Exhibit 4(b)
================================================================================
EXSIF WORLDWIDE, INC.
___________________________
INDENTURE AND SECURITY AGREEMENT
Dated September 28, 2000
Among
BANK ONE, N.A.,
Trustee,
EXSIF WORLDWIDE, INC.,
Issuer,
and
UNION TANK CAR COMPANY,
Guarantor,
___________________________
================================================================================
$180,000,000
7.68% Senior Secured Notes Due 2015
TABLE OF CONTENTS
-----------------
ARTICLE I
---------
DEFINITIONS
-----------
Page
----
Section 1.01 Definitions................................................................................... 5
Section 1.02 Compliance Certificates and Opinions.......................................................... 11
Section 1.03 Form of Documents Delivered to Trustee........................................................ 12
Section 1.04 Acts of Noteholders........................................................................... 12
ARTICLE II
----------
AMORTIZATION OF PRINCIPAL; INTEREST; REDEMPTION
-----------------------------------------------
Section 2.01 Principal and Interest Payments; Maturity; Redemption......................................... 14
Section 2.02 Form, Execution and Characteristics of Notes.................................................. 15
Section 2.03 Authentication of Notes....................................................................... 16
Section 2.04 Registration of Transfer and Exchange of Notes................................................ 17
Section 2.05 Persons Deemed Owners......................................................................... 17
Section 2.06 Cancellation.................................................................................. 17
Section 2.07 Replacement of Lost Notes..................................................................... 17
ARTICLE III
-----------
COLLATERAL
----------
Section 3.01 Additional and Substituted Equipment and Related Leasehold Interests Subject Hereto........... 18
Section 3.02 Termination of Security....................................................................... 18
Section 3.03 Indemnity..................................................................................... 19
Section 3.04 Substitution and Replacement of Collateral.................................................... 19
Section 3.05 Maintenance of Equipment; Casualty Occurrences................................................ 21
Section 3.06 Possession of Collateral...................................................................... 22
Section 3.07 Marking of Equipment.......................................................................... 22
Section 3.08 Modifications and Improvements................................................................ 22
ARTICLE IV
----------
EVENTS OF DEFAULT AND REMEDIES
-----------------------------
Section 4.01 Events of Default............................................................................. 23
-i-
Page
----
Section 4.02 Incidents of Sale of Collateral.................................................................. 25
Section 4.03 Judicial Proceedings Instituted by Trustee....................................................... 25
Section 4.04 Control by Noteholders........................................................................... 26
Section 4.05 Waivers of Default............................................................................... 26
Section 4.06 Undertaking to Pay Court Costs................................................................... 27
Section 4.07 Unconditional Right of Holders of Notes To Sue for Principal, Interest and Make-Whole Amount..... 27
Section 4.08 Remedies......................................................................................... 28
Section 4.09 Application of Proceeds.......................................................................... 28
Section 4.10 Obligations of Company and the Guarantor Not Affected by Remedies................................ 29
Section 4.11 Company To Deliver Collateral to Trustee......................................................... 29
Section 4.12 Limitations on Suits by Holders of Notes......................................................... 29
Section 4.13 Remedies Cumulative; Subject to Mandatory Requirements of Law.................................... 30
ARTICLE V
---------
CERTAIN AGREEMENTS OF THE COMPANY
---------------------------------
Section 5.01 Discharge of Liens............................................................................... 30
Section 5.02 Further Assurances............................................................................... 30
Section 5.03 Payment of Expenses; Financing Statements........................................................ 30
ARTICLE VI
----------
ADDITIONAL AGREEMENTS OF THE GUARANTOR
--------------------------------------
AND THE COMPANY
---------------
Section 6.01 Guarantee........................................................................................ 31
Section 6.02 Compliance with Law.............................................................................. 35
Section 6.03 Insurance........................................................................................ 36
Section 6.04 Maintenance of Properties........................................................................ 37
Section 6.05 Payment of Taxes and Claims...................................................................... 37
Section 6.06 Maintenance of Corporate Existence............................................................... 37
Section 6.07 Consolidation, Merger or Sale of Assets Permitted................................................ 37
ARTICLE VII
-----------
CONCERNING THE HOLDERS OF NOTES
-------------------------------
Section 7.01 Company to Furnish Trustee with Names and Addresses of Noteholders............................... 38
-ii-
Page
----
Section 7.02 Preservation of Information; Communications to Noteholders... 39
Section 7.03 Financial Statements and Other Information................... 39
Section 7.04 Inspection................................................... 40
ARTICLE VIII
------------
THE TRUSTEE
-----------
Section 8.01 Certain Duties and Responsibilities.......................... 41
Section 8.02 Notice of Defaults........................................... 42
Section 8.03 Certain Rights of Trustee.................................... 42
Section 8.04 Not Responsible for Recitals or Issuance of Notes............ 43
Section 8.05 May Hold Notes............................................... 43
Section 8.06 Money Held by Trustee........................................ 44
Section 8.07 Compensation and Reimbursement............................... 44
Section 8.08 Trustee Required; Eligibility................................ 45
Section 8.09 Resignation and Removal; Appointment of Successor............ 45
Section 8.10 Acceptance of Appointment by Successor....................... 47
Section 8.11 Merger, Conversion, Consolidation or Succession to Business.. 47
Section 8.12 Maintenance of Agencies...................................... 47
Section 8.13 Money for Note Payments to Be Held by Trustee................ 49
ARTICLE IX
----------
SUPPLEMENTS TO INDENTURE
------------------------
Section 9.01 Supplements to Indenture Without Consent of Noteholders...... 49
Section 9.02 Supplements to Indenture with Consent of Noteholders......... 50
Section 9.03 Documents Affecting Immunity or Indemnity.................... 50
Section 9.04 Execution of Supplements to Indentures....................... 51
Section 9.05 Effect of Supplements to Indenture........................... 51
Section 9.06 Reference in Notes to Supplements to Indentures.............. 51
ARTICLE X
---------
MISCELLANEOUS
-------------
Section 10.01 Rights Confined to Parties and Holders...................... 51
Section 10.02 No Recourse................................................. 51
Section 10.03 Binding Upon Assigns........................................ 51
Section 10.04 Notices..................................................... 52
-iii-
Page
----
Section 10.05 Effect of Headings; Date Executed; and Governing Law..... 52
Section 10.06 Legal Holidays........................................... 52
Section 10.07 Counterparts............................................. 52
Schedule 1 - Description of Equipment
Schedule 2 - Insurance Provisions
-iv-
This INDENTURE AND SECURITY AGREEMENT (this "Indenture") dated September
---------
28, 2000, among BANK ONE, N.A., solely in its capacity as Trustee, a national
banking association organized and existing under the laws of the United States
of America (the "Trustee"), EXSIF WORLDWIDE, INC., a Delaware corporation (the
-------
"Company"), and UNION TANK CAR COMPANY, a Delaware corporation (the
- --------
"Guarantor");
---------
W I T N E S S E T H:
WHEREAS EXSIF Worldwide, Inc. 7.68% Senior Secured Notes due 2015 (the
"Notes") are to be issued and sold, at a price not less than their principal
- ------
amount, in an aggregate principal amount not exceeding $180,000,000;
WHEREAS, the Company's prompt payment when due of the principal of the
Notes and interest thereon and the Make-Whole Amount, if any, all in accordance
with the terms of the Notes, has been unconditionally and irrevocably guaranteed
by the Guarantor; and
WHEREAS the text of the Notes is to be substantially in the following form:
[Form of Note]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS. THIS NOTE MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR EXEMPTION THEREFROM
UNDER THE FEDERAL OR STATE SECURITIES LAWS. THIS NOTE IS SUBJECT TO THE TERMS
AND CONDITIONS OF AN INDENTURE AND SECURITY AGREEMENT AMONG EXSIF WORLDWIDE,
INC., UNION TANK CAR COMPANY AND BANK ONE, N.A., AS TRUSTEE, AS MORE FULLY SET
FORTH HEREIN.
7.68% SENIOR SECURED NOTE DUE 2015
Secured by certain ISO Tank Containers and Wheeled Chassis
and the Leasehold Interests Relating Thereto
No. S-_____ Chicago, Illinois
PPN 302228 AA9 , 2000
$______________
EXSIF WORLDWIDE, INC., a Delaware corporation (the "Company"), hereby
-------
promises to pay to _______________________________, or registered assigns, the
principal sum of $____________ in lawful currency of the United States of
America, in installments payable on the dates set forth in Exhibit A hereto,
commencing October 1, 2001, and thereafter to and including October 1, 2015,
each such installment to be in an amount equal to the corresponding
percentage, if any, of the remaining principal amount hereof set forth in
Exhibit A hereto, together with interest thereon on the amount of such principal
amount remaining unpaid from time to time from and including the date hereof
until such principal amount shall be due and payable, payable commencing on
April 1, 2001 and on each October 1 and April 1 thereafter to the maturity date
hereof at the rate of 7.68% per annum (computed on the basis of a 360-day year
of twelve 30-day months). Interest on any overdue principal, any overdue Make-
Whole Amount, and (to the extent legally enforceable) on overdue interest shall
be paid from the due date thereof at the rate of 9.68% per annum (computed on
the basis of a 360-day year of twelve 30-day months), payable on demand.
Payments with respect to the principal amount hereof, Make-Whole Amount, if
any, and interest thereon shall be payable in U.S. dollars in immediately
available funds at the principal bond and trustee administration office of Bank
One, N.A. (the "Trustee"), or as otherwise provided in the Indenture and
-------
Security Agreement dated September 28, 2000, among the Company, Union Tank Car
Company, a Delaware corporation (the "Guarantor"), and the Trustee (the
---------
"Indenture"). Each such payment shall be made on the date such payment is due
- ----------
and without any presentment or surrender of this Note. Whenever the date
scheduled for any payment to be made hereunder or under the Indenture shall not
be a Business Day, then such payment need not be made on such scheduled date but
may be made on the next succeeding Business Day with the same force and effect
as if made on such scheduled date and (provided such payment is made on such
next succeeding Business Day) no interest shall accrue on the amount of such
payment from and after such scheduled date to the time of such payment on such
next succeeding Business Day.
Each holder hereof, by its acceptance of this Note, agrees that each
payment received by it hereunder shall be applied, first, to the payment of
-----
accrued but unpaid interest on this Note then due, second, to the payment of any
------
Make-Whole Amount then due, and third, to the payment of the remaining
-----
outstanding principal amount of this Note.
This Note is one of the Notes referred to in the Indenture and those
certain separate Note Purchase Agreements, dated September 28, 2000, among the
Company, the Guarantor and the respective Purchasers named therein (the "Note
----
Purchase Agreements") which have been or are to be issued by the Company
- -------------------
pursuant to the terms of the Indenture and the Note Purchase Agreements.
Reference is hereby made to the Indenture for a statement of the rights of the
holder of, and the nature and extent of the security for, this Note, as well as
for a statement of the terms and conditions of the Indenture, to all of which
terms and conditions in the Indenture each holder hereof agrees by its
acceptance of this Note.
This Note is subject to redemption, in whole or in part, at any time upon
at least 30 days advance notice at a price equal to the sum of (a) accrued and
unpaid interest to the date of redemption on the principal amount of this Note
to be redeemed, (b) the principal amount of this Note being redeemed and (c) the
Make-Whole Amount, if any. The holder hereof, by its acceptance of this Note,
agrees to be bound by said provisions.
This Note is a registered Note and is transferable, as provided in the
Indenture, only upon surrender of this Note for registration of transfer duly
endorsed by, or accompanied by a written
-2-
statement of transfer duly executed by, the registered holder hereof or his
attorney duly authorized in writing, and accompanied by an opinion of counsel
reasonably satisfactory to the Company, that such transfer may properly be made
without registration under the Securities Act of 1933, as amended. Prior to the
due presentation for registration of transfer of this Note, the Company and the
Trustee may deem and treat the registered holder of this Note as the absolute
owner and holder hereof for the purpose of receiving payment of all amounts
payable with respect hereto and for all other purposes and shall not be affected
by any notice to the contrary.
The Guarantor, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, unconditionally and irrevocably
guarantees to the registered holder of this Note the prompt payment when due of
the principal of this Note and interest thereon and the Make-Whole Amount, if
any, specified in this Note, with interest on any overdue principal and on any
overdue interest, to the extent legally enforceable, at the rate specified in
this Note, all in accordance with the terms of this Note and the Indenture.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
In Witness Whereof, each of the Company and the Guarantor has caused this
Note to be executed by one of its authorized officers as of the date hereof.
EXSIF WORLDWIDE, INC.
By:_______________________________
Name:
Title:
Attest:
_______________________________
Secretary
-3-
PROMPT PAYMENT HEREOF WHEN DUE
GUARANTEED BY:
UNION TANK CAR COMPANY
By:_______________________________
Name:
Title:
Attest:
_______________________________
Secretary
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Notes referred to in the within-mentioned Indenture.
BANK ONE, N.A., as Trustee
By:_______________________________
Authorized Officer
[Insert Exhibit A - Amortization Schedule]
WHEREAS, it is desired to secure to the holders of the Notes the payment of
the principal thereof when due, whether by declaration or otherwise, and
interest thereon and the Make-Whole Amount, if any, as hereinafter provided;
GRANTING CLAUSE
NOW, THEREFORE, THIS INDENTURE AND SECURITY AGREEMENT WITNESSETH, that, to
secure the prompt payment of the principal of and interest on and Make-Whole
Amount, if any, on and all other amounts due with respect to the Notes from time
to time outstanding hereunder and the performance and observance by the Company
of all the agreements, covenants and provisions herein and in the Notes all for
the benefit of the holders of the Notes, and for the uses and purposes and
subject to the terms and provisions hereof, and in consideration of the premises
and of the covenants herein contained, and of the acceptance of the Notes by the
holders thereof, the Company does hereby assign, transfer, mortgage and pledge
and confirm unto the Trustee, its successors and assigns, for the security and
benefit of the holders of the Notes from time to time, a security interest in
and mortgage lien on all right, title and interest of the Company in and to the
following described property, rights, interests and privileges (which
collectively, including all property hereafter required to be subjected to the
-4-
Lien of this Indenture by any instrument supplemental hereto, being herein
called the "Indenture Estate"), to wit:
----------------
(1) the Equipment and all substitutions therefor, all as more
particularly described in this Indenture and in any Indenture Supplements
executed and delivered with respect to the Equipment or any such substitutions
therefor, as provided in this Indenture;
(2) all monies and securities now or hereafter paid or deposited or
required to be paid or deposited with the Trustee pursuant to any term of this
Indenture, or required to be held by the Trustee hereunder, including, without
limitation, all Permitted Investments held by the Trustee from time to time;
(3) the Leasehold Interests and all substitutions therefor, all as
more particularly described in this Indenture and in any Indenture Supplements
executed and delivered with respect to the Leasehold Interests or any
substitutions therefor; and
(4) all proceeds of the foregoing.
HABENDUM CLAUSE
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Trustee, its successors and assigns, in trust for the benefit and security of
the holders of the Notes from time to time, without any priority of any one Note
over any other Note, and for the uses and purposes, and subject to the terms and
provisions, set forth in this Indenture.
The Company agrees that at any time and from time to time, upon the written
request of the Trustee, the Company will promptly and duly execute and deliver
or cause to be executed and delivered any and all such further instruments and
documents as the Trustee may reasonably deem to be necessary in order to obtain
the full benefits of this assignment and of the rights and powers herein
granted.
