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EXHIBIT 4(b)(4)
TRUST INDENTURE AND SECURITY AGREEMENT
(UTC Trust No. 1998-A)
(L-15)
Dated March 30, 1998
Between
Wilmington Trust Company,
as Owner Trustee
And
▇▇▇▇▇▇ Trust and Savings Bank,
as Indenture Trustee
TANK CARS AND COVERED HOPPERS
--------------------
Filed with the Surface Transportation Board of the Department of
Transportation pursuant to 49 U.S.C. Section 11301 on March __, 1998 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 March __, 1998.
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TABLE OF CONTENTS
PAGE
GRANTING CLAUSE.............................................................. 1
HABENDUM CLAUSE.............................................................. 3
ARTICLE I.
DEFINITIONS
Section 1.01. Certain Definitions........................................... 4
ARTICLE II.
THE EQUIPMENT NOTES
Section 2.01. Form of Equipment Notes....................................... 5
Section 2.02. Terms of Equipment Notes...................................... 8
Section 2.03. Payment from Indenture Estate Only............................ 8
Section 2.04. Method of Payment............................................. 9
Section 2.05. Application of Payments to Principal Amount and Interest...... 9
Section 2.06. Termination of Interest in Indenture Estate................... 9
Section 2.07. Transfer of Equipment Notes................................... 9
Section 2.08. Mutilated, Destroyed, Lost or Stolen Equipment Notes.......... 10
Section 2.09. Payment of Transfer Taxes..................................... 11
Section 2.10. Prepayments................................................... 11
Section 2.11. Equally and Ratably Secured................................... 12
ARTICLE III.
RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME
FROM THE INDENTURE ESTATE
Section 3.01. Basic Rent Distribution....................................... 13
Section 3.02. Payments in the Event of Prepayment........................... 13
Section 3.03. Payments after Indenture Event of Default..................... 13
Section 3.04. Other Payments................................................ 15
Section 3.05. Distribution of Excepted Property............................. 15
ARTICLE IV.
ASSUMPTION OF OBLIGATIONS OF OWNER TRUSTEE BY LESSEE
Section 4.01. Assumption of Obligations of Owner Trustee by Lessee.......... 15
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PAGE
ARTICLE V.
REMEDIES OF THE INDENTURE TRUSTEE UPON AN INDENTURE
EVENT OF DEFAULT
Section 5.01. Indenture Events of Default................................... 16
Section 5.02. Acceleration; Rescission and Annulment........................ 18
Section 5.03. Remedies with Respect to Indenture Estate..................... 18
Section 5.04. Right to Cure; Option to Purchase; Etc........................ 21
Section 5.05. Rights of Lessee.............................................. 23
Section 5.06. Waiver of Existing Defaults................................... 23
ARTICLE VI.
DUTIES OF THE INDENTURE TRUSTEE
Section 6.01. Action upon Indenture Event of Default........................ 23
Section 6.02. Action upon Instructions...................................... 24
Section 6.03. Indemnification............................................... 24
Section 6.04. No Duties Except as Specified in Indenture or Instructions.... 25
Section 6.05. No Action Except under Lease, Indenture or Instructions....... 25
Section 6.06. Disposition of Units.......................................... 25
Section 6.07. Indenture Supplements for Replacements........................ 25
Section 6.08. Effect of Replacements........................................ 25
Section 6.09. Withholding Taxes............................................. 26
Section 6.10. Lessee's Right of Quiet Enjoyment............................. 26
Section 6.11. Compensation and Indemnity.................................... 26
ARTICLE VII.
THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE
Section 7.01. Acceptance of Trusts and Duties............................... 27
Section 7.02. Absence of Duties............................................. 27
Section 7.03. No Representations or Warranties as to the Equipment or
Documents..................................................... 27
Section 7.04. No Segregation of Moneys; No Interest; Investments............ 27
Section 7.05. Reliance; Agents; Advice of Counsel........................... 28
Section 7.06. Not Acting in Individual Capacity............................. 29
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........................................................ 29
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PAGE
ARTICLE IX.
SUCCESSOR TRUSTEES
Section 9.01. Notice of Successor Owner Trustee............................. 29
Section 9.02. Resignation of Indenture Trustee; Appointment of Successor.... 29
ARTICLE X.
SUPPLEMENTS AND AMENDMENTS
TO THIS INDENTURE AND OTHER DOCUMENTS
Section 10.01. Supplemental Indentures without Consent of Holders............ 30
Section 10.02. Indenture Trustee Protected................................... 32
Section 10.03. Request of Substance, Not Form................................ 32
Section 10.04. Documents Mailed to Holders................................... 32
Section 10.05. Amendments, Waivers, Etc. of Other Documents.................. 32
ARTICLE XI.
