pursuant to Section 4.09 hereof, in such
manner as may be appropriate for convenience of identification of the
subleasehold interest therein; but the Company, during the continuance of the
lease provided for herein, will not allow any lettering or designation to be
placed on any of the Trust Equipment claiming ownership thereof by the Company
or by any person, firm, association or corporation other than the Trustee.
ARTICLE FIVE
Events of Default and Remedies
SECTION 5.01. Events of Default. The Company covenants and agrees
that in case:
(a) the Company shall default in the payment of any part
of the rental payable hereunder for more than 10 Business Days after
the same shall have become due and payable, or
(b) the Company shall make or suffer any unauthorized
assignment or transfer of its rights hereunder or shall make any
unauthorized transfer or sublease (including, for the purpose of this
clause, contracts for the use thereof) of any of the Trust Equipment,
or, except as herein authorized, shall part with the possession of any
of the Trust Equipment, and shall fail or refuse either to cause such
assignment or transfer or sublease to be canceled by agreement of all
parties having any interest therein and recover possession of such
Trust Equipment within 30 days after the Trustee shall have
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demanded in writing such cancellation and recovery of possession, or
within said 30 days to deposit with the Trustee a sum in cash equal to
the Value, as of the date of such unauthorized action, of such Trust
Equipment (any sum so deposited to be returned to the Company upon the
cancellation of such assignment, transfer or sublease and the recovery
of possession by the Company of such Trust Equipment), or
(c) the Company shall fail or refuse to comply with any
other of the terms and covenants hereof on its part to be kept and
performed, or to make provision satisfactory to the Trustee for such
compliance, for a period which is the shorter of (i) 60 days after the
Trustee shall have demanded in writing performance thereof and (ii) 30
days after the Company has knowledge of any failure on its part to so
comply, or
(d) the lease provided for herein shall be terminated by
operation of law or pursuant to the last paragraph of Section 4.09, or
(e) any order, judgment or decree is entered under any
bankruptcy, reorganization, compromise, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law of any
jurisdiction (herein called the "Bankruptcy Law") adjudicating the
Company bankrupt or insolvent, or the Company petitions or applies to
any tribunal for, or consents to, the appointment of, or taking
possession by, a trustee, receiver, custodian, liquidator or similar
official, of the Company or of substantially all the assets of the
Company or commences a voluntary case under the Bankruptcy Law or any
proceedings relating to the Company under the Bankruptcy Law, whether
now or hereafter in effect; or any such petition or application is
filed, or any such proceedings are commenced, against the Company and
the Company by any act or failure to act indicates its approval
thereof, consent thereto or acquiescence therein, or an order for
relief is entered in an involuntary case against the Company under the
Bankruptcy Law, as now or hereafter constituted, or an order, judgment
or decree is entered appointing any such trustee, receiver, custodian,
liquidator or similar official, or approving the petition in any such
proceedings, and such order, judgment or decree remains unstayed and
in effect for more than 60 days, or
[(f) the Company shall fail to perform under its guarantee
of certain obligations of Procor Limited ("Procor") contained in
Section ____ of Trust Supplement dated _____ __,____ to the Pass
Through Trust Agreement, dated as of January 15, 1997, among the
Company, Procor and ▇▇▇▇▇▇ Trust and Savings Bank, ______________,
as Pass Through Trustee, and endorsed on the certificates issued
thereunder.]
then, in any such case (herein sometimes called an "Event of Default"), the
Trustee in its discretion may, and upon the written request of the holders of
more than 50% in principal amount of the then outstanding Trust Certificates
shall, by notice in writing delivered to the Company, declare to be due and
payable forthwith the unpaid principal amount of all Trust Certificates then
outstanding and the entire amount of the rentals thereafter (including any
unpaid advance rental, but not including rentals required for the payment of
interest accruing after the
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date of such declaration) payable by the Company as set forth in Section 4.04
and not theretofore paid. Thereupon the entire amount of such principal and
rentals shall forthwith become and shall be due and payable immediately without
further demand, together with interest at the Penalty Rate, to the extent
legally enforceable, on any portion thereof overdue.