The Company does hereby warrant and represent that it has not assigned or
pledged, and hereby covenants that it will not assign or pledge, so long as the
assignment hereunder shall remain in effect, any of its right, title or interest
hereby assigned, to anyone other than the Trustee.
IT IS HEREBY COVENANTED AND AGREED by and among the parties hereto as
follows:
ARTICLE I
Definitions
-----------
Section 1.01 Definitions. The following terms (except as otherwise
-----------
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture shall have the respective meanings hereinafter specified:
-5-
Affiliate of any Person shall mean any Person which, directly or
---------
indirectly, controls or is controlled by, or is under common control with,
such Person. For the purposes of this definition, control (including
controlled by and under common control with), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such
Person, 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, so long as any Note is
outstanding, a city and state in which the Corporate Trust Office of the
Trustee is located.
Casualty Occurrence shall have the meaning set forth in Section 3.05
-------------------
hereof.
Collateral shall mean all Equipment, Leasehold Interests and all
----------
monies and securities at the time subject to the terms of this Indenture.
Company shall mean EXSIF Worldwide, Inc., a Delaware corporation
-------
(whose chief place of business and chief executive office is currently
located at 225 West Washington Street, 19/th/ Floor, Chicago, Illinois
60606), and any successor or successors to it complying with the provisions
of Section 6.07.
Corporate Trust Office shall mean the principal office of the Trustee,
----------------------
at which the corporate trust business of the Trustee shall, at the time in
question, be administered, which office is, on the date of execution of
this Indenture, located at 1 Bank One Plaza, Suite IL10126, Chicago,
Illinois 60670.
Cost shall mean the actual cost of Equipment to the Company.
----
Default shall mean:
-------
(i) any Event of Default; and
(ii) any event or condition, the occurrence or existence of
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.
Environmental Laws shall mean any and all federal, state, local, and
------------------
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the
-6-
environment, including but not limited to those related to hazardous
substances or wastes, air emissions and discharges to waste or public
systems.
Equipment shall mean the ISO tank containers and wheeled chassis
---------
described on Schedule 1 hereto and having an aggregate Cost of not less
----------
than $240,000,000.
Event of Default shall mean any event specified in Section 4.01 to be
----------------
an Event of Default.
GAAP shall mean generally accepted accounting principles as in effect
----
from time to time in the United States of America.
Guarantor shall mean Union Tank Car Company, a Delaware corporation
---------
(whose chief place of business and chief executive office is currently
located at 225 West Washington Street, Chicago, Illinois 60606), and any
successor or successors to it complying with the provisions of Section
6.07.
The word "holder", when used with respect to Notes, shall include the
------
plural as well as the singular number.
Indebtedness shall mean, with respect to the Company on any date of
------------
determination (without duplication), (i) the principal of and premium (if
any) in respect of indebtedness for borrowed money, (ii) the principal of
and premium (if any) in respect of obligations evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations in
respect of letters of credit or other similar instruments (including
obligations with respect to letters of credit securing obligations (other
than obligations described in clauses (i), (ii) and (v)) entered into in
the ordinary course of business to the extent that such letters of credit
are not drawn upon or, if and to the extent drawn upon, such drawing is
reimbursed no later than the third business day following receipt of a
demand for reimbursement following payment on the letter of credit), (iv)
all obligations to pay the deferred and unpaid purchase price of property
or services (other than accounts payable to trade creditors arising in the
ordinary course of business), (v) all capitalized lease obligations, (vi)
all Indebtedness of other Persons secured by a Lien on any asset of the
Company whether or not such Indebtedness is assumed by such Person;
provided, however, that the amount of such Indebtedness shall be the lesser
-------- -------
of (A) the fair market value of such asset at such date of determination or
(B) the amount of such Indebtedness of such other Persons, and (viii) all
Indebtedness of other Persons to the extent guaranteed by the Company. The
amount of Indebtedness at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date.
Independent Engineer shall mean an engineer, appraiser or other expert
--------------------
appointed by the Company and approved by the Trustee in the exercise of
reasonable care, who (a) is in fact independent, (b) does not have any
substantial interest, direct or indirect, in the Company or in any other
obligor on the Notes or in any Affiliate of the Company or
-7-
any such other obligor and (c) is not connected with the Company or any
other obligor on the Notes or any Affiliate of the Company or any such
other obligor as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
Institutional Investor shall mean (a) any original purchaser of a
----------------------
Note, (b) any Noteholder holding more than 5% of the aggregate principal
amount of the Notes then outstanding, and (c) any bank, trust company,
savings and loan association or other financial institution, any pension
plan, any investment company, any insurance company, any broker or dealer,
or any other similar financial institution or entity, regardless of legal
form.
Leasehold Interests shall mean all interests of the Company as lessor
-------------------
under all leases to which the units of Equipment are subject from time to
time, solely to the extent such leases relate to the Equipment.
Liens shall mean, as to any Person, any mortgage, lien, pledge,
-----
adverse claim, charge, security interest or other encumbrance in or on, or
interest or title of any vendor, lessor (excluding lessors under non-
capitalized leases), lender or other secured party to or of such Person
under conditional sale or other title retention agreement or capital lease
with respect to any property or asset of such Person, or the signing or
filing of a financing statement which names such Person as debtor, or the
signing of any security agreement authorizing any other party as the
secured party thereunder to file any financing statement.
Make-Whole Amount shall mean, with respect to any Note, an amount
-----------------
equal to the excess, if any, of the Discounted Value of the Remaining
Scheduled Payments with respect to the Called Principal of such Note over
the amount of such Called Principal. For the purposes of determining the
Make-Whole Amount, the following terms have the following meanings:
Called Principal means, with respect to any Note, the principal
----------------
of such Note that is to be redeemed pursuant to Section 2.01.
Discounted Value means, with respect to the Called Principal of
----------------
any Note, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect to such Called
Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which
interest on the Notes is payable) equal to the Reinvestment Yield with
respect to such Called Principal.
Reinvestment Yield means, with respect to the Called Principal of
------------------
any Note, 0.50% over the yield to maturity implied by (i) the yields
-
reported, as of 10:00 A.M. (New York City time) on the second Business
Day preceding the Settlement Date with respect to such Called
Principal, on the display designated
-8-
as "Page 678" on the Telerate Access Service (or such other display as
may replace Page 678 on Telerate Access Service) for actively traded
U.S. Treasury securities having a maturity equal to the Remaining
Average Life of such Called Principal as of such Settlement Date, or
(ii) if such yields are not reported as of such time or the yields
--
reported as of such time are not ascertainable, the Treasury Constant
Maturity Series Yields reported, for the latest day for which such
yields have been so reported as of the second Business Day preceding
the Settlement Date with respect to such Called Principal, in Federal
Reserve Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded U.S. Treasury securities having a
constant maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date. Such implied yield will be
determined, if necessary, by (a) converting U.S. Treasury bill
-
quotations to bond-equivalent yields in accordance with accepted
financial practice and (b) interpolating linearly between (1) the
- -
actively traded U.S. Treasury security with the duration closest to
and greater than the Remaining Average Life and (2) the actively
-
traded U.S. Treasury security with the duration closest to and less
than the Remaining Average Life.
Remaining Average Life means, with respect to any Called
----------------------
Principal, the number of years (calculated to the nearest one-twelfth
year) obtained by dividing (i) such Called Principal into (ii) the sum
- --
of the products obtained by multiplying (a) the principal component of
-
each Remaining Scheduled Payment with respect to such Called Principal
by (b) the number of years (calculated to the nearest one-twelfth
-
year) that will elapse between the Settlement Date with respect to
such Called Principal and the scheduled due date of such Remaining
Scheduled Payment.
Remaining Scheduled Payments means, with respect to the Called
----------------------------
Principal of any Note, all payments of such Called Principal and
interest thereon that would be due after the Settlement Date with
respect to such Called Principal if no payment of such Called
Principal were made prior to its scheduled due date, provided that if
--------
such Settlement Date is not a date on which interest payments are due
to be made under the terms of the Notes, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount of
interest accrued to such Settlement Date and required to be paid on
such Settlement Date pursuant to Section 2.01.
Settlement Date means, with respect to the Called Principal of
---------------
any Note, the date on which such Called Principal is to be redeemed
pursuant to Section 2.01.
Material Adverse Effect shall mean a material adverse effect on (a)
-----------------------
the business, operations, affairs, financial condition, assets or
properties of the Company or the Guarantor or (b) the ability of the
Company or the Guarantor to perform its obligations under this Indenture,
the Note Purchase Agreement or the Notes, or (c) the validity or
enforceability of this Indenture, the Note Purchase Agreement or the Notes.
-9-
Maturity Date shall mean October 1, 2015.
-------------
Note Purchase Agreement shall mean each of those certain Note Purchase
-----------------------
Agreements, dated September 28, 2000, among the Company, the Guarantor and
the respective original purchasers of the Notes.
Noteholder shall mean the Person in whose name a Note is registered in
----------
the Register.
Notes shall mean the Senior Secured Notes issued hereunder.
-----
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 or the Guarantor, as applicable, which officer is in a position
to know the truth and accuracy thereof.
Opinion of Counsel shall mean an opinion in writing signed by legal
------------------
counsel who shall be acceptable to the Trustee and who may, unless in a
particular instance the Trustee shall otherwise require, be an employee of
or counsel to the Company or the Guarantor, as applicable, or an Affiliate
of the Company or the Guarantor, as applicable. The acceptance by the
Trustee of, and its action on, an Opinion of Counsel shall be sufficient
evidence that such counsel is satisfactory to the Trustee.
Penalty Rate shall mean 2% per annum over the rate specified in the
------------
Notes.
Permitted Investments shall mean 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 of such obligations and which mature
within one year of the date of purchase.
Person shall mean an individual, partnership, corporation, limited
------
liability company, association, trust, unincorporated organization or a
government or agency or political subdivision thereof.
Record Date shall mean with respect to any Scheduled Payment Date, the
-----------
close of business on the March 15 or September 15 (whether or not a
Business Day), as the case may be, next preceding such Scheduled Payment
Date.
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 or the Guarantor, as the case may be.
Responsible Officer shall mean (i) with respect to the initial
-------------------
Trustee, any officer assigned by the Trustee to administer corporate trust
matters; (ii) with respect to any successor Trustee, the chairman or vice-
chairman of the board of directors or trustees, the chairman or vice-
chairman of the executive or standing committee of the board of
-10-
directors or trustees, the president, the chairman of the committee on
trust matters, any vice-president, any second vice-president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer,
the cashier, any assistant cashier, any trust officer or assistant trust
officer, the comptroller and any assistant comptroller; and (iii) with
respect to the Company or the Guarantor, as applicable, the chief financial
officer, principal accounting officer, treasurer or comptroller, and any
other officer with responsibility for the administration of the relevant
portion of this Indenture. Responsible Officer also means, with respect to
any Trustee, any other officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall
be any of the above designated officers, and with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
Scheduled Payment Date shall have the meaning set forth in Section
----------------------
2.01.
SEC shall mean the United States Securities and Exchange Commission.
---
Senior Financial Officer shall mean the chief financial officer,
------------------------
principal accounting officer, treasurer or comptroller of the Company or
the Guarantor, as the case may be.
Subordinated Indebtedness shall mean any Indebtedness of the Company
-------------------------
(whether outstanding on the date of issuance of the Notes or thereafter
incurred) that is subordinate or junior in right of payment to the Notes or
any other senior Indebtedness of the Company pursuant to a written
agreement.
Trustee shall mean Bank One, N.A., solely in its capacity as Trustee,
-------
and, subject to the provisions of Article VII, any successor as trustee
hereunder.
Value, as used herein, shall mean the fair market value thereof.
-----
The words herein, hereof, hereby, hereto, hereunder and words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section, paragraph or subdivision hereof.
Section 1.02 Compliance Certificates and Opinions. Upon any application
------------------------------------
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officer's
Certificate stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional Certificate or opinion need be furnished.
-11-
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to Section 7.03(b)) shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are used;
(c) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as necessary to enable him
or her to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03 Form of Documents Delivered to Trustee. In any case where
--------------------------------------
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any Opinion of Counsel stated to be based on the opinion of other counsel
shall be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04 Acts of Noteholders.
-------------------
(a) Any direction, consent, waiver or other action provided by this
Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed
by such Noteholders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Noteholders
---
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
-12-
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public
or other officer of any jurisdiction authorized to take acknowledgments of
deeds or administer oaths that the Person executing such instrument
acknowledged to him the execution thereof, or by an affidavit of a witness
to such execution sworn to before any such notary or such other officer and
where such execution is by an officer of a corporation or association or a
member of a partnership, on behalf of such corporation, association or
partnership, such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same,
may also be proved in any other reasonable manner which the Trustee deems
sufficient. In the absence of bad faith on the part of the Trustee, an
Officer's Certificate may be deemed to be conclusively proved.
(c) In determining whether the Noteholders of the requisite aggregate
unpaid principal then outstanding have given any direction, consent or
waiver (a "Direction"), under this Indenture, Notes owned by the Company or
---------
any Affiliate of the Company shall be disregarded and deemed not to be
outstanding under this Indenture for purposes of any such determination.
In determining whether the Trustee shall be protected in relying upon any
such Direction, only Notes which the Trustee knows to be so owned shall be
so disregarded. Notwithstanding the foregoing, if any such Person owns 100%
of the Notes outstanding, such Notes shall not be so disregarded as
aforesaid.
(d) The Company may at its option by delivery of an Officer's
Certificate to the Trustee set a record date to determine the Noteholders
entitled to give any consent, request, demand, authorization, direction,
notice, waiver or other Act. Such record date shall be the record date
specified in such Officer's Certificate which shall be a date not more than
30 nor less than 15 days prior to the first solicitation of Noteholders in
connection therewith. If such a record date is fixed, such consent,
request, demand, authorization, direction, notice, waiver or other Act may
be given before or after such record date, but only the Noteholders of
record at the close of business on such record date shall be deemed to be
Noteholders for the purposes of determining whether Noteholders of the
requisite aggregate principal amount then outstanding have authorized or
agreed or consented to such consent, request, demand, authorization,
direction, notice, waiver or other Act, and for that purpose the
outstanding Notes shall be computed as of such record date; provided that
--------
no such consent, request, demand, authorization, direction, notice, waiver
or other Act by the Noteholders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of
this Indenture not later than one year after the record date.
(e) Any direction, consent, waiver or other action by the registered
holder of any Note shall bind the registered holder of every Note issued
upon the transfer thereof or in exchange thereof or in lieu thereof,
whether or not notation of such action is made upon such Note.
-13-
(f) Except as otherwise provided in Section 1.04(c), Notes owned by
or pledged to any Person shall have an equal and proportionate benefit
under the provisions of this Indenture, without preference, priority, or
distinction as among all of the Notes.
