Exhibit 4(a)
TRUST INDENTURE AND SECURITY AGREEMENT
(UTC Trust No. 2000-A)
(L-16)
Dated June 29, ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, National Association
as Owner Trustee
And
LaSalle Bank National Association
as Indenture Trustee
COVERED HOPPERS AND TANK CARS
____________________
Filed with the Surface Transportation Board of the Department
of Transportation pursuant to 49 U.S.C.(S) 11301 on June 29,
2000 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 June 29, 2000.
Table of Contents
Page
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GRANTING CLAUSE 1
HABENDUM CLAUSE 4
Article I.
DEFINITIONS
Section 1.01. Certain Definitions; Construction.......................................... 5
Article II.
THE EQUIPMENT NOTES
Section 2.01. Form of Equipment Notes.................................................... 6
Section 2.02. Term of Equipment Notes.................................................... 9
Section 2.03. Payment from Indenture Estate Only......................................... 9
Section 2.04. Method of Payment.......................................................... 9
Section 2.05. Application of Payments to Principal Amount and Interest................... 10
Section 2.06. Termination of Interest in Indenture Estate................................ 10
Section 2.07. Transfer of Equipment Notes................................................ 10
Section 2.08. Mutilated, Destroyed, Lost or Stolen Equipment Notes....................... 11
Section 2.09. Payment of Transfer Taxes.................................................. 12
Section 2.10. Prepayments................................................................ 12
Section 2.11. Equally and Ratably Secured................................................ 14
Article III
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE INDENTURE ESTATE
Section 3.01. Basic Rent Distribution.................................................... 14
Section 3.02. Payments in the Event of Prepayment........................................ 15
Section 3.03. Payments after Indenture Event of Default.................................. 15
Section 3.04. Other Payments............................................................. 17
Section 3.05. Distribution of Excepted Property.......................................... 17
Article IV.
OF OBLIGATIONS OF OWNER TRUSTEE BY LESSEE
Section 4.01. Assumption of Obligations of Owner Trustee by Lessee....................... 17
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Article V.
REMEDIES OF THE INDENTURE TRUSTEE
UPON AN INDENTURE EVENT OF DEFAULT
Section 5.01. Indenture Events of Default........................................................... 19
Section 5.02. Acceleration; Rescission and Annulment................................................ 20
Section 5.03. Remedies with Respect to Indenture Estate............................................. 21
Section 5.04. Right to Cure; Option to Purchase; Etc................................................ 23
Section 5.05. Rights of Lessee...................................................................... 26
Section 5.06. Waiver of Existing Defaults........................................................... 26
Article VI.
DUTIES OF THE INDENTURE TRUSTEE
Section 6.01. Action upon Indenture Event of Default................................................ 26
Section 6.02. Action upon Instructions.............................................................. 27
Section 6.03. Indemnification....................................................................... 28
Section 6.04. No Duties Except as Specified in Indenture or Instructions............................ 28
Section 6.05. No Action Except under Lease, Indenture or Instructions............................... 28
Section 6.06. Disposition of Units.................................................................. 29
Section 6.07. Indenture Supplements for Replacements................................................ 29
Section 6.08. Effect of Replacements................................................................ 29
Section 6.09. Withholding Taxes..................................................................... 29
Section 6.10. Lessee's Right of Quiet Enjoyment..................................................... 29
Section 6.11. Compensation and Indemnity............................................................ 30
Article VII.
THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE
Section 7.01. Acceptance of Trusts and Duties....................................................... 30
Section 7.02. Absence of Duties..................................................................... 31
Section 7.03. No Representations or Warranties as to the Equipment or Documents..................... 31
Section 7.04. No Segregation of Moneys; No Interest; Investments.................................... 31
Section 7.05. Reliance; Agents; Advice of Counsel................................................... 32
Section 7.06. Not Acting in Individual Capacity..................................................... 33
Article VIII.
CERTAIN LIMITATIONS ON OWNER TRUSTEE'S
AND INDENTURE TRUSTEE'S RIGHTS
Section 8.01. Certain Limitations on Owner Trustee's and Indenture Trustee's Rights................. 33
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Article IX.
SUCCESSOR TRUSTEES
Section 9.01. Notice of Successor Owner Trustee........................................... 33
Section 9.02. Resignation of Indenture Trustee; Appointment of Successor.................. 33
Article X.
SUPPLEMENTS AND AMENDMENTS TO THIS
INDENTURE AND OTHER DOCUMENTS
Section 10.01. Supplemental Indentures without Consent of Holders.......................... 35
Section 10.02. Indenture Trustee Protected................................................. 36
Section 10.03. Request of Substance, Not Form.............................................. 37
Section 10.04. Documents Mailed to Holders................................................. 37
Section 10.05. Amendments, Waivers, Etc. of Other Documents................................ 37
Article XI.
MISCELLANEOUS
Section 11.01. Termination of Indenture.................................................... 39
Section 11.02. No Legal Title to Indenture Estate in Holders............................... 40
Section 11.03. Sale of Equipment by Indenture Trustee is Binding........................... 40
Section 11.04. Remedies Cumulative......................................................... 40
Section 11.05. Discontinuance of Proceedings............................................... 40
Section 11.06. Indenture and Equipment Notes for Benefit of Owner Trustee, Indenture
Trustee, Owner Participant and Holders Only................................. 41
Section 11.07. Notices..................................................................... 41
Section 11.08. Severability................................................................ 41
Section 11.09. Separate Counterparts....................................................... 41
Section 11.10. Successors and Assigns...................................................... 42
Section 11.11. Headings.................................................................... 42
Section 11.12. Governing Law............................................................... 42
Section 11.13. Normal Commercial Relations................................................. 42
Section 11.14. No Recourse Against Others.................................................. 42
Section 11.15. Identity of Note Purchasers................................................. 42
EXHIBIT A - Form of Trust Indenture Supplement
EXHIBIT B - Terms of Equipment Notes
APPENDIX A - Definitions
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TRUST INDENTURE AND SECURITY AGREEMENT
(UTC Trust No. 2000-A)(L-16)
This TRUST INDENTURE AND SECURITY AGREEMENT (UTC Trust No. 2000-A) (L-16)
dated June 29, 2000 (this "Indenture"), between Norwest Bank Minnesota, National
Association, not in its individual capacity, except as otherwise expressly set
forth in Section 7.03 hereof, but solely as trustee under the Trust Agreement
referred to below and any successor appointed in accordance with the terms
hereof and of the Trust Agreement (herein in such trustee capacity called the
"Owner Trustee"), and LaSalle Bank National Association as Indenture Trustee
hereunder and any successor appointed in accordance with the terms hereof
(herein called the "Indenture Trustee");
WITNESSETH:
WHEREAS, the Owner Participant and the Owner Trustee in its individual
capacity have entered into the Trust Agreement whereby, among other things, (i)
the Owner Trustee establishes a certain trust for the use and benefit of the
Owner Participant subject, however, to the Indenture Estate created pursuant
hereto for the use and benefit of, and with the priority of payment to, the
holders of the Equipment Notes, and (ii) the Owner Trustee is authorized and
directed to execute and deliver this Indenture;
WHEREAS, the Owner Trustee and the Indenture Trustee desire by this
Indenture, among other things, (i) to provide in accordance with this Indenture
for the issuance by the Owner Trustee of the Equipment Notes on the Closing Date
and (ii) to provide for the assignment, mortgage and pledge by the Owner Trustee
to the Indenture Trustee, as part of the Indenture Estate hereunder, among other
things, of, and the grant of a security interest in, certain of the Owner
Trustee's right, title and interest in and to the Equipment and the Lease and
certain payments and other amounts received hereunder or thereunder, in
accordance with the terms hereof, in trust, as security for, among other things,
the Owner Trustee's obligations for the equal and ratable benefit of the holders
of the Equipment Notes; and
WHEREAS, all things necessary to make this Indenture the legal, valid and
binding obligation of the Owner Trustee and the Indenture Trustee, for the uses
and purposes herein set forth, in accordance with its terms, have been done and
performed and have happened.
GRANTING CLAUSE
NOW, THEREFORE, THIS TRUST INDENTURE AND SECURITY AGREEMENT WITNESSETH,
that, to secure the prompt payment of the principal of and interest and Make-
Whole Amount, if any, on and all other amounts due with respect to, the
Equipment Notes, as provided in this Indenture, from time to time outstanding
hereunder and the performance and observance by the
Owner Trustee of all the agreements, covenants and provisions herein and in the
Equipment Notes all for the benefit of the holders of the Equipment Notes, and
for the uses and purposes and subject to the terms and provisions hereof, and in
consideration of the premises and of the covenants herein contained, and of the
acceptance of the Equipment Notes by the purchasers thereof, the Owner Trustee
does hereby sell, assign, transfer, convey, mortgage, pledge, and confirm unto
the Indenture Trustee, its successors and assigns, for the security and benefit
of the holders of the Equipment Notes from time to time, a security interest in
and mortgage lien on all right, title and interest of the Owner Trustee in and
to the following described property, rights, interests and privileges insofar as
it does not constitute Excepted Property (which collectively, including all
property hereafter required to be subjected to the Lien of this Indenture by any
instrument supplemental hereto, but excluding Excepted Property, being herein
called the "Indenture Estate"), to wit:
(1) the Lease, including, without limitation, all amounts of Basic
Rent, Supplemental Rent, insurance proceeds and other payments of any kind
for or with respect to the Equipment, subject to Lessee's rights under the
Lease, including, without limitation, Lessee's right of quiet enjoyment;
(2) the Equipment, the Replacement Units and all substitutions
therefor in which the Owner Trustee shall from time to time acquire an
interest under the Lease, all as more particularly described in the
Indenture Supplements and Lease Supplements executed and delivered with
respect to the Equipment or any such Replacement Units or any substitutions
therefor, as provided in this Indenture and the Lease;
(3) all requisition proceeds with respect to the Equipment or any
Unit thereof (to the extent of the Owner Trustee's interest therein
pursuant to the terms of the Lease);
(4) all monies and securities now or hereafter paid or deposited or
required to be paid or deposited with the Indenture Trustee pursuant to any
term of this Indenture, the Lease or the Participation Agreement or
required to be held by the Indenture Trustee hereunder or thereunder;
(5) all proceeds of the foregoing;
(6) the right to make all waivers and agreements and to enter into
any amendments relating to the Lease and to give and receive duplicate
copies of all notices and other instruments or communications; and
(7) the right to take such action upon the occurrence of an Event of
Default under the Lease, including the commencement, conduct and
consummation of legal, administrative or other proceedings, as shall be
permitted by the Lease or by law, and to do any and all other things
whatsoever which the Lessor is or may be entitled to do under the Lease in
connection therewith.
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Notwithstanding the foregoing provisions:
(a) there shall be excluded from the foregoing sale, assignment,
transfer, conveyance, mortgage, pledge or security interest granted by this
Indenture and from the Indenture Estate all Excepted Property;
(b) (i) the Owner Trustee and the Owner Participant shall at all
times retain the right, to the exclusion of the Indenture Trustee (A) to
Excepted Property and to commence an action at law to obtain such Excepted
Property and (B) to adjust Basic Rent and the percentages relating to
Stipulated Loss Value and Termination Value as provided in Section 3.4 of
the Lease and Section 2.6 of the Participation Agreement;
(ii) the Owner Trustee and the Indenture Trustee shall each
retain the right to receive from the Lessee all notices, certificates,
reports, filings, opinions of Counsel, copies of all documents and all
information which the Lessee is permitted or required to give or furnish to
the Lessor or to the Owner Trustee pursuant to the Lease or pursuant to any
other Operative Agreement and to exercise the inspection rights provided
for in Section 13.2 of the Lease, to give any notice of default under
Section 14 of the Lease and to retain the right to cause the Lessee to take
any action and execute and deliver such documents and assurances as the
Lessor may from time to time reasonably request pursuant to Section 16.2 of
the Lease;
(iii) so long as no Indenture Event of Default shall have
occurred and be continuing (but subject to the provisions of Section
10.05), the Owner Trustee shall retain the right, to the exclusion of the
Indenture Trustee, to exercise all rights of the Lessor under the Lease
(other than the right to receive any funds to be delivered to the Lessor
under the Lease (except funds which constitute or are delivered with
respect to Excepted Property)); and
(c) the leasehold interest granted to the Lessee under the Lease
shall not be subject to the security interest granted by this Indenture,
and nothing in this Indenture shall affect the rights of the Lessee under
the Lease so long as no Lease Event of Default has occurred and is
continuing; and
(d) as between the Owner Trustee and the Indenture Trustee, nothing
contained in this Granting Clause shall prevent the Owner Trustee, as the
Lessor under the Lease, from seeking specific performance of the covenants
of the Lessee under the Lease relating to the insurance, maintenance,
possession and use of the Units and from maintaining separate insurance
with respect to the Units to the extent permitted by Section 12.5 of the
Lease.
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Notwithstanding the foregoing, the Indenture Trustee shall at all times
have the right, to the exclusion of the Owner Trustee and the Owner Participant,
to (i) declare the Lease to be in default pursuant to Section 15 of the Lease
and (ii) to exercise the remedies set forth in Section 15 of the Lease and in
Section 5 (except for Section 5.04) hereof.
HABENDUM CLAUSE
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, in trust for the benefit and
security of the holders of the Equipment Notes from time to time, without any
priority of any one Equipment Note over any other Equipment Note, and for the
uses and purposes, and subject to the terms and provisions, set forth in this
Indenture.
It is expressly agreed that anything herein contained to the contrary
notwithstanding, the Owner Trustee shall remain liable under each of the
Operative Agreements to which it is a party to perform all of the obligations,
if any, assumed by it thereunder, all in accordance with and pursuant to the
terms and provisions thereof, and the Indenture Trustee and the holders of the
Equipment Notes shall have no obligation or liability under any of the Operative
Agreements to which the Owner Trustee is a party by reason of or arising out of
this assignment, nor shall the Indenture Trustee (unless the Indenture Trustee
shall have become the "Lessor" under the Lease) or the holders of the Equipment
Notes be required or obligated in any manner to perform or fulfill any
obligations of the Owner Trustee under or pursuant to any of the Operative
Agreements to which the Owner Trustee is a party or, except as herein expressly
provided, to make any payment, or to make any inquiry as to the nature or
sufficiency of any payment received by it, or present or file any claim, or take
any action to collect or enforce the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
Subject to the terms and conditions hereof, the Owner Trustee does hereby
constitute the Indenture Trustee the true and lawful attorney of the Owner
Trustee, irrevocably, with full power (in the name of the Owner Trustee or
otherwise), upon the occurrence and during the continuation of an Indenture
Event of Default, to ask, require, demand, receive, compound and give
acquittance for any and all moneys and claims for moneys due and to become due
to the Owner Trustee (other than Excepted Property), under or arising out of the
Lease, or to endorse any checks or other instruments or orders in connection
therewith and to file any claims or take any action or institute any proceedings
which the Indenture Trustee may deem to be necessary or advisable in the
premises. The Owner Trustee has directed the Lessee to make all payments of
Rent (other than Excepted Property) payable to the Owner Trustee by the Lessee
and all other amounts which are required to be paid to or deposited with the
Owner Trustee pursuant to the Lease directly to the Indenture Trustee at such
address as the Indenture Trustee shall specify, for application as provided in
this Indenture. The Owner Trustee agrees that promptly on receipt thereof, it
will transfer to the Indenture Trustee any and all moneys from time to time
received by it constituting part of the
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Indenture Estate, for distribution by the Indenture Trustee pursuant to this
Indenture, except that the Owner Trustee shall accept for distribution pursuant
to the Trust Agreement any amounts distributed to it by the Indenture Trustee as
expressly provided in this Indenture and any Excepted Property.
