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EXHIBIT 4A
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UNION TANK CAR COMPANY
---------------------------
INDENTURE AND SECURITY AGREEMENT
Dated as of May ___, 1999
Between
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee,
and
UNION TANK CAR COMPANY
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$100,000,000
% Senior Secured Notes Due 2010
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Filed with the Surface Transportation Board of the Department of
Transportation pursuant to 49 U.S.C. Section 11301 on May ___, 1999, at [____
a.m./p.m.], Recordation Number _____, and deposited in the Office of the
Registrar General of Canada pursuant to Section 105 of the Canada Transportation
Act on May ___, 1999, at [____ a.m./p.m.]
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Reconciliation and tie between INDENTURE AND SECURITY AGREEMENT dated as of May
__, 1999 and the Trust Indenture Act of 1939. This reconciliation does not
constitute part of the Indenture.
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
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310(a) (1) 7.08, 7.10
(2) 7.08, 7.10
(3) [Inapplicable]
(4) 4.02; 4.03 (a) & (b)
(5)
(b) 7.08; 7.09; 7.10
(c) [Inapplicable]
311(a) 7.14
(b) 7.14
(c) [Inapplicable]
312(a) 2.04; 6.01; 6.02
(b) [Inapplicable]
(c) [Inapplicable]
313 7.02, 6.03
314(a) 6.04
(b) [Inapplicable]
(c)(1) 1.02
(2) 1.02
(3) [Inapplicable]
(d)(1) [Inapplicable]
(2) [Inapplicable]
(3) [Inapplicable]
(e) 1.02
315(a) 7.01(a)
(b) 7.02
(c) 7.01(b)
(d) 7.01(c)
(e) 4.06
316(a)(last sentence)1.04(c)
(1) (A)4.04
(B)4.05
(2) [Inapplicable]
(b) 4.07
(c) 1.04(d)
317(a)(1) 4.03(a)
(2) 4.03(b)
(b) 7.13
318(a) 8.06
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TABLE OF CONTENTS*
Page
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GRANTING CLAUSE...................................................................................................5
HABENDUM CLAUSE...................................................................................................5
ARTICLE ONE
Definitions.............................................................6
SECTION 1.01. Definitions......................................................................................6
SECTION 1.02. Compliance Certificates and Opinions............................................................11
SECTION 1.03. Form of Documents Delivered to Trustee..........................................................11
SECTION 1.04. Acts of Noteholders.............................................................................12
ARTICLE TWO
Notes and Issuance;Interest and Maturity ..............................13
SECTION 2.01. Notes; Interest Payments; Maturity..............................................................13
SECTION 2.02. Form, Execution and Characteristics of Notes....................................................14
SECTION 2.03. Authentication of Notes.........................................................................15
SECTION 2.04. Registration of Transfer and Exchange of Notes..................................................15
SECTION 2.05. Persons Deemed Owners...........................................................................16
SECTION 2.06. Cancellation....................................................................................16
SECTION 2.07. Replacement of Lost Notes......................................................................16
SECTION 2.08. Book-Entry and Registered Notes.................................................................17
ARTICLE THREE
Collateral.............................................................18
SECTION 3.01. Additional and Substituted Equipment Subject Hereto.............................................18
SECTION 3.02. Termination of Security.........................................................................18
SECTION 3.03. Indemnity.......................................................................................19
SECTION 3.04. Substitution and Replacement of Collateral......................................................19
SECTION 3.05. Maintenance of Collateral; Casualty Occurrences.................................................20
SECTION 3.06. Possession of Collateral........................................................................21
SECTION 3.07. Marking of Collateral...........................................................................22
---------------
* 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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ARTICLE FOUR
Events of Default and Remedies .........................................22
SECTION 4.01. Events of Default..............................................................................22
SECTION 4.02. Incidents of Sale of Collateral................................................................24
SECTION 4.03. Judicial Proceedings Instituted by Trustee.....................................................24
SECTION 4.04. Control by Noteholders.........................................................................25
SECTION 4.05. Waivers of Default.............................................................................25
SECTION 4.06. Undertaking to Pay Court Costs.................................................................26
SECTION 4.07. Unconditional Right of Holders of Notes To ▇▇▇ for Principal
and Interest........................................................................26
SECTION 4.08. Remedies.......................................................................................26
SECTION 4.09. Application of Proceeds........................................................................27
SECTION 4.10. Obligations of Company Not Affected by Remedies................................................27
SECTION 4.11. Company To Deliver Collateral to Trustee.......................................................28
SECTION 4.12. Limitations on Suits by Holders of Notes.......................................................28
SECTION 4.13. Remedies Cumulative; Subject to Mandatory Requirements of Law..................................28
ARTICLE FIVE
Additional Agreements by the Company ..................................29
SECTION 5.01. Discharge of Liens.............................................................................29
SECTION 5.02. Further Assurances.............................................................................29
SECTION 5.03. Payment of Expenses; Recording.................................................................29
SECTION 5.04. Maintenance of Corporate Existence.............................................................30
SECTION 5.05. Consolidation, Merger or Sale of Assets Permitted..............................................30
ARTICLE SIX
Concerning the Holders of Notes .......................................31
SECTION 6.01. Company to Furnish Trustee with Names and Addresses of Noteholders..............................31
SECTION 6.02. Preservation of Information; Communications to Noteholders......................................31
SECTION 6.03. Reports by Trustee..............................................................................32
SECTION 6.04. Reports by the Company..........................................................................32
ARTICLE SEVEN
The Trustee ...........................................................33
SECTION 7.01. Certain Duties and Responsibilities.............................................................33
SECTION 7.02. Notice of Defaults..............................................................................34
SECTION 7.03. Certain Rights of Trustee.......................................................................34
SECTION 7.04. Not Responsible for Recitals or Issuance of Notes...............................................35
SECTION 7.05. May Hold Notes..................................................................................35
SECTION 7.06. Money Held by Trustee...........................................................................35
SECTION 7.07. Compensation and Reimbursement..................................................................35
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SECTION 7.08. Corporate Trustee Required; Eligibility........................................................37
SECTION 7.09. Resignation and Removal; Appointment of Successor..............................................37
SECTION 7.10. Acceptance of Appointment by Successor.........................................................39
SECTION 7.11. Merger, Conversion, Consolidation or Succession to Business....................................39
SECTION 7.12. Maintenance of Agencies........................................................................39
SECTION 7.13. Money for Note Payments to Be Held by Trustee..................................................40
SECTION 7.14. Preferential Collection of Claims..............................................................41
ARTICLE EIGHT
Supplements to Indenture .............................................41
SECTION 8.01. Supplements to Indenture Without Consent of Noteholders........................................41
SECTION 8.02. Supplements to Indenture with Consent of Noteholders...........................................42
SECTION 8.03. Documents Affecting Immunity or Indemnity......................................................43
SECTION 8.04. Execution of Supplements to Indentures.........................................................43
SECTION 8.05. Effect of Supplements to Indenture.............................................................43
SECTION 8.06. Conformity with Trust Indenture Act............................................................43
ARTICLE NINE
Miscellaneous ........................................................43
SECTION 9.01. Rights Confined to Parties and Holders.........................................................43
SECTION 9.02. No Recourse....................................................................................44
SECTION 9.03. Binding Upon Assigns...........................................................................44
SECTION 9.04. Notices .......................................................................................44
SECTION 9.05. Effect of Headings; Date Executed; and Governing Law...........................................44
SECTION 9.06. Legal Holidays.................................................................................44
SECTION 9.07. Counterparts...................................................................................45
SCHEDULE I - List of Equipment
SCHEDULE II - Payment Schedule
EXHIBIT A - Form of DTC Letter of Representations
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This INDENTURE AND SECURITY AGREEMENT (this "Indenture") dated as of
May ___, 1999, between THE FIRST NATIONAL BANK OF CHICAGO, solely in its
capacity as Trustee, a national banking association organized and existing under
the laws of the United States of America (the "Trustee"), and UNION TANK CAR
COMPANY, a Delaware corporation (the "Company");
W I T N E S S E T H:
WHEREAS Union Tank Car Company ___% Senior Secured Notes due 2010 (the
"Notes") are to be issued and sold, at a price not less than their principal
amount, in an aggregate principal amount not exceeding $100,000,000; and
WHEREAS the text of the Notes is to be substantially in the following
form:
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[Form of Note]
Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the issuer
or its agent for registration of transfer, exchange or payment, and any Note
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch the registered owner hereof,
Cede & Co., has an interest herein.
___% SENIOR SECURED NOTE DUE 2010
Secured by certain Railroad Rolling Stock
No.______ Chicago, Illinois
____________ __, 1999
$----------------
UNION TANK CAR COMPANY, a Delaware corporation (the "Company"), hereby
promises to pay to _______________________________, or registered assigns, the
principal sum of $____________ in lawful currency of the United States of
America, on _____, 2010, together with interest thereon on the amount of such
principal amount remaining unpaid from time to time from and including the date
hereof until such principal amount shall be due and payable, payable on November
1, 1999 and on each May 1 and November 1 thereafter to the maturity date hereof
at the rate of % per annum (computed on the basis of a 360-day year of twelve
30-day months). Interest on any overdue principal and (to the extent legally
enforceable) on overdue interest shall be paid from the due date thereof at the
rate of % per annum (computed on the basis of a 360-day year of twelve 30-day
months), payable on demand.
