1
Exhibit 4(b)(10)
SIXTH SUPPLEMENTAL INDENTURE
THIS SIXTH SUPPLEMENTAL INDENTURE, dated as of September 10, 1998, is
between UNION TANK CAR COMPANY, a Delaware corporation (the "Company"), and
HARRIS TRUST AND SAVINGS BANK, as trustee (herein called the "Trustee").
PRELIMINARY STATEMENT
The Company and the Trustee have entered into an Indenture, dated as of
January 16, 1997 (as supplemented, the "Indenture"). Section 9.1 of the
Indenture provides that, under certain circumstances, a supplemental indenture
may be entered into by the Company and the Trustee without the consent of any
Holders of the Securities. In accordance with the terms of Section 9.1(6) of
the Indenture, the Company has authorized this Sixth Supplemental Indenture,
which is in the form required by the terms of the Indenture, to provide for the
issuance of a series of medium-term notes to be known as Medium-Term Notes,
Series C (the "Series C MTNs"). This Sixth Supplemental Indenture modifies the
terms and the Indenture insofar as they are applicable to the Securities issued
under the Indenture after the date of this Sixth Supplemental Indenture.
The parties agree that all things necessary to make this Sixth
Supplemental Indenture a valid agreement of the Company and the Trustee and a
valid amendment of and supplement to the Indenture have been done.
NOW, THEREFORE, THIS SIXTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Series C
MTNs issued under the Indenture from and after the date of this Sixth
Supplemental Indenture, as follows:
ARTICLE ONE
DEFINITIONS WITH RESPECT TO SERIES C MEDIUM-TERM NOTES
SECTION 1.1. Indenture Terms. Except as otherwise provided in this Sixth
Supplemental Indenture, all terms used in this Sixth Supplemental Indenture
which are defined in the Indenture, as supplemented, shall have the meanings
assigned to them in the Indenture, as supplemented.
SECTION 1.2. Modifications of Terms. The following defined terms used in
the Indenture shall have the following meanings when used with respect to the
Series C MTNs:
2
(a) "Fixed Rate Notes" means the Series C MTNs bearing a fixed
rate of interest (which may be zero) authenticated and delivered
under the Indenture.
(b) "Floating Rate Notes" means the Series C MTNs bearing a rate
of interest which may vary from time to time in accordance with one
of the interest rate formulas to be set forth in a form of Floating
Rate Note to be established pursuant to a supplemental indenture to
be executed and delivered prior to the initial issuance of any
Floating Rate Notes (or as otherwise established by or pursuant to a
Board Resolution) authenticated and delivered under the Indenture.
(c) "Interest Payment Date" means (i) when used with respect to
a Fixed Rate Note, each March 1 and September 1 (unless otherwise
specified in an officer's certificate), and (ii) when used with
respect to a Floating Rate Note, the dates specified in or
established pursuant to a Board Resolution relating to such Floating
Rate Note, in each case, commencing with the next Interest Payment
Date (unless the Series C MTNs are issued between a Regular Record
Date and an Interest Payment Date, in which event, the first payment
shall be made on the next succeeding Interest Payment Date) and
continuing until principal thereof is paid or made available for
payment.
(d) "Regular Record Date," means (i) when used with respect to
an Interest Payment Date applicable to a Fixed Rate Note, February 15
and August 15 (unless otherwise specified in or established pursuant
to a Board Resolution), and (ii) when used with respect to an
Interest Payment Date applicable to a Floating Rate Note, the day 15
calendar days next preceding an Interest Payment Date (whether or not
a Business Day).
(e) "Series C MTNs" means collectively the Fixed Rate Notes and
the Floating Rate Notes authenticated and delivered under the
Indenture.
(f) "Sixth Supplemental Indenture" means the Sixth Supplemental
Indenture dated as of September 10, 1998, as originally executed by
the Company and the Trustee.
(g) "Stated Maturity," when used with respect to the payment of
principal of a Series C MTN, means nine months or more from the date
of issuance of such Series C MTN as specified in or established
pursuant to a Board Resolution.
-2-
3
ARTICLE TWO
TERMS OF MEDIUM-TERM NOTES, SERIES C
SECTION 2.1. General Terms and Conditions of the Medium-Term Notes,
Series C.