The Owner Trustee agrees that at any time and from time to time, upon the
written request of the Indenture Trustee, the Owner Trustee will promptly and
duly execute and deliver or cause to be executed and delivered any and all such
further instruments and documents as the Indenture Trustee may reasonably deem
to be necessary in order to obtain the full benefits of this assignment and of
the rights and powers herein granted.
The Owner Trustee does hereby warrant and represent that it has not
assigned or pledged, and hereby covenants that it will not assign or pledge, so
long as the assignment hereunder shall remain in effect, any of its right, title
or interest hereby assigned, to anyone other than the Indenture Trustee, and
that it will not (other than in respect of Excepted Property), except as
provided in or permitted by this Indenture, accept any payment from the Lessee,
enter into an agreement amending or supplementing any of the Operative
Agreements, execute any waiver or modification of, or consent under the terms of
any of the Operative Agreements (other than the Tax Indemnity Agreement), settle
or compromise any claim (other than claims in respect of Excepted Property)
against the Lessee arising under any of the Operative Agreements, or submit or
consent to the submission of any dispute, difference or other matter arising
under or in respect of any of the Operative Agreements, to arbitration
thereunder.
IT IS HEREBY COVENANTED AND AGREED by and between the parties hereto as
follows:
Article I.
DEFINITIONS
Section 1.01. Certain Definitions; Construction. Unless the context
otherwise requires, all capitalized terms used herein and not otherwise defined
shall have the meanings set forth in Appendix A hereto for all purposes of this
Indenture, and include the plural as well as the singular. All references to
articles, sections, clauses, schedules and appendices in this Indenture are to
articles, sections, clauses, schedules and appendices in and to this Indenture
unless otherwise indicated. All accounting terms not otherwise defined herein
or in Appendix A hereto have the meanings assigned to them in accordance with
generally accepted accounting principles. The words herein, hereof and
------ ------
hereunder and other words of similar import refer to this Indenture as a whole
---------
and not to any particular Article, Section or other subdivision. Whenever any
matter set forth herein requires the consent, direction or approval of the
holders of Equipment Notes or a specified number thereof, any Equipment Notes
held by the Owner Trustee, Owner Participant, Lessee, or any of their respective
Affiliates shall be disregarded in determining whether such consent, direction
or approval has been granted, unless all of the Equipment Notes are held by such
Person.
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Article II.
THE EQUIPMENT NOTES
Section 2.01. Form of Equipment Notes. The Equipment Notes shall be
substantially in the form set forth below:
2000-A 8.13% EQUIPMENT NOTE
(Secured by, among others, Lease Obligations of
Union Tank Car Company)
Issued in Connection with Certain Railroad Rolling Stock
No.______ Chicago, Illinois
June 29, 2000
$________________
Norwest Bank Minnesota, National Association, not in its individual
capacity, but solely as owner trustee (herein in such capacity called the "Owner
Trustee") under that certain Trust Agreement (UTC Trust No. 2000-A) (L-16),
dated June 29, 2000, as from time to time supplemented and amended (herein
called the "Trust Agreement"), between the Owner Trustee in its individual
capacity and the institution referred to therein as the "Owner Participant",
hereby promises to pay to _______________________________, or registered
assigns, the principal sum of $____________ in lawful currency of the United
States of America, in installments payable on the dates set forth in Exhibit A
hereto, commencing January 15, 2001, and thereafter to and including [June 29],
2016 each such installment to be in an amount equal to the corresponding
percentage (if any) of the remaining principal amount hereof set forth in
Exhibit A hereto, together with interest thereon on the amount of such principal
amount remaining unpaid from time to time from and including the date hereof
until such principal amount shall be due and payable, payable on January 15,
2001 and on each July 15 and January 15 thereafter to the maturity date hereof
at the rate of 8.13% per annum (computed on the basis of a 360-day year of
twelve 30-day months). Interest on any overdue principal and (to the extent
legally enforceable) on overdue interest shall be paid from the due date thereof
at the rate of 10.13% per annum (computed on the basis of a 360-day year of
twelve 30-day months), payable on demand.
All payments of principal and interest and Make-Whole Amount, if any, to be
made hereunder and under the Trust Indenture and Security Agreement (UTC Trust
No. 2000-A) (L-16), dated June 29, 2000 as from time to time amended and
supplemented (herein called the "Indenture", the defined terms therein not
otherwise defined herein being used herein with the same meanings), between the
Owner Trustee and LaSalle National Bank, as Indenture Trustee thereunder for the
holder of this Equipment Note and the holders of other Equipment Notes
outstanding thereunder
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(herein in such capacity called the "Indenture Trustee") shall be made only from
the income and proceeds from the Indenture Estate and only to the extent that
the Indenture Trustee shall have sufficient income or proceeds from the
Indenture Estate to make such payments in accordance with the terms of Article
III of the Indenture. Each holder hereof, by its acceptance of this Equipment
Note, agrees that it will look solely to the income and proceeds from the
Indenture Estate to the extent available for distribution to the holder hereof
as provided in the Indenture and that none of the Owner Trustee, the Owner
Participant, the Indenture Trustee or their permitted successors and assigns is
or shall be personally liable to the holder hereof for any amount payable under
this Equipment Note or the Indenture or, except as expressly provided in the
Participation Agreement or the Indenture, for any liability under the
Participation Agreement or (in the case of the Owner Trustee or the Indenture
Trustee) the Indenture.
Payments with respect to the principal amount hereof, Make-Whole Amount, if
any, and interest thereon shall be payable in U.S. dollars in immediately
available funds at the principal bond and trustee administration office of the
Indenture Trustee, or as otherwise provided in the Indenture. Each such payment
shall be made on the date such payment is due and without any presentment or
surrender of this Equipment Note. Whenever the date scheduled for any payment
to be made hereunder or under the Indenture shall not be a Business Day, then
such payment need not be made on such scheduled date but may be made on the next
succeeding Business Day with the same force and effect as if made on such
scheduled date and (provided such payment is made on such next succeeding
Business Day) no interest shall accrue on the amount of such payment from and
after such scheduled date to the time of such payment on such next succeeding
Business Day.
Each holder hereof, by its acceptance of this Equipment Note, agrees that
each payment received by it hereunder shall be applied, first, to the payment of
-----
accrued but unpaid interest on this Equipment Note then due, second, to the
------
payment of the unpaid principal amount of this Equipment Note then due, third,
-----
to the payment of any Make-Whole Amount then due, and fourth, to the payment of
------
the remaining outstanding principal amount of this Equipment Note; provided,
that the Owner Trustee may only prepay this Equipment Note as provided in
Sections 2.10, 3.02 and 3.03 of the Indenture.
This Equipment Note is one of the Equipment Notes referred to in the
Indenture which have been or are to be issued by the Owner Trustee pursuant to
the terms of the Indenture and relates to the Units described in Lease
Supplement No. 1. The Indenture Estate is held by the Indenture Trustee as
security for the Equipment Notes. Reference is hereby made to the Indenture for
a statement of the rights of the holder of, and the nature and extent of the
security for, this Equipment Note, as well as for a statement of the terms and
conditions of the trusts created by the Indenture, to all of which terms and
conditions in the Indenture each holder hereof agrees by its acceptance of this
Equipment Note.
This Equipment Note is not subject to redemption or prepayment except as
provided in Sections 2.10, 3.02 and 3.03 of the Indenture. This Equipment Note
is subject to purchase by the
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Owner Trustee without a Make-Whole Amount as provided in Section 5.04(b) of the
Indenture. The holder hereof, by its acceptance of this Equipment Note, agrees
to be bound by said provisions.
This Equipment Note is a registered Equipment Note and is transferable, as
provided in the Indenture, only upon surrender of this Equipment Note for
registration of transfer duly endorsed by, or accompanied by a written statement
of transfer duly executed by, the registered holder hereof or his attorney duly
authorized in writing. Prior to the due presentation for registration of
transfer of this Equipment Note, the Owner Trustee and the Indenture Trustee may
deem and treat the registered holder of this Equipment Note as the absolute
owner and holder hereof for the purpose of receiving payment of all amounts
payable with respect hereto and for all other purposes and shall not be affected
by any notice to the contrary.
THIS EQUIPMENT NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 AND MAY NOT BE TRANSFERRED IN VIOLATION OF SUCH ACT. THIS EQUIPMENT NOTE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Indenture Trustee by manual signature, this Equipment Note shall
not be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
In Witness Whereof, the Owner Trustee has caused this Equipment Note to be
executed by one of its authorized officers as of the date hereof.
Norwest Bank Minnesota, National Association, not in
its individual capacity, but solely as Owner Trustee
By:____________________________________________________
[FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Equipment Notes referred to in the within-mentioned
Indenture.
LaSalle Bank National Association, as Indenture
Trustee
By:______________________________________
Authorized Officer
[Insert the related Amortization Schedule]
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Section 2.02. Term of Equipment Notes. There shall be issued and
delivered to each holder one or more Equipment Notes on the Closing Date in the
maturity and bearing the interest rate as set forth in Exhibit B hereto, in an
aggregate principal amount equal to the loan made by the holder of such
Equipment Note to the Owner Trustee pursuant to Section 2 of the Participation
Agreement. Such Equipment Note shall evidence the loan made by the holder of
such Equipment Note in connection with the purchase of the Equipment by the
Owner Trustee from the Lessee, shall be substantially in the form set forth in
Section 2.01, with deletions and insertions as appropriate, and shall be duly
authenticated by the Indenture Trustee and dated the Closing Date.
The principal amount of and interest on each Equipment Note issued pursuant
to the provisions of this Indenture shall be payable as set forth in the form
thereof contained in Section 2.01. Interest accrued on the Equipment Notes
shall be computed on the basis of a 360-day year of twelve 30-day months on the
principal amount thereof remaining unpaid from time to time from and including
the date thereof to but excluding the date of payment. The Owner Trustee shall
furnish to the Indenture Trustee a copy of each Equipment Note issued pursuant
to the provisions of this Indenture. The aggregate principal amount of
Equipment Notes which may be outstanding at any one time shall be limited to the
aggregate amount set forth in Exhibit B hereto.
No Equipment Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless it shall have been authenticated
by or on behalf of the Indenture Trustee by manual signature.
Section 2.03. Payment from Indenture Estate Only. Notwithstanding any
other provision herein or in the Equipment Notes to the contrary, all payments
to be made under the Equipment Notes and this Indenture and the relevant
Indenture Supplement shall be made only from the income and the proceeds from
the Indenture Estate and only to the extent that the Indenture Trustee shall
have received sufficient income or proceeds from the Indenture Estate to make
such payments in accordance with the terms of Article III hereof. Each holder
of an Equipment Note, by its acceptance of such Equipment Note, agrees that it
will look solely to the income and proceeds from the Indenture Estate to the
extent available for distribution to such holder as herein provided and that
none of the Owner Trustee, the Owner Participant, the Indenture Trustee or their
permitted successors and assigns is or shall be personally liable to the holder
of any Equipment Note for any amount payable under such Equipment Note or the
Indenture or except as expressly provided in the Participation Agreement or the
Indenture for any liability under the Participation Agreement or (in the case of
the Owner Trustee or the Indenture Trustee) the Indenture.
Section 2.04. Method of Payment. (a) The principal of and Make-Whole
Amount, if any, and interest on each Equipment Note will be payable in U.S.
dollars in immediately available funds at the principal corporate trust
administration office of the Indenture Trustee or as otherwise directed in the
manner provided herein. Notwithstanding the foregoing or any provision in any
Equipment Note to the contrary, the Indenture Trustee will pay, or cause to be
paid, all amounts payable by the Owner Trustee hereunder to such holder or a
nominee therefor either (i) by transferring by wire in
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immediately available funds to an account maintained by such holder with a bank
in the United States the amount to be distributed to such holder or (ii) by
mailing a check denominated in U.S. dollars to such holder in either case as
specified by such holder in such holder's Schedule 2 attached to the
Participation Agreement or in any subsequent written notice to the Owner Trustee
and the Indenture Trustee, in any case without any presentment or surrender of
any Equipment Note, except that the holder of an Equipment Note shall surrender
such Equipment Note to the Indenture Trustee upon payment in full of the
principal amount of and interest on such Equipment Note and such other sums
payable to such holder hereunder or under the Equipment Note.
(b) Whenever the date scheduled for any payment to be made hereunder or
under any Equipment Note shall not be a Business Day, then such payment need not
be made on such scheduled date but may be made on the next succeeding Business
Day with the same force and effect as if made on such scheduled date and
(provided such payment is made on such next succeeding Business Day) no interest
shall accrue on the amount of such payment from and after such scheduled date to
the time of such payment on such next succeeding Business Day.
Section 2.05. Application of Payments to Principal Amount and Interest.
In the case of each Equipment Note, each payment of principal thereof and Make-
Whole Amount, if any, and interest thereon shall be applied, first, to the
-----
payment of accrued but unpaid interest on such Equipment Note then due
thereunder, second, to the payment of the unpaid principal amount of such
------
Equipment Note then due thereunder, third, to the payment of any Make-Whole
-----
Amount then due thereon and fourth, to the payment of the remaining outstanding
------
principal amount of such Equipment Note; provided, that the Owner Trustee may
only prepay such Equipment Note in accordance with the provisions of Section
2.10, 3.02 and 3.03 hereof.
Section 2.06. Termination of Interest in Indenture Estate. A holder of an
Equipment Note shall have no further interest in, or other right with respect
to, the Indenture Estate when and if the principal amount of and interest on all
Equipment Notes held by such holder and all other sums payable to such holder
hereunder and under such Equipment Notes and under the Participation Agreement
shall have been paid in full.
Section 2.07. Transfer of Equipment Notes. The Indenture Trustee shall
maintain at its corporate trust administration office in Chicago, Illinois or in
the city in which the corporate trust office of a successor Indenture Trustee is
located, a register for the purpose of registering transfers and exchanges of
Equipment Notes, copies of which shall be made available to any holder of
Equipment Notes upon reasonable notice. A holder of an Equipment Note intending
to transfer such Equipment Note to a new payee, or to exchange any Equipment
Note or Equipment Notes held by it for an Equipment Note or Equipment Notes of a
different denomination or denominations, may surrender such Equipment Note or
Equipment Notes to the Indenture Trustee at such principal corporate trust
administration office of the Indenture Trustee, together with a written request
from such holder for the issuance of a new Equipment Note or Equipment Notes,
specifying the denomination or denominations (each of which shall be not less
than $500,000 or a whole multiple
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thereof or such smaller denomination as may be necessary due to the original
issuance of Equipment Notes of the applicable maturity in an aggregate principal
amount not evenly divisible by $500,000) of the same, and, in the case of a
surrender for registration of transfer, the name and address of the transferee
or transferees. Promptly upon receipt of such documents, the Owner Trustee will
issue and the Indenture Trustee will authenticate a new Equipment Note or
Equipment Notes in the form set forth in Section 2.01 in the same aggregate
principal amount and dated the same date or dates, with the same payment
schedule, in the same maturity, and bearing the same interest rate as the
Equipment Note or Equipment Notes surrendered, in such denomination or
denominations and payable to such payee or payees as shall be specified in the
written request from such holder. All Equipment Notes issued upon any
registration of transfer or exchange of Equipment Notes shall be the valid
obligations of the Owner Trustee evidencing the same respective obligations, and
entitled to the same security and benefits under this Indenture, as the
Equipment Notes surrendered upon such registration of transfer or exchange. The
Indenture Trustee shall make a notation on each new Equipment Note or Equipment
Notes of the amount of all payments or prepayments of principal and interest
previously made on the old Equipment Note or Equipment Notes with respect to
which such new Equipment Note or Equipment Notes is or are issued. From time to
time, the Indenture Trustee will provide the Owner Trustee and the Lessee with
such information as it may request as to the registered holders of Equipment
Notes. The Owner Trustee shall not be required to exchange any surrendered
Equipment Notes as above provided during the 10-day period preceding the due
date of any payment on such Equipment Notes.