ARTICLE II
Amortization of Principal; Interest; Redemption
-----------------------------------------------
Section 2.01 Principal and Interest Payments; Maturity; Redemption. The
-----------------------------------------------------
Notes shall bear interest at 7.68% per annum and shall be payable as follows
(unless payment thereof is accelerated pursuant to Article IV of this
Indenture): principal shall be paid in installments on the dates set forth in
Exhibit A to the form of Note set forth in the third Whereas clause of this
Indenture, commencing October 1, 200l, and thereafter to and including October
1, 2015, each such installment to be in an amount equal to the corresponding
percentage, if any, of the remaining principal amount set forth in Exhibit A to
the form of Note, and interest on the outstanding principal shall be paid in
semiannual installments on April 1 and October 1 in each year (each, a
"Scheduled Payment Date") commencing April 1, 2001. Interest on the Notes shall
----------------------
accrue from the date of original issue and shall be calculated on the basis of a
360-day year of twelve 30-day months. Interest shall be payable on overdue
installments of principal and, to the extent legally enforceable, interest at
the Penalty Rate.
The Company may, at its option, upon notice as provided below, redeem at
any time all, or from time to time any part of, the Notes, in an amount not less
$5,000,000 in the case of a partial redemption, for the sum of (a) accrued
interest to the date of redemption, (b) the principal amount of the Notes being
redeemed and (c) the Make-Whole Amount, if any, determined as of the redemption
date with respect to such principal amount. The Company will give each holder
of Notes written notice of each optional redemption under this Section 2.01 not
less than 30 days and not more than 60 days prior to the date fixed for such
redemption. Each such notice shall specify such date, the aggregate principal
amount of the Notes to be redeemed on such date, the principal amount of each
Note held by such holder to be redeemed (determined in accordance with the
following paragraph), and the interest to be paid on the redemption date with
respect to such principal amount being redeemed, and shall be accompanied by a
certificate of a Senior Financial Officer of the Company as to the estimated
Make-Whole Amount due in connection with such redemption (calculated as if the
date of such notice were the date of the redemption), setting forth the details
of such computation. Two Business Days prior to such redemption, the Company
shall deliver to each holder of Notes a certificate of a Senior Financial
Officer of the Company specifying the calculation of such Make-Whole Amount as
of the specified redemption date.
The Company and the Guarantor acknowledge, and the parties hereto agree,
that each holder of a Note has the right to maintain its investment in the Notes
free from repayment by the Company (except as herein specifically provided for)
and that the provision for payment of a Make-Whole Amount by the Company in the
event that the Notes are redeemed, is intended to provide compensation for the
deprivation of such right under such circumstances.
-14-
In the case of a partial redemption of the Notes, the principal amount of
the Notes to be redeemed shall be allocated among all of the Notes at the time
outstanding in proportion, as nearly as practicable, to the respective unpaid
principal amounts thereof not theretofore called for redemption.
In the case of each redemption of Notes pursuant to this Section 2.01, the
principal amount of each Note to be redeemed shall mature and become due and
payable on the date fixed for such redemption, together with interest on such
principal amount accrued to such date and the applicable Make-Whole Amount, if
any. From and after such date, unless the Company or the Guarantor shall fail
to pay such principal amount when so due and payable, together with interest and
Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall
cease to accrue. Any Note redeemed in full shall be surrendered to the Company
and cancelled and shall not be reissued, and no Note shall be issued in lieu of
any redeemed principal amount of any Note.
The Guarantor will not and will not permit the Company or any other
Affiliate to purchase, redeem, prepay or otherwise acquire, directly or
indirectly, any of the outstanding Notes except (a) upon the payment or
-
redemption of the Notes in accordance with the terms of this Indenture or (b)
pursuant to an offer to purchase made by the Guarantor, the Company or any
Affiliate pro rata to the holders of all Notes at the time outstanding upon the
same terms and conditions. Any such offer shall provide each holder with
sufficient information to enable it to make an informed decision with respect to
such offer, and shall remain open for at least 20 Business Days. If the holders
of more than 25% of the principal amount of the Notes then outstanding accept
such offer, the Guarantor, the Company or the Affiliate making the offer shall
promptly notify the remaining holders of such fact and the expiration date for
the acceptance by holders of Notes of such offer shall be extended by the number
of days necessary to give each such remaining holder at least 10 Business Days
from its receipt of such notice to accept such offer. The Company will promptly
cancel all Notes acquired by it, the Guarantor or any Affiliate pursuant to any
payment, prepayment or purchase of Notes pursuant to any provision of this
Agreement and no Notes may be issued in substitution or exchange for any such
Notes.
Payment of the principal, Make-Whole Amount, if any, and interest on the
Notes shall be made by the Company at the Corporate Trust Office in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts.
Section 2.02 Form, Execution and Characteristics of Notes.
--------------------------------------------
(a) The Notes shall be in substantially the form hereinbefore set
forth.
(b) The Notes shall be signed in the name and on behalf of each of
the Company and the Guarantor by the manual or facsimile signature of one
of its officers and its corporate seal or a facsimile thereof shall be
affixed or imprinted thereon and attested by the manual signature of one of
its officers. In case any officer of the Company or the Guarantor whose
signature, whether facsimile or not, shall appear on any of the Notes shall
cease to be such officer of the Company or the Guarantor, as
-15-
applicable, before the Notes shall have been issued and delivered by the
Company or shall not have been acting in such capacity on the date of the
Notes, such Notes may be adopted by the Company or the Guarantor, as
applicable, 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 Guarantor,
as applicable.
(c) The Notes (i) shall be issuable in denominations of U.S. $1,000
or any multiple thereof; (ii) shall be registered, as to both principal and
interest, in the name of the holders; (iii) shall be transferable in whole
or in part upon presentation and surrender thereof for transfer at the
Corporate Trust Office, accompanied by appropriate instruments of
assignment and transfer, duly executed by the registered holder of the
surrendered Note or by duly authorized attorney, in form satisfactory to
the Trustee; (iv) shall be dated as of the date of issue unless issued in
exchange for another Note bearing unpaid interest from an earlier date, in
which case they shall be dated as of such earlier date; (v) shall entitle
the registered holder to interest from the date thereof; and (vi) shall be
exchangeable for an aggregate principal amount of Notes of authorized
denominations of like tenor and maturity equal to the then unpaid principal
amount of Notes being exchanged.
(d) Intentionally Omitted.
(e) Each Note delivered pursuant to any provision of this Indenture
in exchange or substitution for, or upon the transfer of the whole or any
part, as the case may be, of one or more other Notes shall carry all the
rights to principal and to interest accrued and unpaid and to accrue, which
were carried by the whole or such part, as the case may be, of such one or
more other Notes, and, notwithstanding anything contained in this
Indenture, such Note shall be so dated that neither gain nor loss in
interest or principal shall result from such exchange, substitution or
transfer and a notation of all previous principal payments shall be
endorsed on the reverse side thereof.
The Trustee shall not be required to issue, transfer or exchange Notes
for a period of 10 days next preceding any principal or interest payment
date.
(f) The definitive Notes shall be printed, lithographed, typewritten
or engraved or produced by any combination of these methods, all as
determined by the officer executing such Notes as evidenced by such
execution.
(g) The Notes shall in all respects rank senior to all Subordinated
Indebtedness of the Company. The Notes shall rank pari passu with all
existing and future secured Indebtedness of the Company that by its terms
constitutes senior Indebtedness of the Company. The obligations of the
Guarantor under Section 6.01 hereof shall rank pari passu with all senior
unsecured obligations of the Guarantor.
Section 2.03 Authentication of Notes. The Trustee shall duly authenticate
-----------------------
and deliver Notes in authorized denominations equaling in the aggregate the
aggregate principal amount of the Notes to be issued hereunder.
-16-
Section 2.04 Registration of Transfer and Exchange of Notes. The Trustee
----------------------------------------------
shall cause to be kept at the Corporate Trust Office or the office or agency to
be maintained by it in accordance with the provisions of Section 8.12 a register
(the "Register") in which, subject to such reasonable regulations as it may
--------
prescribe, the Trustee shall provide for the registration of Notes and of
transfers and exchanges of Notes as herein provided. The Trustee shall
initially be the registrar (the "Registrar") for the purpose of registering
---------
Notes and transfers and exchanges of Notes as herein provided.
Upon presentation for registration of transfer of any Note at the Corporate
Trust Office or such other office or agency, the Trustee shall execute,
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes in authorized denominations of a like
aggregate unpaid principal amount.
At the option of a Noteholder, Notes may be exchanged for other Notes of
authorized denominations of a like aggregate unpaid principal amount, upon
surrender of the Notes to be exchanged at any such office or agency. Whenever
any Notes are so surrendered for exchange, the Trustee shall promptly execute,
authenticate and deliver the Notes that the Noteholder making the exchange is
entitled to receive. Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Registrar
duly executed by the Noteholder thereof or its attorney duly authorized in
writing.
No service charge shall be made to a Noteholder for any registration of
transfer or exchange of Notes, but the Trustee shall require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Notes.
All Notes surrendered for registration of transfer and exchange shall be
canceled and subsequently destroyed by the Trustee. The Trustee shall provide
the Company with written certification as to the destruction of all such Notes.
Section 2.05 Persons Deemed Owners. Prior to due presentation of a Note
---------------------
for registration of transfer, the Trustee, the Registrar, and any paying agent
of the Trustee may treat the Person in whose name any Note is registered as the
owner of such Note for all purposes whatsoever, and neither the Trustee, the
Registrar, nor any paying agent of the Trustee shall be affected by any notice
to the contrary.
Section 2.06 Cancellation. All Notes surrendered for payment or transfer
------------
or exchange shall, if surrendered to any Person party hereto other than the
Registrar, be delivered to the Registrar for cancellation. No Notes shall be
authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section, except as expressly permitted by this Indenture. All canceled
Notes held by the Registrar shall be destroyed in due course and a certification
of their destruction delivered to the Trustee and the Company.
Section 2.07 Replacement of Lost Notes. In case any Note shall become
-------------------------
mutilated or defaced or be lost, destroyed or stolen, then on the terms herein
set forth, and not otherwise, the Trustee shall promptly execute and deliver a
new Note in the then unpaid principal amount of the
-17-
predecessor Note and bearing such identifying number or designation as the
Trustee may determine, in exchange and substitution for, and upon cancellation
of, the mutilated or defaced Note, or in lieu of and in substitution for the
same if lost, destroyed or stolen. The applicant for a new Note pursuant to this
Section shall furnish to the Trustee and to the Company evidence to their
satisfaction of the loss, destruction or theft of such Note alleged to have been
lost, destroyed or stolen and of the ownership and authenticity of such
mutilated, defaced, lost, destroyed or stolen Note, and also shall furnish such
security or indemnity as may be required by the Trustee and the Company in their
discretion, and shall pay all expenses and charges of such substitution or
exchange. In the case of each of the original purchasers of Notes or any
Institutional Investor transferee, a letter of indemnity in form reasonably
satisfactory to the Company and the Trustee from such holder shall be sufficient
security and indemnity. All Notes are held and owned upon the express condition
that the foregoing provisions are exclusive in respect of the replacement of
mutilated, defaced, lost, destroyed or stolen Notes and shall preclude any and
all other rights and remedies, any law or statute now existing or hereafter
enacted to the contrary notwithstanding.
ARTICLE III
Collateral
----------
Section 3.01 Additional and Substituted Equipment and Related Leasehold
----------------------------------------------------------
Interests Subject Hereto. In the event that the Company shall, as provided in
- ------------------------
Section 3.04, cause to be transferred to the Trustee other Equipment or cash in
addition to or in substitution for any of the Equipment herein specifically
described or subjected hereto, as a condition to any release of Collateral
contemplated in connection with such transfer, such other Equipment or cash, as
well as all Leasehold Interests relating to such Equipment, shall be included as
part of the Collateral by supplement hereto to be executed by the Trustee, the
Guarantor and the Company in accordance with Article IX and shall be subject to
all the terms and conditions hereof in all respects as though it had been part
of the Collateral herein specifically described.
Section 3.02 Termination of Security.
-----------------------
(a) After all payments which are required to be made on the Notes
pursuant to this Indenture have been completed and fully made by the
Company or the Guarantor, (1) any moneys or Permitted Investments remaining
in the hands of the Trustee after providing for all outstanding Notes and
after paying the expenses of the Trustee, including its reasonable
compensation, shall be paid to the Company or the Guarantor (to the extent
that the Guarantor has made payments hereunder), and (2) the Trustee shall
execute for record in public offices, at the expense of the Company, such
instrument or instruments in writing as reasonably shall be requested by
the Company in order to make clear upon public records the release of the
Collateral from the security interest granted hereunder, under the laws of
any jurisdiction.
(b) Provided that no Default or Event of Default shall have occurred
or be continuing, on each principal payment date beginning on October 1,
2008, the Trustee shall execute for record in public offices, at the
expense of the Company, such instrument or instruments in writing as
reasonably shall be requested by the Company in order to
-18-
make clear upon public records the release from the security interest
granted hereunder, under the laws of any jurisdiction, of any item of
Equipment which reached 18 years of age (determined by reference to the
month and year in which such item of Equipment was built) during the
calendar year in which such principal payment is made (as so certified to
the Trustee by a Responsible Officer of the Company), together with all
Leasehold Interests relating to such Equipment, except as set forth in
Sections 3.04 or 3.05 hereof.
Section 3.03 Indemnity. The Company covenants and agrees to indemnify the
---------
Trustee against any and all claims arising out of or connected with the use of
any of the Equipment, and particularly against any and all claims arising out of
the use of any patented inventions in and about the Equipment, and to comply in
all respects with the laws of the United States of America and of all the
states, foreign countries and other jurisdictions in which the Equipment, or any
unit thereof, may be operated, and with all lawful acts, rules, regulations and
orders of any commissions, boards and other legislative, executive,
administrative or judicial bodies or officers having power to regulate or
supervise any of the Equipment, provided, however, that the Company may in good
-------- -------
faith contest the validity of any such law, act, rule, regulation or order, or
the application thereof to the Equipment or any part thereof, in any manner
which does not contest the validity of the Notes, the Note Purchase Agreements,
the Indenture or the security interests granted to the Trustee hereunder, and
which will not in the judgment of the Trustee otherwise endanger the rights or
interests of the Trustee or of the holders of the Notes. The Company shall not
be relieved from any of its obligations hereunder by reason of the assertion or
enforcement of any such claims or the commencement or prosecution of any
litigation in respect thereof. The Company's obligation to indemnify the
Trustee under this Section 3.03 shall survive the termination of this Indenture.
Section 3.04 Substitution and Replacement of Collateral. At any time and
------------------------------------------
from time to time, as required for valid business reasons arising in the
ordinary course of the Company's business (as determined in the Company's
reasonable discretion), the Company may issue to the Trustee a Request, and upon
such Request, the Trustee shall execute and deliver a release of all the right
and interest of the Trustee in and to any of the units of Equipment and the
related Leasehold Interests 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
Equipment to be released by the Trustee or (b) there shall be conveyed to the
Trustee, at the time of release of any units of Equipment and the related
Leasehold Interests, a security interest in (i) other units of Equipment with a
Value not less than the Value, and a remaining useful life not less than that as
of the date of such Request, of the units of Equipment to be released and (ii)
the Leasehold Interests relating to such other units of Equipment.