MISCELLANEOUS
Section 11.01. Termination of Indenture...................................... 35
Section 11.02. No Legal Title to Indenture Estate in Holders................. 35
Section 11.03. Sale of Equipment by Indenture Trustee is Binding............. 35
Section 11.04. Remedies Cumulative........................................... 35
Section 11.05. Discontinuance of Proceedings................................. 35
Section 11.06. Indenture and Equipment Notes for Benefit of Owner Trustee,
Indenture Trustee, Owner Participant and Holders Only......... 36
Section 11.07. Notices....................................................... 36
Section 11.08. Severability.................................................. 36
Section 11.09. Separate Counterparts......................................... 36
Section 11.10. Successors and Assigns........................................ 37
Section 11.11. Headings...................................................... 37
Section 11.12. Governing Law................................................. 37
Section 11.13. Normal Commercial Relations................................... 37
Section 11.14. No Recourse Against Others.................................... 37
EXHIBIT A - Form of Trust Indenture Supplement
EXHIBIT B - Terms of Equipment Notes
EXHIBIT C - Loan Participant
APPENDIX A - Definitions
ANNEX A1 - Amortization Schedule (Note A-1)
ANNEX A2 - Amortization Schedule (Note A-2)
ANNEX A3 - Amortization Schedule (Note B)
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TRUST INDENTURE AND SECURITY AGREEMENT
(UTC TRUST NO. 1998-A) (L-15)
This TRUST INDENTURE AND SECURITY AGREEMENT (UTC Trust No. 1998-A)
dated March 30, 1998 (this "Indenture"), between Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity, except as
otherwise expressly set forth herein, 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 ▇▇▇▇▇▇ Trust and Savings Bank, an Illinois banking
corporation, 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 one or more Equipment Notes on the
Initial Closing Date and the issuance of one or more Equipment Notes on the
Subsequent 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 the Indenture Supplement under which such
Equipment Notes are issued, from time to time outstanding hereunder and the
performance and observance by the Owner Trustee of all the agreements, covenants
and provisions herein and in the Equipment Notes all for the benefit of the
holders of the Equipment Notes, and for the uses and purposes and subject to the
terms and provisions hereof, and in consideration of the premises and of the
covenants herein contained, and of the acceptance of the Equipment Notes by the
Loan Participant, the Owner Trustee does hereby sell, assign, transfer, convey,
mortgage, pledge, and confirm unto the Indenture Trustee, its successors and
assigns, for the security and benefit of the holders of the
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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; and
(5) all proceeds of the foregoing.
Notwithstanding the foregoing provisions:
(a) there shall be excluded from the foregoing sale,
assignment, transfer, conveyance, mortgage, pledge or security interest
granted by this Indenture and from the Indenture Estate all Excepted
Property;
(b)(i) the Owner Trustee and the Owner Participant shall at
all times retain the right, to the exclusion of the Indenture Trustee
(A) to Excepted Property and to commence an action at law to obtain
such Excepted Property and (B) to adjust Basic Rent and the percentages
relating to Stipulated Loss Value, Termination Value, Early Purchase
Price, Basic Term Purchase Price and Outside Date Purchase Price 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 15 of the Lease and to retain the
right to cause the Lessee to
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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.
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
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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 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. 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.
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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:
1998-A ____% EQUIPMENT NOTE (Note ____),
(Secured by, among others, Lease Obligations of
Union Tank Car Company)
Issued in Connection with Certain Railroad Rolling Stock
No.______ Chicago, Illinois
____________ __, 1998
$__________________
Wilmington Trust Company, not in its individual capacity, but solely as
owner trustee (herein in such capacity called the "Owner Trustee") under that
certain Trust Agreement (UTC Trust No. 1998-A) (L-15), dated March __, 1998, as
from time to time supplemented and amended (herein called the "Trust
Agreement"), between the Owner Trustee in its individual capacity and FNBC
Leasing Corporation (the "Owner Participant"), hereby promises to pay to
_______________________________, or registered assigns, the principal sum of
$____________ in lawful currency of the United States of America, payable on
January 2 of each year, commencing January 2, 2000, and thereafter to and
including January 2, 2014, but excluding January 2, 2009, 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 July 2, 1998 and on each January 2 and July
2 thereafter to the maturity date hereof at the rate of % per annum (computed on
the basis of a 360-day year of twelve 30-day months). Interest on any overdue
principal and (to the extent legally enforceable) on overdue interest shall be
paid from the due date thereof at the rate of % per annum (computed on the basis
of a 360-day year of twelve 30-day months), payable on demand.
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. 1998-A) (L-15), dated March 30, 1998, 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 ▇▇▇▇▇▇ Trust and Savings Bank, as Indenture Trustee thereunder
for the holder of this Equipment Note and the holders of other Equipment Notes
outstanding thereunder (herein in such capacity called the "Indenture Trustee")
shall be made only from the income and proceeds from the Indenture Estate and
only to the extent that the Indenture Trustee shall have sufficient income or
proceeds from the Indenture Estate to make such payments in accordance with the
terms of Article III of the Indenture. Each holder hereof, by its acceptance of
this Equipment Note, agrees that it will look solely to the income and proceeds
from the Indenture Estate to the extent available for distribution to the holder
hereof as provided in the Indenture and that none of Wilmington Trust Company,
in its individual capacity or as the Owner
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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. ___. The Indenture Estate is held by the Indenture Trustee as
security for the Equipment Notes. Reference is hereby made to the Indenture for
a statement of the rights of the holder of, and the nature and extent of the
security for, this Equipment Note, as well as for a statement of the terms and
conditions of the trusts created by the Indenture, to all of which terms and
conditions in the Indenture each holder hereof agrees by its acceptance of this
Equipment Note.
This Equipment Note is not subject to redemption or prepayment except
as provided in Sections 2.10, 3.02 and 3.03 of the Indenture. This Equipment
Note is subject to purchase by the Owner Trustee without a 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.
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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
ILLINOIS.
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.
Wilmington Trust Company,
not in its individual capacity, but solely
as Owner Trustee under the Trust Agreement
By:_________________________________
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[FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Equipment Notes referred to in the within-mentioned
Indenture.
▇▇▇▇▇▇ Trust and Savings Bank,
as Indenture Trustee
By:_________________________________
Authorized Officer
[Insert from Annex A, the related Amortization Schedule]
Section 2.02. Terms of Equipment Notes. There shall be issued and
delivered to the Loan Participant one or more Equipment Notes related to each
Lease Supplement executed and delivered in respect of the Units delivered on the
Initial Closing Date and the Subsequent Closing Date in the maturities and
bearing the interest rate as set forth in Exhibit B hereto, in an aggregate
principal amount equal to that portion of the loan made by the Loan Participant
to the Owner Trustee pursuant to Section 2 of the Participation Agreement
relating to the Units under such Lease Supplement. Each such Equipment Note
shall evidence the loan made by the Loan Participant in connection with the
purchase of 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, duly authenticated by the Indenture Trustee and dated
the Initial Closing Date of the Equipment or the Subsequent Closing Date of the
Equipment, as applicable, and as having been issued in connection with the
Equipment under a related Lease Supplement.
