EXHIBIT 4(m)
Twentieth Supplemental Collateral Trust Indenture dated December 15, 1999
EXHIBIT 4(m)
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▇▇▇▇▇▇▇ TRUCK LEASING CORP.
and
FIRST UNION NATIONAL BANK
as Trustee
TWENTIETH SUPPLEMENTAL INDENTURE
Dated as of December 15, 1999
to the
Collateral Trust Indenture
Dated as of March 21, 1983
7.77% COLLATERAL TRUST DEBENTURES, Series U, DUE DECEMBER 15, 2004
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TABLE OF CONTENTS*
Page
PARTIES.....................................................................1
RECITALS:
Execution of Collateral Trust Indenture Supplemental
Indentures...............................................................1
Issuance of Series U Debentures..........................................1
Text of Forms:
Form of Face of Series U Debentures...................................1
Form of Trustee's Authentication Certificate for Series U Debentures 3
Form of Reverse of Series U Debentures................................3
All Things Done..........................................................5
GRANTING CLAUSES:
GRANTING CLAUSE I - Securities.....................................6
GRANTING CLAUSE II - Agreements and Assignments....................6
GRANTING CLAUSE III - Other Securities and Property................6
HABENDUM....................................................................6
GRANT IN TRUST..............................................................7
GENERAL COVENANT............................................................7
SECTION 1. Series U Debentures: Terms and Provisions........................7
SECTION 2. Authentication and Delivery of Series U Debentures...............8
SECTION 3. Maintenance of Office or Agency; Authenticating Agent for
Series U Debentures...........................................8
SECTION 4. Original Indenture Ratified......................................8
SECTION 5. Trustee Not Responsible..........................................8
SECTION 6. Defined Terms....................................................9
SECTION 7. Counterparts.....................................................9
SECTION 8. Applicable Law...................................................9
TESTIMONIUM................................................................10
EXECUTION..................................................................10
ACKNOWLEDGEMENTS...........................................................10
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*Note: This Table of Contents has been inserted for convenience and does not
constitute a part of the Twentieth Supplemental Indenture.
TWENTIETH SUPPLEMENTAL INDENTURE (herein called the "Twentieth
Supplemental Indenture"), dated as of December 15, 1999, between ▇▇▇▇▇▇▇ Truck
Leasing Corp., (formerly RLC CORP.) a Delaware corporation (herein called the
"Corporation"), and FIRST UNION NATIONAL BANK, as Trustee (herein called the
"Trustee").
WHEREAS, the Corporation and the Trustee have heretofore executed
and delivered a Collateral Trust Indenture dated as of March 21, 1983, as
supplemented and amended by a Third Supplemental Indenture thereto dated as of
February 20, 1986, by an Eighth Supplemental Indenture thereto dated May 15,
1990 and by a Seventeenth Supplemental Indenture thereto dated as of March 10,
1997 (the "Original Indenture"; the Original Indenture, and as supplemented by
this Twentieth Supplemental Indenture, being herein called the "Indenture");
WHEREAS, the Original Indenture provides that the Corporation and
the Trustee may enter into indentures supplemental to the Original Indenture,
among other things, to provide for the issuance from time to time of
debentures (defined in the Original Indenture as "Debentures") of the
Corporation;
WHEREAS, the Corporation has determined to issue hereunder a series
of Debentures (herein called the "Series U Debentures") to be designated as
"7.77% Collateral Trust Debentures, Series U, Due December 15, 2004", to be in
the aggregate principal amount of $85,000,000;
WHEREAS, the Series U Debentures and the Trustee's certificate to be
endorsed on the Series U Debentures are to be in the following forms, with
necessary or appropriate variations, omissions and insertions as permitted or
required by the Indenture:
(FORM OF FACE OF Series U DEBENTURES)
▇▇▇▇▇▇▇ Truck Leasing Corp.
7.77% COLLATERAL TRUST DEBENTURE, Series U, DUE DECEMBER 15, 2004
$ PPN 775741 B* 1
No.
▇▇▇▇▇▇▇ Truck Leasing Corp., a corporation organized and existing
under the laws of the State of Delaware (herein called the "Corporation",
which term shall include any successor corporation to the extent provided in
the Indenture hereinafter referred to), for value received, hereby promises to
pay to , or registered assigns, the principal sum of Dollars on December 15,
2004, in such coin or currency of the United States of America as at the time
of payment shall be legal tender for public and private debts, and to pay
interest
on said principal sum at the rate of 7.77% per annum (and at the rate of 9.77%
per annum on any overdue principal and, to the extent legally enforceable,
overdue installment of interest) in like coin or currency from the fifteenth
day of June or December, as the case may be, to which interest on the Series U
Debentures has been paid preceding the date hereof (unless the date hereof is
a June 15 or December 15 to which interest has been paid, in which case from
the date hereof, or unless no interest has been paid on the Series U
Debentures since the original issuance of this Debenture, in which case from
December 15, 1999), semiannually on each June 15 and December 15 until payment
of said principal sum has been made or duly provided for. Notwithstanding the
foregoing, if the date hereof is after June 1 or December 1, as the case may
be, and before the following June 15 or December 15, this Debenture shall bear
interest from such June 15 or December 15; provided, however, that if the
Corporation shall default in the payment of interest due on such June 15 or
December 15, then this Debenture shall bear interest from the next preceding
June 15 or December 15 to which interest has been paid or, if no interest has
been paid on the Series U Debentures since the original issuance of this
Debenture, from December 15, 1999. The interest so payable on any June 15 or
December 15 will, subject to certain exceptions provided in the Indenture
referred to on the reverse hereof, be paid to the person in whose name this
Debenture is registered at the close of business on June 1 or December 1, as
the case may be, next preceding such June 15 or December 15. Payment of the
principal of and interest on this Debenture will be made at the office or
agency of the Corporation in the Borough of Manhattan, The City of New York,
New York; provided, however, that interest may be paid, at the option of the
Corporation, by check mailed to the registered holder hereof at such holder's
address last appearing on the registry books for the Series U Debentures, or
in such other manner as the Corporation may agree with the holder hereof as
contemplated by Section 1(d) of the Twentieth Supplemental Indenture referred
to on the reverse hereof.
