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EXHIBIT 4(a)(3)
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UNION TANK CAR COMPANY
---------------------------
INDENTURE AND SECURITY AGREEMENT
Dated as of May 17, 2000
Between
BANK ONE, NATIONAL ASSOCIATION,
Trustee,
and
UNION TANK CAR COMPANY
---------------------------
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PROVIDING FOR THE ISSUANCE OF SENIOR SECURED NOTES IN SERIES
Filed with the Surface Transportation Board of the Department of
Transportation pursuant to 49 U.S.C.ss. 11301 on , 200_, at [
a.m./p.m.], Recordation Number , and deposited in the Office of the
Registrar General of Canada pursuant to Section 105 of the Canada Transportation
Act on May , 200_, at [ a.m./p.m.]
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TABLE OF CONTENTS
SECTION PAGE
ARTICLE ONE
DEFINITIONS, INCORPORATION BY REFERENCE
AND RULES OF CONSTRUCTION
1.1. Definitions...............................................................................................5
1.2. Other Definitions........................................................................................14
1.3. Incorporation by Reference of Trust Indenture Act........................................................14
1.4. Rules of Construction....................................................................................15
ARTICLE TWO
THE NOTES
2.1. Issuable in Series; Series Issuable in Tranches..........................................................15
2.2. Establishment of Terms and Form of Series of Notes.......................................................15
2.3. Execution, Authentication and Delivery...................................................................18
2.4. Registrar and Paying Agent...............................................................................20
2.5. Currency and Manner of Payments in Respect of Notes......................................................20
2.6. Paying Agent to Hold Money in Trust......................................................................25
2.7. Noteholder Lists; Ownership of Notes.....................................................................25
2.8. Transfer and Exchange....................................................................................26
2.9. Replacement Notes........................................................................................27
2.10. Outstanding Notes........................................................................................28
2.11. Notes Held by the Company or an Affiliate................................................................29
2.12. Temporary Notes..........................................................................................29
2.13. Cancellation.............................................................................................30
2.14. Defaulted Interest.......................................................................................30
2.15. Notes Issuable in the Form of a Global Security..........................................................30
2.16. Unregistered Notes Represented by Global Security........................................................31
ARTICLE THREE
REDEMPTION OF NOTES AND SINKING FUNDS
3.1. Notice to Trustee........................................................................................34
3.2. Selection of Notes to be Redeemed........................................................................34
3.3. Notice of Redemption.....................................................................................34
3.4. Effect of Notice of Redemption...........................................................................35
3.5. Deposit of Redemption Price..............................................................................36
3.6. Notes Redeemed in Part...................................................................................36
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TABLE OF CONTENTS
(CONTINUED)
3.7. Notes Acquired by the Company............................................................................36
3.8. Mandatory and Optional Sinking Funds.....................................................................36
ARTICLE FOUR
COLLATERAL
4.1. Additional and Substituted Equipment Subject to this Indenture...........................................38
4.2. Termination of Note......................................................................................39
4.3. Indemnity ...............................................................................................39
4.4. Substitution and Replacement of Collateral...............................................................39
4.5. Maintenance of Collateral; Casualty Occurrences..........................................................41
4.6. Possession of Collateral.................................................................................42
4.7. Marking of Collateral....................................................................................43
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
5.1. Payment of Notes.........................................................................................43
5.2. Reports by the Company...................................................................................43
5.3. Statement of Officers as to Default......................................................................44
5.4. Filing with Listing Agent................................................................................44
5.5. Discharge of Liens.......................................................................................44
5.6. Further Assurances.......................................................................................45
5.7. Payment of Expenses; Recording...........................................................................45
ARTICLE SIX
SUCCESSOR
6.1. When Company May Merge, etc..............................................................................46
6.2. Successor Substituted....................................................................................46
ARTICLE SEVEN
DEFAULTS AND REMEDIES
7.1. Events of Default........................................................................................47
7.2. Acceleration.............................................................................................48
7.3. Other Remedies Available to Trustee......................................................................49
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TABLE OF CONTENTS
(CONTINUED)
7.4. Incidents of Sale of Collateral..........................................................................49
7.5. Waiver of Existing Defaults..............................................................................49
7.6. Control by Majority......................................................................................49
7.7. Limitation on Suits by Noteholders.......................................................................50
7.8. Rights of Holders to Receive Payment.....................................................................50
7.9. Collection Suits by Trustee..............................................................................50
7.10. Remedies............................................................................................... 51
7.11. Trustee May File Proofs of Claim........................................................................51
7.12. Priorities...............................................................................................51
7.13. Undertaking for Costs....................................................................................52
ARTICLE EIGHT
TRUSTEE
8.1. Duties of Trustee........................................................................................52
8.2. Rights of Trustee........................................................................................53
8.3. Individual Rights of Trustee.............................................................................54
8.4. Trustee's Disclaimer.....................................................................................54
8.5. Notice of Defaults.......................................................................................55
8.6. Reports by Trustee to Holders............................................................................55
8.7. Compensation and Indemnity...............................................................................56
8.8. Replacement of Trustee...................................................................................56
8.9. Successor Trustee, Agents by Merger, etc.................................................................58
8.10. Eligibility; Disqualification............................................................................58
8.11. Preferential Collection of Claims Against Company........................................................58
ARTICLE NINE
SATISFACTION AND DISCHARGE; DEFEASANCE
9.1. Satisfaction and Discharge of Notes of any Series........................................................59
9.2. Defeasance of Notes of any Series........................................................................60
9.3. Application of Trust Funds; Indemnification..............................................................61
ARTICLE TEN
SUPPLEMENTAL INDENTURES
10.1. Without Consent of Holders..............................................................................62
10.2. With Consent of Holders.................................................................................63
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TABLE OF CONTENTS
(CONTINUED)
10.3. Compliance with Trust Indenture Act.....................................................................64
10.4. Revocation and Effect of Consents.......................................................................64
10.5. Notation on or Exchange of Notes........................................................................65
ARTICLE ELEVEN
MISCELLANEOUS
11.1. Trust Indenture Act Controls............................................................................65
11.2. Notices............................................................................................... 65
11.3. Communication by Holders with Other Holders.............................................................66
11.4. Certificate and Opinion as to Conditions Precedent......................................................66
11.5. Statements Required in Certificate or Opinion...........................................................66
11.6. Rules by Trustee and Agents.............................................................................67
11.7. Payments on Business Day................................................................................67
11.8. Governing Law...........................................................................................67
11.9. No Adverse Interpretation of Other Agreements...........................................................67
11.10. No Recourse Against Others..............................................................................67
11.11. Acts of Successor Corporation...........................................................................68
11.12. Execution in Counterparts...............................................................................68
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UNION TANK CAR COMPANY
RECONCILIATION AND TIE BETWEEN INDENTURE AND SECURITY AGREEMENT DATED
AS OF MAY 17, 2000 AND THE TRUST INDENTURE ACT OF 1939. THIS RECONCILIATION
SECTION DOES NOT CONSTITUTE PART OF THE INDENTURE.
TRUST INDENTURE ACT INDENTURE
OF 1939 SECTION SECTION
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310(a)(1)....................................................................8.10
(a)(2)...................................................................8.10
(a)(3)...........................................................Inapplicable
(a)(4)...........................................................Inapplicable
(b).................................................................8.8; 8.10
(c)..............................................................Inapplicable
311(a).......................................................................8.11
(b)......................................................................8.11
(c)..............................................................Inapplicable
312(a)........................................................................2.7
(b)......................................................................11.3
(c)......................................................................11.3
313(a)........................................................................8.6
(b)(1)...........................................................Inapplicable
(b)(2)...............................................................5.3; 8.6
(c)............................................................5.3; 8.6; 11.2
(d).......................................................................8.6
314(a)..................................................................5.3; 11.2
(b)..............................................................Inapplicable
(c)(1)...................................................................11.4
(c)(2)...................................................................11.4
(c)(3)...........................................................Inapplicable
(d)..............................................................Inapplicable
(e)......................................................................11.5
(f)..............................................................Inapplicable
315(a).....................................................................8.1(b)
(b).................................................................8.5; 11.2
(c)....................................................................8.1(a)
(d)....................................................................8.1(c)
(e)......................................................................7.13
316(a) (last sentence).......................................................2.11
(a)(1)(A).................................................................7.6
(a)(1)(B).................................................................7.5
(a)(2)...........................................................Inapplicable
(b).......................................................................7.8
317(a)(1).....................................................................7.9
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(a)(2)...................................................................7.11
(b).......................................................................2.6
318(a).......................................................................11.1
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THIS INDENTURE and SECURITY AGREEMENT is dated as of May 17, 2000
between UNION TANK CAR COMPANY, a Delaware corporation (hereinafter sometimes
referred to as the "Company"), and BANK ONE, NATIONAL ASSOCIATION, a national
banking association, as trustee (hereinafter sometimes referred to as the
"Trustee") sets forth certain of its provisions in full and incorporates others
by reference to specified portions of the Trust Indenture Act of 1939, as
amended, as in effect on the date of this Indenture. The provisions as are set
forth in full, the provisions as are incorporated by reference and the
provisions as are set forth in all supplements hereto shall constitute a single
instrument.
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its "Notes" as
herein provided; and
WHEREAS, all things necessary to make this Indenture a valid and
binding agreement of the Company, in accordance with its terms, have been done;
WHEREAS the text of each Series of Notes is to be substantially in the
following form (with such modifications as may be permitted by the Indenture,
including appropriate modifications if the Notes are Original Issue Discount
Notes):
[Form of Note]
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch the registered owner hereof, Cede & Co., has an interest
herein.
% SENIOR SECURED NOTE DUE
---- -----
Secured by certain Railroad Rolling Stock
No. S- Chicago, Illinois
-----
CUSIP , 200
----------- ------------ -- -
$----------------
UNION TANK CAR COMPANY, 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, on _________, _____, together with interest thereon on the amount of
such principal amount remaining unpaid
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from time to time from and including the date hereof until such principal amount
shall be due and payable, payable on __________, _____ and on each ________ and
_____________ thereafter to the maturity date hereof at the rate of ______% per
annum (computed on the basis of a 360-day year of twelve 30-day months).
Interest on any overdue principal and (to the extent legally enforceable) on
overdue interest shall be paid from the due date thereof at the rate of _____%
per annum (computed on the basis of a 360-day year of twelve 30-day months),
payable on demand.
Payments with respect to the principal amount hereof, premium, 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,
National Association (the "Trustee"), or as otherwise provided in the Indenture
and Security Agreement dated as of May 17, 2000, between the Company and the
Trustee (as amended or supplemented, 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
premium 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 which have
been or are to be issued by the Company pursuant to the terms of the Indenture.
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 AT
A PRICE EQUAL TO 100% OF THE PRINCIPAL AMOUNT OF THE NOTE BEING REDEEMED,
TOGETHER WITH ACCRUED AND UNPAID INTEREST, PLUS A PREMIUM AS PROVIDED IN THE
SUPPLEMENTAL INDENTURE UNDER WHICH THIS NOTE HAS BEEN ISSUED. 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 statement of transfer duly executed by,
the registered holder hereof or his attorney duly authorized in writing. Prior
to the due presentation for registration of transfer of this Note, the Company
and the Trustee may deem and treat the registered holder of this Note as the
absolute
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owner and holder hereof for the purpose of receiving payment of all amounts
payable with respect hereto and for all other purposes and shall not be affected
by any notice to the contrary.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF .
------------
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, the Company has caused this Note to be executed by
one of its authorized officers as of the date hereof.
UNION TANK CAR COMPANY
By:
-----------------------------
Name:
Title:
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Notes referred to in the within-mentioned Indenture.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------
Authorized Officer
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,
premium, if any, and interest thereon as hereinafter provided;
WHEREAS, this Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, and shall, to the extent applicable, be
governed by such provisions;
GRANTING CLAUSE
NOW, THEREFORE, THIS INDENTURE AND SECURITY AGREEMENT WITNESSETH, that,
to secure the prompt payment of the principal of and interest and premium, if
any, on and all other amounts due with respect to the Notes from time to time
outstanding
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under this Indenture 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, by executing and delivering from time to time one or more
supplemental Indentures pursuant to which Series of Notes will be issued, the
Company will assign, transfer, mortgage and pledge and confirm unto the Trustee,
its successors and assigns, for the security and benefit of the holders of such
Series of 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 property, rights,
interests and privileges hereafter subjected to the Lien of this Indenture (such
property being herein called the "Indenture Estate"), to wit:
(1) the Equipment and all substitutions therefor, all as
particularly described in supplemental Indentures executed and
delivered with respect to such Equipment or any such substitutions
therefor, as provided in this Indenture;
(2) all monies and securities hereafter paid or deposited or
required to be paid or deposited with the Trustee pursuant to any term
of this Indenture or any supplemental Indenture, or required to be held
by the Trustee hereunder or thereunder; and
(3) 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
of a Series over any other Note of such Series, 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 granted herein and in any supplemental Indenture.
The Company does hereby represent and warrant that it has not assigned
or pledged, and hereby covenants that it will not assign or pledge, so long as
the assignment under any supplemental Indenture shall remain in effect, any of
its right, title or interest thereby assigned, to anyone other than the Trustee.
IT IS HEREBY COVENANTED AND AGREED by and between the parties hereto as
follows:
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ARTICLE ONE
DEFINITIONS, INCORPORATION BY REFERENCE
AND RULES OF CONSTRUCTION
SECTION 1.1. Definitions.
The terms defined in this Section 1.1. (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section 1.1.
Affiliate: The term "Affiliate" means any Person directly or
indirectly controlling or controlled by, or under
direct or indirect common control with, the Company.
Agent: The term "Agent" means any Paying Agent or Registrar.
Authenticating Agent: The term "Authenticating Agent" means any person or
persons authorized by the Trustee to act on behalf of
the Trustee to authenticate one or more Series of
Notes.
Authorized Newspaper: The term "Authorized Newspaper" means a newspaper of
general circulation, in the official language of the
country of publication or in the English language,
customarily published on each business day. Whenever
successive weekly publications in an Authorized
Newspaper are required hereunder they may be made
(unless otherwise expressly provided herein) on the
same or different days of the week and in the same or
different Authorized Newspapers.
Board of Directors: The term "Board of Directors" means the Board of
Directors of the Company or any duly authorized
committee thereof.
Board Resolution: The term "Board Resolution" means a copy of a
resolution of the Board of Directors, certified by the
Secretary or an Assistant Secretary of the Company to
have been adopted by the Board of Directors and to be
in full force and effect on the date of the
certificate, and delivered to the Trustee.
Business Day: The term "Business Day" means, except as may otherwise
be provided in the form of Notes of any particular
Series, with respect to any Place of Payment, any day,
other than a Saturday or Sunday, that is not a legal
holiday, or a day on which banking institutions are
authorized or required by law or regulation to close
in that Place of Payment, and with respect to Notes
denominated in a Foreign Currency, the capital city of
the country of such Foreign
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Currency, and with respect to Notes denominated in
ECU, Brussels, Belgium.
Capital Stock: The term "Capital Stock" means any and all shares
(however designated) of corporate stock now or
hereafter outstanding.
Casualty Occurrence: The term "Casualty Occurrence" shall have the meaning
set forth in Section 4.5 hereof.
CEDEL: The term "CEDEL" means Centrale de Livraisons de
Valeurs Mobilieres SA.
Collateral: The term "Collateral" means all Equipment and all
monies and securities at the time subject to the terms
of this Indenture.
Company: The term "Company" means the party named as such in
this Indenture until a successor replaces it pursuant
to the applicable provisions hereof and thereafter
means the successor.
Company Notice: The term "Company Notice" means the confirmation of
the Company, transmitted by telex, telecopy or in
writing to the Trustee of the terms of the issuance of
any Notes issuable in Tranches.
Company Order or
Company Request: The term "Company Order" or "Company Request" means an
order or request signed by two Officers or by any
Officer and an Assistant Treasurer or an Assistant
Secretary of the Company.