Payments with respect to the principal amount hereof, Make-Whole
Amount, if any, and interest thereon shall be payable in U.S. dollars in
immediately available funds at the principal bond and trustee administration
office of The First National Bank of Chicago (the "Trustee"), or as otherwise
provided in the Indenture and Security Agreement dated as of May __, 1999,
between the Company and the Trustee (the "Indenture"). Each such payment shall
be made on the date such payment is due and without any presentment or surrender
of this Note. Whenever the date scheduled for any payment to be made hereunder
or under the Indenture shall not be a Business Day, then such payment need not
be made on such scheduled date but may be made on the next succeeding Business
Day with the same force and effect as if made on such scheduled date and
(provided such payment is made on such next succeeding Business Day) no interest
shall accrue on the amount of such payment from and after such scheduled date to
the time of such payment on such next succeeding Business Day.
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Each holder hereof, by its acceptance of this Note, agrees that each
payment received by it hereunder shall be applied, first, to the payment of
accrued but unpaid interest on this Note then due, second, to the payment of any
Make-Whole Amount then due, and third, to the payment of the remaining
outstanding principal amount of this Note.
This Note is one of the Notes referred to in the Indenture which have
been or are to be issued by the Company pursuant to the terms of the Indenture.
Reference is hereby made to the Indenture for a statement of the rights of the
holder of, and the nature and extent of the security for, this Note, as well as
for a statement of the terms and conditions of the Indenture, to all of which
terms and conditions in the Indenture each holder hereof agrees by its
acceptance of this Note.
This Note is subject to redemption in whole or in part, at any time at
a price equal to 100% of the principal amount of the Note being redeemed,
together with accrued and unpaid interest, plus a Make-Whole Amount as provided
in Section 2.01 of the Indenture. The holder hereof, by its acceptance of this
Note, agrees to be bound by said provisions.
This Note is a registered Note and is transferable, as provided in the
Indenture, only upon surrender of this Note for registration of transfer duly
endorsed by, or accompanied by a written statement of transfer duly executed by,
the registered holder hereof or his attorney duly authorized in writing. Prior
to the due presentation for registration of transfer of this Note, the Company
and the Trustee may deem and treat the registered holder of this Note as the
absolute owner and holder hereof for the purpose of receiving payment of all
amounts payable with respect hereto and for all other purposes and shall not be
affected by any notice to the contrary.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS.
Unless the Certificate of authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
In Witness Whereof, the Company has caused this Note to be executed by
one of its authorized officers as of the date hereof.
UNION TANK CAR COMPANY
By:
---------------------------------
Name:
Title:
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Notes referred to in the
within-mentioned Indenture.
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as Trustee
By:
-------------------------
Authorized Officer
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WHEREAS, it is desired to secure to the holders of the Notes the
payment of the principal thereof when due, whether by declaration or otherwise,
Make-Whole Amount, if any, and interest thereon as hereinafter provided;
WHEREAS, this Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, and shall, to the extent applicable, be
governed by such provisions;
GRANTING CLAUSE
NOW, THEREFORE, THIS INDENTURE AND SECURITY AGREEMENT WITNESSETH, that,
to secure the prompt payment of the principal of and interest and Make-Whole
Amount, if any, on and all other amounts due with respect to the Notes from time
to time outstanding hereunder and the performance and observance by the Company
of all the agreements, covenants and provisions herein and in the Notes all for
the benefit of the holders of the Notes, and for the uses and purposes and
subject to the terms and provisions hereof, and in consideration of the premises
and of the covenants herein contained, and of the acceptance of the Notes by the
holders thereof, the Company does hereby assign, transfer, mortgage and pledge
and confirm unto the Trustee, its successors and assigns, for the security and
benefit of the holders of the Notes from time to time, a security interest in
and mortgage lien on all right, title and interest of the Company in and to the
following described property, rights, interests and privileges (which
collectively, including all property hereafter required to be subjected to the
Lien of this Indenture by any instrument supplemental hereto, being herein
called the "Indenture Estate"), to wit:
(1) the Equipment and all substitutions therefor, all as more
particularly described in this Indenture and in any Indenture
Supplements executed and delivered with respect to the Equipment or any
such substitutions therefor, as provided in this Indenture;
(2) all monies and securities now or hereafter paid or
deposited or required to be paid or deposited with the Trustee pursuant
to any term of this Indenture, or required to be held by the Trustee
hereunder or thereunder; and
(3) all proceeds of the foregoing.
HABENDUM CLAUSE
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Trustee, its successors and assigns, in trust for the benefit and security of
the holders of the Notes from time to time, without any priority of any one Note
over any other Note, and for the uses and purposes, and subject to the terms and
provisions, set forth in this Indenture.
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The Company agrees that at any time and from time to time, upon the
written request of the Trustee, the Company will promptly and duly execute and
deliver or cause to be executed and delivered any and all such further
instruments and documents as the Trustee may reasonably deem to be necessary in
order to obtain the full benefits of this assignment and of the rights and
powers herein granted.
The Company does hereby warrant and represent that it has not assigned
or pledged, and hereby covenants that it will not assign or pledge, so long as
the assignment hereunder shall remain in effect, any of its right, title or
interest hereby assigned, to anyone other than the Trustee.
IT IS HEREBY COVENANTED AND AGREED by and between the parties hereto as
follows:
ARTICLE ONE
Definitions
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.
Book-Entry Notes shall mean a beneficial interest in the
Notes, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 2.08.
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 Note is outstanding, a city and state in which the
Corporate Trust Office of the Trustee is located.
Casualty Occurrence shall have the meaning set forth in
Section 3.05 hereof.
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Clearing Agency means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange
Act of 1934, as amended.
Clearing Agency Participant shall mean a broker, dealer, bank,
other financial institution or other person for whom from time to time
a Clearing Agency effects, directly or indirectly, book-entry transfers
and pledges of securities deposited with the Clearing Agency.
Collateral shall mean all Equipment and all monies and
securities at the time subject to the terms of this Agreement.
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 5.05.
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 not in excess of
"car builder's cost", including direct cost of labor, material and
overhead but excluding any 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.
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.
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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 January 1, 1998,
all as set forth on Schedule I hereto, and having an aggregate Cost of
not less than $133,333,333.
Event of Default shall mean any event specified in Section
4.01 to be an Event of Default.
The word "holder", when used with respect to Notes, 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 Notes 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 Notes or any Affiliate of the
Company or any such other obligor as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar
functions.
Make-Whole Amount shall mean, with respect to the principal
amount of any Note to be redeemed on any redemption date, the amount to
be determined as of the third Business Day prior to the applicable
redemption date, equal to the product obtained by multiplying (a) the
excess, if any, of (i) the sum of the present values of all the
remaining scheduled payments of principal and interest from the
redemption date to maturity of such Note, discounted semi-annually on
each ________ and _______ at a rate equal to the Treasury Rate, based
on a 360-day year of twelve 30-day months, over (ii) the aggregate
unpaid principal amount of such Note plus any accrued but unpaid
interest thereon by (b) a fraction the numerator of which shall be the
principal amount of such Note to be redeemed on such redemption date
and the denominator of which shall be the aggregate unpaid principal
amount of such Note. The Make-Whole Amount will be calculated by an
independent investment banking institution of national standing
appointed by the Company (an "Independent Investment Banker"). In
calculating the Make-Whole Amount, the Independent Investment Banker
will first determine the Treasury Rate applicable to the Note.
Maturity Date shall mean __________________, 2010.
Noteholder shall mean the person in whose name a Note is
registered in the Register.
Notes shall mean the Senior Secured Notes issued hereunder.
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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 or an Affiliate of 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.
Penalty Rate shall mean 1% per annum over the rate specified
in the Notes.
Record Date means with respect to any Scheduled Payment Date
(i) for so long as Registered Notes shall not have been issued, the
close of business on the Business Day next preceding such Scheduled
Payment Date and (ii) after Registered Notes have been issued, the
close of business on the April 15 or October 15 (whether or not a
Business Day), as the case may be, next preceding such Scheduled
Payment Date.
Registered Notes has the meaning specified in Section 2.02.
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.
Responsible Officer means (i) with respect to the initial
Trustee, any officer in the Corporate Trust Office or any other office
at which the Trustee conducts corporate trust business, including any
vice president or assistant vice president, any trust officer or
assistant trust officer; and (ii) with respect to any successor
Trustee, the chairman or vice-chairman of the board of directors or
trustees, the chairman or vice-chairman of the executive or standing
committee of the board of directors or trustees, the president, the
chairman of the committee on trust matters, any vice-president, any
second vice-president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier,
any trust officer or assistant trust officer, the comptroller and any
assistant comptroller. Responsible Officer also means, with respect to
any Trustee, any other officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time
shall be any of the above designated officers, and with respect to a
particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
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Scheduled Payment Date shall have the meaning set forth in
Section 2.01.
Treasury Rate shall mean, with respect to redemption of a
Note, a per annum rate (expressed as a semiannual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to
a bond equivalent yield), determined to be the per annum rate equal to
the semiannual yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Note, as determined by
interpolation between the most recent weekly average yields to maturity
for two series of United States Treasury securities, (A) one maturing
as close as possible to, but earlier than, the Average Life Date of
such Note and (B) the other maturing as close as possible to, but later
than, the Average Life Date on such Note, in each case as published in
the most recent H.15(519) (or, if a weekly average yield to maturity
for United States Treasury securities maturing on the Average Life Date
of such Note is reported in the most recent H.15(519), as published in
H.15(519). H.15(519) means "Statistical Release H.15(519), Selected
Interest Rates, or any successor publication, published by the Board of
Governors of the Federal Reserve System. The most recent H.15(519)
means the latest H.15(519) which is published prior to the close of
business on the third Business Day preceding the scheduled redemption
date. As used herein, "Remaining Weighted Average Life" means, with
respect to any date of redemption or any date of determination of any
Note, the number of days equal to the quotient obtained by dividing (a)
the sum of the products obtained by multiplying (i) the principal
amount of such Note by (ii) the number of days from and including the
redemption date or date of determination to but excluding the scheduled
payment date of such principal payment by (b) the unpaid principal
amount of such Note. As used herein, "Average Life Date" means, with
respect to a Note, the date which follows the redemption date or, in
the case of a Note not being redeemed, the date of such determination,
by a period equal to the Remaining Weighted Average Life of such Note.