The principal amount of and interest on each Equipment Note issued
pursuant to the provisions of this Indenture shall be payable as set forth in
the form thereof contained in Section 2.01 and Annex A. 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
Wilmington Trust Company, in its individual capacity or as the Owner Trustee,
the Owner Participant, the Indenture Trustee or their
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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, if so requested by any holder of an Equipment Note by written notice to
the Owner Trustee and the Indenture Trustee, all amounts payable by the Owner
Trustee hereunder to such holder or a nominee therefor either (i) by
transferring by wire in immediately available funds to an account maintained by
such holder with a bank in the United States the amount to be distributed to
such holder or (ii) by mailing a check denominated in U.S. dollars to such
holder at such address as such holder shall have specified in such notice, in
any case without any presentment or surrender of any Equipment Note, except that
the holder of an Equipment Note shall surrender such Equipment Note to the
Indenture Trustee upon payment in full of the principal amount of and interest
on such Equipment Note and such other sums payable to such holder hereunder or
under the Equipment Note.
(b) Whenever the date scheduled for any payment to be made hereunder or
under any Equipment Note shall not be a Business Day, then such payment need not
be made on such scheduled date but may be made on the next succeeding Business
Day with the same force and effect as if made on such scheduled date and
(provided such payment is made on such next succeeding Business Day) no interest
shall accrue on the amount of such payment from and after such scheduled date to
the time of such payment on such next succeeding Business Day.
Section 2.05. Application of Payments to Principal Amount and Interest.
In the case of each Equipment Note, each payment of principal thereof and
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
shall have no further interest in, or other right with respect to, the Indenture
Estate when and if the principal amount of and interest on all Equipment Notes
held by such holder and all other sums payable to such holder hereunder and
under such Equipment Notes and under the Participation Agreement shall have been
paid in full.
Section 2.07. Transfer of Equipment Notes. The Indenture Trustee shall
maintain at its corporate trust administration office in Chicago, Illinois or in
the city in which the corporate trust office of a successor Indenture Trustee is
located, a register for the purpose of registering transfers and exchanges of
Equipment Notes. A holder of an Equipment Note intending to transfer such
Equipment Note to a new payee, or to exchange any Equipment Note or Equipment
Notes held by it for an Equipment Note or
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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 $1,000,000 or a whole multiple thereof or such smaller
denomination as may be necessary due to the original issuance of Equipment Notes
of the applicable maturity in an aggregate principal amount not evenly divisible
by $1,000,000) of the same, and, in the case of a surrender for registration of
transfer, the name and address of the transferee or transferees. Promptly upon
receipt of such documents, the Owner Trustee will issue, and the Indenture
Trustee will authenticate, a new Equipment Note or Equipment Notes of the same
series, in the same aggregate principal amount and dated the same date or dates
as, with the same payment schedule, in the form set forth in Section 2.01 in the
same maturity and bearing the same interest rate as the Equipment Note or
Equipment Notes surrendered, in such denomination or denominations and payable
to such payee or payees as shall be specified in the written request from such
holder. All Equipment Notes issued upon any registration of transfer or exchange
of Equipment Notes shall be the valid obligations of the Owner Trustee
evidencing the same respective obligations, and entitled to the same security
and benefits under this Indenture, as the Equipment Notes surrendered upon such
registration of transfer or exchange. The Indenture Trustee shall make a
notation on each new Equipment Note or Equipment Notes of the amount of all
payments or prepayments of principal and interest previously made on the old
Equipment Note or Equipment Notes with respect to which such new Equipment Note
or Equipment Notes is or are issued. From time to time, the Indenture Trustee
will provide the Owner Trustee and the Lessee with such information as it may
request as to the registered holders of Equipment Notes. The Owner Trustee shall
not be required to exchange any surrendered Equipment Notes as above provided
during the 10-day period preceding the due date of any payment on such Equipment
Notes.
Prior to the due presentment for registration of transfer of an
Equipment Note, the Owner Trustee and the Indenture Trustee may deem and treat
the registered holder of such Equipment Note as the absolute owner and holder of
such Equipment Note for the purpose of receiving payment of all amounts payable
with respect to such Equipment Note and for all other purposes and shall not be
affected by any notice to the contrary.
The Indenture Trustee will promptly notify the Owner Trustee and the
Lessee of each request for a registration of transfer of an Equipment Note. The
Indenture Trustee will promptly cancel and destroy all Equipment Notes
surrendered for transfer or exchange pursuant to this Section.
Section 2.08. Mutilated, Destroyed, Lost or Stolen Equipment Notes. If
any Equipment Note shall become mutilated, destroyed, lost or stolen, the Owner
Trustee shall, upon the written request of the holder of such Equipment Note,
issue, and the Indenture Trustee shall authenticate and deliver in replacement
thereof, a new Equipment Note of the same series in the form set forth in
Section 2.01, payable to the same holder in the same principal amount, of the
same maturity, with the same payment schedule, bearing the same interest rate
and dated the same date as the Equipment Note so mutilated, destroyed, lost or
stolen. The Indenture Trustee shall make a notation on each new Equipment Note
of the amount of all payments or prepayments of principal and interest
theretofore made on the Equipment Note so mutilated, destroyed, lost or stolen
and the date to which interest on such old Equipment Note has been paid. If the
Equipment Note being replaced has become mutilated, such Equipment Note shall be
surrendered to the Indenture Trustee and forwarded to the Owner Trustee by the
Indenture Trustee. If the
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Equipment Note being replaced has been destroyed, lost or stolen, the holder of
such Equipment Note shall furnish to the Owner Trustee and the Indenture Trustee
such security or indemnity as may be required by them to save the Owner Trustee
and the Indenture Trustee harmless and evidence satisfactory to the Owner
Trustee and the Indenture Trustee of the destruction, loss or theft of such
Equipment Note and of the ownership thereof.