In case the Company shall fail to pay any installment of rental
payable pursuant to Section 4.04 in respect of the principal of, or interest
on, the Trust Certificates when and as the same shall have become due and
payable hereunder, and such Default shall have continued for a period of more
than ten Business Days, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the rentals so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Company
or other obligor upon the Trust Certificates and collect in the manner provided
by law out of the property of the Company or other obligor upon the Trust
Certificates wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor upon the Trust
Certificates under the Bankruptcy Law or any other applicable law, or in case a
receiver or trustee shall have been appointed for the property of the Company
or such other obligor, or in case of any other judicial proceedings relative to
the Company or such other obligor, or to the creditors or property of the
Company or such other obligor, the Trustee, irrespective of whether the rental
payments hereunder or the principal amount of the Trust Certificates shall then
be due and payable as herein or therein expressed whether by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand or
declaration pursuant to the provisions of this Section, shall be entitled and
empowered by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the entire amount of the rentals then or thereafter payable
(including any unpaid advance rental, but not including rentals required for
the payment of interest accruing after the date of such declaration) and to
file such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee, its agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances made,
by the Trustee except as a result of its negligence or willful misconduct) and
of the holders of the Trust Certificates allowed in such proceedings and to
collect and receive any moneys or other property payable or deliverable on any
such claims, and to distribute all amounts received with respect to the claims
of the holders of the Trust Certificates and of the Trustee on their behalf;
and any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of the Trust Certificates to make payments to
the Trustee, and, in the event that the Trustee shall consent to the making of
payments directly to the holders of the Trust Certificates, to pay to the
Trustee such amount as shall be sufficient to cover reasonable compensation to
the Trustee, its agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee except as a result
of its negligence or willful misconduct.
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All rights of action and to assert claims under this Agreement, or
under any of the Trust Certificates, may be enforced by the Trustee without the
possession of any of the Trust Certificates or the production thereof on any
trial or other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall be for the ratable benefit of
the holders of the Trust Certificates. In any proceedings brought by the
Trustee (and also any proceedings involving the interpretation of any provision
of this Agreement to which the Trustee shall be a party) the Trustee shall be
held to represent all the holders of the Trust Certificates, and it shall not
be necessary to make any holders of the Trust Certificates parties to such
proceedings.
SECTION 5.02. Remedies. In case of the happening and continuance
of any Event of Default, the Trustee may by its agents enter upon the premises
of the Company and any of its Affiliates or sublessees (or other person having
acquired the use of the Trust Equipment) where any of the Trust Equipment may
be and take possession of all or any part of the Trust Equipment and withdraw
the same from said premises, retaining all payments which up to that time may
have been made on account of rental for the Trust Equipment and otherwise, and
shall be entitled to collect, receive and retain all unpaid mileage, hourly or
other charges of any kind earned by the Trust Equipment or any part thereof,
and may lease or otherwise contract for the use of the Trust Equipment or any
part thereof, or with or without retaking possession thereof (but only after
declaring due and payable the entire amount of rentals payable by the Company
and the principal of all the then outstanding Trust Certificates, as provided
in Section 5.01) may sell the same or any part thereof, free from any and all
claims of the Company at law or in equity in one lot and as an entirety or in
separate lots, at public or private sale, for cash or upon credit, in its
discretion, and may proceed otherwise to enforce its rights and the rights of
the holders of then outstanding Trust Certificates, all subject to any
mandatory requirements of law applicable thereto. Upon any such sale, the
Trustee itself may bid for the property offered for sale or any part thereof.
Any such sale may be held or conducted at such place and at such time as the
Trustee may specify, or as may be required by law, and without gathering at the
place of sale the Trust Equipment to be sold, and in general in such manner as
the Trustee may determine, but so that the Company may and shall have a
reasonable opportunity to bid at any such sale. Upon such taking possession or
withdrawal or lease or sale of the Trust Equipment, the Company shall cease to
have any rights or remedies ln respect of the Trust Equipment hereunder, but
all such rights and remedies shall be deemed thenceforth to have been waived
and surrendered by the Company, and no payments theretofore made by the Company
for the rent or use of the Trust Equipment or any of it shall give to the
Company any legal or equitable interest or title in or to the Trust Equipment
or any of it or any cause or right of action at law or in equity in respect of
the Trust Equipment against the Trustee or the holders of interests hereunder.
No such taking possession, withdrawal, lease or sale of the Trust Equipment by
the Trustee shall be a bar to the recovery by the Trustee from the Company of
rentals then or thereafter due and payable, or of principal and interest in
respect of the Trust Certificates, and the Company shall be and remain liable
for the same until such sums have been realized as, with the proceeds of the
lease or sale of the Trust Equipment, shall be sufficient for the discharge and
payment in full of all the obligations of the Company under this Agreement.
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SECTION 5.03. Application of Proceeds. If the Trustee shall
exercise any of the powers conferred upon it by Sections 5.01 and 5.02, all
payments made by the Company to the Trustee, and the proceeds of any judgment
collected from the Company by the Trustee, and the proceeds of every sale or
lease by the Trustee of any of the Trust Equipment, together with any other
sums which may then be held by the Trustee under any of the provisions hereof
(other than sums held in trust for the payment of specific Trust Certificates
or a part thereof, or interest thereon), shall be applied by the Trustee to the
payment, in the following order of priority, (a) of all proper charges,
expenses or advances made or incurred by the Trustee in accordance with the
provisions of this Agreement and (b) of the interest then due, with interest on
overdue interest at the Penalty Rate, to the extent legally enforceable, and of
the principal of all the outstanding Trust Certificates, with interest thereon
at the Penalty Rate, to the extent legally enforceable, from the last preceding
interest payment date, whether such Trust Certificates shall have then matured
by their terms or not, all such payments to be pro rata and in full if such
proceeds shall be sufficient, and if not sufficient, then first to interest and
then to principal.