(a) There is hereby authorized a series of Securities designated
the "Medium-Term Notes, Series C", limited in aggregate principal
amount to Seventy Million Dollars ($70,000,000) (except for Series C
MTNs authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Series MTNs pursuant to
Sections 2.8, 2.9 or 2.12 of the Indenture).
(b) The rate at which each of the Series C MTNs shall bear
interest shall be established in or pursuant to a Board Resolution
and may either be a fixed interest rate (which may be zero) or may
vary from time to time in accordance with one of the interest rate
formulas more fully described in the form of Floating Rate Note to be
established pursuant to a supplemental indenture to be executed and
delivered prior to the initial issuance of any Floating Rate Notes
(or otherwise as specified in or established pursuant to a Board
Resolution).
(c) Unless otherwise specified in or established pursuant to a
Board Resolution, the date from which interest shall accrue for each
Series C MTN shall be the date of issuance of the Series C MTNs.
(d) The date, if any, on which any of the Series C MTNs may be
redeemed at the option of the Company shall be established in or
established pursuant to a Board Resolution.
(e) The terms under which any of the Series C MTNs shall be
repaid at the option of the Holder shall be established in or
established pursuant to a Board Resolution.
(f) The Series C MTNs shall be issued as Global Securities under
the Indenture, unless otherwise specified in or pursuant to a Board
Resolution.
(g) Additional terms of the Series C MTNs, if any, shall be
specified in or established pursuant to a Board Resolution.
SECTION 2.2. Form of Fixed Rate Note. The Fixed Rate Notes and the
Trustee's Certificate of Authentication to be endorsed thereon are to be in
substantially the form attached hereto as Exhibit A, unless otherwise specified
in or pursuant to a Board Resolution.
-3-
4
ARTICLE THREE
MISCELLANEOUS
SECTION 3.1. No Modification. This Sixth Supplemental Indenture does not
modify the Indenture in any respect with regard to Securities issued thereunder
prior to the date of this Sixth Supplemental Indenture.
SECTION 3.2. Counterparts. This instrument may be executed in
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the Company and the Trustee have caused this Sixth
Supplemental Indenture to be duly executed by their respective officers
thereunto duly authorized and the seal of the Company and the Trustee duly
attested to be hereunto affixed all as of the date and year first above
written.
UNION TANK CAR COMPANY
[SEAL] By: /s/ M.J. Garrette
---------------------------------------
Name: M.J. Garrette
Title: Vice President
HARRIS TRUST AND SAVINGS BANK,
as Trustee
[SEAL] By: /s/ J. Bartolini
---------------------------------------
Name: J. Bartolini
Title: Vice President
-4-
5
EXHIBIT A
6
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITORY"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE DEPOSITORY OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY
PAYMENT IS MADE TO THE NOMINEE OF THE DEPOSITORY OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE NOMINEE OF THE
DEPOSITORY, HAS AN INTEREST HEREIN.
REGISTERED REGISTERED
UNION TANK CAR COMPANY
MEDIUM-TERM NOTE, SERIES C
No. ___ CUSIP __________
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD OID" (COMPUTED UNDER THE DESIGNATED METHOD) BELOW WILL BE
COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
____% FIXED RATE NOTE
Original Issue Date: Principal Amount: $____________
Interest Accrual Date: Maturity Date:
Issue Price: ___% Interest Payment Period:
Initial Redemption Date(s): Interest Payment Dates: March 1 and
September 1, commencing March 1, 1999
Initial Redemption Price(s): Total Amount of OID:
Repayment Date(s): Yield to Maturity:
Repayment Price(s): Initial Accrual Period OID:
Union Tank Car Company, a Delaware corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to Cede & Co., or registered
assigns, the principal sum of $__________ on the "Maturity Date," as set forth
above, and to pay interest thereon as described on the reverse hereof.
The principal of (and premium, if any) and interest on this Note are
payable by the Company in U.S. dollars.
7
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been manually executed
by or on behalf of the Trustee under the Indenture, this Note shall not be
entitled to any benefit under the Indenture, or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, Union Tank Car Company has caused this Note to be duly
executed under its corporate seal.