Prior to the due presentment for registration of transfer or exchange of an
Equipment Note, the Owner Trustee and the Indenture Trustee may deem and treat
the registered holder of such Equipment Note as the absolute owner and holder of
such Equipment Note for the purpose of receiving payment of all amounts payable
with respect to such Equipment Note and for all other purposes and shall not be
affected by any notice to the contrary.
The Indenture Trustee will promptly notify the Owner Trustee and the Lessee
of each request for a registration of transfer or exchange of an Equipment Note.
The Indenture Trustee will promptly cancel and destroy all Equipment Notes
surrendered for transfer or exchange pursuant to this Section.
Section 2.08. Mutilated, Destroyed, Lost or Stolen Equipment Notes. If
any Equipment Note shall become mutilated, destroyed, lost or stolen, the Owner
Trustee shall, upon the written request of the holder of such Equipment Note,
issue, and the Indenture Trustee shall authenticate and deliver in replacement
thereof, a new Equipment Note in the form set forth in Section 2.01, payable to
the same holder in the same principal amount, of the same maturity, with the
same payment schedule, bearing the same interest rate and dated the same date as
the Equipment Note so mutilated, destroyed, lost or stolen. The Indenture
Trustee shall make a notation on each new Equipment Note of the amount of all
payments or prepayments of principal and interest theretofore made on the
Equipment Note so mutilated, destroyed, lost or stolen and the date to which
interest on such old Equipment Note has been paid. If the Equipment Note being
replaced has become mutilated, such
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Equipment Note shall be surrendered to the Indenture Trustee and forwarded to
the Owner Trustee by the Indenture Trustee. If the Equipment Note being replaced
has been destroyed, lost or stolen, the holder of such Equipment Note shall
furnish to the Owner Trustee and the Indenture Trustee such security or
indemnity as may be required by them to save the Owner Trustee and the Indenture
Trustee harmless and evidence satisfactory to the Owner Trustee and the
Indenture Trustee of the destruction, loss or theft of such Equipment Note and
of the ownership thereof (provided, that if such holder is an institutional
investor, its written agreement shall be sufficient).
Section 2.09. Payment of Transfer Taxes. Upon the transfer or exchange of
any Equipment Note or Equipment Notes pursuant to Section 2.07, the Owner
Trustee or the Indenture Trustee may require from the party requesting such new
Equipment Note or Equipment Notes payment of a sum to reimburse the Owner
Trustee or the Indenture Trustee for, or to provide funds for the payment of,
any tax or other governmental charge in connection therewith.
Section 2.10. Prepayments. (a) Each Equipment Note shall be prepaid in
whole or in part by the Owner Trustee on a Rent Payment Date (or, in the
circumstance provided in Section 10.1 and the last sentence of Section 10.3 of
the Lease, on the Termination Date) upon at least 25 days' prior notice from the
Owner Trustee (or the Lessee on its behalf) to the Indenture Trustee in the
event that the Lease as applicable to any Unit or Units related to such
Equipment Note is terminated pursuant to Section 10 thereof, at a price equal to
the sum of (i) as to principal thereof, an amount equal to the product obtained
by multiplying the unpaid principal amount of such Equipment Note, as of such
prepayment date (after deducting therefrom the principal installment, if any,
due on or prior to the date of such prepayment), by a fraction, the numerator of
which shall be the Equipment Cost of such Unit or Units and the denominator of
which shall be the aggregate Equipment Cost of all Units included in the
Indenture Estate under the Indenture Supplement immediately prior to the date of
such prepayment, (ii) as to interest, the aggregate amount of interest accrued
and unpaid in respect of the principal amount to be prepaid pursuant to clause
(i) above on the date of such payment (after giving effect to the application of
any Basic Rent paid on or prior to the date of such prepayment) and (iii) the
Make-Whole Amount, if any, applicable in respect of the principal amount to be
prepaid pursuant to clause (i) above on the date of such prepayment.
(b) Each Equipment Note shall be prepaid in whole or in part by the Owner
Trustee on a Rent Payment Date upon at least 15 days' prior notice from the
Owner Trustee (or the Lessee on its behalf) to the Indenture Trustee in
connection with the occurrence of an Event of Loss with respect to any Unit or
Units related to such Equipment Note if such Unit or Units are not replaced
pursuant to Section 11.2(i) of the Lease, or in the event Lessee shall be
required to settle for 10 or more Units on the date of payment therefor
determined pursuant to Section 11.2 of the Lease, such prepayment shall be made
on such date, at a price equal to the sum of (i) as to principal thereof, an
amount equal to the product obtained by multiplying the aggregate unpaid
principal amount of such Equipment Note, as of such prepayment date (after
deducting therefrom the principal installment, if any, due on such date), by a
fraction, the numerator of which shall be the Equipment Cost of such Unit or
Units and the denominator of which shall be the aggregate Equipment Cost of all
Units
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included in the Indenture Estate under the Indenture Supplement immediately
prior to such date, and (ii) as to interest, the aggregate amount of interest
accrued and unpaid in respect of the principal amount to be prepaid pursuant to
clause (i) above to but not including the date of prepayment after giving effect
to the application of any Basic Rent paid on or prior to the date of such
prepayment, but without the payment of any Make-Whole Amount.
(c) Unless Lessee shall have elected to assume all of the rights and
obligations of the Owner Trustee under this Indenture in respect of the
Equipment Notes, each Equipment Note shall be prepaid in whole by the Owner
Trustee on the Business Day specified by Lessee to Owner Trustee and Indenture
Trustee in accordance with Section 6.9 of the Participation Agreement, in the
event that Lessee exercises the purchase option under Section 6.9 of the
Participation Agreement with respect to the Equipment, at a price equal to the
sum of (i) as to principal thereof, an amount equal to the unpaid principal
amount of such Equipment Note as at the date of any prepayment under Section 6.9
of the Participation Agreement (after deducting therefrom the principal
installment, if any, due on the prepayment date), (ii) as to interest, the
aggregate amount of interest accrued and unpaid in respect of the principal
amount to be prepaid pursuant to clause (i) above on the date of such prepayment
after giving effect to the application of any Basic Rent paid on or prior to the
date of such prepayment, and (iii) the Make-Whole Amount, if any, applicable in
respect of the principal amount to be prepaid pursuant to clause (i) above on
the date of such payment.
(d) Unless Lessee shall have elected to assume all of the rights and
obligations of the Owner Trustee under this Indenture in respect of the
Equipment Notes, each Equipment Note shall be prepaid in whole or in part by the
Owner Trustee on the Early Purchase Date in the event that Lessee exercises the
purchase option under Section 22.1 of the Lease with respect to the Equipment,
at a price equal to the sum of (i) as to principal thereof, an amount equal to
the product obtained by multiplying the aggregate unpaid principal amount of
such Equipment Note allocable to the Equipment Group of which such Units are a
part, as of the Early Purchase Date (after deducting therefrom the principal
installment, if any, due on the prepayment date), by a fraction, the numerator
of which shall be the Equipment Cost of such Unit or Units to be purchased and
the denominator of which shall be the aggregate Equipment Cost of all Units in
such Equipment Group included in the Indenture Estate immediately prior to the
date of such prepayment, (ii) as to interest, the aggregate amount of interest
accrued and unpaid in respect of the principal amount to be prepaid pursuant to
clause (i) above on the date of such prepayment after giving effect to the
application of any Basic Rent paid on or prior to the date of such prepayment,
and (iii) the Make-Whole Amount, if any, applicable in respect of the principal
amount to be prepaid pursuant to clause (i) above on the date of such payment.
(e) Each Equipment Note shall be prepaid in whole but not in part on the
Refunding Date specified by the Lessee to the Owner Trustee and to the Indenture
Trustee in accordance with Sections 10.2(a) and (f) of the Participation
Agreement, in the event of a refunding or refinancing pursuant to Section 10.2
of the Participation Agreement, at a price in addition to any other amounts
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due to the holders of the Equipment Notes under this Indenture equal to the
unpaid principal amount thereof together with accrued but unpaid interest
thereon, plus the Make-Whole Amount, if any.
(f) The Indenture Trustee shall give prompt notice of any prepayment of
any of the Equipment Notes to all holders of the Equipment Notes as soon as the
Indenture Trustee shall have knowledge that such prepayment is to occur, which
notice shall specify the Equipment Note or Notes to be prepaid, the principal
amount of such Equipment Note or Notes to be prepaid and the date of prepayment;
provided that any notice of prepayment given pursuant to Section 2.10(a),
2.10(c), 2.10(d) or 2.10(e) shall be revocable and shall be deemed revoked in
the event that (x) the Lease does not terminate or the Lessee does not pay all
amounts then due to the Lessor under the Operative Documents, in the case of any
notice of prepayment given to Section 2.10(a), 2.10(c) or 2.10(d) or (y) the
subject refinancing does not in fact occur in the case of any notice of
prepayment given pursuant to Section 2.10(e).
Section 2.11. Equally and Ratably Secured. All Equipment Notes at any
time outstanding under this Indenture shall be equally and ratably secured
hereby without preference, priority or distinction on account of the date or
dates or the actual time or times of the issue or maturity of such Equipment
Notes so that all Equipment Notes at any time issued and outstanding hereunder
shall have the same rights, Liens and preferences under and by virtue of this
Indenture.
Article III.
RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME
FROM THE INDENTURE ESTATE
Section 3.01. Basic Rent Distribution. Except as otherwise provided in
Section 3.03, each installment of Basic Rent as well as any installment of
interest on overdue installments of Basic Rent, and any other moneys paid over
by the Lessee or the Owner Trustee to the Indenture Trustee for such purpose,
shall be distributed by the Indenture Trustee as promptly as possible (it being
understood that any payments of Basic Rent received by the Indenture Trustee by
11:00 a.m. Eastern time on the date due and in accordance with the provisions of
Section 3.6 of the Lease shall be distributed no later than 12:00 p.m. on the
date received in the funds so received, and that funds received after 11:00 a.m.
Eastern time will be deemed to be late and will be distributed on the next
business day together with interest at the overdue rate) in the following order
of priority: first, so much of such installment as shall be required for the
-----
purpose shall be distributed and paid to the holders of the Equipment Notes to
pay in full the aggregate amount of the payment or payments of principal, Make-
Whole Amount, if any, and interest (as well as any interest on overdue principal
or interest) then due, such distribution to be made ratably, without priority of
one over the other, in the proportion that the amount of such payment or
payments then due with respect to each such Equipment Note bears to the
aggregate amount of payments then due under all such Equipment Notes; and
second, the balance, if any, of such installment remaining thereafter shall be
------
distributed to the Owner Trustee for distribution in accordance with the terms
of the Trust Agreement. The
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portion of each such installment distributed to a holder of an Equipment Note
shall be applied by such holder in payment of such Equipment Note in accordance
with the terms of Section 2.05.
Section 3.02. Payments in the Event of Prepayment. (a) Except as
otherwise provided in Section 3.03 or 3.05, in the event of any prepayment of an
Equipment Note or Notes, in whole or in part, in accordance with the provisions
of Section 2.10 any amount received by the Indenture Trustee shall in each case
be distributed and paid by the Indenture Trustee as promptly as possible in the
following order of priority: first, so much of such amount as shall be required
-----
for the purpose of prepayment shall be distributed and paid to the holders of
such Equipment Note or Notes to pay the aggregate amount of the payment of
principal, Make-Whole Amount, if any, and interest to be prepaid on such
Equipment Note or Notes pursuant to Section 2.10, such prepayment to be made
ratably to such Equipment Note or Notes to which such prepayment relates,
without priority of one over any other, in the proportion that the amount to be
prepaid on each such Equipment Note bears to the aggregate amount to be paid on
all such Equipment Notes; and second, the balance, if any, of such amount
------
remaining thereafter shall be distributed to the Owner Trustee for distribution
in accordance with the terms of the Trust Agreement.
(b) Except as otherwise provided in Section 3.03 or 3.05 hereof, any
amounts received by the Indenture Trustee directly or through the Lessee from
any governmental authority or other party pursuant to Section 11 of the Lease
with respect to any Unit as the result of an Event of Loss, to the extent that
such amounts are not at the time required to be paid to the Lessee pursuant to
said Section 11, and any amounts of insurance proceeds for damage to the
Indenture Estate received directly or though the Lessee from any insurer
pursuant to Section 12 of the Lease with respect thereto as the result of an
Event of Loss, to the extent such amounts are not at the time required to be
paid to the Lessee pursuant to said Section 12, shall be applied by the
Indenture Trustee as provided in clause (a) of this Section 3.02.
Section 3.03. Payments after Indenture Event of Default. (a) Except as
provided in Section 3.05, all payments received and amounts realized by the
Indenture Trustee from any source after an Indenture Event of Default shall have
occurred and be continuing and after the Indenture Trustee has declared (as
assignee from the Owner Trustee of the Lease) the Lease to be in default
pursuant to Section 15 thereof or has declared the Equipment Notes to be
accelerated pursuant to Section 5.02, as the case may be, or has elected to
foreclose or otherwise exercise any remedies under this Indenture (including any
amounts realized by the Indenture Trustee from the exercise of any remedies
pursuant to Section 15 of the Lease, or Article V), as well as all payments or
amounts then held or thereafter received by the Indenture Trustee as part of the
Indenture Estate while such Indenture Event of Default shall be continuing,
shall be distributed forthwith by the Indenture Trustee in the following order
of priority:
First, so much of such payments or amounts as shall be required to
reimburse the Indenture Trustee for any fees which are due and payable for
its services under this Indenture and any tax, expense (including
reasonable attorney's fees) or other loss incurred by the
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Indenture Trustee (to the extent reimbursable and not previously reimbursed
and to the extent incurred in connection with its duties as Indenture
Trustee) shall be distributed to the Indenture Trustee;
Second, so much of such payments or amounts as shall be required to
reimburse the holders of the Equipment Notes for payments made by them to
the Indenture Trustee pursuant to Section 6.03 (to the extent not
previously reimbursed), and to pay such holders of the Equipment Notes the
amounts payable to them pursuant to the provisions of the Participation
Agreement, shall be distributed to such holders of the Equipment Notes,
without priority of one over the other, in accordance with the amount of
the payment or payments made by, or payable to, each such holder;
Third, so much of such payments or amounts remaining as shall be
required to pay the principal of, accrued interest, including interest at
the overdue rate (to the date of distribution) on all Equipment Notes, and
Make-Whole Amount, if any (but only to the extent received from the Lessee
as Supplemental Rent) in each case as is then due and payable to the
holders of the Equipment Notes, whether by declaration of acceleration
pursuant to Section 5.02 or otherwise, and in case the aggregate amount so
to be distributed shall be insufficient to pay in full the aforesaid
amounts, then, ratably, without priority of one over the other, in the
proportion that the aggregate unpaid principal amount of, and Make-Whole
Amount, if any, on, all Equipment Notes held by each such holder, plus the
accrued but unpaid interest thereon to the date of distribution, bears to
the aggregate unpaid principal amount of all Equipment Notes, plus the
accrued but unpaid interest thereon to the date of distribution; and
Fourth, the balance, if any, of such payments or amounts remaining
thereafter shall be distributed to the Owner Trustee for distribution in
accordance with the terms of the Trust Agreement.