Consolidated Net Income: The term "Consolidated Net Income" means, for any
period, the consolidated net income of the Company and
its subsidiaries for such period determined in
accordance with GAAP.
Consolidated Tangible
Net Worth: The term "Consolidated Tangible Net Worth" means the
consolidated stockholder's equity of the Company and
its subsidiaries, as reflected on the consolidated
balance sheet of the Company prepared in accordance
with GAAP at the conclusion of the immediately
preceding fiscal quarter for which such determination
is made, less the amount of intangible assets
(including, without limitation, franchises, patents
and patent applications, trademarks and brand names,
goodwill, research and development expenses, and all
write-ups in the book value of any asset (excluding
write-ups of assets resulting from the application
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of principles of purchase accounting with respect to
acquisitions made by the Company)).
Cost: The term "Cost" when used in respect of Equipment not
built by the Company or any Affiliate of the Company,
shall mean the actual cost thereof to the Company and,
in respect of Equipment built by the Company or any
such Affiliate, shall mean an amount not in excess of
"car builder's cost", including direct cost of labor,
material and overhead but excluding any manufacturing
profit.
Default: The term "Default" means any event which is, or after
notice or passage of time would be, an Event of
Default.
Depositary: The term "Depositary" means, with respect to Notes of
any Series offered for sale in the United States and
for which the Company shall determine that such Notes
will be issued as a Global Security, The Depository
Trust Company, New York, New York, another clearing
agency or any successor registered under the
Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, and with respect to
Notes of any Series which are offered for sale solely
outside of the United States,
[____________________________], [______________]
office as common depositary for Euro-clear and CEDEL
or any successor thereto, which in each case shall be
designated by the Company pursuant to either Section
2.2 or 2.15.
Dollar: The term "Dollar" means the coin or currency of the
United States of America which as of the time of
payment is legal tender for the payment of public and
private debts.
ECU: The term "ECU" means the European Currency Unit as
defined and revised from time to time by the Council
of the European Communities.
Engineer's Certificate: The term "Engineer's Certificate" means a
certificate signed by a person appointed by the
Company who shall be an engineer, appraiser or other
expert, as the case may require. Such person may be an
officer or employee of the Company except where this
Indenture specifically requires the signature of an
independent engineer, appraiser or other expert.
Equipment: The term "Equipment" means standard-gauge railroad
tank cars and covered hopper cars, which tank cars and
covered hopper cars are rolling stock used or intended
for use in connection with interstate commerce and
which were first put into use on or after
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the date specified in the Indenture supplement under
which a Series of Notes is to be issued, and having an
aggregate Cost of not less than 133-1/3% of the
principal amount of such Series of Notes.
Euro-clear: The term "Euro-clear" means Morgan Guaranty Trust
Company of New York, Brussels office, as operator of
the Euro-clear System.
European Communities: The term "European Communities" means the European
Economic Community, the European Coal and Steel
Community and the European Atomic Energy Community.
Exchange Rate
Officer's Certificate: The term "Exchange Rate Officer's Certificate" means a
telex or a certificate setting forth the applicable
Official ECU Exchange Rate and the Dollar or Foreign
Currency amounts payable on the basis of such Official
ECU Exchange Rate in respect of the Principal of and
interest on Registered Notes, sent (in the case of a
telex) or signed (in the case of a certificate) by the
treasurer or any assistant treasurer of the Issuer,
and delivered to the Trustee.
Foreign Currency: The term "Foreign Currency" means a currency issued by
the government of any country other than the United
States of America.
GAAP: The term "GAAP" means, with respect to any computation
required or permitted hereunder, generally accepted
accounting principles in the United States on the date
of such computation.
Global Security: The term "Global Security" means, with respect to any
Series of Notes, a Note executed by the Company and
authenticated and delivered by the Trustee to the
Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and
pursuant to a Company Order, which (i) shall be
registered in the name of the Depositary or its
nominee and (ii) shall represent, and shall be
denominated in an amount equal to the aggregate
Principal amount of, all of the Outstanding Notes of
such Series or, pursuant to a Company Order, all of
the Outstanding Notes of such Series not issued in
definitive form.
Holder or Noteholder: The term "Holder" or "Noteholder" means
a bearer of an Unregistered Note or of a coupon
appertaining thereto, or a person in whose name a
Registered Note is registered on the Registrar's
books.
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Indenture: The term "Indenture" means this Indenture and
Security Agreement as amended or supplemented from
time to time and shall include the forms and terms
of particular Series of Notes established as
contemplated hereunder.
Independent Engineer: The term "Independent Engineer" means 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 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.
Investment: The term "Investment" means all loans, advances,
purchases of Capital Stock, capital contributions
and transfers of assets, and all sales and other
dispositions of assets for consideration
consisting of evidences of indebtedness, Capital
Stock or other securities of the purchaser.
Notes: The term "Notes" means the Senior Secured Notes of
any Series issued hereunder.
Officer: The term "Officer" means the President, any
Vice-President, the Treasurer, the Secretary or
the Controller of the Company.
Officers' Certificate: The term "Officers' Certificate" means a
certificate signed by two Officers or by any
Officer and an Assistant Treasurer or an Assistant
Secretary of the Company.
Official ECU Exchange Rate: The term "Official ECU Exchange Rate" applicable
to any currency with respect to any payment to be
made hereunder means the exchange rate between the
ECU and such currency reported by the Commission
of the European Communities (currently based on
the rates in effect at 2:30 p.m., Brussels time,
on the relevant exchange markets) or, if such
exchange rate ceases to be so reported, then such
exchange rate shall be determined by the Trustee
using, in its sole discretion and without
liability on its part, quotations from one or more
major banks in New York City or such other
quotations as the Trustee shall deem appropriate,
on the applicable record date.
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Opinion of Counsel: The term "Opinion of Counsel" means a written opinion
of legal counsel who is acceptable to the Company and
the Trustee. The counsel may be an employee of or
counsel to the Company.
Original Issue Discount
Note: The term "Original Issue Discount Note" means any Note
which provides for an amount less than the stated
Principal amount thereof to be due and payable upon
declaration of acceleration of the maturity thereof
pursuant to Section 7.2.
Person: The term "Person" means any individual, corporation,
partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or
government, or any agency or political subdivision
thereof.
Place of Payment: The term "Place of Payment," when used with respect to
the Notes of any Series, means the Principal office of
the Trustee in Chicago and the office of any Paying
Agent, unless the Company shall have otherwise
instructed the Trustee in writing.
Principal: The term "Principal" of a Note means the principal
amount of such Note plus, when appropriate, the
premium, if any, on such Note.
Principal office of
the Trustee: The term "Principal office of the Trustee," or other
similar term, shall mean the principal office of the
Trustee at which at any particular time its corporate
trust business shall be administered.
Redemption Date: The term "Redemption Date," when used with respect to
any Note to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
Redemption Price: The term "Redemption Price," when used with respect to
any Note to be redeemed, means the price at which it
is to be redeemed pursuant to this Indenture.
Registered Note: The term "Registered Note" means any Note issued
hereunder and registered as to Principal and interest
by the Registrar.
Related Parties: The term "Related Parties" means "related parties" as
defined in Rule 1.02 (t) of Regulation S-X of the SEC
as in effect on the date hereof.
Responsible Officer: The term "Responsible Officer", when used with respect
to the Trustee, shall mean the chairman or any
vice-chairman of the
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board of directors or trustees, the chairman or any
vice-chairman of the executive committee of the
board of directors or trustees, the president, any
vice president, the treasurer, the secretary, any
trust officer, any second or assistant
vice-president or any other officer or assistant
officer of the Trustee customarily performing
functions similar to those performed by the persons
who at the time shall be such officers,
respectively, or to whom any corporate trust matter
is referred because of his knowledge of and
familiarity with a particular subject.
Request: The term "Request" means 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.
SEC: The term "SEC" means the Securities and Exchange
Commission.
Series or Series
of Notes: The term "Notes" or "Series of Notes" means a series
of Notes. Except in Sections 2.1, 2.10 and 2.11 and
Articles Seven, Nine and Ten, the terms "Series" or
"Series of Notes" shall also mean a Tranche in the
event that the applicable Series may be issued in
separate Tranches.
Stated Maturity: The term "Stated Maturity", when used with respect
to any Note or any installment of Principal thereof
or interest thereon, means the date specified in
such Note as the fixed date on which the Principal
of such Note or such installment of Principal or
interest is due and payable.
Subordinated Indebtedness: The term "Subordinated Indebtedness" means 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 pursuant to a written
agreement.
Subsidiary: The term "Subsidiary" shall mean any corporation of
which the Company, or the Company and one or more
Subsidiaries, or any one or more Subsidiaries,
directly or indirectly own voting securities
entitling the holders thereof to elect a majority of
the directors, either at all times or so long as
there is no default or contingency which permits the
holders of any other class or classes of securities
to vote for the election of one or more directors.
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TIA: The term "TIA" means the Trust Indenture Act of
1939, as amended, as in effect on the date of this
Indenture.
Tranche: The term "Tranche" means all Notes of the same
Series which have the same issue date, Stated
Maturity, interest rate or method of determining
interest, and, in the case of Original Issue
Discount Notes, which have the same issue price.
Trustee: The term "Trustee" means the party named as such
in this Indenture until a successor replaces it
pursuant to the applicable provisions hereof and
thereafter means the successor, and if, at any
time, there is more than one Trustee, "Trustee" as
used with respect to the Notes of any Series,
including all Tranches thereof, shall mean the
Trustee with respect to that Series, including all
Tranches thereof.
U.S. Government
Obligations: The term "U.S. Government Obligations" means
securities which are (i) direct obligations of the
United States of America for the payment of which
its full faith and credit is pledged, or (ii)
obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of
the United States of America the payment of which
is unconditionally guaranteed as a full faith and
credit obligation by the United States of America,
which in either case are not callable or
redeemable at the option of the issuer thereof.
U.S. Government Obligations shall also include a
depositary receipt issued by a bank or trust
company as custodian with respect to any such U.S.
Government Obligation or a specific payment of
interest on or principal of any such U.S.
Government Obligation held by such custodian for
the account of the holder of a depositary receipt,
provided, however, that (except as required by
law) such custodian is not authorized to make any
deduction from the amount payable to the holder of
such depositary receipt from any amount received
by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on
or principal of the U.S. Government Obligation
evidenced by such depositary receipt.
U.S. Person: The term "U.S. Person" means a citizen or resident
of the United States, any corporation, partnership
or other entity created or organized in or under
the laws of the United States or any political
subdivision thereof, or any estate or trust the
income of which is subject to United States
federal income taxation regardless of its source.
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Unit: The term ""Unit" shall mean a unit of Equipment.
United States: The term "United States" means the United States
of America (including the States and the District
of Columbia), its territories, its possessions and
any other areas subject to its jurisdiction.
Unregistered Note: The term "Unregistered Note" means any Note issued
hereunder which is not a Registered Note.
Value: As used herein, shall mean an amount determined as
follows:
(1) the Value of any unit of Collateral
released by the Trustee as provided in Section
4.4, and as used in Sections 4.1 and 7.4 in
respect of Collateral, shall be deemed to be the
greater of (a) the fair market value thereof and
(b) the Cost thereof (as theretofore certified to
the Trustee) less 1/20 of such Cost for each full
year elapsed between the date such unit was first
put into use (as theretofore so certified) and the
date as of which Value is to be determined;
(2) the Value of any unit of Collateral for
which a security interest is granted to the
Trustee as provided in Section 4.4 shall be deemed
to be the lesser of (a) the fair market value
thereof and (b) the Cost of such unit or, in the
case of any unit of Equipment not new, the Cost
thereof less 1/20 of such Cost for each full year
elapsed between the date such unit was first put
into use and the date of the transfer thereof to
the Trustee; and
(3) the Value of any Unit of Collateral as
used in Section 4.5 shall be deemed to be the cost
thereof less 1/20th of such Cost for each full
year elapsed between the date such Unit was first
put into use and the date as of which Value is to
be determined.
Wholly-Owned Subsidiary: The term "Wholly-Owned Subsidiary"
shall mean a Subsidiary of which all of the stock
(other than directors' qualifying shares) is at
the time, directly or indirectly, owned by the
Company or by one or more Wholly-Owned
Subsidiaries of the Company or by the Company and
one or more Wholly-Owned Subsidiaries.
Yield to Maturity: The term "Yield to Maturity" means the yield to
maturity, calculated by the Company at the time of
issuance of a Series of Notes or, if applicable,
at the most recent determination of interest on
such Series in accordance with accepted financial
practice.
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SECTION 1.2. Other Definitions.
TERM SECTION
---- -------
"Account Holder"..................................................................2.16
"Bankruptcy Law"...................................................................7.1
"Component Currency"...............................................................2.5
"Conversion Date"..................................................................2.5
"Custodian"........................................................................7.1
"Definitive Note".................................................................2.15
"Dollar Equivalent of the ECU".....................................................2.5
"Dollar Equivalent of the Foreign Currency"........................................2.5
"Event of Default".................................................................7.1
"Final Certificate"...............................................................2.16
"Market Exchange Rate".............................................................2.5
"Paying Agent".....................................................................2.4
"Permanent Global Security".......................................................2.16
"Registrar"........................................................................2.4
"Specified Amount".................................................................2.5
"Temporary Global Security".......................................................2.16
"Valuation Date"...................................................................2.5
SECTION 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture noteholder" means a Holder or a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All other terms used in this Indenture which are defined in the TIA,
defined by SEC rule under the TIA or defined by TIA reference to the Securities
Act of 1933, as amended, shall (except as herein otherwise expressly provided or
unless the context otherwise requires) have the
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meanings assigned to such terms in said TIA and in said Securities Act as in
force at the date of this Indenture as originally executed.
SECTION 1.4. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and words
in the plural include the singular.
ARTICLE TWO
THE NOTES
SECTION 2.1. Issuable in Series; Series Issuable in Tranches.
Subject to Section 2.9, the aggregate principal amount of Notes which
may be authenticated and delivered under this Indenture is unlimited. The Notes
may be issued in one or more Series. There may be Registered Notes and
Unregistered Notes within a Series and the Notes may be subject to such
restrictions, and contain such legends, as required by law or as the Company
deems necessary or appropriate. Except as provided in the foregoing sentence,
and except as to Series issuable in Tranches, all Notes of a Series shall be
identical in all respects except that Notes of a Series with serial maturities
may differ with respect to maturity date, interest rate, redemption price and
denomination. Notes of different Series may differ in any respect; provided that
all Series of Notes shall be equally and ratably entitled to the benefits of
this Indenture.
Each Series may be issued in one or more Tranches. Except as provided
in the foregoing paragraph, all Notes of a Tranche shall have the same issue
date, Stated Maturity, interest rate or method of determining interest, and, in
the case of Original Issue Discount Securities, the same issue price.
SECTION 2.2. Establishment of Terms and Form of Series of Notes.