At the time of delivery of any Request pursuant to the first paragraph of
this Section, the Company shall, if other Equipment and related Leasehold
Interests are to be conveyed to the Trustee in substitution for the Collateral
to be released by the Trustee, deliver to the Trustee the following papers:
-19-
(a) an Officers' Certificate stating (i) the Value, as of the date of
said Request, of the Equipment so to be released by the Trustee, and the
year in which such Equipment was built, (ii) that the requested release by
the Trustee will not impair the security under this Indenture in
contravention of the provisions hereof, (iii) a description of the
Equipment to be substituted, the Value thereof as of such date and the year
in which such substituted Equipment was built, (iv) that each such unit so
to be substituted is Equipment as defined herein, and (v) that the Company
is not in Default;
(b) an Opinion of Counsel to the effect that a proper supplement
hereto in respect of each substituted unit of Equipment and the related
Leasehold Interest has been duly executed by the Trustee, the Guarantor and
the Company as required by Section 9.04; and
(c) if the Value of the Equipment to be released by the Trustee, plus
the Value of all other Equipment so released within the prior twelve
months, is more than 10% of the aggregate principal amount of Notes then
outstanding, a certificate by an Independent Engineer stating, as of the
date of said Request, both the Value of the Equipment so to be released by
the Trustee and the Value of such substituted Equipment; and
(d) a supplemental indenture in accordance with Section 3.01 and
Article IX.
At the time of delivery of any Request pursuant to the first paragraph of
this Section, the Company shall, if only cash is to be paid to the Trustee in
respect of the Equipment to be released by the Trustee, deliver to the Trustee
an Officers' Certificate stating to the effect set forth in clauses (i), (ii)
and (v) of subparagraph (a) as well as the certificate required by subparagraph
(c), if applicable, of the second paragraph of this Section.
At any time, and from time to time, the Trustee, on Request, shall invest
and reinvest cash deposited with it pursuant to this Section or Section 3.05 in
Permitted Investments, at such prices, including any premium and accrued
interest, as are set forth in such Request.
The Trustee shall send statements to the Company monthly reflecting
activity for the account created hereunder for the preceding month. The Company
hereby agrees that confirmations of investments are not required to be issued by
the Trustee for each month in which a monthly statement is rendered. The
Trustee shall have no liability with respect to any investment made pursuant to
this Section 3.04, other than by reason of the willful conduct or gross
negligence of the Trustee. The Permitted Investments and all earnings from such
investments shall be held by the Trustee subject to the provisions of this
Indenture. Permitted Investments shall be liquidated by the Trustee and the
cash proceeds thereof shall, from time to time, be paid over by the Trustee to
the Company upon Request, against granting to the Trustee of a security interest
hereunder in units of Equipment having a Value, as of the date of said Request,
not less than the amount of cash so paid, together with all Leasehold Interests
relating to such Equipment, 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.
-20-
Section 3.05 Maintenance of Equipment; Casualty Occurrences. The Company
----------------------------------------------
agrees that it will maintain and keep all the 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 Equipment shall suffer a
--------------------
Casualty Occurrence, the Company shall on or before the next following May 15,
deliver to the Trustee an Officer's Certificate describing such Equipment and
stating the Value thereof as of the date such Equipment suffered such Casualty
Occurrence. When the total Value of all units of Equipment having suffered a
Casualty Occurrence (exclusive of units having suffered a Casualty Occurrence in
respect of which a payment or substitution shall have been made to the Trustee
pursuant to this Section) shall exceed $1,000,000 or 1% of the principal amount
of the Notes then outstanding, whichever is less, the Company, within 30 days
after it shall have been informed of such event, shall deliver to the Trustee an
Officer's Certificate describing such Equipment and stating the Value thereof as
of the date such Equipment suffered such Casualty Occurrence and either (i)
deposit with the Trustee an amount in cash equal to the Value of such units of
Equipment as of the date of the Casualty Occurrence in respect of each thereof
or (ii) convey to the Trustee, in accordance with the procedures and
requirements of Section 3.04, a security interest in (A) units of Equipment with
a Value, as of the date of such conveyance, not less than the Value of the units
of Equipment suffering such Casualty Occurrence(s), as of the date of the
Casualty Occurrence in respect of each thereof, and with a remaining useful life
not less than that of the units of Equipment suffering such Casualty
Occurrence(s) immediately prior to such Casualty Occurrence(s) and (B) the
Leasehold Interests relating to such units of Equipment. The rights and
remedies of the Trustee to enforce its security interest hereunder shall not be
affected by reason of any Casualty Occurrence. Cash deposited with the Trustee
pursuant to this Section shall be held, invested and applied as provided in the
fourth paragraph of Section 3.04.
------------
Upon the deposit of cash with the Trustee pursuant to this Section 3.05,
------------
the Trustee shall execute and deliver a release in the form reasonably requested
by the Company releasing to the Company all the right, title and interest of the
Trustee in and to the Equipment which has suffered a Casualty Occurrence and in
respect of which such deposit is made and all related Leasehold Interests.
The Company agrees to furnish to the Trustee on or before May 15 in every
calendar year commencing May 15, 2001, and during the continuance of the
security interest granted hereunder, an Officers' Certificate, dated as of the
preceding February 14, (1) stating the description and numbers of all units of
Equipment that may have suffered a Casualty Occurrence or which have been
withdrawn from use pending major repairs since the date of the last preceding
statement (or the date of this Indenture in the case of the first such
statement), (2) that no Event of Default has occurred and is continuing, (3)
that, in the opinion of the signers, the Company is in compliance with all of
the terms of this Indenture and (4) covering such other matters as the Trustee
may reasonably request.
The Trustee, by its agents, shall have the right at any reasonable time
(which may be more frequent than once in each calendar year), but shall be under
no duty, to inspect the Collateral at the then existing locations thereof.
-21-
Section 3.06 Possession of Collateral. Except as provided in this Section
------------------------
3.06, without first obtaining the written consent of the Trustee and the holders
of not less than two-thirds of the principal amount of the Notes then
outstanding, the Company will not (a) assign or transfer its rights hereunder or
under the Note Purchase Agreements, (b) transfer the Collateral or any part
thereof (unless the Company complies with the substitution and replacement
requirements of Section 3.04 hereof) or (c) part with the possession of, or
suffer or allow to pass out of its possession and control, any of the
Collateral. An assignment or transfer to any Person 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, all in accordance with the provisions of
Section 6.07 hereof, shall not be deemed a breach of this covenant and such
assignment, transfer or assumption shall have the effect of releasing the
Company from its obligations hereunder and under the Note Purchase Agreements.
Notwithstanding the foregoing, so long as the Company and the Guarantor
shall not be in Default, the Company shall be entitled to the possession and use
of the Collateral in accordance with the terms hereof, and the Company may also
lease or contract to others all or any part of the Equipment, subject to all the
terms and conditions of this Indenture and the Note Purchase Agreements.
Any such lease or contract may provide that the party acquiring the use of
units of 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 and the
Noteholders hereunder, to the possession of such units and the use thereof.
Every such lease or contract entered into after the date of this Indenture shall
contain provisions which have the effect of subjecting the rights of the party
acquiring the use of units of Equipment under such lease or contract to the
rights and remedies of the Trustee and the Noteholders in respect of such units.
Section 3.07 Marking of Equipment. The Company shall not change, or
--------------------
permit to be changed, the prefixes or numbers of any of the 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 Indenture.
The Equipment may be lettered or marked, in case of a lease of any
Equipment made pursuant to Section 3.06 hereof, in such manner as may be
appropriate for convenience of identification of the leasehold interest of the
lessee under such lease; 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 Equipment claiming ownership thereof by any Person, firm,
association or corporation other than the Company.
SECTION 3.08 Modifications and Improvements The Company may make
------------------------------
modifications and improvements to the Equipment and may remove parts and
improvements (unless required by law or regulation) to the extent that the
Value, utility and remaining useful life of the Equipment is not materially
impaired. The Company shall make all modifications
-22-
required by law or regulation unless the modification is economically
impractical, in which case the Company may replace such Equipment by
substituting other Equipment in accordance with Section 3.04 hereof.
ARTICLE IV
Events of Default and Remedies
------------------------------
Section 4.01 Events of Default. The Company covenants and agrees that in
-----------------
case:
(a) the Company defaults in the payment of any principal or Make-
Whole Amount, if any, on any Note when the same becomes due and payable,
whether at maturity or at a date fixed for redemption or by declaration or
otherwise; or
(b) the Company defaults in the payment of any interest on any Note
for more than five Business Days after the same becomes due and payable; or
(c) the Company shall make or suffer any unauthorized assignment or
transfer of its rights hereunder or shall make any unauthorized transfer or
lease (including, for the purpose of this clause, contracts for the use
thereof) of any of the Collateral, or, except as herein authorized, shall
part with the possession of any of the Collateral, and shall fail or refuse
either to cause such assignment or transfer or lease to be canceled by
agreement of all parties having any interest therein and recover possession
of such Collateral within 30 days after the Trustee shall have demanded in
writing such cancellation and recovery of possession, or within said 30
days to deposit with the Trustee a sum in cash equal to the Value, as of
the date of such unauthorized action, of such Collateral (any sum so
deposited to be returned to the Company upon the cancellation of such
assignment, transfer or lease and the recovery of possession by the Company
of such Collateral); or
(d) the Company or the Guarantor default in the performance of or
compliance with any term contained herein (other than those referred to in
paragraphs (a) or (b) of this Section 4.01) or in Section 7.1 of the Note
Purchase Agreements and such default is not remedied within 30 days after
the earlier of (i) a Responsible Officer obtaining actual knowledge of such
-
default and (ii) the Company and the Guarantor receiving written notice of
--
such default from the Trustee or any holder of a Note (any such written
notice to be identified as a "notice of default" and to refer specifically
to this paragraph (d) of Section 4.01); provided, however, that so long as
-------- -------
such failure is capable of being remedied other than through the payment of
money, and the Company or the Guarantor is diligently proceeding to comply,
the Company or the Guarantor may cure such failure within 60 days of
receipt of such notice or obtaining such knowledge; or
(e) any representation or warranty made in writing by or on behalf of
the Company or the Guarantor or by any officer of the Company or the
Guarantor in the Note Purchase Agreements or in any writing furnished in
connection with the transactions contemplated thereby or hereby proves to
have been false or incorrect in any material respect on the date as of
which made and such untruth or incorrectness shall continue to
-23-
be material and unremedied for a period of 30 days after the earlier of (i)
a Responsible Officer obtaining actual knowledge of such default and (ii)
the Company and the Guarantor receiving written notice of such default from
the Trustee or any Noteholder (any such written notice to be identified as
a "notice of default" and to refer specifically to this Section 4.01(e));
provided that, if such untruth or incorrectness is capable of being
remedied, no such untruth or incorrectness shall constitute an Event of
Default hereunder for a period of 60 days after receipt of such notice so
long as the Company or the Guarantor is diligently proceeding to remedy
such untruth or incorrectness and shall in fact remedy such untruth or
incorrectness within such period, or
(f) the Company or the Guarantor (i) is generally not paying, or
admits in writing its inability to pay, its debts as they become due, (ii)
files, or consents by answer or otherwise to the filing against it of, a
petition for relief or reorganization or arrangement or any other petition
in bankruptcy, for liquidation or to take advantage of any bankruptcy,
insolvency, reorganization, moratorium or other similar law of any
jurisdiction, (iii) makes an assignment for the benefit of its creditors,
(iv) consents to the appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect to any
substantial part of its property, (v) is adjudicated as insolvent or to be
liquidated, or (vi) takes corporate action for the purpose of any of the
foregoing, or
(g) a court or governmental authority of competent jurisdiction
enters an order appointing, without consent by the Company or the
Guarantor, a custodian, receiver, trustee or other officer with similar
powers with respect to it or with respect to any substantial part of its
property, or constituting an order for relief or approving a petition for
relief or reorganization or any other petition in bankruptcy or for
liquidation or to take advantage of any bankruptcy or insolvency law of any
jurisdiction, or ordering the dissolution, winding-up or liquidation of the
Company or the Guarantor, or any such petition shall be filed against the
Company or the Guarantor and such petition shall not be dismissed within 60
days; or
(h) this Indenture (including, without limitation, the provisions of
Section 6.01 hereof), any Note or any Note Purchase Agreement, or any Liens
granted under this Indenture relating to Equipment with an aggregate Value
in excess of $1,000,000 or 1% of the principal amount of the Notes then
outstanding, whichever is more, shall, taken as a whole, terminate, cease
to be effective against, or cease to be the legal, valid, binding and
enforceable obligation of the Company or Guarantor, as the case may be;
provided that for purposes of this Section 4.01 any Lien granted under this
Indenture shall not be deemed to have terminated or ceased to be effective
unless such Lien terminates or ceases to be effective under the Uniform
Commercial Code as adopted in the State of Illinois or in any other state
in which the Company's chief executive office may subsequently be located;
or
(i) the Company or the Guarantor shall contest the effectiveness,
validity, binding nature or enforceability of this Indenture (including,
without limitation, the
-24-
provisions of Section 6.01 hereof), any Note or any Note Purchase Agreement
or any Lien granted under this Indenture
(each herein sometimes called an "Event of Default"), then, (i) upon the
----------------
occurrence of an Event of Default described in Section 4.01(a) or (b), any
holder may declare its Note to be immediately due and payable in an amount equal
to such Note's outstanding principal amount plus all accrued interest thereon,
but without any Make-Whole Amount, (ii) upon the occurrence of an Event of
Default described in Sections 4.01(a) through (e), in addition to the right set
forth in the immediately preceding clause (i), the holder or holders of a
majority of the aggregate unpaid principal amount of the Notes may declare all
of the Notes to be immediately due and payable in an amount equal to the
outstanding principal amount thereof plus all accrued and unpaid interest
thereon, but without any Make-Whole Amount, and (iii) upon the occurrence of an
Event of Default described in Sections 4.01(f), (g), (h) or (i), all of the
Notes then outstanding shall automatically become immediately due and payable in
an amount equal to the outstanding principal amount thereof plus all accrued and
unpaid interest thereon, but without any Make-Whole Amount. Upon any Notes
becoming due and payable under this Section 4.01, whether automatically or by
declaration, such Notes will forthwith mature and the entire unpaid principal
amount of such Notes plus all accrued and unpaid interest thereon shall be
immediately due and payable, in each and every case without presentment, demand,
protest or further notice, all of which are hereby waived.
Section 4.02 Incidents of Sale of Collateral. Upon any sale of all or any
-------------------------------
part of the Collateral made under Section 4.08 of this Indenture or otherwise
for the enforcement of this Indenture, the following shall be applicable:
(a) Receipt of Trustee Shall Discharge Purchaser. The receipt of the
--------------------------------------------
Trustee or of the officer making such sale shall be a sufficient discharge
to any purchaser for his purchase money, and, after paying such purchase
money and receiving such receipt, such purchaser or its personal
representative or assigns shall not be obliged to see to the application of
such purchase money, or be in any way answerable for any loss,
misapplication or non-application thereof.
(b) Application of Moneys Received Upon Sale. Any moneys collected by
----------------------------------------
the Trustee upon any sale made either under the power of sale given by this
Indenture or otherwise for the enforcement of this Indenture, shall be
applied as provided in Section 4.09.
Section 4.03 Judicial Proceedings Instituted by Trustee.
------------------------------------------
(a) Trustee May Bring Suit. If there shall be a failure to make
----------------------
payment of the principal of or interest on a Note or Make-Whole Amount, if
any, when due and payable then the Trustee, in its own name, and as trustee
of an express trust, shall be, to the extent permitted by and in accordance
with the terms of this Indenture and the Notes, entitled and empowered to
institute any suits, actions or proceedings at law, in equity or otherwise,
for the collection of the sums so due and unpaid on such Notes or under
this
-25-
Indenture and may prosecute any such claim or proceeding to judgment or
final decree with respect to the whole amount of any such sums so due and
unpaid.