After all such payments shall have been made in full, the title to any
of the Trust Equipment remaining unsold shall be conveyed by the Trustee to the
Company free from any further liabilities or obligations to the Trustee
hereunder. If after applying all such sums of money realized by the Trustee as
aforesaid there shall remain any amount due to the Trustee under the provisions
hereof, the Company agrees to pay the amount of such deficit to the Trustee.
If after applying as aforesaid the sums of money realized by the Trustee there
shall remain a surplus in the possession of the Trustee, such surplus shall be
paid to the Company.
SECTION 5.04. Waivers of Default. Prior to the declaration of the
acceleration of the maturity of the rentals due hereunder and of the maturity
of all the Trust Certificates as provided in Section 5.01, the holders of more
than 50% in aggregate unpaid principal amount of the Trust Certificates at the
time outstanding may on behalf of the holders of all the Trust Certificates
waive any past Default and its consequences, except a Default in the payment of
any installment of rental then due and payable pursuant to Section 4.04 in
respect of the principal of, or interest on, the Trust Certificates, but no
such waiver shall extend to or affect any subsequent Default or impair any
right consequent thereon.
If at any time after the principal of all the Trust Certificates shall
have been declared and become due and payable or if at any time after the
entire amount of rentals shall have been declared and become due and payable,
all as provided in Section 5.01, all arrears of rent (with interest at the
Penalty Rate upon any overdue installments, to the extent legally
enforceable), the expenses and reasonable compensation of the Trustee, together
with all expenses of the trust occasioned by the Company's Default, and all
other sums which shall have become due and payable hereunder shall be paid by
the Company before any sale or lease by the Trustee of any of the Trust
Equipment, and every other Default shall be made good or secured to the
satisfaction of the Trustee and the holders of the Trust Certificates, or
provision deemed by the Trustee to be adequate shall be made therefor, then,
and in every such case, the Trustee, if so requested by the holders of more
than 50% in aggregate unpaid principal amount of the Trust Certificates then
outstanding according to their terms, shall by written notice to the Company
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waive the Default by reason of which there shall have been such declaration or
declarations and the consequences of such Default, but no such waiver shall
extend to or affect any subsequent Default or impair any right consequent
thereon.
SECTION 5.05. Obligations of Company Not Affected by Remedies. No
retaking of possession of the Trust Equipment by the Trustee, or any
withdrawal, lease or sale thereof, nor any action or failure or omission to act
against the Company or in respect of the Trust Equipment, on the part of the
Trustee or on the part of the holder of any Trust Certificate, nor any delay or
indulgence granted to the Company by the Trustee or by any such holder, shall
affect the obligations of the Company hereunder or the obligations of the
Company under its guarantee endorsed on the Trust Certificates. The Company
hereby waives presentation and demand in respect of any of the Trust
Certificates and waive notice of presentation, of demand and of any Default in
the payment of the principal of and interest on the Trust Certificates.
SECTION 5.06. Company To Deliver Trust Equipment to Trustee. In
case the Trustee shall rightfully demand possession of any of the Trust
Equipment in pursuance of this Agreement, the Company will, at its own expense,
forthwith and in the usual manner and at usual speed, cause such Trust
Equipment to be drawn to such point or points as shall reasonably be designated
by the Trustee and will there deliver or cause to be delivered the same to the
Trustee; or, at the option of the Trustee, the Trustee may keep such Trust
Equipment, at the expense of the Company, on any lines of railroad or premises
approved by the Trustee until the Trustee shall have leased, sold or otherwise
disposed of the same. The performance of the foregoing covenant is of the
essence of this Agreement and upon application to any court having jurisdiction
in the premises, the Trustee shall be entitled to a decree against the Company
requiring the specific performance thereof.
SECTION 5.07. Trustee To Give Notice of Default. Promptly after
the occurrence thereof, the Trustee shall give to the registered holders of the
Trust Certificates notice of each Default hereunder known to any officer of the
Trustee assigned by it to perform corporate trust administration functions with
respect to this Agreement.
SECTION 5.08. Control by Holders of Trust Certificates. The
holders of more than 50% in aggregate unpaid principal amount of the
outstanding Trust Certificates, by an instrument or instruments in writing
executed and delivered to the Trustee, shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee; provided,
however, that the Trustee shall have the right to decline to follow any such
direction if the Trustee shall be advised by counsel that the action so
directed may not lawfully be taken.