Additional provisions of this Debenture are contained on the reverse
hereof and such provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Debenture shall not be entitled to any of the benefits of the
Indenture or any indenture supplemental thereto, or be valid or obligatory for
any purpose, unless the form of certificate of authentication hereon shall
have been executed by or on behalf of the Trustee (referred to on the reverse
hereof) or a successor trustee thereto under the Indenture.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇ Truck Leasing Corp. has caused this
instrument to be signed in its name by its President or a Vice President and
by its Secretary or an Assistant Secretary, or by facsimiles of any of their
signatures, and its corporate seal, or a facsimile thereof, to be hereto
affixed.
DATED:
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▇▇▇▇▇▇▇ Truck Leasing Corp.
BY:
--------------------------
(Title)
(SEAL)
ATTESTED:
------------------------------
(Title)
(FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE)
TRUSTEE'S AUTHENTICATION CERTIFICATE
THIS IS ONE OF THE DEBENTURES, OF THE SERIES DESIGNATED THEREIN,
DESCRIBED IN THE WITHIN-MENTIONED INDENTURE.
FIRST UNION NATIONAL BANK,
AS TRUSTEE
BY:
-------------------------------
AUTHORIZED OFFICER
(FORM OF REVERSE OF Series U DEBENTURES)
This Debenture is one of the Debentures of the Corporation (herein
called the "Debentures"), all duly authorized or from time to time to be duly
authorized and not limited in aggregate principal amount, all issued and to be
issued in one or more series from time to time under and equally secured by a
Collateral Trust Indenture dated as of March 21, 1983, between the Corporation
and First Union National Bank, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture as hereinafter
defined), as supplemented and amended by a Third Supplemental Indenture
thereto dated as of February 20, 1986, by an Eighth Supplemental Indenture
thereto dated as of May 15, 1990 and by a Seventeenth Supplemental Indenture
thereto dated as of March 10, 1997 and as last supplemented by the Twentieth
Supplemental Indenture, dated as of December 15, 1999 (said Indenture, as so
supplemented and amended, being herein called the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a description of the property thereby pledged, the nature and extent of the
security, the rights of the holders of the Debentures in respect of the
security, the rights, duties and immunities of the Trustee and the rights and
obligations of the Corporation in respect of the Debentures, and the terms and
conditions upon which the Debentures are, and are to be, secured. The
Debentures may be issued in series, for various principal sums, may mature at
different times, may bear interest at different rates and may otherwise vary
as in the Indenture provided. This Debenture is one of a series designated as
the "7.77% Collateral Trust Debentures, Series U, Due December 15, 2004" of
the Corporation (herein called the "Series U Debentures"), duly authorized and
lawfully issued in an aggregate principal amount of $85,000,000 under and
secured by the Indenture.
The provisions of the Indenture may be waived, or modified or
amended by supplemental indenture, to the extent and in the manner provided in
the Indenture, but in certain instances only with the consent of the holders
of a majority in aggregate principal amount of all Debentures at the time
outstanding, and of 66 2/3% in aggregate principal amount of each series of
the Debentures at the time outstanding which is affected by such waiver or
supplemental indenture; provided, however, that, without the written consent
of the holder of this Debenture, no such modification or amendment shall be
made so as to (i) extend the fixed maturity of this Debenture or the time of
payment of interest hereon, or reduce or otherwise modify the terms of payment
of the principal of, or the rate of interest on, this Debenture, or adversely
affect the right of the holder hereof to institute suit for the enforcement of
any such payment, (ii) permit the creation of any lien ranking prior to or on
a parity with the lien of the Indenture with respect to, or terminate the lien
of the Indenture on, any of the property covered thereby, or deprive the
holder hereof of the security afforded by the lien of the Indenture or (iii)
reduce the percentage of the aggregate principal amount of Debentures, or of
Series U Debentures, required to authorize any such modification or amendment
or any waiver of any provision of, or default under, the Indenture.
In case an Event of Default (as defined in the Indenture) shall
occur, the principal of all the Debentures at any such time outstanding under
the Indenture may be declared or may become due and payable upon the
conditions and in the manner and with the effect provided in the Indenture.
The Indenture provides that in certain events such Event of Default and its
consequences may be waived and such declaration may be rescinded by the
holders of outstanding Debentures in the manner provided in the Indenture.
Any request, demand, authorization, direction, declaration, notice,
consent, waiver or other action by the holder of this Debenture shall bind the
holder of every Debenture issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, in respect of anything done or suffered
to be done by or on behalf of the Trustee or the Corporation in reliance
thereon, whether or not notation of such action is made upon this Debenture.
The Series U Debentures may not be redeemed prior to maturity.