(b) Trustee May File Proofs of Claim; Appointment of Trustee as
-----------------------------------------------------------
Attorney-in-Fact in Judicial Proceedings. The Trustee in its own name, or
----------------------------------------
as trustee of an express trust, or as attorney-in-fact for the Noteholders,
or in any one or more of such capacities (irrespective of whether
distributions on the Notes shall then be due and payable as therein
expressed or by declaration or otherwise) shall be entitled and empowered
to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee and of
the Noteholders allowed in any receivership, insolvency, bankruptcy,
liquidation, readjustment, reorganization or any other judicial proceedings
relative to the Company, the Guarantor or either of their creditors or
property. Any receiver, assignee, trustee, liquidator, sequestrator (or
similar official) in any judicial proceeding is hereby authorized by each
Noteholder to make payments in respect of such claim to the Trustee and, in
the event that the Trustee shall consent to the making of such payments
directly to the Noteholders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel. Nothing contained in this Indenture shall
be deemed to give to the Trustee any right to accept or consent to any plan
of reorganization or otherwise by action of any character in any such
proceeding to waive or change in any way any right of any Noteholder.
Section 4.04 Control by Noteholders. The Noteholders holding Notes
----------------------
representing more than 50% of the aggregate unpaid principal amount then
outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee under this Indenture, provided that:
--------
(a) such direction shall not be in conflict with any rule of law or
with this Indenture and would not involve the Trustee in personal liability
or expense,
(b) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to the Noteholders not taking part in such
direction, and
(c) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 4.05 Waivers of Default. Prior to the declaration of the
------------------
acceleration of the maturity of all the Notes as provided in Section 4.01, the
holders of more than 50% in aggregate unpaid principal amount of the Notes at
the time outstanding may, on behalf of the holders of all the Notes, waive any
past Default and its consequences, except a Default in the payment of the
principal of or interest on any of the Notes or Make-Whole Amount, if any, but
no such waiver shall extend to or affect any subsequent Default or impair any
right consequent thereon.
At any time after any Notes have been declared due and payable or have
automatically become due and payable pursuant to Section 4.01, the holders of
not less than a majority of the
-26-
aggregate principal amount of the Notes then outstanding, by written notice to
the Company and the Trustee, may rescind and annul any such declaration and its
consequences if (a) the Company or the Guarantor has paid all overdue interest
-
on the Notes, all principal of and Make-Whole Amount, if any, on any Notes that
are due and payable and are unpaid other than by reason of such declaration, and
all interest on such overdue principal and Make-Whole Amount, if any, and (to
the extent permitted by applicable law) any overdue interest in respect of the
Notes, at the Default Rate, (b) all Events of Default and Defaults, other than
-
non-payment of amounts that have become due solely by reason of such
declaration, have been cured or have been waived pursuant to this Indenture, and
(c) no judgment or decree has been entered for the payment of any monies due
-
pursuant hereto or to the Notes. No rescission and annulment under this Section
4.05 will extend to or affect any subsequent Event of Default or Default or
impair any right consequent thereon.
No course of dealing and no delay on the part of any holder of any Note in
exercising any right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such holder's rights, powers or remedies. No right, power
or remedy conferred by this Agreement or by any Note upon any holder thereof
shall be exclusive of any other right, power or remedy referred to herein or
therein or now or hereafter available at law, in equity, by statute or
otherwise. Without limiting the obligations of the Company and the Guarantor
under Section 7 of the Note Purchase Agreements, the Company or the Guarantor
will pay to the holder of each Note on demand such further amount as shall be
sufficient to cover all costs and expenses of such holder incurred in any
enforcement or collection under this Article IV, including, without limitation,
reasonable attorneys' fees, expenses and disbursements.
Section 4.06 Undertaking to Pay Court Costs. All parties to this
------------------------------
Indenture, and each Noteholder by its acceptance of a Note, shall be deemed to
have agreed that any court may in its discretion require, in any suit, action or
proceeding for the enforcement of any right or remedy under this Indenture, or
in any suit, action or proceeding against the Trustee for any action taken or
omitted by it as Trustee hereunder, the filing by any party litigant in such
suit, action or proceeding of an undertaking to pay the costs of such suit,
action or proceeding, and that such court may, in its discretion, assess
reasonable costs, including reasonable attorney's fees, against any party
litigant in such suit, action or proceeding, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided,
--------
however, that the provisions of this Section shall not apply to (a) any suit,
- -------
action or proceeding instituted by any Noteholder or group of Noteholders
representing more than 10% of the aggregate unpaid principal amount then
outstanding, (b) any suit, action or proceeding instituted by any Noteholder for
the enforcement of the payment of principal or interest on the Notes on or after
the respective due dates expressed herein or (c) any suit, action or proceeding
instituted by the Trustee.
Section 4.07 Unconditional Right of Holders of Notes To Sue for Principal,
-------------------------------------------------------------
Interest and Make-Whole Amount. Notwithstanding any other provision in this
- ------------------------------
Indenture, the right of any holder of any Note to receive payment of the
principal of and interest on such Note and Make-Whole Amount, if any, on or
after the due date expressed in such Note, or to institute suit for the
enforcement of any such payment on or after such date, shall not be impaired or
affected without the consent of such holder, except no such suit shall be
instituted if and to the extent that the
-27-
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 Indenture upon any property subject hereto.
Section 4.08 Remedies. In case of the happening and continuance of any
--------
Event of Default, the Trustee may by its agents enter upon the premises of the
Company and any of its Affiliates or lessees of the Equipment (or other Persons
having acquired the use of the Equipment) where any of the Equipment may be and
take possession of all or any part of the Equipment and withdraw the same from
said premises, and shall be entitled to collect, receive and retain all unpaid
charges of any kind earned by the Collateral or any part thereof, and may lease
or otherwise contract for the use of the Collateral or any part thereof, or with
or without retaking possession thereof (but only after declaring due and payable
the entire amount of the principal of all the then outstanding Notes, as
provided in Section 4.01) may sell the same or any part thereof, free from any
and all claims of the Company or the Guarantor at law or in equity in one lot
and as an entirety or in separate lots, at public or private sale, for cash or
upon credit, in its discretion, and may proceed otherwise to enforce its rights
and the rights of the holders of then outstanding Notes, all subject to any
mandatory requirements of law applicable thereto. Upon any such sale, the
Trustee itself may bid for the property offered for sale or any part thereof.
Any such sale may be held or conducted at such place and at such time as the
Trustee may specify, or as may be required by law, and without gathering at the
place of sale the Collateral to be sold, and in general in such manner as the
Trustee may determine, but so that the Company and the Guarantor may and shall
have a reasonable opportunity to bid at any such sale. Upon such taking
possession or withdrawal or lease or sale of the Collateral, the Company and the
Guarantor shall cease to have any rights or remedies in respect of the
Collateral hereunder, but all such rights and remedies shall be deemed
thenceforth to have been waived and surrendered by the Company and the
Guarantor, and no payments theretofore made by the Company or the Guarantor for
the rent or use of the Collateral or any of it shall give to the Company or the
Guarantor any legal or equitable interest or title in or to the Collateral or
any of it or any cause or right of action at law or in equity in respect of the
Collateral against the Trustee or the holders of Notes hereunder. No such
taking possession, withdrawal, lease or sale of the Collateral by the Trustee
shall be a bar to the recovery by the Trustee from the Company and the Guarantor
of the principal of and interest on the Notes or Make-Whole Amount, if any, and
the Company and the Guarantor shall be and remain liable for the same until such
sums have been realized as, with the proceeds of the lease or sale of the
Collateral, shall be sufficient for the discharge and payment in full of all the
obligations of the Company and the Guarantor under this Indenture.
Section 4.09 Application of Proceeds. If the Trustee shall exercise any
-----------------------
of the powers conferred upon it by this Article IV, all payments made by the
Company or the Guarantor to the Trustee, and the proceeds of any judgment
collected from the Company or the Guarantor by the Trustee, and the proceeds of
every sale or lease by the Trustee of any of the Collateral, together with any
other sums which may then be held by the Trustee under any of the provisions
hereof (other than sums held in trust for the payment of specific Notes or a
part thereof, or interest thereon), shall be applied by the Trustee to the
payment, in the following order of priority, (a) of all proper charges, expenses
or advances made or incurred by the Trustee in accordance with the provisions of
this Indenture and (b) of the interest then due, with interest on overdue
interest at
-28-
the Penalty Rate, to the extent legally enforceable, and of the Make-Whole
Amount then due, if any, with interest thereon at the Penalty Rate, to the
extent legally enforceable, and of the principal of all the outstanding Notes,
with interest thereon at the Penalty Rate, to the extent legally enforceable,
from the last preceding interest payment date, whether such Notes shall have
then matured by their terms or not, all such payments to be pro rata and in full
if such proceeds shall be sufficient, and if not sufficient, then first to
interest, then to the Make-Whole Amount and then to principal.
After all such payments shall have been made in full, the title to any of
the Collateral remaining unsold shall be conveyed by the Trustee to the Company
free from any further liabilities or obligations to the Trustee hereunder. If
after applying all such sums of money realized by the Trustee as aforesaid there
shall remain any amount due to the Trustee under the provisions hereof, the
Company and the Guarantor agree to pay the amount of such deficit to the
Trustee. If after applying as aforesaid the sums of money realized by the
Trustee there shall remain a surplus in the possession of the Trustee, such
surplus shall be paid to the Company.
Section 4.10 Obligations of Company and the Guarantor Not Affected by
--------------------------------------------------------
Remedies. No retaking of possession of the Collateral by the Trustee, or any
- --------
withdrawal, lease or sale thereof, nor any action or failure or omission to act
against the Company or the Guarantor or in respect of the Collateral, on the
part of the Trustee or on the part of the holder of any Note, nor any delay or
indulgence granted to the Company or the Guarantor by the Trustee or by any such
holder, shall affect the obligations of the Company or the Guarantor hereunder.
The Company and the Guarantor hereby waive presentation and demand in respect of
any of the Notes and waive notice of presentation, of demand and of any Default
in the payment of the principal of and interest on the Notes.
Section 4.11 Company To Deliver Collateral to Trustee. In case the
-----------------------------------------
Trustee shall rightfully demand possession of any of the Collateral under
Section 4.08, the Company will, at its own expense, forthwith and in the usual
manner and at usual speed, cause such Collateral to be delivered to such point
or points as shall reasonably be designated by the Trustee and will there
deliver or cause to be delivered the same to the Trustee; or, at the option of
the Trustee, the Trustee may keep such Collateral, at the expense of the Company
and the Guarantor, on any 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 Indenture and upon application
to any court having jurisdiction in the premises, the Trustee shall be entitled
to a decree against the Company requiring the specific performance thereof.
Section 4.12 Limitations on Suits by Holders of Notes. No holder of any
----------------------------------------
Note shall have any right by virtue or by availing of any provision of this
Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise, upon or under or with respect to this Indenture, 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 (i) with
respect to Events of Default set forth in Sections 4.01(c) through (i), the
holders of more than 50% in aggregate principal amount of the Notes then
outstanding or, (ii) with respect to an Event of Default set forth in Section
4.01(a) or (b), such Noteholder, shall have made written request to the Trustee
to institute such action or
-29-
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 20 days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action or proceeding and no direction inconsistent
with such written request shall have been given to the Trustee pursuant to
Section 4.04; and no one or more holders of Notes shall have any right in any
manner whatever to affect or prejudice the rights of any other holder of Notes,
or to obtain or seek to obtain priority over any other such holder or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all holders of Notes. For the protection
and enforcement of the provisions of this Section, each and every holder of a
Note and the Trustee shall be entitled to such relief as can be given either at
law or in equity.
Section 4.13 Remedies Cumulative; Subject to Mandatory Requirements of
---------------------------------------------------------
Law. The remedies in this Indenture provided in favor of the Trustee and the
- ---
holders of the Notes shall not be deemed exclusive, but shall be cumulative, and
shall be in addition to all other remedies in their favor existing at law or in
equity; and such remedies shall be subject in all respects to any mandatory
requirements of law at the time applicable thereto, to the extent such
requirements may not be waived on the part of the Company.
ARTICLE V
Certain Agreements of the Company
---------------------------------
Section 5.01 Discharge of Liens. The Company agrees that it will, and the
------------------
Guarantor agrees to cause the Company to, pay and discharge, or make adequate
provision for the payment or discharge of, any debt, tax, charge, assessment,
obligation or claim which if unpaid might become a Lien or charge upon or
against any of the Collateral; but this provision shall not require the payment
of any such debt, tax, charge, assessment, obligation or claim so long as the
validity thereof shall be contested in good faith and by appropriate legal
proceedings that do not materially endanger the rights or interests of the
Trustee or of the holders of the Notes and the Company shall have furnished the
Trustee with an Opinion of Counsel to such effect.
If the Company or the Guarantor 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 Indenture until reimbursed by the Company or the Guarantor.
Section 5.02 Further Assurances. The Company agrees to do, and the
------------------
Guarantor shall cause the Company to do, all such acts and execute all such
instruments of further assurance as shall be reasonably requested by the Trustee
for the purpose of fully carrying out and effectuating this Indenture and the
intent hereof.
Section 5.03 Payment of Expenses; Financing Statements. The Company
-----------------------------------------
agrees to pay the expenses incident to the preparation and execution of the
Notes to be issued hereunder and the preparation, execution, recording and
filing of all financing statements required to be filed
-30-
pursuant to this Section 5.03 and all other instruments executed under the
provisions hereof. The Company shall (i) promptly after the execution and
delivery of this Indenture and each supplement hereto, respectively, cause
financing statements to be duly filed in the State of Illinois or in any other
state in which the Company's chief executive office may be subsequently located,
in accordance with the Uniform Commercial Code as adopted in such
jurisdiction(s), and (ii) from time to time file continuation statements and
perform any other act and will execute, acknowledge, deliver, file, register and
record any and all further instruments required by law or reasonably requested
by the Trustee for the purpose of proper protection of the security interest of
the Trustee in the Collateral and the rights of the holders of the Notes within
such jurisdiction(s) and of fully carrying out and effectuating this Indenture
and the intent hereof; provided, however, that the Company shall not be required
-------- -------
to take any action to protect the security interest of the Trustee in the
Collateral in any jurisdiction outside the United States.
ARTICLE VI
Additional Agreements of the Guarantor and the Company
------------------------------------------------------
Section 6.01 Guaranty.
--------
(a) The Guarantor, as primary obligor and not as surety, hereby
absolutely, unconditionally and irrevocably guarantees to each of the
Noteholders and the Trustee (together, the "Guaranteed Parties") the
------------------
following obligations (collectively, the "Guaranteed Obligations"):
----------------------
(i) the due, punctual and full payment by the Company, whether
at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise, of all obligations and amounts to be paid by the
Company pursuant to the Notes and this Indenture (including all such
amounts which would become due but for any stay imposed by reason of a
Company Bankruptcy (as defined below) or operation of law on any claim
or exercise of remedy against or action affecting or relating to the
Company, the Notes, this Indenture or the Collateral; and
(ii) the due, prompt, complete and faithful performance of, and
compliance with, all other obligations, covenants, terms, conditions
and undertakings of the Company contained in the Notes, Note Purchase
Agreements and this Indenture in accordance with the terms thereof and
hereof.