(a) At or prior to the issuance of any Series (including any
Tranche) of Notes, the following shall be established at the Company's
discretion either by or pursuant to a Board Resolution or by one or more
indentures supplemental hereto:
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(1) the title of the Notes of the Series (which title
shall distinguish the Notes of the Series from the Notes of
any other Series and from any other securities issued by the
Company);
(2) any limit upon the aggregate principal amount of
the Notes of the Series (or any limit upon the total aggregate
principal amount of more than one specified Series) which may
be authenticated and delivered under this Indenture (which
limit shall not pertain to Notes authenticated and delivered
upon registration of transfer of, or in exchange for, or in
lieu of, other Notes of the Series pursuant to Section 2.8,
2.9, 2.12, 3.6 or 9.5);
(3) the date or dates on which the Principal of the
Notes of the Series is payable;
(4) the rate or rates, which may be fixed or
variable, at which the Notes of the Series shall bear
interest, if any, or the method of calculating such rate or
rates of interest, the date or dates from which such interest
shall accrue, the dates on which such interest shall be
payable and, with respect to Registered Notes, the record date
for the interest payable on any interest payment date;
(5) the Collateral that secures Notes of the Series;
(6) the place or places where the Principal of and
interest, if any, and additional amounts, if any, on Notes of
the Series shall be payable (if other than Place of Payment);
(7) the period or periods within which, the price or
prices at which, and the terms and conditions upon which,
Notes of the Series may be redeemed, in whole or in part, if
at all;
(8) the obligation, if any, of the Company to redeem
or purchase Notes of the Series pursuant to any sinking fund
or analogous provisions or upon the happening of a specified
event or at the option of a Holder thereof and the period or
periods within which, the price or prices at which, and the
terms and conditions upon which, Notes of the Series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) if in other than denominations of $1,000 and any
integral multiple thereof, the denominations, which may be in
Dollars, any Foreign Currency or ECU, in which Notes of the
Series shall be issuable;
(10) if other than the principal amount thereof, the
portion of the principal amount of Notes of the Series which
shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Section 6.2 or provable in
bankruptcy pursuant to Section 6.3;
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(11) whether Notes of the Series shall be issuable as
Registered Notes or Unregistered Notes (with or without
interest coupons), or both, and any restrictions applicable to
the offering, sale or delivery of Notes and whether, and the
terms upon which, Unregistered Notes of a Series may be
exchanged for Registered Notes of the same Series and vice
versa;
(12) whether and under what circumstances Notes of
the Series shall be convertible into, or exchangeable for,
Notes of any other Series or any other securities of the
Company or any Affiliate of the Company;
(13) whether Notes of the Series are issuable as, or
exchangeable for, one or more Global Securities and, in such
case, whether interests in such Global Security or Global
Securities shall be exchangeable for definitive Notes, and the
identity of the Depositary with respect to such Series;
(14) whether and under what circumstances the Company
will pay additional amounts on the Notes of that Series held
by a person who is not a U.S. person in respect of taxes or
similar charges withheld or deducted and, if so, whether the
Company will have the option to redeem such Notes rather than
pay such additional amounts;
(15) the form of the Notes (or forms thereof if
Unregistered and Registered Notes shall be issuable in such
Series), including such legends as required by law or as the
Company deems necessary or appropriate, the form of any
coupons or Temporary Global Security which may be issued and
the forms of any certificates which may be required hereunder
or which the Company may require in connection with the
offering, sale, delivery or exchange of Unregistered Notes;
(16) the monies or currency units in which payments
of interest or Principal are payable with respect to the
Notes;
(17) whether Notes of the Series are issuable in
Tranches;
(18) whether the principal amount of the Notes of the
Series payable at maturity is to be determined by the
relationship between a denominated currency and another
currency; and
(19) any other terms of the Series (which terms shall
not be inconsistent with the provisions of this Indenture)
including any terms which may be required by or advisable
under United States laws or regulations or advisable in
connection with the marketing of Notes of that Series.
(b) If the terms and form or forms of any Series of Notes are
established by or pursuant to a Board Resolution, the Company shall deliver a
copy of such Board Resolution to
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the Trustee prior to the issuance of such Series together with (1) the form or
forms of Notes which have been approved attached thereto, or (2) if such Board
Resolution authorizes a specific Officer or Officers to approve the terms and
form or forms of the Notes, a certificate of such Officer or Officers approving
the terms and form or forms of Notes with such form or forms of Notes attached
thereto.
SECTION 2.3. Execution, Authentication and Delivery.
(a) Notes shall be executed on behalf of the Company by its President
or a Vice-President, and by its Treasurer or an Assistant Treasurer or its
Secretary or an Assistant Secretary. Signatures shall be manual or facsimile.
The Company's seal shall be reproduced on the Notes and may, but need not, be
attested. The coupons of Unregistered Notes shall bear the facsimile signature
of the Treasurer or an Assistant Treasurer of the Company.
(b) If an Officer, an Assistant Treasurer or an Assistant Secretary
whose signature is on a Note or coupon no longer holds that office at the time
the Note is authenticated, the Note or coupon shall be valid and binding
nevertheless.
(c) A Note shall not be valid until authenticated by the manual
signature of the Trustee or an Authenticating Agent and no coupon shall be valid
until the Note to which it appertains has been so authenticated. Such signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture. Each Unregistered Note shall be dated as provided in connection with
the establishment of the Series thereof or, if no such date is so specified, the
date of its original issuance and each Registered Note shall be dated the date
of its authentication.
(d) The Trustee shall at any time, and from time to time,
authenticate and deliver Notes of any Series executed and delivered by the
Company for original issue, upon receipt by the Trustee of (i) a Company Order
for the authentication and delivery of such Notes, (ii) if the terms and form or
forms of the Notes of such Series have been established by or pursuant to a
Board Resolution as permitted by Section 2.2, a copy of such Board Resolution
and any certificate that may be required pursuant to Section 2.2(b) and (iii) an
Opinion of Counsel stating:
(1) if the form of such Notes has been established by or
pursuant to a Board Resolution as permitted by Section 2.2, that such
form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Notes have been established by or
pursuant to a Board Resolution as permitted by Section 2.2, that such
terms have been established in conformity with the provisions of this
Indenture; and
(3) that such Notes, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company,
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enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors' rights and to
general equity principles;
provided, however, that in the case of any Series issuable in Tranches, if the
Trustee has previously received the documents referred to in Section 2.3(d) (i),
(ii) and (iii) with respect to any Tranche of such Series, the Trustee shall
authenticate and deliver Notes of such Series executed and delivered by the
Company for original issue upon receipt by the Trustee of the applicable Company
Notice.
Notwithstanding the foregoing, until the Company has delivered an
Officers' Certificate to the Trustee and the Registrar stating that, as a result
of the action described, the Company would not suffer adverse consequences under
the provisions of United States law or regulations in effect at the time of the
delivery of Unregistered Notes, (i) delivery of Unregistered Notes will be made
only outside the United States and (ii) Unregistered Notes will be released in
definitive form, whether in the form of a Global Security or otherwise, to the
person entitled to physical delivery thereof only upon presentation of a
certificate in the form prescribed by the Company in such Officers' Certificate.
(e) The aggregate Principal amount of Notes of any Series outstanding
at any time may not exceed any limit upon the maximum Principal amount for such
Series set forth in the Board Resolution (or certificate of an Officer or
Officers) or supplemental indenture pursuant to Section 2.2.
(f) At any time the Trustee may appoint an Authenticating Agent or
Agents with respect to one or more Series of Notes which Authenticating Agent
shall be authorized to act on behalf of the Trustee to authenticate Notes of
such Series, and Notes so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Notes by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent.
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The Company agrees to pay to each Authenticating Agent from time to
time (unless such Authenticating Agent shall otherwise agree) reasonable
compensation for its services under this Section.
SECTION 2.4. Registrar and Paying Agent.
The Company may maintain in the Borough of Manhattan, The City of New
York, State of New York, an office or agency where, unless otherwise restricted
by the provisions of Section 2.15, Registered Notes may be presented for
registration of transfer or for exchange ("Registrar") and an office or agency
where (subject to Sections 2.5(c) and 2.8(b)) Notes may be presented for payment
or, in the case of Unregistered Notes, for exchange ("Paying Agent"). With
respect to any Series of Notes issued in whole or in part as Unregistered Notes,
the Company shall maintain one or more Paying Agents located outside the United
States and shall maintain such Paying Agents for a period of two years after the
Principal of such Unregistered Notes has become due and payable. During any
period thereafter for which it is necessary in order to conform to United States
tax law or regulations, the Company shall maintain a Paying Agent outside the
United States to which the Unregistered Notes or coupons appertaining thereto
may be presented for payment and will provide the necessary funds therefor to
such Paying Agent upon reasonable notice. The Registrar shall keep a register
with respect to each Series of Notes issued in whole or in part as Registered
Notes and to their transfer and exchange. The Company may appoint one or more
co-Registrars and one or more additional Paying Agents for each Series of Notes
and the Company may terminate the appointment of any co-Registrar or Paying
Agent at any time upon written notice. The term "Registrar" includes any
co-Registrar. The term "Paying Agent" includes any additional Paying Agent. The
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. If the Company fails to maintain a Registrar or Paying
Agent, the Trustee shall act as such.
SECTION 2.5. Currency and Manner of Payments in Respect of Notes.
(a) With respect to Notes denominated in Dollars or Foreign Currency
and with respect to Registered Notes denominated in ECU with respect to which
the Holders of such Notes have not made the election provided for in paragraph
(b) below, the following payment provisions shall apply:
(1) Except as provided in subparagraph (a) (2) below, in
paragraphs (e) and (j) below, in the applicable Company Notice, if any,
or in the form or forms of any Series of Note, payment of the Principal
of any Note will be made at the Place of Payment by delivery of a check
in the currency in which the Note is denominated on the payment date
against surrender of such Note, and any interest on any Note which is a
Registered Note will be paid at the Place of Payment by mailing a check
in the currency in which the Notes were issued to the Person entitled
thereto at the address of such Person appearing on the Note register.
Unless otherwise provided in the Board Resolution establishing a Series
or in the applicable Company Notice, if any, interest on any Note which
is an
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Unregistered Note will be paid in the currency in which the Notes
were issued in accordance with the provisions of subparagraph (c)
below.
(2) Payment of the Principal of and interest on such Note
may also, subject to applicable laws and regulations, be made at such
other place or places as may be designated by the Company by any
appropriate method.
(b) With respect to Registered Notes denominated in ECU, the
following payment provisions shall apply, except as otherwise provided in
paragraphs (e) and (f) below:
(1) The Board of Directors may provide that with respect to
any Series of such Notes that Holders shall have the option to receive
payments of Principal of and interest on such Note in any of the
currencies which may be designated for such election in such Note by
delivering to the Trustee and the Company a written election, to be in
form and substance satisfactory to the Trustee and the Company, not
later than the close of business on the record date immediately
preceding the applicable payment date. Such election will remain in
effect for such Holder until changed by the Holder by written notice to
the Trustee (but any such change must be made not later than the close
of business on the record date immediately preceding the next payment
date to be effective for the payment to be made on such payment date
and no such change may be made with respect to payments to be made on
any Note with respect to which notice of redemption has been given by
the Company pursuant to Article Three). Any Holder of any such Note who
shall not have delivered any such election to the Trustee not later
than the close of business on the applicable record date will be paid
the amount due on the applicable payment date in ECU as provided in
paragraph (a) of this Section 2.5. Payment of Principal shall be made
on the payment date against surrender of such Notes. Payment of
Principal and interest shall be made at the Place of Payment by mailing
at such location a check in the applicable currency to the Person
entitled thereto at the address of such Person appearing on the Note
register.
(2) Payment of the Principal of and interest on such Note
may also, subject to applicable laws and regulations, be made at such
other place or places as may be designated by the Company.
(c) To the extent provided in the Notes of a Series, (i) interest, if
any, on Unregistered Notes shall be paid only against presentation and surrender
of the coupons for such interest installments as are evidenced thereby as they
mature and (ii) original issue discount (as defined in Section 1273 of the
Internal Revenue Code of 1986 as it may be amended from time to time), if any,
on Unregistered Notes shall be paid only against presentation and surrender of
such Notes, in either case at the office of a Paying Agent located outside of
the United States, unless the Company shall have otherwise instructed the
Trustee in writing and only in the currency in which the Note is denominated
(except as provided in paragraph (e) below). Principal of Unregistered Notes
shall be paid only against presentation and surrender thereof as provided in the
Notes of a Series and only in the currency in which the Note is denominated
(except as
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provided in paragraph (e) below, the Board Resolution establishing such Series,
or the applicable Company Notice, if any). If at the time a payment of Principal
or interest, if any, or original issue discount, if any, on an Unregistered Note
or coupon shall become due, the payment of the full amount so payable at the
office or offices of all the Paying Agents is illegal or effectively precluded
because of the imposition of exchange controls or other similar restrictions on
the payment of such amount in Dollars or Foreign Currency, then the Company may
instruct the Trustee to make such payments at the office of a Paying Agent
located in the United States, provided that provision for such payment in the
United States would not cause such Unregistered Note to be treated as a
"registration-required obligation" under United States tax law and regulations.
(d) Not later than the fourth Business Day after the record date for
each payment date, the Trustee will deliver to the Company a written notice
specifying the aggregate amounts of Principal of and interest on the Notes to be
made on such payment date, specifying the amounts so payable in respect of the
Registered and the Unregistered Notes and the currencies or currency units in
which such payments are to be made. If the Board of Directors has provided for
the election referred to in paragraph (b) above and if at least one Holder has
made such election, then not later than the eighth Business Day following each
record date the Company will deliver to the Trustee an Exchange Rate Officer's
Certificate in respect of the Dollar or Foreign Currency payments to be made on
such payment date. The Dollar or Foreign Currency amount receivable by Holders
of Registered Notes denominated in ECU who have elected payment in such currency
as provided in paragraph (b) above shall be determined by the Company on the
basis of the applicable Official ECU Exchange Rate set forth in the applicable
Exchange Rate Officer's Certificate.
(e) If the Foreign Currency in which any payments of Principal or
interest are to be made ceases to be used both by the government of the country
which issued such currency and for the settlement of transactions by public
institutions of or within the international banking community, or if the ECU
ceases to be used both within the European Monetary System and for the
settlement of transactions by public institutions of or within the European
Communities, then with respect to each date for the payment of Principal of and
interest on the applicable Notes occurring after the last date on which the
Foreign Currency or ECU was so used (the "Conversion Date"), the Dollar shall be
the currency of payment for use on each such payment date. The Dollar amount to
be paid by the Company to the Trustee and by the Trustee or any Paying Agent to
the Holders of such Notes with respect to such payment date shall be the Dollar
Equivalent of the Foreign Currency or, in the case of ECU, the Dollar Equivalent
of the ECU as determined by the Trustee as of the record date (the "Valuation
Date") in the manner provided in paragraphs (g) or (h) below.
(f) If the Holder of a Registered Note with respect to which payments
of Principal or interest are to be made in ECU elects payment in a specified
Foreign Currency as provided for by paragraph (b) and such Foreign Currency
ceases to be used both by the government of the country which issued such
currency and for the settlement of transactions by public institutions of or
within the international banking community, such Holder shall receive payment in
ECU,
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and if ECU ceases to be used both within the European Monetary System and
for the settlement of transactions by public institutions of or within the
European Communities, such Holder shall receive payment in Dollars.
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Bank of Montreal--Foreign Exchange Desk as of each Valuation
Date and shall be obtained by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Valuation Date.
(h) The "Dollar Equivalent of the ECU" shall be determined by the
Bank of Montreal--Foreign Exchange Desk as of each Valuation Date and shall be
the sum obtained by adding together the results obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market Exchange
Rate on the Valuation Date for such Component Currency.
(i) For purposes of this Section 2.5 the following terms shall have
the following meanings:
A "Component Currency" shall mean any currency which, on the Conversion
Date, was a component currency of the ECU.
A "Specified Amount" of a Component Currency shall mean the number of
units or fractions thereof which such Component Currency represented in the ECU
on the Conversion Date. If after the Conversion Date the official unit of any
Component Currency is altered by way of combination or subdivision, the
Specified Amount of such Component Currency shall be divided or multiplied in
the same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective Specified
Amounts of such Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single currency, and such
amount shall thereafter be a Specified Amount and such single currency shall
thereafter be a Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified Amount of
such Component Currency shall be replaced by specified amounts of such two or
more currencies, the sum of which, at the Market Exchange Rate of such two or
more currencies on the date of such replacement, shall be equal to the Specified
Amount of such former Component Currency divided by the number of currencies
into which such Component Currency was divided, and such amounts shall
thereafter be Specified Amounts and such currencies shall thereafter be
Component Currencies.
"Market Exchange Rate" shall mean for any currency the noon Dollar
buying rate for that currency for cable transfers quoted in New York City on the
Valuation Date as quoted by the Federal Reserve Bank of New York. If such rates
are not available for any reason with respect to one or more currencies for
which an Exchange Rate is required, the Bank of Montreal--Foreign Exchange Desk
shall use, in its sole discretion and without liability on its part, such
quotation of
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the Federal Reserve Bank of New York as of the most recent available date, or
quotations from one or more major banks in New York City or in the country of
issue of the currency in question, or such other quotations as the Trustee shall
deem appropriate. Unless otherwise specified by the Trustee, if there is more
than one market for dealing in any currency by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such currency
shall be that upon which a nonresident issuer of securities designated in such
currency would purchase such currency in order to make payments in respect of
such securities.