Dated: September __, 1998
UNION TANK CAR COMPANY
(Seal)
By:_____________________________________
[Chairman, President, a Vice President or
Treasurer]
ATTEST:______________________________
[Secretary or Assistant Secretary]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein, described in the
within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK
as Trustee
By:_____________________________________
Authorized Officer
-2-
8
UNION TANK CAR COMPANY
MEDIUM-TERM NOTE, SERIES C
1. This Note is one of a duly authorized issue of debentures, notes or
other evidences of indebtedness (hereinafter called the "Debt Securities") of
the Company of the series hereinafter specified, all such securities issued and
to be issued under an Indenture dated as of January 16, 1997, between the
Company and Harris Trust and Savings Bank, as Trustee (as amended, the
"Indenture"), to which Indenture and all other indentures supplemental thereto
reference is hereby made for a statement of the rights and limitations of
rights thereunder of the Holders of the Debt Securities and of the rights,
obligations, duties and immunities of the Trustee for each series of Debt
Securities and of the Company, and the terms upon which the Debt Securities are
and are to be authenticated and delivered.
As provided in the Indenture, the Debt Securities may be issued in one or
more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest, if any, at
different rates, may be subject to different redemption provisions, if any, may
be subject to different sinking, purchase or analogous funds, if any, may be
issued in different denominations, may be issued in different currencies, may
be issued in global form, may be issuable upon the exercise of warrants, if
any, may be subject to different covenants and Events of Default and may
otherwise vary as in the Indenture provided or permitted.
This Note is one of a series of the Debt Securities designated therein as
Medium-Term Notes, Series C (the "Notes"). The Notes of this series may be
issued at various times with different maturity dates and different principal
repayment provisions, may bear interest at different rates, may be payable in
different currencies and may otherwise vary, all as provided in the Indenture.
2. A. The Regular Record Date with respect to any Interest Payment Date
(as defined below) shall be the date 15 calendar days immediately preceding
such Interest Payment Date, whether or not such date shall be a Business Day.
Interest which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall, unless otherwise provided, be paid to the person
in whose name the Note is registered at the close of business on the Regular
Record Date for such Interest; provided, however, that interest payable on the
Interest Payment Date occurring at Maturity will be to the person to whom
principal shall be payable; provided, further, that the first payment of
interest on any Note with an Original Issue Date between a Regular Record Date
and an Interest Payment Date will be made on the Interest Payment Date
following the next succeeding Regular Record Date to the registered owner on
such next succeeding Regular Record Date. Notwithstanding the foregoing, any
interest that is payable but not punctually paid or duly provided for on any
Interest Payment Date shall forthwith cease to be payable to the registered
holder thereof on such Regular Record Date, and (i) may be paid to the person
in whose name such Note is registered on the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof having been given to the Holder of such Note not less
than ten days prior to such Special Record Date, or (ii) may be paid at any
time and in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Debt Securities of that series may be
listed, as more fully provided in the Indenture. "Business Day" means any day,
other than a Saturday or Sunday, that meets each of the following applicable
requirements: the day is (a) not a day on which banking institutions are
authorized or required by law or regulation to be closed in The City of New
York of the City of Chicago, and (b) with respect to a LIBOR Note, a London
Banking Day. "London Banking Day" means any day on which dealings
-3-
9
in deposits in U.S. Dollars are transacted in the London interbank market. In
connection with any calculations, all percentages will be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point, with
five one-millionths of a percentage point being rounded upwards and all
currency amounts used and resulting from such calculations on the Notes will be
rounded to the nearest one-hundredth of a unit (with .005 of a unit being
rounded upwards).
B. The Company promises to pay interest on the principal amount at the
rate per annum shown on the face hereof until the principal amount hereof is
paid or duly made available for payment. Unless otherwise provided on the face
hereof, the Company will pay interest semiannually on March 1 and September 1
(each an "Interest Payment Date"), commencing with the Interest Payment Date
immediately following the Original Issue Date shown on the face hereof and at
Maturity. Interest will accrue from and including the most recent Interest
Payment Date or, if no interest has been paid or duly provided for, from and
including the Original Issue Date on the face hereof, to, but excluding the
Interest Payment Date. The amount of such interest payable on any Interest
Payment Date shall be computed on the basis of a 360-day year comprised of
twelve 30-day months.
