1
Exhibit 4(c)(3)
================================================================================
PROCOR LIMITED
EQUIPMENT TRUST
SERIES __-CAN
______________________________
EQUIPMENT TRUST AGREEMENT
Dated ____________
Between
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
Trustee,
and
PROCOR LIMITED
______________________________
================================================================================
Filed with the Surface Transportation Board of the Department of
Transportation pursuant to 49 U.S.C. Section 11301 on ______ ____, at [_______
A.M./P.M.], recordation number __________, and deposited in the Office of the
Registrar General of Canada pursuant to Section 90 of the Railway Act (Canada)
on ______ ____, at [_______ A.M./P.M.].
2
TABLE OF CONTENTS*
Page
----
ARTICLE ONE Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE TWO Trust Certificates and Issuance;
Interests Represented and Maturity . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.01. Issuance of Trust Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.02. Interests Represented by Trust
Certificates; Interest
Payments; Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.03. Form, Execution and Characteristics of
Trust Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.04. Replacement of Lost Trust Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE THREE Acquisition of Trust Equipment by Trustee;
Deposited Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.01. Acquisition of Equipment by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.02. Payment of Deposited Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.03. Payment of Deficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.04. Supporting Papers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE FOUR Conditional Sale of Trust Equipment to the
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.01. Conditional Sale of Trust Equipment to
the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.02. Equipment Automatically Subjected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.03. Additional and Substituted Equipment
Subject Hereto . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.04. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.05. Termination of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 4.06. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.07. Substitution and Replacement of Trust
Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.08. Maintenance of Trust Equipment; Casualty
Occurrences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.09. Possession of Trust Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.10. Marking of Trust Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
__________________________________
* This Table of Contents has been included in the document for
convenience only and does not form a part of, or affect any construction or
interpretation of, this document.
3
ARTICLE FIVE Events of Default and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 5.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 5.02. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 5.03. Application of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.04. Waivers of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.05. Obligations of Company Not Affected by
Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.06. Company To Deliver Trust Equipment to
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.07. Trustee To Give Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.08. Control by Holders of Trust
Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.09. Limitations on Suits by Holders of Trust
Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.10. Unconditional Right of Holders of Trust
Certificates To Sue for Principal and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.11. Remedies Cumulative; Subject to Mandatory
Requirements of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE SIX Additional Agreements by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.01. Guarantee of Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.02. Discharge of Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.03. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.04. Payment of Expenses; Recording . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE SEVEN Concerning the Holders of Trust Certificates . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 7.01. Evidence of Action Taken by Holders of
Trust Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 7.02. Proof of Execution of Instruments and of
Holding of Trust Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.03. Trust Certificates Owned by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.04. Right of Revocation of Action Taken . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.05. Amendment or Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE EIGHT The Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 8.01. Acceptance of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 8.02. Duties and Responsibilities of the
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 8.03. Application of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 8.04. Funds May be Held by Trustee;
Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 8.05. Trustee Not Liable for Delivery Delays or
Defects in Equipment or Title . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4
SECTION 8.06. Resignation and Removal; Appointment of
Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 8.07. Acceptance of Appointment by Successor
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 8.08. Merger or Consolidation of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 8.09. Return of Certain Moneys to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE NINE Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 9.01. Rights Confined to Parties and Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 9.02. No Recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 9.03. Binding Upon Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 9.04. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 9.05. Effect of Headings; Date Executed; and
Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 9.06. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 9.07. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SCHEDULE I - List of Equipment
5
EQUIPMENT TRUST AGREEMENT dated ______ ____ ____, between ▇▇▇▇▇▇ TRUST
AND SAVINGS BANK, solely in its capacity as Trustee, an Illinois banking
corporation (the "Trustee"), and PROCOR LIMITED, a Canadian corporation (the
"Company").
WHEREAS Procor Limited Equipment Trust Certificates, Series __-Can
(the "Trust Certificates"), are to be issued and sold at a price not less than
their principal amount, in an aggregate principal amount not exceeding U.S.
$__________; and
WHEREAS the proceeds of the sale of the Trust Certificates together
with such other cash, if any, as may be required to be deposited by the Company
as hereinafter provided are to constitute a fund, to be known as Procor Limited
Equipment Trust, Series __-Can, to be applied by the Trustee from time to time
in part payment of the Cost (as hereinafter defined) of the Trust Equipment (as
hereinafter defined), the remainder of the Cost thereof to be paid out of
moneys to be deposited by the Company as provided herein; and
WHEREAS such Trust Equipment will be resold, retransferred and
redelivered to the Company with title to, and a security interest in, such
Trust Equipment to be retained by the Trustee; and
WHEREAS the Company's due and punctual performance of its obligations
hereunder has been unconditionally guaranteed by Union Tank Car Company, a
Delaware corporation and indirect parent of the Company ("Union"), pursuant to
Section ____ of the Trust Supplement dated ____ ____,____to that certain Pass
Through Trust Agreement, dated as of January 15, 1997, among Union, the Company
and ▇▇▇▇▇▇ Trust and Savings Bank, as Pass Through Trustee; and
WHEREAS the texts of the Trust Certificates (including the grid for
endorsement of principal payments thereon) and the guarantee to be endorsed on
the Trust Certificates by the Company is to be substantially in the following
form:
- 1 -
6
[Form of Trust Certificate]
THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933
OF THE UNITED STATES OF AMERICA
No. R-______________ $_____________
PROCOR LIMITED
Equipment Trust Certificate, Series __-Can
Total Authorized Issue U.S. $
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
Trustee
▇▇▇▇▇▇ Trust and Savings Bank, as Trustee under an Equipment Trust
Agreement (the "Agreement") dated ______ ____,____, between ▇▇▇▇▇▇ Trust and
Savings Bank, as Trustee (the "Trustee"), and Procor Limited, a Canadian
corporation (the "Company"), hereby certifies that
or registered assigns is entitled to an interest in the principal amount of
United States of America Dollars (U.S.$ ) in Procor Limited
Equipment Trust, Series __-Can, due and payable on or before _________
____,____, and to interest on the amount of unpaid principal from time to time
due and owing pursuant to this Trust Certificate from the date hereof at the
rate of ____% per annum (and, if applicable, the additional amounts that may
become payable under Section 4.04 of the Agreement). Interest on this Trust
Certificate shall be calculated on the basis of a 360-day year of twelve 30-day
months.
This Trust Certificate shall be payable as follows (unless payment hereof
is accelerated pursuant to Article Five of the Agreement): the outstanding
principal amount hereof shall be paid on [describe principal payments] and
interest payments on the outstanding principal shall be made in [describe
interest payments] on _________ and _________ in each year commencing _________
______, _____,. Interest on any overdue installment of interest and on any
overdue payment of principal, to the extent legally enforceable, shall be
payable at the rate per annum of 1% over the rate specified above. Payments of
principal and interest shall be made by the Trustee to the registered holder
hereof at the corporate trust office of the Trustee in _______, ________, in
such coin or currency of the United States of America as, at the time of
payment, shall be legal tender for the payment of public and private debts. Each
of such payments shall be made only from and solely out of moneys received by
the Trustee and applicable to such payment under the provisions of the
Agreement.
This Trust Certificate is one of an authorized issue of Trust Certificates
in an aggregate principal amount not exceeding the Total Authorized Issue set
forth above, issued under the
- 2 -
7
Agreement, pursuant to which title to, and a security interest in, certain
railroad equipment (or cash or obligations defined in the Agreement as
"Investments" in lieu thereof, as provided in the Agreement) is held by the
Trustee in trust for the equal and ratable benefit of the registered holders of
the Trust Certificates issued thereunder. Reference is made to the Agreement
(a copy of which is on file with the Trustee at its corporate trust office) for
a more complete statement of the terms and provisions thereof, to all of which
the registered holder hereof, by accepting this Trust Certificate, assents.
This Trust Certificate is transferable in whole or in part by the
registered holder hereof in person or by its duly authorized attorney upon
presentment hereof for registration of transfer to the Trustee at its said
office accompanied by an appropriate instrument of assignment and transfer,
duly executed by the registered holder in person or by such attorney, in form
satisfactory to the Trustee, and thereupon a new fully registered Trust
Certificate or Certificates of the same maturity in authorized denominations
for the then aggregate unpaid principal amount hereof will be issued in the
name of such person or persons as may be designated by such holder. Prior to
due presentment for registration of transfer, the Trustee and the Company may
deem and treat the person in whose name this Trust Certificate is registered as
the absolute owner hereof for the purpose of receiving payment of principal and
interest and for all other purposes and shall not be affected by any notice to
the contrary.
In case of the happening of an Event of Default (as defined in the
Agreement) the principal amount represented by this Trust Certificate may
become or be declared due and payable in the manner and with the effect
provided in the Agreement.
The due and punctual performance of the Company's obligations under
the Agreement has been guaranteed by Union Tank Car Company, a Delaware
corporation and parent of the Company.
This Trust Certificate shall not be deemed a promise to pay of ▇▇▇▇▇▇
Trust and Savings Bank in its individual capacity and payment by ▇▇▇▇▇▇ Trust
and Savings Bank shall be made as Trustee only from and solely out of moneys
received by Trustee and applicable to such payment under the provisions of the
Agreement.
- 3 -
8
IN WITNESS WHEREOF, the Trustee has caused this Trust Certificate to
be signed by one of its duly authorized officers, by his/her signature or a
facsimile thereof, and its corporate seal or a facsimile thereof to be hereunto
affixed or imprinted hereon and to be attested by one of its duly authorized
officers, by his/her signature. Neither this Trust Certificate nor the
guarantee endorsed hereon shall be valid or enforceable for any purpose until
this Trust Certificate shall have been so signed by a duly authorized officer
and the corporate seal so attested by such duly authorized officer.
Dated
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Trustee
By______________________________________
Authorized Officer
[Corporate Seal]
Attest:
__________________________________________
Authorized Officer
- 4 -
9
PROCOR LIMITED, for valuable consideration, hereby unconditionally and
irrevocably guarantees to the registered holder of the within Trust Certificate
the prompt payment when due of the principal of said Trust Certificate and the
interest thereon specified in said Trust Certificate, with interest on any
overdue principal and on any overdue interest, to the extent legally
enforceable, at the rate specified in said Trust Certificate, all in accordance
with the terms of said Trust Certificate and the Equipment Trust Agreement
referred to therein.
PROCOR LIMITED
By______________________________________
Title:
By______________________________________
Title:
- 5 -
10
WHEREAS it is desired to secure to the holders of the Trust
Certificates the payment of the principal thereof when due, whether by
declaration or otherwise, and interest thereon as hereinafter provided;
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, the parties hereto hereby agree as follows:
ARTICLE ONE
Definitions
SECTION 1.01. Definitions. The following terms (except as
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Agreement shall have the respective meanings hereinafter
specified:
Affiliate of any corporation shall mean any corporation which,
directly or indirectly, controls or is controlled by, or is under
common control with, such corporation. For the purposes of this
definition, control (including controlled by and under common control
with), as used with respect to any corporation, shall mean the
possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such corporation,
whether through the ownership of voting securities or by contract or
otherwise.
Business Day shall mean any day, other than a Saturday or
Sunday or a day on which commercial banking institutions or trust
companies are authorized or required by law, regulation or executive
order to be closed in New York, New York or Chicago, Illinois or
Toronto, Ontario, Canada or, so long as any Trust Certificate is
outstanding, a city and state in which the Corporate Trust Office of
the Trustee is located.