Section 2.09. Payment of Transfer Taxes. Upon the transfer of any
Equipment Note or Equipment Notes pursuant to Section 2.07, the Owner Trustee or
the Indenture Trustee may require from the party requesting such new Equipment
Note or Equipment Notes payment of a sum to reimburse the Owner Trustee or the
Indenture Trustee for, or to provide funds for the payment of, any tax or other
governmental charge in connection therewith.
Section 2.10. Prepayments. (a) Each Equipment Note shall be prepaid in
whole or in part by the Owner Trustee on a Rent Payment Date (or, in the
circumstance provided in the last sentence of Section 10.3 of the Lease, on 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 at the date of such prepayment
(after deducting therefrom the principal installment, if any, made 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 related Indenture Supplement immediately prior to the date of such
prepayment, (ii) as to interest, the aggregate amount of interest accrued and
unpaid in respect of the principal amount to be prepaid pursuant to clause (i)
above on the date of such payment (after giving effect to the application of any
Basic Rent paid on or prior to the date of such prepayment) and (iii) 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 at such prepayment date (after
deducting therefrom the principal installment, if any, made 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 included in the Indenture Estate under the related Indenture Supplement
immediately prior to such date, and (ii) as to interest, the aggregate amount of
interest accrued and unpaid in respect of the principal amount to be prepaid
pursuant to clause (i) above to but not including the date of prepayment after
giving effect to the 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
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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, made 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 as at the Early Purchase Date (after deducting therefrom the
principal installment, if any, made 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 included in the Indenture Estate immediately prior to the date of such
prepayment 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 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, but without the
payment of any Make-Whole Amount.
(e) On the Refunding Date specified by the Lessee to the Owner Trustee
and to the Indenture Trustee in accordance with Section 10.2(f) of the
Participation Agreement, all Equipment Notes shall be prepaid in whole but not
in part on such Refunding Date, in the event of a refunding or refinancing
pursuant to Section 10.2 of the Participation Agreement, at a price in addition
to any other amounts due to the holders of the Equipment Notes under this
Indenture equal to the unpaid principal amount thereof together with accrued but
unpaid interest thereon, plus 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 such series 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, which date shall be not less than 25 days after the date of such
notice.
Section 2.11. Equally and Ratably Secured. All Equipment Notes at any
time outstanding under this Indenture shall be equally and ratably secured
hereby without preference, priority or distinction on account of the date or
dates or the actual time or times of the issue or maturity of such Equipment
Notes so that all Equipment Notes of any series at any time issued and
outstanding hereunder shall have the same rights, Liens and preferences under
and by virtue of this Indenture.
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ARTICLE III.
RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME
FROM THE INDENTURE ESTATE
Section 3.01. Basic Rent Distribution. Except as otherwise provided in
Section 3.03, each installment of Interim Interest and 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 Interim Interest and Basic
Rent received by the Indenture Trustee on a timely basis and in accordance with
the provisions of Section 3.6 of the Lease shall be distributed on the date
received in the funds so received) in the following order of priority: first, so
much of such installment as shall be required for the purpose shall be
distributed and paid to the holders of the Equipment Notes of such series 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
deemed released from the Lien of this Indenture and shall be distributed to the
Owner Trustee for distribution in accordance with the terms of the Trust
Agreement. The portion of each such installment distributed to a holder of an
Equipment Note shall be applied by such holder in payment of such Equipment Note
in accordance with the terms of Section 2.05.
Section 3.02. Payments in the Event of Prepayment. (a) Except as
otherwise provided in Section 3.03 or 3.05, in the event of any prepayment of an
Equipment Note or Notes, in whole or in part, in accordance with the provisions
of Section 2.10 any amount received shall in each case be distributed and paid
in the following order of priority: first, so much of such amount as shall be
required for the purpose of prepayment shall be distributed and paid to the
holders of such Equipment Note or Notes to pay the aggregate amount of the
payment of principal, 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 deemed released from the Lien of this Indenture
and shall be distributed to the Owner Trustee for distribution in accordance
with the terms of the Trust Agreement.
(b) Except as otherwise provided in Section 3.03 or 3.05 hereof, any
amounts received directly or through the Lessee from any governmental authority
or other party pursuant to Section 11 of the Lease with respect to any Unit as
the result of an Event of Loss, to the extent that such amounts are not at the
time required to be paid to the Lessee pursuant to said Section 11, and any
amounts of insurance proceeds for damage to the Indenture Estate received
directly or 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 as provided in clause (a) of this Section 3.02.
Section 3.03. Payments after Indenture Event of Default. (a) Except as
provided in Section 3.05, all payments received and amounts realized by the
Indenture Trustee after an Indenture Event of
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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
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, and Make-Whole Amount, if any, to
the extent received from the Lessee as Supplemental Rent, and accrued
interest (to the date of distribution) on all Equipment Notes, payable
to the Loan Participant, then due and payable, whether by declaration
of acceleration pursuant to Section 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 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 deemed released from the Lien of the
Indenture and 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,
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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 181st day be distributed to the Owner Trustee for
distribution in accordance with the terms of the Trust Agreement.
Section 3.04. Other Payments. Except as otherwise provided in Section
3.03 or 3.05, (a) any payments received by the Indenture Trustee for which no
provision as to the application thereof is made in the Lease or the
Participation Agreement or elsewhere in this Article III, and (b) all payments
received and amounts realized by the Indenture Trustee under the Lease or
otherwise with respect to the Equipment to the extent received or realized at
any time after payment in full of the principal of and interest and 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, 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 deemed
released from the Lien of this Indenture and 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 or assumption and the
Indenture Trustee shall have received a certificate, dated the date of such
purchase, of a Responsible Officer to such effect;
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(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 to the extent
expressly provided herein and 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.