The transfer of this Debenture may be registered by the registered
holder hereof or by his duly authorized attorney at the office or agency of
the Corporation in the Borough of Manhattan, the City of New York, New York,
upon surrender of this Debenture for cancellation, accompanied by a written
instrument of transfer in a form approved by the Corporation, duly executed by
the registered holder of this Debenture or by his duly authorized attorney,
and thereupon one or more new Debentures of the same series and aggregate
principal amount will be issued in the name of the transferee or transferees
in exchange herefor without
service charge, except that the Corporation may require payment of a sum
sufficient to pay any stamp taxes or other governmental charges that may be
required with respect thereto, as provided in the Indenture.
The person in whose name this Debenture shall be registered shall be
deemed the absolute owner hereof for all purposes, and payment of or on
account of the principal of and interest on, this Debenture shall be made only
to or upon the written order of such registered owner or his duly authorized
attorney. All such payments shall satisfy and discharge the liability upon
this Debenture to the extent of the amounts so paid.
No recourse shall be had for the payment of the principal of, or
interest on, this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Corporation or any
successor corporation, whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
(END OF FORM OF REVERSE OF Series U DEBENTURES)
WHEREAS, the Debentures of any other series are to be substantially
in the forms herein provided for Series U Debentures, with such omissions,
insertions and variations as may be authorized and permitted by this
Indenture; and
WHEREAS, all acts and things prescribed by law, by the Certificate
of Incorporation and the By-laws of the Corporation, and all other acts and
things necessary to make the Series U Debentures, when executed by the
Corporation, and authenticated and delivered by the Trustee as in this
Twentieth Supplemental Indenture provided, the valid, binding and legal
obligations of the Corporation, and to make this Twentieth Supplemental
Indenture a valid, binding and legal instrument for the security of the Series
U Debentures, in accordance with its terms, have been done and performed;
NOW, THEREFORE, THIS TWENTIETH SUPPLEMENTAL INDENTURE WITNESSETH:
THAT the Corporation, in consideration of these premises, of the
acceptance by the Trustee of the trusts created hereby, of the mutual
covenants herein contained, of the purchase and acceptance of the Debentures
by the holders thereof, of the sum of $10 duly paid by the Trustee to the
Corporation at or before the ensealing and delivery of this Twentieth
Supplemental Indenture and for other valuable consideration, the receipt
whereof is hereby acknowledged, and in order to secure the payment of the
principal of, and premium, if any, and
interest on, all Debentures at any time issued and Outstanding under the
Indenture, according to their tenor and effect, and the performance and
observance by the Corporation of all the covenants and conditions herein and
therein contained on its part to be performed and observed, and to declare the
terms and conditions upon and subject to which the Debentures are, and are to
be, issued and secured, has executed and delivered this Indenture and has
granted, bargained, sold, remised, released, conveyed, assigned, transferred,
mortgaged, pledged, set over, confirmed and warranted, and by these presents
does grant, bargain, sell, remise, release, convey, assign, transfer,
mortgage, pledge, set over, confirm and warrant, to the Trustee, and to its
successors in the trusts and its and their assigns forever, with power of
sale, all and singular the following:
GRANTING CLAUSE I
Securities
Note of ▇▇▇▇▇▇▇ Leasing Corp., a Delaware corporation, dated
December 15, 1999, in the aggregate principal amount of $85,000,000.
GRANTING CLAUSE II
Agreements and Assignments
The following agreements and assignments:
A. A Loan Agreement, dated as of December 15, 1999, between the
Corporation and ▇▇▇▇▇▇▇ Leasing Corp., which Loan Agreement shall be in the
form attached hereto as Exhibit A.
B. Assignment of Loan Agreement, dated as of December 15, 1999,
assigning the Loan Agreement described in Subparagraph A of this Granting
Clause II to the Trustee, which Assignment shall be in the form attached
hereto as Exhibit B.
GRANTING CLAUSE III
Other Securities and Property
All other securities and other property, including cash, and any and
all security therefor of whatsoever nature, that may, from time to time
hereafter, by delivery or by writing of any kind, be subjected to the lien
hereof by the Corporation or by anyone on its behalf; and the Trustee is
hereby authorized to receive the same as additional security hereunder. Such
subjection to the lien hereof of such securities or other property, including
cash, as additional
security hereunder may be made subject to any reservations, limitations or
conditions which shall not be prohibited by this Indenture and which shall be
set forth in a written instrument executed by the Corporation or the person so
acting on its behalf, respecting the use and disposition of such property or
the proceeds thereof.
TO HAVE AND TO HOLD the Pledged Property unto the Trustee and its
successors and assigns forever;
BUT IN TRUST, NEVERTHELESS, for the equal and proportionate benefit
and security of the holders from time to time of all the Debentures issued
hereunder and Outstanding, without any priority of any of said Debentures over
any of the others.
IT IS HEREBY COVENANTED, DECLARED AND AGREED that all the Debentures
are to be issued, authenticated and delivered, and that all property,
including cash, subject or to become subject hereto is to be held, subject to
the further covenants, conditions, uses and trusts hereinafter set forth, and
the Corporation, for itself and its successors and assigns, hereby covenants
and agrees to and with the Trustee and its successors in said trust for the
equal and proportionate benefit and security of those who shall hold the
Debentures, as hereinafter set forth.
SECTION 1. Series U Debentures: Terms and Provisions. Series U
Debentures shall be designated as "7.77% Collateral Trust Debentures, Series
U, Due December 15, 2004" of the Corporation, and shall have the following
terms and provisions:
(a) Series U Debentures shall be in the form set forth in the
recitals hereto.