All decisions and determinations of the Bank of Montreal-Foreign
Exchange Desk regarding the Dollar Equivalent of the Foreign Currency, the
Dollar Equivalent of the ECU and the Market Exchange Rate shall be in its sole
discretion and shall, in the absence of manifest error, be conclusive for all
purposes and irrevocably binding upon the Company and all Holders of the Notes.
In the event that the Foreign Currency ceases to be used both by the government
of the country which issued such currency and for the settlement of transactions
by public institutions of or within the international banking community, the
Company, after learning thereof, will immediately give notice thereof to the
Trustee (and the Trustee will promptly thereafter give notice in the manner
provided in Section 10.2 to the Holders) specifying the Conversion Date. In the
event the ECU ceases to be used both within the European Monetary System and for
the settlement of transactions by public institutions of or within the European
Communities, the Company, after learning thereof, will immediately give notice
thereof to the Trustee (and the Trustee will promptly thereafter give notice in
the manner provided in Section 10.2 to the Holders) specifying the Conversion
Date and the Specified Amount of each Component Currency on the Conversion Date.
In the event of any subsequent change in any Component Currency as set forth in
the definition of Specified Amount above, the Company, after learning thereof,
will similarly give notice to the Trustee (and the Trustee will promptly
thereafter give notice in the manner provided in Section 10.2 to the Holders).
The Trustee shall be fully justified and protected in relying on and
acting upon the information so received by it from the Company and shall not
otherwise have any duty or obligation to determine such information
independently.
(j) Principal and interest payable on a Note represented by an
interest in a Temporary Global Security pursuant to Section 2.16 will not be
paid until the Holder thereof exchanges the appropriate portion of such
Temporary Global Security for an interest in the Permanent Global Security
except as provided in the next paragraph.
Interest, if any, payable on a Note represented by a Temporary Global
Security in respect of an interest payment date occurring prior to the Exchange
Date will be paid to Euro-clear and CEDEL, as the case may be, with respect to
that portion of such Temporary Global Security held for its account; provided,
however, that no interest will be paid to Euroclear and CEDEL, as the case may
be, until delivery by it to the Trustee of a certificate in form and substance
acceptable to the Company, dated no earlier than such interest payment date.
Such a certificate of Euro-clear or CEDEL, as the case may be, shall be based on
certificates of their Account Holders in form and substance acceptable to the
Company, and dated no earlier than 5 days prior to such
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interest payment date. The delivery to the Trustee by Euro-clear or CEDEL of any
such certificate may be relied upon by the Company and the Trustee as conclusive
evidence that a corresponding certificate or certificates has or have been
delivered to Euro-clear or CEDEL, as the case may be, pursuant to the terms of
this Indenture. Each of Euro-clear or CEDEL will in such circumstances credit
the interest received by it in respect of such Note represented by such
Temporary Global Security to the accounts of or for the beneficial owners
thereof.
The Permanent Global Securities will provide that interest, if any,
payable in respect of any interest payment date will be paid to each of
Euro-clear and CEDEL with respect to that portion of such Permanent Global
Security held for its account. Each of Euro-clear and CEDEL will in such
circumstances credit the interest received by it in respect of such Permanent
Global Security to the accounts of or for the beneficial owners thereof.
Interest, if any, will be payable in respect of Definitive Notes upon
the presentation and surrender of the appropriate coupons appertaining thereto.
(k) Notwithstanding anything contained herein to the contrary, any
payment of principal of or interest on any Note may be made in the manner
specified on the form of such Note.
SECTION 2.6. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust, for the benefit of
Noteholders of any or all Series of Notes, or the Trustee, all money held by the
Paying Agent for the payment of principal of or interest on such Series of
Notes, and that the Paying Agent will notify the Trustee of any default by the
Company in the making of any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
If the Company or a subsidiary thereof acts as Paying Agent, it shall segregate
the money held by it for the payment of principal or interest on any Series of
Notes and hold such money as a separate trust fund. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon so doing
the Paying Agent shall have no further liability for the money so paid.
SECTION 2.7. Noteholder Lists; Ownership of Notes.
(a) The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders of each Series of Notes. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee semiannually on or before the last day of
June and December in each year, and at such other times as the Trustee may
request in writing, a list, in such form and as of such date as the Trustee may
reasonably require, containing all the information in the possession or control
of the Registrar, the Company or any of its Paying Agents other than the Trustee
as to the names and addresses of Holders of each such Series of Notes. If there
are Unregistered Notes of any Series outstanding, even if the Trustee is the
Registrar, the Company shall furnish to the Trustee such a list containing such
information with respect to Holders of such Unregistered Notes only.
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(b) Ownership of Registered Notes of a Series shall be proved by the
register for such Series kept by the Registrar. Ownership of Unregistered Notes
may be proved by the production of such Unregistered Notes or by a certificate
or affidavit executed by the person holding such Unregistered Notes or by a
depositary with whom such Unregistered Notes were deposited, if the certificate
or affidavit is satisfactory to the Trustee. The Company, the Trustee and any
agent of the Company may treat the bearer of any Unregistered Note or coupon and
the person in whose name a Registered Note is registered as the absolute owner
thereof for all purposes.
SECTION 2.8. Transfer and Exchange.
(a) Where Registered Notes of a Series are presented to the Registrar
with a request to register their transfer or to exchange them for an equal
principal amount of Registered Notes of the same Series and date of maturity of
other authorized denominations, the Registrar shall, unless otherwise restricted
by the provisions of Section 2.15, register the transfer or make the exchange if
its customary requirements for such transactions are met.
(b) If both Registered and Unregistered Notes are authorized for a
Series of Notes and the terms of such Notes permit, (i) Unregistered Notes may
be exchanged for an equal principal amount of Registered or Unregistered Notes
of the same Series and date of maturity in any authorized denominations upon
delivery to the Registrar (or a Paying Agent, if the exchange is for
Unregistered Notes) of the Unregistered Note with all unmatured coupons and all
matured coupons in default appertaining thereto and if all other requirements of
the Registrar (or such Paying Agent) and such Notes for such exchange are met,
and (ii) Registered Notes may be exchanged for an equal principal amount of
Unregistered Notes of the same Series and date of maturity in any authorized
denominations (except that any coupons appertaining to such Unregistered Notes
which have matured and have been paid shall be detached) upon delivery to the
Registrar of the Registered Notes and if all other requirements of the Registrar
(or such Paying Agent) and such Notes for such exchange are met.
Notwithstanding the foregoing, the exchange of Unregistered Notes for
Registered Notes or Registered Notes for Unregistered Notes will be subject to
the satisfaction of the provisions of United States laws and regulations in
effect at the time of such exchange, and no exchange of Registered Notes for
Unregistered Notes will be made until the Company has notified the Trustee and
the Registrar that, as a result of such exchange, the Company would not suffer
adverse consequences under such law or regulations.
(c) To permit registrations of transfers and exchanges, the Trustee
shall, unless otherwise restricted by the provisions of Section 2.15,
authenticate Notes upon surrender of Notes for registration of transfer or for
exchange as provided in this Section. The Company will make any charge for any
registration of transfer or exchange but may require the payment by the party
requesting such registration of transfer exchange of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith, but not
for any exchange pursuant to Section 2.12, 3.6 or 9.5.
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(d) Neither the Company nor the Registrar shall be required (i) to
issue, register the transfer of or exchange Notes of any Series for the period
of 15 days immediately preceding the selection of any such Notes to be redeemed
and ending at the close of business on the first publication of the relevant
notice of redemption, or (ii) to register the transfer of or exchange Notes of
any Series selected, called or being called for redemption as a whole or the
portion being redeemed of any such Notes selected, called or being called for
redemption in part.
(e) Notwithstanding the foregoing, no Notes of one Tranche may be
transferred or exchanged for Notes of any other Tranche.
(f) Unregistered Notes or any coupons appertaining thereto shall be
transferable by delivery.
SECTION 2.9. Replacement Notes.
(a) If a mutilated Note or a Note with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall issue and
the Trustee shall authenticate and deliver in exchange therefor a replacement
Registered Note, if such surrendered Note was a Registered Note, or a
replacement Unregistered Note with coupons corresponding to the coupons
appertaining to the surrendered Note, if such surrendered Note was an
Unregistered Note, of the same Series and date of maturity, if the Trustee's
requirements are met.
(b) If the Holder of a Note claims that the Note or any coupon
appertaining thereto has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Registered Note, if
such Holder's claim pertains to a Registered Note, or a replacement Unregistered
Note with coupons corresponding to the coupons appertaining to the lost,
destroyed or wrongfully taken Unregistered Note or the Unregistered Note to
which such lost, destroyed or wrongfully taken coupon appertains, if such
Holder's claim pertains to an Unregistered Note, of the same Series and date of
maturity, if the Trustee's requirements are met; provided, however, that the
Holder shall furnish to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Note and of the ownership
thereof, and that the Trustee or the Company may require any such Holder to
provide to the Trustee or the Company Note or indemnity sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee, any
Agent or any Authenticating Agent from any loss which any of them may suffer if
a Note is replaced. The Company and the Trustee may charge the party requesting
a replacement Note for its expenses in replacing a Note.
(c) In case any Note which has matured or is about to mature shall
become mutilated or be destroyed, lost or stolen, the Company may, instead of
issuing a substitute Note, pay or authorize the payment of such Note (without
surrender thereof except in the case of a mutilated Note) if the applicant for
such payment shall furnish to the Company such Note or indemnity as it may
require to save it harmless and, in case of destruction, loss or theft, evidence
to the satisfaction of the Company of the destruction, loss or theft of such
Note and of the ownership thereof.
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(d) Every substituted Note issued pursuant to the provisions of this
Section 2.9 by virtue of the fact that any Note is mutilated, destroyed, lost or
stolen shall, with respect to such Note, constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Note
shall at any time be enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Notes duly issued under this Indenture. All Notes shall be held and owned upon
the express condition that (to the extent lawful) the foregoing provisions shall
be exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes and shall preclude any and all other rights or remedies,
notwithstanding any law or statute now existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments or
other securities without their surrender.
(e) Notwithstanding the foregoing, a Note of one Tranche may not be
replaced with a Note of any other Tranche.
SECTION 2.10. Outstanding Notes.
(a) Notes outstanding at any time are all Notes authenticated and
delivered by the Trustee in accordance with the provisions of this Indenture,
except:
(i) Those cancelled by the Trustee and those delivered to it
for cancellation;
(ii) Notes which have been paid pursuant to Section 2.9 or in
exchange for or in lieu of which other Notes have been authenticated
and delivered pursuant to this Indenture, unless proof satisfactory to
the Trustee is presented that any such Notes are held by bona fide
Holders in due course; and
(iii) Notes or portions thereof for whose payment, redemption
or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent (as defined in Section 2.4) (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company shall
act as its own Paying Agent) for the Holders of such Notes; provided
that, if such Notes or portions thereof are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made.
(b) A Note does not cease to be outstanding because the Company or an
Affiliate holds the Note.
(c) In determining whether the Holders of the requisite principal
amount of outstanding Notes of any Series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, the
principal amount of an Original Issue Discount Note that shall be deemed to be
outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the
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maturity thereof pursuant to Section 6.2 or 6.3 and the principal amount of any
Notes denominated in a Foreign Currency or ECU that shall be deemed to be
outstanding for such purposes shall be determined by converting the Specified
Foreign Currency or the Specified Amount of each Component Currency into Dollars
at the Market Exchange Rate as of the date of such determination.
SECTION 2.11. Notes Held by the Company or an Affiliate.
In determining whether the Holders of the requisite principal amount of
Notes of any Series have concurred in any direction, waiver or consent, Notes of
such Series owned by the Company or an Affiliate shall be disregarded, except
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes of such Series
which the Trustee knows are so owned shall be so disregarded.
SECTION 2.12. Temporary Notes.
(a) Until definitive Registered Notes of any Series are ready for
delivery, the Company may prepare and execute and the Trustee shall authenticate
temporary Registered Notes of such Series. Temporary Registered Notes of any
Series shall be substantially in the form of definitive Registered Notes of such
Series but may have variations that the Company considers appropriate for
temporary Notes. Every temporary Registered Note shall be executed by the
Company and authenticated by the Trustee, and registered by the Registrar, upon
the same conditions, and with like effect, as a definitive Registered Note.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Registered Notes of the same Series and date of maturity
in exchange for temporary Registered Notes.
(b) Until definitive Unregistered Notes of any Series are ready for
delivery, the Company may prepare and execute and the Trustee shall authenticate
one or more temporary Unregistered Notes, which may have coupons attached or
which may be in the form of a single temporary global Unregistered Note of that
Series without coupons. The temporary Unregistered Note or Notes of any Series
shall be substantially in the form approved by or pursuant to a Board Resolution
or one or more Indentures supplemental hereto and shall be delivered to one of
the Paying Agents located outside the United States or to such other person or
persons as the Company shall direct against such certification as the Company
may from time to time prescribe by or pursuant to a Board Resolution. The
temporary Unregistered Note or Notes of a Series shall be executed by the
Company and authenticated by the Trustee upon the same conditions, and with like
effect, as a definitive Unregistered Note of such Series, except as provided
herein or therein. A temporary Unregistered Note or Notes shall be exchangeable
for definitive Unregistered Notes (which may be Global Securities), at the time
and on the conditions, if any, specified in the temporary Note.
Upon any exchange of a part of a temporary Unregistered Note of a
Series for definitive Unregistered Notes of such Series, the temporary
Unregistered Note shall be endorsed by the Trustee or Paying Agent to reflect
the reduction of its principal amount by an amount equal to
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the aggregate principal amount of definitive Unregistered Notes of such Series
so exchanged and endorsed.
SECTION 2.13. Cancellation.
The Company at any time may deliver Notes and coupons to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Notes and coupons surrendered to them, for registration of transfer,
for exchange or payment or for credit against any payment in respect of a
sinking or analogous fund. The Trustee shall cancel all Notes and coupons
surrendered for registration of transfer, or for exchange, payment or
cancellation and may dispose of cancelled Notes and coupons as the Company
directs; provided, however, that any Unregistered Notes of a Series delivered to
the Trustee for exchange prior to maturity shall be retained by the Trustee for
reissue as provided herein or in the Notes of such Series. The Company may not
issue new Notes to replace Notes that it has paid or delivered to the Trustee
for cancellation.
SECTION 2.14. Defaulted Interest.
If the Company defaults on a payment of interest on a Series of Notes,
it shall pay the defaulted interest as provided in such Notes or in any lawful
manner not inconsistent with the requirements of any securities exchange on
which such Notes may be listed and acceptable to the Trustee. With respect to
any Registered Notes, the Trustee may pay defaulted interest, plus any interest
payable on the defaulted interest, to the Holders of such Registered Notes on a
subsequent special record date. The Company shall fix the record date and the
payment date. At least 15 days before the record date, the Company shall mail to
such Holders a notice that states the record date, the payment date and the
amount of interest to be paid.
SECTION 2.15. Notes Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Section 2.2 that the
Notes of a particular Series are to be issued as one or more Global Securities,
then the Company shall execute and the Trustee shall, in accordance with Section
2.3 and the Company Order delivered to the Trustee thereunder, authenticate and
deliver one or more Global Securities which (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of, all of the
outstanding Notes of such Series, (ii) shall be registered in the name of the
Depositary for such Global Security or its nominee, (iii) shall be delivered by
the Trustee to the Depositary or pursuant to the Depositary's instruction and
(iv) shall bear a legend substantially to the following effect: "Except as
otherwise provided in Section 2.15 of the Indenture, this security may be
transferred, in whole but not in part, only to another nominee of the Depositary
or to a successor Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding any other provision of this Section 2.15 or of
Section 2.4, unless and until it is exchanged in whole or in part for Notes in
definitive form, the Global Security of a Series may be transferred, in whole
but not in part and in the manner provided in Section 2.4, to
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another nominee of the Depositary for such Series, or to a successor Depositary
for such Series selected or approved by the Company or to a nominee of such
successor Depositary.