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
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(b) default by the Owner Trustee in making any payment when due of
principal of, Make-Whole Amount, if any, or interest on, any series of 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 or any series thereof
(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 provided that, if such
failure is capable of being remedied, and the remedy requires an action other
than, or in addition to, the payment of money, no such failure (other than one
relating to the payment of such money) shall constitute an Indenture Event of
Default hereunder for a period of 60 days after receipt of such notice so long
as Owner Trustee or Owner Participant, as the case may be, is diligently
proceeding to remedy such failure and shall in fact remedy such failure within
such period; or
(d) any representation or warranty made by the Owner Trustee (except to
the extent made with respect to Wilmington Trust Company, 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 Loan Participant in connection herewith or therewith or pursuant
hereto or thereto, shall prove at any time to have been incorrect in any
material respect as of the date made and such incorrectness shall remain
material and continue unremedied for a period of 30 days after there has been
given to the Owner Trustee and the Owner Participant a written notice specifying
such incorrectness, stating that such incorrectness is a default hereunder and
requiring it to be remedied by the Indenture Trustee or by any holder of an
Equipment Note provided that, if such incorrectness is capable of being
remedied, no such incorrectness shall constitute an Indenture Event of Default
hereunder for a period of 60 days after receipt of such notice so long as Owner
Trustee or Owner Participant, as the case may be, is diligently proceeding to
remedy such incorrectness and shall in fact remedy such incorrectness within
such period; provided that such incorrect representation or warranty shall be
deemed to be remedied only after all adverse consequences thereof, if any, have
been remedied; 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
(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
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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.
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,
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 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. At any time after the Indenture Trustee
has declared the unpaid principal amount of all Equipment Notes then outstanding
to be due and payable and prior to the sale of any of the Indenture Estate
pursuant to this Article 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
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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 10 Business
Days' 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, however, such notice
period shall not be in addition to any other notice period provided herein and;
provided, further, 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
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 of each series 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 in accordance with the
terms hereof following the occurrence and continuance of an Indenture Event of
Default, 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.
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(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 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
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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.
(e) Notwithstanding anything contained herein, so long as the Pass
Through Trustee under any Pass Through Trust Agreement is the registered holder
of any Equipment Note issued hereunder, the Indenture Trustee is not authorized
or empowered to acquire title to any Indenture Estate or take any action with
respect to any Indenture Estate so acquired by it if such acquisition or action
would cause the trust created by the Trust Agreement or the Pass Through Trust
Agreement to fail to qualify as a "grantor trust" for federal income tax
purposes.
Section 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 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 $1,000,000, 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
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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.
(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 second 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 solely 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
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in the event the Indenture Trustee shall be so stayed or otherwise prevented
from exercising such remedies under the Lease, it shall in any event refrain
from so foreclosing or exercising such other remedies hereunder for a period of
not less than 90 days, and further provided that in the event the Lessee as
debtor in a proceeding under Chapter 11 of the Bankruptcy Code (or any trustee
appointed for the Lessee as debtor in any such bankruptcy case) shall have
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 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 Interim Interest or Basic Rent or payments of the principal or interest or
Make-Whole Amount, if any, on the Equipment Notes due and payable on the Interim
Interest Payment Date or any Rent Payment Date shall not have been paid in full
on such Interim Interest Payment Date or Rent Payment Date, the Indenture
Trustee shall give telephonic notice within one Business Day (followed by prompt
written notice) to the Owner Trustee, the Owner Participant, the Loan
Participant and the Lessee specifying the amount and nature of such deficiency
in payment. In the event the Indenture Trustee shall have knowledge of an
Indenture Event of Default or an Indenture Default, the Indenture Trustee shall
give prompt notice of such Indenture Event of Default or Indenture Default to
the Lessee, the Owner Trustee, the Owner Participant and the Loan Participant by
telegram, telex, or telephone (to be promptly confirmed in writing). In the
event the Owner Trustee shall have knowledge of an Indenture Event of Default or
an Indenture Default, the Owner Trustee shall give notice of such Indenture
Event of Default or Indenture Default in the same manner to the Lessee, the
Indenture Trustee, the Owner Participant and the Loan Participant. Subject to
the terms of Section 6.03, the Indenture Trustee shall take such action, or
refrain from taking such action, with respect to such Indenture Event of Default
or Indenture Default as the Indenture Trustee shall be instructed in writing by
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a Majority in Interest. If the Indenture Trustee shall not have received
instructions as above provided within 20 days after the mailing of notice of
such Indenture Event of Default or such Indenture Default to the Loan
Participant by the Indenture Trustee, the Indenture Trustee may, but shall not
be obligated to, take such action, or refrain from taking such action, with
respect to such Indenture Event of Default or Indenture Default as it shall
determine to be advisable in the best interests of the Loan Participant. Any
provision of this Section 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 Participants or the Owner Participant; and "actual
knowledge" (as used in the foregoing clause) of the Owner Trustee or the
Indenture Trustee shall mean actual knowledge of an officer in the Corporate
Trust Administration of the Owner Trustee or the Corporate Trust Department of
the Indenture Trustee, as the case may be.
Section 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) and (ii) above.
Upon the expiration or earlier termination of the Lease Term with
respect to any Unit under the Lease and after payment of the portion of the
principal of, together with interest and 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 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
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or Article V if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnification against such risk is not reasonably
assured to it. The Indenture Trustee shall not be required to take any action
under Section 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 Loan Participant may, but shall not be required to,
participate in any indemnification of the Indenture Trustee given pursuant to
paragraph (a) of this Section 6.03. Each Loan Participant 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 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, whose obligation in such instance shall be in its individual capacity),
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 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 Event of Default or Lease
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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.
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 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. 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 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
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in this Section 6.11, 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. 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 Loan
Participant, so long as such Loan Participant or its nominees shall hold any of
the Equipment Notes, promptly upon receipt thereof, duplicates or copies of all
reports, notices, requests, demands, certificates, financial statements and
other instruments furnished to the Indenture Trustee under this Indenture, to
the extent that the same shall not have been furnished to the Indenture Trustee
and the Loan Participants pursuant to the Lease.
Section 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.
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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 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
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persons' area of competence (so long as the Indenture Trustee shall have
exercised reasonable care in selecting such persons).