(b) The aggregate principal amount of Series U Debentures which may
be issued shall be $85,000,000, except Series U Debentures issued in
exchange for, in lieu of, in substitution for, or upon the registration
of transfer of, other Series U Debentures pursuant to the provisions of
Article II and Section 18.04 of the Original Indenture.
(c) Series U Debentures shall be dated December 15, 1999.
(d) Series U Debentures shall mature December 15, 2004 and shall
bear interest (calculated on the basis of a 360 day year of twelve 30 day
months) as provided in Section 2.06(b) of the Original Indenture, payable
semiannually on June 15 and December 15 in each year, commencing June 15,
2000 at the rate of 7.77% per annum until the principal thereof shall
become due and payable (whether at the stated maturity, by declaration or
otherwise), and at the rate of 9.77% per annum on any overdue principal,
and (to the extent legally enforceable) any overdue installment of
interest. Payment of principal and interest shall be made at the
Corporate Trust Office or at the other office or agency maintained by the
Corporation as provided in Section 7.02(a) of
the Original Indenture, 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; provided, however, that interest may be
paid, at the option of the Corporation, by check mailed to the Person
entitled thereto at his address last appearing on the registry books
required to be kept pursuant to Section 2.05 of the Original Indenture.
Notwithstanding anything to the contrary above, the Corporation may
enter into a written agreement with any person who is or is to become the
holder of any of the Series U Debentures providing for the making of all
payments on the account of such Series U Debentures directly to or for
the account of such holder in the manner specified in or pursuant to such
agreement without presentation or surrender thereof if there shall be
filed with the Trustee a copy of such agreement. Notwithstanding any
contrary provision hereof or of the Debentures or the Original Indenture,
the Trustee shall act in accordance with any such agreement so filed with
it.
(e) Series U Debentures shall be issued in denominations of $100,000
and integral multiples thereof and may be fully printed or printed on
steel engraved borders or fully or partly engraved.
(f) Series U Debentures may not be redeemed prior to maturity. All
monies received by the Trustee as a result of any prepayment of the Note
made pursuant to Section 6(a) of the Loan Agreement (as required by
Section 7.14 of the Original Indenture) shall be held by the Trustee as
additional collateral security for the Series U Debentures to be applied
thereto at the maturity thereof. Any monies so held may be invested or
reinvested by the Trustee pursuant to Section 9.02 of the Original
Indenture.
SECTION 2. Authentication and Delivery of Series U Debentures. On or
after the date of execution and delivery of the Twentieth Supplemental
Indenture and upon compliance with the provisions of Article IV of the
Original Indenture, Series U Debentures shall be executed by the Corporation
and delivered to the Trustee, and the Trustee shall, upon request,
authenticate and deliver such Series U Debentures upon the written order of
the Corporation signed by its President or one of its Vice Presidents and its
Treasurer or Controller, an Assistant Treasurer or an Assistant Secretary.
SECTION 3. Maintenance of Office or Agency; Authenticating Agent for
Series U Debentures. The provisions of Section 7.02 of the Original Indenture
shall apply in all respects to the Series U Debentures to the same extent as
if the words "Series U Debentures" were substituted for the words "Series A
Debentures" in each place in which the latter quotation was employed in the
aforesaid Section.
SECTION 4. Original Indenture Ratified. The Original Indenture as
amended by the Third Supplemental Indenture, dated as of February 20, 1986, by
the Eighth
Supplemental Indenture, dated as of May 15, 1990, and by the Seventeenth
Supplemental Indenture, dated as of March 10, 1997, and as supplemented by
this Twentieth Supplemental Indenture is in all respects ratified and
confirmed and the Twentieth Supplemental Indenture and all its provisions
shall be deemed a part thereof in the manner and to the extent herein
provided, and the Original Indenture, as modified in the manner and to the
extent herein provided, shall be deemed a part hereof as though fully set
forth herein.
SECTION 5. Trustee Not Responsible. The Trustee assumes no
responsibility for or in respect of the validity or sufficiency of the
Twentieth Supplemental Indenture or the due execution hereof by the
Corporation or for or in respect of the recitals and statements contained
herein, all of which are made solely by the Corporation. The Trustee accepts
the trusts created by the Twentieth Supplemental Indenture upon the terms and
conditions hereof and of the Original Indenture.
SECTION 6. Defined Terms. All terms used in the Twentieth
Supplemental Indenture which are defined in the Original Indenture shall have
the meanings assigned to them in the Original Indenture.
SECTION 7. Counterparts. The Twentieth Supplemental Indenture may be
executed in any number of counterparts, each of which when so executed and
delivered shall be an original; and all such counterparts shall together
constitute but one and the same instrument.
SECTION 8. Applicable Law. This Twentieth Supplemental Indenture
shall be construed in accordance with and governed by the laws of the State of
Delaware.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇ Truck Leasing Corp. has caused this
Twentieth Supplemental Indenture to be executed on its behalf by its President
or one of its Vice Presidents and its corporate seal to be hereto affixed and
said seal and this Twentieth Supplemental Indenture to be attested by its
Secretary or Assistant Secretary, and First Union National Bank, in evidence
of its acceptance of the trusts hereby created, has caused this Twentieth
Supplemental Indenture to be executed on its behalf and its corporate seal to
be affixed by one of its Vice Presidents or Assistant Vice Presidents and said
seal and this Indenture to be attested by its Assistant Secretary or one of
its Assistant Vice Presidents, as of December 15, 1999.
▇▇▇▇▇▇▇ Truck Leasing Corp.