Trustee shall mean The First National Bank of Chicago, solely
in its capacity as Trustee, and, subject to the provisions of Article
Seven, any successor as trustee hereunder.
Value, as used herein, shall mean an amount determined as
follows:
(1) the Value of any unit of Collateral released by
the Trustee as provided in Section 3.04, and as used in
Sections 4.01 and 5.03 in respect of Collateral, 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 Collateral for which a
security interest is granted to the Trustee as provided in
Section 3.04 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
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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 Collateral as used in
Section 3.05 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.
SECTION 1.02 Compliance Certificates and Opinions. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officer's
Certificate stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional Certificate or opinion need be furnished.
Every Certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a Certificate
provided pursuant to Section 6.04(d)) shall include:
(a) a statement that each individual signing such Certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such Certificate or opinion are used;
(c) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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SECTION 1.03 Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any Opinion of Counsel stated to be based on the opinion of other
counsel shall be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04 Acts of Noteholders.
(a) Any direction, consent, waiver or other action provided by this
Indenture to be given or taken by Noteholders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such
Noteholders in person or by an agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instrument (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Noteholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths 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 such other officer and where such execution is by
an officer of a corporation or association or a member of a partnership, on
behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other reasonable manner
which the Trustee deems sufficient. In the absence of bad faith on the part of
the Trustee, an Officer's Certificate may be deemed to be conclusively proved.
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(c) In determining whether the Noteholders of the requisite aggregate
unpaid principal then outstanding have given any direction, consent or waiver (a
"Direction"), under this Indenture, Notes owned by the Company, or any Affiliate
of any such Person shall be disregarded and deemed not to be outstanding under
this Indenture for purposes of any such determination. In determining whether
the Trustee shall be protected in relying upon any such Direction, only Notes
which the Trustee knows to be so owned shall be so disregarded. Notwithstanding
the foregoing, (i) if any such Person owns 100% of the Notes outstanding, such
Notes shall not be so disregarded as aforesaid, and (ii) if any amount of Notes
so owned by any such Person has been pledged in good faith, such Notes shall not
be disregarded as aforesaid if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Notes and that
the pledgee is not the Company, or any Affiliate thereof.
(d) The Company may at its option by delivery of an Officer's
Certificate to the Trustee set a record date to determine the Noteholders
entitled to give any consent, request, demand, authorization, direction, notice,
waiver or other Act. Notwithstanding Section 316(c) of the Trust Indenture Act,
such record date shall be the record date specified in such Officer's Note which
shall be a date not more than 30 nor less than 15 days prior to the first
solicitation of Noteholders in connection therewith. If such a record date is
fixed, such consent, request, demand, authorization, direction, notice, waiver
or other Act may be given before or after such record date, but only the
Noteholders of record at the close of business on such record date shall be
deemed to be Noteholders for the purposes of determining whether Noteholders of
the requisite aggregate principal amount then outstanding have authorized or
agreed or consented to such consent, request, demand, authorization, direction,
notice, waiver or other Act, and for that purpose the outstanding Notes shall be
computed as of such record date; provided that no such consent, request, demand,
authorization, direction, notice, waiver or other act by the Noteholders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Agreement not later than one year after the record
date.
(e) Any direction, consent, waiver or other action by the registered
holder of any Note shall bind the registered holder of every Note issued upon
the transfer thereof or in exchange thereof or in lieu thereof, whether or not
notation of such action is made upon such Note.
(f) Except as otherwise provided in Section 1.4(c), Notes owned by or
pledged to any Person shall have an equal and proportionate benefit under the
provisions of this Indenture, without preference, priority, or distinction as
among all of the Notes.
ARTICLE TWO
Interest and Maturity; Redemption
SECTION 2.01. Interest Payments; Maturity; Redemption. The Notes shall
bear interest at ___% per annum and shall be payable as follows (unless payment
thereof is accelerated pursuant to Article Four of this Agreement): principal
shall be repaid on the Maturity Date and interest payments on the outstanding
principal shall be paid in semiannual installments on May 1
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and November 1 in each year (each, a "Scheduled Payment Date" commencing
November 1, 1999. Interest on the Notes 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 principal and, to
the extent legally enforceable, interest at the Penalty Rate.
The Company may at its option redeem the Notes, in whole or in part, at
any time at a price equal to 100% of the principal amount of the Notes being
redeemed, together with accrued and unpaid interest, plus a Make-Whole Amount.
If less than all of the Notes are to be redeemed, the Trustee shall
select the Notes or portions thereof to be redeemed pro rata, by lot or any
other method the Trustee shall deem fair and appropriate. Notices of redemption
shall be mailed by first class mail at least 30 days but not more than 60 days
before the redemption date to each Noteholder to be redeemed at its registered
address. If any Note is to be redeemed in part only, the notice of redemption
that relates to such Note shall state the portion of the principal amount
thereof to be redeemed. A new Note in principal amount equal to the unredeemed
portion thereof will be issued in the name of the holder thereof upon
cancellation of the original Note. On and after the redemption date, interest
ceases to accrue on Notes or portions of them called for redemption.
Payment of the principal, Make-Whole amount, if any, and interest on
the Notes shall be made by the Company 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.
SECTION 2.02. Form, Execution and Characteristics of Notes. (a) The
Notes shall be in substantially the form hereinbefore set forth.
(b) The Notes shall be signed in the name and on behalf of the Company
by the manual or facsimile signature of one of its 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 officers. In case any officer of the
Company whose signature, whether facsimile or not, shall appear on any of the
Notes shall cease to be such officer of the Company before the Notes shall have
been issued and delivered by the Company or shall not have been acting in such
capacity on the date of the Notes, such Notes may be adopted by the Company and
be issued and delivered as though such person had not ceased to be or had then
been such officer of the Company.
(c) The Notes (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 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 Note 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 Note bearing unpaid interest
from an earlier date, in which case
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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 Notes of authorized denominations of like tenor
and maturity equal to the then unpaid principal amount of Notes 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 Notes as the absolute owner of such Notes 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 Notes and, upon presentation of
the Notes for such purpose, the Trustee shall register any transfer as
hereinabove provided, and under such reasonable regulations as it may prescribe.
(f) Each Note 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 Notes 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 Notes,
and, notwithstanding anything contained in this Agreement, such Note 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.
The Trustee shall not be required to issue, transfer or exchange Notes
for a period of 10 days next preceding any interest payment date.
(g) Except as provided in Section 2.08, the definitive Notes (the
"Registered Notes") shall be printed, lithographed, typewritten or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Notes may
be listed, all as determined by the officer executing such Notes as evidenced by
such execution.
SECTION 2.03 Authentication of Notes. The Trustee shall duly
authenticate and deliver Notes in authorized denominations equalling in the
aggregate the aggregate principal amount of the Notes to be issued hereunder.
SECTION 2.04 Registration of Transfer and Exchange of Notes. The
Trustee shall cause to be kept at the Corporate Trust Office or the office or
agency to be maintained by it in accordance with the provisions of Section 7.12
a register (the "Register") in which, subject to such reasonable regulations as
it may prescribe, the Trustee shall provide for the registration of Notes and of
transfers and exchanges of Notes as herein provided. The Trustee shall initially
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be the registrar (the "Registrar") for the purpose of registering Notes and
transfers and exchanges of Notes as herein provided.
Upon presentation for registration of transfer of any Note at the
Corporate Trust Office or such other office or agency, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes in authorized denominations of a like
aggregate unpaid principal amount.
At the option of a Noteholder, Notes may be exchanged for other Notes
of authorized denominations of a like aggregate unpaid principal amount, upon
surrender of the Notes to be exchanged at any such office or agency. Whenever
any Notes are so surrendered for exchange, the Trustee shall execute,
authenticate and deliver the Notes that the Noteholder making the exchange is
entitled to receive. Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Registrar
duly executed by the Noteholder thereof or its attorney duly authorized in
writing.
No service charge shall be made to a Noteholder for any registration of
transfer or exchange of Notes, but the Trustee shall require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Notes.
All Notes surrendered for registration of transfer and exchange shall
be canceled and subsequently destroyed by the Trustee. The Trustee shall provide
the Company with written certification as to the destruction of all such Notes.
SECTION 2.05 Persons Deemed Owners. Prior to due presentation of a Note
for registration of transfer, the Trustee, the Registrar, and any Paying Agent
of the Trustee may treat the Person in whose name any Note is registered as the
owner of such Note for all purposes whatsoever, and neither the Trustee, the
Registrar, nor any Paying Agent of the Trustee shall be affected by any notice
to the contrary.
SECTION 2.06 Cancellation. All Notes surrendered for payment or
transfer or exchange shall, if surrendered to any Person party hereto other than
the Registrar, be delivered to the Registrar for cancellation. No Notes shall be
authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section, except as expressly permitted by this Indenture. All canceled
Notes held by the Registrar shall be destroyed in due course and a certification
of their destruction delivered to the Trustee and the Company.
