<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 18, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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UNION TANK CAR COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of
incorporation or organization)
36-3104688
(I.R.S. Employer
Identification Number)
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225 WEST WASHINGTON STREET
CHICAGO, ILLINOIS 60606
(312) 372-9500
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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WILLIAM M. HOLZMAN, ESQ.
NEAL, GERBER & EISENBERG
TWO NORTH LASALLE STREET
CHICAGO, ILLINOIS 60602
(312) 269-8000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
BARRY P. BIGGAR, ESQ.
MAYER, BROWN & PLATT
1675 BROADWAY
NEW YORK, NEW YORK 10019
(212) 506-2500
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the effective date of this Registration Statement
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED
TITLE OF EACH CLASS OF MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED OFFERING PRICE(1)(2) REGISTRATION FEE(3)
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<S> <C> <C>
Debt Securities, Pass Through Certificates and Senior
Secured Notes............................................... $250,000,000 $66,000
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</TABLE>
(1) Estimated in accordance with Rule 457 solely for the purpose of determining
the registration fee.
(2) Any offering of Debt Securities, Pass Through Certificates or Senior Secured
Notes denominated in any foreign currency will be treated as the equivalent
in U.S. dollars based on the exchange rate applicable to the purchase of
such Debt Securities, Pass Through Certificates or Senior Secured Notes from
the registrant.
(3) Pursuant to Rule 429, two of the prospectuses filed as part of this
Registration Statement also relate to the remaining unsold $52,148,000
principal amount of Debt Securities and Pass Through Certificates previously
registered on a Registration Statement on Form S-3 (File No. 333-45105). A
filing fee of $15,384 was paid with respect to these securities.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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EXPLANATORY NOTE
This Registration Statement contains a prospectus relating to up to
$302,148,000 aggregate principal amount of debt securities, a prospectus
relating to up to $302,148,000 aggregate principal amount of pass through
certificates and a prospectus relating to up to $250,000,000 aggregate principal
amount of senior secured notes. The aggregate principal amount of each type of
security that may be offered and sold pursuant to this Registration Statement is
subject to reduction by the aggregate principal amount of each other type of
security sold pursuant to this Registration Statement; provided that the sale of
the first $52,148,000 aggregate principal amount of debt securities or pass
through certificates (which securities were previously registered on a
Registration Statement on Form S-3 (File No. 333-45105)) will not reduce the
aggregate amount of senior secured notes that may be offered and sold hereunder.
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The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This prospectus is
not an offer to sell the securities and it is not soliciting an offer to
buy securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MAY 18, 2000
PROSPECTUS
UNION TANK CAR COMPANY
DEBT SECURITIES
-------------------------
This prospectus relates to the issuance of unsecured debt securities and
other evidence of indebtedness by Union Tank Car Company.
ISSUANCE OF DEBT SECURITIES:
- - Series may be periodically offered;
- - Series may be denominated in U.S. dollars or other currencies or currency
units; and
- - Prices and terms will be determined at the time of sale.
The total aggregate principal amount (or, in the case of debt securities issued
at a discount, the initial offering price) will not exceed US $302,148,000 (or
the equivalent in foreign currencies or currency units).
FORMS THAT DEBT SECURITIES MAY TAKE:
- - Registered form;
- - Bearer form; or
- - Global form.
This prospectus is accompanied by a prospectus supplement which includes
additional information as to a particular series of debt securities. We may not
sell any debt securities without both this prospectus and a prospectus
supplement.
INFORMATION FOUND IN THE PROSPECTUS SUPPLEMENT:
- - Aggregate principal amount of the series of debt securities
- - Denominations
- - Maturity
- - Interest rate
- - Time of interest payments
- - Any terms for redemption
- - Any terms for sinking fund payments
- - Initial public offering price
- - Names of any underwriters or agents
- - Terms of any underwriting arrangements
- - Amounts to be purchased by underwriters or agents
- - Compensation of underwriters or agents
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined that
this prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 2000.
<PAGE> 4
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission utilizing a shelf registration process. Under
this shelf process, we may sell the securities described in this prospectus in
one or more offerings up to a total dollar amount of $302,148,000. This
prospectus provides you with a general description of the debt securities we may
offer.
Each time we sell debt securities, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. The
prospectus supplement may also add, update or change information contained in
this prospectus. You should read both this prospectus and the prospectus
supplement together with additional information described in the section
entitled "Where You Can Find More Information" on page 12.
For more detail, you should read our registration statement and the
exhibits filed with our registration statement.
UNION TANK CAR COMPANY
We are principally engaged in the leasing of railway tank cars and other
rail cars to United States, Canadian and Mexican manufacturers and other
shippers of chemical products, including liquid fertilizers, petroleum products,
including liquid petroleum gas, food products and bulk plastics. We own and
operate one of the largest fleets of privately-owned railway tank cars in the
world.
We are a wholly-owned subsidiary of Marmon Industrial LLC, which is a
wholly-owned subsidiary of Marmon Holdings, Inc. Substantially all the stock of
Marmon Holdings, Inc. is owned, directly or indirectly, by trusts for the
benefit of certain members of the Pritzker family. "Pritzker family" refers to
the lineal descendants of Nicholas J. Pritzker, deceased.
Our principal executive offices are located at 225 West Washington Street,
Chicago, Illinois 60606, and our telephone number is (312) 372-9500.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of debt securities for
general corporate purposes, unless otherwise specified in the prospectus
supplement relating to a specific issuance of debt securities. These general
corporate purposes may include, among other possible uses, financing the
addition of railcars to our fleet, the repayment of indebtedness, capital
expenditures and acquisitions. Pending such use, we may temporarily invest net
proceeds in short-term securities.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical ratios of earnings to fixed
charges of Union Tank and our consolidated subsidiaries for the periods
indicated:
<TABLE>
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YEARS ENDED DECEMBER 31,
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1999 1998 1997 1996 1995
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<S> <C> <C> <C> <C>
2.96x 3.23x 2.74x 2.84x 2.41x
</TABLE>
The ratio of earnings to fixed charges represents the number of times that
interest expense, amortization of debt discount and the interest component of
rent expense were covered by income before income taxes and cumulative effect of
a change in accounting principle and such interest, amortization and the
interest component of rentals.
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DESCRIPTION OF DEBT SECURITIES UNION TANK MAY OFFER
GENERAL
As required by federal law for all bonds and notes of companies that are
publicly offered, the debt securities are governed by a document called an
indenture. The indenture is a contract, dated as of January 16, 1997, between
Union Tank and Harris Trust and Savings Bank, which acts as trustee.
The trustee has two main roles. First, the trustee can enforce your rights
against us if we default. There are some limitations on the extent to which the
trustee acts on your behalf, described under "Remedies If an Event of Default
Occurs" on page 13. Second, the trustee performs administrative duties for us,
such as sending you interest payments, transferring your debt securities to a
new buyer if you sell and sending you notices.
The indenture and its associated documents contain the full legal text of
the matters described in this section. A copy of the indenture may be obtained
from Union Tank as described below under "Where You Can Find More Information"
on page 12.
Union Tank may issue as many separate series of debt securities under the
indenture as it wishes. The indenture does not limit the amount of debt
securities which we can issue.
This section summarizes the material terms of the debt securities that are
common to all series, although the prospectus supplement which describes the
terms of each series of debt securities may also describe differences from the
material terms summarized here.
Because this section is a summary, it does not describe every aspect of the
debt securities. This summary is subject to and qualified in its entirety by
reference to all the provisions of the indenture, including definitions of
certain terms used in the indenture. In this summary, we described the meaning
for only the more important terms. We also have included references in
parentheses to certain sections of the indenture. Whenever Union Tank refers to
particular sections or defined terms of the indenture in this prospectus or in
the prospectus supplement, those sections or defined terms are incorporated by
reference in this prospectus or in the prospectus supplement. You must look to
the indenture for the most complete description of what we describe in summary
form in this prospectus.
This summary also is subject to, and qualified by reference to, the
description of the particular terms of the series of debt securities offered by
a prospectus supplement. Those terms may vary from the terms described in this
prospectus. The prospectus supplement relating to each series of debt securities
will be attached to the front of this prospectus. There may also be a further
prospectus supplement, known as a pricing supplement, which contains the precise
terms of debt securities that we may offer.
Union Tank may issue the debt securities as original issue discount
securities, which will be offered and sold at a substantial discount below their
stated principal amount. The prospectus supplement relating to the original
issue discount securities will describe federal income tax consequences and
other special considerations applicable to them. The debt securities may also be
issued as securities denominated in foreign currencies or currency units, as
described in more detail in the prospectus supplement relating to any of the
particular debt securities. The prospectus supplement relating to specific debt
securities will also describe any special considerations and certain additional
tax considerations applicable to those debt securities.
In addition, the specific financial, legal and other terms particular to a
series of debt securities are described in the prospectus supplement and any
pricing supplement relating to that series. The prospectus supplement relating
to a series of debt securities will describe the following terms of the
securities:
- the title of the series of debt securities;
- any limit on the aggregate principal amount of the series of debt
securities;
- the person to whom interest on a debt security is payable, if other than
the holder on the regular record date;
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- the date or dates on which the series of debt securities will mature;
- the annual rate or rates, which may be fixed or variable, at which the
series of debt securities will bear interest, if any, and the date or
dates from which that interest, if any, will accrue;
- the place or places where the principal of, premium, if any, and interest
on the debt securities is payable;
- the dates on which interest, if any, on the series of debt securities
will be payable and the regular record dates for the interest payment
dates;
- any mandatory or optional sinking funds or similar provisions or
provisions that require us to redeem the debt securities or allow us to
redeem the debt securities at our option;
- the date and prices, if any, at which the series of debt securities may
be redeemed and the other detailed terms and provisions of any optional
or mandatory redemption provisions;
- if other than denominations of $1,000 and any of its integral multiples,
the denominations in which the series of debt securities will be
issuable;
- the currency of payment of principal, premium, if any, and interest on
the series of debt securities;
- if the currency of payment is subject to the election of Union Tank or a
holder, the currencies which may be elected and the terms and conditions
upon which the election can be made;
- whether the provisions described under "Defeasance" on page 9 apply to
the debt securities;
- any event of default under the series of debt securities which is
different from those described under "What is an Event of Default?" on
page 10;
- if the series of debt securities will be issuable only in the form of a
global security, the depository or its nominee with respect to the series
of debt securities and the circumstances under which the global security
may be registered for transfer or exchange in the name of a person other
than the depositary or the nominee; and
- any other special feature of the series of debt securities.