(CORPORATE SEAL) BY:
--------------------------
Vice President-Finance
Attest:
------------------------------
Secretary
FIRST UNION NATIONAL BANK,
as Trustee
(CORPORATE SEAL) BY:
---------------------------
Title:
Attest:
------------------------------
EXHIBIT A
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▇▇▇▇▇▇▇ TRUCK LEASING CORP.
AND
▇▇▇▇▇▇▇ LEASING CORP.
LOAN AGREEMENT
Dated as of December 15, 1999
==============================================================================
LOAN AGREEMENT (herein called the "Agreement") dated as of December
15, 1999 between ▇▇▇▇▇▇▇ Truck Leasing Corp., a corporation organized under
the laws of the State of Delaware (herein called the "Corporation"), and
▇▇▇▇▇▇▇ Leasing Corp., a corporation organized under the laws of the State of
Delaware (herein called the "Borrower").
WHEREAS, the Borrower desires to borrow from the Corporation, and
the Corporation is willing to lend to the Borrower, a sum not exceeding
$85,000,000, all upon the terms, provisions and conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
undertakings and obligations herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Borrower and the Corporation do hereby agree as follows:
SECTION 1. Certain Definitions. The Corporation proposes to issue
its 7.77% Collateral Trust Debentures, Series U, due December 15, 2004 (herein
called the "Series U Debentures"), in an aggregate principal amount not
exceeding $85,000,000, pursuant to a Collateral Trust Indenture dated as of
March 21, 1983, as supplemented and amended by a Third Supplemental Indenture
thereto dated as of February 20, 1986, by an Eighth Supplemental Indenture
thereto dated as of May 15, 1990 and by a Seventeenth Supplemental Indenture
thereto dated as of March 10, 1997 between the Corporation and First Union
National Bank, as Trustee (the "Original Indenture"; the Original Indenture,
as supplemented by the Twentieth Supplemental Indenture dated as of December
15, 1999, being herein called the "Indenture"). A copy of the Indenture has
been delivered to the Borrower, receipt of which is hereby acknowledged.
The term "Note" shall mean the 7.77% Demand Promissory Note issued
by the Borrower pursuant to this Agreement, substantially in the form attached
hereto as Annex 1.
In addition to the foregoing, the following terms shall in each case
have the same meaning in this Agreement as they have in the Indenture as
amended: "Debentures", "Equipment Indebtedness", "Note", "Outstanding",
"Participating Subsidiary", "Permitted Indebtedness", "Person", "Pledged
Property", "Series U Debentures", "Trustee" and "Vehicle".
SECTION 2. Sale of Note. Subject to the terms of this Agreement, the
Borrower will sell to the Corporation and the Corporation will purchase from
the Borrower the Note in the principal amount of $85,000,000 at a price of
100.0287% of such principal amount.
The sale of the Note will take place immediately after the execution
and delivery of this Agreement and upon the delivery,
(a) by the Borrower to the Corporation of the Note, duly executed
and dated December 15, 1999, together with all such assignments,
documents and other instruments as may be required by the Corporation to
enable it to effect the issuance of Series U Debentures referred to in
Section 1, and
(b) by the Corporation to the Borrower of a certified or official
bank check or checks in clearing house funds (or in such other form as
shall be acceptable to the Borrower) in an amount equal to $85,024,400;
provided, however, that the obligation of the Corporation to purchase the
Note shall be subject to the condition that, concurrently with the
closing in respect of such purchase, the Corporation shall have issued
and sold, and shall have received payment for, Series U Debentures in an
aggregate principal amount equal to the sum of the principal amount of
the Note.
SECTION 3. Pledge and Assignment of Note and Agreement. In
consideration of the purchase of the Note by the Corporation and the benefits
to be derived by the Borrower as a result of the sale of the Note, the
Borrower hereby agrees and consents to the pledge and assignment by the
Corporation of the Note and this Agreement to the Trustee under and pursuant
to the Indenture as security for the Debentures Outstanding and to be
Outstanding thereunder.
SECTION 4. Particular Covenants of the Borrower. So long as the Note
shall be outstanding, the Borrower covenants, warrants and agrees as follows:
(a) Payment of Principal and Interest. The Borrower will duly and
punctually pay, or cause to be paid, the principal of and interest on,
the Note according to its terms and the terms of this Agreement.
(b) Maintenance of Corporate Existence. Subject to the provisions of
subsection (e) of this Section 4, the Borrower will maintain and preserve
its corporate existence and right to carry on business.
(c) Borrower a Participating Subsidiary; Validity of Note. The
Borrower warrants that at the date of this Agreement it is a
Participating Subsidiary as defined in Section 4 of the Eighth
Supplemental Indenture dated as of May 15, 1990, and that the Note, when
delivered to the Corporation will be, and when pledged and assigned to
the Trustee as security under the Indenture, will continue to be, a legal
and valid outstanding obligation of the Borrower.
(d) Further Assurance. The Borrower will execute and deliver, or
cause to be executed and delivered, all such additional instruments and
do, or cause to be done, all such additional acts as (i) may be necessary
or proper to carry out the purposes of this Agreement and to subject the
Note to the lien of the Indenture, (ii) may be necessary or
proper to effect the transfer, pledge and assignment of the Note and this
Agreement to the Trustee or to any successor trustee and to confirm the
lien of the Indenture on the Note, (iii) may be necessary or proper in
connection with the granting of the security interest under subsection
(f) of this Section 4 or (iv) the Trustee or the Corporation may
reasonably request for any of the foregoing purposes.