3. Payments in U.S. Dollars of interest (other than interest payable at
Stated Maturity or upon earlier redemption or repayment) will be made by
mailing a check to the Holder at the address of the Holder appearing on the
Debt Security Register (as defined in the Indenture) on the applicable Record
Date. Notwithstanding the foregoing, a Holder of U.S. $10,000,000 or more in
aggregate principal amount of Notes of like tenor and terms shall be entitled
to receive such payments in U.S. Dollars by wire transfer of immediately
available funds, but only if appropriate payment instructions have been
received in writing by the Company's Paying Agent not less than 15 days prior
to the applicable Interest Payment Date. Principal and any premium and
interest payable at Stated Maturity or upon earlier redemption or repayment
will be paid upon surrender of such Note at the office of the Paying Agent in
the City of New York or at such other place or agency as the Company may
designate (i) in immediately available funds or (ii) if appropriate payment
instructions have been received in writing by the Company's Paying Agent not
less than 15 days, or such lesser time as is acceptable to the Paying Agent,
prior to the applicable maturity, redemption or repayment date, by electronic
transfer of immediately available funds.
4. If specified on the face hereof, this Note may be redeemed, as a whole
or from time to time in part, at the option of the Company, on not less than 30
nor more than 60 days' prior notice given as provided in the Indenture, on any
Redemption Date(s) and at the related Redemption Price(s) set forth on the face
hereof. The Company shall give the Trustee notice at least 45 days in advance
of the date fixed for redemption as to the aggregate principal amount of
Outstanding Notes to be redeemed. Outstanding Notes may be redeemed in part in
multiples equal to the minimum authorized denomination for Outstanding Notes of
such Series or any multiple thereof. Thereupon the Trustee shall select, in
such manner as in its sole discretion it shall deem appropriate and fair, the
Outstanding Notes or portions thereof to be redeemed, and shall as promptly as
practicable notify the Company of the Outstanding Notes or portions thereof so
selected. In the event of redemption of this Note in part only, a new Note or
Notes of this series of like tenor or terms for the unredeemed portion hereof
will be issued to the Holder hereof upon the cancellation hereof.
5. If specified on the face hereof, this Note will be subject to repayment
at the option of the Holder hereof on the Repayment Date(s) and at the
Repayment Price(s) indicated on the face hereof. If no such Repayment Date is
set forth on the face hereof, this Note may not be so repaid at the option of
the Holder hereof prior to Stated Maturity. On each Repayment Date, if any,
this Note shall be repayable in whole or in part at the option of the Holder
hereof at the applicable Repayment Price set forth on the
-4-
10
face hereof, together with interest thereon to the date of repayment. For this
Note to be repaid in whole or in part at the option of the Holder hereof, the
Paying Agent in The City of New York must receive not less than 30 or more than
45 days prior to the Repayment Date (i) the Note with the form entitled "Option
to Elect Repayment" below duly completed or (ii) a telegram, telex, facsimile
transmission or a letter from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial bank or a
trust company in the United States of America setting forth the name of the
Holder of the Note, the principal amount of the Note, the certificate number of
the Note or a description of the Note's tenor or terms, the principal amount of
the Note to be prepaid, a statement that the option to elect repayment is being
exercised thereby and a guarantee that the Note to be prepaid with the form
entitled "Option to Elect Repayment" on the reverse of the Note duly completed
will be received by such Paying Agent no later than five Business Days after
the date of such telegram, telex, facsimile transmission or letter and such
Note and form duly completed are received by such Paying Agent by such fifth
Business Day. Exercise of such repayment option shall be irrevocable. Such
option may be exercised by the Holder for less than that entire principal
amount provided that the principal amount remaining outstanding after repayment
is an authorized denomination.
6. If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all of the Notes and the interest accrued thereon,
if any, may be declared due and payable in the manner and with the effect
provided in the Indenture. If the principal of any Original Issue Discount
Note is declared to be due and payable, the amount of principal due and payable
with respect to such Note shall be limited to the sum of the aggregate
principal amount of such Note multiplied by the Issue Price (expressed as a
percentage of the aggregate principal amount) plus the original issue discount
accrued from the date of issue to the date of declaration, which accrual shall
be calculated using the "interest method" (computed in accordance with
generally accepted accounting principles) in effect on the date of declaration.