(b) Except as provided in Sections 3.03(a) and 3.05, if an Indenture
Default or Indenture Event of Default shall have occurred and be continuing, the
Indenture Trustee shall not make any distribution to the Owner Trustee but shall
hold amounts otherwise distributable to the Owner Trustee as collateral security
for the obligations secured hereby and invested as provided in Section 7.04(b)
until the earliest to occur of (a) the date on which such Indenture Default or
Indenture Event of Default shall have been cured or waived and (b) the Indenture
Trustee shall have declared the unpaid principal amount of all Equipment Notes
then outstanding to be due and payable pursuant to Section 5.02 hereof and such
amounts are applied pursuant to Section 3.03(a); provided, that if any amounts
are held pursuant to this Section 3.03(b) for a period of 180 days during which
time the Equipment Notes could, but shall not have been, accelerated, then all
amounts then held by the Indenture Trustee under this Section 3.03(b) with
respect to such Indenture Default or Indenture Event of Default shall on the
181/st/ day be distributed to the Owner Trustee for distribution in accordance
with the terms of the Trust Agreement.
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Section 3.04. Other Payments. Except as otherwise provided in Section
3.03 or 3.05, (a) any payments received by the Indenture Trustee for which no
provision as to the application thereof is made in the Lease or the
Participation Agreement or elsewhere in this Article III, and (b) all payments
received and amounts realized by the Indenture Trustee under the Lease or
otherwise with respect to the Equipment to the extent received or realized at
any time after payment in full of the principal of and interest and Make-Whole
Amount, if any, on all Equipment Notes, as well as any other amounts remaining
as part of the Indenture Estate after payment in full of the principal of and
interest and Make-Whole Amount, if any, and all other amounts due to the holders
of Equipment Notes under the Operative Documents, shall be distributed forthwith
by the Indenture Trustee in the order of priority set forth in Section 3.03(a),
except that in the case of any payment described in clause (b) above, such
payment shall be distributed omitting clause "third" of such Section 3.03(a) on
all Equipment Notes issued hereunder.
Any payments received by the Indenture Trustee for which provision as to
the application thereof is made in the Lease or the Participation Agreement but
not elsewhere in this Indenture shall be applied to the purposes for which such
payments were made in accordance with the provisions of the Lease or the
Participation Agreement, as the case may be.
Section 3.05. Distribution of Excepted Property. All amounts constituting
Excepted Property received by the Indenture Trustee shall be paid promptly by
the Indenture Trustee to the Person or Persons entitled thereto.
Article IV.
ASSUMPTION OF OBLIGATIONS OF OWNER TRUSTEE BY LESSEE
Section 4.01. Assumption of Obligations of Owner Trustee by Lessee. In
the event that the Lessee shall have elected to assume all of the rights and
obligations of the Owner Trustee under this Indenture in respect of the
Equipment Notes in connection with the purchase by Lessee of Equipment pursuant
to Section 6.9 of the Participation Agreement or Section 22.1 of the Lease and,
if on or prior to the purchase date:
(a) Lessee shall have delivered to the Indenture Trustee a certificate,
dated the date of such purchase, of a Responsible Officer stating that Lessee
has paid to the Owner Trustee all amounts required to be paid to the Owner
Trustee pursuant to Section 3.3 of the Lease in connection with such purchase
and assumption;
(b) no event which constitutes or, with the lapse of time or notice, or
both, would become, an Event of Default under this Agreement after giving effect
to the indenture supplement referred to below shall have occurred and be
continuing immediately subsequent to such purchase
-17-
or assumption and the Indenture Trustee shall have received a certificate, dated
the date of such purchase, of a Responsible Officer of the Lessee to such
effect;
(c) the Indenture Trustee shall have received, on or prior to the date of
such purchase, evidence of all filings, recordings and other action referred to
in the Opinion or Opinions of Counsel referred to below;
(d) the Indenture Trustee shall have received an Opinion or Opinions of
Counsel for Lessee, dated the date of such purchase which without unusual
qualification shall be to the effect that, after giving effect to the indenture
supplement referred to below:
(i) this Indenture constitutes the legal, valid and binding
obligation of Lessee, enforceable against Lessee in accordance with its
terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights
of creditors generally and by general principles of equity, and except as
limited by applicable laws which may affect the remedies provided for in
this Indenture, which laws, however, do not in the opinion of such counsel
make the remedies provided for in this Agreement inadequate for the
practical realization of the rights and benefits provided for in this
Indenture; and
(ii) the Lien on the Equipment constitutes a fully-perfected Lien and
all filing, recording or other action (specifying the same) necessary to
perfect and protect the Lien of this Agreement has been accomplished.
(e) upon delivery of an indenture supplement giving effect to such
assumption reasonably satisfactory to the Indenture Trustee, dated the date of
such purchase;
then, automatically and without the requirement of further action by any Person,
effective as of the date of such purchase, the Owner Trustee shall be released
from all of its obligations under the Equipment Notes and under this Indenture
in respect of the Equipment Notes or otherwise (other than any obligations or
liabilities of the Owner Trustee in its individual capacity incurred on or prior
to the date of such purchase or arising out of or based upon events occurring on
or prior to the date of such purchase, which obligations and liabilities shall
remain the sole responsibility of the Owner Trustee) and the Lien of this
Indenture upon the sale proceeds paid or payable to the Owner Trustee shall be
discharged. If requested by the Owner Trustee, the Indenture Trustee shall
execute and deliver an instrument, in form and substance satisfactory to the
Owner Trustee, confirming such release and discharge.
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Article V.
REMEDIES OF THE INDENTURE TRUSTEE UPON AN INDENTURE
EVENT OF DEFAULT
Section 5.01. Indenture Events of Default. The following events shall
constitute "Indenture Events of Default" and each such Indenture Event of
Default shall be deemed to exist and continue so long as, but only so long as,
it shall not have been remedied:
(a) subject to Section 5.04(a), a Lease Event of Default (other than a
Lease Event of Default by reason of a default by the Lessee to pay any amounts
which are part of the Excepted Property); or
(b) default by the Owner Trustee in making any payment when due of
principal of, Make-Whole Amount, if any, or interest on, the Equipment Notes or
any Equipment Note or Equipment Notes, and the continuance of such default
unremedied for 10 Business Days after the same shall have become due and
payable; or
(c) any failure by the Owner Trustee or the Owner Participant to observe
or perform in any material respect any covenant or obligation of them or any of
them, in this Indenture or the Equipment Notes (other than as set forth in
clause (b) above) or in the Participation Agreement, if such failure is not
remedied within a period of 30 days after there has been given to the Owner
Trustee, the Owner Participant and the Lessee by the Indenture Trustee or by any
holder of an Equipment Note a written notice specifying such failure and
requiring it to be remedied; or
(d) any representation or warranty made by the Owner Trustee (except to
the extent made with respect to Norwest Bank Minnesota, National Association in
its individual capacity) or the Owner Participant under the Participation
Agreement, or by the Owner Trustee hereunder, or by any representative of the
Owner Trustee or the Owner Participant in any document or certificate furnished
to the Indenture Trustee or the holders of Equipment Notes in connection
herewith or therewith or pursuant hereto or thereto, shall prove at any time to
have been incorrect in any material respect as of the date made and, if capable
of cure, such incorrectness shall remain material and continue unremedied for a
period of 30 days after there has been given to the Owner Trustee and the Owner
Participant a written notice specifying such incorrectness, stating that such
incorrectness is a default hereunder and requiring it to be remedied by the
Indenture Trustee or by any holder of an Equipment Note; or
(e) the Owner Trustee (as Owner Trustee and not in its individual
capacity) or the Owner Participant shall consent to the appointment of a
custodian, receiver, trustee or liquidator of itself or of a substantial part of
its property or shall make a general assignment for the benefit of creditors; or
-19-
(f) the Owner Trustee (as Owner Trustee and not in its individual
capacity) or the Owner Participant shall file, or consent by answer or otherwise
to the filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for liquidation or to take
advantage of any bankruptcy or insolvency law of any jurisdiction; or
(g) an order, judgment or decree shall be entered by any court of
competent jurisdiction appointing, without the consent of the Owner Trustee (as
Owner Trustee and not in its individual capacity) or the Owner Participant, a
receiver, trustee or liquidator of the Indenture Estate, the Owner Trustee (as
Owner Trustee and not in its individual capacity) or the Owner Participant, or
of any substantial part of its property, or granting any order for relief in
respect of the Owner Trustee (as Owner Trustee and not in its individual
capacity) or the Owner Participant under the Federal bankruptcy laws, and any
such order, judgment or decree of appointment shall remain in force undismissed,
unstayed or unvacated for a period of 60 days after the date of entry thereof;
or
(h) a petition against the Owner Trustee (as Owner Trustee and not in its
individual capacity) or the Owner Participant, in a proceeding under the Federal
bankruptcy laws or other insolvency law, as now or hereafter in effect, shall be
filed and shall not be withdrawn or dismissed within 60 days thereafter, or if,
under the provisions of any law providing for reorganization or winding-up of
corporations which may apply to the Owner Trustee (as Owner Trustee and not in
its individual capacity) or the Owner Participant, any court of competent
jurisdiction shall assume jurisdiction, custody or control of the Indenture
Estate, the Owner Trustee (as Owner Trustee and not in its individual capacity)
or the Owner Participant or of any substantial part of its property and such
jurisdiction, custody or control shall remain in force unrelinquished, unstayed
or unterminated for a period of 60 days; or
Notwithstanding any provision herein to the contrary, if an Indenture Event of
Default described in clause (e), (f), (g) or (h) of this Section 5.01 results
solely from the bankruptcy, reorganization, compromise, arrangement, insolvency,
readjustment of debt, dissolution or liquidation of Owner Trustee solely in its
individual capacity, and can be cured by the appointment of a substitute Owner
Trustee without adversely affecting the rights of the Indenture Trustee
hereunder, then Indenture Trustee shall refrain from the exercise of any of the
rights, powers or remedies pursuant to this Article V for a period of 45 days
from the date of the filing or entry of the first applicable document or
pleading, provided Owner Participant is diligently seeking to, and does, replace
the bank or trust company then serving as Owner Trustee which replacement shall
be deemed to cure such Indenture Event of Default.
Section 5.02. Acceleration; Rescission and Annulment. If an Indenture
Event of Default occurs and is continuing, the Indenture Trustee may, and upon
the written directions of a Majority in Interest shall, subject to Section 5.04,
declare the unpaid principal amount of all Equipment Notes then outstanding and
accrued interest thereon to be due and payable, but without any Make-Whole
Amount. At any time after the Indenture Trustee has declared the unpaid
principal amount of all Equipment Notes then outstanding to be due and payable
and prior to the sale of any of the Indenture
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Estate pursuant to this Article V, a Majority in Interest, by written notice to
the Owner Trustee, the Lessee and the Indenture Trustee, may rescind and annul
such declaration and thereby annul its consequences if: (i) there has been paid
to or deposited with the Indenture Trustee an amount sufficient to pay all
overdue installments of interest on all of the Equipment Notes, and the
principal of and Make-Whole Amount, if any, on any Equipment Notes that have
become due otherwise than by such declaration of acceleration, (ii) the
rescission would not conflict with any judgment or decree, and (iii) all other
Indenture Defaults and Indenture Events of Default, other than nonpayment of
principal or interest on any of the Equipment Notes that have become due solely
because of such acceleration, have been cured or waived.
Section 5.03. Remedies with Respect to Indenture Estate. (a) After an
Indenture Event of Default shall have occurred and so long as such Indenture
Event of Default shall be continuing, then and in every such case the Indenture
Trustee, as assignee hereunder of the Lease or as mortgagee hereunder of the
Equipment or otherwise, may, and when required pursuant to the provisions of
Article VI hereof shall, subject to Sections 5.04 and 5.05, exercise any or all
of the rights and powers and pursue any and all of the remedies pursuant to
Section 15 of the Lease and this Article V and may recover judgment in its own
name as Indenture Trustee against the Indenture Estate and may take possession
of all or any part of the Indenture Estate, and may exclude the Owner Trustee
and the Owner Participant and all persons claiming under any of them wholly or
partly therefrom; provided, however, that nothing in this Indenture shall permit
or require the Indenture Trustee to take any action contrary to, or to disturb,
the Lessee's rights under the Lease, except in accordance with the provisions of
the Lease. The Indenture Trustee, after the occurrence of any Indenture Event
of Default, shall give the Owner Participant and the Owner Trustee 5 Business
Days' (or such shorter period as practical) prior notice of the date before
which the Indenture Trustee shall not exercise any remedy which would result in
the exclusion of the Owner Trustee from the Indenture Estate or any part
thereof; provided, that the failure to give such notice shall have no effect on
any action taken by the Indenture Trustee.
(b) Subject to Section 5.04 and Section 5.05, the Indenture Trustee may,
if at the time such action may be lawful and always subject to compliance with
any mandatory legal requirements, either with or without taking possession, and
either before or after taking possession, and without instituting any legal
proceedings whatsoever, and having first given notice of such sale by registered
mail to the Owner Trustee, the Owner Participant and the Lessee once at least 20
days prior to the date of such sale or the date on which the Indenture Trustee
enters into a binding contract for a private sale, and any other notice which
may be required by law, sell and dispose of the Indenture Estate, or any part
thereof, or interest therein, at public auction to the highest bidder or at
private sale in one lot as an entirety or in separate lots, and either for cash
or on credit and on such terms as the Indenture Trustee may determine, and at
any place (whether or not it be the location of the Indenture Estate or any part
thereof) and time designated in the notice above referred to; provided, however,
that, notwithstanding any provision herein to the contrary, the Indenture
Trustee shall not sell any of the Indenture Estate or exercise any other
remedies which would result in the exclusion of the Owner Trustee from the
Indenture Estate or any part thereof unless a declaration of acceleration has
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been made pursuant to Section 5.02; provided, further, that, in the event the
circumstances contemplated by Section 5.04(c) exist, the Indenture Trustee shall
not be allowed to deliver the notice required by this Section 5.03(b) until the
earlier of (x) such time as such circumstances no longer exist or (y) the
expiration of the 90 day period set forth in Section 5.04(c). Any such public
sale or sales may be adjourned from time to time by announcement at the time and
place appointed for such sale or sales, or for any such adjourned sale or sales,
without further notice, and the Indenture Trustee or the holder or holders of
any Equipment Notes, or any interest therein, may bid and become the purchaser
at any such public sale. The Indenture Trustee may exercise such right without
possession or production of the Equipment Notes or proof of ownership thereof,
and as representative of the holders may exercise such right without including
the holders as parties to any suit or proceeding relating to foreclosure of any
property in the Indenture Estate. The Owner Trustee hereby irrevocably
constitutes the Indenture Trustee the true and lawful attorney-in-fact of the
Owner Trustee (in the name of the Owner Trustee or otherwise) for the purpose of
effectuating any sale, assignment, transfer or delivery for enforcement of the
Lien of this Indenture, whether pursuant to foreclosure or power of sale or
otherwise, to execute and deliver all such bills of sale, assignments and other
instruments as the Indenture Trustee may consider necessary or appropriate, with
full power of substitution, the Owner Trustee hereby ratifying and confirming
all that such attorney or any substitute shall lawfully do by virtue hereof.
Nevertheless, if so requested by the Indenture Trustee or any purchaser, the
Owner Trustee shall ratify and confirm any such sale, assignment, transfer or
delivery, by executing and delivering to the Indenture Trustee or such purchaser
all bills of sale, assignments, releases and other proper instruments to effect
such ratification and confirmation as may be designated in any such request.