For purposes of this Section 6.01, "Company Bankruptcy" shall mean any
voluntary or involuntary proceeding under the United States Bankruptcy Code
or other state, federal or foreign law relating to insolvency, moratorium,
reorganization, appointment of receivership or similar proceedings
affecting creditors' rights generally and relating to or having
jurisdiction over the Collateral, or the Company's obligations under the
Notes, Note Purchase Agreements and this Indenture.
If any of the Guaranteed Obligations become due, the Guarantor
promises to pay
-31-
or, to the extent guaranteed herein, cause the performance of such
Guaranteed Obligation at the time required for payment or performance
thereof (the "Guarantor Performance Due Date").
------------------------------
The Guarantor further agrees that it shall indemnify and hold harmless
each Guaranteed Party for any and all reasonable costs and expenses
(including reasonable attorney's fees and expenses) incurred after the
Guarantor Performance Due Date by such Guaranteed Party in enforcing any
rights under this Indenture.
The Guarantor specifically agrees that it shall not be necessary or
required that any Guaranteed Party exercise any right, assert any claim or
demand or enforce any remedy whatsoever against the Company (or any other
Person) before or as a condition to the obligations of the Guarantor
hereunder.
Notwithstanding any other provision of this Indenture to the contrary,
the term Guaranteed Obligation as used herein shall not include any
liability in excess of that imposed on the Company under the Notes, Note
Purchase Agreements or this Indenture (as the same may be amended from time
to time in accordance with their terms), provided, however, that if the
-------- -------
imposition of liability on the Company under the Notes, Note Purchase
Agreements or this Indenture, or the realization on such liability, is
limited as a result of a Company Bankruptcy or any other action by the
Company, the Guarantor shall be responsible for and discharge any such
liability in full; further provided, however, that nothing contained in
------- -------- -------
this paragraph or elsewhere in this Indenture shall prevent the Guarantor
from bringing an action for damages suffered by the Guarantor (or by the
Company if Guarantor shall be subrogated or otherwise become entitled to
exercise the rights of the Company under the Notes, Note Purchase
Agreements or this Indenture) as a result of a breach by any Person of any
obligation owed by such Person or representation made by such Person to the
Guarantor (or to the Company if Guarantor shall be subrogated or otherwise
become entitled to exercise the rights of the Company under the Notes, Note
Purchase Agreements or this Indenture) or for equitable relief to obtain
compliance therewith.
(b) Guaranty Absolute, etc. The obligations of the Guarantor under
----------------------
this Section 6.01 are primary obligations of the Guarantor and shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty
of payment and, to the extent guaranteed herein, guaranty to cause
performance, and shall remain in full force and effect until all Guaranteed
Obligations have been paid and, to the extent guaranteed herein, performed
in full. Subject to the terms and provisions of this Section 6.01, the
Guarantor guarantees that the Guaranteed Obligations will be paid and, to
the extent guaranteed herein, performance will occur strictly in accordance
with the terms of the Notes, the Note Purchase Agreements or this
Indenture, as the case may be, in each case regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of any Guaranteed Party. Subject
to the terms and provisions of this Section 6.01, the liability of the
Guarantor under this Section 6.01 shall be absolute, unconditional and
irrevocable, and shall not be altered or impaired, irrespective of:
-32-
(i) any lack of validity, legality or enforceability of any
Note, the Note Purchase Agreements or this Indenture or of the
Guaranteed Obligations;
(ii) the failure of any Guaranteed Party:
(A) to assert any claim or demand or to enforce any right
or remedy or to take any other action against the Company or any
other Person (including any other guarantor under the provisions
of any agreement or otherwise or to perfect or enforce any
security interest, or
(B) to exercise any right or remedy against any other
guarantor of, or Collateral securing, any Guaranteed Obligations;
(iii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations, or any
other extension, waiver, compromise or renewal of any of the
Guaranteed Obligations;
(iv) any reduction, limitation, impairment or termination of
the Guaranteed Obligations for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be
subject to (and the Guarantor hereby waives any right to or claim of)
any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality, nongenuineness,
irregularity, compromise, unenforceability of, or any other event or
occurrence affecting, the Guaranteed Obligations;
(v) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the terms of
any Note, Note Purchase Agreement or this Indenture;
(vi) any addition, exchange, release, surrender or
nonperfection of any Collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, any other
guaranty, held by any Guaranteed Party securing any of the Guaranteed
Obligations;
(vii) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the
Company, any surety or any guarantor;
(viii) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any
other guarantees or other credit support with respect to the
Guaranteed Obligations or any part thereof, or any other obligation of
any Person with respect to the Guaranteed Obligations or any part
thereof;
(ix) any change in ownership of the Company or the insolvency,
bankruptcy or any other change in the legal status of the Company or
any
-33-
rejection or modification of the obligations of the Company or those
of any Person as a result of a Company Bankruptcy;
(x) the existence of any claim, set-off or other rights that
the Guarantor may have at any time against the Company or any other
Person in connection herewith or with an unrelated transaction;
(xi) any merger or consolidation of the Company or the Guarantor
into or with any Person, or any sale, lease or transfer of any or all
of the assets of the Company or the Guarantor to any other Person; or
(xii) any other action, omission or occurrence or circumstance
whatsoever which may in any manner or to any extent vary the risk or
effect discharge of the Guarantor hereunder as a matter of law or
otherwise.
(c) Reinstatement, etc. The Guarantor agrees that its obligations
------------------
under this Section 6.01 shall continue to be effective or be reinstated, as
the case may be, if at any time any payment (in whole or in part) of any of
the Guaranteed Obligations is rescinded or must otherwise be restored by
any Guaranteed Party, upon a Company Bankruptcy, as though such payment had
not been made notwithstanding any termination of this Indenture or any
other agreement.
(d) Waiver, etc. The Guarantor hereby waives, to the fullest extent
-----------
permitted by law, promptness, diligence, notice of acceptance, presentment,
demand of payment or performance and any other notice with respect to any
of the Guaranteed Obligations and this Indenture and any requirement that
any Guaranteed Party protect, secure, perfect or insure any security
interest or lien, or any property subject thereto, or exhaust any right or
take any action against the Company or any other Person (including any
other guarantor) or entity or any Collateral securing the Guaranteed
Obligations.
(e) Waiver of Subrogation. The Guarantor hereby irrevocably waives
---------------------
until all Guaranteed Obligations are satisfied in full any claim or other
rights which it may now or hereafter acquire against the Company that arise
from the existence, payment, performance or enforcement of the Guarantor's
obligations under this Indenture or any Note or Note Purchase Agreement,
including any right of subrogation, reimbursement, exoneration, or
indemnification, any right to participate in the claim or remedy of the
Guaranteed Parties against the Company or any Collateral which the Trustee
now has or hereafter acquires, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law, including the
right to take or receive from the Company, directly or indirectly, in cash
or other property or by set-off or in any manner, payment or security on
account of such claim or other rights. The Guarantor acknowledges that it
will receive benefits from the financing and other arrangements
contemplated by this Indenture, the Notes and Note Purchase Agreement and
that the waiver set forth in this Section 6.01(e) is knowingly made in
contemplation of such benefits. The Guarantor further agrees that to the
extent the waiver of its rights of subrogation as set forth herein is found
by a court of competent jurisdiction to be void or voidable for any reason,
any
-34-
rights of subrogation the Guarantor may have against the Company or against
such Collateral or security shall be junior and subordinate to any rights
the Guaranteed Parties may have against the Company and to all right, title
and interest the Guaranteed Parties may have in such Collateral or
security. Subject to the terms and conditions set forth elsewhere in this
Indenture, the Guaranteed Parties may use, sell or dispose of any item of
Collateral or security as they see fit without regard to any subrogation
rights that the Guarantor may have, and upon any disposition or sale of
Collateral or security, any rights of subrogation the Guarantor may have
with respect to such Collateral or security shall terminate. The Guaranteed
Parties agree that, notwithstanding the foregoing waiver, reimbursement by
the Company of amounts paid by the Guarantor under this Guaranty shall not
constitute a breach of Guarantor's obligations herein.
(f) Bankruptcy. In the event of a rejection of the Notes, Note
----------
Purchase Agreements or this Indenture in a Company Bankruptcy, the
Guarantor agrees that it will pay or, to the extent guaranteed herein,
cause the performance of all Guaranteed Obligations as if such rejection
had not occurred.
(g) Waiver of Suretyship, etc.
-------------------------
(i) The Guarantor further agrees that nothing contained herein
shall prevent the Guaranteed Parties from suing on the Notes, Note
Purchase Agreements or this Indenture, or from exercising any rights
available to them thereunder or under any of such instruments, and
that the exercise of any of the aforesaid rights shall not constitute
a legal or equitable discharge of the Guarantor. The Guarantor
understands that the exercise by the Guaranteed Parties of certain
rights and remedies contained in this Indenture may cause the
Guarantor to incur a partially or totally non-reimbursable liability
hereunder; nevertheless, the Guarantor hereby authorizes and empowers
each Guaranteed Party to exercise, in its sole discretion, any rights
and remedies, or any combination thereof, which may then be available,
since it is the intent and purpose of the Guarantor that the
obligations hereunder shall be absolute, independent and unconditional
under any and all circumstances. To the fullest extent permitted by
law, the Guarantor waives all rights and defenses arising out of an
election of remedies by the Guaranteed Parties.
Section 6.02 Compliance with Law. The Company and the Guarantor will, and
-------------------
the Guarantor will cause the Company to, comply with all laws, ordinances or
governmental rules or regulations to which either of them is subject, including,
without limitation, Environmental Laws, and will obtain and maintain in effect
all licenses, certificates, permits, franchises and other governmental
authorizations, necessary to the ownership of their respective properties or to
the conduct of their respective businesses, in each case to the extent necessary
to ensure that non-compliance with such laws, ordinances or governmental rules
or regulations or failures to obtain or maintain in effect such licenses,
certificates, permits, franchises and other governmental authorizations would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
-35-
Section 6.03 Insurance.
---------
(a) The Company will, and the Guarantor will cause the Company to,
maintain, as part of an insurance program which may include appropriate
risk retention and self-insurance, insurance with respect to the Equipment
in such amounts and against such risks not less than the insurance, if any,
maintained by the Company with respect to similar equipment owned or leased
by the Company, subject to specified minimum coverage levels set forth in
Schedule 2 hereto.
----------
(b) If any public liability insurance policy or coverage thereunder
which is required to be maintained under Section 6.03(a) shall not be
available to the Company in the commercial insurance market on commercially
reasonable terms, the Trustee shall not unreasonably withhold its agreement
to waive such requirement to the extent the maintenance thereof is not so
available upon application therefor as set forth herein. The Company shall
make written request for any such waiver in writing, accompanied by written
reports prepared, at the Company's option, either by (i) one independent
insurance advisor chosen by the Company and the Trustee or (ii) three
independent insurance advisors, one chosen by the Trustee, one chosen by
the Company and one chosen by the other two advisors (one of which may be
the regular insurance broker or brokers of the Company), in either case,
such independent insurance advisors being of recognized national standing.
The fees and expenses of all such advisors shall be paid by the Company.
The written reports required hereunder shall (x) state that such insurance
(or the required coverage thereunder) is not reasonably available to the
Company at commercially reasonable premiums in the commercial insurance
markets within which the Company normally purchases its insurance from
insurers, acceptable to the Company, with a Best's rating of A- or better
for equipment of similar type and capacity and (y) explain in detail the
basis for such conclusions. Upon the granting of any such waiver, the
Company shall within 15 days thereafter certify to the Trustee in writing
the cost (for all equipment of a type similar to the Equipment) of
liability insurance premiums for the coverage required by Section 6.03(a)
for the immediately preceding fiscal year; and in the event that any such
certificate is not received by the Trustee within such 15-day period, any
such waiver shall be deemed revoked. At any time after the granting of
such waiver, but not more often than once a year, the Trustee may make a
written request for a supplemental report (in form reasonably acceptable to
the Trustee) from such insurance advisor(s) updating the prior report and
reaffirming the conclusions set forth therein. The Company shall provide
any such required supplemental report within 60 days after receipt of the
written request therefor. Any such waiver shall be effective for only as
long as such insurance is not reasonably available to the Company in the
commercial markets in which the Company normally purchases its insurance at
commercially reasonable rates, it being understood that the failure of the
Company to furnish timely any such supplemental report shall be conclusive
evidence that such condition no longer exists. If such supplemental report
shows that such coverage is available, the Company shall within 90 days of
such report obtain such insurance coverage. During any period with respect
to which such waiver has been granted and remains in effect under this
Section 6.03(b), the Company shall obtain public liability insurance as set
forth under Section 6.03(a) from such carriers, in such amounts and with
coverage limits and
-36-
deductibles as is prudent under the circumstances, but in any event in an
amount that may be purchased for a premium equal to 110% of the Company's
cost (for all equipment of a type similar to the Equipment) of public
liability insurance premiums for the coverage required by Section 6.03(a)
for the fiscal year immediately preceding the fiscal year in which such
waiver first was granted.
Section 6.04 Maintenance of Properties. The Company and the Guarantor
-------------------------
will, and the Guarantor will cause the Company to, maintain and keep, or cause
to be maintained and kept, their respective properties in good repair, working
order and condition (other than ordinary wear and tear), so that the business
carried on in connection therewith may be properly conducted at all times,
provided that this Section shall not prevent the Guarantor or the Company from
discontinuing the operation and the maintenance of any of its properties if such
discontinuance is desirable or appropriate in the conduct of its business and
the Guarantor has concluded that such discontinuance would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 6.05 Payment of Taxes and Claims. The Company and the Guarantor
---------------------------
will, and the Guarantor will cause the Company to, file all tax returns required
to be filed in any jurisdiction and to pay and discharge all taxes shown to be
due and payable on such returns and all other taxes, assessments, governmental
charges, or levies imposed on them or any of their properties, assets, income or
franchises, to the extent such taxes and assessments have become due and payable
and before they have become delinquent and all claims for which sums have become
due and payable that have or might become a Lien on properties or assets of the
Guarantor or the Company, provided that neither the Guarantor nor the Company
need pay any such tax or assessment or claims if (i) the amount, applicability
or validity thereof is contested by the Guarantor or the Company on a timely
basis in good faith and in appropriate proceedings, and the Guarantor or the
Company has established adequate reserves therefor in accordance with GAAP on
the books of the Guarantor or the Company, as applicable, or (ii) the nonpayment
of all such taxes and assessments in the aggregate could not reasonably be
expected to have a Material Adverse Effect.
Section 6.06 Maintenance of Corporate Existence. Subject to compliance
----------------------------------
with the provisions of Section 6.07, each of the Company and the Guarantor will,
and the Guarantor will cause the Company to, at all times preserve and keep in
full force and effect its corporate existence (unless the Company is merged into
the Guarantor or a subsidiary thereof) and all rights and franchises of the
Guarantor and the Company unless, in the good faith judgment of the Guarantor,
the termination of or failure to preserve and keep in full force and effect such
corporate existence, right or franchise would not, individually or in the
aggregate, have a Material Adverse Effect.
Section 6.07 Consolidation, Merger or Sale of Assets Permitted.