(e) Restrictions on Borrower's Disposition of Property,
Consolidation, Merger, etc. The Borrower will not sell, transfer or
otherwise dispose of the beneficial interest in all or substantially all
its property or assets, or be a party to any consolidation, merger or
amalgamation; provided, however, that the Borrower may take any such
action or be such a party if:
(i) the surviving corporation (if other than the Borrower), or
the person to whom all, or substantially all, the property and
assets of the Borrower shall have been transferred, sold or
otherwise disposed of, shall execute and deliver to the Corporation
and to the Trustee an agreement of assumption in which such
surviving corporation or person shall expressly assume the due and
punctual payment of the principal of and interest on, the Note,
according to its tenor and effect, and the due and punctual
performance and observance of all the covenants and conditions of
the Note and this Agreement which are to be performed or observed by
the Borrower, with the same effect as if such surviving corporation
or person had been named herein as a party hereto in lieu of the
Borrower; and
(ii) immediately after such transfer, sale or other
disposition, or consolidation, merger or amalgamation, no default
shall have occurred and be continuing under this Agreement; and
(iii) all the voting stock of the surviving corporation shall
be owned directly or indirectly by the Corporation.
(f) Creation of Security Interest. The Borrower will not create or
permit to exist any claim, lien, security interest or other encumbrance
on any of its Vehicles, or on its interest as lessor in any lease
agreement relating to its Vehicles, except:
(i) lessees' interests in Vehicles under any such lease
agreement; and
(ii) liens, security interests or other encumbrances for taxes
which are not delinquent or which are being contested in good faith
or of mechanics or materialmen arising in the ordinary course of
business in respect of obligations which are not overdue or which
are being contested in good faith; unless (x) such claim, lien,
security interest or other encumbrance is for the benefit of a
holder or holders of Equipment Indebtedness and (y) prior to or
simultaneously with the
inception of any such claim, lien, security interest or other
encumbrance, the Borrower shall have executed and delivered to a
Security Trustee (as hereinafter defined), a security agreement or
security agreements and such other documents as the Security Trustee
may reasonably request, each in form and substance satisfactory to
the Trustee, granting to the Security Trustee the right to perfect a
security interest in such Vehicles of the Borrower, such security
interest, when perfected, to be for the equal and ratable benefit of
the Trustee, as holder of the Notes, and such other holder or
holders of Equipment Indebtedness. Such security agreement or
security agreements may provide, at the option of the Borrower, that
the security interest granted to the Security Trustee shall
terminate upon the termination of all other claims, liens, security
interests and other encumbrances for the benefit of such other
holder or holders of Equipment Indebtedness. The Security Trustee
shall be such Person as may be selected by the Borrower or any such
holder of Equipment Indebtedness and who shall be entitled to act
without qualification or who shall qualify to act as such under the
Trust Indenture Act of 1939.
SECTION 5. Payments of Principal and Interest. So long as the Note
shall be pledged with the Trustee under the Indenture, any payment of
principal or interest on the Note, or any payments to be made pursuant to
Section 6(a), shall be paid to the Trustee in Chicago Clearing House funds at
least one business day prior to the dates on which the Corporation would be
required to make related payments under the Indenture with respect to the
relevant Debentures. The Trustee shall apply such payments in accordance with
the provisions of the Indenture.
SECTION 6. Prepayment of Note.
(a) Prepayments Pursuant to Section 7.14 of the Original Indenture.
So long as the Note shall be pledged with the Trustee under the
Indenture, the Borrower shall pay, or cause to be paid, to the Trustee,
as prepayments on the Note, amounts which may be required to be paid by
the Borrower pursuant to Section 7.14 of the Original Indenture. Any such
amounts shall be paid as provided in Section 5 of this Agreement and
shall be applied as payment or prepayment on the Note in accordance with
subsection (c) of this Section 6.
(b) Notice of Certain Prepayments. If the Corporation is required to
make payments pursuant to Section 7.14 of the Original Indenture, the
Corporation shall give notice thereof to the Borrower, which notice shall
state the circumstances under which such payments are to be made. Such
notice shall be given not later than the first date on which the
Corporation is required to give notice to the Trustee or to take any
other action with respect to such payments. Failure to give any such
notice to the Borrower or any
defect therein shall not, however, affect the obligation of the Borrower
to make the payments required under subsection (a) of this Section 6.
(c) Prepayments on Principal Amount of Note. All payments made by
the Borrower, or for the account of the Borrower, pursuant to this
Section 6 shall be applied or credited as prepayments on the principal
amount of the Note on the date such payments are received by the Trustee;
provided, however, that to the extent a portion of such payments or
moneys shall be applied or applicable by the Trustee, directly or
indirectly, towards the payment of any interest or premium in respect of
Debentures, such portion shall not be applied or credited as prepayments
on the principal amount of the Note. It is the intention of this Section
6 that the principal amount of the Note shall be appropriately adjusted
at appropriate times in order that the obligations to pay principal,
premium, if any, and interest contained in all the Notes of all
Participating Subsidiaries shall be sufficient, after giving effect to
any moneys then held by the Trustee under Section 9.01 of the Original
Indenture, in the aggregate, to pay all principal, premium, if any, and
interest on all Debentures then Outstanding as the same become due and
payable.
(d) Corporation To Make Certain Payments. When and if the Borrower
shall make any prepayments provided for in this Section 6, the
Corporation shall promptly make such payments and take such other action
with respect to the Debentures as shall be required to be made or taken
by the Corporation in accordance with and pursuant to this Agreement and
the Indenture.