LEGAL OWNERSHIP
STREET NAME AND OTHER INDIRECT HOLDERS
We generally will not recognize investors who hold debt securities in
accounts at banks or brokers as legal holders of debt securities. This is called
holding in street name. Instead, Union Tank will recognize only the bank or
broker, or the financial institution the bank or broker uses to hold its debt
securities. These intermediary banks, brokers and other financial institutions
pass along principal, interest and other payments on the debt securities, either
because they agree to do so in their customer agreements or because they are
legally required to do so. If you hold debt securities in street name, you
should check with your own institution to find out:
- how it handles securities payments and notices;
- whether it imposes fees or charges;
- how it would handle voting if required;
- whether and how you can instruct it to send you debt securities
registered in your own name so that you can be a direct holder as
described below; and
- how it would pursue rights under the debt securities if there were a
default or other event triggering the need for holders to act to protect
their interests.
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DIRECT HOLDERS
Our obligations, as well as the obligations of the trustee and those of any
third parties employed by Union Tank or the trustee, run only to persons who are
registered as holders of debt securities. As noted above, Union Tank does not
have obligations to you if you hold debt securities in street name or other
indirect means, either because you choose to hold debt securities in that manner
or because the debt securities are issued in the form of global securities as
described below. For example, once we make payment to the registered holder, we
have no further responsibility for the payment, even if that holder is legally
required to pass the payment along to you as a street name customer but does not
do so.
GLOBAL SECURITIES
- WHAT IS A GLOBAL SECURITY? A global security is a special type of
indirectly held security, as described above under "Street Name and Other
Indirect Holders". If Union Tank chooses to issue debt securities in the form of
global securities, the ultimate beneficial owners can only be indirect holders.
Union Tank would do this by requiring that the global security be registered in
the name of a financial institution it selects and by requiring that the debt
securities represented by the global security not be transferred to the name of
any other direct holder unless the special circumstances described below occur.
The financial institution that acts as the sole direct holder of a global
security is called the depositary. Any person wishing to own a debt security
must do so indirectly through an account with a broker, bank or other financial
institution that in turn has an account with the depositary. The prospectus
supplement will indicate whether your series of securities will be issued only
in the form of global securities.
- SPECIAL INVESTOR CONSIDERATIONS FOR GLOBAL SECURITIES. As an indirect
holder, an investor's rights relating to a global security will be governed by
the account rules of the investor's financial institution and of the depositary,
as well as general laws relating to securities transfers. We do not recognize an
indirect holder as a holder of debt securities and instead deal only with the
depositary that holds the global security.
If you are an investor, you should be aware that if debt securities are
issued only in the form of global securities:
- You cannot get debt securities registered in your own name.
- You cannot receive physical certificates for your interest in the debt
securities.
- You will be a street name holder and must look to your own bank or broker
for payments on the debt securities and protection of your legal rights
relating to the debt securities. See "Legal Ownership -- Street Name and
Other Indirect Holders" on page 4.
- You may not be able to sell interests in the debt securities to some
insurance companies and other institutions that are required by law to
own their securities in the form of physical certificates.
- The depositary's policies will govern payments, transfers, exchange and
other matters relating to your interest in the global security. Union
Tank and the trustee have no responsibility for any aspect of the
depositary's actions or for its records of ownership interest in the
global security. Union Tank and the trustee also do not supervise the
depositary in any way.
- SPECIAL SITUATIONS WHEN A GLOBAL SECURITY WILL BE TERMINATED. In a few
special situations described in the next paragraph, a global security will
terminate and interests in it will be exchanged for physical certificates
representing debt securities. After that exchange, the choice of whether to hold
debt securities directly or in street name will be up to you. You will have to
consult your own bank or broker to find out how to have your interests in debt
securities transferred to your own name, so that you will be a direct holder.
When a global security terminates, certificates will be issued in the names of
registered holders specified by the depositary, not by Union Tank or the
trustee. The rights of street name investors and direct holders in the debt
securities have been previously described in the subsections entitled "Street
Name and Other Indirect Holders" on page 4 and "Direct Holders" on page 5.
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The special situations in which a global security will be terminated are:
- When the depositary notifies Union Tank that it is unwilling, unable or
no longer qualified to continue as depositary.
- When Union Tank notifies the trustee that it wishes to terminate the
global security.
- When an event of default on the securities has occurred and has not been
cured. (Default is discussed later under "Events of Default" on page 10.)
The prospectus supplement may also describe additional situations for
terminating a global security that would apply only to the particular series of
debt securities covered by the prospectus supplement.
In the remainder of this description "you" means direct holders and not
street name or other indirect holders of debt securities. Indirect holders
should read the previous subsection on page 4 entitled "Street Name and other
Indirect Holders".
OVERVIEW OF REMAINDER OF THIS DESCRIPTION
The remainder of this description summarizes:
- Additional Mechanics relevant to the debt securities under normal
circumstances, such as how you transfer ownership and where Union Tank
makes payments;
- Your rights in several Special Situations, such as if Union Tank merges
with another company, or if Union Tank wants to change a term of the debt
securities;
- The absence in the indenture of any promises by Union Tank about how it
will run its business or any business action Union Tank promises to take,
known as a Restrictive Covenant;
- Defeasance clauses, which may allow for Union Tank to be completely
released from its payment and other obligations on the debt securities or
partially released from any restrictive covenants in the debt securities;
and
- Your rights if Union Tank Defaults or experiences other financial
difficulties.
ADDITIONAL MECHANICS
FORM, EXCHANGE AND TRANSFER
Unless otherwise specified in a prospectus supplement, the debt securities
will be issued:
- only in fully registered form;
- without interest coupons; and
- in denominations that are even multiples of $1,000. (Section 2.2).
You may have your debt securities divided into more debt securities of
smaller denominations or combined into fewer debt securities of larger
denominations, as long as the total principal is not changed. (Section 2.8).
This is called an exchange.
You may exchange or transfer debt securities at the office of the trustee.
The trustee acts as Union Tank's agent for registering debt securities in the
names of holders and transferring debt securities. Union Tank may change this
appointment to another entity or perform these functions itself. The entity
performing the role of maintaining the list of registered holders is called the
security registrar. It will also perform transfers. (Section 2.7).
You will not be required to pay a service charge to transfer or exchange
debt securities, but you may be required to pay for any tax or other
governmental charge associated with the exchange or transfer. The transfer or
exchange will only be made if the security registrar is satisfied with your
proof of ownership. (Section 2.8).
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If the debt securities are redeemable, neither the registrar nor Union Tank
is required to register the transfer or exchange of debt securities during the
period beginning 15 days before the day Union Tank mails the notice of
redemption and ending on the day on which the notice of redemption if first
published. Union Tank may also refuse to register transfers or exchanges of debt
securities selected for redemption, except that Union Tank will continue to
permit transfers and exchanges of the unredeemed portion of any debt security
being partially redeemed. (Section 2.8).
PAYMENT AND PAYING AGENTS
Union Tank will pay interest to you, if you are a direct holder listed in
the trustee's records at the close of business on a particular day in advance of
each due date for interest, even if you no longer own the debt security on the
date interest is actually paid. That particular day, usually about two weeks in
advance of the payment date, is called the regular record date and is stated in
the prospectus supplement. Holders buying and selling debt securities must work
out between them how to compensate for the fact that Union Tank will pay all the
interest for an interest period to the one who is the registered holder on the
regular record date. The most common manner is to adjust the sales price of the
securities to pro rate interest fairly between buyer and seller. This pro rated
interest amount is called accrued interest.
Union Tank will pay interest, principal and any other money due on the debt
securities at the corporate trust office of the trustee in New York City. You
must make arrangements to have your payments picked up at or wired from that
office. Union Tank may choose to pay interest by mailing checks.
Street name and other indirect holders should consult their banks, brokers
or other financial institutions for information on how they will receive
payments.
Union Tank may also arrange for additional payment offices, and may cancel
or change these offices, including its use of the trustee's corporate trust
office. These offices are called paying agents. Union Tank may also choose to
act as its own paying agent. Union Tank must notify the trustee of the name and
address of any paying agent that is not a party to the indenture. (Section 2.4)
NOTICES
Union Tank and the trustee will send notices regarding the debt securities
only to direct holders, using their addresses as listed in the trustee's
records. (Sections 4.2 and 7.6).
SPECIAL SITUATIONS
MERGERS AND SIMILAR EVENTS
Union Tank is generally permitted to consolidate or merge with another
person. We are also permitted to sell or lease substantially all of our assets
to another person. However, we may not take any of these actions unless the
following conditions are met:
- Where Union Tank merges out of existence or sells or leases substantially
all of its assets, the other person must be a corporation organized under
the laws of any state or the District of Columbia or under federal law,
and it must agree to be legally responsible for the debt securities.
- Immediately after giving effect to the merger, sale of assets or other
transaction, Union Tank must not be in default on the debt securities.
For purposes of this no-default test, a default would include an event of
default that has occurred and not been cured. A default for this purpose
would also include any event that would be an event of default if Union
Tank were to be given a notice of default or if the event were to exist
for a specific period of time. (Section 5.1).
Following the consolidation or merger with or sale or lease of assets to another
person, that person will be substituted for Union Tank under the indenture, and,
except in the case of a lease, all obligations of Union Tank under the indenture
and the debt securities will terminate.
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MODIFICATION AND WAIVER
There are three types of changes Union Tank can make to the indenture and
the debt securities.