-------------------------------------------------
(a) Neither the Company nor the Guarantor shall, nor shall the
Guarantor permit or cause the Company to, consolidate with or merge into
any other Person or convey, transfer or lease all or substantially all of
its assets in a single transaction or series of transactions to any Person,
unless (i) the successor formed by such consolidation
-37-
or the survivor of such merger or the Person which acquires by conveyance,
transfer or lease all or substantially all of the assets of the Company or
the Guarantor as an entirety, as the case may be, shall be a Person
organized and existing under the laws of the United States of America or
any state thereof or the District of Columbia, and unless such Person is
the Guarantor, such Person shall have executed and delivered to the Trustee
an agreement in form reasonably satisfactory to the Trustee containing an
assumption by such Person of the due and punctual performance and
observance of each covenant and condition of this Indenture, the Note
Purchase Agreements and the Notes applicable to the Company or the
Guarantor, as the case may be, and (ii) immediately after giving effect to
such transaction, no Event of Default, and no event that, after notice or
lapse of time, or both, would become an Event of Default, shall have
occurred and be continuing.
(b) Upon any consolidation or merger, or any conveyance, transfer or
lease of all or substantially all of the assets of the Company or the
Guarantor, the successor formed by such consolidation or the survivor of
such merger or the Person to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company or the Guarantor, as applicable, under this
Indenture with the same effect as if such Person had been named as such
party herein. No such consolidation or merger or conveyance, transfer or
lease of all or substantially all of the assets of the Company or the
Guarantor as an entirety, as applicable, shall have the effect of releasing
such party or any successor Person which shall theretofore have become such
from its liability hereunder or under the Note Purchase Agreements or the
Notes.
(c) The Company or the Guarantor, as applicable, shall deliver to the
Trustee an Opinion of Counsel of the Company or the Guarantor that any such
consolidation, merger, transfer, lease or conveyance, and any such
assumption agreement complies with the provisions of this Section 6.07,
including the enforceability of the Guarantor's obligations against such
successor Person.
ARTICLE VII
Concerning the Holders of Notes
-------------------------------
Section 7.01 Company to Furnish Trustee with Names and Addresses of
------------------------------------------------------
Noteholders. The Company will furnish to the Trustee within 15 days after each
- -----------
Record Date with respect to a Scheduled Payment Date, and at such other times as
the Trustee may request in writing, within 30 days after receipt by the Company
of any such request, a list, in such form as the Trustee may reasonably require,
of all information in the possession or control of the Company as to the names
and addresses of the Noteholders, in each case as of a date not more than 15
days prior to the time such list is furnished; provided, however, that so long
-------- -------
as the Trustee is the sole Registrar, no such list need be furnished; and
provided further, however, that no such list need be furnished for so long as a
- -------- ------- -------
copy of the Register is being furnished to the Trustee pursuant to Section 8.12.
-38-
Section 7.02 Preservation of Information; Communications to Noteholders.
----------------------------------------------------------
The Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Noteholders contained in the most recent Register or
list furnished to the Trustee as provided in Section 8.12 or Section 7.01, as
the case may be, and the names and addresses of holders of Notes received by the
Trustee in its capacity as Registrar, if so acting. The Trustee may destroy any
Register or list furnished to it as provided in Section 8.12 or Section 7.01, as
the case may be, upon receipt of a new Register or list so furnished.
Section 7.03 Financial Statements and Other Information. The Guarantor
------------------------------------------
will provide and with respect to the matters set forth in subsections (b) and
(c) will cause the Company to provide to the Trustee and each Noteholder that is
an Institutional Investor:
(a) Quarterly Statements - within 60 days after the end of each
--------------------
quarterly fiscal period in each fiscal year of the Guarantor (other than
the last quarterly fiscal period of each such fiscal year), a copy of:
(i) a condensed consolidated balance sheet of the Guarantor and
its subsidiaries as at the end of such quarter, and
(ii) condensed consolidated statements of income and cash flows
of the Guarantor and its subsidiaries, for such quarter and (in the
case of the second and third quarters) for the portion of the fiscal
year ending with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year (as at the end of the
most recent fiscal year in the case of the balance sheet), all in
reasonable detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified by a Senior Financial Officer
as fairly presenting, in the opinion of such Person, in all material
respects, the consolidated financial position of the companies being
reported on and their results of operations and cash flows, subject to
changes resulting from year-end adjustments, provided that delivery within
--------
the time period specified above of a copy of the Guarantor's Quarterly
Report on Form 10-Q prepared in compliance with the requirements therefor
and filed with the SEC shall be deemed to satisfy the requirements of this
Section 7.03(a);
(b) Annual Statements - within 105 days after the end of each fiscal
-----------------
year of the Guarantor, a copy of:
(i) a consolidated balance sheet of the Guarantor and its
subsidiaries, as at the end of such year, and
(ii) consolidated statements of income, changes in stockholder's
equity and cash flows of the Guarantor and its subsidiaries, for such
year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail, prepared in accordance with GAAP,
and accompanied by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall state
that, in the opinion of such firm, such financial statements
-39-
present fairly, in all material respects, the consolidated financial
position of the companies being reported upon and their results of
operations and cash flows and have been prepared in conformity with GAAP,
and that the audits performed by such accountants in connection with such
financial statements have been made in accordance with generally accepted
auditing standards, and that such audits provide a reasonable basis for
such opinion in the circumstances, provided that the delivery within the
--------
time period specified above of the Guarantor's Annual Report on Form 10-K
for such fiscal year (together with the Guarantor's annual report to
shareholders, if any, prepared pursuant to Rule 14a-3 under the Securities
Exchange Act of 1934, as amended) prepared in accordance with the
requirements therefor and filed with the SEC shall be deemed to satisfy the
requirements of this Section 7.03(b);
(c) Each set of annual financial statements delivered pursuant to
Section 7.03(b) hereof shall be accompanied by a certificate of a Senior
Financial Officer of the Guarantor and of the Company as to the Company's
or the Guarantor's, as applicable:
(i) Covenant Compliance - whether, in the opinion of the Person
-------------------
signing such certificate, the Company or the Guarantor, as applicable,
was in compliance with all of its obligations hereunder during the
annual period covered by the statements then being furnished, and
(ii) Event of Default - a statement that such officer has
----------------
reviewed the relevant terms hereof and has made, or caused to be made,
under his or her supervision, a review of the transactions and
conditions of the Guarantor or the Company, as applicable, from the
beginning of the annual period covered by the statements then being
furnished to the date of the certificate and that such review shall
not have disclosed the existence during such period of any condition
or event that constitutes a Default or an Event of Default or, if any
such condition or event existed or exists (including, without
limitation, any such event or condition resulting from the failure of
the Guarantor or the Company to comply with any Environmental Law),
specifying the nature and period of existence thereof and what action
the Guarantor or the Company shall have taken or proposes to take with
respect thereto;
(d) Within five (5) Business Days after a Responsible Officer of the
Company or the Guarantor becomes aware of any Default, a written notice
specifying the nature and period of existence thereof and what action the
Company or the Guarantor is taking or proposes to take with respect
thereto; and
(e) Other information relating to the business, operations, affairs,
financial condition, assets or properties of the Guarantor or any of its
subsidiaries as reasonably requested by any Noteholder.
Section 7.04 Inspection. The Guarantor shall permit each Noteholder that
----------
is an Institutional Investor:
-40-
(a) Prior to the occurrence of an Event of Default, at the
Noteholder's own expense and upon reasonable prior notice, to visit the
principal executive office of the Guarantor and discuss the Guarantor's and
the Company's business, operations, financial condition, assets and
properties with their respective officers and, with the consent of the
Guarantor (which shall not be unreasonably withheld), to visit other
offices and properties of the Guarantor and the Company, all at such
reasonable times during regular business hours and as often as may be
reasonably requested in writing; and
(b) Following the occurrence of an Event of Default and during the
continuance thereof, at the Guarantor's expense, to visit and inspect any
offices or properties of the Guarantor or the Company, to examine their
respective books and records, and make copies and extracts therefrom to the
extent reasonably necessary under the circumstances and to discuss the
Guarantor's and the Company's business, operations, financial condition,
assets and properties with their respective officers and independent public
accountants.
(c) The confidentiality of all information provided by the Guarantor
or the Company pursuant to Section 7.04(a) or 7.04(b) shall be maintained
by each Noteholder in strict accordance with the provisions of Section 12
of the Note Purchase Agreements (regardless of whether such Noteholders are
parties thereto).
ARTICLE VIII
The Trustee
-----------
Section 8.01 Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default,
(i) the Trustee undertakes to perform only such duties as are
specifically set forth in this Indenture, and no implied covenants,
duties or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the form of the same to determine whether or not they substantially
conform to the requirements of this Indenture, but shall be under no
duty to investigate the facts contained therein.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the right and powers vested in it by this
Indenture, and use the same
-41-
degree of care and skill in its exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee;
(iii) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the holders of Notes representing more than 50% of
the aggregate unpaid principal amount of Notes then outstanding
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture; and
(iv) no provision of this Indenture shall require the Trustee to
expend or risk its own funds in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that payment of such funds
or adequate indemnity against such risk is not reasonably assured to
it.
(d) Whether or not herein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
Section 8.02 Notice of Defaults. As promptly as practicable after, and in
------------------
any event within 30 days after, the occurrence of any default (as such term is
defined below) hereunder, the Trustee shall transmit by mail to the Noteholders,
the Company and the Guarantor notice of such default hereunder actually known to
a Responsible Officer of the Trustee, unless such default shall have been cured
or waived; provided, however, that, except in the case of a default in the
-------- -------
payment of the principal of or interest on a Note or the Make-Whole Amount, if
any, the Trustee shall be protected in withholding such notice if and so long as
the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interests of the registered
holders of the Notes. Solely for the purpose of this Section, the term
"default" means the occurrence of any Event of Default, except that in
determining whether any such Event of Default has occurred, any grace period or
notice in connection therewith shall be disregarded.
Section 8.03 Certain Rights of Trustee. Except as otherwise provided in
-------------------------
Section 8.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution, certificate,
statement, instrument, opinion, report,
-42-
notice, request, direction, consent, order, bond, debenture or other paper
or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company or the Guarantor
mentioned herein shall be sufficiently evidenced by a Request;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon any Officer's Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Noteholders pursuant to this Indenture, unless such
Noteholders shall have offered to the Trustee reasonable security or
indemnity against the cost, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture or other paper or document; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 8.04 Not Responsible for Recitals or Issuance of Notes. The
-------------------------------------------------
recitals contained herein and in the Notes, except the certificates of
authentication, shall not be taken as the statements of the Trustee, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or the
Notes, except that the Trustee hereby represents and warrants that this
Indenture has been executed and delivered by one of its officers who is duly
authorized to execute and deliver such document on its behalf, and that this
Indenture constitutes the legal, valid and binding obligation of the Trustee to
the extent so stated herein, enforceable against the Trustee in accordance with
its terms.
Section 8.05 May Hold Notes. The Trustee or any of its Affiliates, in
--------------
their respective individual or any other capacity, may become the owner or
pledgee of Notes and, subject to Sections 310(b) and 311 of the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), which shall be deemed to
-------------------
apply solely for the purposes of this Section and the second paragraph of
Section 8.08 hereof, may otherwise deal with the Company or the Guarantor with
the same rights it would have if it were not Trustee.
-43-
Section 8.06 Money Held by Trustee. Any money or Permitted Investments
---------------------
held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required herein or by law, and the Trustee shall not have
any liability for interest upon any such moneys except as provided for herein.
Section 8.07 Compensation and Reimbursement. The Company and the
------------------------------
Guarantor agree:
(a) to pay, or cause to be paid, to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse, or
cause to be reimbursed, the Trustee upon its request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence, willful misconduct or bad faith or as may
be incurred due to the Trustee's breach of its representations and
warranties set forth in Section 8.04;
(c) to indemnify, or cause to be indemnified, the Trustee for, and to
hold it harmless against, any loss, liability or expense (other than for or
with respect to any tax) incurred without negligence, willful misconduct or
bad faith, on its part, arising out of or in connection with the acceptance
or administration of this Indenture, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except
for any such loss, liability or expense incurred by reason of the Trustee's
breach of its representations and warranties set forth in Section 8.04.
The Trustee shall notify the Company and the Guarantor promptly of any
claim for which it may seek indemnity. The Company and the Guarantor shall
defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel with the consent of the Company, and the
Company and the Guarantor will pay the reasonable fees and expenses of such
counsel. The Company and the Guarantor need not pay for any settlement
made without their consent; and
(d) to indemnify, or cause to be indemnified, the Trustee for, and to
hold it harmless against, any tax (other than for or with respect to any
tax referred to in the next paragraph, provided that no indemnification
--------
shall be available with respect to any tax attributable to the Trustee's
compensation for serving as such) incurred without negligence, willful
misconduct or bad faith, on its part, arising out of or in connection with
the acceptance or administration of this Indenture, including any costs and
expenses reasonably incurred in contesting the imposition of any such tax.
The Trustee, shall notify the Company and the Guarantor promptly of any tax
for which it may seek indemnity. The Company and the Guarantor shall
defend against the imposition of such
-44-
tax and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel with the consent of the Company, and the Company and the
Guarantor will pay the reasonable fees and expenses of such counsel. The
Company and the Guarantor need not pay for any taxes paid, in settlement or
otherwise, without its consent.
In addition, the Trustee shall be entitled to reimbursement from, and shall
have a Lien prior to the Notes upon, all property and funds held or collected by
the Trustee in its capacity as Trustee for any tax incurred without negligence,
bad faith or willful misconduct, on its part, arising out of or in connection
with the acceptance or administration of this Indenture (other than any tax
attributable to the Trustee's compensation for serving as such), including any
costs and expenses reasonably incurred in contesting the imposition of any such
tax. If the Trustee reimburses itself for any such tax, it will within 30 days
mail a brief report setting forth the circumstances thereof to all Noteholders
as their names and addresses appear in the Register and to the Guarantor, and
the Guarantor shall promptly deliver funds to the Trustee equal to such amount,
such funds to be added to the Collateral pursuant to Section 3.04.
Section 8.08 Trustee Required; Eligibility. This Indenture shall at all
-----------------------------
times have a Trustee which shall have a combined capital and surplus of at least
$100,000,000 or the obligations of which, whether now in existence or hereafter
incurred, are fully and unconditionally guaranteed by a corporation organized
and doing business under the laws of the United States of America, any State or
Territory thereof or of the District of Columbia and having a combined capital
and surplus of at least $100,000,000. Any successor Trustee shall have a
combined capital of at least $250,000,000 or shall have its obligations
unconditionally guaranteed by a corporation meeting the criteria set forth in
the immediately preceding sentence, and having a combined capital and surplus of
at least $250,000,000. If such corporation publishes reports of condition at
least annually, pursuant to law or the requirements of federal, state,
territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section 8.08, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published.
The Trustee shall comply with Section 310(b) of the Trust Indenture Act
which shall be deemed to apply solely for the purposes of this sentence and
Section 8.05 hereof.
In case at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 8.08, the Trustee shall resign immediately
in the manner and with the effect specified in Section 8.09.
Section 8.09 Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 8.10.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Company, within 30 days after
the giving of such notice of resignation,
-45-
the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Noteholders
holding Notes representing more than 50% of the aggregate unpaid principal
amount of Notes then outstanding delivered to the Trustee and the Company.