SECTION 7. Presentment of Note Not Required. So long as the Note
shall be pledged with the Trustee under the Indenture, payments of principal
thereof and interest thereon, shall be made without need for any presentment
of the Note, but payments of principal shall be noted thereon by the Trustee.
SECTION 8. Amendments, Consents and Waivers. So long as the Note
shall be pledged with the Trustee under the Indenture (a) this Agreement may
be modified, altered, supplemented or amended upon the execution and delivery
of a written amendment by the parties hereto pursuant to Article XVIII of the
Original Indenture, (b) any covenant or other condition of this Agreement may
be waived as and to the extent permitted in Section 11.02 of the Original
Indenture and (c) any default under this Agreement and its consequences may be
waived as and to the extent permitted in said Section 11.02 of the Original
Indenture.
SECTION 9. Loss, Theft, etc. of Note. Upon receipt of evidence of
the loss, theft, destruction or mutilation of the Note and upon delivery of
indemnity reasonably satisfactory to the Borrower (it being understood that
the written agreement of the Trustee to indemnify the Borrower shall
constitute such indemnity) and, in the case of any such mutilation, upon
surrender and cancellation of the mutilated Note, and, in any case, upon
reimbursement to the Borrower of any reasonable expense incidental thereto,
the Borrower shall
make and deliver a new Note of like tenor, in lieu of such lost, stolen or
destroyed Note or in exchange for such mutilated Note.
SECTION 10. Remedies. The holder of the Note, being a party to, or
an assignee of, this Agreement, shall be entitled and empowered to institute
any suits, actions or proceedings at law, in equity or otherwise, whether for
the specific performance of any covenant or agreement contained herein or in
the Note or in aid of the exercise of any power granted herein or in the Note,
or may proceed to enforce the payment of the Note after demand, or to enforce
any other legal or equitable right as the holder of the Note, or may proceed
to take any action authorized or permitted under the terms of the Indenture
with respect to the Note or under any applicable law.
SECTION 11. Remedies Cumulative; Delay or Omission Not a Waiver.
Every remedy given hereunder to the holder of the Note shall not be exclusive
of any other remedy or remedies, and every such remedy shall be cumulative and
in addition to every other remedy given hereunder or now or hereafter given by
statute, law, equity or otherwise. No course of dealing between the Borrower
and the Corporation or the Borrower and the holder of the Note or any delay or
omission on the part of the Corporation or such holder to exercise any right,
remedy or power accruing upon any default hereunder shall impair any such
right, remedy or power or shall be construed to be a waiver of any such
default or of any right of the Corporation or such holder or acquiescence
therein. Every right, remedy and power given hereunder to the Corporation or
to the holder of the Note may be exercised from time to time and as often as
may be deemed expedient by the Corporation or such holder.
SECTION 12. Successors and Assigns. All the covenants, warranties
and agreements contained in this Agreement by or on behalf of the Corporation,
the Borrower or the holder of the Note shall bind and inure to the benefit of
their respective successors and assigns, whether so expressed or not.
SECTION 13. Notices. All notices, presentments and demands to or
upon the Borrower in respect of the Note or this Agreement may be delivered or
mailed to the Borrower at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as the Borrower may specify from time
to time in writing to the Corporation and the Trustee.
All notices to or demands upon the Corporation in respect of the
Note or this Agreement shall be delivered or mailed to the Corporation at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other
address as the Corporation may specify from time to time in writing to the
Borrower and the Trustee.
SECTION 14. Payment or Notice on Saturday, Sunday, Legal Holiday. If
the date of any payment or the giving of any notice under the Note or this
Agreement shall be (a) a Saturday, a Sunday or a legal holiday at the place
where payment is to be made or notice is to
be given or (b) a day on which banking institutions at the place where payment
is to be made or notice is to be given are authorized by law to remain closed,
then such payment or notice shall be made not later than the next preceding
business day which shall not be a day specified in (a) or (b) above.
SECTION 15. Separability of Provisions. In case any one or more of
the provisions contained in this Agreement or in the Note should be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby.
SECTION 16. Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
an original, and all such counterparts shall together constitute but one and
the same instrument.
SECTION 17. Applicable Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf by its President or one of its Vice
Presidents and its corporate seal to be hereto affixed and said seal and this
Agreement to be attested by its Secretary or one of its Assistant Secretaries,
all as of the day and year first above written.
▇▇▇▇▇▇▇ Truck Leasing Corp.
BY:
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
(CORPORATE SEAL)
Attest:
-----------------------------
Secretary
▇▇▇▇▇▇▇ Leasing Corp.
BY:
-------------------------------
President
(CORPORATE SEAL) Title:
Attest:
-----------------------------
Secretary
ANNEX 1
7.77% DEMAND PROMISSORY NOTE
$85,000,000
Date: December 15, 1999
▇▇▇▇▇▇▇ Leasing Corp., a corporation organized under the laws of
Delaware, for value received, HEREBY PROMISES TO PAY to ▇▇▇▇▇▇▇ Truck Leasing
Corp., a Delaware corporation, or order, upon demand, the principal sum of
Eighty Five Million Dollars ($85,000,000), either in one sum or in several
sums upon demand made from time to time (the receipt of any such sum to be
noted hereon), in every case 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, at the corporate trust office of First Union
National Bank, in the City of Newark, New Jersey, AND TO PAY interest, at the
said office and in like coin or currency, on the unpaid portion of the said
principal sum from December 15. 1999, until the said principal sum shall have
been paid, such interest to be paid semiannually at the rate of 7.77% per
annum on the 15th day of June and December in each year commencing on the 15th
day of June, 2000 (calculated on the basis of a 360-day year of twelve 30-day
months). If any or all installments of said principal sum shall not be paid
when demanded, such overdue principal and, to the extent that payment of
interest on overdue interest is enforceable under applicable law, any overdue
installment of interest on this Demand Promissory Note, shall bear interest at
the rate of 9.77% per annum until paid.