(c) Subject to Section 5.04 and Section 5.05, the Owner Trustee agrees, to
the fullest extent that it lawfully may, that, in case one or more of the
Indenture Events of Default shall have occurred and be continuing, then, in
every such case, the Indenture Trustee may take possession of all or any part of
the Indenture Estate and may exclude the Owner Trustee and the Owner Participant
and all persons claiming under any of them wholly or partly therefrom. At the
request of the Indenture Trustee, the Owner Trustee shall promptly execute and
deliver to the Indenture Trustee such instruments of title and other documents
as the Indenture Trustee may deem necessary or advisable to enable the Indenture
Trustee or an agent or representative designated by the Indenture Trustee, at
such time or times and place or places as the Indenture Trustee may specify, to
obtain possession of all or any part of the Indenture Estate. If the Owner
Trustee shall fail for any reason to execute and deliver such instruments and
documents to the Indenture Trustee, the Indenture Trustee may pursue all or part
of the Indenture Estate wherever it may be found and may enter any of the
premises of the Lessee wherever the Indenture Estate may be or be supposed to be
and search for the Indenture Estate and, subject to Section 5.05, take
possession of and remove the Indenture Estate. Upon every such taking of
possession, the Indenture Trustee may, from time to time, at the expense of the
Indenture Estate, make all such expenditures for maintenance, insurance,
repairs, replacements, alterations, additions and improvements to any of the
Indenture Estate, as it may deem proper. In each such case, the Indenture
Trustee shall have the right to use, operate, store, control or manage the
Indenture Estate, and to carry on the business and to exercise all rights and
powers
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of the Owner Trustee relating to the Indenture Estate, as the Indenture Trustee
shall deem best, including the right to enter into any and all such agreements
with respect to the maintenance, operation, leasing or storage of the Indenture
Estate or any part thereof as the Indenture Trustee may determine; and the
Indenture Trustee shall be entitled to collect and receive all tolls, rents,
revenues, issues, income, products and profits of the Indenture Estate and every
part thereof, without prejudice, however, to the right of the Indenture Trustee
under any provision of this Indenture to collect and receive all cash held by,
or required to be deposited with, the Indenture Trustee hereunder. Such tolls,
rents, revenues, issues, income, products and profits shall be applied to pay
the expenses of holding and operating the Indenture Estate and of conducting the
business thereof, and of all maintenance, repairs, replacements, alterations,
additions and improvements, and to make all payments which the Indenture Trustee
may be required or may elect to make, if any, for taxes, assessments, insurance
or other proper charges upon the Indenture Estate or any part thereof (including
the employment of engineers and accountants to examine, inspect and make reports
upon the properties and books and records of the Indenture Estate), and all
other payments which the Indenture Trustee may be required or authorized to make
under any provision of this Indenture, as well as just and reasonable
compensation for the services of the Indenture Trustee, and of all persons
properly engaged and employed by the Indenture Trustee, including the reasonable
expenses of the Indenture Trustee.
(d) If an Indenture Event of Default occurs and is continuing and the
Indenture Trustee shall have obtained possession of a Unit, the Indenture
Trustee shall not be obligated to use or operate such Unit or cause such Unit to
be used or operated directly or indirectly by itself or through agents or other
representatives or to lease, license or otherwise permit or provide for the use
or operation of such Unit or Equipment by any other Person unless (i) the
Indenture Trustee shall have been able to obtain insurance in kinds, at rates
and in amounts satisfactory to it in its reasonable discretion to protect the
Indenture Estate and the Indenture Trustee, as trustee and individually, against
any and all liability for loss or damage to such Unit and for public liability
and property damage resulting from use or operation of such Unit and (ii) funds
are available in the Indenture Estate to pay for all such insurance or, in lieu
of such insurance, the Indenture Trustee is furnished with indemnification from
the holders of the Equipment Notes or any other Person upon terms and in amounts
satisfactory to the Indenture Trustee in its reasonable discretion to protect
the Indenture Estate and the Indenture Trustee, as trustee and individually,
against any and all such liabilities.
Section 5.04. Right to Cure; Option to Purchase; Etc.
(a) Right to Cure. (A) If there shall occur a Lease Event of Default in
respect of the payment of Basic Rent pursuant to Section 14(a) of the Lease,
then as long as no other Indenture Event of Default (other than arising from
such failure to pay Basic Rent or which is concurrently being cured pursuant to
this Section 5.04(a)) shall have occurred and be continuing the Owner
Participant or the Owner Trustee may (but need not) pay to the Indenture
Trustee, at any time prior to the expiration of a period of 10 Business Days (a
"10-Day Period") after receiving written notice of such default from the
Indenture Trustee (prior to the expiration of which 10-Day Period the
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Indenture Trustee shall not declare the Lease in default pursuant to Section 15
thereof or exercise any of the rights, powers or remedies pursuant to such
Section 15 or this Article V), an amount equal to the full amount of such
payment of Basic Rent, together with any interest due thereon on account of the
delayed payment thereof, and such payment by the Owner Participant or the Owner
Trustee shall be deemed to cure any Indenture Event of Default which arose from
such failure of the Lessee (but such cure shall not relieve the Lessee of any of
its obligations and shall not cure any other Indenture Event of Default) or (B)
if there shall occur a Lease Event of Default in respect of any other payment of
Rent (other than Basic Rent) or a Lease Event of Default shall have occurred and
be continuing, which Lease Event of Default is curable by the payment of money
(it being understood that actions such as the obtaining of insurance or the
procuring of maintenance services can be so effected), then as long as no other
Indenture Event of Default (other than arising from such Lease Event of Default
or which is concurrently being cured pursuant to this Section 5.04(a)) shall
have occurred and be continuing the Owner Participant or the Owner Trustee may
(but need not) pay to the Indenture Trustee, at any time prior to the expiration
of a period of 30 days (a "30-Day Period") after receiving written notice of
such Lease Event of Default from the Indenture Trustee (prior to the expiration
of which 30-Day Period the Indenture Trustee shall not declare the Lease in
default pursuant to Section 15 thereof or exercise any of the rights, powers or
remedies pursuant to such Section 15 or this Article V), an amount equal to the
full amount of such payment of Rent, together with any interest due thereon on
account of the delayed payment thereof or otherwise make such payment as shall
effect such cure, and such payment by the Owner Participant or the Owner Trustee
shall be deemed to cure any Indenture Event of Default which arose from such
Lease Event of Default (but such cure shall not relieve the Lessee of any of its
obligations); provided however, Owner Participant and Owner Trustee,
collectively, shall not be entitled to (x) cure more than three consecutive or
six total defaults in the payment of Basic Rent, or (y) cure other Lease Events
of Default if the outstanding amount which has been paid by the Owner
Participant or the Owner Trustee and not reimbursed to such parties by the
Lessee pursuant to this clause (y) exceeds in the aggregate $2,500,000, as
adjusted annually for inflation as of January 1 of each calendar year, by the
percentage change in the Consumer Price Index, All Urban Consumers, All Cities,
as compared to the prior calendar year as published by the Bureau of Labor
Statistics of the United States Department of Labor. Upon any cure by the Owner
Participant or the Owner Trustee in accordance with the first sentence of this
Section 5.04(a), the Owner Participant or the Owner Trustee shall, to the extent
of their respective payments, be subrogated to the rights of the Indenture
Trustee, as assignee hereunder of the Owner Trustee to receive such payment of
Rent (and any interest due thereon on account of the delayed payment thereof) or
right of reimbursement, and shall be entitled to receive such payment upon its
receipt by the Indenture Trustee as aforesaid (but in each case only if all
amounts of principal and interest at the time due and payable on the Equipment
Notes shall have been paid in full); provided that neither the Owner Participant
nor the Owner Trustee shall attempt to recover any such amount paid by it on
behalf of the Lessee pursuant to this Section 5.04(a) except by demanding of the
Lessee payment of such amount or by commencing an action against the Lessee to
require the payment of such amount.
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(b) Option to Purchase Equipment Notes. In the event that (i) at any time
one or more Lease Events of Default shall have occurred and any such Lease Event
of Default shall have continued for a period of 180 days or more during which
time the Equipment Notes could, but shall not, have been accelerated pursuant to
Section 5.02, (ii) the Equipment Notes shall have been accelerated pursuant to
Section 5.02, (iii) the Indenture Trustee, as assignee hereunder of the Lease,
shall have exercised (or given notice of its intention to exercise) any remedy
in respect of the Units under the Lease, or (iv) the Indenture Trustee shall
commence foreclosure of the Lien of this Indenture or otherwise exercise
remedies which would result in the exclusion of the Owner Trustee from the
Indenture Estate or any part thereof (or give notice of its intention to
foreclose or exercise remedies), then and in any such case, so long as the
Lessee and its Affiliates do not individually or in the aggregate own more than
20% of the Beneficial Interest, upon 30 days' notice from the Owner Trustee to
the Indenture Trustee designating a date of purchase (the "Purchase Date") which
shall be the fifteenth day of any month, each holder of an Equipment Note agrees
that it will, upon and subject to receipt by the Indenture Trustee from the
Owner Trustee or its nominee of an amount equal to the aggregate unpaid
principal amount of all Equipment Notes, together with accrued interest thereon
to the Purchase Date, plus all other sums then due and payable to such holder of
an Equipment Note hereunder, but, except in the case of purchase of the
Equipment Notes pursuant to clause (iv) above if the right to exercise any
remedies arises because of an Indenture Event of Default arising from action
attributable to the Owner Trustee or the Owner Participant, without any Make-
Whole Amount, forthwith sell, assign, transfer and convey to the Owner Trustee
or its nominee on the Purchase Date all of the right, title and interest of such
holder in and to the Equipment Notes then held by such holder, and the Owner
Trustee or its nominee shall assume all of such holder's obligations under the
Participation Agreement; provided that the Owner Trustee or its nominee must
purchase all and not less than all of the Equipment Notes then outstanding.
(c) Restrictions on Certain Actions. Notwithstanding any provision of this
Indenture to the contrary, the Indenture Trustee shall not foreclose the Lien of
this Indenture or otherwise exercise remedies hereunder which would result in
the exclusion of the Owner Trustee from the Indenture Estate or any part thereof
as a result of an Indenture Event of Default that constitutes or occurs solely
by virtue of one or more Lease Events of Default (at a time when no other
Indenture Event of Default unrelated to any Lease Event of Default shall have
occurred and be continuing) unless the Indenture Trustee as security assignee of
the Owner Trustee has proceeded or is then currently proceeding, to the extent
it is then entitled to do so hereunder and under the Lease and is not then
stayed or otherwise prevented from doing so by operation of law, to exercise one
(or more, as it shall in its good faith discretion determine) of the comparable
remedies provided for in Section 15 of the Lease with respect to the Equipment,
provided that in the event the Indenture Trustee shall be so stayed or otherwise
prevented from exercising such remedies under the Lease, it shall in any event
refrain from so foreclosing or exercising such other remedies hereunder for a
period of not less than 90 days from the date such stay first went into effect,
and further provided that in the event the Lessee as debtor in a proceeding
under Chapter 11 of the Bankruptcy Code (or any trustee appointed for the Lessee
as debtor in any such bankruptcy case) shall have affirmed the Lease and no
Lease Event of Default other than as specified in Section 14(g) or Section 14(h)
of the Lease has occurred
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and is continuing, with the approval of the bankruptcy court having jurisdiction
over such case, under Section 365 of the Bankruptcy Code or any amended or
successor version thereof, the Indenture Trustee shall refrain from so
foreclosing or exercising such other remedies hereunder.
Section 5.05. Rights of Lessee. Notwithstanding the provisions of this
Indenture, including, without limitation, Section 5.03, so long as no Lease
Event of Default shall have occurred and be continuing, neither the Indenture
Trustee nor the Owner Trustee shall take any action contrary to, or disturb, the
Lessee's rights under the Lease, except in accordance with the provisions of the
Lease, including, without limitation, (i) the right to receive all monies due
and payable to it in accordance with the provisions of the Lease and (ii) the
Lessee's rights to possession and use of, and of quiet enjoyment of, the
Equipment.
Section 5.06. Waiver of Existing Defaults. A Majority in Interest by
notice to the Indenture Trustee on behalf of all holders of the Equipment Notes
may waive any past default hereunder and its consequences, except a default: (i)
in the payment of the principal of, Make-Whole Amount, if any, or interest on
any Equipment Note, or (ii) in respect of a covenant or provision hereof which
under Article X hereof cannot be modified or amended without the consent of the
holder of each Equipment Note affected. Upon any such waiver, such default
shall cease to exist, and any Indenture Event of Default arising therefrom shall
be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Article VI.
DUTIES OF THE INDENTURE TRUSTEE
Section 6.01. Action upon Indenture Event of Default. If any payments of
Basic Rent or payments of the principal or interest or Make-Whole Amount, if
any, on the Equipment Notes due and payable on any Rent Payment Date shall not
have been paid in full on such Rent Payment Date, the Indenture Trustee shall
give telephonic notice within one Business Day (followed by prompt written
notice) to the Owner Trustee, the Owner Participant, the holders of the
Equipment Notes and the Lessee specifying the amount and nature of such
deficiency in payment. In the event a Responsible Officer of the Indenture
Trustee shall have actual knowledge of an Indenture Default, the Indenture
Trustee shall give prompt notice of such Indenture Default to the Lessee, the
Owner Trustee, the Owner Participant and the holders of the Equipment Notes by
facsimile or telephone (to be promptly confirmed in writing). In the event the
Owner Trustee shall have knowledge of an Indenture Default, the Owner Trustee
shall give notice of such Indenture Default in the same manner to the Lessee,
the Indenture Trustee, the Owner Participant and the holders of the Equipment
Notes. Subject to the terms of Section 6.03, the Indenture Trustee shall take
such action, or refrain from taking such action, with respect to such Indenture
Default as the Indenture Trustee shall be instructed in writing by a Majority in
Interest. If the Indenture Trustee shall not have received instructions as above
provided within 20 days after the mailing of notice of such Indenture Event of
Default or such
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Indenture Default to the holders of the Equipment Notes by the Indenture
Trustee, the Indenture Trustee may, but shall not be obligated to, take such
action, or refrain from taking such action, with respect to such Indenture Event
of Default or Indenture Default as it shall determine to be advisable in the
best interests of the holders of the Equipment Notes. Any provision of this
Section 6.01 to the contrary notwithstanding, the Indenture Trustee shall not
declare the Lease to be in default solely in respect of the Lessee's failure to
make any payment of Basic Rent within 10 Business Days after the same shall have
become due, unless the 10-Day Period within which, pursuant to Section 5.04(a),
the Owner Participant or the Owner Trustee are entitled to cure such failure
shall have expired. For all purposes of this Indenture, in the absence of actual
knowledge, neither the Owner Trustee nor the Indenture Trustee shall be deemed
to have knowledge of an Indenture Event of Default (except, in the case of the
Indenture Trustee, the failure of the Lessee to pay any installment of Basic
Rent that is required to be paid directly to the Indenture Trustee within the 10
Business Days after the same shall become due or the failure of the Lessee to
maintain insurance as required under Section 12 of the Lease if the Indenture
Trustee shall receive written notice thereof from an insurer or insurance
broker) unless notified in writing by the Lessee, the Owner Trustee, one or more
Loan Participant or the Owner Participant; and "actual knowledge" (as used in
the foregoing clause) of the Owner Trustee or the Indenture Trustee shall mean
actual knowledge of an officer in the Corporate Trust Administration of the
Owner Trustee or the Corporate Trust Department of the Indenture Trustee, as the
case may be.