(c) If at any time the Depositary for a Series of Notes notifies the
Company that it is unwilling or unable to continue as Depositary for such Series
or if at any time the Depositary for such Series shall no longer be registered
or in good standing under the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation and a successor Depositary for such
Series is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such condition, as the case may be, this Section
2.15 shall no longer be applicable to the Note of such Series and the Company
will execute, and the Trustee will authenticate and deliver, Notes of such
Series in definitive registered form without coupons, or in definitive bearer
form with coupons, as applicable, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
of such Series in exchange for such Global Security. In addition, the Company
may at any time determine that some or all of the Notes of any Series shall no
longer be represented by a Global Security. In such event, the Company will
execute and the Trustee, upon receipt of an Officers' Certificate evidencing
such determination by the Company, will authenticate and deliver Notes of such
Series in definitive form, in authorized denominations, to (i) the Person
specified by such Depositary equal to and in exchange for such Person's
beneficial interest in the Global Security and (ii) to such Depositary a new
Global Security in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate principal
amount of definitive Notes delivered to Holders thereof, or interests in
applicable portions thereof. Upon the exchange of the Global Security for all
such Notes in definitive form, in authorized denominations, the surrendered
Global Security shall be cancelled by the Trustee. Such Notes in definitive
registered form issued in exchange for the Global Security or portion thereof
pursuant to this Section 2.15(c) shall be issued in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Notes to the Persons in whose name such Notes are so
registered. Notes in definitive bearer form shall be issued in exchange for the
Global Security or portion thereof in the manner provided for the issuance of
Unregistered Notes in Section 2.12(b) above.
SECTION 2.16. Unregistered Notes Represented by Global Security.
(a) Unless otherwise specified by the applicable Company Order, the
Notes of any Series issued as Unregistered Notes will initially be represented
by one or more temporary global Securities, without interest coupons (each, a
"Temporary Global Security"). Upon receipt of a Company Order with respect to a
Series of Notes, the Trustee, in accordance with such Company Order, shall (1)
insert on the face of the Temporary Global Security for such Series (a) the
principal amount, (b) the issue date, (c) the maturity date, (d) the interest
rate or the method of determining such rate, and (e) any other terms required by
the form of the Note of such Series to be inserted, as specified in the Company
Order, (2) manually authenticate such Temporary Global Security and (3) deliver
such Temporary Global Security to the Depositary designated by the Company
pursuant to either Sections 2.2 or 2.15.
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(b) On or after the date which is 45 days after the issue date of a
Temporary Global Security (the "Exchange Date"), the Notes represented by such
Temporary Global Security may be exchanged for Notes to be represented
thereafter by a single permanent global Security, without interest coupons (a
"Permanent Global Security"), provided, however, that no Note represented by a
Temporary Global Security shall be exchanged for a Note represented by a
Permanent Global Security unless the Trustee shall have received a certificate
(a "Final Certificate"), in form and substance reasonably satisfactory to the
Company, signed by Euro-clear or CEDEL, as the case may be, in respect of such
security. On or after the Exchange Date and upon receipt of the Final
Certificate in respect of a security, dated no earlier than such Exchange Date,
the Trustee shall (1) endorse the Temporary Global Security to reflect the
reduction of its principal amount by the aggregate principal amount of such
Note, (2) insert on the face of the Permanent Global Security for such Series
(a) the principal amount, (b) the issue date, (c) the maturity date, (d) the
interest rate or method of determining such rate, and (e) any other terms
required by the form of the Note of such Series to be inserted, as set forth on
the face of the Temporary Global Security for such Series, (3) manually
authenticate such Permanent Global Security and (4) deliver such Permanent
Global Security to the Depositary to be held outside the United States for the
accounts of Euro-clear and CEDEL, for credit to the respective accounts at
Euro-clear and CEDEL designated by or on behalf of the beneficial owner of such
Note. Final Certificates of Euro-clear or CEDEL, as the case may be, shall be
based on certificates of the account holders listed in the records of Euro-clear
or CEDEL, as the case may be, as being entitled to all or any portion of the
applicable Temporary Global Security (as to each, its "Account Holder"). An
Account Holder of Euro-clear or CEDEL, as the case may be, desiring to effect
the exchange of an interest in a Temporary Global Security for an interest in a
Permanent Global Security shall instruct Euro-clear or CEDEL, as the case may
be, to request such exchange on its behalf and shall deliver to Euro-clear or
CEDEL, as the case may be, a certificate in form and substance reasonably
satisfactory to Euro-clear or CEDEL, as applicable, and dated no earlier than 10
days prior to the Exchange Date. Until so exchanged, Temporary Global Securities
shall in all respects be entitled to the same benefits under this Indenture as
Permanent Global Securities of the same Series authenticated and delivered
hereunder, except as to payment of interest, if any.
(c) The delivery to the Trustee by Euro-clear or CEDEL of any Final
Certificate referred to above may be relied upon by the Company and the Trustee
as conclusive evidence that a corresponding certificate or certificates has or
have been delivered to Euro-clear or to CEDEL, as the case may be, pursuant to
the terms of this Indenture.
(d) At any time, upon 30 days' notice to the Trustee by Euro-clear or
CEDEL, as the case may be, acting at the request of or on behalf of the
beneficial owner, a Note represented by a Permanent Global Security may be
exchanged for a definitive Note or Notes (each a "Definitive Note"). On the
thirtieth day following receipt by the Trustee of such notice with respect to a
Note, or, if such day is not a Business Day, the next succeeding Business Day,
the Trustee shall (1) endorse the applicable Permanent Global Security to
reflect the reduction of its principal amount by the aggregate principal amount
of such Note, (2) cause the terms of such Note and coupons, if any, to be
entered on a Definitive Note, (3) manually authenticate such
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Definitive Note, and (4) deliver such Definitive Note outside the United States
to Euro-clear or CEDEL, as the case may be, for or on behalf of the beneficial
owner thereof.
(e) Any exchange of a portion of a Temporary Global Security for a
portion of a Permanent Global Security or of a portion of a Permanent Global
Security for a Definitive Note with coupons, if any, shall be made at the
Company's expense and without any charge therefor to the Holder or beneficial
owner of such Note; provided, however, that a person accepting the delivery of
Definitive Notes with coupons, if any, must bear the risk and cost of insurance,
postage, transportation and the like in the event that such person does not
receive such Definitive Notes with coupons, if any, in person at the London
office of the Trustee, if any, or at the London office of any Paying Agent.
Until so exchanged, Temporary Global Securities and Permanent Global Securities
shall in all respects be entitled to the same benefits under this Indenture as
Definitive Notes of the same Series authenticated and delivered hereunder.
(f) The provisions of this Section are subject to any restrictions or
limitations on the issuance and delivery of Notes of any Series that may be
established pursuant to Section 2.2 (including any provision that Notes of such
Series initially issued in the form of a Temporary Global Security to be
delivered outside the United States and the procedures pursuant to which a
Permanent Global Security or Definitive Notes of such Series would be issued in
exchange for a Temporary Global Security.)
(g) If the form or terms of the Notes of a Series have been
established in or pursuant to one or more Board Resolutions as permitted by
Section 2.2, in authenticating such Notes and accepting the additional
responsibilities under this Indenture in relation to such Notes, the Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating:
(i) if the form of such Notes and coupons, if any,
appertaining thereto has been established by or pursuant to a Board
Resolution as permitted by Section 2.2, that such form has been
established in conformity with the provisions of this Indenture;
(ii) if the terms of such Notes and coupons, if any,
appertaining thereto have been established by or pursuant to a Board
Resolution as permitted by Section 2.2, that such terms have been
established in conformity with the provisions of this Indenture; and
(iii) that such Notes and coupons, if any, appertaining
thereto, when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Notes if the issuance of such Notes pursuant to
this Indenture shall affect the Trustee's own
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rights, duties or immunities under the Notes and this Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee.
ARTICLE THREE
REDEMPTION OF NOTES AND SINKING FUNDS
SECTION 3.1. Notice to Trustee.
The Company may, with respect to any Series of Notes, reserve the right
to redeem and pay the Series of Notes or any part thereof, or may covenant to
redeem and pay the Series of Notes or any part thereof, before maturity at such
time and on such terms as provided for in such Notes. If a Series of Notes is
redeemable and the Company wants or is obligated to redeem all or part of the
Series of Notes pursuant to the terms of such Notes, it shall notify the Trustee
of the redemption date and the principal amount of the Series of Notes to be
redeemed. The Company shall give such notice at least 60 days before the
redemption date (or such shorter notice as may be acceptable to the Trustee).
SECTION 3.2. Selection of Notes to be Redeemed.
If less than all the Notes of a Series are to be redeemed, the Trustee,
not more than 60 days prior to the redemption date, shall select the Notes of
the Series to be redeemed in such manner as the Trustee shall deem fair and
appropriate. The Trustee shall make the selection from Notes of the Series that
are outstanding and that have not previously been called for redemption. Notes
of the Series and portions of them selected by the Trustee shall be in amounts
of $1,000 or integral multiples of $1,000 or, with respect to Notes of any
Series issuable in other denominations pursuant to Section 2.2 (a) (8), in
amounts equal to the minimum principal denomination for each such Series and
integral multiples thereof. Provisions of this Indenture that apply to Notes of
a Series called for redemption also apply to portions of Notes of that Series
called for redemption. The Trustee shall promptly notify the Company in writing
of the Notes selected for redemption and, in the case of any Notes selected for
partial redemption, the principal amount thereof to be redeemed.
SECTION 3.3. Notice of Redemption.
(a) At least 30 days but not more than 60 days before a redemption
date, the Company shall mail a notice of redemption by first-class mail to each
Holder of Registered Notes that are to be redeemed.
(b) If Unregistered Notes are to be redeemed, the Company shall cause
notice of redemption to be published in an Authorized Newspaper in each of The
City of New York, London and, if such Notes to be redeemed are listed on The
Luxembourg Stock Exchange, Luxembourg once in each of four successive calendar
weeks, the first publication to be not less than 30 nor more than 60 days before
the redemption date.
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(c) All notices shall identify the Series of Notes to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) if less than all the outstanding Notes of a Series are to
be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Notes to be
redeemed;
(4) in case any Note is to be redeemed in part only, the
notice shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for
redemption, upon presentation and surrender of such Note, a new Note or
Notes in principal amount equal to the unredeemed portion thereof will
be issued;
(5) the name and address of the Paying Agent;
(6) that Notes of the Series called for redemption and all
unmatured coupons, if any, appertaining thereto must be surrendered to
the Paying Agent to collect the redemption price;
(7) that interest on Notes of the Series called for redemption
ceases to accrue on and after the redemption date;
(8) whether such redemption is pursuant to the mandatory or
optional sinking fund, or both; and
(9) the CUSIP Number, if applicable.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense. Any notice which is mailed
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice. In any case, failure duly
to give notice by mail, or any defect in the notice, to the Holder of any Note
designated for redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Note.
SECTION 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed or published, Notes of a Series
called for redemption become due and payable on the redemption date, and unless
the Company shall default in the payment of such Notes at the redemption price,
together with interest accrued to said date, interest on the Notes or portions
of the Notes so called for redemption shall cease to accrue on and after said
date. Upon surrender to the Paying Agent of such Notes together with all
unmatured coupons, if any, appertaining thereto, such Notes shall be paid at the
redemption price plus interest accrued to the redemption date, but installments
of interest due on or prior to the
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redemption date will be payable, in the case of Unregistered Notes, to the
bearers of the coupons for such interest upon surrender thereof, and, in the
case of Registered Notes, to the Holders of such Notes of record at the close of
business on the relevant record dates.
SECTION 3.5. Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit with, or at
the direction of, the Trustee money sufficient to pay the redemption price of
and (unless the redemption date shall be an interest payment date) interest
accrued to the redemption date on all Notes to be redeemed on that date, in the
currencies or currency units in which such redemption price shall be payable.
SECTION 3.6. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder of the Note a new Note
or Notes of the same Series, in the same form and the same maturity in
authorized denominations equal in aggregate Principal amount to the unredeemed
portion of the Note surrendered.
SECTION 3.7. Notes Acquired by the Company.
If the Company shall acquire any of the Notes or coupons, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness or rights represented by such Notes or coupons unless and until the
same are delivered or surrendered to the Trustee for cancellation.
SECTION 3.8. Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by the
terms of any Series of Notes is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of any Series of Notes is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Series of Notes in cash, the Company may at its option (a)
deliver to the Trustee Notes of such Series theretofore purchased or otherwise
acquired (except upon redemption pursuant to the mandatory sinking fund) by the
Company or receive credit for Notes of such Series (not previously so credited)
theretofore purchased or otherwise acquired (except as aforesaid) by the Company
and delivered to the Trustee for cancellation pursuant to Section 2.13, (b)
receive credit for optional sinking fund payments (not previously so credited)
made pursuant to this Section, or (c) receive credit for Notes of such Series
(not previously so credited) redeemed by the Company through any optional
redemption provision contained in the terms of such Series. Notes so delivered
or credited shall be received or credited by the Trustee at the sinking fund
redemption price specified in such Notes.
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On or before the sixtieth day next preceding each sinking fund payment
date for any Series, the Company will deliver to the Trustee an Officers'
Certificate (a) specifying the portion of the mandatory sinking fund payment to
be satisfied by payment of cash and the portion to be satisfied by credit of
Notes of such Series, (b) stating that none of the Notes of such Series has
theretofore been so credited, (c) stating that no defaults in the payment of
interest or Events of Default with respect to such Series have occurred (which
have not been waived or cured) and are continuing, (d) stating whether or not
the Company intends to exercise its right to make an optional sinking fund
payment with respect to such Series and, if so, specifying the amount of such
optional sinking fund payment which the Company intends to pay on or before the
next succeeding sinking fund payment date and (e) specifying such sinking fund
payment date. Any Notes of such Series to be credited and required to be
delivered to the Trustee in order for the Company to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.13 to the Trustee with
such written statement (or reasonably promptly thereafter if acceptable to the
Trustee). Such written statement shall be irrevocable and upon its receipt by
the Trustee the Company shall become unconditionally obligated to make all the
cash payment or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Company, on or before any
such sixtieth day, to deliver such written statement and Notes specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and
as of such date, the irrevocable election of the Company (i) that the mandatory
sinking fund payment for such Series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver or
credit Notes of such Series in respect thereof and (ii) that the Company will
make no optional sinking fund payment with respect to such Series as provided in
this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 (or a lesser sum if the Company shall so request) with respect to the
Notes of any particular Series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Notes of such Series
at the sinking fund redemption price together with accrued interest to the date
fixed for redemption. If such amount shall be $50,000 or less and the Company
makes no such request then it shall be carried over until a sum in excess of
$50,000 is available. The Trustee shall select, in the manner provided in
Section 3.2, for redemption on such sinking fund payment date a sufficient
principal amount of Notes of such Series to absorb said cash, as nearly as may
be possible, and shall (if requested in writing by the Company) inform the
Company of the serial numbers of the Notes of such Series (or portions thereof)
so selected. Notes of any Series which are (a) owned by the Company or an entity
known by the Trustee to be directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company, as shown by the
Note register, and not known to the Trustee to have been pledged or hypothecated
by the Company or any such entity or (b) identified in an Officers' Certificate
at least 60 days prior to the sinking fund payment date as being beneficially
owned by, and not pledged or hypothecated by, the Company or an entity directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company shall be excluded from Notes of such Series eligible
for selection for redemption. The Trustee, in the name and at the expense of the
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Company (or the Company, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Notes of such Series to be given in
substantially the manner provided in Section 3.3 (and with the effect provided
in Section 3.4) for the redemption of Notes of such Series in part at the option
of the Company. The amount of any sinking fund payments not so applied or
allocated to the redemption of Notes of such Series shall be added to the next
cash sinking fund payment for such Series and, together with such payment, shall
be applied in accordance with the provisions of this Section. Any and all
sinking fund moneys held on the stated maturity date of the Notes of any
particular Series (or earlier, if such maturity is accelerated), which are not
held for the payment or redemption of particular Notes of such Series shall be
applied, together with other moneys, if necessary, sufficient for the purpose,
to the payment of the Principal of, and interest on, the Notes of such Series at
maturity.