An Original Issue Discount Note is (i) a Note, including any zero-coupon Note,
which has a stated redemption price at maturity that exceeds its Issue Price by
at least 0.25% of its Principal Amount, multiplied by the number of full years
from the Original Issue Date to the Maturity Date for such Note and (ii) any
other Note designated by the Company as issued with an original issue discount
for United States federal income tax purposes.
7. With the consent of the Holders of greater than 50% in aggregate
principal amount of the Outstanding Notes of each series affected by such
supplemental indenture, the Company and the Trustee may enter into an indenture
or indentures supplemental to the Indenture for the purpose of adding any
provisions to or changing the provisions of the Indenture or any supplement
thereto or of modifying in any manner the rights of the Holders of the Notes of
each series under the Indenture; provided, however, that without the consent of
each Holder affected, no such supplemental indenture shall (a) reduce the
amount of Debt Securities whose Holders must consent to an amendment or waiver,
(b) change the rate of or change the time for payment of interest on any Debt
Security, (c) change the Principal of or change the Stated Maturity of any Debt
Security, (d) reduce any premium payable upon the redemption of any Debt
Security, (e) waive a Default in the payment of the Principal of or interest on
any Debt Security, (f) make any Debt Security payable in money other than that
stated in the Debt Security, or (g) make any change to certain provisions of
the Indenture.
The Company and the Trustee may enter into an indenture or indentures
supplemental to the Indenture without the consent of the Holders for limited
purposes specified in the Indenture.
The Holders of greater than 50% in aggregate principal amount of the
Outstanding Notes may on behalf of the Holders of all the Notes waive any past
default or Event of Default under the Indenture
-5-
11
and its consequences except a default in the payment of principal of or
premium, if any, or interest on the Notes. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
8. Notwithstanding any other provision in this Note or the Indenture, the
Holder of this Note shall have the rights, which are absolute and
unconditional, to receive payment of the principal of, premium, if any, and
interest, if any, on such Note on the respective Stated Maturities expressed in
such Note (or in the case of redemption or repayment, on the date for
redemption or repayment, as the case may be) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
9. The authorized denominations of Notes will be U.S. $1,000 and any
larger amount that is an integral multiple of U.S. $1,000.
10. Notes to be exchanged shall be surrendered at any office or agency
maintained by the Company for such purpose, and the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor the Notes which
the Holder making the exchange shall be entitled to receive. As provided in
the Indenture and subject to certain limitations therein set forth, the
transfer of a Note is registrable at the Debt Security Registrar (as defined in
the Indenture), maintained by the Company for this series (initially, Harris
Trust and Savings Bank). Upon due presentment for registration of transfer of
any Note at any such office or agency, the Company shall execute and register
and the Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Note or Notes of authorized denominations for an equal
aggregate principal amount. Such new Note or Notes will be delivered at the
office of the Debt Security Registrar in The City of New York, or mailed, at
the request, risk and expense of the transferee or transferees, to the address
or addresses shown in the Debt Security Register for such transferee or
transferees.
All Notes presented to a Debt Security Registrar for registration of
transfer shall be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company and such Debt
Security Registrar duly executed by the registered Holder or his attorney duly
authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith.
The Company shall not be required to issue, exchange or register a
transfer of (a) any Notes of any series for a period of 15 days next preceding
the mailing of a notice of redemption of Notes of such series and ending at the
close of business on the day of the mailing of a notice of redemption of Notes
of such series so selected for redemption, or (b) any Notes selected, called or
being called for redemption except, in the case of any Notes to be redeemed in
part, the portion thereof not so to be redeemed.
Prior to due presentment of a Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
person in whose name a Note is registered as the owner hereof for all purposes
whether or not such Note be overdue, and neither the Company, the Trustee nor
any such agent shall be affected by notice to the contrary.
-6-
12
11. Certain of the Company's obligations under the Indenture with respect
to Notes of any series may be terminated if the Company irrevocably deposits
with the Trustee money or eligible instruments sufficient to pay and discharge
the entire indebtedness on all Notes of such series, as described in the
Indenture.
12. Unless otherwise defined herein, all terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture.
13. The Indenture, the Notes and any coupons pertaining hereto shall be
construed in accordance with and governed by the laws of the State of Illinois.
-7-