Section 6.02. Action upon Instructions. Subject to the terms of Sections
6.01 and 6.03, upon the written instructions at any time and from time to time
of a Majority in Interest, the Indenture Trustee shall take such of the
following actions as may be specified in such instructions (subject to the
rights of the other parties thereto, except to the extent assigned hereunder):
(i) subject to and solely to the extent permitted by the terms hereof and of the
Lease, give such notice, direction or consent, or exercise such right, remedy or
power hereunder or under the Lease or in respect of any part or all of the
Indenture Estate or take such other action as shall be specified in such
instructions; and (ii) after an Indenture Event of Default shall have occurred
and so long as such Indenture Event of Default shall be continuing, approve as
satisfactory to it all matters required by the terms of the Lease to be
satisfactory to the Owner Trustee, it being understood that without the written
instructions of a Majority in Interest the Indenture Trustee shall not take any
action described in clauses (i) or (ii) above.
Upon the expiration or earlier termination of the Lease Term with respect
to any Unit under the Lease and after payment of the portion of the principal
of, together with interest and Make-Whole Amount, if any, on the Equipment Notes
in accordance with the terms of this Indenture, or, if and so long as no
Indenture Event of Default shall have occurred and be continuing, upon the
transfer by the Owner Trustee to the Lessee or its designee of any Unit pursuant
to Section 10 or 11 of the Lease or the retention by the Owner Trustee of any
Unit pursuant to Section 10.3 of the Lease, then the Indenture Trustee shall in
either such case, upon the written request of the Owner Trustee, and receipt by
the Indenture Trustee of funds necessary to prepay the Equipment Notes required
to be prepaid in connection with such purchase, termination, retention or Event
of Loss, execute and
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deliver to, or as directed in writing by, the Owner Trustee an appropriate
instrument (in due form for recording) furnished by the Owner Trustee or the
Lessee releasing such property from the Lien of this Indenture.
Section 6.03. Indemnification. (a) The Indenture Trustee shall not be
required to take any action or refrain from taking any action under Section 6.01
(other than the first two sentences thereof) or 6.02 or Article V if it shall
have reasonable grounds for believing that repayment of any funds which may be
expended in taking any action or refraining from taking any action or adequate
indemnification against any risk of loss, cost or liability is not reasonably
assured to it. The Indenture Trustee shall not be required to take any action
under Section 6.01 or 6.02 or Article V, nor shall any other provision of this
Indenture be deemed to impose a duty on the Indenture Trustee to take any
action, if the Indenture Trustee shall have been advised in writing by
independent counsel that such action is contrary to the terms hereof or of the
Lease or the Participation Agreement, or is otherwise contrary to law.
(b) Each holder of an Equipment Note may, but shall not be required to,
participate in any indemnification of the Indenture Trustee given pursuant to
paragraph (a) of this Section 6.03. Each holder of an Equipment Note so
participating shall be entitled to reimbursement for such participation in
accordance with Article III.
Section 6.04. No Duties Except as Specified in Indenture or Instructions.
The Indenture Trustee shall not have any duty or obligation to manage, control,
use, sell, dispose of or otherwise deal with the Equipment or any other part of
the Indenture Estate, or to otherwise take or refrain from taking any action
under, or in connection with, this Indenture, the Lease, or the Participation
Agreement, except as expressly provided by the terms of this Indenture or as
expressly provided in written instructions received pursuant to the terms of
Section 6.01 or 6.02; and no implied duties or obligations shall be read into
this Indenture against the Indenture Trustee. Each of the Owner Trustee (only in
its individual capacity) and the Indenture Trustee nevertheless agrees that it
will, at its own cost and expense, promptly take such action as may be necessary
duly to discharge any liens or encumbrances on any part of the Indenture Estate,
or on any properties of the Owner Trustee assigned, pledged or mortgaged as part
of the Indenture Estate, which result from claims against it in its individual
capacity not related to the ownership of the Equipment (in the case of the Owner
Trustee), administration of the Indenture Estate (in the case of the Indenture
Trustee) or any other transaction under this Indenture or the Trust Agreement or
any document included in the Indenture Estate.
Section 6.05. No Action Except under Lease, Indenture or Instructions. The
Indenture Trustee agrees that it will not manage, control, use, sell, dispose of
or otherwise deal with the Equipment or other property constituting part of the
Indenture Estate except (i) as required by the terms of the Lease and the
Participation Agreement, (ii) in accordance with the powers granted to, or the
authority conferred upon, the Indenture Trustee pursuant to this Indenture, or
(iii) in
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accordance with the express terms hereof or with written instructions pursuant
to Section 6.01 or 6.02.
Section 6.06. Disposition of Units. At any time and from time to time
prior to the expiration of the Lease Term, any Unit for which the provisions of
Section 11.4(a) of the Lease has been satisfied may be disposed of in accordance
with the provisions of Section 11.4(a) of the Lease, and the Owner Trustee
shall, from time to time, direct the Indenture Trustee to, provided no Lease
Event of Default shall have occurred and be continuing, execute and deliver to
it, or as directed in writing by the Owner Trustee, an appropriate instrument
furnished by the Owner Trustee or the Lessee releasing such Unit from the Lien
of the Indenture, but only in respect of such Unit.
Section 6.07. Indenture Supplements for Replacements. In the event of a
Replacement Unit being substituted as contemplated by Section 11.2 of the Lease,
the Owner Trustee and the Indenture Trustee agree for the benefit of the holders
of the Equipment Notes and the Lessee, subject to compliance by the Lessee with
its obligations set forth in Section 11 of the Lease, to execute and deliver an
Indenture Supplement substantially in the form of Exhibit A hereto and, provided
no Lease Default shall have occurred and be continuing, execute and deliver to
the Lessee an appropriate instrument releasing the Unit being replaced from the
Lien of the Indenture.
Section 6.08. Effect of Replacements. In the event of the substitution of
a Replacement Unit, all provisions of this Indenture relating to the Unit or
Units being replaced shall be applicable to such Replacement Unit with the same
force and effect as if such Replacement Unit was the same Unit being replaced.
Section 6.09. Withholding Taxes. The Indenture Trustee, as agent for the
Owner Trustee, shall exclude and withhold from each payment of principal, Make-
Whole Amount, if any, and interest and other amounts due hereunder or under the
Equipment Notes any and all withholding taxes applicable thereto as required by
law. The Indenture Trustee agrees to act as such withholding agent and, in
connection therewith, whenever any present or future taxes or similar charges
are required to be withheld with respect to any amounts payable in respect of
any of the Equipment Notes, to withhold such amounts and timely pay the same to
the appropriate authority in the name of and on behalf of the holders of such
Equipment Notes, that it will file any necessary withholding tax returns or
statements when due, and that, as promptly as possible after the payment
thereof, it will deliver to each holder of an Equipment Note appropriate
documentation showing the payment thereof, together with such additional
documentary evidence as such holders may reasonably request from time to time.
The Owner Trustee agrees that the provisions of Section 6.13 of the
Participation Agreement are intended for the benefit of the Indenture Trustee.
Section 6.10. Lessee's Right of Quiet Enjoyment. Notwithstanding any of
the provisions of this Indenture to the contrary, so long as Lessee is in
compliance with its obligations under the Lease (including applicable grace
periods) and no Lease Event of Default has occurred and is continuing
unremedied, the Indenture Trustee will comply with Section 8 of the
Participation
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Agreement to the same extent as if it were the Lessor under the Lease. Each
holder of an Equipment Note, by its acceptance thereof, consents in all respects
to the terms of the Lease and the Participation Agreement and agrees to the
provisions of this Section 6.10.
Section 6.11. Compensation and Indemnity. (a) The Owner Trustee shall
pay to the Indenture Trustee, from time to time, on demand, all funds received
for such purposes from the Lessee for (i) reasonable compensation for the
Indenture Trustee's services, which compensation shall not be limited by any law
on compensation of a trustee of an express trust, (ii) reimbursement for all
reasonable out-of-pocket expenses incurred by the Indenture Trustee in
connection with the performance of its duties under this Indenture (including
the reasonable compensation and expenses of the Indenture Trustee's counsel and
any agent appointed in accordance with Section 7.05) and (iii) in respect of any
loss or liability incurred by it arising out of or in connection with its
acceptance or administration of the trust or trusts hereunder except (A) as such
expenses or loss or liability might result from the gross negligence or wilful
misconduct of the Indenture Trustee or the inaccuracy of any representation or
warranty of the Indenture Trustee in Section 3.3 of the Participation Agreement,
and (B) as otherwise excluded by the terms of Sections 7.1 and 7.2 of the
Participation Agreement from the Lessee's indemnities under said sections;
provided that, so long as the Lease is in effect, the Indenture Trustee shall
--------
not make any claim under this Section 6.11 for any claim or expense indemnified
against by the Lessee under the Participation Agreement (or otherwise as for
which the Lessee has agreed to reimburse the Indenture Trustee pursuant to the
Owner Participant Agreements, including Section 2.5(b) of the Participation
Agreement) without first making demand on the Lessee for payment of such claim
or expense. The Indenture Trustee shall notify the Owner Trustee and the Lessee
promptly of any claim for which it may seek indemnity. The Owner Trustee shall
have the right to defend the claim and the Indenture Trustee shall cooperate in
the defense. The Indenture Trustee may have separate counsel and the Owner
Trustee, subject to limitations set forth in the preceding sentence, shall pay
the reasonable fees and expenses of such counsel. The Owner Trustee need not
pay for any settlement made without its and the Lessee's consent.
Article VII.
THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE
Section 7.01. Acceptance of Trusts and Duties. The Indenture Trustee
accepts the trusts hereby created and applicable to it and agrees to perform the
same but only upon the terms of this Indenture and agrees to receive and
disburse all moneys received by it constituting part of the Indenture Estate in
accordance with the terms hereof. The Indenture Trustee shall not be answerable
or accountable under any circumstances, except for its own willful misconduct or
gross negligence (or negligence or willful misconduct in the case of application
or investment of moneys constituting the Indenture Estate) or breach of any of
its representations or warranties or covenants set forth herein or in the
Participation Agreement, or the performance of its obligations under the last
sentence of Section 6.04; and the Owner Trustee shall not be liable for any
action or inaction of the Indenture Trustee and the Indenture Trustee shall not
be liable for any action or inaction of the Owner Trustee.
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The Owner Trustee shall not be deemed a trustee for, or agent of, the holders of
the Equipment Notes for any purpose.
Section 7.02. Absence of Duties. Except in accordance with written
instructions or requests furnished pursuant to Section 6.01 or Section 6.02 and
except as provided in, and without limiting the generality of, Section 6.04, the
Indenture Trustee shall have no duty (i) to see to any registration of the
Equipment or any recording or filing of the Lease, or of this Indenture or any
other document, or to see to the maintenance of any such registration, recording
or filing, (ii) to see to any insurance on the Equipment or to effect or
maintain any such insurance, whether or not the Lessee shall be in default with
respect thereto, (iii) to confirm, verify or inquire into the failure to receive
any financial statements of the Lessee or (iv) to inspect the Equipment at any
time or ascertain or inquire as to the performance or observance of any of the
Lessee's covenants under the Lease with respect to the Equipment.
Notwithstanding the foregoing, the Indenture Trustee will furnish to any holder
of an Equipment Note, so long as such holder of an Equipment Note or its
nominees shall hold any of the Equipment Notes, promptly upon receipt thereof,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and other instruments furnished to the Indenture Trustee
under this Indenture, to the extent that the same shall not have been furnished
to the Indenture Trustee and the holder of an Equipment Note pursuant to the
Lease.
Section 7.03. No Representations or Warranties as to the Equipment or
Documents. Neither the Owner Trustee nor the Owner Trustee in its individual
capacity nor the Indenture Trustee makes or shall be deemed to have made (i) any
representation or warranty, express or implied, as to the value, condition,
design, operation, merchantability or fitness for use of the Equipment or as to
their title thereto, or any other representation or warranty with respect to the
Equipment whatsoever, or (ii) any representation or warranty as to the validity,
legality or enforceability of this Indenture, the Trust Agreement, the
Participation Agreement, the Equipment Notes, the Lease, any Lease Supplement,
any Indenture Supplement or any other document or instrument or as to the
correctness of any statement contained in any thereof (except as to the
representations and warranties made by the Owner Trustee in its individual
capacity as set forth in Section 3.1 of the Participation Agreement), except
that the Owner Trustee and the Indenture Trustee each in its individual capacity
hereby confirms the representations and warranties made by it in its individual
capacity in Sections 3. 1 and 3.3, respectively, of the Participation Agreement.
Section 7.04. No Segregation of Moneys; No Interest; Investments. (a)
Subject to Section 7.04(b), no moneys received by the Indenture Trustee
hereunder need be segregated in any manner except to the extent required by law,
and any such moneys may be deposited under such general conditions for the
holding of trust funds as may be prescribed by law applicable to the Indenture
Trustee, and, except as otherwise agreed by the Owner Trustee or the Indenture
Trustee, as the case may be, neither the Owner Trustee nor the Indenture Trustee
shall be liable for any interest thereon.
(b) Any amounts held by the Indenture Trustee pursuant to the express
terms of this Indenture or the Lease and not required to be distributed as
herein provided shall be invested and
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reinvested by the Indenture Trustee from time to time in Specified Investments
at the written direction and at the risk and expense of the Lessee, except that
in the absence of any such direction, such amounts need not be invested and
reinvested and except that after a Lease Event of Default shall have occurred
and be continuing, such amounts shall be so invested and reinvested by the
Indenture Trustee in Indenture Investments. Any net income or gain realized as a
result of any such investments or reinvestment shall be held as part of the
Indenture Estate and shall be applied by the Indenture Trustee at the same
times, on the same conditions and in the same manner as the amounts in respect
of which such income or gain was realized are required to be distributed in
accordance with the provisions hereof or of the Lease pursuant to which such
amounts were required to be held and if no Lease Event of Default shall have
occurred and be continuing any excess shall be paid to the Lessee. Any such
Specified Investments or Indenture Investments may be sold or otherwise reduced
to cash (without regard to maturity date) by the Indenture Trustee whenever
necessary to make any application as required by such provisions. The Indenture
Trustee shall have no liability for any loss resulting from any such investment
or reinvestment other than by reason of the willful misconduct or gross
negligence of the Indenture Trustee.
Section 7.05. Reliance; Agents; Advice of Counsel. The Indenture Trustee
shall incur no liability to anyone acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion, bond
or other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Indenture Trustee may accept a copy
of a resolution of the Board of Directors of any party to the Participation
Agreement, certified by the Secretary or an Assistant Secretary of such party as
duly adopted and in full force and effect, as conclusive evidence that such
resolution has been duly adopted by said Board and that the same is in full
force and effect. As to any fact or matter the manner of ascertainment of which
is not specifically described herein, the Indenture Trustee may for all purposes
hereof rely on a certificate, signed by an officer of the Lessee, as to such
fact or matter, and such certificate shall constitute full protection to the
Indenture Trustee for any action taken or omitted to be taken by it in good
faith in reliance thereon. The Indenture Trustee shall furnish to the Owner
Trustee upon request such information and copies of such documents as the
Indenture Trustee may have and as are necessary for the Owner Trustee to perform
its duties under Article II hereof. The Indenture Trustee shall assume, and
shall be fully protected in assuming, that the Owner Trustee is authorized by
the Trust Agreement to enter into this Indenture and to take all action
permitted to be taken by it pursuant to the provisions hereof, and need not
inquire into the authorization of the Owner Trustee with respect thereto. In
the administration of the trusts hereunder, the Indenture Trustee may execute
any of the trusts or powers hereof and perform its powers and duties hereunder
directly or through agents or attorneys and may, at the reasonable expense of
the Indenture Estate, consult with independent counsel, accountants and other
skilled persons to be selected and employed by it, and the Indenture Trustee
shall not be liable for anything done, suffered, or omitted in good faith by it
in accordance with the written advice or opinion of any such independent
counsel, accountants or other skilled persons acting within such persons' area
of competence (so long as the Indenture Trustee shall have exercised reasonable
care in selecting such persons).