SECTION 5.09. Limitations on Suits by Holders of Trust
Certificates. No holder of any Trust Certificate shall have any right by
virtue or by availing of any provision of this Agreement to institute any
action or proceeding at law or in equity or in bankruptcy or otherwise, upon or
under or with respect to this Agreement, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless such holder previously
shall have given
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to the Trustee written notice of a Default and of the continuance thereof, as
herein provided, and unless also the holders of more than 50% in aggregate
principal amount of the Trust Certificates then outstanding shall have made
written request to the Trustee to institute such action or proceeding in its
own name as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for 30 days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action or proceeding and no direction inconsistent
with such written request shall have been given to the Trustee pursuant to
Section 5.08; and no one or more holders of Trust Certificates shall have any
right in any manner whatever to affect or prejudice the rights of any other
holder of Trust Certificates, or to obtain or seek to obtain priority over any
other such holder or to enforce any right under this Agreement, except in the
manner herein provided and for the equal, ratable and common benefit of all
holders of Trust Certificates. For the protection and enforcement of the
provisions of this Section, each and every holder of a Trust Certificate and
the Trustee shall be entitled to such relief as can be given either at law or
in equity.
SECTION 5.10. Unconditional Right of Holders of Trust Certificates
To ▇▇▇ for Principal and Interest. Notwithstanding any other provision in this
Agreement, the right of any holder of any Trust Certificate to receive payment
of the principal of and interest on such Trust Certificate, on or after the due
date expressed in such Trust Certificate, or to institute suit for the
enforcement of any such payment on or after such date, shall not be impaired or
affected without the consent of such holder, except no such suit shall be
instituted if and to the extent that the institution or prosecution thereof or
the entry of judgment therein would, under applicable law, result in the
surrender, impairment, waiver or loss of the title reserved under this
Agreement upon any property subject hereto.
SECTION 5.11. Remedies Cumulative; Subject to Mandatory
Requirements of Law. The remedies in this Agreement provided in favor of the
Trustee and the holders of the Trust Certificates shall not be deemed
exclusive, but shall be cumulative, and shall be in addition to all other
remedies in their favor existing at law or in equity; and such remedies shall
be subject in all respects to any mandatory requirements of law at the time
applicable thereto, to the extent such requirements may not be waived on the
part of the Company.
ARTICLE SIX
Additional Agreements by the Company
SECTION 6.01. Guarantee of the Company. The Company guarantees
that the holder of each of the Trust Certificates shall receive the principal
amount thereof, in such coin or currency of the United States of America as, at
the time of payment, shall be legal tender for the payment of public and
private debts, when and as the same shall become due and payable in accordance
with the provisions thereof or of this Agreement (and, if not so paid, with
interest thereon until paid at the Penalty Rate, to the extent legally
enforceable), and shall receive
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interest thereon in like money at the rate specified therein, at the times and
place and otherwise as expressed in the Trust Certificates and this Agreement
(and, if not so paid, with interest thereon until paid at the Penalty Rate, to
the extent legally enforceable); and the Company agrees to endorse upon each of
the Trust Certificates, at or before the issuance and delivery thereof by the
Trustee, its guarantee of the prompt payment of the principal thereof and of
the interest thereon, in substantially the form herein set forth. Said
guarantee so endorsed shall be signed in the name and on behalf of the Company
by the manual or facsimile signature of its President, a Vice President or
Treasurer. In case any officer of the Company whose signature shall appear on
said guaranty shall cease to be such officer before the Trust Certificates
shall have been issued and delivered by the Trustee, or shall not have been
acting in such capacity on the date of the Trust Certificates, such guarantee
shall nevertheless be as effective and binding upon the Company as though the
person who signed said guarantee had not ceased to be or had then been such
officer.
SECTION 6.02. Discharge of Liens. The Company agrees that it will
pay and discharge, or make adequate provision for the payment or discharge of,
any debt, tax, charge, assessment, obligation or claim which if unpaid might
become a lien or charge upon or against any of the Trust Equipment; but this
provision shall not require the payment of any such debt, tax, charge,
assessment, obligation or claim so long as the validity thereof shall be
contested in good faith and by appropriate legal proceedings that do not
materially endanger the rights or interests of the Trustee or of the holders of
the Trust Certificates and the Company shall have furnished the Trustee with an
Opinion of Counsel to such effect.
If the Company does not forthwith pay and discharge, or cause to be
paid and discharged, or make adequate provision for the satisfaction or
discharge of, any such debt, tax, charge, assessment, obligation or claim as
required by this Section, the Trustee may, but shall not be obligated to, pay
and discharge the same and any amounts so paid shall be secured by and under
this Agreement until reimbursed by the Company.
SECTION 6.03. Further Assurances. The Company agrees to do all
such acts and execute all such instruments of further assurance as it shall be
reasonably requested by the Trustee to do or execute for the purpose of fully
carrying out and effectuating this Agreement and the intent hereof.