SECTION 2.07. Replacement of Lost Notes. In case any Note 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 Note
in the then unpaid principal amount of the predecessor Note 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
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Note, or in lieu of and in substitution for the same if lost, destroyed or
stolen. The applicant for a new Note pursuant to this Section shall furnish to
the Trustee and to the Company evidence to their satisfaction of the loss,
destruction or theft of such Note alleged to have been lost, destroyed or stolen
and of the ownership and authenticity of such mutilated, defaced, lost,
destroyed or stolen Note, 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 Notes 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 Notes 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 Notes and shall preclude any and all other rights and
remedies, any law or statute now existing or hereafter enacted to the contrary
notwithstanding.
SECTION 2.08 Book-Entry and Registered Notes.
(a) The Notes may be issued in the form of one or more typewritten
Notes representing the Book-Entry Notes, to be delivered to The Depository Trust
Company, the initial Clearing Agency, by, or on behalf of, the Noteholders. In
such case, the Notes delivered to The Depository Trust Company shall initially
be registered on the Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no Noteholder will receive a Registered Note
representing such Noteholder's interest in the Notes, except as provided above
and in Subsection (c) below. Unless and until Registered Notes have been issued
pursuant to subsection (c) below:
(i) the provisions of this Section 2.04 shall be in full
force and effect;
(ii) the Company, the Paying Agent, the Registrar and the
Trustee may deal with the Clearing Agency for all purposes (including
the making of distributions on the Notes) as the authorized
representative of the Noteholders;
(iii) to the extent that the provisions of this Section 2.04
conflict with any other provisions of this Indenture, the provisions of
this Section 2.04 shall control;
(iv) the rights of Noteholders of Book-Entry Notes shall be
exercised only through the Clearing Agency and shall be limited to
those established by law and agreements between such Noteholders of
Book-Entry Notes and the Clearing Agency Participants; and until
Registered Notes are issued pursuant to subsection (c) below, the
Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit distributions of principal
and interest on the Notes to such Clearing Agency Participants; and
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(v) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Noteholders representing
a specified percentage of the aggregate unpaid principal then
outstanding, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to such
effect from Noteholders of Book-Entry Notes and/or Clearing Agency
Participants owning or representing, respectively, such required
percentage of the aggregate unpaid principal then outstanding and has
delivered such instructions to the Trustee. The Trustee shall have no
obligation to determine whether the Clearing Agency has in fact
received any such instructions.
(b) Whenever notice or other communication to the Noteholders is
required under this Indenture, unless and until Registered Notes shall have been
issued pursuant to subsection (c) below, the Trustee shall give all such notices
and communications specified herein to be given to Noteholders to the Clearing
Agency and shall make available additional copies as requested by such Clearing
Agency Participants.
(c) If (i) the Company advises the Trustee in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
and the Trustee or the Company is unable to locate a qualified successor, (ii)
the Company, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Default, Noteholders of Book-Entry Notes representing
not less than 51% of the aggregate unpaid principal then outstanding, by Act of
such Noteholders delivered to the Company and the Trustee, advise the Trustee
and the Clearing Agency through the Clearing Agency Participants in writing that
the continuation of a book-entry system through the Clearing Agency is no longer
in the best interests of the Noteholders, then the Trustee shall notify all
Noteholders, through the Clearing Agency, of the occurrence of any such event
and of the availability of Registered Notes. Upon surrender to the Trustee of
all the Notes held by the Clearing Agency, accompanied by registration
instructions from the Clearing Agency for registration of Registered Notes in
the names of Noteholders, the Trustee shall issue and deliver the Registered
Notes in accordance with the instructions of the Clearing Agency. Neither the
Company, the Registrar, the Paying Agent nor the Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such registration instructions. Upon the issuance of
Registered Notes, the Trustee shall recognize the Persons in whose name the
Registered Notes are registered as the Noteholders hereunder. Neither the
Company nor the Trustee shall be liable if the Trustee and the Company are
unable to locate a qualified successor Clearing Agency.
(d) The Trustee shall enter into the Letter of Representations and
fulfill its responsibilities thereunder.
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ARTICLE THREE
Collateral
SECTION 3.01. Additional and Substituted Equipment Subject Hereto. In
the event that the Company shall, as provided in Section 3.04, cause to be
transferred to the Trustee other Equipment or cash in addition to or in
substitution for any of the Equipment herein specifically described or subjected
hereto, such other Equipment or cash shall be included as part of the Collateral
by supplement hereto to be executed by the Trustee and the Company in accordance
with Article Eight 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 3.02. Termination of Security. After all payments which are
required to be made on the Notes pursuant to this Agreement have been completed
and fully made by the Company, (1) any moneys remaining in the hands of the
Trustee after providing for all outstanding Notes and after paying the expenses
of the Trustee, including its reasonable compensation, shall be paid to the
Company and (2) 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
release of the Equipment from the security interest granted hereunder, under the
laws of any jurisdiction.
SECTION 3.03. Indemnity. The Company covenants and agrees to indemnify
the Trustee against any and all claims arising out of or connected with the use
of any of the Equipment, and particularly against any and all claims arising out
of the use of any patented inventions in and about the 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 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 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 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 Notes. 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 3.03 shall survive the termination of this Agreement.
SECTION 3.04. Substitution and Replacement of Collateral. Upon Request,
the Trustee shall, at any time and from time to time, execute and deliver a
release of all the right and interest of the Trustee in and to any of the units
of Collateral 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 Collateral to be
released by the Trustee or (b) there shall be conveyed to the Trustee, at the
time of release of any units of Collateral, other units of Equipment and of a
Value not less than the Value, as of the date of such Request, of the units of
Collateral to be released.
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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 Collateral to be released 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 Collateral so to be released by the
Trustee and the date such Collateral was first put into use (or that
such Collateral was first put into use not later than a specified
date), (ii) that the requested release by the Trustee will not impair
the security under this Agreement in contravention of the 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 such unit so to be substituted is
Equipment as herein defined and (v) that the Company is not in Default;
(2) an Opinion of Counsel to the effect that a proper
supplement hereto in respect of each substituted unit of Collateral has
been duly executed by the Trustee and the Company as required by
Section 8.04 and to the effect set forth in the second paragraph of
Section 5.03; and
(3) if the Cost of the Collateral to be released by the
Trustee, less 1/20th of such Cost for each full year elapsed between
the date such Collateral 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 Collateral so released
within the prior twelve months, less 1/20th of such Cost for each full
year elapsed between the date such other Collateral 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 Note or Notes required by
this Section 3.04, is more than 10% of the principal amount of Notes
then outstanding, a certificate by an Independent Engineer stating, as
of the date of said Request, both the Value of the Collateral so to be
released by the Trustee and the Value of such substituted Collateral.
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 Collateral to be released 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.
Cash deposited with the Trustee pursuant to this Section or Section
3.05 shall, from time to time, be paid over by the Trustee to the Company upon
Request, against granting to the Trustee of a security interest hereunder in
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.
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SECTION 3.05. Maintenance of Collateral; Casualty Occurrences. The
Company agrees that it will maintain and keep all the Collateral 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 Collateral 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 Collateral and
stating the Value thereof as of the date such Collateral suffered such Casualty
Occurrence. When the total Value of all units of the Collateral 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 U.S. $750,000 or 1% of the principal amount of the
Notes then outstanding, whichever is less, 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 Collateral and stating the Value thereof
as of the date such Collateral 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
3.04, 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 its security interest hereunder 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 3.04.
Upon the deposit of cash with the Trustee pursuant to this Section
3.05, the Trustee shall execute and deliver a release in the form reasonably
requested by the Company releasing to the Company all the right, title and
interest of the Trustee in and to the Collateral 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, 2000, and during the continuance of the
security interest granted hereunder, an Officers' Certificate, dated as of the
preceding February 14, (1) stating the description and numbers of all units of
Collateral 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 no Event of Default has occurred and is
continuing, (3) that, in the opinion of the signers, the Company is in
compliance with all of the terms of this Agreement and (4) 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 Collateral at the then existing locations thereof.
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SECTION 3.06. Possession of Collateral. Except as provided in this
Section 3.06, without first obtaining the written consent of the Trustee, the
Company will not (a) assign or transfer its rights hereunder, (b) transfer the
Collateral 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 Collateral. 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 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. 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, 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 Collateral in accordance with the terms hereof, and
the Company or such Affiliates may also (a) furnish the Collateral 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) lease or contract to others located
in the United States and Canada all or any part of the Collateral, but only, in
either case, upon and subject to all the terms and conditions of this Agreement.
Any such lease or contract may provide that the party acquiring the use
of units of the Collateral, so long as it shall not be in default under such
lease or contract, shall be entitled, subject to the rights of the Trustee
hereunder, to the possession of such units and the use thereof and may provide
for lettering or marking upon such Equipment for convenience of identification
of the leasehold interest of 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 Collateral 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 an Event of Default
hereunder in case of any unauthorized assignment or transfer of the Company's
rights hereunder or in case of any unauthorized transfer or lease of any of the
Collateral.
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SECTION 3.07. Marking of Collateral. The Company shall not change, or
permit to be changed, the numbers of any of the Collateral 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 Collateral may be lettered, in case of a lease of any equipment
made pursuant to Section 3.06 hereof, in such manner as may be appropriate for
convenience of identification of the leasehold interest therein; but the
Company, during the continuance of the security interest provided for herein,
will not allow any lettering or designation to be placed on any of the
Collateral claiming ownership thereof by any person, firm, association or
corporation other than the Company.