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Section 7.06. Not Acting in Individual Capacity. The Owner Trustee and
the Indenture Trustee each acts hereunder solely as trustee hereunder and, in
the case of the Owner Trustee, under the Trust Agreement and not in its
individual capacity unless otherwise expressly provided; and all Persons, other
than the holders of Equipment Notes to the extent expressly provided in this
Indenture, having any claim against the Owner Trustee or the Indenture Trustee
by reason of the transactions contemplated hereby shall, subject to the Lien and
priorities of payment as herein provided, look only to the Indenture Estate for
payment or satisfaction thereof.
Article VIII.
CERTAIN LIMITATIONS ON OWNER TRUSTEE'S
AND INDENTURE TRUSTEE'S RIGHTS
Section 8.01. Certain Limitations on Owner Trustee's and Indenture
Trustee's Rights. Each of the Owner Trustee and the Indenture Trustee agree
that it shall have no right against the holders of the Equipment Notes or the
Indenture Estate (except in the case of the Indenture Trustee as expressly
provided in Section 3.03 or 5.03 hereof) for any fee as compensation for its
services hereunder or any expenses or disbursements incurred in connection with
the exercise and performance of its powers and duties hereunder or any
indemnification against liability which it may incur in the exercise and
performance of such powers and duties but, on the contrary, shall look solely to
the Lessee for such payment and indemnification and that neither the Owner
Trustee nor the Indenture Trustee shall have any lien on nor security interest
in the Indenture Estate as security for such compensation, expenses, reasonable
counsel fees, if any, disbursements and indemnification.
Article IX.
SUCCESSOR TRUSTEES
Section 9.01. Notice of Successor Owner Trustee. In the case of any
appointment of a successor Owner Trustee pursuant to the Trust Agreement or any
merger, conversion, consolidation or sale of substantially all the business
involving the Owner Trustee pursuant to the Trust Agreement, the successor Owner
Trustee shall give prompt written notice thereof to the Indenture Trustee, the
Lessee and the holders of all Equipment Notes at the time outstanding.
Section 9.02. Resignation of Indenture Trustee; Appointment of Successor.
The resignation or removal of the Indenture Trustee and the appointment of a
successor Indenture Trustee shall become effective only upon the successor
Indenture Trustee's acceptance of appointment as provided in this Section 9.02.
The Indenture Trustee or any successor thereto may resign at any time without
cause by giving at least 30 days' prior written notice to the Owner Trustee, the
Owner Participant, the Lessee and the holders of the Equipment Notes. A
Majority in Interest may at any time remove the Indenture Trustee without cause
by an instrument in writing delivered to the Owner Trustee, the
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Owner Participant, the Lessee and the Indenture Trustee. The Owner Trustee may
remove the Indenture Trustee if: (1) the Indenture Trustee fails to comply with
Section 9.02(c); (2) the Indenture Trustee is adjudged a bankrupt or an
insolvent; (3) a receiver or public officer takes charge of the Indenture
Trustee or its property; or (4) the Indenture Trustee becomes incapable of
performing its duties hereunder.
(a) In the case of the resignation or removal of the Indenture Trustee,
the Owner Trustee shall provide notice thereof to the holders of the Equipment
Notes, and the Owner Trustee shall, unless otherwise directed by a Majority in
Interest, promptly appoint a successor Indenture Trustee, provided that a
Majority in Interest may appoint, within one year after such resignation or
removal, a successor Indenture Trustee which may be other than the successor
Indenture Trustee appointed as provided above, and such successor Indenture
Trustee appointed as provided above shall be superseded by the successor
Indenture Trustee so appointed by a Majority in Interest. If a successor
Indenture Trustee shall not have been appointed and accepted its appointment
hereunder within 60 days after the Indenture Trustee gives notice of resignation
or is removed as provided above, the retiring Indenture Trustee, the Lessee, the
Owner Trustee or a Majority in Interest may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee. Any successor
Indenture Trustee so appointed by such court shall immediately and without
further act be superseded by any successor Indenture Trustee appointed as
provided in the proviso to the first sentence of this paragraph (a) within one
year from the date of the appointment by such court.
(b) Any successor Indenture Trustee, however appointed, shall execute and
deliver to the Owner Trustee and the Lessee and to the predecessor Indenture
Trustee an instrument accepting such appointment, and thereupon such successor
Indenture Trustee, without further act, shall become vested with all the
estates, properties, rights, powers, duties and trusts of the predecessor
Indenture Trustee hereunder in the trusts hereunder applicable to it with like
effect as if originally named the Indenture Trustee herein; but nevertheless,
upon the written request of such successor Indenture Trustee, such predecessor
Indenture Trustee shall execute and deliver an instrument transferring to such
Indenture Trustee, upon the trusts herein expressed applicable to it, all the
estates, properties, rights, powers and trusts of such predecessor Indenture
Trustee, and such Indenture Trustee shall duly assign, transfer, deliver and pay
over to such successor Indenture Trustee all moneys or other property then held
by such predecessor Indenture Trustee hereunder.
(c) The Indenture Trustee shall be a bank or trust company organized under
the laws of the United States or any State thereof having a combined capital and
surplus of at least $250,000,000, if there be such an institution willing, able
and legally qualified to perform the duties of the Indenture Trustee hereunder
upon reasonable or customary terms.
(d) Any corporation into which the Indenture Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Indenture Trustee
shall be a party, or any corporation to which substantially all the corporate
trust business of the Indenture Trustee may be transferred, shall,
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subject to the terms of paragraph (c) of this Section, be the Indenture Trustee
under this Indenture without further act.
Article X.
SUPPLEMENTS AND AMENDMENTS
TO THIS INDENTURE AND OTHER DOCUMENTS
Section 10.01. Supplemental Indentures without Consent of Holders. (a)
The Owner Trustee and the Indenture Trustee, at any time and from time to time,
without notice to or the consent of any holders of any Equipment Notes, may
enter into one or more indentures supplemental hereto for any of the following
purposes:
(i) to correct or amplify the description of any property at any
time subject to the Lien of this Indenture or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subject to the Lien of this Indenture or to subject to the Lien of this
Indenture any Unit or Units substituted for any Unit or Units in accordance
with the Lease; provided, however, that indenture supplements entered into
for the purpose of subjecting to the Lien of this Indenture any Unit or
Units substituted for any in accordance with the Lease need only be
executed by the Owner Trustee; or
(ii) to evidence the succession of another trustee to the Owner
Trustee and the assumption by any such successor of the covenants of the
Owner Trustee herein and in the Equipment Notes contained, or to evidence
(in accordance with Article IX) the succession of a new Indenture Trustee
hereunder; or
(iii) to add to the covenants of the Owner Trustee, for the benefit
of the holders of any of the Equipment Notes, or to surrender any right or
power herein conferred upon the Owner Trustee; or
(iv) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising hereunder so long as any such action does not adversely
affect the interests of the holders of any of the Equipment Notes;
provided that no such supplement to this Indenture or waiver or modification of
the terms hereof shall adversely affect in a substantive manner the interests of
the Lessee without the Lessee's prior written consent, and in no event shall the
terms of Section 5.05 be so altered or modified without such Lessee consent.
(b) Supplemental Indentures with Consent of Majority In Interest. With the
written consent of a Majority in Interest, the Owner Trustee (but only on the
written request of the Owner
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Participant) may, and the Indenture Trustee, subject to Section 10.02 hereof,
shall, at any time and from time to time, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights and obligations of holders of any of the
Equipment Notes and of the Owner Trustee under this Indenture; provided,
however, without the consent of each holder of an Equipment Note affected
thereby, no such supplemental indenture shall:
(1) except as expressly provided by Section 10.01(c), change the final
maturity of the principal of any Equipment Note, or change the dates or
amounts of payment of any installment of the principal of, Make-Whole
Amount, if any, or interest on any Equipment Note, or change the principal
amount thereof or the Make-Whole Amount, if any, or interest thereon, or
change to a location outside the United States the place of payment where,
or the coin or currency in which, any Equipment Note or the Make-Whole
Amount, if any, or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment of principal or
Make-Whole Amount, if any, or interest on or after the date such principal
or Make-Whole Amount, if any, or interest becomes due and payable; or
(2) create any Lien with respect to the Indenture Estate ranking prior
to, or on a parity with, the security interest created by this Indenture
except such as are permitted by this Indenture, or deprive any holder of an
Equipment Note of the benefit of the Lien on the Indenture Estate created
by this Indenture; or
(3) reduce the percentage in principal amount of any of the Equipment
Notes, the consent of whose holders is required for any such supplemental
indenture, or the consent of whose holders is required for any waiver (of
compliance with certain provisions of this Indenture, or of certain
defaults hereunder and their consequences) provided for in this Indenture;
or
(4) modify any provisions of this Section 10.01(b), except to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the holder of each Equipment Note affected
thereby; or
(5) modify Sections 3.01, 3.02 or 3.03 hereof;
provided that no such supplement to this Indenture or waiver or modification of
the terms hereof shall adversely affect in a substantive manner the interests of
the Lessee without the Lessee's prior written consent unless otherwise provided
in the Operative Documents, and in no event shall the terms of the proviso to
Section 5.05 be so altered or modified without such Lessee consent.
Section 10.02. Indenture Trustee Protected. If in the opinion of the
Indenture Trustee any document required to be executed pursuant to the terms of
Section 10.01 adversely affects any right, duty, immunity or indemnity in favor
of the Indenture Trustee under this Indenture, the Participation
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Agreement or the Lease, the Indenture Trustee may in its discretion decline to
execute such document.
Section 10.03. Request of Substance, Not Form. It shall not be necessary
for the consent of the holders of Equipment Notes under Section 10.01(b) to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such consent shall approve the substance thereof.
Section 10.04. Documents Mailed to Holders. Promptly after the execution
by the Indenture Trustee of any document entered into pursuant to Section
10.01(b), the Indenture Trustee shall mail, by first-class mail, postage
prepaid, a conformed copy thereof to each holder of an Equipment Note at its
address last known to the Indenture Trustee, but the failure of the Indenture
Trustee to mail such conformed copies shall not impair or affect the validity of
such document.
Section 10.05. Amendments, Waivers, Etc. of Other Documents. (a) Without
the consent of a Majority in Interest, the respective parties to the Lease and
the Trust Agreement may not modify, amend or supplement any of such agreements,
or give any consent, waiver, authorization or approval thereunder, for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions thereof or of modifying in any manner the rights of the
respective parties thereunder; provided, however, that the actions specified in
subsection (b) of this Section 10.05 may be taken, except as otherwise expressly
provided therein, without the consent of the Indenture Trustee or of a Majority
in Interest or any holder of an Equipment Note.
(b) Subject to the provisions of subsection (c) of this Section 10.05, the
respective parties to the Lease and the Trust Agreement, at any time and from
time to time without the consent of the Indenture Trustee or of a Majority in
Interest or any holder of an Equipment Note, may:
(1) so long as no Indenture Event of Default shall have occurred and
be continuing, modify, amend or supplement the Lease, or give any consent,
waiver, authorization or approval with respect thereto, except that without
the consent of a Majority in Interest, the parties to the Lease shall not
modify, amend or supplement, or give any consent, waiver, authorization or
approval for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions thereof or of modifying in any
manner the rights of the respective parties thereunder, with respect to the
following provisions of the Lease: Sections 2, 3.1 (if the result thereof
would be to shorten the Basic Term to a period shorter than the period
ending with the final maturity of the Equipment Notes), 3.2, 3.3, 3.4, 3.5,
3.6 (except insofar as it relates to the address or account information of
the Owner Trustee or Indenture Trustee) (other than as such Sections 3.1
through 3.6 may be amended pursuant to Section 3.4 of the Lease as
originally executed), 4, 5, 6 (but only to the extent such Section is made
operative by Section 15), 7, 8, 9, 10 (except that additional requirements
may be imposed on the Lessee's ability to terminate the Lease with respect
to a Unit), 11 (except that additional requirements may be imposed on the
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Lessee's ability to replace a Unit subject to an Event of Loss), 12
(including the Letter Agreement referred to therein) (except that
additional insurance requirements may be imposed on the Lessee), 13, 14,
15, 16, 17, 18, 19, 20, 21, 22, 24, 25, and any definition of terms used in
the Lease, to the extent that any modification of such definition would
result in a modification of the Lease not permitted as aforesaid in this
clause (1) of subsection (b); provided that, in the event an Indenture
Event of Default shall have occurred and be continuing, the Indenture
Trustee shall have all rights of the Owner Trustee as "Lessor" under the
Lease to modify, amend or supplement the Lease or give any consent, waiver,
authorization or approval thereunder, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions thereof or of modifying in any manner the rights of the "Lessor"
thereunder; provided further that, whether or not an Indenture Event of
Default shall have occurred and be continuing, the Owner Trustee shall
retain the right (A) to exercise all rights of the Owner Trustee under
Section 17 (to the extent permitted by Section 5.04) of the Lease; (B) to
consent to any amendment, modification, or supplement of, or the granting
of any waiver in respect of (w) any provisions of the Lease if the effect
thereof is to decrease the amount or defer the payment of any Rent,
including any amounts payable under Sections 3, 10, 11, 15 or 22 of the
Lease or Section 10.2 of the Participation Agreement, (x) Section 6 of the
Lease, (y) Section 12 of the Lease in respect of insurance policies and the
proceeds thereof which by the terms of such policies are payable to the
Owner Participant or the Owner Trustee and not to the Indenture Trustee,
and (z) any other provision of the Lease if such amendment, modification,
supplement or waiver would impose any additional affirmative obligations
upon the Owner Trustee or the Owner Participant;
(2) modify, amend or supplement the Trust Agreement, or give any
consent, waiver, authorization or approval with respect thereto, except
that without the consent of a Majority of Interest, the parties to the
Trust Agreement shall not modify, amend or supplement, or give any consent,
waiver, authorization or approval for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions thereof
or of modifying in any manner the rights of the respective parties
thereunder, with respect to Sections 2.1, 2.2 (or the definition of
Accepted Equipment or Accepted Unit), 3.1, 4.1, 4.4, 7.1, 7.2, 9.1, 10.1,
10.2, 10.7, 10.11 or any other Section of the Trust Agreement if such
action would materially adversely affect the interest of the Loan
Participants, and any definition of terms used in the Trust Agreement, to
the extent that any modification of such definition would result in a
modification of the Trust Agreement not permitted pursuant to this
subsection (b); and
(3) modify, amend or supplement any of said agreements in order to
cure any ambiguity, to correct or supplement any provision thereof which
may be defective or inconsistent with any other provision thereof or any
provision of this Indenture, or to make any other provision with respect to
matters or questions arising thereunder or under this Indenture which shall
not be inconsistent with the provisions of this Indenture, provided any
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such action shall not adversely affect the interests of the holders of any
of the Equipment Notes.