SECTION 6.04. Payment of Expenses; Recording. The Company agrees
to pay the expenses incident to the preparation and execution of the Trust
Certificates to be issued hereunder, or connected with the preparation,
execution, recording and filing of this Agreement and of any instruments
executed under the provisions hereof. The Company shall, promptly after the
execution and delivery of this Agreement (and prior to the delivery of any of
the Trust Equipment hereunder pursuant to Section 3.01 hereof) and each
supplement hereto, respectively, cause this Agreement and such supplement, as
the case may be, to be duly filed with the Surface Transportation Board of the
Department of Transportation in accordance with ___ U.S.C. Section _____ and to
be duly deposited with the Registrar General of Canada pursuant to Section 90
of the Railway Act (Canada) and shall provide for publication of notice of such
deposit in The
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Canada Gazette in accordance with said Section 90. The Company will from time
to time reregister, refile and rerecord this Agreement and each supplement
hereto and do and perform any other act and will execute, acknowledge, deliver,
file, register and record any and all further instruments required by the law
of any jurisdiction in which use of the Equipment is permitted by Section 4.09
hereof or reasonably requested by the Trustee for the purpose of proper
protection of the title of the Trustee and the rights of the holders of the
Trust Certificates and of fully carrying out and effectuating this Agreement
and the intent hereof; provided, however, that the Company shall not be
required to take any such action if (1) such action is unduly burdensome and
(2) after giving effect to the failure to take such action, the Company has
taken all action required by law so as to protect the title of the Trustee to
units of Trust Equipment having a Value of not less than 908 of the aggregate
Value of all the Trust Equipment.
Promptly after the execution and delivery of this Agreement and each
supplement hereto, the Company shall furnish to the Trustee an Opinion of
Counsel stating that, in the opinion of such counsel, this Agreement or such
supplement, as the case may be, has been properly recorded, filed and deposited
in compliance with the preceding paragraph of this Section and reciting the
details of such action and no other filing or recordation or refiling or
rerecordation or depositing or redepositing is necessary for the protection of
the rights of the Trustee in the United States of America, any State thereof or
the District of Columbia or Canada or any subdivision thereof. The Company
shall furnish to the Trustee, not later than August 1 in each year, commencing
with the year ___, an Opinion of Counsel stating that, in the opinion of such
counsel, either (i) such action has been taken with respect to the recording,
filing, registering and depositing and rerecording, refiling, reregistering and
redepositing of this Agreement and each supplement hereto as is necessary to
comply with the preceding paragraph of this Section and reciting the details of
such action or (ii) no such action is necessary for such purpose. In rendering
any such opinion, such counsel may conclusively rely upon an Officers'
Certificate as to the location of the Trust Equipment.
ARTICLE SEVEN
Concerning the Holders of Trust Certificates
--------------------------------------------
SECTION 7.01. Evidence of Action Taken by Holders of Trust
Certificates. Whenever in this Agreement it is provided that the holders of a
specified percentage in aggregate unpaid principal amount of the Trust
Certificates may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the holders of
such specified percentage have joined therein may be evidenced by any
instrument or any number of instruments of similar tenor executed by holders of
Trust Certificates in person or by agent or proxy appointed in writing.
SECTION 7.02. Proof of Execution of Instruments and of Holding of
Trust Certificates. The execution of any instrument by a holder of Trust
Certificates or his agent or
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proxy may be proved by the certificate of any notary public or other officer of
any jurisdiction within the United States of America or Canada authorized to
take acknowledgments of deeds to be recorded in such jurisdiction that the
person executing such instrument acknowledged to him the execution thereof, or
by an affidavit of a witness to such execution sworn to before any such notary
or other such officer.
The ownership of Trust Certificates may be proved by the register of
such Trust Certificates or by a certificate of the registrar thereof.
SECTION 7.03. Trust Certificates Owned by Company. In determining
whether the holders of the requisite principal amount of the Trust Certificates
have concurred in any direction, request, consent, amendment or waiver under
this Agreement, Trust Certificates which are owned by the Company or by any
other obligor on the Trust Certificates or by an Affiliate of the Company or
any such other obligor shall be disregarded, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, request or consent, only Trust Certificates which the Trustee
actually knows are so owned shall be disregarded.
SECTION 7.04. Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.01, of the taking of any action by the holders of the required percentage in
aggregate unpaid principal amount of the Trust Certificates specified in this
Agreement, any holder of a Trust Certificate may, by filing written notice with
the Trustee at the Corporate Trust Office and upon proof of holding as provided
in Section 7.02, revoke such action insofar as concerns such Trust Certificate.
Except as aforesaid, any such action taken by the holder of any Trust
Certificate shall be conclusive and binding upon such holder and upon all
future holders and owners of such Trust Certificate and of any Trust
Certificate issued in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon such Trust
Certificate. Any action taken by the holders of the required percentage in
aggregate unpaid principal amount of the Trust Certificates specified in this
Agreement shall be conclusive and binding upon the Company, the Trustee and the
holders of all the Trust Certificates.