At least one Business Day before each sinking fund payment date, the
Company shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Notes to be
redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Notes of a
Series with sinking fund moneys or mail any notice of redemption of Notes for
such Series by operation of the sinking fund during the continuance of a Default
in payment of interest on such Notes or of any Event of Default except that,
where the mailing of notice of redemption of any Notes shall theretofore have
been made, the Trustee shall redeem or cause to be redeemed such Notes, provided
that it shall have received from the Company a sum sufficient for such
redemption. Except as aforesaid, any moneys in the sinking fund for such Series
at the time when any such Default or Event of Default shall occur, and any
moneys thereafter paid into such sinking fund, shall, during the continuance of
such Default or Event of Default, be deemed to have been collected under Article
Six and held for the payment of all such Notes. In case such Event of Default
shall have been waived as provided in Section 6.4 or the default cured on or
before the sixtieth day preceding the sinking fund payment date in any year,
such moneys shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section to the redemption of such Notes.
ARTICLE FOUR
COLLATERAL
SECTION 4.1. Additional and Substituted Equipment Subject to this Indenture.
In the event that the Company shall, as provided in Section 4.4, cause
to be transferred to the Trustee other Equipment or cash in addition to or in
substitution for any of the Equipment specifically described in or subjected to
a supplemental Indenture, such other Equipment or cash shall be included as part
of the Collateral by supplement to such supplemental Indenture to be executed by
the Trustee and the Company in accordance with this Indenture and shall be
subject
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to all the terms and conditions of this Indenture and such supplemental
Indenture in all respects as though it had been part of the Equipment
specifically described in such supplemental Indenture.
SECTION 4.2. Termination of Note.
After all payments which are required to be made on any Series of Notes
have been completed and fully made by the Company, (1) any moneys that
constitute Collateral for such Series of Notes remaining in the hands of the
Trustee after providing for all outstanding Notes of such Series and after
paying the expenses of the Trustee, including its reasonable compensation, shall
be paid to the Company 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 Equipment from the security interest
granted under the supplemental Indenture relating to such Series, under the laws
of any jurisdiction.
SECTION 4.3. 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 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, including without
limitation all lawful acts, rules, regulations and orders of any body having
competent jurisdiction relating to automatic coupler devices or attachments, air
brakes or other appliances; provided, however, that the Company may in good
faith contest the validity of any such law, act, rule, regulation or order, or
the application thereof to the Equipment or any part thereof, in any manner
which will not in the judgment of the Trustee 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 4.3 shall survive the termination of this Agreement.
SECTION 4.4. Substitution and Replacement of Collateral.
Upon Request, the Trustee shall, at any time and from time to time,
execute and deliver a release of all the right and interest of the Trustee in
and to any of the Units of Collateral 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 Collateral to be released by the Trustee or (b) there shall be conveyed
to the Trustee, at the
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time of release of any Units of Collateral, other Units of Equipment and of a
Value not less than the Value, as of the date of such Request, of the Units of
Collateral to be released.
At the time of delivery of any Request pursuant to the first paragraph
of this Section 4.4, the Company shall, if other Equipment is to be conveyed to
the Trustee in substitution for the Collateral to be released by the Trustee,
deliver to the Trustee the following papers:
(a) an Officers' Certificate stating (i) the Value, as of the
date of said Request, of the Collateral so to be released by the
Trustee and the date such Collateral was first put into use (or that
such Collateral was first put into use not later than a specified
date), (ii) that the requested release by the Trustee will not impair
the security under this Indenture in contravention of the provisions
hereof, (iii) the Value of such substituted Equipment as of such date
and the date such substituted Equipment was first put into use (or that
such substituted Equipment was first put into use not earlier than a
specified date), (iv) that each such unit so to be substituted is
Equipment as herein defined 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 Collateral has
been duly executed by the Trustee and the Company as required by
Section 10.1 and to the effect set forth in the second paragraph of
Section 5.7; and
(c) if the Cost of the Collateral to be released by the
Trustee, less 1/20th of such Cost for each full year elapsed between
the date such Collateral was first put into use (as previously so
certified) and the date as of which the Value thereof is to be
determined hereunder, plus the Cost of all other Collateral with
respect to a particular Series of Notes so released within the prior
twelve months, less 1/20th of such Cost for each full year elapsed
between the date such other Collateral was first put into use (as
previously so certified) and the date as of which the Value thereof was
determined is more than 10% of the principal amount of the Notes of
the affected Series then outstanding, a certificate by an Independent
Engineer stating, as of the date of said Request, both the Value of the
Collateral so to be released by the Trustee and the Value of such
substituted Collateral.
At the time of delivery of any Request pursuant to the first paragraph
of this Section 4.4, the Company shall, if cash is to be paid to the Trustee in
respect of the Collateral to be released by the Trustee, deliver to the Trustee
an Officers' Certificate stating to the effect set forth in clauses (i), (ii)
and (vi) of subparagraph (1) of the second paragraph of this Section.
Cash deposited with the Trustee pursuant to this Section or Section 4.5
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, and upon delivery to the Trustee of papers
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corresponding to those set forth in the second paragraph of this Section 4.4,
with such appropriate modifications as may be approved by the Trustee.
SECTION 4.5. Maintenance of Collateral; Casualty Occurrences.
The Company agrees that it will maintain and keep all the Collateral 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 Collateral
shall suffer a Casualty Occurrence, the Company shall on or before the next
following May 15, deliver to the Trustee an Engineer's Certificate describing
such Collateral and stating the Value thereof as of the date such Collateral
suffered such Casualty Occurrence. When the total Value of all Units of
Collateral securing a particular Series of Notes having suffered a Casualty
Occurrence (exclusive of Units having suffered a Casualty Occurrence in respect
of which a payment shall have been made to the Trustee pursuant to this Section)
shall exceed U.S. $750,000 or 1% of the principal amount of the Notes of such
Series 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
Engineer's Certificate describing such Collateral and stating the Value thereof
as of the date such Collateral suffered such Casualty Occurrence and either (i)
deposit with the Trustee an amount in cash equal to the Value of such Units as
of the date of the Casualty Occurrence in respect thereof or (ii) convey to the
Trustee, in accordance with the procedures and requirements of Section 4.4,
Units of Equipment with a Value, as of the date of such conveyance, not less
than the Value of the Units suffering such Casualty Occurrence(s), as of the
date of the Casualty Occurrence in respect thereof, which cash or Units of
Equipment shall become Collateral for the affected Series of Notes. 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 and applied as provided in the
fourth paragraph of Section 4.4.
Upon the deposit of cash with the Trustee pursuant to this Section 4.5,
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 Units of Equipment which has suffered a Casualty
Occurrence and in respect of which such deposit is made.
The Company agrees to furnish to the Trustee on or before May 15 in
every calendar year commencing May 15 of the year following the year in which
any Notes are first issued under this Indenture, and during the continuance of
the security interest granted under any supplemental Indenture, an Officers'
Certificate, dated as of the preceding February 14, (1) stating the description
and numbers of all Units of Collateral that may have suffered a Casualty
Occurrence or which have been withdrawn from use pending major repairs (other
than running repairs) since the date of the last preceding statement (or the
date of the first supplemental Indenture granting a security interest in any
Collateral 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.
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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.
SECTION 4.6. Possession of Collateral.
Except as provided in this Section 4.6, without first obtaining the
written consent of the Trustee, the Company will not (a) assign or transfer its
rights hereunder, (b) transfer the Collateral or any part thereof or (c) part
with the possession of, or suffer or allow to pass out of its possession and
control, any of the 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 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. The appointment
of a receiver or receivers in equity or reorganization or a trustee or trustees
in bankruptcy or reorganization for the Company or for its property shall not be
deemed an unauthorized assignment if, prior to any action by the Trustee to
exercise the remedies herein provided, such receiver or receivers or trustee or
trustees shall, pursuant to court order or decree, in writing duly assume and
agree to pay or perform each and all of the obligations and covenants of the
Company hereunder, in such manner that such obligations shall have the same
status as obligations incurred by such receiver or receivers or trustee or
trustees.
Notwithstanding the foregoing, so long as the Company shall not be in
Default, the Company and any of its Affiliates shall be entitled to the
possession and use of the Collateral in accordance with the terms hereof, and
the Company or such Affiliates may also (a) furnish the Collateral or any part
thereof to railroad companies for use upon the lines of railroad owned or
operated by them or over which they have trackage rights and upon connecting and
other railroads in the usual interchange of traffic, or to other than railroad
companies for use in their business, and (b) lease or contract to others located
in the United States, Canada and Mexico, all or any part of the Collateral, but
only, in either case, upon and subject to all the terms and conditions of this
Agreement.
Any such lease or contract may provide that the party acquiring the use
of Units of the Collateral, so long as it shall not be in default under such
lease or contract, shall be entitled, subject to the rights of the Trustee
hereunder, to the possession of such Units and the use thereof and may provide
for lettering or marking upon such Equipment for convenience of identification
of the leasehold interest of such sublessee therein. Every such lease or
contract shall contain provisions which have the effect of subjecting the rights
of the party acquiring the use of Units of the Collateral under such lease or
contract to the rights and remedies of the Trustee in respect of such Units.
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The Trustee shall have the right to declare an Event of Default
hereunder in case of any unauthorized assignment or transfer of the Company's
rights hereunder or in case of any unauthorized transfer or lease of any of the
Collateral.
SECTION 4.7. Marking of Collateral.
The Company shall not change, or permit to be changed, the numbers of
any of the Collateral at any time covered by any supplemental Indenture (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 and such supplemental Indenture.
The Collateral may be lettered, in case of a lease of any equipment
made pursuant to Section 4.6 hereof, in such manner as may be appropriate for
convenience of identification of the leasehold interest therein; but the
Company, during the continuance of the security interest provided for herein,
will not allow any lettering or designation to be placed on any of the
Collateral claiming ownership thereof by any person, firm, association or
corporation other than the Company.
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.1. Payment of Notes.
The Company shall pay or cause to be paid the Principal of and interest
on the Notes on the dates and in the manner provided herein and in the Notes. An
installment of Principal or interest shall be considered paid on the date it is
due if the Trustee or Paying Agent holds on that date money designated for and
sufficient to pay the installment.
The Company shall pay interest on overdue Principal of a Note of any
Series at the rate of interest (or Yield to Maturity in the case of Original
Issue Discount Securities) borne by the Notes of that Series, and, to the extent
lawful, it shall pay interest on overdue installments of interest at the same
rate.
SECTION 5.2. Reports by the Company.
The Company covenants:
(a) to file with the Trustee, within 15 days after the Company is
required to file the same with the SEC, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may from time to time by rules and regulations
prescribe) which the Company may be required to file with the SEC pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934, as amended;
or,
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if the Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and the SEC,
in accordance with rules and regulations prescribed from time to time by the
SEC, such of the supplementary and periodic information, documents and reports
which may be required pursuant to section 13 of the Securities Exchange Act of
1934, as amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(b) to file with the Trustee and the SEC, in accordance with the rules
and regulations prescribed from time to time by the SEC, such additional
information, documents, and reports with respect to compliance by the Company
with the conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations;
(c) to transmit by mail to all Holders of Notes within 30 days after
the filing thereof with the Trustee, in the manner and to the extent provided in
subsection (c) of Section 7.6, such summaries of any information, documents and
reports required to be filed by the Company pursuant to subsections (a) and (b)
of this Section 5.2 as may be required by rules and regulations prescribed from
time to time by the SEC; and
(d) to furnish to the Trustee, not less often than annually, a brief
certificate from the principal executive officer, principal financial officer,
or principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. Such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
SECTION 5.3. Statement of Officers as to Default.
The Company will deliver to the Trustee, on or before a date not more
than four months after the end of each of its fiscal years ending after the date
hereof during which any Notes are outstanding, an Officers' Certificate stating
that neither of the signers thereof has any knowledge after due investigation of
the existence of any Event of Default, or any event which could with the passage
of time or notice mature into an Event of Default, by the Company under this
Indenture or stating that they have knowledge of the existence of such an event
of which the signers have knowledge and the nature thereof.
SECTION 5.4. Filing with Listing Agent.
If Unregistered Notes of any Series are Outstanding, to file with the
listing agent of the Company with respect to such series such documents and
reports of the Company as may be required from time to time by the rules and
regulations of any stock exchange on which such Unregistered Notes are listed.
SECTION 5.5. Discharge of Liens.
The Company agrees that it will pay and discharge, or make adequate
provision for the payment or discharge of, any debt, tax, charge, assessment,
obligation or claim which if unpaid
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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 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
requirement by this Section 5.5, the Trustee may, but shall not be obligated to
pay and discharge the same and any amounts so paid shall be secured by the under
this Indenture until reimbursed by the Company.
SECTION 5.6. Further Assurances.
The Company agrees to do all such acts and execute all such instruments
of further assurance as it shall be reasonably requested by the Trustee to do or
execute for the purposes of fully carrying out and effectuating this Indenture
and the indent hereof.
SECTION 5.7. Payment of Expenses; Recording.
The Company agrees to pay the expenses incident to the preparation and
execution of the Notes to be issued hereunder, or connected with the
preparation, execution, recording and filing of this Indenture and of any
instruments executed under the provisions hereof. The Company shall, promptly
after the execution and delivery of this Indenture and each supplemental
Indenture, respectively, cause this Agreement and such supplement Indenture, as
the case may be, to be duly filed with the Surface Transportation Board of the
department of Transportation in accordance with 49 U.S.C. ss.11301 and to be
duly deposited with the Registrar General of Canada pursuant to Section 105 of
the Canada Transportation Act and shall provide for publication of notice of
such deposit in The Canada Gazette in accordance with said Section 105. The
Company will from time to time reregister, refile and rerecord this Indenture
and each supplemental Indenture and do and perform any other act and will
execute, acknowledge, deliver, file, register and record any and all further
instruments required by the law of any jurisdiction in which use of the
Equipment is permitted by Section 3.6 hereof or reasonably requested by the
trustee for the purpose of property protection of the security interest of the
Trustee and the rights of the holders of the Notes 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 such action of (1) such action is
unduly burdensome and (2) after giving effect to the failure to take such
action, the Company has taken all action required bylaw so as to protect the
security interest of the Trustee to Units of Collateral securing each Series of
Notes having a Value of not less than 90% of the aggregate Value of all
Collateral securing such Series.
Promptly after the execution and delivery of this Indenture and each
supplemental Indenture, the Company shall furnish to the Trustee an Opinion of
Counsel stating that, in the opinion of such counsel, this Indenture or such
supplemental Indenture, as the case may be, has
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been property recorded, filed and deposited in compliance with the preceding
paragraph of this Section 5.7 and reciting the details of such action and no
other filing or recordation or refiling or rerecordation or depositing or
redepositing is necessary for the protection of the rights of the Trustee in the
United States of America, any State thereof or the District of Columbia or
Canada or any subdivision thereof. The Company shall furnish to the trustee,
not later than May 15 in each year, commencing with the year following the year
in which Notes are first issued under this Indenture, an Opinion of Counsel
stating that, in the opinion of such counsel, either (i) such action has been
taken with respect to the recording, filing, registering and depositing and
rerecording, refiling, reregistering and redepositing of this Indenture and each
supplemental Indenture as is necessary to comply with the preceding paragraph of
this Section and reciting the details of such action or (ii) no such action is
necessary for such purpose. In rendering any such opinion, such counsel may
conclusively rely upon an Officers' Certificate as to the location of the
Collateral.
ARTICLE SIX
SUCCESSOR
SECTION 6.1. When Company May Merge, etc.