Company shall mean Procor Limited, a Canadian corporation
(whose chief place of business and chief executive office is currently
located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇), and
any successor or successors to it complying with the provisions of
Section 4.09.
Corporate Trust Office shall mean the office of the Trustee,
at which the corporate trust business of the Trustee relating to this
transaction shall, at the time in question, be administered, which
office is, on the date of execution of this Agreement, located at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Cost, when used in respect of Equipment not built by the
Company or any Affiliate of the Company, shall mean the actual cost
thereof to the Company and, in respect of Equipment built by the
Company or any such Affiliate, shall mean an amount
- 6 -
11
not in excess of "car builder's cost", including direct cost of labor,
material and overhead but excluding any manufacturing profit.
Default shall mean
(1) any Event of Default; and
(2) any event which, with the giving of notice or the
passage of time or both, could constitute an Event of Default.
The Company shall be considered to "be in Default" if a Default
shall have occurred and be continuing.
Deposited Cash shall mean the aggregate of (a) the proceeds
from the sale of the Trust Certificates deposited with the Trustee
pursuant to Section 2.01 and, when required or indicated by the
context, any Investments purchased by the use of such proceeds
pursuant to the provisions of Section 8.04, and (b) any sums restored
to Deposited Cash from payments made by the Company pursuant to
Section 4.04(B)(l)(b) and on deposit with the Trustee.
Engineer's Certificate shall mean a certificate signed by a
person appointed by the Company who shall be an engineer, appraiser or
other expert, as the case may require. Such person may be an officer
or employee of the Company except where this Agreement specifically
requires the signature of an independent engineer, appraiser or other
expert.
Equipment shall mean standard-gauge railroad tank cars and
▇▇▇▇▇▇ cars, which tank cars and ▇▇▇▇▇▇ cars are rolling stock used or
intended for use in connection with interstate commerce and which were
first put into use on or after January 1, 1995; provided, however,
that in the case of Equipment sold to the Trustee pursuant to Section
4.07, it shall not include any railroad equipment first put into use
prior to ___________, ____.
Event of Default shall mean any event specified in Section 5.01
to be an Event of Default.
The word "holder", when used with respect to Trust
Certificates, shall include the plural as well as the singular number.
Independent Engineer shall mean an engineer, appraiser or
other expert appointed by the Company and approved by the Trustee in
the exercise of reasonable care, who (a) is in fact independent, (b)
does not have any substantial interest, direct or indirect, in the
Company or in any other obligor on the Trust Certificates or in any
Affiliate of the Company or any such other obligor and (c) is not
connected with the Company or any
- 7 -
12
other obligor on the Trust Certificates or any Affiliate of the
Company or any such other obligor as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar
functions.
Investments shall mean (a) bonds, notes or other direct
obligations of the United States of America or obligations for which
the full faith and credit of the United States is pledged to provide
for the payment of the interest and principal and which mature within
one year of the date of purchase, (b) open market commercial paper of
any company incorporated and doing business under the laws of the
United States of America or one of the States thereof which mature
within one year of the date of purchase and which have a rating of
"A-1" by Standard & Poor's Corporation or "prime-1" or better by
NCO/▇▇▇▇▇'▇ Commercial Paper Division of ▇▇▇▇▇'▇ Investors Service,
Inc. or an equivalent rating by a successor thereto or a similar
nationally recognized rating service substituted therefor, (c)
certificates of deposit or time deposits in banks or trust companies,
including the Trustee, incorporated and doing business under the laws
of the United States of America or one of the States thereof having
capital and surplus aggregating at least $250,000,000 and (d) The
First National Bank of Chicago Corporate Trust Short Term Investment
Fund, so long as the shares of such fund are rated by Standard &
Poor's Ratings Group and ▇▇▇▇▇'▇ Investors Service, Inc. in one of the
two highest rating categories (without regard to any refinement or
gradation of rating category by numerical modifier or otherwise)
assigned by Standard & Poor's Ratings Group and ▇▇▇▇▇'▇ Investors
Service, Inc. for obligations of that nature.
Officers' Certificate shall mean a certificate signed by the
Chairman of the Board, or the President or any Vice President and by
the Treasurer or any Assistant Treasurer or the Secretary or any
Assistant Secretary of the Company, which officer is in a position to
know the truth and accuracy thereof.
Opinion of Counsel shall mean an opinion in writing signed by
legal counsel who shall be acceptable to the Trustee and who may,
unless in a particular instance the Trustee shall otherwise require,
be an employee of or counsel to the Company. The acceptance by the
Trustee of, and its action on, an Opinion of Counsel shall be
sufficient evidence that such counsel is satisfactory to the Trustee.
Owner shall mean the manufacturer or other person transferring
title to any of the Equipment to the Trustee.
Pass Through Trust Agreement shall mean the Pass Through Trust
Agreement, dated as of January 15, 1997 among Union, the
Company and ▇▇▇▇▇▇ Trust and Savings Bank, as Pass Through Trustee.
- 8 -
13
Pass Through Trustee shall mean ▇▇▇▇▇▇ Trust and Savings Bank,
as Pass Through Trustee under the Pass Through Trust Agreement or the
successor thereto pursuant to the terms of the Pass Through Trust
Agreement.
Penalty Rate shall mean 1% per annum over the rate specified in
the Trust Certificates.
Request shall mean a written request for the action therein
specified, delivered to the Trustee, dated not more than 10 days prior
to the date of delivery to the Trustee and signed on behalf of the
Company by the Chairman of the Board, the President, a Vice President
or the Treasurer of the Company.
Trust Certificates shall mean the Equipment Trust Certificates
issued hereunder.
Trust Equipment shall mean all Equipment at the time subject to
the terms of this Agreement.
Trustee shall mean ▇▇▇▇▇▇ Trust and Savings Bank, solely in
its capacity as Trustee and, subject to the provisions of
Article Eight, any successor as trustee hereunder.
Union shall mean Union Tank Car Company, a Delaware
corporation (whose chief place of business and chief executive office
currently is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇), and any successor or successors to it complying with the
provisions of Section 6.01.
Value, as used herein, shall mean an amount determined as
follows:
(1) the Value of any unit of Trust Equipment
assigned or transferred by the Trustee as provided in Section
4.07, and as used in Sections 5.01 and 6.05 in respect of
Trust Equipment, shall be deemed to be the greater of (a) the
fair market value thereof and (b) the Cost thereof (as
theretofore certified to the Trustee) less 1/20 of such Cost
for each full year elapsed between the date such unit was
first put into use (as theretofore so certified) and the date
as of which Value is to be determined;
(2) the Value of any unit of Equipment conveyed
to the Trustee as provided in Article Three and in Section
4.07 shall be deemed to be the lesser of (a) the fair market
value thereof and (b) the Cost of such unit or, in the case of
any unit of Equipment not new, the Cost thereof, less 1/20 of
such Cost for each full year elapsed between the date such
unit was first put into use and the date of the transfer
thereof to the Trustee;
- 9 -
14
(3) the Value of any Unit of Equipment as used in
Section 4.08 shall be deemed to be the cost thereof less
1/20th of such Cost for each full year elapsed between the
date such Unit was first put into use and the date as of which
Value is to be determined; and
(4) for the purpose of determining Value, if the
Cost of any such Unit was originally denominated in Canadian
Dollars, such Cost shall be converted into U.S. Dollars at the
official exchange rate in effect On the date of any such
assignment, transfer or conveyance.
The words herein, hereof, hereby, hereto, hereunder and words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, paragraph or subdivision hereof.
ARTICLE TWO
Trust Certificates and Issuance;
Interests Represented and Maturity
SECTION 2.01. Issuance of Trust Certificates. Upon the sale from
time to time of any of the Trust Certificates, an amount equal to the principal
amount of the Trust Certificates so sold shall, forthwith upon the issuance
thereof, be deposited in cash with the Trustee.
Thereupon without waiting for the recording or filing of this
Agreement or of any other instrument respecting the Trust Equipment, the
Trustee shall issue and deliver, as the Company shall direct by Request, Trust
Certificates in the aggregate principal amount so sold.
The aggregate principal amount of Trust Certificates which shall be
executed and delivered by the Trustee under this Section shall not exceed the
Total Authorized Issue specified in the form of Trust Certificate, and the
aggregate principal amount represented by all the Trust Certificates shall be
payable as hereinafter set forth.
SECTION 2.02. Interests Represented by Trust Certificates; Interest
Payments; Maturity; No Redemption. Each of the Trust Certificates shall
represent an interest in the principal amount therein specified in the trust
created hereunder. The Trust Certificates shall bear interest at ____% per
annum and shall be payable as follows (unless payment thereof is accelerated
pursuant to Article Five of this Agreement): the outstanding principal amount
thereof shall be paid on [describe principal payments], and interest payments
on the outstanding principal shall be paid [describe interest payments]
on _________ and __________ in each year commencing ___________ ____, ____. The
Trust Certificates are not redeemable prior to maturity. Interest on the Trust
Certificates shall accrue from the date of original issue and shall be
calculated on the basis of a 360-day year of twelve 30-day months. Interest
shall be payable on overdue installments of interest and on any overdue payment
of principal, to the extent legally enforceable, at the Penalty Rate.
- 10 -
15
Payment of the principal of and interest on the Trust Certificates
shall be made by the Trustee at the Corporate Trust Office in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, but only from and
solely out of moneys received by the Trustee and applicable to such payment
under the provisions of this Agreement.
In the event Union makes any payment attributable to the principal of
or accrued interest on the Trust Certificates to the person entitled thereto
pursuant to the Union guarantee contained in Article XII of the Pass Through
Trust Agreement (and endorsed on the Pass Through Trust Certificates issued
thereunder), each such payment shall have the same effect as if such payment
was made by the Company on the Trust Certificates, thereby reducing on a dollar
for dollar basis the outstanding principal amount of or accrued interest on the
Trust Certificates to the same extent as payment of principal of or accrued
interest on was made under said guarantee. Solely for the purposes of this
paragraph, payments under said guarantee shall be applied, first, against
accrued and unpaid interest and, second, to outstanding principal.
SECTION 2.03. Form, Execution and Characteristics of Trust
Certificates. (a) The Trust Certificates and the guarantee to be endorsed on
the Trust Certificates by the Company as provided in Section 6.01 shall be in
substantially the forms hereinbefore set forth.
(b) The Trust Certificates shall be signed in the name and on
behalf of the Trustee by the manual or facsimile signature of one of its duly
authorized officers and its corporate seal or a facsimile thereof shall be
affixed or imprinted thereon and attested by the manual signature of one of its
duly authorized officers. In case any officer of the Company or the Trustee
whose signature, whether facsimile or not, shall appear on any of the Trust
Certificates shall cease to be such officer of the Company or the Trustee
before the Trust Certificates shall have been issued and delivered by the
Trustee or shall not have been acting in such capacity on the date of the Trust
Certificates, such Trust Certificates may be adopted by the Company or the
Trustee and be issued and delivered as though such person had not ceased to be
or had then been such officer of the Company or the Trustee.