CHANGES REQUIRING YOUR APPROVAL. We cannot make the following changes to
your debt securities without your specific approval:
- change the rate of interest or the time of payment of any debt security;
- change the principal amount of or the stated maturity of any debt
security;
- reduce any premium payable upon the redemption of any debt security;
- waive a default in the payment of the principal of or interest on any
debt security;
- change the currency of payment on a debt security;
- impair your right to sue for payment;
- reduce the percentage of the principal amount of debt securities the
consent of which is needed to modify or amend the indenture;
- reduce the percentage of the principal amount of debt securities the
consent of which is needed to waive compliance with certain provisions of
the indenture or to waive certain defaults; or
- modify any other aspect of the provisions dealing with modification and
waiver of the indenture. (Section 9.2).
CHANGES REQUIRING A MAJORITY VOTE. The second type of change to the
indenture and the debt securities is the kind that requires a vote in favor by
the holders of debt securities owning a majority of the principal amount of the
particular series affected. Most changes fall into this category, except for
clarifying changes and certain other changes that would not adversely affect
holders of the debt securities as described in the next paragraph. (Section
9.2). Union Tank may obtain a waiver of a past default from the holders of debt
securities owning a majority of the principal amount of the particular series
affected. However, Union Tank cannot obtain a waiver of a payment default or any
other aspect of the indenture or the debt securities listed and described
previously on page 8 under "Changes Requiring Your Approval" unless Union Tank
obtains a consent to the waiver from every holder of the affected debt
securities. (Section 9.2).
CHANGES NOT REQUIRING APPROVAL. The third type of change to the indenture
and the debt securities does not require any vote by holders of debt securities.
This type is limited to changes to:
- cure any ambiguity, defect or inconsistency in the indenture or in the
debt securities;
- provide for the assumption of all the obligations of Union Tank under the
debt securities and under the indenture by any corporation in connection
with a merger, consolidation, or transfer or lease of substantially all
of our assets;
- secure the debt securities;
- provide for uncertificated debt securities in addition to or in place of
certificated debt securities;
- make any change that does not adversely effect the rights of any holder
of a debt security;
- provide for the issuance of and establish the form and terms and
conditions of a series of debt securities; or
- add to rights of holders of debt securities. (Section 9.1).
ABSENCE OF RESTRICTIVE COVENANTS
The indenture does not contain any promises by Union Tank on how it will
operate its business and does not restrict Union Tank's ability to incur debt or
grant liens on its assets. Similarly, the indenture
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does not contain any "event risk" provisions that may afford holders of debt
securities protection in the event of a highly leveraged transaction involving
Union Tank. If Union Tank determines to include such a promise for the benefit
of a particular series of debt securities, that promise, or restrictive
covenant, will be described in the prospectus supplement relating to that series
of debt securities.
DEFEASANCE
Union Tank may be completely released from its payment and other
obligations on the debt securities or may be released from certain events of
default as described below. The following discussion of defeasance, satisfaction
and discharge will be applicable to your series of debt securities unless Union
Tank chooses not to have them apply to that series, in which case it will state
that in the prospectus supplement. (Section 8.1).
FULL DEFEASANCE
Union Tank can legally release itself from certain obligations on the debt
securities of a series, called defeasance, if Union Tank puts in place the
following arrangement for you to be repaid:
- Union Tank must deposit with the trustee, in trust, at or before
maturity, for your benefit and the benefit of all holders of the debt
securities of that series a combination of money and U.S. government
notes or bonds or notes or obligations guaranteed by the U.S. government
that, in the opinion of a nationally recognized firm of independent
public accountants chosen by Union Tank, will generate enough cash to
make interest, principal and any other payments on the debt securities on
their various due dates. (Section 8.1).
Defeasance of the debt securities would be subject to the satisfaction of
certain conditions, including:
- There cannot be an event of default on the date Union Tank makes the
deposit in trust;
- Your interest and all other holders of debt securities in the deposit
must be perfected; and
- The deposit must not result in the breach by Union Tank of any of its
material agreements. (Section 8.1).
SATISFACTION AND DISCHARGE
If we are able to defease the debt securities, as described above, and
satisfy certain other conditions, Union Tank will be released from its
obligations to pay principal and interest on the debt securities when due, and
you would have to rely solely on the money or securities deposited in trust for
repayment of the debt securities. You could not look to Union Tank for
repayment.
The conditions that must be satisfied include, except in limited
circumstances involving a deposit made within one year of maturity of the debt
securities:
- There cannot be an event of default on the date we make the deposit or on
the 91st day after we make the deposit; and
- Union Tank must deliver to the trustee a legal opinion of nationally
recognized tax counsel confirming that Union Tank may make the deposit of
money or securities without causing you to be taxed on the debt
securities any differently than if Union Tank did not make the deposit
and instead repaid the debt securities in accordance with their terms.
DEFAULT AND RELATED MATTERS
RANKING
The debt securities are not secured by any of Union Tank's property or
assets. Therefore, your ownership of debt securities means you are one of Union
Tank's unsecured creditors. The debt securities
9
<PAGE> 12
are not subordinated to any of Union Tank's other debt obligations and therefore
they rank equally with all of Union Tank's other unsecured and unsubordinated
indebtedness.
EVENTS OF DEFAULT
You will have special rights if an event of default occurs and is not
cured, as described later in this subsection.
WHAT IS AN EVENT OF DEFAULT? The term "Event of Default" means any of the
following:
- Union Tank does not pay the principal of a debt security on its due date.
- Union Tank does not pay interest on a debt security within 30 days of its
due date.
- Union Tank does not deposit money in a separate account, known as a
sinking fund, when a deposit is due.
- Union Tank remains in breach of any agreement of Union Tank contained in
the indenture for 90 days after we receive a notice of default stating we
are in breach. The notice must be sent by either the trustee or holders
of 25% of the outstanding principal amount of debt securities of the
affected series.
- Union Tank files for bankruptcy or certain other events of bankruptcy,
insolvency or reorganization occur.
REMEDIES IF AN EVENT OF DEFAULT OCCURS. If an event of default has occurred
and has not been cured, the trustee or the holders of at least 25% in principal
amount of the debt securities of the affected series may declare the entire
principal amount of all the debt securities of that series and any accrued
interest to be due and immediately payable. In the case of original issue
discount securities, the trustee or the required percentage of holders may
declare due and payable the portion of the principal amount that is specified in
the terms of the affected debt security. This is called a declaration of
acceleration of maturity. However, a declaration of acceleration of maturity may
be cancelled by the holders of at least a majority in principal amount of the
debt securities of the affected series if all events of default have been cured
or waived but only before a judgment or decree based on the acceleration has
been obtained. (Section 6.2).
Please refer to the prospectus supplement relating to any series of debt
securities which are original issue discount securities for the particular
provisions relating to acceleration of the maturity of original issue discount
securities upon the occurrence of an event of default.
Except in cases of default, where the trustee has some special duties, the
trustee is not required to take any action under the indenture at the request of
any holders unless the holders offer the trustee reasonable protection from
expenses and liability. This protection is called an indemnity. (Section 7.1).
If reasonable indemnity is provided, subject to some limitations, the holders of
a majority of the outstanding principal amount of the securities of the relevant
series may direct the time, method and place of conducting any lawsuit or other
formal legal action seeking any remedy available to the trustee. These majority
holders may also direct the trustee in performing any other action under the
indenture. (Section 6.5).
Before you bypass the trustee and bring your own lawsuit or other formal
legal action or take other steps to enforce your rights or protect your
interests relating to the debt securities, the following must occur:
- You must give the trustee written notice that an event of default has
occurred and remains uncured.
- The holders of 25% of the outstanding principal amount of all the
securities of the relevant series must make a written request that the
trustee take action because of an event of default, and must offer
reasonable indemnity to the trustee against the cost and other
liabilities of taking that action.
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<PAGE> 13
- The trustee must have not taken action for 60 days after receipt of the
above written request and offer of indemnity and no directions
inconsistent with the above written request must have been given to the
trustee by the holders of a majority of the outstanding principal amount
of the debt securities during such period. (Section 7.6).
However, you are entitled at any time to bring a lawsuit for the payment of
money due on your debt security on or after its due date. (Section 7.7).
Street name and other indirect holders should consult their banks, brokers
or other financial institutions for information on how to give notice or
direction to or make a request of the trustee and to make or cancel a
declaration of acceleration.
OUR RELATIONSHIP TO THE TRUSTEE
Harris Trust and Savings Bank is the trustee under other indentures and
agreements to which we are a party; certain of these agreements relate to
indebtedness which is secured. If an event of default occurred under the
indenture relating to the debt securities or one of these other indentures or
agreements, Harris Trust and Savings Bank may be deemed to have a conflicting
interest with respect to the debt securities for purposes of the Trust Indenture
Act of 1939 and, therefore, may be required to resign as trustee.
PLAN OF DISTRIBUTION
Union Tank may sell debt securities:
- to or through underwriters;
- through agents;
- through dealers; or
- through a combination of these methods.
The distribution of the debt securities may be effected from time to time
in one or more transactions at (i) a fixed price or prices, which may be
changed, (ii) market prices prevailing at the time of sale, (iii) prices related
to the prevailing market prices at the time of sale, or (iv) negotiated prices.
The prospectus supplement for each series of debt securities will describe:
- the terms of the offering of those debt securities, including the names
of any agents or underwriters;
- the public offering or purchase price;
- any discounts and commissions to be allowed or paid to the agents or
underwriters and all other items which are underwriting compensation;
- any discounts and commissions to be allowed or paid to dealers; and
- other specific terms of the particular debt securities.
Only the agents or underwriters named in a particular prospectus supplement
are agents or underwriters in connection with the debt securities being offered
by that prospectus supplement.
Underwriters, agents and dealers may be entitled, under agreements with
Union Tank, to indemnification against certain civil liabilities, including
liabilities under the Securities Act of 1933.