SECTION 7.05. Amendment or Waiver. Any provision of this Agreement
may be amended or waived with the written consent of the holders of not less
than 66-2/3% of the aggregate unpaid principal amount of the Trust Certificates
then outstanding; provided, however, that without the consent of the holders of
100% of the aggregate unpaid principal amount of Trust Certificates then
outstanding, no such amendment or waiver shall (1) change the amount of
principal, change the amount or dates of payment of installments of principal
or reduce the rate or extend the time of payment of interest with respect to
the Trust Certificates without the consent of the holders of each Trust
Certificate so affected, (2) reduce the amount of or extend the time of payment
of any rentals payable under this Agreement or release or provide for the
release of any of the Trust Equipment or any other property or cash held by the
Trustee in trust, otherwise than as expressly permitted by the present terms of
this Agreement, or (3) reduce the
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percentage of the aggregate unpaid principal amount of Trust Certificates then
outstanding, theholders of which are required to approve any amendment or to
effect any waiver.
ARTICLE EIGHT
The Trustee
-----------
SECTION 8.01. Acceptance of Trust. The Trustee hereby accepts the
trust imposed upon it by this Agreement and agrees to perform the same as
herein expressed.
SECTION 8.02. Duties and Responsibilities of the Trustee. In case
an Event of Default has occurred (which has not been cured), the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default and
after the curing of all Events of Default which may have occurred:
(1) the duties and obligations of the Trustee
shall be determined solely by the express provisions of this
Agreement, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the
Trustee; and
(2) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this
Agreement; but in the case of any such certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not
they conform to the requirements of this Agreement;
(b) the Trustee shall not be liable for any error of
judgment made in good faith, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts or that its
action or inaction was contrary to the express provisions of this
Agreement;
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(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the holders of more than 50% in aggregate unpaid
principal amount of the then outstanding Trust Certificates relating
to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Agreement;
(d) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, Trust
Certificate, guarantee or other paper or.document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(e) the Trustee may consult with counsel, and any Opinion
of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered by it hereunder in good faith
and in accordance with such Opinion of Counsel and not contrary to any
express provisions of this Agreement;
(f) the Trustee shall be under no obligation to exercise
any of its rights or powers vested in it by this Agreement at the
request, order or direction of any of the holders of the Trust
Certificates, pursuant to the provisions of this Agreement, unless
such holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred therein or thereby; and
(g) the Trustee shall not be liable for any action taken
by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement.
SECTION 8.03. Application of Rentals. The Trustee agrees to apply
the rentals received by it under Section 4.04(B) when and as the same shall be
received, and to the extent that such rentals shall be sufficient therefor, for
the purposes specified in Section 4.04(B). In the event that rentals received
by the Trustee under Sections 4.04(B)(3) or 4.04(B)(4) are not sufficient to
pay in full the interest or principal then due and owing on the Trust
Certificates, such rentals shall be applied by the Trustee pro rata to each of
the Trust Certificates first to interest and then to principal then due and
payable.
The Trustee shall not be required to undertake any act or duty in the
way of insuring, taking care of or taking possession of the Trust Equipment or
to undertake any other act or duty under this Agreement until fully indemnified
by the Company or by one or more of the holders of the Trust Certificates
against all liability and expenses; and the Trustee shall not be responsible
for the filing or recording or refiling or rerecording of this Agreement or of
any supplement hereto or statement of new numbers.
SECTION 8.04. Funds May be Held by Trustee; Investments. Any funds
at any time paid to or held by the Trustee hereunder until paid out by the
Trustee as herein provided
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may be carried by the Trustee on deposit with itself, and the Trustee will not
be obligated to pay interest on such funds.
At any time, and from time to time, if at the time no Event of Default
shall have occurred and be continuing, the Trustee, on Request, shall invest
and reinvest Deposited Cash held by it or cash deposited with it pursuant to
Section 4.07 or Section 4.08 (hereinafter in this Section called "Replacement
Funds") in Investments, at such prices, not in excess of fair market value at
the time of investment, including any premium and accrued interest, as are set
forth in such Request, such Investments to be held by the Trustee in trust for
the benefit of the holders of the Trust Certificates.
The Trustee shall, on Request, or the Trustee may, in the event funds
are required for payment against delivery of Trust Equipment or for payment of
the principal of or interest on any Trust Certificate, or in the event of a
Default, sell such Investments, or any portion thereof, and restore to
Deposited Cash or Replacement Funds, as the case may be, the proceeds of any
such sale up to the amount paid for such Investments, including accrued
interest, or apply such proceeds to the payment of said principal and interest
if and to the extent such proceeds are needed therefor. The Trustee shall not
be deemed responsible for any loss resulting from the purchase and sale of such
Investments on Request unless such loss results from the misconduct or
negligence of the Trustee, and upon demand of the Trustee the Company will
reimburse the Trustee for any such loss for which the Trustee is not
responsible.
The Trustee shall restore to Deposited Cash or Replacement Funds, as
the case may be, out of rent received by it for that purpose under the
provisions of Section 4.04(B)(1), an amount equal to any expenses reasonably
incurred in connection with any purchase or sale of Investments and also an
amount equal to any loss of principal incident to the sale or redemption of any
Investments for a sum less than the amount paid therefor, including accrued
interest.