(c) The Trust Certificates (i) shall be issuable in denominations
of U.S. $1,000 or any multiple thereof; (ii) shall be registered, as to both
principal and interest, in the name of the holders; (iii) shall be transferable
in whole or in part upon presentation and surrender thereof for transfer at the
Corporate Trust Office, accompanied by appropriate instruments of assignment
and transfer, duly executed by the registered holder of the surrendered Trust
Certificate or Certificates or by duly authorized attorney, in form
satisfactory to the Trustee; (iv) shall be dated as of the date of issue unless
issued in exchange for another Trust Certificate or Certificates bearing unpaid
interest from an earlier date, in which case they shall be dated as of such
earlier date; (v) shall entitle the registered holder to interest from the date
thereof; and (vi) shall be exchangeable for an equal aggregate principal amount
of Trust Certificates of authorized denominations of like tenor and maturity
equal to the then unpaid principal amount of Trust Certificates being
exchanged.
- 11 -
16
(d) Anything contained herein to the contrary notwithstanding,
prior to due presentment for registration of transfer, the parties hereto may
deem and treat the registered holder of any Trust Certificates as the absolute
owner of such Trust Certificates for all purposes and shall not be affected by
any notice to the contrary.
(e) The Trustee shall cause to be kept at the Corporate Trust
Office books for the registration of transfer of the Trust Certificates and,
upon presentation of the Trust Certificates for such purpose, the Trustee shall
register any transfer as hereinabove provided, and under such reasonable
regulations as it may prescribe.
(f) For any registration, transfer or exchange, the Trustee shall
require the payment of a sum sufficient to reimburse it for any governmental
charge connected therewith.
(g) Each Trust Certificate delivered pursuant to any provision of
this Agreement in exchange or substitution for, or upon the transfer of the
whole or any part, as the case may be, of one or more other Trust Certificates
shall carry all the rights to principal and to interest accrued and unpaid and
to accrue, which were carried by the whole or such part, as the case may be, of
such one or more other Trust Certificates, and, notwithstanding anything
contained in this Agreement, such Trust Certificate shall be so dated that
neither gain nor loss in interest or principal shall result from such exchange,
substitution or transfer and a notation of all previous principal payments
shall be endorsed on the reverse side thereof.
(h) The Trustee shall not be required to issue, transfer or
exchange Trust Certificates for a period of 10 days next preceding any interest
payment date.
SECTION 2.04. Replacement of Lost Trust Certificates. In case any
Trust Certificate shall become mutilated or defaced or be lost, destroyed or
stolen, then on the terms herein set forth, and not otherwise, the Trustee
shall execute and deliver a new Trust Certificate in the then unpaid principal
amount of the predecessor Trust Certificate and bearing such identifying number
or designation as the Trustee may determine, in exchange and substitution for,
and upon cancellation of, the mutilated or defaced Trust Certificate, or in
lieu of and in substitution for the same if lost, destroyed or stolen. The
Company shall execute its guarantee on any Trust Certificates to be so
delivered. The applicant for a new Trust Certificate pursuant to this Section
shall furnish to the Trustee and the Company evidence to their satisfaction of
the loss, destruction or theft of such Trust Certificate alleged to have been
lost, destroyed or stolen and of the ownership and authenticity of such
mutilated, defaced, lost, destroyed or stolen Trust Certificate, and also shall
furnish such security or indemnity as may be required by the Trustee and the
Company in their discretion, and shall pay all expenses and charges of such
substitution or exchange. In the case of each of the original purchasers of
Trust Certificates or any institutional investor transferee, a letter of
indemnity in form reasonably satisfactory to the Trustee and the Company from
such purchaser shall be sufficient security and indemnity. All Trust
Certificates are held and owned upon the express condition that the foregoing
provisions are exclusive in respect of the replacement of mutilated, defaced,
lost, destroyed or stolen Trust
- 12 -
17
Certificates and shall preclude any and all other rights and remedies, any law
or statute now existing or hereafter enacted to the contrary notwithstanding.
ARTICLE THREE
Acquisition of Trust Equipment by Trustee;
Deposited Cash
SECTION 3.01. Acquisition of Equipment by Trustee. The Company
shall cause to be sold to the Trustee, as trustee for the holders of the Trust
Certificates as soon as practicable, all of the Equipment described in
Schedule I hereto; provided, however, that if the aggregate Cost of the
Trust Equipment delivered to the Trustee or its agent or agents pursuant to
this Article Three, as specified in the Officers' Certificate theretofore
delivered to the Trustee pursuant to Section 3.04, shall exceed _____% of the
aggregate principal amount of Trust Certificates issued under Section 2.01,
upon Request the Trustee shall execute and deliver to the Company a supplement
hereto excluding from this Agreement Equipment having a Cost in excess of such
amount so that the aggregate Cost of the Trust Equipment shall not exceed
_____ % of the aggregate principal amount of the Trust Certificates issued
pursuant to Section 2.01. The Trust Equipment sold to the Trustee shall be
delivered to the person or persons designated by the Trustee as its agent or
agents to accept such delivery (who may be one or more of the officers or
agents of the Company) and the certificate of any such agent or agents as to
such delivery and acceptance shall be conclusive evidence of such delivery.
In the event that the Company shall deem it necessary or desirable to
procure for the use of the Company, and to include in the trust hereby created,
other Equipment in lieu of any units of the Equipment specifically described in
Schedule I hereto prior to the acceptance of such Equipment by the Trustee or
its agent or agents, or in the event that any unit of the Equipment described
in Schedule I hereto shall suffer a Casualty Occurrence as defined in Section
4.08, prior to such acceptance, the Company may cause to be sold to the Trustee
other Equipment, to be substituted under the trust.
If the aggregate Cost, as specified in the Officers' Certificate
theretofore delivered to the Trustee pursuant to Section 3.04, of the Trust
Equipment delivered to the Trustee or its agent or agents pursuant to this
Article Three shall be less than _____% of the principal amount of the Trust
Certificates issued pursuant to Section 2.01, the Company will cause to be sold
to the Trustee additional Equipment in such amount and of such Cost that such
aggregate final Cost of the Trust Equipment will be at least _____% of the
principal amount of the Trust Certificates issued pursuant to Section 2.01.
SECTION 3.02. Payment of Deposited Cash. From time to time, when
and as any Equipment shall have been accepted by the Trustee or its agent or
agents pursuant to Section 3.01, the Trustee shall (subject to the provisions
of Sections 3.03 and 3.04) pay, upon Request, to the Owner of the accepted
Equipment out of Deposited Cash an amount not exceeding ___%
- 13 -
18
of the aggregate Cost of such Trust Equipment, as specified in the Officers'
Certificate furnished to the Trustee pursuant to Section 3.04(b).
SECTION 3.03. Payment of Deficiency. The Company covenants that,
contemporaneously with any payment by the Trustee pursuant to Section 3.02, it
will either (a) pay to the Trustee the amounts provided in Section 4.04(A), and
thereupon the Trustee shall, upon Request, pay to the Owner of the delivered
Trust Equipment, by the use of such amounts, the portion of the Cost of the
delivered Trust Equipment not paid out of Deposited Cash as provided for in
Section 3.02 or (b) deliver to the Trustee an executed counterpart of a receipt
from such Owner evidencing the direct payment by the Company to such Owner of
that portion of the Cost of such Trust Equipment equal to the amounts required
to be paid to the Trustee pursuant to clause (a) of this sentence in respect of
such Trust Equipment or, if the Company is the Owner of the delivered Trust
Equipment, a statement to such effect; the intention being that the Company
shall ultimately pay not less than ___% of the Cost of all the Trust Equipment
delivered to the Trustee pursuant to this Article Three, and the Trustee and
the Company shall at any time, if occasion arises, adjust their accounts and
payments to the end that the Trustee shall pay with Deposited Cash not more
than ___% of the Cost, and the Company shall pay the remainder, to be not less
than ___% of such Cost.
SECTION 3.04. Supporting Papers. The Trustee shall not pay out any
Deposited Cash against the delivery of any of the Trust Equipment unless and
until it shall have received:
(a) a certificate of the agent or agents designated by
the Trustee to receive delivery of the Trust Equipment, stating that
the Trust Equipment described and specified therein by number or
numbers has been delivered to such agent or agents (the date of such
certificate to be presumed conclusively as the date of such delivery);
(b) an Officers' Certificate which shall state (i) that
such Trust Equipment is Equipment as herein defined, (ii) the date
each unit of such Trust Equipment was first put into use or that such
Trust Equipment was first put into use not earlier than a specified
date, (iii) that the Cost of such Trust Equipment is the amount
therein specified or is not less than the amount therein specified and
(iv) the Value to the Company, in the opinion of the signer, of such
Trust Equipment as of the date of the Section 3.02 Request and (v)
that in the opinion of the signers all conditions precedent provided
in this Agreement, relating to the payment in question, have been
complied with;
(c) (i) an invoice or invoices from the Owner of such
Trust Equipment, if other than the Company, and (ii) a bill or bills
of sale of such Trust Equipment from the Owner thereof to the Trustee,
which bill or bills of sale shall contain a warranty or guarantee to
the Trustee that the title to the Trust Equipment described therein is
free from all liens and encumbrances (except as permitted herein)
other than the rights of the Company hereunder; and
- 14 -
19
(d) an Opinion of Counsel to the effect (i) that such
bill or bills of sale are valid and effective, either alone or in
connection with any other instrument referred to in and accompanying
such opinion, to vest in the Trustee title to such Trust Equipment
free from all liens and encumbrances (except as permitted herein)
other than the rights of the Company hereunder, (ii) that in the case
of any Trust Equipment not specifically described herein, a proper
supplement hereto in respect of such Trust Equipment has been duly
executed by the Trustee and the Company and filed and recorded in
accordance with Section 6.05 and (iii) that, the opinion of such
counsel, all conditions precedent provided for in this Agreement
relating to the payment in question have been complied with.
Any Officers' Certificate delivered pursuant to this Section may state
that the Cost of the Trust Equipment therein referred to is tentatively
determined, subject to final adjustment to be evidenced in a final Officers'
Certificate to be delivered to the Trustee.
ARTICLE FOUR
Conditional Sale of Trust Equipment to the Company
SECTION 4.01. Conditional Sale of Trust Equipment to the Company.
The Trustee does hereby conditionally sell to the Company all the Trust
Equipment from and after the date such Trust Equipment is acquired by the
Trustee hereunder.
SECTION 4.02. Equipment Automatically Subjected. As and when any
Equipment shall from time to time be transferred to the Trustee hereunder, the
same shall, ipso facto and without further instrument of transfer, become
subject to all the terms and provisions hereof.
SECTION 4.03. Additional and Substituted Equipment Subject Hereto.
In the event that the Company shall, as provided in Section 3.01 or 4.07, cause
to be transferred to the Trustee other Equipment in addition to or in
substitution for any of the Equipment herein specifically described or
subjected hereto, such other Equipment shall be included as part of the Trust
Equipment by supplement hereto to be executed by the Trustee and the Company
and shall be subject to all the terms and conditions hereof in all respects as
though it had been part of the Equipment herein specifically described.
SECTION 4.04. Payments. The Company hereby covenants and agrees to
accept delivery and possession hereunder of the Trust Equipment; and the
Company covenants and agrees to pay to the Trustee at the Corporate Trust
Office (or, in the case of taxes, to the proper taxing authority), in such coin
or currency of the United States as at the time of payment shall be legal
tender for the payment of public and private debts, such amounts in respect of
the purchase of such Trust Equipment as shall be sufficient to pay and
discharge the following items, when and as the same shall become due and
payable (whether or not any of such items shall become due and payable prior to
the acceptance of delivery of any unit of the Trust Equipment).