Each series of debt securities will be a new issue of securities and will
not have an established trading market. Union Tank will not list any series of
debt securities on an exchange. No assurance can be given that you will be able
to resell any debt securities that you may purchase.
Underwriters, dealers or agents may engage in transactions with, or perform
services for, Union Tank or its affiliates in the ordinary course of business.
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<PAGE> 14
LEGAL OPINIONS
Unless otherwise indicated in the applicable prospectus supplement, the
validity of the debt securities offered hereby will be passed upon for us by
Neal, Gerber & Eisenberg, Chicago, Illinois, and for any agents, dealers or
underwriters by Mayer, Brown & Platt, New York, New York.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our Annual Report on Form 10-K for the year
ended December 31, 1999, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in the registration statement. Our
financial statements are incorporated by reference in reliance on Ernst & Young
LLP's report, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports and other information with
the Securities and Exchange Commission. You may read and copy any documents we
file at the SEC's public reference room, 450 Fifth Street, N.W., Washington,
D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference room. Our SEC filings are also available to the public on the
SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information that we file
with the SEC will automatically update and supersede this information as well as
the information included in this prospectus. We incorporate by reference the
documents listed below and any future filing we make with the SEC under Sections
13(a), 13(c) or 15(d) of the Securities Exchange Act of 1934 until we sell all
the debt securities. This prospectus is part of a registration statement we
filed with the SEC.
- Annual Report on Form 10-K for the fiscal year ended December 31, 1999;
and
- Quarterly Report on Form 10-Q for the quarter ended March 31, 2000.
We will provide without charge to each person to whom this prospectus is
delivered, upon written request, a copy (without exhibits) of any or all
documents incorporated by reference in this Prospectus. Requests for such copies
should be directed to the General Counsel and Secretary, Union Tank Car Company,
225 West Washington Street, Chicago, Illinois 60606, telephone (312) 372-9500.
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<PAGE> 15
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This prospectus is
not an offer to sell securities and it is not soliciting an offer to buy
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MAY 18, 2000
PROSPECTUS
UNION TANK CAR COMPANY
PASS THROUGH CERTIFICATES
-------------------------
This prospectus relates to the issuance of pass through certificates by one
or more pass through trusts to be formed by Union Tank.
THE CERTIFICATES:
- - Will be issued in one or more series with distribution rates and distribution
dates specified in the prospectus supplement;
- - Will represent interests in the relevant pass through trust only and will be
repaid only from the assets of that trust, and will not represent obligations
of, or be guaranteed by, Union Tank; and
- - Will be issued in registered form and may be issued through a book-entry
system.
The aggregate public offering price of the certificates will not exceed
$302,148,000.
EACH PASS THROUGH TRUST:
- - Will issue one or more series of certificates;
- - Will use the proceeds of each series of certificates to purchase equipment
notes of one or more series, each with an interest rate equal to the rate on
that series of certificates and with a maturity date on or prior to the final
distribution date for that series of certificates; and
- - Will pass through to certificateholders the principal and interest paid on the
equipment notes that it owns.
THE EQUIPMENT NOTES:
- - Will be issued in series;
- - Will be issued in connection with one or more leveraged lease transactions to
finance or refinance a portion of the cost of certain railcars leased to us;
- - Will not be our obligation and will not be guaranteed by us, but amounts
unconditionally payable by us under the equipment lease will be sufficient to
make all payments required under those equipment notes when due; and
- - Will be secured by the railcars specified in the prospectus supplement and by
the interest of the lessor in that lease.
This prospectus is accompanied by a prospectus supplement which includes
additional information as to the particular series of certificates being sold
and the underlying equipment notes. We may not sell any certificates without
both this prospectus and a prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined that
this prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 2000.
<PAGE> 16
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission utilizing a shelf registration process. Under
this shelf process, the certificates described in this prospectus may be sold in
one or more offerings up to a total dollar amount of $302,148,000. This
prospectus provides you with a general description of the certificates that may
be offered.
Each time certificates are sold, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. The
prospectus supplement may also add, update or change information contained in
this prospectus. You should read both this prospectus and any prospectus
supplement together with additional information described in the section
entitled "Where You Can Find More Information" on page 23.
For more detail, you should read our registration statement and the
exhibits filed with our registration statement.
UNION TANK CAR COMPANY
We are principally engaged in the leasing of railway tank cars and other
rail cars to United States, Canadian and Mexican manufacturers and other
shippers of chemical products, including liquid fertilizers, petroleum products,
including liquid petroleum gas, food products and bulk plastics. We own and
operate one of the largest fleets of privately-owned railway tank cars in the
world.
We are a wholly-owned subsidiary of Marmon Industrial LLC, which is a
wholly-owned subsidiary of Marmon Holdings, Inc. Substantially all of the stock
of Marmon Holdings, Inc. is owned, directly or indirectly, by trusts for the
benefit of certain members of the Pritzker family. "Pritzker family" refers to
the lineal descendants of Nicholas J. Pritzker, deceased.
Our principal executive offices are located at 225 West Washington Street,
Chicago, Illinois 60606, and our telephone number is (312) 372-9500.
GENERAL OUTLINE
The certificates are securities that evidence an ownership interest in a
pass through trust. The holders of the certificates issued by a trust will be
the beneficiaries of that trust. The beneficial interest in a trust represented
by a certificate will be a percentage interest in the property of that trust.
The beneficial interest will be equal to the original face amount of that
certificate divided by the original face amount of all the certificates issued
by that trust. Each certificate will represent a beneficial interest only in the
property of the trust that issued that certificate. Multiple series of
certificates may be issued. If more than one series of certificates is issued,
each series of certificates will be issued by a separate trust.
The property that will be held by each trust will include equipment notes
secured by certain railcars leased to us. Payments of principal and interest on
the equipment notes owned by a trust will be passed through to holders of the
certificates issued by that trust in accordance with the terms of the trust
supplement for that trust.
We have entered into a pass through trust agreement with Bank One, National
Association, as trustee, in anticipation of offerings of certificates. In
connection with issuance of each series of certificates, we will enter into a
separate trust supplement. The trust supplement with respect to each series of
certificates will form a separate trust for that series.
The trustee will enter into one or more purchase or participation
agreements in connection with each series of certificates relating to one or
more leveraged lease transactions. Under a participation agreement, the trustee
will agree to purchase one or more equipment notes to be issued under an
indenture. Each equipment note will relate to certain railcars or "equipment
units" that are leased to us, as described in the applicable prospectus
supplement.
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<PAGE> 17
The equipment notes in each trust will have an interest rate equal to the
rate applicable to the certificates issued by that trust. Also, the equipment
notes in each trust will have identical priority of payment relative to any
other equipment notes issued under the same indenture. The maturity dates of the
equipment notes in each trust will occur on or before the final distribution
date applicable to the certificates that will be issued by that trust.
The trustee will distribute the amount of payments of principal, premium,
if any, and interest received by it as holder of the equipment notes to the
registered holders of certificates of the trust in which those equipment notes
are held.
Each series of equipment notes will be issued by an owner trustee under an
indenture between the owner trustee and an indenture trustee. The owner trustee
and the indenture trustee for each series of equipment notes will be specified
in the related prospectus supplement.
The owner trustee will not be acting in its individual capacity, but solely
as owner trustee of a separate trust for the benefit of one or more
institutional investors, called "owner participants." With respect to the
equipment units purchased by an owner trustee, the related owner participant(s)
will provide, from sources other than the equipment notes, a portion of the cost
of the related equipment units. No owner participant will be personally liable
for any amount payable under the related indenture or the related equipment
notes.
All equipment units will be leased by the related owner trustee to us
pursuant to a separate lease agreement.
USE OF PROCEEDS
The trustee will use the proceeds of the certificates for the purchase of
one or more equipment notes. The equipment notes will be issued to finance or
refinance the debt portion of one or more separate leveraged lease transactions
entered into by us, as lessee of certain equipment units.
To the extent that any proceeds of any offering of certificates are not
used to purchase equipment notes on the date of issuance of those certificates,
those proceeds will be held for the benefit of certificateholders. If those
proceeds are not used to purchase equipment notes by the date specified in the
applicable prospectus supplement, they will be returned to the
certificateholders. See "Description of Certificates -- Delayed Purchase of
Equipment Notes" on page 14 for a description of the procedure for delayed
purchase of equipment notes.
The prospectus supplement with respect to each series of certificates will
provide additional details regarding the use of proceeds of the certificates and
the use of proceeds of the equipment notes to be purchased by the trust.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical ratios of earnings to fixed
charges of Union Tank and its consolidated subsidiaries for the periods
indicated:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
- -------------------------------------
1999 1998 1997 1996 1995
- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C>
2.96x 3.23x 2.74x 2.84x 2.41x
</TABLE>
The ratio of earnings to fixed charges represents the number of times that
interest expense, amortization of debt discount and the interest component of
rent expense were covered by income before income taxes and cumulative effect of
a change in accounting principle and such interest, amortization and the
interest component of rentals.
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<PAGE> 18
DESCRIPTION OF THE CERTIFICATES
In connection with each offering under this prospectus and accompanying
prospectus supplement, we will form one or more separate trusts and those trusts
will issue one or more series of certificates. Each series of certificates will
be issued pursuant to the pass through trust agreement and a trust supplement
between the trustee and us. The statements made under this caption are summaries
of detailed provisions of the pass through trust agreement.
We have filed a copy of the pass through trust agreement with the
Securities and Exchange Commission ("SEC") as an exhibit to the registration
statement. In addition, we will file with the SEC forms of each of the
agreements listed below and discussed in this prospectus or the accompanying
prospectus supplement.
- trust supplement
- participation agreement
- indenture
- lease; and
- trust agreement.
You should refer to those agreements for more information regarding the terms
discussed in this prospectus and accompanying prospectus supplement. See "Where
You Can Find More Information" on page 23 for information on documents we file
with the SEC. The summaries contained in this prospectus and the accompanying
prospectus supplement are qualified in their entirety by reference to those
filed agreements.