ARTICLE FOUR
Events of Default and Remedies
SECTION 4.01. Events of Default. The Company covenants and agrees
that in case:
(a) the Company shall default in any payment of, interest
under the Notes for more than 30 days after the same shall have become
due and payable, or the payment of principal of the Notes, or
(b) the Company shall make or suffer any unauthorized
assignment or transfer of its rights hereunder or shall make any
unauthorized transfer or lease (including, for the purpose of this
clause, contracts for the use thereof) of any of the Collateral, or,
except as herein authorized, shall part with the possession of any of
the Collateral, and shall fail or refuse either to cause such
assignment or transfer or lease to be canceled by agreement of all
parties having any interest therein and recover possession of such
Collateral within 30 days after the Trustee shall have 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 Collateral (any sum so
deposited to be returned to the Company upon the cancellation of such
assignment, transfer or lease and the recovery of possession by the
Company of such Collateral), 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
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(d) 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,
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 aggregate principal amount of the then outstanding Notes shall,
by notice in writing delivered to the Company, declare to be due and payable
forthwith the unpaid principal amount of all Notes then outstanding. Thereupon
the entire amount of such principal 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.
All rights of action and to assert claims under this Agreement, or
under any of the Notes, may be enforced by the Trustee without the possession of
any of the Notes 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
Notes. 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 Notes, and it shall not be necessary to make any holders of the Notes
parties to such proceedings.
SECTION 4.02. Incidents of Sale of Collateral. Upon any sale of all or
any part of the Collateral made either under the power of sale given under this
Indenture or otherwise for the enforcement of this Indenture, the following
shall be applicable:
(a) Receipt of Trustee Shall Discharge Purchaser. The receipt
of the Trustee or of the officer making such sale shall be a sufficient
discharge to any purchaser for his purchase money, and, after paying
such purchase money and receiving such receipt, such purchaser or its
personal representative or assigns shall not be obliged to see to the
application of such purchase money, or be in any way answerable for any
loss, misapplication or non-application thereof.
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(b) Application of Moneys Received Upon Sale. Any moneys
collected by the Trustee upon any sale made either under the power of
sale given by this Indenture or otherwise for the enforcement of this
Indenture, shall be applied as provided in Section 4.09.
SECTION 4.03. Judicial Proceedings Instituted by Trustee.
(a) Trustee May Bring Suit. If there shall be a failure to make payment
of the principal of or interest on a Note when due and payable then the Trustee,
in its own name, and as trustee of an express trust, shall be, to the extent
permitted by and in accordance with the terms of this Indenture and the Notes,
entitled and empowered to institute any suits, actions or proceedings at law, in
equity or otherwise, for the collection of the sums so due and unpaid on such
Notes or under this Indenture and may prosecute any such claim or proceeding to
judgment or final decree with respect to the whole amount of any such sums so
due and unpaid.
(b) Trustee May File Proofs of Claim; Appointment of Trustee as
Attorney-in-Fact in Judicial Proceedings. The Trustee in its own name, or as
trustee of an express trust, or as attorney-in-fact for the Noteholders, or in
any one or more of such capacities (irrespective of whether distributions on the
Notes shall then be due and payable as therein expressed or by declaration or
otherwise) shall be entitled and empowered to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee and of the Noteholders allowed in any receivership,
insolvency, bankruptcy, liquidation, readjustment, reorganization or any other
judicial proceedings relative to the Company or its creditors or property. Any
receiver, assignee, trustee, liquidator, sequestrator (or similar official) in
any judicial proceeding is hereby authorized by each Noteholder to make payments
in respect of such claim to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Noteholders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel. Nothing
contained in this Indenture shall be deemed to give to the Trustee any right to
accept or consent to any plan of reorganization or otherwise by action of any
character in any such proceeding to waive of change in any way any right of any
Noteholder.
SECTION 4.04. Control by Noteholders. The Noteholders holding Notes
representing more than 50% of the aggregate unpaid principal amount then
outstanding 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 under this Indenture, provided that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture and would not involve the Trustee in
personal liability or expense,
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(b) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Noteholders not taking
part in such direction, and
(c) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 4.05. Waivers of Default. Prior to the declaration of the
acceleration of the maturity of all the Notes as provided in Section 4.01, the
holders of more than 50% in aggregate unpaid principal amount of the Notes at
the time outstanding may on behalf of the holders of all the Notes waive any
past Default and its consequences, except a Default in the payment of the
principal of, or interest on, the Notes, 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 Notes shall have been
declared and become due and payable as provided in Section 4.01, the expenses
and reasonable compensation of the Trustee, together with all expenses of the
Trustee 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 Collateral, and every other Default shall be
made good or secured to the satisfaction of the Trustee and the holders of the
Notes, 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 Notes then outstanding
according to their terms, shall by written notice to the Company 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 4.06. Undertaking to Pay Court Costs. All parties to this
Indenture, and each Noteholder by his acceptance of a Note, shall be deemed to
have agreed that any court may in its discretion require, in any suit, action or
proceeding for the enforcement of any right or remedy under this Indenture, or
in any suit, action or proceeding against the Trustee for any action taken or
omitted by it as Trustee hereunder, the filing by any party litigant in such
suit, action or proceeding of an undertaking to pay the costs of such suit,
action or proceeding, and that such court may, in its discretion, assess
reasonable costs, including reasonable attorney's fees, against any party
litigant in such suit, action or proceeding, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this Section shall not apply to (a) any suit,
action or proceeding instituted by any Noteholder or group of Noteholders
representing more than 10% of the aggregate unpaid principal amount then
outstanding, (b) any suit, action or proceeding instituted by any Noteholder for
the enforcement of the payment of principal or interest on the Notes on or after
the respective due dates expressed herein or (c) any suit, action or proceeding
instituted by the Trustee.
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SECTION 4.07. Unconditional Right of Holders of Notes To ▇▇▇ for
Principal and Interest. Notwithstanding any other provision in this Agreement,
the right of any holder of any Note to receive payment of the principal of and
interest on such Note, on or after the due date expressed in such Note, 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 4.08. 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 lessees (or other person having acquired
the use of the Collateral) where any of the Collateral may be and take
possession of all or any part of the Collateral and withdraw the same from said
premises, and shall be entitled to collect, receive and retain all unpaid
mileage, hourly or other charges of any kind earned by the Collateral or any
part thereof, and may lease or otherwise contract for the use of the Collateral
or any part thereof, or with or without retaking possession thereof (but only
after declaring due and payable the entire amount of the principal of all the
then outstanding Notes, 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 Notes, 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 Collateral 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 Collateral, the Company shall cease to have any rights
or remedies in respect of the Collateral 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 Collateral or any of it shall give to the Company any legal or equitable
interest or title in or to the Collateral or any of it or any cause or right of
action at law or in equity in respect of the Collateral against the Trustee or
the holders of interests hereunder. No such taking possession, withdrawal, lease
or sale of the Collateral by the Trustee shall be a bar to the recovery by the
Trustee from the Company of principal and interest in respect of the Notes, 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 Collateral, shall be
sufficient for the discharge and payment in full of all the obligations of the
Company under this Agreement.
SECTION 4.09. Application of Proceeds. If the Trustee shall exercise
any of the powers conferred upon it by this Article Four, 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 Collateral, together with any other sums which may
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then be held by the Trustee under any of the provisions hereof (other than sums
held in trust for the payment of specific Notes 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 Make-Whole Amount then due, if any, with
interest thereon at the Penalty Rate, to the extent legally enforceable, and of
the principal of all the outstanding Notes, with interest thereon at the Penalty
Rate, to the extent legally enforceable, from the last preceding interest
payment date, whether such Notes 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, then to the
Make-Whole Amount and then to principal.
After all such payments shall have been made in full, the title to any
of the Collateral 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 4.10. Obligations of Company Not Affected by Remedies. No
retaking of possession of the Collateral 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 Collateral, on the part of the Trustee or on the
part of the holder of any Note, 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. The Company hereby waives presentation and demand in
respect of any of the Notes and waives notice of presentation, of demand and of
any Default in the payment of the principal of and interest on the Notes.
SECTION 4.11. Company To Deliver Collateral to Trustee. In case the
Trustee shall rightfully demand possession of any of the Collateral under
Section 4.08, the Company will, at its own expense, forthwith and in the usual
manner and at usual speed, cause such Collateral 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 Collateral, 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 4.12. Limitations on Suits by Holders of Notes. No holder of
any Note 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
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this Agreement, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such holder previously shall have given 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 Notes 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 4.04; and no one or more holders
of Notes shall have any right in any manner whatever to affect or prejudice the
rights of any other holder of Notes, 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 Notes. For the protection and enforcement of the provisions of
this Section, each and every holder of a Note and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION 4.13. Remedies Cumulative; Subject to Mandatory Requirements of
Law. The remedies in this Agreement provided in favor of the Trustee and the
holders of the Notes 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 FIVE
Additional Agreements by the Company
SECTION 5.01. 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 Collateral; 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 Notes 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.
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SECTION 5.02. 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 5.03. Payment of Expenses; Recording. The Company agrees to pay
the expenses incident to the preparation and execution of the Notes 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
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 49 U.S.C. ss. 11301 and to
be duly deposited with the Registrar General of Canada pursuant to Section 105
of the Canada Transportation Act and shall provide for publication of notice of
such deposit in The Canada Gazette in accordance with said Section 105. 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 3.06 hereof or reasonably requested by the Trustee for the
purpose of proper protection of the security interest of the Trustee and the
rights of the holders of the Notes 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 security interest of the
Trustee to units of Collateral having a Value of not less than 90% of the
aggregate Value of all the Collateral.
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 May in each year, commencing with the
year 2000, 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 Collateral.
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SECTION 5.04 Maintenance of Corporate Existence. The Company, at its
own cost and expense, will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
franchises, except as otherwise specifically permitted in Section 5.05;
provided, however, that the Company shall not be required to preserve any right
or franchise if it shall determine that the preservation thereof is no longer
desirable in the conduct of its business.