- 15 -
20
(A) The Company shall pay to the Trustee, as hereinafter
provided, as advance conditional sale payments hereunder, sums which
in the aggregate shall be equal to the difference between the
aggregate Cost of the Trust Equipment (other than Trust Equipment
subjected hereto pursuant to Section 4.07) and the portion of such
Cost to be provided out of the proceeds (excluding accrued interest,
if any) of the sale of the Trust Certificates, the intention being
that, when all such Trust Equipment shall have been transferred to the
Trustee, the Company shall have paid or shall pay to the Trustee, as
advance conditional sale payments hereunder, a sum equal to the amount
by which the aggregate Cost of such Trust Equipment exceeds such
proceeds of the sale of the Trust Certificates. The Company agrees to
make such advance conditional sale payments as follows:
(1) at the time of issue of a Trust Certificate
pursuant to Section 2.01, a sum which, when added to the
proceeds of the sale of such Trust Certificate deposited with
or to the credit of the Trustee, will make the total sum
deposited equal to the principal amount of such Trust
Certificate; and
(2) Upon delivery of any such Trust Equipment, a
sum equal to the portion of the Cost of such delivered Trust
Equipment not paid out of Deposited Cash as provided for in
Section 3.02, but not less than ___% of such Cost.
(B) In addition to such amounts, the Company shall pay to
the Trustee, in cash (notwithstanding that any of the Trust
Certificates shall have been acquired by the Company or shall not have
been presented for payment), the following:
(1) from time to time upon demand of the Trustee,
(a) the reasonable expenses of the trust hereby created,
including, without limitation, reasonable compensation to the
Trustee and all expenses provided for herein, and (b) an
amount equal to any expenses incurred or loss of principal
(including interest accrued thereupon at time of purchase) in
connection with any purchase, sale or redemption by the
Trustee of Investments;
(2) from time to time upon demand of the Trustee,
any and all taxes, assessments, and governmental charges which
the Trustee as such may be required to pay, including, without
limitation, all taxes, assessments and governmental charges
upon or on account of the income or property of the Trust, or
upon or on account of this Agreement;
(3) (a) the amounts of interest payable on the
Trust Certificates, when and as the same shall become payable,
and (b) interest at the Penalty Rate from the due date, upon
the amount of any installments of purchase price payable in
respect of the principal of and interest on the Trust
Certificates which shall not be paid when due, to the extent
legally enforceable; and
- 16 -
21
(4) the principal of the Trust Certificates, when
and as the same shall become payable, whether upon the date of
maturity thereof or by declaration or otherwise.
All payments provided for in subsections 3 and 4 shall be payable in
such coin or currency of the United States of America as at the time
of payment shall be legal tender for the payment of public and private
debts.
Except as provided in the next sentence hereof, nothing contained
herein or in the Trust Certificates shall be deemed to impose on the Trustee or
on the Company any obligation to pay to the registered holder of any Trust
Certificate any tax, assessment or governmental charge required by any present
or future law of Canada or the United States of America, or of any state,
province, county, municipality or other taxing authority thereof, to be paid on
behalf of, or withheld from the amount payable to, the holder of any Trust
Certificate. If after the date of original issuance of the Trust Certificates,
the adoption of any applicable law, treaty, rule or regulation, or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof shall subject the holders of Trust
Certificates to any withholding tax, or similar charge the result of which is
to reduce the amount of any sum received or receivable by such holders under
the Trust Certificates, then the Company shall pay to the Trustee for
distribution to the holders such additional amount or amounts as will result in
such holders receiving the full amount of principal and interest, as the case
may be, then due.
The Company shall not be required to pay any tax, assessment or
governmental charge so long as it shall in good faith and by appropriate legal
proceedings contest the validity thereof; provided, however, that in the
judgment of the Trustee and as set forth in an Opinion of Counsel which shall
have been furnished to the Trustee by the Company, the rights or interests of
the Trustee or of the holders of the Trust Certificates will not be materially
endangered thereby.
SECTION 4.05. Termination of Trust. After (i) all payments which
are required to be made pursuant to this Agreement have been completed and
fully made to the Trustee or (ii) Union shall have made all payments required
to be made under its guarantee referred to in the last paragraph of Section
2.02 hereof or (iii) the Company shall have acquired all the Trust Certificates
pursuant to the exercise of its rights to purchase the Trust Certificates under
Section 6.1 of the Pass Through Trust Agreement and tendered such Trust
Certificates to the Trustee for cancellation, (1) such payments or tender shall
be applied and treated as purchase money as the full purchase price of the
Trust Equipment from the Trustee, (2) any moneys remaining in the hands of the
Trustee after providing for all outstanding Trust Certificates and after paying
the expenses of the Trustee, including its reasonable compensation, shall be
paid to the Company, (3) title to all the Trust Equipment shall vest in the
Company and (4) the Trustee shall execute for record in public offices, at the
expense of the Company, such instrument or instruments in writing as reasonably
shall be requested by the Company and acceptable to the Trustee in order to
make clear upon public records the Company's title to all the Trust Equipment
under the laws of any jurisdiction; provided, however, that (except as
otherwise
- 17 -
22
provided herein) until that time title to the Trust Equipment shall not pass to
or vest in the Company, but title to and ownership of all the Trust Equipment
shall be and remain with the Trustee, notwithstanding the delivery thereof to
and the possession and use thereof by the Company pursuant to this Agreement.
SECTION 4.06. Indemnity. The Company covenants and agrees to
indemnify the Trustee against any and all claims arising out of or connected
with the ownership or use of any of the Trust Equipment, and particularly
against any and all claims arising out of the use of any patented inventions in
and about the Trust Equipment, and to comply in all respects with the laws of
Canada and of all its provinces and other jurisdictions in which the Trust
Equipment, or any unit thereof, may be operated, and with all lawful acts,
rules, regulations and orders of any commissions, boards and other legislative,
executive, administrative or judicial bodies or officers having power to
regulate or supervise any of the Trust Equipment, including without limitation
all lawful acts, rules, regulations and orders of any body having competent
jurisdiction relating to automatic coupler devices or attachments, air brakes
or other appliances; provided, however, that the Company may in good faith
contest the validity of any such law, act, rule, regulation or order, or the
application thereof to the Trust Equipment or any part thereof, in any
reasonable manner which will not in the judgment of the Trustee materially
endanger the rights or interests of the Trustee or of the holders of the Trust
Certificates. The Company shall not be relieved from any of its obligations
hereunder by reason of the assertion or enforcement of any such claims or the
commencement or prosecution of any litigation in respect thereof. The
Company's obligation to indemnify the Trustee under this Section 4.06 shall
survive the termination of this Agreement.
SECTION 4.07. Substitution and Replacement of Trust Equipment.
Upon Request, the Trustee shall, at any time and from time to time, execute and
deliver a bill of sale assigning and transferring to the transferee named by
the Company all the right, title and interest of the Trustee in and to any of
the units of Trust Equipment as provided herein; provided, however, that, at
the option of the Company, (a) there shall be paid to the Trustee cash in an
amount not less than the Value, as of the date of such Request, of the units of
Trust Equipment to be assigned or transferred by the Trustee or (b) there shall
be conveyed to the Trustee, at the time of assignment or transfer of any units
of Trust Equipment, other units of Equipment and of a Value not less than the
Value, as of the date of such Request, of the units of Trust Equipment to be
assigned or transferred.
At the time of delivery of any Request pursuant to the first paragraph
of this Section, the Company shall, if other Equipment is to be conveyed to the
Trustee in substitution for the Trust Equipment to be assigned or transferred
by the Trustee, deliver to the Trustee the following papers:
(1) an Officers' Certificate stating (i) the Value, as of
the date of said Request, of the Trust Equipment so to be assigned or
transferred by the Trustee and the date such Trust Equipment was
first put into use (or that such Trust Equipment was first put into
use not later than a specified date), (ii) that the requested
assignment or transfer by the
- 18 -
23
Trustee will not impair the security under this Agreement in
contravention of the provisions hereof, (iii) the Value of such
substituted Equipment as of such date and the date such substituted
Equipment was first put into use (or that such substituted Equipment
was first put into use not earlier than a specified date), (iv) that
each unit of Equipment so to be substituted has been marked as
provided in Section 4.10, (v) that each such unit so to be substituted
is Equipment as herein defined and (vi) that the Company is not in
Default;
(2) a certificate, and a bill or bills of sale in respect
of such substituted Equipment as provided for in subparagraphs (a) and
(c) of the first paragraph of Section 3.04;
(3) an Opinion of Counsel to the effect that (i) such
bill or bills of sale are valid and effective, either alone or
together with any other instruments referred to in and accompanying
such opinion, to vest in the Trustee title to such substituted
Equipment free from all claims, liens, security interests and other
encumbrances (except as permitted herein) other than the rights of the
Company hereunder and (ii) a proper supplement hereto in respect of
each substituted unit of Equipment has been duly executed by the
Trustee and the Company and has been filed with the Interstate
Commerce Commission pursuant to the requirements of 49 U.S.C. Section
11303 and as otherwise required by Section 6.05 and has been deposited
with the Registrar General of Canada pursuant to Section 90 of the
Railway Act (Canada) and publication of notice of such deposit in The
Canada Gazette in accordance with said Section 90 has been provided
for; and
(4) if the Cost of the Trust Equipment to be assigned or
transferred by the Trustee, less 1/20th of such Cost for each full
year elapsed between the date such Trust Equipment was first put into
use (as previously so certified) and the date as of which the Value
thereof is to be determined hereunder, plus the Cost of all other
Trust Equipment so assigned or transferred within the prior twelve
months, less 1/20th of such Cost for each full year elapsed between
the date such other Trust Equipment was first put into use (as
previously so certified) and the date as of which the Value thereof
was determined, as set forth in the certificate or certificates
required by this Section 4.07, is more than 10% of the principal
amount of Trust Certificates then outstanding, a certificate by an
Independent Engineer stating, as of the date of said Request, both the
Value of the Trust Equipment so to be assigned or transferred by the
Trustee and the Value of such substituted Equipment.
At the time of delivery of any Request pursuant to the first paragraph
of this Section, the Company shall, if cash is to be paid to the Trustee in
respect of the Trust Equipment to be assigned or transferred by the Trustee,
deliver to the Trustee an Officers' Certificate verifying the matters set forth
in clauses (i), (ii) and (vi) of subparagraph (1) of the second paragraph of
this Section.
- 19 -
24
Cash deposited with the Trustee pursuant to this Section or Section
4.08 shall, from time to time, be paid over by the Trustee to the Company upon
Request, against conveyance to the Trustee of units of Equipment having a
Value, as of the date of said Request, not less than the amount of cash so
paid, and upon delivery to the Trustee of papers corresponding to those set
forth in the second paragraph of this Section, with such appropriate
modifications as may be approved by the Trustee.
SECTION 4.08. Maintenance of Trust Equipment; Casualty Occurrences.