This Demand Promissory Note is the Demand Promissory Note referred
to in the Loan Agreement dated as of December 15, 1999, between ▇▇▇▇▇▇▇ Truck
Leasing Corp. and the maker hereof, and may be prepaid only as provided in
said Loan Agreement.
▇▇▇▇▇▇▇ Leasing Corp.
BY:
------------------------------
Title:
Pay to the order of First Union National Bank, as Trustee under the
Collateral Trust Indenture dated as of March 21, 1983, as supplemented and
amended by a Third Supplemental Indenture thereto dated as of February 20,
1986, by an Eighth Supplemental Indenture thereto dated as of May 15, 1990 and
by a Seventeenth Supplemental Indenture thereto dated as of March 10, 1997 and
as supplemented by a Twentieth Supplemental Indenture dated as of December 15,
19999, between ▇▇▇▇▇▇▇ Truck Leasing Corp. and said Trustee, as from time to
time further amended and supplemented.
▇▇▇▇▇▇▇ Truck Leasing Corp.
BY:
-------------------------------
Title:
EXHIBIT B
==============================================================================
▇▇▇▇▇▇▇ TRUCK LEASING CORP.,
FIRST UNION NATIONAL BANK
as Trustee
AND
▇▇▇▇▇▇▇ LEASING CORP.
ASSIGNMENT OF LOAN AGREEMENT
Dated as of December 15, 1999
==============================================================================
ASSIGNMENT OF LOAN AGREEMENT
ASSIGNMENT OF LOAN AGREEMENT dated as of December 15, 1999, among
▇▇▇▇▇▇▇ Truck Leasing Corp., a corporation organized under the laws of the
State of Delaware (herein called the "Corporation"), First Union National
Bank, as Trustee under the Indenture hereinafter referred to (herein called
the "Trustee"), and ▇▇▇▇▇▇▇ Leasing Corp., a corporation organized under the
laws of the State of Delaware (herein called the "Borrower").
WHEREAS, the Trustee is Trustee under a Collateral Trust Indenture
dated as of March 21, 1983, (the "Original Indenture"; the Original Indenture,
as supplemented and amended by a Third Supplemental Indenture thereto dated as
of February 20, 1986, by an Eighth Supplemental Indenture thereto dated as of
May 15, 1990 and by a Seventeenth Supplemental Indenture thereto dated as of
March 10, 1997 and as supplemented by the Twentieth Supplemental Indenture
dated as of December 15, 1999, being herein called the "Indenture"), between
the Corporation and the Trustee under and pursuant to which there are being
and have been issued certain Collateral Trust Debentures of the Corporation
(herein called the "Debentures"); and
WHEREAS, pursuant to a Loan Agreement (herein called the "Loan
Agreement") dated as of December 15, 1999, between the Corporation and the
Borrower, the Borrower has borrowed from the Corporation, and the Corporation
has loaned to the Borrower, the proceeds of the sale of the Debentures, which
is evidenced by a 7.77% Demand Promissory Note from the Borrower to the
Corporation in the principal amount of $85,000,000 (herein called the "Note");
and
WHEREAS, in order to secure the payment of the principal of, and
premium, if any, and interest on, all Debentures at any time issued and
outstanding under the Indenture, as and to the extent provided in the
Indenture, and the performance and observance by the Corporation of all the
covenants and conditions in the Indenture and the Debentures contained on its
part to be observed and performed, the Corporation has endorsed, assigned and
delivered to the Trustee the Note and is required to assign to the Trustee the
Loan Agreement;
NOW, THEREFORE, THIS ASSIGNMENT WITNESSETH:
1. The Corporation hereby assigns to the Trustee all the right,
title and interest of the Corporation in, to and under the Loan Agreement
in order to secure the payment of the principal of, and premium, if any,
and interest on, all Debentures at any time issued and outstanding under
the Indenture, as and to the extent provided in the Indenture, and the
performance and observance by the Corporation of all the covenants and
conditions in the Indenture and the Debentures contained on its part to
be observed and performed.
2. The Trustee will hold the Loan Agreement and the Note and the
right, title and interest of the Corporation therein in accordance with,
and subject to, the terms of the Indenture.
3. The Borrower acknowledges notice of, and consents to, the
assignment of the Loan Agreement and the Note and of the right, title and
interest of the Corporation therein, all as provided in, and subject to
the terms of, the Indenture and this Assignment.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Assignment to be executed on its behalf by its President or one of its Vice
Presidents or Assistant Vice Presidents and its corporate seal to be hereto
affixed and said seal and this Assignment to be attested by its Secretary or
one of its Assistant Secretaries or Assistant Vice Presidents, all as of the
day and year first above written.
▇▇▇▇▇▇▇ Truck Leasing Corp.
BY:
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
(CORPORATE SEAL)
Attest
-----------------------
Secretary
FIRST UNION NATIONAL BANK,
NATIONAL ASSOCIATION,
as Trustee
BY:
-------------------------------
Title:
(CORPORATE SEAL)
Attest
-----------------------
Title
▇▇▇▇▇▇▇ Leasing Corp.
BY:
-------------------------------
Title:
(CORPORATE SEAL)
Attest
-----------------------
Title
3