(d) If at any time:
(i) the Trustee shall cease to be eligible under Section 8.08
and shall fail to resign after written request therefor by the
Companies or by any such Noteholder; or
(ii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any case, (x) the Company may remove the Trustee or (y) subject to
Section 4.06, any Noteholder who has been a bona fide Noteholder for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
(e) If a Responsible Officer of the Trustee shall obtain actual
knowledge of an Avoidable Tax (as hereinafter defined) which has been or is
likely to be asserted, the Trustee shall promptly notify the Company and
shall, within 30 days of such notification, resign hereunder unless within
such 30-day period the Trustee shall have received notice that the Company
has agreed to pay such tax. The Company shall promptly appoint a successor
Trustee in a jurisdiction where there are no Avoidable Taxes. As used
herein, an "Avoidable Tax" means a state or local tax: (i) upon (w) the
-------------
Indenture, (x) the Collateral, (y) Noteholders or (z) the Trustee for which
the Trustee is entitled to seek reimbursement from the Collateral, and (ii)
which would be avoided if the Trustee were located in another state, or
jurisdiction within a state, within the United States. A tax shall not be
an Avoidable Tax if the Company shall agree to pay, and shall pay, such
tax.
(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any
cause, the Company shall promptly appoint an interim successor Trustee. If,
within one year after such resignation, removal or incapacity, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act
of the Noteholders representing more than 50% of the aggregate unpaid
principal then outstanding delivered to the Company and the interim
successor Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment, become the successor Trustee and
supersede the interim successor Trustee. If no successor Trustee shall
have been so appointed as provided above and accepted appointment in the
manner hereinafter provided, any Noteholder who has been a bona fide
Noteholder for at least six months may, on behalf of himself and all others
similarly
-46-
situated, petition any court of competent jurisdiction for the appointment
of a successor Trustee.
(g) The successor Trustee shall give notice of the resignation and
removal of the Trustee and appointment of the successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Noteholders as their names and addresses appear in the Register. Each
notice shall include the name of such successor Trustee and the address of
its Corporate Trust Office.
Section 8.10 Acceptance of Appointment by Successor. Every successor
--------------------------------------
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder, subject
nevertheless to its Lien, if any, provided for in Section 8.07. Upon request of
any such successor Trustee, the Company, the retiring Trustee and such successor
Trustee shall execute and deliver any and all instruments containing such
provisions as shall be necessary or desirable to transfer and confirm to, and
for more fully and certainly vesting in, such successor Trustee all such rights,
powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 8.11 Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any Person into which the Trustee may be merged or converted or with which it
may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
all or substantially all of the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided such Person shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
In case any Notes shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the Notes
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes.
Section 8.12 Maintenance of Agencies.
-----------------------
(a) There shall at all times be maintained in the Borough of
Manhattan, The City of New York, an office or agency where Notes may be
presented or surrendered for registration of transfer or for exchange, and
for payment thereof and where notices and demands to or upon the Trustee in
respect of the Notes or of this Indenture may be served. Such office or
agency shall be initially at the Trustee's office located at 14 Wall
-47-
Street, 8/th/ Floor, Window #2, New York, New York 10005. Written notice
of the location of each such other office or agency and of any change of
location thereof shall be given by the Trustee to the Company and the
Noteholders. In the event that no such office or agency shall be maintained
or no such notice of location or of change of location shall be given,
presentations and demands may be made and notices may be served at the
Corporate Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a paying agent (each
an "Authorized Agent") hereunder. Each such Authorized Agent shall be a
----------------
bank or trust company, shall be a corporation organized and doing business
under the laws of the United States of America or any state or territory
thereof or of the District of Columbia, with a combined capital and surplus
of at least $100,000,000, or, if the Trustee shall be acting as the
Registrar or paying agent hereunder, a corporation the obligations of which
are guaranteed by a corporation organized and doing business under the laws
of the United States of America or any State or Territory thereof or of the
District of Columbia, with a combined capital and surplus of at least
$100,000,000, and shall be authorized under such laws to exercise corporate
trust powers, subject to supervision by federal or state authorities. The
Trustee shall initially be the paying agent and Registrar hereunder. Each
Registrar shall furnish to the Trustee, at stated intervals of not more
than six months, and at such other times as the Trustee may request in
writing, a copy of the Register.
(c) Any corporation into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
Authorized Agent shall be a party, or any corporation succeeding to the
corporate trust business of any Authorized Agent, shall be the successor of
such Authorized Agent hereunder, if such successor corporation is otherwise
eligible under this Section, without the execution or filing of any paper
or any further act on the part of the parties hereto or such Authorized
Agent or such successor corporation.
(d) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Trustee and the Company. The Company may, and
at the request of the Trustee shall, at any time terminate the agency of
any Authorized Agent by giving written notice of termination to such
Authorized Agent and to the Trustee. Upon the resignation or termination
of an Authorized Agent or in case at any time any such Authorized Agent
shall cease to be eligible under this Section (when, in either case, no
other Authorized Agent performing the functions of such Authorized Agent
shall have been appointed), the Company shall promptly appoint a qualified
successor Authorized Agent, reasonably satisfactory to the Trustee, to
perform the functions of the Authorized Agent which has resigned or whose
agency has been terminated or who shall have ceased to be eligible under
this Section. The Company shall give written notice of any such
appointment made by them to the Trustee; and in each case the Trustee shall
mail notice of such appointment to all Noteholders as their names and
addresses appear on the Register.
-48-
(e) The Company and the Guarantor agree to pay, or cause to be paid,
pursuant to separate agreements from time to time to each Authorized Agent
reasonable compensation for its services and to reimburse it for its
reasonable expenses.
Section 8.13 Money for Note Payments to Be Held by Trustee. All moneys
---------------------------------------------
deposited with any paying agent for the purpose of any payment on Notes shall be
deposited and held in trust for the benefit of the Noteholders entitled to such
payment, subject to the provisions of this Section.
The Trustee will cause each paying agent other than the Trustee to execute
and deliver to it an instrument in which such paying agent shall agree with the
Trustee, subject to the provisions of this Section, that such paying agent will:
(a) hold all sums held by it for payments on Notes in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by any obligor upon the
Notes in the making of any such payment; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such paying agent.
The Trustee may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, direct any paying
agent to pay to the Trustee all sums held in trust by such paying agent, such
sums to be held by the Trustee upon the same trusts as those upon which such
sums were held by such paying agent; and, upon such payment by any paying agent
to the Trustee, such paying agent shall be released from all further liability
with respect to such money.
ARTICLE IX
Supplements to Indenture
------------------------
Section 9.01 Supplements to Indenture Without Consent of Noteholders.
-------------------------------------------------------
Without the consent of the Noteholders, the Company and the Guarantor may, and
the Trustee (subject to Section 9.03) shall, at any time and from time to time
enter into one or more agreements supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company or
the Guarantor and the assumption by any such successor Person of the
covenants of the Company or the Guarantor, as applicable, contained herein
in accordance with this Indenture;
-49-
(b) to add to the covenants of the Company or the Guarantor for the
benefit of the Noteholders, or to surrender any right or power herein
conferred upon the Company or the Guarantor, as applicable;
(c) to cure any ambiguity, to correct any manifest error or to
correct or supplement any provision herein which may be defective or
inconsistent with any other provision herein or to make any other
provisions with respect to matters or questions arising under this
Indenture, provided that any such action shall not adversely affect the
interests of the Noteholders; or
(d) to add or substitute Collateral or to release Collateral in
accordance with Article III.
Section 9.02 Supplements to Indenture with Consent of Noteholders. With
----------------------------------------------------
the consent of the Noteholders representing more than 66 2/3% of the aggregate
unpaid principal of the Notes then outstanding, by Act of such Noteholders
delivered to the Company, the Guarantor and the Trustee, the Company and the
Guarantor may, and the Trustee (subject to Section 9.03) shall, enter into an
agreement or agreements supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights and obligations of the
Noteholders under this Indenture; provided, however, that no such supplemental
-------- -------
agreement shall, without the consent of each registered holder of an outstanding
Note affected thereby:
(a) reduce in any manner the amount of, or change the date of, any
payments on the Notes, or change the place of payment where, or the coin or
currency in which, any Note is payable, or impair the right to institute
suit for the enforcement of any such payment or distribution on or after
the Scheduled Payment Date applicable thereto;
(b) reduce the percentage of the aggregate unpaid principal amount of
Notes then outstanding required for any such supplemental agreement, or
reduce such percentage required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided or in this Indenture;
(c) modify any of the provisions of this Section or Section 4.05,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the registered holder of each Note affected thereby; or
(d) eliminate the guarantee of the Guarantor or modify such guarantee
in a manner adverse to the Noteholders.
Section 9.03 Documents Affecting Immunity or Indemnity. If in the opinion
-----------------------------------------
of the Trustee any document required to be executed by it pursuant to the terms
of Section 9.01 or 9.02 affects any interest, right, duty, obligation, immunity
or indemnity in favor of the Trustee under this Indenture, the Trustee may in
its discretion decline to execute such document.
-50-
Section 9.04 Execution of Supplements to Indentures. In executing, or
--------------------------------------
accepting the additional trusts created by, any supplemental agreement permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be provided, and shall be fully protected in
relying upon, an Opinion of Counsel and an Officers' Certificate, each stating
that the execution of such supplemental agreement is authorized or permitted by
this Indenture.
Section 9.05 Effect of Supplements to Indenture. Upon the execution of
----------------------------------
any supplemental agreement under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental agreement shall form a part of
this Indenture for all purposes; and every Noteholder theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
Section 9.06 Reference in Notes to Supplements to Indentures. Notes
-----------------------------------------------
authenticated and delivered after the execution of any supplemental agreement
pursuant to this Article may bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental agreement, and, in such case,
suitable notation may be made upon outstanding Notes after proper presentation
and demand.
ARTICLE X
Miscellaneous
-------------
Section 10.01 Rights Confined to Parties and Holders. Nothing expressed
--------------------------------------
or implied herein shall be construed to confer upon any Person other than the
parties hereto and the holders of the Notes, any right, remedy or claim under or
by reason of this Indenture or of any term, agreement or condition herein, and
all the terms, covenants and conditions herein shall be for the sole and
exclusive benefit of the parties hereto and their successors and of the holders
of the Notes.
Section 10.02 No Recourse. No recourse under this Indenture shall be had
-----------
against any Person, solely by reason of the fact that he is a stockholder,
officer or director of the Company or the Guarantor, 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 Indenture is solely a
corporate obligation, and that no personal liability whatever shall attach to or
be incurred by any Person, solely by reason of the fact that he is a
stockholder, officer or director of the Company or the Guarantor, under or by
reason of any of the terms, agreements or conditions contained in this
Indenture, 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
Indenture.
Section 10.03 Binding Upon Assigns. Except as otherwise provided herein,
--------------------
the provisions of this Indenture shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
-51-
Section 10.04 Notices. All demands, notices and communications hereunder
-------
shall be in writing and shall be deemed to have been received by the addressee
on the date of actual receipt (if such date is a Business Day, otherwise on the
next Business Day), if transmitted by mail, telex, telecopy (confirmed by hard
copy) or similar transmission, or by hand, addressed as follows: (a) in the
case of the Company or the Guarantor, 225 West Washington Street, 19/th/ Floor,
Chicago, Illinois 60606, marked to the attention of its Treasurer, or such other
address as may hereafter be furnished to the Trustee in writing by the Company
or the Guarantor, (b) 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 in writing by the Trustee, and (c) in
the case of any holder of Notes, at its address shown on the registry books
maintained by the Trustee or at such other address as such holder may from time
to time furnish to the Trustee for such purpose. An affidavit by any Person
representing or acting on behalf of the Company, the Guarantor 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 10.05 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 Indenture 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 Indenture shall be governed by the laws of the State of New
York.
Section 10.06 Legal Holidays. In any case where any date for payment of
--------------
interest, date for payment of rental or date of maturity of any installment of
principal on the Notes shall not be a Business Day, then, notwithstanding any
other provision of this Indenture or the Notes, payment need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on such date for payment of interest, date for payment of
rental or date of maturity of any installment of principal on the Notes, and if
payment is made on such next succeeding Business Day no interest shall accrue on
the amount of such payment for the period from and after such date for payment
of interest, or for payment of rental or date of maturity of any installment of
principal on the Notes, as the case may be, to and including such next
succeeding Business Day.
Section 10.07 Counterparts. For the purpose of facilitating the execution
------------
of this Indenture and for other purposes, this Indenture 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.
-52-
IN WITNESS WHEREOF, the Trustee, the Company and the Guarantor have caused
their names to be signed hereto by their respective officers thereunto duly
authorized and their respective corporate seals, duly attested, to be hereunto
affixed as of the day and year first above written.
BANK ONE, N.A., as Trustee
By: /s/ Janice Ott Rotunno
------------------------------------------
Name: Janice Ott Rotunno
Title: Vice President and Assistant Secretary
Attest:
/s/ Benita Pointer
- ---------------------
EXSIF WORLDWIDE, INC.
By: /s/ M.J. Garrette
------------------------------------------
Name: M.J. Garrette
Title: Vice President
Attest:
/s/ R.W. Webb
- ---------------------
Secretary
UNION TANK CAR COMPANY
By: /s/ M.J. Garrette
------------------------------------------
Name: M.J. Garrette
Title: Vice President
Attest:
/s/ R.W. Webb
- ---------------------
Secretary
-53-
Schedule 1
Description of Equipment
------------------------
See Attached
Schedule 2
Insurance Provisions
--------------------
1. The Company will carry general liability insurance with respect to the
Equipment with a minimum coverage level of $100,000,000 per occurrence and
an annual aggregate of $100,000,000. There may be deductibles or self-
insured retentions on such general liability insurance of up to $25,000,000
per occurrence.
2. Property damage or physical damage insurance on the Equipment will not be
required unless the Company is in default. If property damage insurance is
required, there will be a limit of $10,000,000 per occurrence, and such
coverage may provide for a deductible or self-insured retention of up to
$1,000,000 per occurrence.
3. The insurance listed above may be a part of an insurance program that also
covers companies that are affiliated with Company.
4. The general liability insurance referred in item 1 above will contain these
provisions:
a. The Trustee will be an additional insured on such insurance
policy(ies).
b. The Company will have the insurer(s) waive any right to subrogation
against the Trustee.
c. The Trustee shall have no responsibility for any insurance premiums.
d. In substance, all of the terms, conditions, insuring agreements, and
endorsements, with the exception of limits of liability and liability
for premiums, commissions, assessments or calls (which shall solely be
a liability of the Company) shall operate in the same manner as if
there were a separate policy covering each insured.
e. The Trustee will receive 30 days' notice before cancellation or
termination of the policy(ies) other than for normal expiration or
non-payment of premiums and 10 days' notice before cancellation for
non-payment of premiums.
f. The Company will use its reasonable best efforts to obtain a provision
providing that the coverage will not be invalidated as to the Trustee
due to any action or inaction of the Company, provided that the
Company shall be under no obligation to obtain such a provision if it
is not available to Company in policies available to the Company at
commercially reasonable rates in the markets in which the Company has
placed its insurance program.
g. The Company's insurance will be primary without contribution by any
similar insurance maintained by the Trustee.