The Company agrees that it will maintain and keep all the Trust Equipment in
good order and proper repair at its own cost and expense, unless and until it
becomes worn out, unsuitable for use or lost or destroyed (such occurrences
being hereinafter called Casualty Occurrences). Whenever any of the Trust
Equipment shall suffer a Casualty Occurrence, the Company shall on or before
the next following May 15, deliver to the Trustee an Engineer's Certificate
describing such Trust Equipment and stating the Value thereof as of the date
such Trust Equipment suffered such Casualty Occurrence. When the total Value
of all units of the Trust Equipment having suffered a Casualty Occurrence
(exclusive of units having suffered a Casualty Occurrence in respect of which a
payment shall have been made to the Trustee pursuant to this Section) shall
exceed U.S. $250,000, the Company, within 30 days after it shall have been
informed of such event, shall deliver to the Trustee an Engineer's Certificate
describing such Trust Equipment and stating the Value thereof as of the date
such Trust Equipment suffered such Casualty Occurrence and either (i) deposit
with the Trustee an amount in cash equal to the Value of such units as of the
date of the Casualty Occurrence in respect of each thereof or (ii) convey to
the Trustee, in accordance with the procedures and requirements of Section
4.07, units of Equipment with a Value, as of the date of such conveyance, not
less than the Value of the units suffering such Casualty Occurrences(s), as of
the date of the Casualty Occurrence in respect of each thereof. The rights and
remedies of the Trustee to enforce or to recover any of the amounts payable
hereunder shall not be affected by reason of any Casualty Occurrence. Cash
deposited with the Trustee pursuant to this Section shall be held and applied
as provided in the fourth paragraph of Section 4.07.
Upon the deposit of cash with the Trustee pursuant to this Section
4.08, the Trustee shall execute and deliver a bill of sale in the form
reasonably requested by the Company assigning and transferring to the
transferee named by the Company all the right, title and interest of the
Trustee in and to the Trust Equipment which has suffered a Casualty Occurrence
and in respect of which such deposit is made.
The Company agrees to furnish to the Trustee on or before May 15 in
every calendar year commencing May 15, ____ and prior to the termination of the
security interest provided for herein, an Officers' Certificate, dated as of
the preceding February 14, (1) stating the description and numbers of all units
of Trust Equipment that may have suffered a Casualty Occurrence or which have
been withdrawn from use pending major repairs (other than running repairs)
since the date of the last preceding statement (or the date of this Agreement
in the case of the first such statement), (2) that in the case of all the Trust
Equipment repainted or repaired since the date of the last preceding statement
(or the date of this Agreement in the case of the first statement) the plates
or markers required by Section 4.10 have been preserved, or that such
- 20 -
25
Trust Equipment when repainted or repaired has been again plated or marked as
required thereby, (3) that no Event of Default has occurred and is continuing,
(4) that, in the opinion of the signers, the Company is in compliance with all
of the terms of this Agreement and (5) covering such other matters as the
Trustee may reasonably request.
The Trustee, by its agents, shall have the right at any reasonable
time (which may be more frequent than once in each calendar year), but shall be
under no duty, to inspect the Trust Equipment at the then existing locations
thereof.
SECTION 4.09. Possession of Trust Equipment. Except as provided in
this Section 4.09, without first obtaining the written consent of the Trustee,
the Company will not (a) assign or transfer its rights hereunder, (b) transfer
the Trust Equipment or any part thereof or (c) part with the possession of, or
suffer or allow to pass out of its possession and control, any of the Trust
Equipment. An assignment or transfer to any corporation which shall acquire all
or substantially all the property of the Company (by merger, consolidation or
otherwise) and which, by execution of an appropriate instrument satisfactory to
the Trustee, shall assume and agree to perform each and all the obligations and
covenants of the Company hereunder and under the guarantee of the Company
endorsed on the Trust Certificates shall not be deemed a breach of this
covenant or an assumption having the effect of releasing the Company from its
obligations hereunder. The appointment of a receiver or receivers in equity or
reorganization or a trustee or trustees in bankruptcy or reorganization for the
Company or for its property shall not be deemed an unauthorized assignment if,
prior to any action by the Trustee to exercise the remedies herein provided,
such receiver or receivers or trustee or trustees shall, pursuant to court
order or decree, in writing duly assume and agree to pay or perform each and
all of the obligations and covenants of the Company hereunder and under the
guarantee endorsed on the Trust Certificates, in such manner that such
obligations shall have the same status as obligations incurred by such receiver
or receivers or trustee or trustees.
Notwithstanding the foregoing, so long as the Company shall not be in
Default, the Company and any of its Affiliates shall be entitled to the
possession and use of the Trust Equipment in accordance with the terms hereof,
and the Company or such Affiliates may also (a) furnish the Trust Equipment or
any part thereof to railroad companies for use upon the lines of railroad owned
or operated by them or over which they have trackage rights and upon connecting
and other railroads in the usual interchange of traffic, or to other than
railroad companies for use in their business, and (b) lease or contract to
others located in the United States, Mexico and Canada all or any part of the
Trust Equipment, but only, in either case, upon and subject to all the terms
and conditions of this Agreement.
Any such lease or contract may provide that the party acquiring the
use of units of the Trust Equipment, so long as it shall not be in default
under such lease or contract, shall be entitled, subject to the rights of the
Trustee hereunder, to the possession of such units and the use thereof and,
subject to the provisions of Section 4.10 hereof, may provide for lettering or
marking upon such Equipment for convenience of identification of the leasehold
interest of such lessee therein. Every such lease or contract shall contain
provisions which have the effect of
- 21 -
26
subjecting the rights of the party acquiring the use of units of the Trust
Equipment under such lease or contract to the rights and remedies of the
Trustee in respect of such units.
The Trustee shall have the right to declare the conditional sale
provided for herein terminated in case of any unauthorized assignment or
transfer of the Company's rights hereunder or in case of any unauthorized
transfer or sublease of any of the Trust Equipment. The election of the
Trustee to terminate the conditional sale provided for herein shall have the
same effect as the retaking of the Trust Equipment by the Trustee as
hereinafter provided.
SECTION 4.10. Marking of Trust Equipment. The Company shall not
change, or permit to be changed, the numbers of any of the Trust Equipment at
any time covered hereby (or any numbers which may have been substituted as
herein provided) except in accordance with a statement of new numbers to be
substituted therefor which previously shall have been filed with the Trustee by
the Company and which shall be filed and recorded in like manner as this
Agreement.
The Trust Equipment may be lettered, "Union Tank Car Company", "Procor
Limited", "UTLX", "PROX", or in some other appropriate manner for convenience
of identification of the interest of the Company therein, and may also be
lettered, in case of a lease of any equipment made pursuant to Section 4.09
hereof, in such manner as may be appropriate for convenience of identification
of the leasehold interest therein; but the Company, during the continuance of
the security interest provided for herein, will not allow any lettering or
designation to be placed on any of the Trust Equipment claiming ownership
thereof by the Company or by any person, firm, association or corporation other
than the Trustee.
ARTICLE FIVE
Events of Default and Remedies
SECTION 5.01. Events of Default. The Company covenants and agrees
that in case:
(a) the Company shall default in the payment of any
amount payable hereunder for more than 10 Business Days after the same
shall have become due and payable, or
(b) the Company shall make or suffer any unauthorized
assignment or transfer of its rights hereunder or shall make any
unauthorized transfer or lease (including, for the purpose of this
clause, contracts for the use thereof) of any of the Trust Equipment,
or, except as herein authorized, shall part with the possession of any
of the Trust Equipment, and shall fail or refuse either to cause such
assignment or transfer or lease to be canceled by agreement of all
parties having any interest therein and recover possession of such
Trust Equipment within 30 days after the Trustee shall have demanded
in writing such cancellation and recovery of possession, or within
said 30 days to deposit with the Trustee a sum in cash equal to the
Value, as of the date of such unauthorized
- 22 -
27
action, of such Trust Equipment (any sum so deposited to be returned
to the Company upon the cancellation of such assignment, transfer or
lease and the recovery of possession by the Company of such Trust
Equipment), or
(c) the Company shall fail or refuse to comply with any
other of the terms and covenants hereof on its part to be kept and
performed, or to make provision satisfactory to the Trustee for such
compliance, for a period which is the shorter of (i) 60 days after the
Trustee shall have demanded in writing performance thereof and (ii) 30
days after the Company has knowledge of any failure on its part to so
comply, or
(d) the security interest provided for herein shall be
terminated by operation of law or pursuant to the last paragraph of
Section 4.09, or
(e) any order, judgment or decree is entered under any
bankruptcy reorganization, compromise, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law of any
jurisdiction (herein called the Bankruptcy Law) adjudicating the
Company or Union bankrupt or insolvent, or the Company or Union
petitions or applies to any tribunal for, or consents to, the
appointment of, or taking possession by, a trustee, receiver,
custodian, liquidator or similar official, of the Company or Union or
of substantially all the assets of the Company or Union or commences a
voluntary case under the Bankruptcy Law or any proceedings relating to
the Company or Union under the Bankruptcy Law, whether now or
hereafter in effect; or any such petition or application is filed, or
any such proceedings are commenced, against the Company or Union and
the Company or Union by any act or failure to act indicates its
approval thereof, consent thereto or acquiescence therein, or an order
for relief is entered in an involuntary case against the Company or
Union under the Bankruptcy Law, as now or hereafter constituted, or an
order, judgment or decree is entered appointing any such trustee,
receiver, custodian, liquidator or similar official, or approving the
petition in any such proceedings, and such order, judgment or decree
remains unstayed and in effect for more than 60 days;
then, in any such case (herein sometimes called an "Event of Default"), the
Trustee in its discretion may, and upon the written request of the holders of
more than 50% in principal amount of the then outstanding Trust Certificates
shall, by notice in writing delivered to the Company, declare to be due and
payable forthwith the unpaid principal amount of all Trust Certificates then
outstanding and the entire amount (excluding amounts required for the payment
of interest accruing after the date of such declaration) payable by the Company
with respect to all such Trust Certificates then outstanding, as set forth in
Section 4.04, and not theretofore paid. Thereupon the entire amount shall
forthwith become and shall be due and payable immediately without further
demand, together with interest at the Penalty Rate, to the extent legally
enforceable, on any portion thereof overdue.
In case the Company shall fail to pay any installment of the amounts
payable pursuant to Section 4.04 in respect of the principal of, or interest
on, the Trust Certificates when and as
- 23 -
28
the same shall have become due and payable hereunder, and such Default shall
have continued for a period of more than ten Business days, the Trustee, in its
own name and as trustee of an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity for the collection of
the amounts so due and unpaid, and may prosecute any such action or proceedings
to judgment or final decree, and may enforce any such judgment or final decree
against the Company other obligor upon the Trust Certificates and collect in
the manner provided by law out of the property of the Company, Union or other
obligor upon the Trust Certificates wherever situated the moneys adjudged or
decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor upon the Trust
Certificates under the Bankruptcy Law or any other applicable law, or in case a
receiver or trustee shall have been appointed for the property of the Company
or such other obligor, or in case of any other judicial proceedings relative to
the Company or such other obligor, or to the creditors or property of the
Company or such other obligor, the Trustee, irrespective of whether the
payments hereunder or the principal amount of the Trust Certificates shall then
be due and payable as herein or therein expressed whether by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand or
declaration pursuant to the provisions of this Section, shall be entitled and
empowered by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the entire amount then or thereafter payable (including any
unpaid amounts, but not including amounts required for the payment of interest
accruing after the date of such declaration) and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for reasonable compensation to the Trustee, its
agents, attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Trustee except as a result
of its negligence or willful misconduct) and of the holders of the Trust
Certificates allowed in such proceedings and to collect and receive any moneys
or other property payable or deliverable on any such claims, and to distribute
all amounts received with respect to the claims of the holders of the Trust
Certificates and of the Trustee on their behalf; and any receiver, assignee or
trustee in bankruptcy or reorganization is hereby authorized by each of the
holders of the Trust Certificates to make payments to the Trustee, and, in the
event that the Trustee shall consent to the making of payments directly to the
holders of the Trust Certificates, to pay to the Trustee such amount as shall
be sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of its negligence or willful
misconduct.