(c) No modification, amendment, supplement, consent, waiver, authorization
or approval with respect to the Lease, whether effected pursuant to subsection
(a) or pursuant to subsection (b) of this Section 10.05, and anything in such
subsections or elsewhere in this Indenture to the contrary notwithstanding,
shall, without the consent of the holder of each Equipment Note affected
thereby:
(1) modify, amend or supplement the Lease in such a way as to change
the time of payment of Basic Rent, Supplemental Rent or Stipulated Loss
Value and any other amounts payable under, or as provided in, the Lease
upon the occurrence of an Event of Loss or Termination Value and any other
amounts payable under, or as provided in, the Lease upon termination
thereof or reduce the amount of any installment of Basic Rent so that the
same is less than the payment of interest and principal on such Equipment
Notes, as the case may be, to be made from such installment of Basic Rent
or reduce the aggregate amount of Stipulated Loss Value and any other
amounts payable under, or as provided in, the Lease upon the occurrence of
an Event of Loss so that the same is less than the accrued interest on and
principal of the Equipment Notes required to be paid at the time of such
payments, or reduce the amount of Termination Value and any other amounts
payable under, or as provided in, the Lease upon termination thereof so
that the same is less than the accrued interest on and principal of such
Equipment Notes required to be paid at the time of such payments; or
(2) modify, amend or supplement the Lease in such a way as to, or
consent to any assignment of the Lease or give any consent, waiver,
authorization or approval which would, release the Lessee from its
obligation in respect of payment of Basic Rent, Supplemental Rent or
Stipulated Loss Value and any other amounts payable under, or as provided
in, the Lease upon the occurrence of an Event of Loss, or Termination Value
and any other amounts payable under, or as provided in, the Lease upon
termination thereof, except for any such assignment pursuant to Section 6.8
of the Participation Agreement, and except as provided in the Lease.
Article XI.
MISCELLANEOUS
Section 11.01. Termination of Indenture. With respect to each Unit, this
Indenture and the trusts created hereby shall terminate and this Indenture shall
be of no further force or effect upon the earliest to occur of (i) the
termination of the Lease Term with respect to such Unit by Lessee pursuant to
Section 10 or Section 22.1 thereof and upon payment in full to the Indenture
Trustee of the amounts required to be paid pursuant to Section 2.10(a) in
respect of such Unit, (ii) the termination of the Lease with respect to such
Unit pursuant to Section 11 thereof and upon payment
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in full to the Indenture Trustee of the amounts required to be paid pursuant to
Section 2. 10(b) in respect of such Unit, (iii) the termination of the Lease
with respect to all Units pursuant to Section 6.9 of the Participation Agreement
and upon payment in full to the Indenture Trustee of the amounts required to be
paid pursuant to Section 2.10(c) in respect of such Units and (iv) the payment
in full of the principal amount of and interest on all Equipment Notes
outstanding hereunder and all other sums payable to the Indenture Trustee and
the holders of all of the Equipment Notes hereunder and under such Equipment
Notes and under the Participation Agreement.
Section 11.02. No Legal Title to Indenture Estate in Holders. No holder of
an Equipment Note shall have legal title to any part of the Indenture Estate.
No transfer, by operation of law or otherwise, of any Equipment Note or other
right, title and interest of any holder of an Equipment Note in and to the
Indenture Estate or hereunder shall operate to terminate this Indenture or the
trusts hereunder or entitle any successor or transferee of such holder to an
accounting or to the transfer to it of legal title to any part of the Indenture
Estate.
Section 11.03. Sale of Equipment by Indenture Trustee is Binding. Any sale
or other conveyance of the Equipment by the Indenture Trustee made pursuant to
the terms of this Indenture or the Lease shall bind the holders of any Equipment
Notes, the Owner Trustee and the Owner Participant and shall be effective to
transfer or convey all right, title and interest of the Indenture Trustee, the
Owner Trustee, the Owner Participant and such holders of the Equipment Notes in
and to the Equipment. No purchaser or other grantee shall be required to
inquire as to the authorization, necessity, expediency or regularity of such
sale or conveyance or as to the application of any sale or other proceeds with
respect thereto by the Indenture Trustee.
Section 11.04. Remedies Cumulative. Each and every right, power and remedy
herein specifically given to the Indenture Trustee or otherwise in this
Indenture shall be cumulative and shall be in addition to every other right,
power and remedy herein specifically given or now or hereafter existing at law,
in equity or by statute, and each and every right, power and remedy whether
specifically herein given or otherwise existing may be exercised from time to
time and as often and in such order as may be deemed expedient by the Indenture
Trustee, and the exercise or the beginning of the exercise of any power or
remedy shall not be construed to be a waiver of the right to exercise at the
time or thereafter any other right, power or remedy. No delay or omission by
the Indenture Trustee in the exercise of any right, remedy or power or in the
pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the Owner Trustee or the
Lessee or to be an acquiescence therein.
Section 11.05. Discontinuance of Proceedings. In case the Indenture
Trustee shall have proceeded to enforce any right, power or remedy under this
Indenture by foreclosure, entry or otherwise, and such proceedings shall have
been discontinued or abandoned for any reason or shall have been determined
adversely to the Indenture Trustee, then and in every such case the Owner
Trustee, the Owner Participant, the Indenture Trustee and the Lessee shall be
restored to their former positions and rights hereunder with respect to the
Indenture Estate, and all rights, remedies and
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powers of the Indenture Trustee shall continue as if no such proceedings had
been undertaken (but otherwise without prejudice).
Section 11.05. Indenture and Equipment Notes for Benefit of Owner Trustee,
Indenture Trustee, Owner Participant and Holders Only. Nothing in this
Indenture, whether express or implied, shall be construed to give to any Person
other than the Owner Trustee (individually and as trustee), the Indenture
Trustee, the Owner Participant (as set forth herein) and the holders of any
Equipment Notes any legal or equitable right, remedy or claim under or in
respect of this Indenture or any such Equipment Note.
Section 11.06. Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all notices required or permitted under the terms and
provisions hereof shall be in writing, and shall become effective when deposited
in the United States mail, with proper postage for first class registered or
certified mail prepaid, when delivered personally, or, if promptly confirmed by
mail as provided above, when dispatched by telegram, telex or other written
telecommunication addressed (i) if to the Owner Trustee, at its office at Sixth
and Marquette, MAC ▇▇▇▇▇-▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Services, (ii) if to the Indenture Trustee, at its office at ▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇, (iii) if to a
holder of an Equipment Note, at such address as is set forth on Schedule 2 of
the Participation Agreement or, if not so specified, at the address set forth in
the register maintained pursuant to Section 2.07 hereof, or at such address as
such Loan Participant shall have furnished by notice to the Owner Trustee and
the Indenture Trustee, (iv) if to the Lessee, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer, (v) if to the Owner
Participant, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Chief Financial Officer, and (vi) if to any of the foregoing Persons, at such
other address as such Person shall from time to time designate by written notice
to the other parties hereto in accordance with this Section 11.07.
Notwithstanding the foregoing provisions, for purposes of Sections 5.01,
5.02, 5.04, 6.01 and 6.02, written notice shall be deemed given when it is in
fact received (by mail, confirmed facsimile or otherwise) by any addressee at
the respective addresses specified above.
Section 11.07. Severability. Any provision of this Indenture which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In the event of any
inconsistency or conflict between any provision of this Indenture and any
provision of the Trust Agreement, such provision in this Indenture shall govern
and control.
Section 11.08. Separate Counterparts. This Indenture may be executed in
any number of counterparts (and each of the parties hereto shall not be required
to execute the same counterpart). Each counterpart of this Indenture including
a signature page executed by each of the parties hereto
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shall be an original counterpart of this Indenture, but all of such counterparts
together shall constitute one instrument.
Section 11.10. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the Owner
Trustee and its successors and permitted assigns, the Owner Participant and its
successors and permitted assigns, and the Indenture Trustee and its successors
and permitted assigns, and each holder of an Equipment Note, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument
or action by any holder of an Equipment Note shall bind the successors and
assigns of such holder.
Section 11.11. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 11.12. Governing Law. This Indenture shall in all respects be
governed by, and construed in accordance with, the laws of the State of New
York, including all matters of construction, validity and performance.
Section 11.13. Normal Commercial Relations. Anything contained in this
Indenture to the contrary notwithstanding, the Owner Participant, the Owner
Trustee or the Indenture Trustee or any affiliate of the Owner Participant, the
Owner Trustee or the Indenture Trustee may enter into commercial banking or
other financial transactions, and conduct banking or other commercial
relationships, with the Lessee, any holder of an Equipment Note or the Indenture
Trustee (in its individual capacity or otherwise) fully to the same extent as if
this Indenture were not in effect, including, without limitation, the making of
loans or other extensions of credit for any purpose whatsoever.
Section 11.14. No Recourse Against Others. No director, officer, employee
or stockholder, as such, of the Lessee, the Owner Trustee, the Owner Participant
or the Indenture Trustee shall have any liability for any obligations of Lessee,
the Owner Participant, the Owner Trustee or the Indenture Trustee or under the
Equipment Notes or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each holder of an Equipment Note
by accepting an Equipment Note waives and releases all such liability. The
waiver and release are part of the consideration of such Equipment Note.
Section 11.15. Identity of Note Purchasers. Upon the written request for
a valid business purpose by any holder of an Equipment Note, the Indenture
Trustee shall provide as soon as reasonably practicable to such holder the names
and addresses of all other registered holders of Equipment Notes.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers or attorneys-in-fact, as the case may
be, thereunto duly authorized, on the day and year first above written.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual capacity
except as set forth in Section 7.03 hereof, but
solely as Owner Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Corporate Trust Officer
LASALLE BANK NATIONAL ASSOCIATION,
as Indenture Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
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State of Minnesota )
) SS
County of Hennepin )
On this 26th day of June, 2000 before me personally appeared ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, to me personally known, who being by me duly sworn, say that he is
Corporate Trust Officer of Norwest Bank Minnesota, National Association, that
said instrument was signed on such date on behalf of said corporation by
authority of its Board of Directors, and he acknowledged that the execution of
the foregoing instrument was the free act and deed of said corporation.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Notary Public
[Notarial Seal]
My commission expires: 01/31/2005
State of Illinois )
) SS
County of ▇▇▇▇ )
On this 26th day of June, 2000, before me personally appeared ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇, to me personally known, who being by me duly sworn, say that he is the
Vice President of LaSalle Bank National Association, that said instrument was
signed on such date on behalf of said corporation by authority of its Board of
Directors, and he acknowledged that the execution of the foregoing instrument
was the free act and deed of said corporation.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Notary Public
[Notarial Seal]
My commission expires: 07/13/2001
-44-
EXHIBIT A
TRUST INDENTURE SUPPLEMENT NO.__
(UTC Trust No. 2000-A)
(L-16)
This Indenture Supplement No. __ (UTC Trust No. 2000-A) (L-16), dated
_________________, 2000 (this "Indenture Supplement"), of Norwest Bank
Minnesota, National Association, not in its individual capacity but solely as
trustee (the "Owner Trustee") under the Trust Agreement (UTC Trust No. 2000-A)
(L-16), dated June 29, 2000 (the "Trust Agreement"), between the Owner Trustee
in its individual capacity and BNY Capital Funding LLC, as Owner Participant:
WITNESSETH:
WHEREAS, the Trust Indenture and Security Agreement (UTC Trust No. 2000-A)
(L-16) dated June 29, 2000 (the "Indenture"), between the Owner Trustee and
LaSalle Bank National Association, as Indenture Trustee (the "Indenture
Trustee"), provides for the execution and delivery of Indenture Supplements
thereto substantially in the form hereof each of which shall particularly
describe the Units covered by a related Lease Supplement under the Lease, by
having attached thereto a copy of such related Lease Supplement, and shall
specifically mortgage such Units to the Indenture Trustee;
WHEREAS, the Indenture includes the Units described in the copy of Lease
Supplement No. __ attached hereto and made a part hereof; and
WHEREAS, an executed counterpart of the Indenture is attached to this
Indenture Supplement;
NOW, THEREFORE, in order to secure the prompt payment of the principal of,
and Make-Whole Amount, if any, and interest on all of the Equipment Notes from
time to time outstanding under the Indenture and the performance and observance
by the Owner Trustee of all the agreements, covenants and provisions in the
Indenture for the benefit of the holders of the Equipment Notes and in the
Equipment Notes, subject to the terms and conditions of the Indenture, and in
consideration of the premises and of the covenants contained in the Indenture
and of the acceptance of the Equipment Notes by the holders thereof, and of the
sum of $1.00 paid to the Owner Trustee by the Indenture Trustee at or before the
delivery hereof, the receipt whereof is hereby acknowledged, the Owner Trustee
(i) has sold, assigned, transferred, pledged and confirmed, and does hereby
sell, assign, transfer, pledge and confirm, a security interest in and mortgage
lien on all right, title and interest of the Owner Trustee in and to the
property comprising the Equipment described in the copy of Lease Supplement No.
__ attached hereto, and (ii) has sold, assigned, transferred and set over, a
security interest in and mortgage lien on all of the right, title and interest
of the Owner Trustee under, in and to such Lease Supplement (excluding, however,
any rights to Excepted Property thereunder),
A-1
referred to above, to the Indenture Trustee, its successors and assigns, in the
trust created by the Indenture for the benefit of the holders from time to time
of the Equipment Notes.
To have and to hold all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, in trust for the benefit and
security of the holders from time to time of the Equipment Notes and for the
uses and purposes and subject to the terms and provisions set forth in the
Indenture.
It is the intention of the parties hereto that all Equipment Notes issued
and outstanding under this Indenture Supplement rank on a parity with each other
Equipment Note and that, as to each other Equipment Note, they be secured
equally and ratably by the collateral described herein, without preference,
priority or distinction of any one thereof over any other by reason of
difference in time of issuance or otherwise, and that each such Equipment Note
be entitled to the same benefits and security in the Indenture and this
Indenture Supplement as each other.
The Equipment Notes issued under this Indenture Supplement shall be
designated as Equipment Notes 2000-A. The Equipment Notes shall be substantially
in the form set forth in Section 2.01 of the Indenture. The Equipment Notes
issued under this Indenture Supplement shall be dated the date of issuance
thereof, shall be issued in the maturity and aggregate principal amount and
shall bear interest as specified in Exhibit B hereto. The principal of each
Equipment Note shall be payable in installments, on each Installment Payment
Date and the Maturity Date, in amounts equal to the Installment Payment Amount
for each such Installment Payment Date and Maturity Date as set forth for such
Equipment Notes.
This Supplement shall be construed as supplemental to the Indenture and
shall form a part of it, and the Indenture is hereby incorporated by reference
herein and is hereby ratified, approved and confirmed.
This Supplement may be executed by the Owner Trustee in separate
counterparts, each of which when so executed and delivered is an original, but
all such counterparts shall together constitute but one and the same Supplement.
AND FURTHER, the Owner Trustee hereby acknowledges that the Equipment
referred to in the aforesaid Lease Supplement attached hereto and made a part
hereof has been delivered to the Owner Trustee and is included in the property
of the Owner Trustee covered by all the terms and conditions of the Trust
Agreement, subject to the pledge or mortgage thereof under the Indenture.
A-2
IN WITNESS WHEREOF, the Owner Trustee has caused this Indenture Supplement
to be duly executed by one of its duly authorized officers, on the day and year
first above written.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual capacity, but
solely as Owner Trustee
By:_______________________________________________
Name:
Title:
A-3
State of )
) SS
County of )
On this ____ day of _____________________, 2000, before me personally
appeared ___________________, to me personally known, who being by me duly
sworn, say that he is __________________ of Norwest Bank Minnesota, National
Association, that said instrument was signed on such date on behalf of said
corporation by authority of its Board of Directors, and he acknowledged that the
execution of the foregoing instrument was the free act and deed of said
corporation.
__________________________________
Notary Public
[Notarial Seal]
My commission expires:
A-4
EXHIBIT B
---------
Terms of Equipment Notes
-----------------------
Aggregate Principal Amount Interest Rate Final Maturity
-------------------------- ------------- --------------
$108,423,245.65 8.13% June 29, 2016