Section 7.06. Not Acting in Individual Capacity. The Owner Trustee and
the Indenture Trustee each acts hereunder solely as trustee hereunder and not in
its individual capacity (unless otherwise expressly provided herein) and, in the
case of the Owner Trustee, solely in its trust capacity under and subject to the
terms of 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 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
Owner Participant, the Lessee and the Indenture Trustee. The Owner Trustee may
remove the Indenture Trustee if: (1) the Indenture Trustee
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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, unless otherwise directed by a Majority in Interest,
promptly appoint a successor Indenture Trustee, provided that a Majority in
Interest may appoint, within one year after such resignation or removal, a
successor Indenture Trustee which may be other than the successor Indenture
Trustee appointed as provided above, and such successor Indenture Trustee
appointed as provided above shall be superseded by the successor Indenture
Trustee so appointed by a Majority in Interest. If a successor Indenture Trustee
shall not have been appointed and accepted its appointment hereunder within 60
days after the Indenture Trustee gives notice of resignation or is removed as
provided above, the retiring Indenture Trustee, the Lessee, the Owner Trustee or
a Majority in Interest may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee. Any successor Indenture Trustee so
appointed by such court shall immediately and without further act be superseded
by any successor Indenture Trustee appointed as provided in the proviso to the
first sentence of this paragraph (a) within one year from the date of the
appointment by such court.
(b) Any successor Indenture Trustee, however appointed, shall execute
and deliver to the Owner Trustee and the Lessee and to the predecessor Indenture
Trustee an instrument accepting such appointment, and thereupon such successor
Indenture Trustee, without further act, shall become vested with all the
estates, properties, rights, powers, duties and trusts of the predecessor
Indenture Trustee hereunder in the trusts hereunder applicable to it with like
effect as if originally named the Indenture Trustee herein; but nevertheless,
upon the written request of such successor Indenture Trustee, such predecessor
Indenture Trustee shall execute and deliver an instrument transferring to such
Indenture Trustee, upon the trusts herein expressed applicable to it, all the
estates, properties, rights, powers and trusts of such predecessor Indenture
Trustee, and such Indenture Trustee shall duly assign, transfer, deliver and pay
over to such successor Indenture Trustee all moneys or other property then held
by such predecessor Indenture Trustee hereunder.
(c) The Indenture Trustee shall be a bank or trust company organized
under the laws of the United States or any State thereof having a combined
capital and surplus of at least $100,000,000, if there be such an institution
willing, able and legally qualified to perform the duties of the Indenture
Trustee hereunder upon reasonable or customary terms.
(d) Any corporation into which the Indenture Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Indenture Trustee
shall be a party, or any corporation to which substantially all the corporate
trust business of the Indenture Trustee may be transferred, shall, subject to
the terms of paragraph (c) of this Section, be the Indenture Trustee under this
Indenture without further act.
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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 the proviso to Section 5.03(a) or 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 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:
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(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 reduce
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;
provided that no such supplement to this Indenture or waiver or modification of
the terms hereof shall adversely affect in a substantive manner the interests of
the Lessee without the Lessee's prior written consent, and in no event shall the
terms of the proviso to Section 5.03(a) or 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 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, the Participation Agreement and the Trust
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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, the Trust Agreement and the Participation
Agreement, at any time and from time to time without the consent of the
Indenture Trustee or of a Majority in Interest or any holder of an Equipment
Note, may:
(1) so long as no Indenture Event of Default shall have
occurred and be continuing, modify, amend or supplement the Lease, or
give any consent, waiver, authorization or approval with respect
thereto, except that without the consent of a Majority in Interest, the
parties to the Lease shall not modify, amend or supplement, or give any
consent, waiver, authorization or approval for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions thereof or of modifying in any manner the rights of the
respective parties thereunder, with respect to the following provisions
of the Lease: Sections 2, 3.1 (if the result thereof would be to
shorten the Basic Term to a period shorter than the period ending with
the final maturity of the Equipment Notes), 3.2, 3.3, 3.4, 3.5, 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, 6 (but only to the extent such Section is made
operative by Section 15), 7, 8, 9, 10 (except that additional
requirements may be imposed on the Lessee's ability to terminate the
Lease with respect to a Unit), 11 (except that additional requirements
may be imposed on the Lessee's ability to replace a Unit subject to an
Event of Loss), 12 (including the Letter Agreement referred to therein)
(except that additional insurance requirements may be imposed on the
Lessee), 13 (except to the extent such Section relates to Persons other
than the Indenture Trustee or the Loan Participant), 14, 15, 16, 17,
18, 19, 20, 21, 22 (if the result thereof would be to provide any
renewal or purchase option contained in such Section prior to the final
maturity of the Equipment Notes), 24, 25.1, 25.4, 25.6, 25.10, and any
definition of terms used in the Lease, to the extent that any
modification of such definition would result in a modification of the
Lease not permitted as aforesaid in this clause (1) of subsection (b);
provided that, in the event an Indenture Event of Default shall have
occurred and be continuing, the Indenture Trustee shall have all rights
of the Owner Trustee as "Lessor" under the Lease to modify, amend or
supplement the Lease or give any consent, waiver, authorization or
approval thereunder, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions thereof or
of modifying in any manner the rights of the "Lessor" thereunder;
(2) modify, amend or supplement the Trust Agreement, or give
any consent, waiver, authorization or approval with respect thereto,
except that without the consent of a Majority of Interest, the parties
to the Trust Agreement shall not modify, amend or supplement, or give
any consent, waiver, authorization or approval for the purpose of
adding any provisions to or changing in any manner or eliminating any
of the provisions thereof or of modifying in any manner the rights of
the respective parties thereunder, with respect to Sections 2.1, 2.2,
3.1, 4.4, 7.1, 7.2, 9.1, 10.1, 10.2, 10.7, 10.11 or any other Section
of the Trust Agreement if such action would
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materially adversely affect the interest of the Loan Participants, and
any definition of terms used in the Trust Agreement, to the extent that
any modification of such definition would result in a modification of
the Trust Agreement not permitted pursuant to this subsection (b);
(3) modify, amend or supplement the Participation Agreement,
or give any consent, waiver, authorization or approval with respect
thereto, except that without the consent of a Majority of Interest, the
parties to the Participation Agreement shall not modify, amend or
supplement, or give any consent, waiver, authorization or approval for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions thereof or of modifying in any manner
the rights of the respective parties thereunder, with respect to the
following provisions of the Participation Agreement: Sections 1, 2, 3,
4, 5, 6, 7, 10.2, 10.5, 10.7, 10.9 and 10.13 (a), each provision of the
Participation Agreement which specifically refers to the Indenture
Trustee or Loan Participants and any definition of terms used in the
Participation Agreement, to the extent that any modification of such
definition would result in a modification of the Participation
Agreement not permitted pursuant to this subsection (b); and
(4) modify, amend or supplement any of said agreements in
order to cure any ambiguity, to correct or supplement any provision
thereof which may be defective or inconsistent with any other provision
thereof or any provision of this Indenture, or to make any other
provision with respect to matters or questions arising thereunder or
under this Indenture which shall not be inconsistent with the
provisions of this Indenture, provided any such action shall not
adversely affect the interests of the holders of any of the Equipment
Notes.