SECTION 5.05 Consolidation, Merger or Sale of Assets Permitted.
(a) The Company shall not consolidate with or merge into any other
corporation or sell or convey all or substantially all of its assets to any
Person, unless the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by sale or conveyance all or
substantially all of the assets of the Company, shall be a corporation organized
and existing under the laws of the United States of America or any State or the
District of Columbia, and shall execute and deliver to the Trustee an agreement
in form reasonably satisfactory to the Trustee containing an assumption by such
successor corporation of the due and punctual performance and observance of each
covenant and condition of this Indenture to which the Company is a party.
(b) Immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time, or both, would become
an Event of Default, shall have occurred and be continuing.
Upon any consolidation or merger, or any sale or conveyance, of all or
substantially all of the assets of the Company, the successor corporation formed
by such consolidation or into which the Company is merged or to which such sale
or conveyance is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor corporation had been named as the Company herein. No such
sale or conveyance of all or substantially all of the assets of the Company as
an entirety shall have the effect of releasing the Company or any successor
corporation which shall theretofore have become such from its liability
hereunder.
(c) The Trustee may accept an Officer's Certificate and an Opinion of
Counsel of the Company as conclusive evidence that any such consolidation,
merger, sale, lease or conveyance, and any such assumption complies with the
provisions of this Section 5.05.
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ARTICLE SIX
Concerning the Holders of Notes
SECTION 6.01 Company to Furnish Trustee with Names and Addresses of
Noteholders. The Company will furnish to the Trustee within 15 days after each
Record Date with respect to a Scheduled Payment, and at such other times as the
Trustee may request in writing, within 30 days after receipt by the Company of
any such request, a list, in such form as the Trustee may reasonably require, of
all information in the possession or control of the Company as to the names and
addresses of the Noteholders, in each case as of a date not more than 15 days
prior to the time such list is furnished; provided, however, that so long as the
Trustee is the sole Registrar, no such list need be furnished; and provided
further, however, that no such list need be furnished for so long as a copy of
the Register is being furnished to the Trustee pursuant to Section 7.12.
SECTION 6.02 Preservation of Information; Communications to
Noteholders. The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Noteholders contained in the most recent
Register or list furnished to the Trustee as provided in Section 7.12 or Section
6.01, as the case may be, and the names and addresses of holders of Registered
Notes received by the Trustee in its capacity as Registrar, if so acting. The
Trustee may destroy any Register or list furnished to it as provided in Section
7.12 or Section 6.01, as the case may be, upon receipt of a new Register or list
so furnished.
SECTION 6.03 Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the year
2000, the Trustee shall transmit to the Noteholders, as provided in Section
313(c) of the Trust Indenture Act, a report dated as of such May 15, if required
by Section 313(a) of the Trust Indenture Act. The Trustee shall also comply with
Section 313(b) of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of transmission to
Noteholders, be filed by the Trustee with each stock exchange (if any) upon
which the Notes are listed, and also with the Commission. The Companies will
notify the Trustee when the Notes are listed on any stock exchange and any
subsequent change with respect thereto.
SECTION 6.04 Reports by the Company. The Company shall:
(a) file with the Trustee, within 30 days after it is required to file
the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which it is required to file with the Commission pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934, as amended; or if it
is not required to file information, documents or reports pursuant to either of
such sections, then to file with the Trustee and the Commission, in accordance
with rules and regulations prescribed by the Commission pursuant to Section
314(a)(1) of the Trust Indenture Act, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934, as amended, in respect of a security
listed and registered on a national securities exchange as may be prescribed in
such rules and regulations;
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(b) file with the Trustee and the Commission, in accordance with the
rules and regulations prescribed by the Commission, such additional information,
documents and reports with respect to compliance by it with the conditions and
covenants provided for in this Agreement, as may be required by such rules and
regulations, including, in the case of annual reports, if required by such rules
and regulations, certificates or opinions of independent public accountants,
conforming to the requirements of Section 1.2;
(c) transmit to all Noteholders, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act such summaries of any
information, documents and reports required to be filed by the Company pursuant
to subsections (a) and (b) of this Section 6.04 as may be required by rules and
regulations prescribed by the Commission; and
(d) furnish to the Trustee, not less often than annually, a certificate
from the principal executive officer, principal financial officer or principal
accounting officer thereof as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Agreement. For purposes
of this subsection (d), such compliance shall be determined without regard to
any period of grace or requirement of notice provided under this Agreement.
ARTICLE SEVEN
The Trustee
SECTION 7.01 Certain Duties and Responsibilities. (a) Except during the
continuance of an Event of Default,
(i) the Trustee undertakes to perform only such
duties as are specifically set forth in this Indenture, and no implied
covenants, duties or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; 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 form
of the same to determine whether or not they substantially conform to
the requirements of this Indenture, but shall be under no duty to
investigate the facts contained therein.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the right and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
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(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(i) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of
judgement made in good faith by a Responsible Officer of the Trustee;
(iii) 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 Notes representing more
than 50% of the aggregate unpaid principal amount of Notes then
outstanding 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 Indenture; and
(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own funds in the performance of any of
its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that payment
of such funds or adequate indemnity against such risk is not reasonably
assured to it.
(d) Whether or not herein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 7.02 Notice of Defaults. As promptly as practicable after, and
in any event within 30 days after, the occurrence of any default (as such term
is defined below) hereunder, the Trustee shall transmit by mail to the
Noteholders and the Company, in accordance with Section 313(c) of the Trust
Indenture Act, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of or interest on a Note,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the registered holders of the
Notes. For the purpose of this Section, the term "default" means the occurrence
of any Event of Default, except that in determining whether any such Event of
Default has occurred for the purposes of this paragraph any grace period or
notice in connection therewith shall be disregarded.
SECTION 7.03 Certain Rights of Trustee. Except as otherwise provided in
Section 7.01:
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(i) the Trustee may rely and shall be protected in
acting or refraining from acting in reliance upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by a Request;
(iii) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon any
Officer's Certificate;
(iv) the Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(v) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at
the request or direction of any of the Noteholders pursuant to this
Indenture, unless such Noteholders shall have offered to the Trustee
reasonable security or indemnity against the cost, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(vi) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document;
(vii) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(viii) to the extent the provisions of this Section
7.03 are inconsistent with the duties of the Trustee as required by
Section 315 of the Trust Indenture Act, the requirements of such
Section 315 shall prevail.
SECTION 7.04. Not Responsible for Recitals or Issuance of Notes. The
recitals contained herein and in the Notes, except the Notes of authentication,
shall not be taken as the statements of the Trustee, and the Trustee assumes no
responsibility for their correctness. The
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Trustee makes no representations as to the validity or sufficiency of this
Indenture or the Notes, except that the Trustee hereby represents and warrants
that this Indenture has been executed and delivered by one of its officers who
is duly authorized to execute and deliver such document on its behalf.
SECTION 7.05. May Hold Notes. The Trustee or any of its Affiliates, in
their respective individual or any other capacity, may become the owner or
pledgee of Notes and, subject to Sections 310(b) and 311 of the Trust Indenture
Act, may otherwise deal with the Company with the same rights it would have if
it were not Trustee.
SECTION 7.06 Money Held by Trustee. Any money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required herein or by law and the Trustee shall not have any liability for
interest upon any such moneys except as provided for herein.
SECTION 7.07. Compensation and Reimbursement. The Company agrees:
(i) to pay, or cause to be paid, to the Trustee from
time to time reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(ii) except as otherwise expressly provided herein,
to reimburse, or cause to be reimbursed, the Trustee upon its request
for all reasonable out-of-pocket expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence,
willful misconduct or bad faith or as may be incurred due to the
Trustee's breach of its representations and warranties set forth in
Section 7.04;
(iii) to indemnify, or cause to be indemnified, the
Trustee for, and to hold it harmless against, any loss, liability or
expense (other than for or with respect to any tax) incurred without
negligence, willful misconduct or bad faith, on its part, arising out
of or in connection with the acceptance or administration of this
Indenture, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder, except for any such loss,
liability or expense incurred by reason of the Trustee's breach of its
representations and warranties set forth in Section 7.04. The Trustee
shall notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel with
the consent of the Company, and the Company will pay the reasonable
fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent; and
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(iv) to indemnify, or cause to be indemnified, the
Trustee for, and to hold it harmless against, any tax (other than for
or with respect to any tax referred to in the next paragraph, provided
that no indemnification shall be available with respect to any tax
attributable to the Trustee's compensation for serving as such)
incurred without negligence, willful misconduct or bad faith, on its
part, arising out of or in connection with the acceptance or
administration of this Pass Through Trust, including any costs and
expenses reasonably incurred in contesting the imposition of any such
tax. The Trustee, shall notify the Company promptly of any tax for
which it may seek indemnity. The Company shall defend against the
imposition of such tax and the Trustee shall cooperate in the defense.
The Trustee may have separate counsel with the consent of the Company,
and the Company will pay the reasonable fees and expenses of such
counsel. The Company need not pay for any taxes paid, in settlement or
otherwise, without its consent.
In addition, the Trustee shall be entitled to reimbursement from, and
shall have a lien prior to the Notes upon, all property and funds held or
collected by the Trustee in its capacity as Trustee for any tax incurred without
negligence, bad faith or willful misconduct, on its part, arising out of or in
connection with the acceptance or administration of this Indenture (other than
any tax attributable to the Trustee's compensation for serving as such),
including any costs and expenses reasonably incurred in contesting the
imposition of any such tax. If the Trustee reimburses itself for any such tax,
it will within 30 days mail a brief report setting forth the circumstances
thereof to all Noteholders as their names and addresses appear in the Register.