The certificates offered pursuant to this prospectus will be limited to
$302,148,000 aggregate public offering price.
To the extent that any provision in the accompanying prospectus supplement
is inconsistent with this summary, the prospectus supplement will control.
GENERAL
WHAT THE CERTIFICATES REPRESENT
Each certificate will represent a fractional undivided interest in the
trust created by the pass through trust agreement and the related trust
supplement. All payments and distributions will be made only from the property
of the related trust, called the "trust property". The trust property will
include:
- The equipment notes held in that trust;
- All monies at any time paid, due and to become due on those equipment
notes; and
- Funds from time to time deposited with the trustee for the account of the
trust.
The certificates will be issued in minimum denominations of $1,000 or an
integral multiple of that amount. One certificate of each series, however, may
be issued in a different denomination.
WHAT THE CERTIFICATES DO NOT REPRESENT
The certificates do not represent an interest in or an obligation of Union
Tank, the trustee, any of the indenture trustees or owner trustees in their
individual capacities, any owner participant or any of their respective
affiliates. By accepting a certificate, you agree to look solely to the income
and proceeds from the trust property as provided in the pass through trust
agreement and the applicable trust supplement.
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<PAGE> 19
ISSUANCE OF EQUIPMENT NOTES
The equipment notes issued under a particular indenture may be held in more
than one trust. One trust may hold equipment notes issued under more than one
indenture.
PASS THROUGH OF INTEREST PAID ON EQUIPMENT NOTES
Interest paid on the equipment notes will be passed through to
certificateholders of each trust. The rate of payment to certificateholders will
be the same annual rate payable on the equipment notes held by that trust. This
rate will be set forth for each trust on the cover page of the applicable
prospectus supplement.
DESCRIPTION OF INFORMATION CONTAINED IN PROSPECTUS SUPPLEMENTS
You should consult the related prospectus supplement for a description of
the specific series of certificates. The information in the related prospectus
supplement will include the following:
- Specific designation and title of the certificates;
- Aggregate principal amount of each series of certificates;
- Regular distribution dates and special distribution dates applicable to
those certificates;
- Distribution rates on those certificates;
- Currency or currencies in which the certificates may be denominated;
- Specific form of the certificates, including whether or not the
certificates are to be issued through a book-entry system;
- Any related lease arrangements;
- Description of the equipment notes to be purchased by the trust,
including:
-- the terms and conditions upon which the equipment notes may or must be
redeemed or defeased by the owner trustee, and
-- the interest rate and payment dates of the equipment notes.
- Description of the equipment units;
- Description of the related indentures, including:
-- a description of the events of default under the indentures,
-- the remedies exercisable upon the occurrence of events of default, and
-- any limitations on the exercise of those remedies with respect to the
related equipment notes;
- A description of the related leases, trust agreements and participation
agreements, including:
-- the names of the related owner trustees,
-- a description of the events of default under the leases, the remedies
exercisable upon the occurrence of those events of default and any
limitations on the exercise of those remedies,
-- a description of the events of loss with respect to the related
equipment units and any right we may have to replace equipment units,
and
-- any rights of the owner trustee or owner participant to cure our
failures to pay rent under the related lease;
- Description of the terms of any underwriting arrangement, including:
-- the names of any underwriters or agents, and
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<PAGE> 20
-- the amounts of be purchased by underwriters or agents, and
-- the compensation of underwriters or agents;
- The extent, if any, to which the documents governing the equipment notes
may be amended by the parties to those documents and whether the consent
of the holders of the equipment notes is necessary for amendment; and
- Any other special terms pertaining to the relevant certificates.
BOOK-ENTRY REGISTRATION
GENERAL
The prospectus supplement for each series of certificates will state
whether those certificates will be subject to the following provisions and the
provisions under the caption "Definitive Certificates" on page 8.
Upon issuance, each series of certificates will be represented by one or
more fully registered global certificates. Unless otherwise provided in a
prospectus supplement, each global certificate will be deposited with, or on
behalf of, The Depository Trust Company ("DTC") and registered in the name of
DTC's nominee, Cede & Co. ("Cede"). No person acquiring an interest in
certificates (a "certificate owner") will be entitled to receive a certificate
representing their interest in those certificates unless and until a definitive
certificate is issued, as described under "Definitive Certificates" on page 8.
Unless and until definitive certificates are issued, all references to
actions by certificateholders will refer to actions taken by DTC upon
instructions from DTC Participants. All references to distributions, notices,
reports and statements to certificateholders will refer, as the case may be, to
distributions, notices, reports and statements to DTC or Cede, as the registered
holder of those certificates, or to DTC Participants for distribution to
certificate owners in accordance with DTC procedures.
DTC AND DTC PARTICIPANTS
DTC is:
- A limited purpose trust company organized under the laws of the State of
New York;
- A member of the Federal Reserve System;
- A "clearing corporation" within the meaning of the New York Uniform
Commercial Code; and
- A "clearing agency" registered pursuant to section 17A of the Exchange
Act.
DTC was created to hold securities for its participants ("DTC
Participants") and to facilitate the clearance and settlement of securities
transactions between DTC Participants through electronic book-entries, thereby
eliminating the need for physical transfer of certificates. DTC Participants
include:
- Securities brokers and dealers
- Banks
- Trust companies
- Clearing corporations
Indirect access to the DTC system also is available to Indirect
Participants that clear through or maintain a custodial relationship with a DTC
Participant either directly or indirectly. Indirect Participants may include:
- Banks
- Brokers
- Dealers
- Trust companies
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<PAGE> 21
PROCEDURES FOR TRANSFERS AND PAYMENTS
Certificate owners that are not DTC Participants or Indirect Participants
but desire to purchase, sell or otherwise transfer ownership of, or other
interests in, the certificates may do so only through DTC Participants and
Indirect Participants. In addition, certificate owners will receive all
distributions of principal and interest from the trustee through DTC, DTC
Participants or Indirect Participants, as the case may be.
Under a book-entry format, certificate owners may experience some delay in
their receipt of payments, because the payments will be forwarded by the trustee
to Cede, as nominee for DTC. DTC will forward those payments in same-day funds
to DTC Participants who are credited with ownership of the certificates. The
amounts forwarded to DTC Participants will be proportionate to the principal
amount of each DTC Participant's respective holdings of beneficial interests in
the certificates. Subsequently, DTC Participants will forward payments to
Indirect Participants or certificate owners, as the case may be, in accordance
with customary industry practices. The forwarding of these distributions to the
certificate owners will be the responsibility of the appropriate DTC
Participants.
Unless and until, if ever, the definitive certificates are issued, the only
"certificateholder" will be Cede. Certificate owners will not be recognized by
the trustee as certificateholders, as the term is used in the pass through trust
agreement, and certificate owners will be permitted to exercise the rights of
certificateholders only indirectly through DTC and DTC Participants.
Under the rules, regulations and procedures creating and affecting DTC and
its operations (the "Rules"), DTC is required to make book-entry transfers of
the certificates among the DTC Participants for whom it is acting with respect
to the certificates. DTC also is required to receive and transmit distributions
of principal, premium, if any, and interest with respect to the certificates.
Similarly, the DTC Participants and Indirect Participants, with which
certificate owners have accounts for their certificates, are required to make
book-entry transfers and receive and transmit applicable payments on behalf of
their respective customers. Accordingly, although certificate owners will not
possess the certificates, the Rules provide a mechanism by which certificate
owners will receive payments and will be able to transfer their interests.
Because DTC can only act on behalf of DTC Participants, who in turn act on
behalf of Indirect Participants, the ability of a certificate owner to pledge
its certificates to persons or entities that do not participate in the DTC
system, or to otherwise act with respect to its certificates, may be limited due
to the lack of a physical certificate for those certificates.
DTC has advised Union Tank that it will take any action permitted to be
taken by a certificateholder under the pass through trust agreement only at the
direction of one or more of the DTC Participants to whose accounts the
certificates are credited. Additionally, in the event any action requires
approval by certificateholders of a particular percentage of beneficial interest
in each trust, DTC will take such action only at the direction of and on behalf
of DTC Participants whose holdings include undivided interests that satisfy that
percentage. DTC may take conflicting actions with respect to the undivided
interests of DTC Participants who hold those undivided interests.
Neither Union Tank nor the trustee will have any liability for:
- Any aspect of the records relating to or payments made on account of
beneficial ownership interests in the certificates held by Cede, as
nominee for DTC; or
- For maintaining, supervising or reviewing any records relating to those
beneficial ownership interests.
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<PAGE> 22
DEFINITIVE CERTIFICATES
Certificates will be issued in certificated form, called "definitive
certificates", to certificate owners or their nominees, rather than to DTC or
its nominee, only if:
- Union Tank advises the trustee in writing that DTC is no longer willing
or able to discharge properly its responsibilities as depository with
respect to the certificates and Union Tank is unable to locate a
qualified successor;
- Union Tank, at its option, elects to terminate the book-entry system
through DTC; or
- After the occurrence of particular events specified in the related
prospectus supplement, certificate owners with fractional undivided
interests aggregating at least a majority in interest in the applicable
trust advise the trustee, Union Tank and DTC through DTC Participants in
writing that the continuation of a book-entry system through DTC, or its
successor, is no longer in the certificate owners' best interest.
Upon the occurrence of any of these events, the trustee will be required to
notify all certificate owners through DTC Participants of the availability of
definitive certificates. Upon surrender by DTC of the global certificates
representing the certificates and receipt of instructions for re-registration,
the trustee will reissue the certificates as definitive certificates to
certificate owners.
If and when definitive certificates are issued to owners, distributions of
principal, premium, if any, and interest with respect to certificates will be
made in accordance with the procedures set forth in the pass through trust
agreement and the applicable trust supplements. The trustee will make these
distributions directly to holders in whose names the definitive certificates
were registered at the close of business on the applicable record date. The
distributions will be made by check mailed to the address of each applicable
holder as it appears on the register maintained by the trustee. The final
payment on any certificate, however, will be made only upon presentation and
surrender of the certificate at the office or agency specified in the notice of
final distribution to certificateholders.