(c) No modification, amendment, supplement, consent, waiver,
authorization or approval with respect to the Lease or the Participation
Agreement, whether effected pursuant to subsection (a) or pursuant to subsection
(b) of this Section 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
extend the time of payment of Basic Rent or Stipulated Loss Value and
any other amounts payable under, or as provided in, the Lease upon the
occurrence of an Event of Loss or Termination Value and any other
amounts payable under, or as provided in, the Lease upon termination
thereof or reduce the amount of any installment of Basic Rent so that
the same is less than the payment of interest and principal on 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 or Stipulated Loss Value
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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.
(d) Anything contained in this Section 10.05 or otherwise in this
Indenture to the contrary notwithstanding, whether or not an Indenture Event of
Default shall have occurred and be continuing, the Indenture Trustee shall not
modify, amend or supplement the Lease or any other Operative Agreement with
respect to which rights have been assigned to the Indenture Trustee as part of
the Indenture Estate, or give any consent, waiver, authorization or approval
thereunder, in any manner that would materially adversely affect the interest of
the Owner Trustee or the Owner Participant.
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 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.
-35-
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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 powers of the Indenture Trustee
shall continue as if no such proceedings had been undertaken (but otherwise
without prejudice).
Section 11.06. Indenture and Equipment Notes for Benefit of Owner
Trustee, Indenture Trustee, Owner Participant and Holders Only. Nothing in this
Indenture, whether express or implied, shall be construed to give to any Person
other than the Owner Trustee (individually and as trustee), the Indenture
Trustee, the Owner Participant (as set forth herein) and the holders of any
Equipment Notes any legal or equitable right, remedy or claim under or in
respect of this Indenture or any such Equipment Note.
Section 11.07. 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 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Administration, (ii) if to the Indenture Trustee, at
its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn.:
Indenture Trust Division, (iii) if to the Loan Participant, 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: Contract
Administration, ref: UTC Trust No. 1998-A, 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 or otherwise) by any addressee at the respective
addresses specified above.
-36-
41
Section 11.08. Severability. Any provision of this Indenture which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In the event of any
inconsistency or conflict between any provision of this Indenture and any
provision of the Trust Agreement, such provision in this Indenture shall govern
and control.
Section 11.09. Separate Counterparts. This Indenture may be executed in
any number of counterparts (and each of the parties hereto shall not be required
to execute the same counterpart). Each counterpart of this Indenture including a
signature page executed by each of the parties hereto shall be an original
counterpart of this Indenture, but all of such counterparts together shall
constitute one instrument.
Section 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
Illinois, 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 thereof 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 trustee, attorney, agent,
representative, director, officer, employee or stockholder, as such, of Lessee,
Owner Trustee, Owner Participant or Indenture Trustee shall have any liability
for any obligations of Lessee, Owner Participant, Owner Trustee or Indenture
Trustee or under the Equipment Notes or the Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation. Each holder of
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.
-37-
42
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.
WILMINGTON TRUST COMPANY,
not in its individual capacity except as set
forth in Section 7.03 hereof, but solely as
Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Indenture Trustee
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
-38-
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State of Delaware )
) SS
County of New Castle )
On this 24th day of March, 1998, before me personally appeared ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, to me personally known, who being by me duly sworn, say that he is Vice
President of Wilmington Trust Company, that said instrument was signed on such
date on behalf of said corporation by authority of its Board of Directors, and
he or she 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: August 22, 2000
State of Illinois )
) SS
County of ▇▇▇▇ )
On this 25th day of March, 1998, before me personally appeared ▇.
▇▇▇▇▇▇▇▇▇, to me personally known, who being by me duly sworn, say that he is
the Vice President of ▇▇▇▇▇▇ Trust and Savings Bank, 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: January 9, 1999
-39-
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EXHIBIT A
TRUST INDENTURE SUPPLEMENT NO.__
(UTC TRUST NO. 1998-A)
(L-15)
This Indenture Supplement No. _ (UTC Trust No. 1998-A), dated _______
___, 1998 (this "Indenture Supplement"), of Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity but solely as trustee (the
"Owner Trustee") under the Trust Agreement (UTC Trust No. 1998-A), dated March
__, 1998 (the "Trust Agreement"), between the Owner Trustee in its individual
capacity and FNBC Leasing Corporation, a Delaware corporation, as Owner
Participant:
WITNESSETH:
WHEREAS, the Trust Indenture and Security Agreement (UTC Trust No.
1998-A) [L-15] dated March __, 1998 (the "Indenture"), between the Owner Trustee
and ▇▇▇▇▇▇ Trust and Savings Bank, 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), referred to above, to the Indenture
Trustee, its successors and assigns, in the trust created by the Indenture for
the benefit of the holders from time to time of the Equipment Notes.