All rights of action and to assert claims under this Agreement, or
under any of the Trust Certificates, may be enforced by the Trustee without the
possession of any of the Trust Certificates or the production thereof on any
trial or other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall be for the ratable benefit of
the holders of the Trust Certificates. In any proceedings brought by the
Trustee (and also any proceedings involving the interpretation of any provision
of this Agreement to which the Trustee shall be a
- 24 -
29
party) the Trustee shall be held to represent all the holders of the Trust
Certificates, and it shall not be necessary to make any holders of the Trust
Certificates parties to such proceedings.
SECTION 5.02. Remedies. In case of the happening and continuance
of any Event of Default, the Trustee may by its agents enter upon the premises
of the Company and any of its Affiliates or lessees (or other person having
acquired the use of the Trust Equipment) where any of the Trust Equipment may
be and take possession of all or any part of the Trust Equipment and withdraw
the same from said premises, retaining all payments which up to that time may
have been made for the Trust Equipment and otherwise, and shall be entitled to
collect, receive and retain all unpaid per diem, mileage or other charges of
any kind earned by the Trust Equipment or any part thereof, and may lease or
otherwise contract for the use of the Trust Equipment or any part thereof, or
with or without retaking possession thereof (but only after declaring due and
payable the entire amount payable by the Company and the principal of all the
then outstanding Trust Certificates, as provided in Section 5.01) may sell the
same or any part thereof, free from any and all claims of the Company at law or
in equity in one lot and as an entirety or in separate lots, at public or
private sale, for cash or upon credit, in its discretion, and may proceed
otherwise to enforce its rights and the rights of the holders of then
outstanding Trust Certificates, all subject to any mandatory requirements of
law applicable thereto. Upon any such sale, the Trustee itself may bid for the
property offered for sale or any part thereof. Any such sale may be held or
conducted at such place and at such time as the Trustee may specify, or as may
be required by law, and without gathering at the place of sale the Trust
Equipment to be sold, and in general in such manner as the Trustee may
determine, but so that the Company may and shall have a reasonable opportunity
to bid at any such sale. Upon such taking possession or withdrawal or lease or
sale of the Trust Equipment, the Company shall cease to have any rights or
remedies in respect of the Trust Equipment hereunder, but all such rights and
remedies shall be deemed thenceforth to have been waived and surrendered by the
Company, and no payments theretofore made by the Company in respect of the
Trust Equipment or any of it shall give to the Company any legal or equitable
interest or title in or to the Trust Equipment or any of it or any cause or
right of action at law or in equity in respect of the Trust Equipment against
the Trustee or the holders of interests hereunder. No such taking possession,
withdrawal, lease or sale of the Trust Equipment by the Trustee shall be a bar
to the recovery by the Trustee from the Company of amounts then or thereafter
due and payable, or of principal, interest or premium in respect of the Trust
Certificates, and the Company shall be and remain liable for the same until
such sums have been realized as, with the proceeds of the lease or sale of the
Trust Equipment, shall be sufficient for the discharge and payment in full of
all the obligations of the Company under this Agreement.
SECTION 5.03. Application of Proceeds. If the Trustee shall
exercise any of the powers conferred upon it by Sections 5.01 and 5.02, all
payments made by the Company to the Trustee, and the proceeds of any judgment
collected from the Company by the Trustee, and the proceeds of every sale or
lease by the Trustee of any of the Trust Equipment, together with any other
sums which may then be held by the Trustee under any of the provisions hereof
(other than sums held in trust for the payment of specific Trust Certificates
or a part thereof, or interest or any premium thereon), shall be applied by the
Trustee to the payment, in the following order
- 25 -
30
of priority, (a) of all proper charges, expenses or advances made or incurred
by the Trustee in accordance with the provisions of this Agreement and (b) of
the interest then due, with interest on overdue interest at the Penalty Rate,
to the extent legally enforceable, and of the principal of all the outstanding
Trust Certificates, with interest thereon at the Penalty Rate, to the extent
legally enforceable, from the last preceding interest payment date, whether
such Trust Certificates shall have then matured by their terms or not, all such
payments to be pro rata and in full if such proceeds shall be sufficient, and
if not sufficient, then first to interest and then to principal.
After all such payments shall have been made in full, the title to any
of the Trust Equipment remaining unsold shall be conveyed by the Trustee to the
Company free from any further liabilities or obligations to the Trustee
hereunder. If after applying all such sums of money realized by the Trustee as
aforesaid there shall remain any amount due to the Trustee under the provisions
hereof, the Company agrees to pay the amount of such deficit to the Trustee.
If after applying as aforesaid the sums of money realized by the Trustee there
shall remain a surplus in the possession of the Trustee, such surplus shall be
paid to the Company.
SECTION 5.04. Waivers of Default. Prior to the declaration of the
acceleration of the maturity of the amounts due hereunder and of the maturity
of all the Trust Certificates as provided in Section 5.01, the holders of at
least 50% in aggregate unpaid principal amount of the Trust Certificates at the
time outstanding may on behalf of the holders of all the Trust Certificates
waive any past Default and its consequences, except a Default in the payment of
any installment of any amount then due and payable pursuant to Section 4.04 in
respect of the principal of, or interest on, the Trust Certificates, but no
such waiver shall extend to or affect any subsequent Default or impair any
right consequent thereon.
If at any time after the principal of all the Trust Certificates shall
have been declared and become due and payable or if at any time after the
entire amount of the payments required hereunder shall have been declared and
become due and payable, all as provided in Section 5.01, all arrears of amounts
payable under Section 4.04 (with interest at the Penalty Rate upon any overdue
installments, to the extent legally enforceable), the expenses and reasonable
compensation of the Trustee, together with all expenses of the trust occasioned
by Default, and all other sums which shall have become due and payable
hereunder shall be paid by Union pursuant to its guarantee endorsed on the
Trust Certificates before any sale or lease by the Trustee of any of the Trust
Equipment, and every other Default shall be made good or secured to the
satisfaction of the Trustee and the holders of the Trust Certificates, or
provision deemed by the Trustee to be adequate shall be made therefor, then,
and in every such case, the Trustee, if so requested by the holders of at least
66-2/3% in aggregate unpaid principal amount of the Trust Certificates then
outstanding according to their terms, shall by written notice to the Company
waive the Default by reason of which there shall have been such declaration or
declarations and the consequences of such Default, but no such waiver shall
extend to or affect any subsequent Default or impair any right consequent
thereon.
- 26 -
31
SECTION 5.05. Obligations of Company Not Affected by Remedies. No
retaking of possession of the Trust Equipment by the Trustee, or any
withdrawal, lease or sale thereof, nor any action or failure or omission to act
against the Company or in respect of the Trust Equipment, on the part of the
Trustee or on the part of the holder of any Trust Certificate, nor any delay or
indulgence granted to the Company by the Trustee or by any such holder, shall
affect the obligations of the Company hereunder or the obligations of the
Company under its guarantee endorsed on the Trust Certificates. The Company
hereby waives presentation and demand in respect of any of the Trust
Certificates and waive notice of presentation, of demand and of any Default in
the payment of the principal of and interest on the Trust Certificates.
SECTION 5.06. Company To Deliver Trust Equipment to Trustee. In
case the Trustee shall rightfully demand possession of any of the Trust
Equipment in pursuance of this Agreement, the Company will, at its own expense,
forthwith and in the usual manner and at usual speed, cause such Trust
Equipment to be drawn to such point or points as shall reasonably be designated
by the Trustee and will there deliver or cause to be delivered the same to the
Trustee; or, at the option of the Trustee, the Trustee may keep such Trust
Equipment, at the expense of the Company, on any lines of railroad or premises
approved by the Trustee until the Trustee shall have leased, sold or otherwise
disposed of the same. The performance of the foregoing covenant is of the
essence of this Agreement and upon application to any court having jurisdiction
in the premises, the Trustee shall be entitled to a decree against the Company
requiring the specific performance thereof.
SECTION 5.07. Trustee To Give Notice of Default. Promptly after
the occurrence thereof, the Trustee shall give to the registered holders of the
Trust Certificates notice of each Default hereunder known to any officer of the
Trustee assigned by it to perform corporate trust administration functions with
respect to this Agreement or any other lease, agreement, equipment trust
agreement or indenture to which the Company or Union is a party and in respect
of which the Trustee is also the trustee.
SECTION 5.08. Control by Holders of Trust Certificates. The
holders of more than 50% in aggregate unpaid principal amount of the
outstanding Trust Certificates, by an instrument or instruments in writing
executed and delivered to the Trustee, shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee; provided,
however, that the Trustee shall have the right to decline to follow any such
direction if the Trustee shall be advised by counsel that the action so
directed may not lawfully be taken.
SECTION 5.09. Limitations on Suits by Holders of Trust
Certificates. No holder of any Trust Certificate shall have any right by
virtue or by availing of any provision of this Agreement to institute any
action or proceeding at law or in equity or in bankruptcy or otherwise, upon or
under or with respect to this Agreement, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless such holder previously
shall have given to the Trustee written notice of a Default and of the
continuance thereof, as herein provided, and unless also the holders of more
than 50% in aggregate principal amount of the Trust Certificates
- 27 -
32
then outstanding shall have made written request to the Trustee to institute
such action or proceeding in its own name as trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for 30 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 5.08; and no one or more holders of Trust
Certificates shall have any right in any manner whatever to affect or prejudice
the rights of any other holder of Trust Certificates, or to obtain or seek to
obtain priority over any other such holder or to enforce any right under this
Agreement, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Trust Certificates. For the protection and
enforcement of the provisions of this Section, each and every holder of a Trust
Certificate and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
SECTION 5.10. Unconditional Right of Holders of Trust Certificates
To Sue for Principal and Interest. Notwithstanding any other provision in this
Agreement, the right of any holder of any Trust Certificate to receive payment
of the principal of, and interest on such Trust Certificate, on or after the
due date expressed in such Trust Certificate, or to institute suit for the
enforcement of any such payment on or after such date, shall not be impaired or
affected without the consent of such holder, except no such suit shall be
instituted if and to the extent that the institution or prosecution thereof or
the entry of judgment therein would, under applicable law, result in the
surrender, impairment, waiver or loss of the title reserved under this
Agreement upon any property subject hereto.
SECTION 5.11. Remedies Cumulative; Subject to Mandatory
Requirements of Law. The remedies in this Agreement provided in favor of the
Trustee and the holders of the Trust Certificates shall not be deemed
exclusive, but shall be cumulative, and shall be in addition to all other
remedies in their favor existing at law or in equity; and such remedies shall
be subject in all respects to any mandatory requirements of law at the time
applicable thereto, to the extent such requirements may not be waived on the
part of the Company.