The Company, if not to the knowledge of the Trustee in Default, shall
be entitled to receive any interest allowed as provided in the first paragraph
of this Section and any interest (in excess of accrued interest paid from
Deposited Cash at the time of purchase) or other profit which may be realized
from any sale or redemption of Investments.
SECTION 8.05. Trustee Not Liable for Delivery Delays or Defects in
Equipment or Title. The Trustee shall not be liable to anyone for any delay in
the delivery of any of the Trust Equipment, or for any default on the part of
the manufacturers thereof or of the Company, or for any defect in any of the
Trust Equipment or in the title thereto, nor shall anything herein be construed
as a warranty on the part of the Trustee in respect thereof or as a
representation on the part of the Trustee in respect of the value thereof or in
respect of the title thereto or otherwise.
The Trustee may perform its powers and duties with respect to the
delivery and acceptance of the Trust Equipment by or through such attorneys,
agents and servants as it shall appoint, and shall be answerable only for its
own acts, negligence and willful defaults and not
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for the default or misconduct of any attorney, agent or servant appointed by it
in respect thereof with reasonable care.
The Trustee shall be entitled to receive payment of all of its
reasonable expenses and disbursements hereunder, including reasonable counsel
fees, and to receive reasonable compensation for all services rendered by it in
the execution of the trust hereby created, all of which shall be paid by the
Company.
The Trustee in its individual capacity may own, hold and dispose of
Trust Certificates.
Any moneys at any time held by the Trustee or any paying agent
hereunder shall until paid out or invested by the Trustee or any paying agent
as herein provided, be held by it in trust as herein provided for the benefit
of the holders of the Trust Certificates.
SECTION 8.06. Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee may resign and be discharged of the trust created by
this Agreement by giving 30 days' written notice to the Company and such
resignation shall take effect upon the earlier of 30 days after the delivery
thereof to the Company or receipt by the Trustee of an instrument of acceptance
executed by a successor trustee as hereinafter provided in Section 8.07.
(b) The Trustee may be removed at any time by an instrument in
writing signed by the holders of more than 50% in principal amount of the Trust
Certificates then outstanding, delivered to the Trustee and to the Company.
(c) If at any time the Trustee shall resign or be removed or
otherwise become incapable of acting or, if at any time a vacancy shall occur
in the office of the Trustee for any other cause, a successor trustee may be
appointed by the holders of more than 50% of the aggregate principal amount of
the then outstanding Trust Certificates by an instrument in writing delivered
to the Company and the Trustee. Until a successor trustee shall be appointed
by the holders of Trust Certificates as herein authorized, the Company by an
instrument in writing executed by order of its Board of Directors shall appoint
a trustee to fill such vacancy. A successor trustee so appointed by the
Company shall immediately and without further act be superseded by a successor
trustee appointed by the holders of Trust Certificates in the manner provided
above. Every successor trustee appointed pursuant to this Section shall be a
national bank, or a bank or trust company organized and doing business under
the laws of the United States of America, any State or Territory thereof or of
the District of Columbia, and having capital and surplus of not less than
$250,000,000, if there be such an institution willing, qualified and able to
accept the trust upon reasonable or customary terms.
(d) The Company shall give notice of each resignation, removal or
incapacity of the then Trustee or of a vacancy occurring in the office of the
Trustee for any other cause and of each appointment by the Company of a
successor trustee pursuant to paragraph (c) of this Section by mailing written
notice of such event by first-class mail, postage prepaid, to the holders of
all outstanding Trust Certificates.
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SECTION 8.07. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 8.06 shall execute,
acknowledge and deliver to the Company and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with like effect as if originally named as Trustee herein; but, nevertheless,
on the written request of the Company or of the successor trustee, upon payment
of its charges then unpaid, the trustee ceasing to act shall execute and
deliver an instrument transferring to such successor trustee all the rights and
powers of the trustee so ceasing to act. Upon request of any such successor
trustee, the Company shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all
such rights and powers. Any trustee ceasing to act shall, nevertheless, retain
a lien upon all property or funds held or collected by such trustee to secure
any amounts then due it pursuant to the provisions of Section 8.05.
SECTION 8.08. Merger or Consolidation of Trustee. Any corporation
qualified under the provisions of Section 8.06 into which the Trustee may be
merged or with which it may be consolidated or any such corporation resulting
from any merger or consolidation to which the Trustee shall be a party or to
which all or substantially all the corporate trust business of the Trustee
shall be transferred shall be the successor of the Trustee hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
SECTION 8.09. Return of Certain Moneys to Company. Notwithstanding
any provision of this Agreement, any moneys paid to the Trustee which are
applicable to the payment of the principal of or interest on any Trust
Certificates which remain unclaimed for two years after the day when such
moneys were due and payable shall then be repaid to the Company upon Request,
and the holders of such Trust Certificates shall thereafter be entitled to look
only to the Company for payment thereof and all liability of the Trustee with
respect to such moneys shall thereupon cease.