The Trustee shall have a lien prior to the Notes upon all property and
funds held or collected by the Trustee in its capacity as Trustee.
SECTION 7.08. Corporate Trustee Required; Eligibility. This Indenture
shall at all times have a Trustee which shall be eligible to act as a trustee
under Section 310(a) of the Trust Indenture Act and shall have a combined
capital and surplus of at least $100,000,000 or the obligations of which,
whether now in existence or hereafter incurred, are fully and unconditionally
guaranteed by a corporation 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 a combined capital and surplus of at least $100,000,000. Any
successor Trustee shall have a combined capital of at least $250,000,000 or
shall have its obligations unconditionally guaranteed by a corporation meeting
the criteria set forth in the immediately preceding sentence, and having a
combined capital and surplus of at least $250,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or the
requirements of Federal, State, Territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section 7.08, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
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The Trustee shall comply with Section 310(b) of the Trust Indenture
Act.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.08, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.09.
SECTION 7.09. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 7.10.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Company, within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Noteholders
holding Notes representing more than 50% of the aggregate unpaid principal
amount of Notes then outstanding delivered to the Trustee and the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 310
of the Trust Indenture Act after written request therefor by the
Company or by any Noteholder who has been a bona fide Noteholder for at
least six months; or
(ii) the Trustee shall cease to be eligible under
Section 7.08 and shall fail to resign after written request therefor by
the Companies or by any such Noteholder; or
(iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any case, (x) the Company may remove the Trustee or (y) subject to
Section 4.06, any Noteholder who has been a bona fide Noteholder for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(e) If a Responsible Officer of the Trustee shall obtain actual
knowledge of an Avoidable Tax (as hereinafter defined) which has been or is
likely to be asserted, the Trustee shall promptly notify the Company and shall,
within 30 days of such notification, resign hereunder unless within such 30-day
period the Trustee shall have received notice that the Company has agreed to pay
such tax. The Company shall promptly appoint a successor Trustee in a
jurisdiction where there
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are no Avoidable Taxes. As used herein, an "Avoidable Tax" means a state or
local tax: (i) upon (w) the Indenture, (x) the Collateral, (y) Noteholders or
(z) the Trustee for which the Trustee is entitled to seek reimbursement from the
Collateral, and (ii) which would be avoided if the Trustee were located in
another state, or jurisdiction within a state, within the United States. A tax
shall not be an Avoidable Tax if the Company shall agree to pay, and shall pay,
such tax.
(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any cause,
the Company shall promptly appoint an interim successor Trustee. If, within one
year after such resignation, removal or incapacity, or the occurrence of such
vacancy, a successor Trustee shall be appointed by Act of the Noteholders
representing more than 50% of the aggregate unpaid principal then outstanding
delivered to the Company and the interim successor Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee and supersede the interim successor Trustee. If no
successor Trustee shall have been so appointed as provided above and accepted
appointment in the manner hereinafter provided, any Noteholder who has been a
bona fide Noteholder for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(g) The successor Trustee shall give notice of the resignation and
removal of the Trustee and appointment of the successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Noteholders as their names and addresses appear in the Register. Each notice
shall include the name of such successor Trustee and the address of its
Corporate Trust Office.
SECTION 7.10. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder, subject
nevertheless to its lien, if any, provided for in Section 7.07. Upon request of
any such successor Trustee, the Company, the retiring Trustee and such successor
Trustee shall execute and deliver any and all instruments containing such
provisions as shall be necessary or desirable to transfer and confirm to, and
for more fully and certainly vesting in, such successor Trustee all such rights,
powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
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SECTION 7.11. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
SECTION 7.12. Maintenance of Agencies. (a) There shall at all times be
maintained in the Borough of Manhattan, The City of New York, an office or
agency where Notes may be presented or surrendered for registration of transfer
or for exchange, and for payment thereof and where notices and demands to or
upon the Trustee in respect of the Notes or of this Indenture may be served.
Such office or agency shall be initially at __________________________. Written
notice of the location of each such other office or agency and of any change of
location thereof shall be given by the Trustee to the Company and the
Noteholders. In the event that no such office or agency shall be maintained or
no such notice of location or of change of location shall be given,
presentations and demands may be made and notices may be served at the Corporate
Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a Paying Agent (each an
"Authorized Agent") hereunder. Each such Authorized Agent shall be a bank or
trust company, shall be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof or of the
District of Columbia, with a combined capital and surplus of at least
$100,000,000, or, if the Trustee shall be acting as the Registrar or Paying
Agent hereunder, a corporation the obligations of which are guaranteed by a
corporation organized and doing business under the laws of the United States of
America or any State or Territory thereof or of the District of Columbia, with a
combined capital and surplus of at least $100,000,000, and shall be authorized
under such laws to exercise corporate trust powers, subject to supervision by
Federal or state authorities. The Trustee shall initially be the Paying Agent
and Registrar hereunder. Each Registrar shall furnish to the Trustee, at stated
intervals of not more than six months, and at such other times as the Trustee
may request in writing, a copy of the Register.
(c) Any corporation into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authorized Agent shall
be a party, or any corporation succeeding to the corporate trust business of any
Authorized Agent, shall be the successor of such Authorized Agent hereunder, if
such successor corporation is otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the parties
hereto or such Authorized Agent or such successor corporation.
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(d) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Trustee and the Company. The Company may, and at
the request of the Trustee shall, at any time terminate the agency of any
Authorized Agent by giving written notice of termination to such Authorized
Agent and to the Trustee. Upon the resignation or termination of an Authorized
Agent or in case at any time any such Authorized Agent shall cease to be
eligible under this Section (when, in either case, no other Authorized Agent
performing the functions of such Authorized Agent shall have been appointed),
the Company shall promptly appoint a qualified successor Authorized Agent,
reasonably satisfactory to the Trustee, to perform the functions of the
Authorized Agent which has resigned or whose agency has been terminated or who
shall have ceased to be eligible under this Section. The Company shall give
written notice of any such appointment made by them to the Trustee; and in each
case the Trustee shall mail notice of such appointment to all Noteholders as
their names and addresses appear on the Register.
(e) The Company agrees, severally and not jointly, to pay, or cause to
be paid, pursuant to separate agreements from time to time to each Authorized
Agent reasonable compensation for its services and to reimburse it for its
reasonable expenses.
SECTION 7.13. Money for Note Payments to Be Held by Trustee. All moneys
deposited with any Paying Agent for the purpose of any payment on Notes shall be
deposited and held in trust for the benefit of the Noteholders entitled to such
payment, subject to the provisions of this Section.
The Trustee will cause each Paying Agent other than the Trustee to
execute and deliver to it an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(a) hold all sums held by it for payments on Notes in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by any obligor upon
the Notes in the making of any such payment; and
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent; and, upon such payment by any
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Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
SECTION 7.14. Preferential Collection of Claims. The Trustee shall
comply with Sections 311(a) and (b) of the Trust Indenture Act, excluding any
creditor relationship arising under Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated.
ARTICLE EIGHT
SUPPLEMENTS TO INDENTURE
SECTION 8.01 Supplements to Indenture Without Consent of Noteholders.
Without the consent of the Noteholders, the Company may, and the Trustee
(subject to Section 8.03) shall, at any time and from time to time enter into
one or more agreements supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(a) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein contained;
(b) to add to the covenants of the Company for the benefit of
the Noteholders, or to surrender any right or power herein conferred
upon the Company;
(c) to cure any ambiguity, to correct any manifest error to
correct or supplement any provision herein which may be defective or
inconsistent with any other provision herein or to make any other
provisions with respect to matters or questions arising under this
Indenture, provided that any such action shall not adversely affect the
interests of the Noteholders; or
(d) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to continue the
qualification of this Indenture (including any supplemental agreement)
under the Trust Indenture Act, or under any similar Federal statute
hereafter enacted, and to add to this Indenture such other provisions
as may be expressly permitted by the Trust Indenture Act, excluding,
however, the provisions referred to in Section 316(a)(2) of the Trust
Indenture Act as in effect at the date as of which this instrument was
executed or any corresponding provision in any similar Federal statute
hereafter enacted.
SECTION 8.02 Supplements to Indenture with Consent of Noteholders. With
the consent of the Noteholders representing more than 50% of the aggregate
unpaid principal then outstanding, by Act of such Noteholders delivered to the
Company and the Trustee, the Company may, and the Trustee (subject to Section
8.03) shall, enter into an agreement or agreements supplemental hereto for the
purpose of adding any provisions to or changing in any
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manner or eliminating any of the provisions of this Indenture or of modifying in
any manner the rights and obligations of the Noteholders under this Indenture;
provided, however, that no such supplemental agreement shall, without the
consent of each registered holder of an outstanding Note affected thereby:
(a) reduce in any manner the amount of, or change the date of,
any payments on the Notes, or change the place of payment where, or the
coin or currency in which, any Note is payable, or impair the right to
institute suit for the enforcement of any such payment or distribution
on or after the Scheduled Payment Date applicable thereto;
(b) permit the disposition of any Collateral except as
permitted by this Indenture;
(c) reduce the percentage of the aggregate unpaid principal
then outstanding required for any such supplemental agreement, or
reduce such percentage required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences) provided or in this Indenture;
(d) modify any of the provisions of this Section or Section
4.05, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without
the consent of the registered holder of each Note affected thereby.