ARTICLE SIX
Additional Agreements by the Company
SECTION 6.01. Guarantee of Company. The Company guarantees that
the holder of each of the Trust Certificates shall receive the principal amount
thereof, in such coin or currency of the United States of America as, at the
time of payment, shall be legal tender for the payment of public and private
debts, when and as the same shall become due and payable, in accordance with
the provisions thereof or of this Agreement (and, if not so paid, with interest
thereon until paid at the Penalty Rate, to the extent legally enforceable), and
shall receive interest thereon in like money at the rate specified therein, at
the times and place and otherwise as expressed in the Trust Certificates and
this Agreement (and, if not so paid, with interest thereon until paid at the
Penalty Rate, to the extent legally enforceable); and the Company agrees
- 28 -
33
to endorse upon each of the Trust Certificates, at or before the issuance and
delivery thereof by the Trustee, its guarantee of the prompt payment of the
principal thereof and of the interest thereon, in substantially the form herein
set forth. Said guarantee so endorsed shall be signed in the name and on
behalf of the Company by the manual or facsimile signature of its President, a
Vice President or Treasurer. In case any officer of the Company whose
signature shall appear on said guarantee shall cease to be such officer before
the Trust Certificates shall have been issued and delivered by the Trustee, or
shall not have been acting in such capacity on the date of the Trust
Certificates, such guarantee shall nevertheless be as effective and binding
upon the Company as though the person who signed said guarantee had not ceased
to be or had then been such officer.
SECTION 6.02. Discharge of Liens. The Company agrees that it will
pay and discharge, or make adequate provision for the payment or discharge of,
any debt, tax, charge, assessment, obligation or claim which if unpaid might
become a lien or charge upon or against any of the Trust Equipment; but this
provision shall not require the payment of any such debt, tax, charge,
assessment, obligation or claim so long as the validity thereof shall be
contested in good faith and by appropriate legal proceedings that do not
materially endanger the rights or interests of the Trustee or of the holders of
the Trust Certificates and the Company shall have furnished the Trustee with an
Opinion of Counsel to such effect.
If the Company does not forthwith pay and discharge, or cause to be
paid and discharged, or make adequate provision for the satisfaction or
discharge of, any such debt, tax, charge, assessment, obligation or claim as
required by this Section, the Trustee may, but shall not be obligated to, pay
and discharge the same and any amounts so paid shall be secured by and under
this Agreement until reimbursed by the Company.
SECTION 6.03. Further Assurances. The Company agrees to do all
such acts and execute all such instruments of further assurance as it shall be
reasonably requested by the Trustee to do or execute for the purpose of fully
carrying out and effectuating this Agreement and the intent hereof.
SECTION 6.04. Payment of Expenses; Recording. The Company agrees
to pay the expenses incident to the preparation and execution of the Trust
Certificates to be issued hereunder, or connected with the preparation,
execution, recording and filing of this Agreement and of any instruments
executed under the provisions hereof. The Company shall, promptly after the
execution and delivery of this Agreement (and prior to the delivery of any of
the Trust Equipment hereunder pursuant to Section 3.01 hereof) and each
supplement hereto, respectively, cause this Agreement and such supplement, as
the case may be, to be duly filed with the Surface Transportation Board of the
Department of Transportation in accordance with __ U.S.C. Section _____ and to
be duly deposited with the Registrar General of Canada pursuant to Section 90
of the Railway Act (Canada) and shall provide for publication of notice of such
deposit in The Canada Gazette in accordance with said Section 90. The Company
will from time to time reregister, refile and rerecord this Agreement and each
supplement hereto and do and perform any other act and will execute,
acknowledge, deliver, file, register and record any and all further
- 29 -
34
instruments required by the law of any jurisdiction in which use of the
Equipment is permitted by Section 4.09 hereof or reasonably requested by the
Trustee for the purpose of proper protection of the title of the Trustee and
the rights of the holders of the Trust Certificates and of fully carrying out
and effectuating this Agreement and the intent hereof; provided, however, that
the Company shall not be required to take any such action if (1) such action is
unduly burdensome and (2) after giving effect to the failure to take such
action, the Company has taken all action required by law so as to protect the
title of the Trustee to units of Trust Equipment having a Value of not less
than 90% of the aggregate Value of all the Trust Equipment.
Promptly after the execution and delivery of this Agreement and each
supplement hereto, the Company shall furnish to the Trustee an Opinion of
Counsel stating that, in the opinion of such counsel, this Agreement or such
supplement, as the case may be, has been properly recorded, filed and deposited
in compliance with the preceding paragraph of this Section and reciting the
details of such action and no other filing or recordation or refiling or
rerecordation or depositing or redepositing is necessary for the protection of
the rights of the Trustee in the United States of America, any State thereof or
the District of Columbia or for the protection of the rights of the Trustee in
Canada or any subdivision thereof so long as the Equipment is on tracks owned
by railway companies (as defined in the Railway Act (Canada)). The Company
shall furnish to the Trustee, not later than August 1 in each year, commencing
with the year ____, an Opinion of Counsel stating that, in the opinion of such
counsel, either (i) such action has been taken with respect to the recording,
filing, registering and depositing and rerecording, refiling, reregistering and
redepositing of this Agreement and each supplement hereto as is necessary to
comply with the preceding paragraph of this Section and reciting the details of
such action or (ii) no such action is necessary for such purpose. In rendering
any such opinion, such counsel may conclusively rely upon an Officers'
Certificate as to the location of the Trust Equipment.
ARTICLE SEVEN
Concerning the Holders of Trust Certificates
SECTION 7.01. Evidence of Action Taken by Holders of Trust
Certificates. Whenever in this Agreement it is provided that the holders of a
specified percentage in aggregate unpaid principal amount of the Trust
Certificates may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the holders of
such specified percentage have joined therein may be evidenced by any
instrument or any number of instruments of similar tenor executed by holders of
Trust Certificates in person or by agent or proxy appointed in writing in a
form reasonably acceptable to the Trustee.
SECTION 7.02. Proof of Execution of Instruments and of Holding of
Trust Certificates. The execution of any instrument by a holder of Trust
Certificates or his agent or proxy may be proved by the certificate of any
notary public or other officer of any jurisdiction within the United States of
America or Canada authorized to take acknowledgments of deeds to
- 30 -
35
be recorded in such jurisdiction that the person executing such instrument
acknowledged to him the execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or other such officer.
The ownership of Trust Certificates may be proved by the register of
such Trust Certificates or by a certificate of the registrar thereof.
SECTION 7.03. Trust Certificates Owned by Company. In determining
whether the holders of the requisite principal amount of the Trust Certificates
have concurred in any direction, request, consent, amendment or waiver under
this Agreement, Trust Certificates which are owned by the Company or Union or
by any other obligor on the Trust Certificates or by an Affiliate of the
Company or Union or any such other obligor shall be disregarded, except that
for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, request or consent, only Trust Certificates
which the Trustee actually knows are so owned shall be disregarded.
SECTION 7.04. Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.01, of the taking of any action by the holders of the required percentage in
aggregate unpaid principal amount of the Trust Certificates specified in this
Agreement, any holder of a Trust Certificate may, by filing written notice with
the Trustee at the Corporate Trust Office and upon proof of holding as provided
in Section 7.02, revoke such action insofar as concerns such Trust Certificate.
Except as aforesaid, any such action taken by the holder of any Trust
Certificate shall be conclusive and binding upon such holder and upon all
future holders and owners of such Trust Certificate and of any Trust
Certificate issued in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon such Trust
Certificate. Any action taken by the holders of the required percentage in
aggregate unpaid principal amount of the Trust Certificates specified in this
Agreement shall be conclusive and binding upon the Company, the Trustee and the
holders of all the Trust Certificates.
SECTION 7.05. Amendment or Waiver. Any provision of this Agreement
may be amended or waived with the written consent of the holders of not less
than 66-2/3% of the aggregate unpaid principal amount of the Trust Certificates
then outstanding; provided, however, that without the consent of the holders of
100% of the aggregate unpaid principal amount of Trust Certificates then
outstanding, no such amendment or waiver shall (1) change the amount of
principal, change the amount or dates of payment of installments of principal
or reduce the rate or extend the time of payment of interest with respect to
the Trust Certificates without the consent of the holders of each Trust
Certificate so affected, (2) reduce the amount of or extend the time of payment
of any amounts payable by the Company under this Agreement or release or
provide for the release of any of the Trust Equipment or any other property or
cash held by the Trustee in trust, otherwise than as expressly permitted by the
present terms of this Agreement, or (3) reduce the percentage of the aggregate
unpaid principal amount of Trust Certificates then outstanding, the holders of
which are required to approve any amendment or to effect any waiver.
- 31 -
36
ARTICLE EIGHT
The Trustee
SECTION 8.01. Acceptance of Trust. The Trustee hereby accepts the
trust imposed upon it by this Agreement and agrees to perform the same as
herein expressed.
SECTION 8.02. Duties and Responsibilities of the Trustee. In case
an Event of Default has occurred (which has not been cured), the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default and
after the curing of all Events of Default which may have occurred:
(1) the duties and obligations of the Trustee
shall be determined solely by the express provisions of this
Agreement, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the
Trustee; and
(2) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this
Agreement; but in the case of any such certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not
they conform to the requirements of this Agreement;
(b) the Trustee shall not be liable for any error of
judgment made in good faith, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts or that its
action or inaction was contrary to the express provisions of this
Agreement;
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the holders of more than 50% in aggregate
unpaid principal amount of the then outstanding Trust Certificates
relating to the time, method and place of conducting any proceeding
for any remedy
- 32 -
37
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement;
(d) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, Trust
Certificate, guarantee or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(e) the Trustee may consult with counsel, and any Opinion
of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered by it hereunder in good faith
and in accordance with such Opinion of Counsel and not contrary to any
express provisions of this Agreement:
(f) the Trustee shall be under no obligation to exercise
any of its rights or powers vested in it by this Agreement at the
request, order or direction of any of the holders of the Trust
Certificates, pursuant to the provisions of this Agreement, unless
such holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred therein or thereby; and
(g) the Trustee shall not be liable for any action taken
by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement.
SECTION 8.03. Application of Payments. The Trustee agrees to apply
the amounts received by it under Section 4.04(B) when and as the same shall be
received, and to the extent that such amounts shall be sufficient therefor, for
the purposes specified in Section 4.04(B). In the event that amounts received
by the Trustee under Sections 4.04(B)(3) or 4.04(B)(4) are not sufficient to
pay in full the interest or principal then due and owing on the Trust
Certificates, such amounts shall be applied by the Trustee pro rata to each of
the Trust Certificates first to interest and then to principal then due and
payable.
The Trustee shall not be required to undertake any act or duty in the
way of insuring, taking care of or taking possession of the Trust Equipment or
to undertake any other act or duty under this Agreement until fully indemnified
by the Company, by Union or by one or more of the holders of the Trust
Certificates against all liability and expenses; and the Trustee shall not be
responsible for the filing or recording or refiling or rerecording of this
Agreement or of any supplement hereto or statement of new numbers.
SECTION 8.04. Funds May be Held by Trustee; Investments. Any funds
at any time paid to or held by the Trustee hereunder until paid out by the
Trustee as herein provided may be carried by the Trustee on deposit with
itself, and the Trustee will not be obligated to pay interest on such funds.
- 33 -
38
At any time, and from time to time, if at the time no Event of Default
shall have occurred and be continuing, the Trustee, on Request, shall invest
and reinvest Deposited Cash held by it or cash deposited with it pursuant to
Section 4.07 or Section 4.08 (hereinafter in this Section called "Replacement
Funds") in Investments, at such prices, not in excess of fair market value at
the time of investment, including any premium and accrued interest, as are set
forth in such Request, such Investments to be held by the Trustee in trust for
the benefit of the holders of the Trust Certificates.