To have and to hold all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, in trust for the benefit and
security of the holders from time to time of the
A-1
45
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 with each other series of the Equipment Notes and
that, as to each other Equipment Note of and each other series of the Equipment
Notes, 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 1998-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 maturities and principal amounts and shall bear
interest as specified in Exhibit B hereto. The principal of each Equipment Note
shall be payable on January 2 of each year, commencing January 2, 2000, and
thereafter to and including January 2, 2014, but excluding January 2, 2009.
This Supplement shall be construed as supplemental to the Indenture and
shall form a part of it, and the Indenture is hereby incorporated by reference
herein and is hereby ratified, approved and confirmed.
This Supplement may be executed by the Owner Trustee in separate
counterparts, each of which when so executed and delivered is an original, but
all such counterparts shall together constitute but one and the same Supplement.
AND FURTHER, the Owner Trustee hereby acknowledges that the Equipment
referred to in the aforesaid Lease Supplement attached hereto and made a part
hereof has been delivered to the Owner Trustee and is included in the property
of the Owner Trustee covered by all the terms and conditions of the Trust
Agreement, subject to the pledge or mortgage thereof under the Indenture.
IN WITNESS WHEREOF, the Owner Trustee has caused this Indenture
Supplement to be duly executed by one of its duly authorized officers, on the
day and year first above written.
WILMINGTON TRUST COMPANY,
not in its individual capacity, but solely
as Owner Trustee
By:________________________________
Name:
Title:
A-2
46
State of )
) SS
County of )
On this ____ day of March, 1998, before me personally appeared
___________________, to me personally known, who being by me duly sworn, say
that he is __________________ of Wilmington Trust Company, that said instrument
was signed on such date on behalf of said corporation by authority of its Board
of Directors, and he or she 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-3
47
EXHIBIT B
TERMS OF EQUIPMENT NOTES (INITIAL CLOSING)
Principal Amount Interest Rate Final Maturity
---------------- ------------- --------------
Note A-1 $61,061,000 6.57% January 2, 2013
Note A-2 6,036,000 6.57% January 2, 2014
TERMS OF EQUIPMENT NOTES (SUBSEQUENT CLOSING)
Principal Amount Interest Rate Final Maturity
---------------- ------------- --------------
Note B $30,755,000 6.57% January 2, 2014
Aggregate Amount of Equipment Notes = $97,852,000
B-1
48
EXHIBIT C
LOAN PARTICIPANT (INITIAL CLOSING)
PERCENTAGE OF
LOAN PARTICIPANT PRINCIPAL AMOUNT
---------------- ----------------
▇▇▇▇▇▇ Trust and Savings Bank 100%
as trustee under the Pass Through Trust
Agreement, dated as of March 18, 1998,
between ▇▇▇▇▇▇ Trust and Savings Bank
and Union Tank Car Company
LOAN PARTICIPANT (SUBSEQUENT CLOSING)
PERCENTAGE OF
LOAN PARTICIPANT PRINCIPAL AMOUNT
---------------- ----------------
The ▇▇▇▇▇▇ Trust and Savings Bank, 100%
as trustee under the Pass Through Trust
Agreement, dated as of March 18, 1998,
between ▇▇▇▇▇▇ Trust and Savings Bank
and Union Tank Car Company
C-1
49
ANNEX A1
AMORTIZATION SCHEDULES
1998 6.57% EQUIPMENT NOTES
Amortization Schedule for Equipment Note A-1 attached hereto.
▇▇▇▇▇ ▇▇-▇
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇-▇
INSTALLMENT
PAYMENT INSTALLMENT
DATE PERCENTAGE
----------- ----------
January 2, 2000 2.841971144%
January 2, 2001 3.838291637%
January 2, 2002 4.249726005%
January 2, 2003 4.730014724%
January 2, 2004 5.291099327%
January 2, 2005 15.654517846%
January 2, 2006 10.271422404%
January 2, 2007 14.113132537%
January 2, 2008 17.548503301%
January 2, 2010 25.762088642%
January 2, 2011 32.967905648%
January 2, 2012 52.522669203%
January 2, 2013 100.000000000%
▇▇▇▇▇ ▇▇-▇
▇▇
▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ SCHEDULES
1998 6.57% EQUIPMENT NOTES
Amortization Schedule for Equipment Note A-2 attached hereto.
▇▇▇▇▇ ▇▇-▇
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇-▇
INSTALLMENT
PAYMENT INSTALLMENT
DATE PERCENTAGE
----------- ----------
January 2, 2000 2.257157058%
January 2, 2001 3.966060981%
January 2, 2002 4.397619388%
January 2, 2003 4.902179610%
January 2, 2004 9.292965610%
January 2, 2005 12.924239431%
January 2, 2006 10.760276464%
January 2, 2007 14.829858189%
January 2, 2008 15.749103500%
January 2, 2010 0.000000000%
January 2, 2011 16.516568386%
January 2, 2012 28.343466723%
January 2, 2013 60.416510268%
January 2, 2014 100.000000000%
▇▇▇▇▇ ▇▇-▇
▇▇
▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ SCHEDULES
1998 6.57% EQUIPMENT NOTES
Amortization Schedule for Equipment Note B attached hereto.
Annex A3-1
54
EQUIPMENT NOTE B
INSTALLMENT
PAYMENT INSTALLMENT
DATE PERCENTAGE
----------- ----------
January 2, 2000 2.647673549%
January 2, 2001 3.862073001%
January 2, 2002 4.277257912%
January 2, 2003 4.762028678%
January 2, 2004 5.328701313%
January 2, 2005 15.746671479%
January 2, 2006 10.351041141%
January 2, 2007 14.229332953%
January 2, 2008 17.716960170%
January 2, 2010 15.883696440%
January 2, 2011 28.613796822%
January 2, 2012 42.805475705%
January 2, 2013 79.925102922%
January 2, 2014 100.000000000%
Annex A3-2