The Company may not consolidate with, or merge into, or be merged into,
or transfer or lease its properties and assets substantially as an entirety to,
any Person unless (a) such Person is organized under the laws of the United
States, any State thereof or the District of Columbia, (b) such Person assumes
by supplemental indenture all the obligations of the Company under the Notes and
any coupons appertaining thereto and under this Indenture, (c) after giving
effect thereto, no Default or Event of Default shall have occurred and be
continuing and (d) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or conveyance, transfer or lease, as the case may be, and such
supplemental indenture comply with this Section 6.1 and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
SECTION 6.2. Successor Substituted.
Upon any consolidation by the Company with, or merger by the Company
into, any other Person, or any conveyance, transfer or lease to, any Person by
the Company in accordance with Section 6.1. the successor formed by such
consolidation or into which the Company is merged or 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 under this Indenture with the
same effect as if such successor had been named as the Company in this
Indenture, and thereafter, except in the case of a conveyance by lease, the
predecessor corporation shall be relieved of all obligations and covenants under
this Indenture.
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ARTICLE SEVEN
DEFAULTS AND REMEDIES
SECTION 7.1. Events of Default.
An "Event of Default" occurs with respect to the Notes of any Series
if:
(1) the Company defaults in the payment of interest on any
Note of that Series when the same becomes due and payable and the
Default continues for a period of 30 days;
(2) the Company defaults in the payment of the Principal of
any Note of that Series when the same becomes due and payable at
maturity, upon redemption or otherwise;
(3) the Company defaults in the payment of any sinking fund
installment as and when the same becomes due and payable by the terms
of the Series of Notes;
(4) the Company shall make or suffer any unauthorized
assignment or transfer of its rights hereunder (or under the
supplemental Indenture under which the Notes of that Series have been
issued) 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 securing the Notes of that Series, or, except as
herein authorized, shall part with the possession of any of such
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 herein 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);
(5) the Company fails to comply with any of its other
agreements with respect to the Notes of that Series, in this Indenture
or in any supplemental indenture under which the Notes of that Series
have been issued and the Default continues for the period and after the
notice specified below;
(6) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against
it in an involuntary case,
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(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary
case,
(B) appoints a Custodian of the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company, and the order
or decree remains unstayed and in effect for 90 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A Default under clause (5) is not an Event of Default until the Trustee
or the Holders of at least 25% in principal amount of all the outstanding Notes
of that Series notify the Company (and the Trustee in the case of notification
by such Holders) in writing of the Default and the Company does not cure the
Default within 90 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a "Notice of
Default".
SECTION 7.2. Acceleration.
If an Event of Default occurs with respect to the Notes of any Series
and is continuing, the Trustee, by notice to the Company, or the Holders of at
least 25% in principal amount of all of the outstanding Notes of that Series, by
notice to the Company and to the Trustee, may declare the Principal (or, if the
Notes of that Series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that Series) of, and any
accrued interest on, all the Notes of that Series to be due and payable. Upon
such declaration, such Principal (or, in the case of Original Issue Discount
Securities, such specified amount) and any accrued interest shall be due and
payable immediately. The Holders of a majority in principal amount of all of the
Notes of that Series, by notice to the Trustee, may rescind such a declaration
and its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived except
nonpayment of Principal or interest that has become due solely because of the
acceleration. In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such waiver or rescission or annulment or for any other
reason or shall have been determined adversely to the Trustee, then and in every
such case the Company, the Trustee and the Holders of the Notes shall be
restored respectively to their former positions and
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rights hereunder, and all rights, remedies and powers of the Company, the
Trustee and the Holders of the Notes shall continue as though no such
proceedings had been taken.
SECTION 7.3. Other Remedies Available to Trustee.
(a) If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect payment of Principal or interest on the
Notes of the Series that is in default or to enforce the performance of any
provision of the Notes of that Series or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 7.4. Incidents of Sale of Collateral.
Upon any sale of all or any part of the Collateral made either under
the power of sale given under this Indenture or otherwise for the enforcement of
this Indenture, the following shall be applicable:
(a) 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) 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 7.12.
SECTION 7.5. Waiver of Existing Defaults.
The Holders of a majority in principal amount of any Series of Notes by
notice to the Trustee may waive an existing Default with respect to that Series
and its consequences except a Default in the payment of the Principal of or
interest on any Note.
SECTION 7.6. Control by Majority.
The Holders of a majority in principal amount of the Notes of each
Series affected (with each such Series voting as a class) may 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 it with respect to the
Notes of that Series. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture, if the Trustee in good faith shall
determine that
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the action or proceedings so directed may involve the Trustee in personal
liability or that is unduly prejudicial to the rights of the Noteholders of that
Series, it being understood that (subject to Section 8.1) the Trustee shall have
no duty to ascertain whether or not such actions or forbearances are unduly
prejudicial to such Noteholders.
SECTION 7.7. Limitation on Suits by Noteholders.
A Noteholder may pursue a remedy with respect to this Indenture or the
Notes of any Series only if:
(a) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to Notes of that Series;
(b) the Holders of at least 25% in principal amount of the
Notes of that Series make a written request to the Trustee to pursue
the remedy;
(c) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to
be, or which may be, incurred by the Trustee in pursuing the remedy;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(e) during such 60-day period, the Holders of a majority in
principal amount of the Notes of that Series do not give the Trustee a
direction inconsistent with the request.
A Noteholder of any Series may not use this Indenture to prejudice the
rights of another Noteholder of that Series or any other Series or to obtain a
preference or priority over another Noteholder of that Series or any other
Series.
SECTION 7.8. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of Principal and interest on the Note, on or
after the respective due dates expressed in the Note, and the right of any
Holder of a coupon to receive payment of interest due as provided in such
coupon, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
SECTION 7.9 Collection Suits by Trustee.
If an Event of Default specified in Section 7.1 (1) or (2) occurs and
continues for the period, if any, specified therein, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of such Principal and interest then remaining unpaid.
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SECTION 7.10. Remedies.
In case of the happening and continuance of any Event of Default, the
Trustee may by its agents enter upon the premises of the Company and any of its
Affiliates or lessees (or other person having acquired the use of the Collateral
securing the Notes of that series) where any of the Collateral securing the
Notes of that series may be and take possession of all or any part of such
Collateral and withdraw the same from said premises, and shall be entitled to
collect, receive and retain all unpaid mileage, hourly or other charges of any
kind earned by the Collateral or any part thereof, and may lease or otherwise
contract for the use of such 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 of that Series) may
sell the same or any part thereof, free from any and all claims of the Company
at law or in equity in one lot and as an entirety or in separate lots, at public
or private sale, for cash or upon credit, in its discretion, and may proceed
otherwise to enforce its rights and the rights of the Holders of then
outstanding 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 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
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 no payments theretofore made by
the Company for the rent or use of the Collateral or any of it shall give to the
Company 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 interests 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 of principal and
interest in respect of the Notes, and the Company shall be and remain liable for
the same until such sums have been realized as, with the proceeds of the lease
or sale of the Collateral, shall be sufficient for the discharge and payment in
full of all the obligations of the Company under this Indenture.
SECTION 7.11. Trustee May File Proofs of Claim.
The Trustee may 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
the Noteholders allowed in any judicial proceedings relating to the Company, its
creditors or its property.
SECTION 7.12. Priorities.
If the Trustee collects any money pursuant to this Article, including
proceeds from the sale or lease of any of the Collateral, it shall pay out the
money in the following order:
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FIRST: to the Trustee for amounts due under Section 8.7;
SECOND: to Holders of Notes in respect of which or for the
benefit of which such money has been collected for amounts due and
unpaid on such Notes for Principal and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Notes for Principal and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date (with respect to Registered Notes)
and payment date for any such payment to Holders of Notes.
SECTION 7.13. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Company, a suit by the Trustee, a
suit by a Holder for the enforcement of the payment of the Principal of, or
interest on and any additional amounts on any Note, or a suit by a Holder or
Holders of more than 10% in Principal amount of the Notes of any Series.
ARTICLE EIGHT
TRUSTEE
SECTION 8.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise its rights and powers under this Indenture and use the same
degree of care and skill in their exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee.
(2) 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
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of this Indenture. However, the Trustee shall examine the certificates
and Opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 7.5.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree with the Company. Money held in trust by
the Trustee need not be segregated from other funds except to the extent
required by law.
(f) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
SECTION 8.2. Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel or require an Officers' Certificate or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on a Board Resolution, the written advice of counsel, a
certificate of an Officer or Officers delivered pursuant to Section 2.2(b), an
Officers' Certificate or an Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(e) Prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of
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Default hereinafter and after the curing or waiving of all Events of Default,
the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, Officer's Certificate, or other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing to do so by the Holders of not less than a
majority in aggregate principal amount of the Notes then outstanding; provided,
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or liabilities as
a condition to proceeding; the reasonable expenses of every such examination
shall be paid by the Company or, if advanced by the Trustee, shall be repaid by
the Company upon demand.
(f) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(g) The Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions, or agreements on the
part of the Company except as otherwise set forth herein, but the Trustee may
require of the Company full information and advice as to the performance of the
covenants, conditions and agreements contained herein and shall be entitled in
connection herewith to examine the books, records and premises of the Company.
(h) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty and the Trustee shall not be
answerable for other than its negligence or willful misconduct.
(i) Except for (i) a default under Section 7.1(1) or (2) hereof, or
(ii) any other event of which the Trustee has "actual knowledge" and which
event, with the giving of notice or the passage of time or both, would
constitute an Event of Default under this Indenture, the Trustee shall not be
deemed to have notice of any default or Event of Default unless specifically
notified in writing of such event by the Company or the Holders of not less than
25% in aggregate principal amount of the Notes then outstanding; as used herein,
the term "actual knowledge" means the actual fact or statement of knowing,
without any duty to make any investigation with regard thereto.
SECTION 8.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
8.10 and 8.11.
SECTION 8.4. Trustee's Disclaimer.
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The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Notes. It shall not be accountable for the Company's use
of the proceeds from the Notes or for monies paid over to the Company pursuant
to the Indenture, and it shall not be responsible for any statement in the Notes
other than its certificate of authentication.
SECTION 8.5. Notice of Defaults.
If a Default occurs and is continuing with respect to the Notes of any
Series and if it is known to the Trustee, the Trustee shall mail to each Holder
of a Note of that Series entitled to receive reports pursuant to Section 4.2(c)
(and, if Unregistered Notes of that Series are outstanding, shall cause to be
published at least once in an Authorized Newspaper in each of The City of New
York, London and, if Notes of that Series are listed on The Luxembourg Stock
Exchange, Luxembourg) notice of the Default within 90 days after it occurs.
Except in the case of a Default in payment of Principal, interest or additional
amounts on the Notes of any Series, or in the payment of any sinking fund
installment, the Trustee may withhold the notice if and so long as a committee
of its Responsible Officers in good faith determines that withholding such
notice is in the interests of Noteholders of that Series.
SECTION 8.6. Reports by Trustee to Holders.
(a) On or before the first anniversary date of the first issue of a
Series of Notes and thereafter at intervals of not more than 12 months, the
Trustee shall, if required by Section 313(a) of the TIA, mail to each Noteholder
of that Series entitled to receive reports pursuant to Section 5.2(c) a brief
report dated as of such date that complies with TIA ss. 313(a). The Trustee also
shall comply with TIA ss. 313(b).
(b) The Trustee shall transmit to Noteholders of each Series, as
hereinafter provided, and to the Company a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to the provisions of
subsection (a) of this Section 7.6 (or if no such report has yet been so
transmitted, since the date of execution of this Indenture), for the
reimbursement of which it claims or may claim a lien or charge prior to that of
the Notes of such Series on property or funds held or collected by it as
Trustee, and which it has not previously reported pursuant to this subsection,
except that the Trustee shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate ten percent or
less of the principal amount at Stated Maturity of Notes of such Series
outstanding at such time, such report to be transmitted within 90 days after
such time.
(c) Reports to Noteholders pursuant to this Section 8.6 shall be
transmitted by mail:
(1) to all Holders of Registered Notes of each Series, as the
names and addresses of such Holders appear upon the register for each
Series of Notes;
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(2) to such Holders of Unregistered Notes as have, within two
years preceding such transmission, filed their names and addresses with
the Trustee for that purpose; and
(3) except in the case of reports pursuant to subsection (b)
of this Section 8.6, to each Holder whose name and address is preserved
at the time by the Trustee, as provided in Section 2.7(a).
(4) At the time that it mails such a report to Noteholders of
any Series, the Trustee shall file a copy of that report with the SEC
and with each stock exchange on which the Notes of that Series are
listed. The Company shall provide written notice to the Trustee when
the Notes of any Series are listed on any stock exchange.
SECTION 8.7. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time, and the
Trustee shall be entitled to, reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it in connection
with the performance of its duties under this Indenture. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents and
counsel.
(b) The Company shall indemnify the Trustee against any loss, liability
or expense incurred by it arising out of or in connection with its acceptance or
administration of the trust or trusts hereunder. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity.
(c) The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or willful
misconduct.
(d) To secure the payment obligations of the Company pursuant to this
Section, the Trustee shall have a lien prior to the Notes of any Series on all
money or property held or collected by the Trustee, except that held in trust to
pay Principal and interest on particular Notes of a Series.
(e) If the Trustee incurs expenses or renders services after an Event
of Default specified in Section 7.1(5) or (6) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 8.8. Replacement of Trustee.
(a) The resignation or removal of the Trustee and the appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
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(b) The Trustee may resign with respect to the Notes of any Series by
so notifying the Company. The Holders of a majority in principal amount of the
Notes of any Series may remove the Trustee with respect to that Series by so
notifying the Trustee and the Company and may appoint a successor Trustee for
such Series with the Company's consent. The Company may remove the Trustee with
respect to Notes of any Series if:
(1) the Trustee fails to comply with Section 8.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to Notes of any Series, the
Company shall promptly appoint a successor Trustee for such Series.
(d) If a successor Trustee with respect to the Notes of any Series does
not take office within 30 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company or the Holders of at least 10% in principal
amount of the Notes of the applicable Series may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Notes of such Series.
(e) If the Trustee with respect to the Notes of any Series fails to
comply with Section 8.10, any Noteholder of the applicable Series may petition
any court of competent jurisdiction for the removal of such Trustee and the
appointment of a successor Trustee.
(f) Upon the execution of the supplemental indenture referred to in
Section 8.8 (h), the resignation or removal of the retiring Trustee for any
Series of Notes shall become effective, and the successor Trustee shall have all
the rights, powers and duties of the retiring Trustee with respect to all Series
of Notes for which the successor Trustee is to be acting as Trustee under this
Indenture. The retiring Trustee shall promptly transfer all property held by it
as Trustee with respect to such Series of Notes to the successor Trustee subject
to the lien provided for in Section 8.7. The Company shall give notice of each
appointment of a successor Trustee for any Series of Notes by mailing written
notice of such event by first-class mail to the Holders of Registered Notes of
such Series entitled to receive reports pursuant to Section 4.2(c) and, if any
Unregistered Notes are outstanding, by publishing notice of such event once in
an Authorized Newspaper in each of The City of New York, London, and, if Notes
of that Series are listed on The Luxembourg Stock Exchange, Luxembourg.
(g) All provisions of this Section 8.8 except subparagraphs (b) (1),
(e) and (h) and the words "subject to the lien provided for in Section 8.7" in
subparagraph (f) shall apply also to any Paying Agent located outside the U.S.
and its possessions and required by Section 2.4.
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(h) In case of the appointment hereunder of a successor Trustee with
respect to the Notes of one or more Series, the Company, the retiring Trustee
and such successor Trustee shall execute and deliver a supplemental indenture
wherein such successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, such successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Notes of that or
those Series to which the appointment of such successor Trustee relates, (2) if
the retiring Trustee is not retiring with respect to all Notes, shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Notes of that or those Series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts administered by any other such
Trustee.
(i) No successor Trustee shall accept appointment as provided in this
Section 8.8 unless at the time of such acceptance such successor Trustee shall
be qualified and eligible under the provisions of Section 8.10.