The Trustee shall, on Request, or the Trustee may, in the event funds
are required for payment against delivery of Trust Equipment or for payment of
the principal of or interest on any Trust Certificate, or in the event of a
Default, sell such Investments, or any portion thereof, and restore to
Deposited Cash or Replacement Funds, as the case may be, the proceeds of any
such sale up to the amount paid for such Investments, including accrued
interest, or apply such proceeds to the payment of said principal and interest
if and to the extent such proceeds are needed therefor. The Trustee shall not
be deemed responsible for any loss resulting from the purchase and sale of such
Investments on Request unless such loss results from the misconduct or
negligence of the Trustee and upon demand of the Trustee the Company will
reimburse the Trustee for any such loss for which the Trustee is not
responsible.
The Trustee shall restore to Deposited Cash or Replacement Funds, as
the case may be, out of payments received by it for that purpose under the
provisions of Section 4.04(B)(1), an amount equal to any expenses reasonably
incurred in connection with any purchase or sale of Investments and also an
amount equal to any loss of principal incident to the sale or redemption of any
Investments for a sum less than the amount paid therefor, including accrued
interest.
The Company, if not to the knowledge of the Trustee in Default, shall
be entitled to receive any interest allowed as provided in the first paragraph
of this Section and any interest (in excess of accrued interest paid from
Deposited Cash at the time of purchase) or other profit which may be realized
from any sale or redemption of Investments.
SECTION 8.05. Trustee Not Liable for Delivery Delays or Defects in
Equipment or Title. The Trustee shall not be liable to anyone for any delay in
the delivery of any of the Trust Equipment, or for any default on the part of
the manufacturers thereof or of the Company, or for any defect in any of the
Trust Equipment or in the title thereto, nor shall anything herein be construed
as a warranty on the part of the Trustee in respect thereof or as a
representation on the part of the Trustee in respect of the value thereof or in
respect of the title thereto or otherwise.
The Trustee may perform its powers and duties with respect to the
delivery and acceptance of the Trust Equipment by or through such attorney,
agents and servants as it shall appoint, and shall be answerable only for its
own acts, negligence and willful defaults and not for the default or misconduct
of any attorney, agent or servant appointed by it in respect thereof with
reasonable care.
- 34 -
39
The Trustee shall be entitled to receive payment of all of its
reasonable expenses and disbursements hereunder, including reasonable counsel
fees, and to receive reasonable compensation for all services rendered by it in
the execution of the trust hereby created, all of which shall be paid by the
Company.
The Trustee in its individual capacity may own, hold and dispose of
Trust Certificates.
Any moneys at any time held by the Trustee or any paying agent
hereunder shall until paid out or invested by the Trustee or any paying agent
as herein provided, be held by it in trust as herein provided for the benefit
of the holders of the Trust Certificates.
SECTION 8.06. Resignation and Removal; Appointment of
Successor Trustee. (a) The Trustee may resign and be discharged of the trust
created by this Agreement by giving 30 days' written notice to the Company and
such resignation shall take effect upon the earlier of 30 days after the
delivery thereof to the Company or upon receipt by the Trustee of an instrument
of acceptance executed by a successor trustee as hereinafter provided in
Section 8.07.
(b) The Trustee may be removed at any time by an instrument in
writing signed by the holders of more than 50% in principal amount of the
Trust Certificates then outstanding, delivered to the Trustee and to the
Company.
(c) If at any time the Trustee shall resign or be removed or
otherwise become incapable of acting or, if at any time a vacancy shall occur
in the office of the Trustee for any other cause, a successor trustee may be
appointed by the holders of more than 50% of the aggregate principal amount of
the then outstanding Trust Certificates by an instrument in writing delivered
to the Company and the Trustee. Until a successor trustee shall be appointed
by the holders of Trust Certificates as herein authorized, the Company by an
instrument in writing executed by order of its Board of Directors shall appoint
a trustee to fill such vacancy. A successor trustee so appointed by the
Company shall immediately and without further act be superseded by a successor
trustee appointed by the holders of Trust Certificates in the manner provided
above. Every successor trustee appointed pursuant to this Section shall be a
national bank, or a bank or trust company organized and doing business under
the laws of the United States of America, any State or territory thereof or of
the District of Columbia, and having capital and surplus of not less than
$250,000,000, if there be such an institution willing, qualified and able to
accept the trust upon reasonable or customary terms.
(d) The Company shall give notice of each resignation, removal or
incapacity of the then Trustee or of a vacancy occurring in the office of the
Trustee for any other cause and of each appointment by the Company of a
successor trustee pursuant to paragraph (c) of this Section by mailing written
notice of such event by first-class mail, postage prepaid, to the holders of
all outstanding Trust Certificates.
- 35 -
40
SECTION 8.07. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 8.06 shall execute,
acknowledge and deliver to the Company and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with like effect as if originally named as Trustee herein; but, nevertheless,
on the written request of the Company or of the successor trustee, upon payment
of its charges then unpaid, the trustee ceasing to act shall execute and
deliver an instrument transferring to such successor trustee all the rights and
powers of the trustee so ceasing to act. Upon request of any such successor
trustee, the Company shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all
such rights and powers. Any trustee ceasing to act shall, nevertheless, retain
a lien upon all property or funds held or collected by such trustee to secure
any amounts then due it pursuant to the provisions of Section 8.05.
SECTION 8.08. Merger or Consolidation of Trustee. Any corporation
qualified under the provisions of Section 8.06 into which the Trustee may be
merged or with which it may be consolidated or any such corporation resulting
from any merger or consolidation to which the Trustee shall be a party or to
which all or substantially all the corporate trust business of the Trustee
shall be transferred shall be the successor of the Trustee hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
SECTION 8.09. Return of Certain Moneys to Company.
Notwithstanding any provision of this Agreement, any moneys paid to the Trustee
which are applicable to the payment of the principal of or interest on any
Trust Certificates which remain unclaimed for two years after the day when such
moneys were due and payable shall then be repaid to the Company upon Request,
and the holders of such Trust Certificates shall thereafter be entitled to look
only to the Company for payment thereof and all liability of the Trustee with
respect to such moneys shall thereupon cease.
ARTICLE NINE
Miscellaneous
SECTION 9.01. Rights Confined to Parties and Holders. Nothing
expressed or implied herein shall be construed to confer upon any person, firm
or corporation, other than the parties hereto and the holders of the Trust
Certificates, any right, remedy or claim under or by reason of this Agreement
or of any term, agreement or condition herein, and all the terms, covenants and
conditions herein shall be for the sole and exclusive benefit of the parties
hereto and their successors and of the holders of the Trust Certificates.
SECTION 9.02. No Recourse. No recourse under this Agreement, or
under the guarantees, endorsed on any Trust Certificate, shall be had against
any person, solely by reason
- 36 -
41
of the fact that he is a stockholder, officer or director of the Company or
Union, as such, by the enforcement of any assessment or by any legal or
equitable proceeding, by virtue of any statute or otherwise; it being expressly
agreed that this Agreement and said guarantees are solely corporate
obligations, and that no personal liability whatever shall attach to or be
incurred by any person, solely by reason of the fact that he is a stockholder,
officer or director of the Company or Union, under or by reason of any of the
terms, agreements or conditions contained in this Agreement or in said
guarantees, or implied therefrom, and that any and all such personal liability,
either at common law or in equity, or by statute or constitution, is hereby
expressly waived as a condition of and consideration for the execution of this
Agreement and said guarantees.
SECTION 9.03. Binding Upon Assigns. Except as otherwise provided
herein, the provisions of this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
assigns.
SECTION 9.04. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been received by the
addressee on the date of actual receipt (if such date is a Business Date,
otherwise on the next Business Date), if transmitted by mail, telex, telecopy
(confirmed by hard copy) or similar transmission, or by hand, addressed as
follows: (a) in the case of the Company, 2001 ▇▇▇▇▇▇ Road, Oakville, Ontario,
Canada L6J 5E1, facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, marked to the attention of the
Controller, or such other address as may hereafter be furnished to the Trustee
in writing by the Company, (b) in the case of Union, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, marked to the
attention of its Treasurer, or such other address as may hereafter be furnished
to the Trustee in writing by Union, (c) in the case of the Trustee, the address
set forth in the definition of Corporate Trust Office in Section 1.01 or such
other address as may hereafter be furnished to the Company and Union in writing
by the Trustee, facsimile: (▇▇▇)▇▇▇-▇▇▇▇, and (d) in the case of any holder
of Trust Certificates, at its address shown on the registry books maintained by
the Trustee or at such other address as such holder may from time to time
furnish to the Trustee for such purpose. An affidavit by any person
representing or acting on behalf of the Company or the Trustee, as to such
mailing, having the registry receipt attached, shall be conclusive evidence of
the giving of such demand, notice or communication.
SECTION 9.05. Effect of Headings; Date Executed; and Governing Law.
(a) The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
(b) This Agreement shall be deemed to have been executed
on the date of the acknowledgment thereof by the officer of the Trustee who
signed it on behalf of the Trustee.
(c) This Agreement shall be governed by the laws of the State of Illinois.
SECTION 9.06. Legal Holidays. In any case where any date for
payment of interest, date for payment of amounts payable under Section 4.04 or
date of maturity of any
- 37 -
42
installment of principal on the Trust Certificates shall not be a Business Day,
then, notwithstanding any other provision of this Agreement or the Trust
Certificates, payment need not be made on such date, but may be made on the
next succeeding Business Day with the same force and effect as if made on such
date for payment of interest, date for payment of amounts payable under Section
4.04 or date of maturity of any installment of principal on the Trust
Certificates, and if payment is made on such next succeeding Business Day no
interest shall accrue on the amount of such payment for the period from and
after such date for payment of interest, or for payment of such amounts or date
of maturity of any installment of principal on the Trust Certificates, as the
case may be, to and including such next succeeding Business Day.
SECTION 9.07. Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
- 38 -
43
IN WITNESS WHEREOF, the Company and the Trustee have caused their
names to be signed hereto by their respective officers thereunto duly
authorized and their respective corporate seals, duly attested, to be hereunto
affixed on the day and year first above written.
▇▇▇▇▇▇ Trust and Savings Bank
Trustee
By _______________________________
Title
Attest:
__________________________
Authorized Officer PROCOR LIMITED
By _______________________________
Title
Attest:
__________________________
Secretary
By _______________________________
Title
Attest:
__________________________
Secretary
- 39 -
44
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On this _____ day of ____, ____, before me personally appeared
_____________________________, to me personally known, who, being by me duly
sworn, says that such person is _______________________ of ▇▇▇▇▇▇ Trust and
Savings Bank, and that said instrument was signed on behalf of said corporation
by authority of its Board of Directors and he acknowledged that the execution of
the foregoing instrument was the free act and deed of said corporation.
___________________________________
Notary Public
[Notarial Seal]
My commission expires: ___________________
- 40 -
45
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On this _____ day of____, ____, before me personally appeared
___________________and ______________________, to me personally known, who,
being by me duly sworn, says that they are ______________________ and
______________________ of PROCOR LIMITED, and that said instrument was signed
on behalf of PROCOR LIMITED by authority of its Directors, and they
acknowledged that the execution of the foregoing instrument was the free act
and deed of PROCOR LIMITED.
___________________________________
Notary Public
[Notarial Seal]
My Commission expires: _____________________
- 41 -