It shall not be necessary for any Act of Noteholders under this Section
to approve the particular form of any proposed supplemental agreement, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 8.03 Documents Affecting Immunity or Indemnity. If in the
opinion of the Trustee any document required to be executed by it pursuant to
the terms of Section 8.01 or 8.02 affects any interest, right, duty, obligation,
immunity or indemnity in favor of the Trustee under this Indenture, the Trustee
may in its discretion decline to execute such document.
SECTION 8.04 Execution of Supplements to Indentures. In executing, or
accepting the additional trusts created by, any supplemental agreement permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental agreement is authorized or permitted by this Indenture.
SECTION 8.05 Effect of Supplements to Indenture. Upon the execution of
any supplemental agreement under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental agreement shall form a part of
this Indenture for all purposes; and every Noteholder theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
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SECTION 8.06 Conformity with Trust Indenture Act. Every supplemental
agreement executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 8.07 Reference in Notes to Supplements to Indentures. Notes
authenticated and delivered after the execution of any supplemental agreement
pursuant to this Article may bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental agreement, and, in such case,
suitable notation may be made upon outstanding Notes after proper presentation
and demand.
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 Notes, 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 Notes.
SECTION 9.02. No Recourse. No recourse under this Agreement 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 is solely a corporate
obligation, 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 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.
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, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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
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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 and (c) in
the case of any holder of Notes, 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 Notes shall not be a Business Day, then, notwithstanding any
other provision of this Agreement or the Notes, 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 Notes, 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 Notes, 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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52
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 as of
the day and year first above written.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By
----------------------------------
Title:
Attest:
-------------------------
UNION TANK CAR COMPANY
By
----------------------------------
Title:
Attest:
-------------------------
Secretary
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53
STATE OF ____________, )
) ss.:
COUNTY OF __________, )
On this ____ day of May 1999, before me personally appeared
___________________, to me personally known, who, being by me duly sworn, says
that such person is ______________________ of THE FIRST NATIONAL BANK OF
CHICAGO, 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 _______________
54
STATE OF ILLINOIS, )
) ss.:
COUNTY OF ▇▇▇▇, )
On this ____ day of May 1999, 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 _______________
55
FORM OF
LETTER OF REPRESENTATIONS
UNION TANK CAR COMPANY
Issuer
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
May __, 1999
Attention: General Counsel's Office
The Depository Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Senior Secured Notes Due 2010
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain
matters relating to the above-referenced issue (the "Bonds"). The First National
Bank of Chicago will act as trustee (the "Trustee") with respect to the Bonds
pursuant to an indenture dated as of May __, 1999. Pursuant to an underwriting
agreement dated May __, 1999, by and among the Issuer and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
("Underwriter"), the Issuer has agreed to issue, and Underwriter has agreed to
purchase, the Bonds.
To induce The Depository Trust Company ("DTC") to accept the Bonds as
eligible for deposit at DTC, and act in accordance with its Rules with respect
to the Bonds, the Issuers and the Trustee make the following representations to
DTC:
1. Subsequent to Closing on the Bonds on May __, 1999, there shall be
deposited with DTC one Bond certificate in registered form registered in the
name of DTC's nominee, Cede & Co., [for each stated maturity of the Bonds in the
face amount set
56
forth on Schedule A hereto, the total of which represents [__________%] of the
principal amount of such Bonds.] [If, however, the aggregate principal amount of
any maturity exceeds $[___________], one certificate will be issued with respect
to each $[___________] of principal amount and an additional certificate will be
issued with respect to any remaining principal amount. Each $100,000,000 Bond
certificate shall bear the following legend:
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
2. In the event of any solicitation of consents from and voting by
holders of the Bonds, the Issuer or Trustee shall establish a record date for
such purposes (with no provision for revocation of consents or votes by
subsequent holders) and shall, to the extent possible, send notice of such
record date not less than 15 calendar days in advance of such record date to the
extent possible.
3. In the event of a full or partial redemption or an advance refunding
of outstanding Bonds, the Issuer or Trustee shall send notice of such event to
DTC not less than 30 days nor more than 60 days prior to the redemption date or,
in the case of an advance refunding, the date the proceeds are deposited in
escrow.
4. In the event of a partial redemption or an advance refunding of part
of the Bonds, the Issuer or Trustee shall send a notice to DTC specifying: (a)
the amount of the redemption or refunding; (b) in the case of a refunding, the
maturity date(s) established under the refunding; and (c) the date such notice
is to be mailed to Bondholders or published (the "Publication Date"). Such
notice shall be sent to DTC by a secure means (e.g., legible telecopy,
registered or certified mail, overnight delivery) in a timely manner designed to
assure that such notice is in DTC's possession no later than the close of
business on the business day before the Publication Date. The Issuer or the
Trustee will forward such notice either in a separate secure transmission for
each CUSIP number or in a secure transmission for multiple CUSIP numbers (if
applicable) which includes a manifest or list of each CUSIP submitted in that
transmission. (The party sending such notice shall have a method to verify
subsequently the use of such means and timeliness of the notice.) The
Publication Date shall not be less than 30 days nor more than 60 days prior to
the redemption date.
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57
5. In the event of an invitation to tender the Bonds, notice by the
Issuers or the Trustee to Bondholders specifying the terms of the tender and the
Publication Date shall be sent to DTC by a secure means.
6. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Bonds.
7. Notices to DTC pursuant to Paragraph 2 by telecopy shall be sent to
DTC's Reorganization Department at (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇, and receipt
of such notices shall be confirmed by telephoning (▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC
pursuant to Paragraph 2 by mail or by any other means shall be sent to:
Supervisor; Proxy
Reorganization Department
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
8. Notices to DTC pursuant to Paragraphs 3 and 4 by telecopy shall be
sent to DTC's Call Notification Department at (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇,
and receipt of such notices shall be confirmed by telephoning (▇▇▇) ▇▇▇-▇▇▇▇.
Notices to DTC pursuant to Paragraphs 3 and 4 by mail or by any other means
shall be sent to:
Call Notification Department
The Depository Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
9. Notices to DTC pursuant to Paragraph 5 and notices of other
corporate actions (including mandatory tenders, exchanges, and capital changes)
by telecopy shall be sent to DTC's Reorganization Department at (▇▇▇) ▇▇▇-▇▇▇▇
or (▇▇▇) ▇▇▇-▇▇▇▇, and receipt of such notices shall be confirmed by telephoning
(▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC pursuant to the above by mail or by any other
means shall be sent to:
Manager; Reorganization Department
Reorganization Window
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
10. Trustee shall send DTC written notice with respect to the dollar
amount per $1,000 original face value (or other minimum authorized denomination
if less than
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58
$1,000 face value) payable on each payment date allocated as to the interest and
principal portions thereof preferably five, but not less than two, business days
prior to such payment date. Such notices, which shall also contain Trustee
contact's name and telephone number, shall be sent by telecopy to DTC's Dividend
Department at (▇▇▇) ▇▇▇-▇▇▇▇, or by mail or by any other means to:
Manager; Announcements
Dividend Department
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
11. Interest payments and payments of principal that are part of
periodic principal-and-interest payments shall be received by Cede & Co., as
nominee of DTC, or its registered assigns in same-day funds on each payment date
(or the equivalent in accordance with existing arrangements between the Issuers
or Trustee and DTC). Such payments shall be made payable to the order of Cede &
Co. Absent any other existing arrangements such payments shall be addressed as
follows:
Manager; Cash Receipts
Dividend Department
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
12. Securities Eligible for DTC's Same-Day Funds Settlement System
("SDFS")
Other payments of principal (redemption payments) shall be made in same
day funds by Trustee in the manner set forth in the SDFS Paying Agent Operating
Procedures, a copy of which previously has been furnished to the Trustee.
Securities Eligible for DTC's Next-Day Funds Settlement System ("NDFS")
Other payments of principal (redemption payments) shall be made in
next-day funds by Trustee to Cede & Co., as nominee of DTC, or its registered
assigns, on each payment date. Such payments shall be made payable to the order
of Cede & Co., and shall be addressed as follows:
NDFS Redemption Department
The Depository Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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59
13. DTC may direct the Issuer or Trustee to use any other telephone
number or address as the number or address to which notices or payments of
interest or principal may be sent.
14. In the event of a redemption, acceleration or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or the
Trustee's invitation) necessitating a reduction in aggregate principal amount of
Bonds outstanding or an advance refunding of part of the Bonds outstanding, DTC,
in its discretion: (a) may request the Issuer or the Agent to issue and
authenticate a new Bond certificate, or (b) may make an appropriate notation on
the Bond certificate indicating the date and amount of such reduction in
principal except in the case of final maturity, in which case the certificate
must be presented to the Issuer or Agent prior to payment.
15. In the event that the Issuer determines that beneficial owners of
Bonds shall be able to obtain certificated Bonds, the Issuer or the Trustee
shall notify DTC of the availability of Bond certificates. In such event, the
Issuer or the Trustee shall issue, transfer and exchange Bond certificates in
appropriate amounts, as required by DTC and others.
16. DTC may determine to discontinue its service as securities
depository with respect to the Bonds at any time by giving reasonable notice to
the Issuer or the Trustee (at which time DTC will confirm with the Issuer or
the Trustee the aggregate principal amount of the Bonds outstanding). Under such
circumstances, at DTC's request the Issuer and the Trustee shall cooperate
fully with DTC by taking appropriate action to make available one or more
separate certificates evidencing Bonds to any DTC Participant having Bonds
credited to its DTC accounts.
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17. Nothing herein shall be deemed to require the Trustee to advance
funds on behalf of the Issuers.
Very truly yours,
UNION TANK CAR COMPANY
By:
--------------------------
Its:
-------------------------
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
By:
--------------------------
Its:
-------------------------
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:
Its:
cc:▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
6