Definitive certificates will be freely transferable and exchangeable at the
office of the trustee upon compliance with the requirements set forth in the
pass through trust agreement and the applicable trust supplements. No service
charge will be imposed for any registration of transfer or exchange, but payment
of a sum sufficient to cover any tax or other governmental charge will be
required.
PAYMENTS AND DISTRIBUTIONS
GENERAL
Payments of principal, premium, if any, and interest on the equipment notes
held in a trust will be distributed by the trustee, upon receipt, to the
certificateholders of that trust on the dates specified in the applicable
prospectus supplement, except in certain cases. Payments may be affected when
some or all of the equipment notes are in default as described in the applicable
prospectus supplement.
SCHEDULED PAYMENTS
Scheduled payments of principal of, and interest on, the unpaid principal
amount of the equipment notes held in each trust will be scheduled to be
received by the trustee on the regular distribution dates specified in the
applicable prospectus supplement. These are called "scheduled payments." Each
certificateholder of each trust will be entitled to receive a proportional share
of any distribution of scheduled payments of principal and interest made on the
equipment notes held in that trust.
SPECIAL PAYMENTS
Special payments include all payments, other than scheduled payments
received on a regular distribution date or within five days thereafter. Special
payments would include payments of principal,
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premium, if any, and interest received by the trustee on account of the early
redemption or purchase, if any, of the equipment notes relating to one or more
equipment units held in a trust.
Special payments received by the trustee relating to one or more equipment
units will be distributed on the "special distribution date" determined by the
method described in the applicable prospectus supplement. The trustee will mail
notice of any anticipated special distribution date to the certificateholders of
record of the applicable trust.
POOL FACTORS
Certificateholders will receive periodic statements of the pool balance and
pool factor with respect to the relevant trust. Those statements will provide
information with respect to the remaining principal portion of the certificates
issued by that trust. The "pool balance" indicates, as of any given date, the
original aggregate face amount of the certificates of a trust less the aggregate
amount of all principal payments made in relation to those certificates.
The "pool factor" for each trust as of any date is the pool balance for
that trust divided by the aggregate original face amount of certificates of that
trust (rounded to the seventh decimal place).
The pool factor for a trust will initially be 1.0000000 and will decline as
a result of reductions in the pool balance of that trust. The amount of a
certificateholder's proportional share of the pool balance of a trust will be
the original denomination of the holder's certificate of that trust multiplied
by the pool factor for that trust.
The pool factor and the pool balance for each trust will be computed and
mailed to the certificateholders on a regular distribution date or special
distribution date. Each computation will give effect to (1) the payment of
principal, if any, on the equipment notes or other trust property held in the
trust and (2) the distribution of principal to be made on that date.
In the event of an early redemption, a purchase of an issue of equipment
notes by the related owner trustee after an indenture default or a default in
the payment of principal in respect of one or more issues of the equipment notes
held in a trust (if the applicable payment is not made within five days of the
regular distribution date), the pool factor and the pool balance of each trust
affected will be recomputed, after giving appropriate effect to that event.
Notice of the recomputation will be mailed to the certificateholders of that
trust.
REPORTS TO CERTIFICATEHOLDERS
With each distribution of a scheduled payment or a special payment, the
trustee will send to the certificateholders a statement giving effect to that
distribution and setting forth the following information:
- The amount of distribution allocable to principal and the amount
allocable to premium, if any, per $1,000 aggregate principal amount of
certificate for that trust, if any;
- The amount of distribution allocable to interest, per $1,000 aggregate
principal amount of certificate for that trust; and
- The pool balance and the pool factor for that trust.
If the certificates are registered in the name of DTC or its nominee, on
the record date prior to each regular distribution date and special distribution
date, the trustee will request from DTC a securities position listing setting
forth the names of all DTC Participants reflected on DTC's books as holding
interests in the certificates on that date. On each regular distribution date
and special distribution date, the applicable trustee will mail to each of these
DTC Participants the described statement and will make available additional
copies as requested by them for forwarding to certificate owners.
In addition, after the end of each calendar year, the trustee will prepare
a report for each certificateholder of each trust at any time during the
preceding calendar year. Each report will contain the sum of the distributions
allocable to principal, premium, if any, and interest with respect to the trust
for
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that calendar year. In the event a person was a certificateholder during only a
portion of that calendar year, the report will contain the sum for the
applicable portion of that calendar year. The report will also contain other
items readily available to the trustee and which a certificateholder reasonably
requests as necessary for the purpose of that certificateholder's preparation of
its federal income tax return. The report and other items will be prepared on
the basis of information supplied to the trustee by the DTC Participants and
will be delivered by the trustee to those DTC Participants. The report will then
be available for forwarding by DTC Participants to certificate owners.
At the time, if any, certificates are issued in the form of definitive
certificates, the trustee will prepare and deliver the information described
above to each certificateholder of record of each trust as the name and period
of ownership of that certificateholder appears on the records of the registrar
of the certificates.
VOTING OF EQUIPMENT NOTES
The trustee, as holder of the equipment notes held in each trust, has the
right to vote, give consents or waivers or otherwise exercise rights as the
holder of those equipment notes. The pass through trust agreement sets forth:
- The circumstances under which the trustee will direct any action or case
any vote as the holder of the equipment notes held in the applicable
trust at its own discretion;
- The circumstances in which the trustee will seek instructions from the
certificateholders of the trust before taking action as the holder of
equipment notes; and
- If applicable, the percentage of certificateholders required to direct
the trustee to take any action.
Prior to an event of default with respect to any trust, the principal
amount of the equipment notes held in that trust directing any action or being
voted for or against any proposal will be in proportion to the principal amount
of certificates held by the certificateholders of that trust taking the
corresponding position. Whenever the pass through trust agreement requires or
permits actions to be taken based upon instructions or directions of
certificateholders holding a specified percentage interest of a trust, DTC will
be deemed to represent such percentage interest only to the extent that it has
received instructions from certificate owners and/or DTC Participants owning or
representing, respectively, the required percentage interest and has delivered
such instructions to the trustee.
EVENTS OF DEFAULT AND CERTAIN RIGHTS UPON AN EVENT OF DEFAULT
You will have special rights if an event of default occurs and is not
cured, as described later in this subsection. The prospectus supplement will
specify the events of default under the pass through trust agreement and under
the related indentures. The indenture defaults will include events of default
under the related leases.
Unless otherwise provided in a prospectus supplement, all of the equipment
notes issued under the same indenture will relate to specific equipment units
and there will be no cross-collateralization or cross-default provisions in the
indentures. Accordingly, events resulting in an indenture default under any
particular indenture would not necessarily result in an indenture default
occurring under any other indenture.
The ability of the owner trustee or owner participant under an indenture to
cure indenture defaults, including an indenture default that results from the
occurrence of a lease event of default under the related lease, will be
described in the prospectus supplement.
The prospectus supplement related to a series of certificates will describe
the circumstances under which the trustee of a trust may vote some or all of the
equipment notes held in that trust. The prospectus supplement also will set
forth the percentage of certificateholders of the trust entitled to direct the
trustee to take any action with respect to the equipment notes of that trust. If
the equipment notes outstanding under an indenture are held by more than one
trust, then the ability of the certificateholders of any one trust to cause the
indenture trustee with respect to any equipment notes held in the trust to
accelerate
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those equipment notes or to direct the exercise of remedies by the indenture
trustee under the applicable indenture will depend upon the proportion of the
aggregate principal amount of the equipment notes outstanding under the
applicable indenture and trust to the aggregate principal amount of all
equipment notes outstanding under the indenture.
If the equipment notes outstanding under an indenture are held by more than
one trust, then each trust will hold equipment notes with different terms from
the equipment notes held in the other trusts. The certificateholders of each
trust may, therefore, have divergent or conflicting interests from those of the
certificateholders of the other trusts holding equipment notes issued under the
same indenture. For the same reason, so long as the same institution acts as
trustee of each trust, in the absence of instructions from the
certificateholders of any trust, the trustee for the trust might be faced with a
potential conflict of interest upon an indenture default. In the event this sort
of conflict of interest occurs, the trustee has indicated that it would resign
as trustee of one or all of the related trusts, and a successor trustee would be
appointed in accordance with the terms of the pass through trust agreement.
The prospectus supplement for a series of certificates will specify whether
and under what circumstances the trustee may sell all or part of the equipment
notes held in the related trust. A "special payments account" will be
established by the trustee for the benefit of the certificateholders of the
applicable trust, and any proceeds received by the trustee upon any such sale
will be deposited into that special payments account and distributed to the
certificateholders of the applicable trust on a special distribution date.
The market for equipment notes in default may be very limited, and the
trustee may not be able to sell such equipment notes for a reasonable price.
Furthermore, if the same institution acts as trustee of multiple trusts, it may
be faced with a conflict in deciding from which trust to sell equipment notes to
available buyers. If the trustee sells any equipment notes in default for less
than their outstanding principal amount, the certificateholders of that trust
will receive a smaller amount of principal distributions than anticipated and
will not have any claim for the shortfall against Union Tank, any owner trustee,
any owner participant or the trustee. Furthermore, unless otherwise specified in
the applicable prospectus supplement, neither the trustee nor the
certificateholders of that trust could take any action with respect to any
remaining equipment notes held in that trust, so long as no related indenture
defaults exist.
The trustee will deposit in the special payments account for a trust, and
will distribute to the certificateholders of that trust on a special
distribution date, any amount, other than scheduled payments received on a
regular distribution date or within five days of a regular distribution date,
distributed to the trustee of that trust under any indenture on account of the
equipment notes held in that trust. In addition, a prospectus supplement may
provide that the applicable owner trustee may, under some circumstances, redeem
or purchase the outstanding equipment notes issued under the applicable
indenture. If any equipment notes are so redeemed or purchased, the price paid
by the owner trustee to the trustee of any trust for those equipment notes will
be deposited in the special payments account for that trust and will be
distributed to the certificateholders of that trust on a special distribution
date.