SECTION 8.9. Successor Trustee, Agents by Merger, etc.
If the Trustee or any Agent consolidates with, merges or converts into,
or transfers all or substantially all of its corporate trust business assets to,
another corporation, the successor corporation, without any further act, shall
be the successor Trustee or Agent, as the case may be.
SECTION 8.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee with respect to each Series
of Notes who satisfies the requirements of TIA ss.310(a)(1). The Trustee shall
always have a combined capital and surplus of at least $10,000,000 as set forth
in its most recent published annual report of condition. The Trustee is subject
to and shall comply with TIA ss.310(b), including the optional provision
permitted by the second sentence of TIA ss.310(b)(9), except that in determining
whether the Trustee has a conflicting interest, as defined in TIA ss.310(b)(1),
there shall be excluded all indentures of the Company now or hereafter existing
which may be excluded under the proviso of TIA ss.310(b)(1).
SECTION 8.11. Preferential Collection of Claims Against Company.
The Trustee is subject to and shall comply with TIA ss.311(a),
excluding any creditor relationship listed in TIA ss.311(b). A Trustee who has
resigned or been removed shall be subject to TIA ss.311(a) to the extent
indicated.
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ARTICLE NINE
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 9.1. Satisfaction and Discharge of Notes of any Series.
Unless provided otherwise in the Board Resolution establishing the
Series of Notes, or in any supplemental Indenture, the Company shall be deemed
to have paid and discharged the entire indebtedness on all the Notes of a
Series, the provisions of this Indenture (except as to (x) the rights of Holders
of Notes of such Series to receive, from the money and U.S. Government
Obligations deposited with the Trustee pursuant to this Article Eight or the
interest and Principal received by the Trustee in respect of such U.S.
Government Obligations, payment of the Principal of and any installment of
Principal of or interest on such Notes on the Stated Maturities thereof or upon
the Redemption Dates for Notes required to be redeemed pursuant to any mandatory
sinking fund or analogous provisions relating to Notes of that Series or
pursuant to any call for redemption relating to Notes of that Series, and (y)
all rights and obligations of the Company and the Trustee with respect to such
Notes under Sections 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 5.1, 7.5, 7.7, 7.11, 8.7,
8.8, 9.3 and Article Six, so long as the Notes of such Series remain Outstanding
and, thereafter, only the Company's and the Trustee's rights and obligations
under Sections 2.6, 8.7 and 9.3) as it relates to such Notes shall no longer be
in effect, and the Trustee, at the expense of the Company, shall, upon Company
Request, execute proper instruments acknowledging the same, including without
limitation, instruments releasing the Collateral from the lien of this
Indenture, if either:
(a)(1) all Notes of such Series theretofore authenticated and
delivered (other than (i) Notes which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.9
and (ii) Notes for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company) have been
delivered to the Trustee for cancellation;
(2) the Company has paid or caused to be paid all other sums
payable under this Indenture in respect of the Notes of such Series;
and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction of the
entire indebtedness on all Notes of any such Series and the discharge
of the Indenture as it relates to such Notes have been complied with;
or
(b)(1) all Notes of such Series not theretofore delivered to
the Trustee for cancellation (i) have become due and payable, or (ii)
will become due and payable at their Stated Maturity within one year,
or (iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company;
(2) the condition described in paragraph (1) of Section 9.2
has been satisfied;
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(3) the conditions described in paragraphs (a)(2) and (a)(3)
of this Section 9.1 have been satisfied; and
(4) the Company has received an Opinion of Counsel to the
effect that the satisfaction and discharge contemplated by this Section
9.1 will not violate the then applicable rules of, or any related
undertaking of the Company to, any national securities exchange on
which Notes of that Series are listed; or
(c)(1) the conditions referred to or described in paragraphs
(b)(2), (b)(3) and (b)(4) of this Section 9.1 have been satisfied;
(2) no Event of Default or event which with notice or lapse of
time would become an Event of Default shall have occurred and be
continuing on the date of the deposit referred to in paragraph (1) of
Section 9.2 or on the 91st day after the date of such deposit;
provided, however, that should that condition fail to be satisfied on
or before such 91st day, the Trustee shall promptly, upon satisfactory
receipt of evidence of such failure, return such deposit to the
Company; and
(3) the Company has delivered to the Trustee an Opinion of
Counsel of a nationally-recognized independent tax counsel to the
effect that Holders of the Notes of such Series will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit and the satisfaction, discharge and defeasance
contemplated by this paragraph (c) of this Section 9.1 and will be
subject to Federal income tax on the same amounts and in the same
manner and at the same times as would have been the case if such
deposit and defeasance had not occurred.
SECTION 9.2. Defeasance of Notes of any Series.
Unless provided otherwise in the Board Resolution establishing the
Series of Notes, or in any indenture supplemental hereto, the Company may omit
to comply with paragraphs 4 and 5 of Section 7.1 of this Indenture and such
provisions shall not apply, as such provisions relate to Notes of any Series, so
long as the Notes of such Series remain Outstanding and, thereafter, all
provisions of this Indenture in respect of such Notes shall no longer be in
effect except the Company's and the Trustee's rights and obligations under
Sections 2.6, 8.7 and 9.3, and the Trustee at the expense of the Company shall,
upon Company Request, execute proper instruments acknowledging the same if:
(a) the Company has deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose (1) money in an
amount, or (2) U.S. Government Obligations which through the payment of
interest and Principal in respect thereof in accordance with their
terms will provide on or before the due date of any payment in respect
of such Series of Notes money in an amount, or (3) a combination
thereof, sufficient, after payment, based on then applicable law, of
all Federal, state and local taxes in respect thereof payable by the
Trustee, in the opinion of a nationally-recognized firm of independent
public accountants
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selected by the Company expressed in a written certification
thereof delivered to the Trustee, to pay and discharge (i) the
Principal of and each installment of Principal of and interest on the
Outstanding Notes of that Series on the Stated Maturity of such
Principal or installment of Principal or interest and (ii) any
mandatory sinking fund payments or analogous payments or payments
pursuant to any call for redemption applicable to Notes of such Series
on the day on which such payments are due and payable in accordance
with the terms of the Indenture and of such Notes;
(b) no Event of Default or event which with notice or lapse of
time would become an Event of Default shall have occurred and be
continuing on the date of such deposit;
(c) the interest of the Holders in such deposit shall have
been duly perfected under the applicable provisions of the Uniform
Commercial Code;
(d) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other material
agreement or instrument to which the Company is a party or by which it
is bound; and
(e) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated
by this Section have been complied with.
SECTION 9.3. Application of Trust Funds; Indemnification.
(a) Subject to the provisions of paragraph (c) of this Section, all
money and U.S. Government Obligations deposited with the Trustee pursuant to
Section 9.1 or 9.2 and all money received by the Trustee in respect of U.S.
Government Obligations deposited with the Trustee, shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the Principal and interest for
whose payment such money and U.S. Government Obligations have been deposited
with or received by the Trustees as contemplated by Section 9.1 or 9.2.
(b) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Section 9.1 or 9.2 or the interest and
Principal received in respect of such obligations, other than any such tax, fee
or other charge payable by or on behalf of Holders. The Company shall be
entitled to prompt notice of an assessment or the commencement of any proceeding
for which indemnification may be sought hereunder.
(c) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any U.S. Government Obligations or money held by it as
provided in
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Section 9.1 or 9.2 which, in the opinion of a nationally-recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are then in excess of the amount thereof which
then would have been required to be deposited for the purpose for which such
obligations or money were deposited or received. The Trustee shall also deliver
or pay to the Company from time to time upon Company Request any U.S. Government
Obligations or money held by it as provided in Section 9.1 or 9.2, in exchange
for other U.S. Government Obligations or money, upon the following conditions:
(1) such exchange shall occur simultaneously;
(2) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the exchange contemplated by paragraph (c)
of this Section have been complied with; and
(3) in the opinion of a nationally-recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, immediately after such exchange the U.S. Government
Obligations or money then held by the Trustee as provided in Section 9.1 or
9.2 shall be in such amount as then would have been required to be
deposited in order to comply with Section 9.2(a) hereof.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.1. Without Consent of Holders.
The Company and the Trustee may enter into one or more supplemental
indentures without consent of any Noteholder for any of the following purposes:
(a) to cure any ambiguity, defect or inconsistency herein or in the
Notes of any Series;
(b) to comply with Article Six;
(c) to secure the Notes with additional or substitute collateral as
provided for herein;
(d) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(e) to make any change that does not adversely affect the rights of
any Noteholder;
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(f) to provide for the issuance of and establish the form and terms
and conditions of Notes of any Series as provided in Section 2.2, to
establish the form of any certifications required to be furnished pursuant
to the term of this Indenture or any Series of Notes, to add to the rights
of the Holders of any Series of Notes, or to surrender any right or power
conferred on the Company;
(g) to add to the rights of the Holders of any Series of Notes;
(h) to provide for the appointment of a successor Trustee; or
(i) The Trustee shall sign any supplemental indenture authorized
pursuant to this Section 10.1 if the supplemental indenture does not
adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
supplemental indenture the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Officers' Certificate and an Opinion
of Counsel stating that such supplemental indenture is authorized or
permitted by this Indenture.
SECTION 10.2. With Consent of Holders.
(a) With the written consent of the Holders of a majority in
principal amount of the outstanding Notes of each Series affected by such
supplemental indenture (with each Series voting as a class), the Company and the
Trustee may enter into a supplemental indenture to add any provisions to or to
change or eliminate any provisions of this Indenture or of any supplemental
indenture or to modify, in each case in any manner not covered by Section 10.1,
the rights of the Noteholders of each such Series. The Holders of a majority in
principal amount of the outstanding Notes of each Series affected by such waiver
(with each Series voting as a class), by notice to the Trustee, may waive
compliance by the Company with any provision of this Indenture, any supplemental
indenture or the Notes of any such Series except a Default in the payment of the
Principal of or interest on any Note. However, without the consent of each
Noteholder affected, an amendment or waiver may not:
(1) reduce the amount of Notes whose Holders must consent to an
amendment or waiver;
(2) change the rate of or change the time for payment of
interest on any Note;
(3) change the Principal of or change the Stated Maturity of any
Note;
(4) reduce any premium payable upon the redemption of any Note;
(5) waive a Default in the payment of the Principal of or
interest on any Note;
(6) make any Note payable in money other than that stated in the
Note; or
(7) make any change in Section 7.4, 7.7 or 10.2(a) (third
sentence).
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(b) It is not necessary under this Section 10.2 for the Noteholders to
consent to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
(c) Upon the request of the Company, accompanied by a copy of a resolution
of the Board of Directors certified by the Secretary or an Assistant Secretary
of the Company authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Noteholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
(d) Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 10.2, the
Company shall transmit by mail a notice, setting forth in general terms the
substance of such supplemental indenture, to all Holders of Registered Notes, as
the names and addresses of such Holders appear on the register for each Series
of Notes, and to such Holders of Unregistered Notes as are entitled to receive
reports pursuant to Section 5.2(c). Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
(e) Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Ten, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitation of rights, obligations, duties and immunities under this Indenture of
the Trustee, the Company and the Noteholders shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 10.3. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Notes of one or more Series shall
be set forth in a supplemental Indenture that complies with the TIA as then in
effect.
SECTION 10.4. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a Holder
of a Note is a continuing consent by the Holder and every subsequent Holder of a
Note or portion of a Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any Note. However,
any such Holder or subsequent Holder may revoke the consent as to his Note or
portion of a Note if the Trustee receives the notice of revocation before the
date the amendment or waiver becomes effective. After an amendment or waiver
becomes effective, it shall bind every Noteholder of each Series affected by
such amendment or waiver.
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SECTION 10.5. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment or waiver
on any Note of any Series thereafter authenticated. The Company in exchange for
Notes of that Series may issue and the Trustee shall authenticate new Notes of
that Series that reflect the amendment or waiver.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.1. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts with a
provision which is required to be included in this Indenture by the TIA, the
required provision shall control. If any provision of this Indenture modifies or
excludes any provision of the TIA that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or
excluded, as the case may be.
SECTION 11.2. Notices.
(a) Any notice or communication by the Company or the Trustee to the
other is duly given if in writing and delivered in person or mailed by
first-class mail:
if to the Company to:
Union Tank Car Company
225 West Washington Street
19th Floor
Chicago, Illinois 60606
Attn: Secretary
if to the Trustee to:
Bank One, National Association
One North State Street
Ninth Floor
Chicago, Illinois 60602
Attention: Janice Ott Rotunno
(b) The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
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(c) Any notice or communication to Holders of Notes entitled to
receive reports pursuant to Section 5.2(c) shall be mailed by first class mail
to the addresses for Holders of Registered Notes shown on the register kept by
the Registrar and to addresses filed with the Trustee for other Holders. Failure
to so mail a notice or communication or any defect in such notice or
communication shall not affect its sufficiency with respect to other Holders of
Notes of that or any other Series entitled to receive notice.
(d) If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
(e) If the Company mails a notice or communication to Noteholders, it
shall mail a copy to the Trustee and to each Agent at the same time.
(f) If it shall be impractical in the opinion of the Trustee or the
Company to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient publication
of such notice.
SECTION 11.3. Communication by Holders with Other Holders.
Noteholders of any Series may communicate pursuant to TIA ss.312(b) with
other Noteholders of that Series or of all Series with respect to their rights
under this Indenture or under the Notes of that Series or of all Series. The
Company, the Trustee, the Registrar and everyone else shall have the protection
of TIA ss.312(c).
SECTION 11.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take under
this Indenture any action under any provisions of this Indenture, the Company
shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, relating to the proposed action
have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions have been complied with.
SECTION 11.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that the person making such certificate or
opinion has read such covenant or condition;
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(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 based;
(c) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him 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 or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 11.6. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Noteholders of one or more Series. The Paying Agent or Registrar may make
reasonable rules and set reasonable requirements for its functions.
SECTION 11.7. Payments on Business Day.
If a payment date is not a Business Day, payment may be made at such place
on the next succeeding Business Day with the same force and effect as if made on
such payment date, and no interest shall accrue for the intervening period.
SECTION 11.8. Governing Law.
The laws of the State of Illinois shall govern this Indenture, the Notes
and any coupons appertaining thereto.
SECTION 11.9. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or an Affiliate. No such indenture, loan or debt
agreement may be used to interpret this Indenture.
SECTION 11.10. No Recourse Against Others.
No director, officer, employee or stockholder, as such, of the Company
shall have any liability for any obligation of the Company under the Notes or
the Indenture or for any claim based on, in respect of or by reason of such
obligation or its creation. Each Noteholder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
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SECTION 11.11. Acts of Successor.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any Person that shall at the time be the
lawful sole successor of the Company.
SECTION 11.12. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
instrument.
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UNION TANK CAR COMPANY
By:
--------------------------------
Name:
Title:
(Seal)
Attest:
By:
-----------------------------
Name:
Title:
BANK ONE, NATIONAL ASSOCIATION,
Trustee
By:
--------------------------------
Name:
Title:
(Seal)
Attest:
By:
-----------------------------
Name:
Title:
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STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On the day of May, in the year 2000, before me personally came
, to me known, who, being by me duly sworn, did
depose and say that resides ; that is the
of the UNION TANK CAR COMPANY, one of the corporations
described in and which executed the above instrument; that knows the
corporate seal of said corporation; that the seal affixed to the said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that signed name thereto by like
authority.
[NOTARIAL SEAL]
----------------------------------
My Commission Expires: ,
----- -----
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On the day of May, in the year 2000, before me personally came
, to me known, who, being by me duly sworn, did depose
and say that resides ; that is the
of the BANK ONE, NATIONAL ASSOCIATION, as Trustee, one of
the corporations described in and which executed the above instrument; that
knows the corporate seal of said corporation; that the seal affixed to
the said instrument is such corporate seal; that it was so affixed by authority
of the Board of Directors of said corporation, and that signed name
thereto by like authority.
[NOTARIAL SEAL]
---------------------------------
My Commission Expires: ,
----- -----
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