ARTICLE NINE
Miscellaneous
-------------
SECTION 9.01. Rights Confined to Parties and Holders. Nothing
expressed or implied herein shall be construed to confer upon any person, firm
or corporation, other than the parties hereto and the holders of the Trust
Certificates, any right, remedy or claim under or by reason of this Agreement
or of any term, agreement or condition herein, and all the terms, covenants and
conditions herein shall be for the sole and exclusive benefit of the parties
hereto and their successors and of the holders of the Trust Certificates.
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SECTION 9.02. No Recourse. No recourse under this Agreement, or
under the guaranty endorsed on any Trust Certificate, shall be had against any
person, solely by reason of the fact that he is a stockholder, officer or
director of the Company, as such, by the enforcement of any assessment or by
any legal or equitable proceeding, by virtue of any statute or otherwise; it
being expressly agreed that this Agreement and said guaranty are solely
corporate obligations, and that no personal liability whatever shall attach to
or be incurred by any person, solely by reason of the fact that he is a
stockholder, officer or director of the Company, under or by reason of any of
the terms, agreements or conditions contained in this Agreement or in said
guarantee, or implied therefrom, and that any and all such personal liability,
either at common law or in equity, or by statute or constitution, is hereby
expressly waived as a condition of and consideration for the execution of this
Agreement and said guarantee.
SECTION 9.03. Binding Upon Assigns. Except as otherwise provided
herein, the provisions of this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
assigns.
SECTION 9.04. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been received by the
addressee on the date of actual receipt (if such date is a Business Day,
otherwise on the next Business Day), if transmitted by mail, telex, telecopy
(confirmed by hard copy) or similar transmission, or by hand, addressed as
follows: (a) in the case of the Company, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ marked to the attention of its
Treasurer, or such other address as may hereafter be furnished to the Trustee
in writing by the Company, (b) in the case of the Trustee, the address set
forth in the definition of Corporate Trust Office in Section 1.01 or such other
address as may hereafter be furnished to the Company in writing by the Trustee,
facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, and (c) in the case of any holder of Trust
Certificates, at its address shown on the registry books maintained by the
Trustee or at such other address as such holder may from time to time furnish
to the Trustee for such purpose. An affidavit by any person representing or
acting on behalf of the Company or the Trustee, as to such mailing, having the
registry receipt attached, shall be conclusive evidence of the giving of such
demand, notice or communication.
SECTION 9.05. Effect of Headings: Date Executed; and Governing Law.
(a) The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
(b) This Agreement shall be deemed to have been executed on the
date of the acknowledgment thereof by the officer of the Trustee who signed it
on behalf of the Trustee.
(c) This Agreement shall be governed by the laws of the State of
Illinois.
SECTION 9.06. Legal Holidays. In any case where any date for
payment of interest, date for payment of rental or date of maturity of any
installment of principal on the
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Trust Certificates shall not be a Business Day, then, notwithstanding any other
provision of this Agreement or the Trust Certificates, payment need not be made
on such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on such date for payment of interest, date for
payment of rental or date of maturity of any installment of principal on the
Trust Certificates, and if payment is made on such next succeeding Business Day
no interest shall accrue on the amount of such payment for the period from and
after such date for payment of interest, or for payment of rental or date of
maturity of any installment of principal on the Trust Certificates, as the case
may be, to and including such next succeeding Business Day.
SECTION 9.07. Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Trustee have caused their
names to be signed hereto by their respective officers thereunto duly
authorized and their respective corporate seals, duly attested, to be hereunto
affixed on the day and year first above written.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
Trustee
By
---------------------------------------
Title:
Attest:
------------------------------------
Authorized Officer
UNION TANK CAR COMPANY
By
----------------------------------------
Title:
Attest:
----------------------------------
Secretary
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STATE OF ILLINOIS )
) ss.:
COUNTY OF ▇▇▇▇ )
On this, _____ day of _________,______, before me personally appeared
________________, to me personally known, who, being by me duly sworn, says that
such person is ____________________ of ▇▇▇▇▇▇ TRUST AND SAVINGS BANK, and that
said instrument was signed on behalf of said bank by authority of its Board of
Directors and he acknowledged that the execution of the foregoing instrument was
the free act and deed of said bank.
_________________________________________
Notary Public
[Notarial Seal]
My Commission expires ________
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STATE OF ILLINOIS )
) ss.:
COUNTY OF ▇▇▇▇ )
On this _____ day of _________,_____, before me personally appeared
_______________, to me personally known, who, being by me duly sworn, says that
he is __________________ of UNION TANK CAR COMPANY, and that said instrument
was signed on behalf of said corporation by authority of its Board of Directors
and he acknowledged that the execution of the foregoing instrument was the free
act and deed of said corporation.
_____________________________________
Notary Public
[Notarial Seal]
My Commission expires ________________
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