The trustee will invest and reinvest, to the extent practicable, any funds
held by the trustee in the special payments account for the related trust,
pending the distribution of those funds on a special distribution date. Those
investments would be made in "permitted investments" specified in the related
prospectus supplement.
The pass through trust agreement provides that the trustee of each trust
will, within 90 days after the occurrence of a default in respect of that trust,
mail to the certificateholders of that trust notice of all uncured or unwaived
defaults with respect to that trust which are known to the trustee. Except in
the case of default in the payment of principal, premium, if any, or interest on
any of the equipment notes held in that trust, the trustee may withhold that
notice if the trustee in good faith determines that the withholding of notice is
in the interests of those certificateholders. The term "default" as used in this
paragraph only means the occurrence of an indenture default with respect to
equipment notes held in a trust, except that in determining whether any
indenture default has occurred, any related grace period or notice will be
disregarded.
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The pass through trust agreement contains a provision entitling the trustee
of each trust, subject to the duty of the trustee during a default to act with
the required standard of care, to demand reasonable security or indemnity from
the certificateholders of that trust before proceeding to exercise any right or
power under the pass through trust agreement at the request of those
certificateholders.
The prospectus supplement for a series of certificates will specify the
percentage of certificateholders entitled to waive, or to instruct the trustee
to waive, any past event of default related to that trust. The prospectus
supplement for a series of certificates also will specify the percentage of
certificateholders entitled to waive, or to instruct the trustee or the
indenture trustee to waive, any past indenture default, and whether that
percentage includes certificateholders of any other trust holding equipment
notes issued under related indentures. A waiver by the relevant
certificateholders of, or instruction by the relevant certificateholders to the
trustee to waive, any past indenture default will annul any direction previously
given.
MERGERS AND SIMILAR EVENTS
We are generally permitted to consolidate or merge with another person. We
are also permitted to sell or lease substantially all of our assets to another
person or to buy or lease substantially all of the assets of another person.
However, we may not take any of these actions unless all of the following
conditions are met:
- The surviving, successor or transferee person will:
-- be organized and validly existing under the laws of the United States
or any of its states or the District of Columbia;
-- expressly assume all of our obligations contained in the pass through
trust agreement and any trust supplement, the participation agreements,
and the leases, and any other operative documents; and
- Union Tank will have delivered a certificate and an opinion or opinions
of counsel indicating that the relevant transaction, in effect, complies
with these conditions.
MODIFICATIONS OF THE PASS THROUGH TRUST AGREEMENT
SUPPLEMENTAL AGREEMENTS ENTERED WITHOUT CONSENT
The pass through trust agreement contains provisions permitting us,
together with the trustee of each trust, to enter into supplemental trust
agreements without the consent of the certificateholders of that trust to, among
other things:
- Provide for the formation of that trust and the issuance of a series of
certificates;
- Evidence the succession of another corporation to Union Tank and the
assumption by that corporation of or obligations under the pass through
trust agreement and the applicable trust supplement;
- Add to our covenants for the benefit of the certificateholders, or to
surrender any of our rights or powers under the pass through trust
agreement;
- Cure any ambiguity or correct or supplement any defective or inconsistent
provision of the pass through trust agreement or the applicable trust
supplement or to make any other provisions necessary to address related
matters or questions that arise, provided that doing so does not
materially adversely affect the interests of the certificateholders;
- Cure any ambiguity or correct any mistake or to give effect or provide
for replacement liquidity facilities, if applicable to the relevant
certificates;
- Comply with any requirement of the SEC, applicable law, rules or
regulations of any exchange or quotation system on which any certificates
may be listed or of any regulatory body;
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- Modify, eliminate or add to the provisions of the pass through trust
agreement to the extent necessary to continue the qualification of the
pass through trust agreement, including any supplemental agreement, under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act")
and to add to the pass through trust agreement any other provisions
expressly permitted by the Trust Indenture Act, with some exceptions;
- Provide for a successor trustee or to add to or change any provision of
the pass through trust agreement as necessary to facilitate the
administration of the related trusts by more than one trustee; and
- Make any other amendments or modifications to the pass through trust
agreement, provided the amendments or modifications will only apply to
certificates issued after the relevant amendment.
No supplemental trust agreement entered into under any of these provisions,
however, will be permitted if it adversely affects the status of any trust as a
grantor trust for U.S. federal income tax purposes.
SUPPLEMENTAL AGREEMENTS ENTERED WITH CONSENT
The pass through trust agreement also contains provisions permitting us,
together with the trustee of each trust, and with the consent of the
certificateholders of that trust evidencing fractional undivided interests
aggregating not less than a majority in interest of that trust, to execute
supplemental trust agreements that add any provisions to or change or eliminate
any of the provisions of the pass through trust agreement relating to that trust
or the applicable trust supplement, or modify the rights of the
certificateholders. No such supplemental trust agreement may, however, without
the consent of each certificateholder to be affected:
- Reduce in any manner the amount of, or delay the timing of, any receipt
by the trustee of payments on the equipment notes held in the applicable
trust or distributions related to any certificate, or change the date or
place of any payment related to any certificate, or make distributions
payable in coin or currency other than that provided for in the
certificates, or impair the right of any certificateholder of the trust
to institute suit for the enforcement of any applicable payment when due;
- Permit the disposition of any equipment note held in the trust, except as
provided in the pass through trust agreement or the applicable trust
supplement, or otherwise deprive any certificateholder of the benefit of
the ownership of the applicable equipment notes;
- Reduce the percentage of the aggregate fractional undivided interests of
the trust provided for in the pass through trust agreement or the
applicable trust supplement, as the consent of the certificateholders of
that trust required for any related supplemental trust agreement or for
any waiver provided for in the pass through trust agreement or applicable
trust supplement;
- Modify any of the provisions relating to the rights of the relevant
certificateholders with regard to the waiver of events of default or
supplemental agreements, with some limited exceptions; or
- Adversely affect the status of any trust as a grantor trust for U.S.
federal income tax purposes.
MODIFICATION OF INDENTURE AND RELATED AGREEMENTS
The prospectus supplement will specify the trustee's obligations in the
event the trustee, as the holder of any equipment notes held in a trust,
receives a request for its consent to any amendment, modification or waiver
under the indenture or other documents relating to the equipment notes,
including any lease.
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TERMINATION OF THE TRUSTS
Our obligations and the obligations of the trustee with respect to a trust
will terminate upon the distribution to certificateholders of that trust of:
- All amounts required to be distributed to them pursuant to the pass
through trust agreement and the applicable trust supplement; and
- The disposition of all property held in that trust.
Before termination, the trustee will send notice of the termination of that
trust to each certificateholder of record. That notice will specify the amount
of the proposed final payment and the proposed date for the distribution of the
final payment for that trust.
The final distribution to any certificateholder of a terminating trust will
be made only upon surrender of that certificateholder's certificates at the
office or agency of the trustee specified in the applicable notice of
termination.
DELAYED PURCHASE OF EQUIPMENT NOTES
In the event that, on the issuance date of any certificates, all of the
proceeds from the sale of those certificates are not used to purchase the
equipment notes contemplated to be held in the related trust, the equipment
notes may be purchased by the trustee at any time on or prior to the date
specified in the applicable prospectus supplement. If such a delay occurs, any
proceeds from the sale of certificates which are not used to purchase equipment
notes will be held under an arrangement described in the applicable prospectus
supplement pending the purchase of those equipment notes. The arrangements with
respect to the payment of interest on funds being held will be described in the
applicable prospectus supplement. If the proceeds are not used to purchase the
equipment notes by the relevant date specified in the applicable prospectus
supplement, they will be returned to the holders of the applicable certificates.
THE TRUSTEE
REPRESENTATIONS, LIABILITIES, OBLIGATIONS AND POWERS
Unless otherwise provided in the prospectus supplement for any series of
certificates, the trustee for each series of certificates will be Bank One,
National Association. The trustee makes no representations as to the validity or
sufficiency of the pass through trust agreement, any trust supplement, any
equipment notes or any other operative document. Unless otherwise specified in a
Prospectus Supplement, Bank One, National Association will also be the indenture
trustee under the indentures pursuant to which the equipment notes are issued.
The trustee will not be liable with respect to any series of certificates
for any action taken or omitted to be taken by it in good faith under the
direction of the holders of a majority in principal amount of outstanding
certificates of the series. If provided by the prospectus supplement, the
trustee will not have any obligation to exercise any of its rights or powers
under the pass through trust agreement at the request of any certificateholders,
unless they have offered to the trustee indemnity satisfactory to it.
The pass through trust agreement provides that the trustee, in its
individual or fiduciary capacity, may acquire and hold certificates and, subject
to some conditions, may otherwise deal with us and with any owner trustee with
the same rights it would have if it were not the trustee.
The trustee may resign from its position as trustee of any or all of the
trusts at any time. Under some circumstances, the trustee could be faced with a
potential conflict of interest as a result of its acting as trustee of one or
more trusts and as indenture trustee with respect to one or more series of
equipment notes. In such event, the trustee either would be required by the
Trust Indenture Act of 1939 to resign as trustee of one or all of the trusts or
has indicated that it would voluntarily so resign as trustee. If the trustee
resigns for any reason, we will appoint a successor trustee. If the trustee
ceases to be eligible to continue as trustee for any trust or becomes incapable
of acting as trustee or becomes insolvent, we may
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remove that trustee. Also, any certificateholder holding certificates of that
trust for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of an
ineligible, incapable, or insolvent trustee and the appointment of a successor
trustee. Any resignation or removal of the trustee and appointment of a
successor does not become effective until acceptance of the appointment by the
successor trustee. Under the resignation and successor trustee provisions, it is
possible that different trustees could be appointed to act as successor trustees
for each trust. All references in this prospectus to the trustee should be read
to take into account the possibility that the trusts could have different
successor trustees in the event of a resignation or removal.
FEES, EXPENSES AND INDEMNIFICATION
The pass through trust agreement provides that we will pay the trustee's
fees and expenses and will indemnify the trustee in accordance with each
participation agreement with respect to certain taxes. To the extent not
indemnified by the Company with respect to such taxes, the pass through trustee
may be entitled to be reimbursed by the applicable trust.
OUR RELATIONSHIP TO THE TRUSTEE
Bank One, National Association is the trustee under certain indentures and
equipment trust agreements to which Union Tank is a party. These agreements
relate to indebtedness which is secured. If an event of default occurred under
the pass through trust agreement or one of the other agreements under which Bank
One, National Association acts as trustee, Bank One, National Association may be
deemed to have a conflicting interest with respect to the certificates for
purposes of the Trust Indenture Act of 1939 and, therefore, may be required to
resign as trustee. Bank One, National Association also provides customary
banking services, including commercial credit facilities and standby letters of
credit to Union Tank and certain of our affiliates. In 1998, Union Tank entered
into a sale-leaseback transaction with a trust for the benefit of an affiliate
of the trustee in which we sold to and leased back from the trust approximately
$130,000,000 in rail cars. In 1992, we entered into a sale-leaseback transaction
with a trust for the benefit of, among others, a subsidiary of Bank One,
National Association's parent. In that transaction, Union Tank sold to and
leased back from the trust approximately $118,000,000 in rail cars.
DESCRIPTION OF THE EQUIPMENT NOTES
The statements made under this caption are summaries of detailed provisions
of the indentures and equipment notes. For more complete and detailed
information, you should consult the entire prospectus and the applicable
prospectus supplement. Additionally, we will file with the SEC forms of the
indenture and equipment notes. You should refer to those agreements for more
information regarding the terms discussed in this prospectus and the
accompanying prospectus supplement. See "Where You Can Find More Information" on
page 23 for more information on documents we file with the SEC. The summaries
contained in this prospectus and the accompanying prospectus supplement are
qualified in their entirety by reference to those filed agreements.
To the extent that any provision in the accompanying prospectus supplement
is inconsistent with any provision in this summary, the prospectus supplement
will control.
GENERAL
Equipment notes will be issued under an indenture between an owner trustee
and an indenture trustee that will be entered into in connection with a
leveraged lease arrangement relating to equipment units. The owner trust
administered by the owner trustee will be the owner of the equipment units. An
owner participant will be the beneficiary of the owner trust. Equipment notes
issued under an indenture will be nonrecourse obligations of the owner trust.
Equipment notes will not be our obligations or the obligations of the applicable
owner participant, and will not be enforceable against us or that owner
participant. Equipment notes will be secured by the equipment units described in
the applicable prospectus supplement and by certain rights of the owner trust
under the related lease.
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PRINCIPAL AND INTEREST PAYMENTS
Interest received by the trustee on the equipment notes held in each trust
will be passed through to the certificateholders of that trust on the dates and
at the annual rate set forth in the applicable prospectus supplement until the
final distribution for that trust. Similarly, principal payments received by the
trustee on the equipment notes held in each trust will be passed through to the
certificateholders of that trust in scheduled amounts on the dates set forth in
the applicable prospectus supplement until the final distribution date for that
trust.
REDEMPTION
The applicable prospectus supplement will describe the circumstances,
whether voluntary or involuntary, under which the equipment notes may be
redeemed or purchased prior to their stated maturity date, in whole or in part.
If the equipment notes can be redeemed or purchased prior to their stated
maturity, the prospectus supplement will describe the premium, if any, payable
upon redemption or purchase, and any other terms applying to the redemption or
purchase of the equipment notes.
SECURITY
The equipment notes will be secured by:
- An assignment by the owner trustee to the related indenture trustee of
the owner trustee's rights under the lease or leases relating to the
equipment units, including the right to receive payments of rent under
the related lease; and
- A perfected security interest granted to the indenture trustee in the
applicable equipment units, subject to our rights under the applicable
lease.
Under the terms of each lease, our obligations with respect to the
equipment units will be those of a lessee under a "net lease." Accordingly, we
will be obligated, among other things, to pay all costs of operating the
equipment units and to maintain and repair them at our expense.
The assignment by the related owner trustee to the related indenture
trustee of its rights under the related lease will exclude, among other things:
- Rights of that owner trustee and the related owner participant relating
to indemnification from us for some matters;
- Insurance proceeds payable to that owner trustee in its individual
capacity and to the related owner participant under liability insurance
maintained by us as required by that lease or by that owner trustee or
related owner participant;
- Insurance proceeds payable to that owner trustee in its individual
capacity or to the related owner participant under casualty insurance
maintained by that owner trustee or related owner participant pursuant to
that lease; and
- Any rights of the related owner participant or that owner trustee to
enforce payment of these amounts and their respective rights to the
related proceeds of the foregoing.
INSURANCE COVERAGE
The prospectus supplement will describe the insurance coverage we are
required to maintain under the relevant lease.
RECOGNITION OF THE INDENTURE TRUSTEE'S SECURITY INTEREST
We will be required to file each indenture, any indenture supplement, each
lease and any lease supplement with respect to the related equipment units with
the Surface Transportation Board of the U.S. Department of Transportation and to
deposit those documents with the Registrar General of Canada under
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the Railway Act of Canada and to publish notice of the deposit in accordance
with that Act. The filing with the Surface Transportation Board will give the
indenture trustee a perfected security interest in (i) each such equipment unit
whenever it is located in the United States and (ii) the applicable lease. The
deposit and publication in Canada will be done in order to protect the lien of
the indenture trustee in and to the lease and the equipment units subject to the
indenture in Canada and any province or territory of any Canada, to the extent
provided for in the Railway Act of Canada.
Each equipment unit may be operated by us or, subject to some limitations,
under sublease or interchange arrangements in the United States, Canada or
Mexico. The extent to which the indenture trustee's security interest would be
recognized in an equipment unit located in countries other than the United
States and Canada is uncertain.
The equipment notes issued under different indentures will not be
cross-collateralized, and consequently the equipment notes issued in relation to
certain equipment units will not be secured by any other equipment units or the
lease related to any other equipment units. Unless and until an indenture
default relating to an equipment unit occurs and is continuing, the indenture
trustee may exercise only limited rights of the related owner trustee under the
related lease.
INVESTMENT AND REINVESTMENT OF FUNDS
The indenture trustee will invest and reinvest funds, if any, relating to
any equipment units and held by that indenture trustee, including funds held as
a result of the loss or destruction of those equipment units or termination of
the lease, pending distribution of those funds. Investments will be described in
the applicable indenture. We will direct the investment and reinvestment of
those funds. We will not, however, direct investment and reinvestment if a lease
event of default exists under the applicable lease.
The net amount of any loss resulting from any of the investments made at
our direction will be paid by us.
PAYMENTS AND LIMITATION OF LIABILITY
PAYMENTS
The owner trustee will lease equipment units to us for a term commencing on
the date those equipment units are delivered to the owner trustee. The term will
expire on a date after the latest maturity date of the related equipment notes,
unless previously terminated as permitted by the terms of the related lease. We
will pay some payments, such as basic rent, under each related lease. Also, the
related owner trustee under the applicable indenture will assign our payments to
the related indenture trustee to provide the funds necessary to pay principal
of, premium, if any, and interest due from the owner trustee on the equipment
notes issued under the related indenture.
In certain cases, the basic rent payments under a lease may be adjusted,
but each lease will provide that under no circumstances will our rent payments
be less than the scheduled payments on the related equipment notes. The balance
of any basic rent payment under each lease, after payment of amounts due on the
equipment notes issued under the indenture corresponding to the applicable
lease, will be paid over to the applicable owner trustee. Our obligation to pay
rent and to cause other payments to be made under each lease will be our general
obligations.
LIMITATION OF LIABILITY
The equipment notes will not be our obligations and will not be guaranteed
by us, except in some specified circumstances involving our purchase of
equipment units and our assumption of some specified obligations, including the
obligation to make payments on the related equipment notes. None of the owner
trustees, the owner participants or the indenture trustees will be personally
liable to any holder of the equipment notes for amounts payable under those
equipment notes, or, except as provided in the related indentures in the case of
the owner trustees and the indenture trustees, for any liability under those
indentures.
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Except in the circumstances mentioned, all amounts payable under any
equipment notes, other than payments made in connection with an optional
redemption or purchase by the related owner trustee or the related owner
participant, will be made only from the assets secured by the lien of the
applicable indenture with respect to the related equipment units or the income
and proceeds received by the related indenture trustee from the applicable
indenture, including rent payable by us under the related lease.
Except as otherwise provided in the applicable indenture, no owner trustee
will be personally liable for any amount payable or for any statements,
representations, warranties, agreements or obligations under any indenture or
equipment notes except for its own willful misconduct or gross negligence. None
of the owner participants will have any duty or responsibility under the
indentures or under the related equipment notes to the related indenture trustee
or to any holder of those equipment notes.
DEFEASANCE OF THE INDENTURES AND THE EQUIPMENT NOTES IN CERTAIN CIRCUMSTANCES
Unless otherwise specified in the applicable prospectus supplement, each
indenture will provide that the obligations of the owner trustee and the
indenture trustee under that indenture will be deemed to have been discharged
and paid in full on the 91st day after the date of irrevocable deposit with the
related indenture trustee of:
- Money; or
- Obligations of the United States or any agency or instrumentality of the
United States the payment of which is backed by the full faith and credit
of the United States which, through the payment of principal and interest
on those obligations and complying with their terms, will provide money
in an aggregate amount sufficient to pay when due, including as a
consequence of redemption in respect of which notice is given on or prior
to the date of irrevocable deposit, the:
-- principal of,
-- premium, if any, and
-- interest on all equipment notes issued under the applicable indenture.
Discharge may occur only if, among other things:
- No event of default or event which with the giving of notice or lapse of
time, or both, would become an event of default under the indenture has
occurred and is continuing on the date of irrevocable deposit; and
- We have delivered an opinion of counsel to the effect that holders of the
equipment notes will not recognize income, gain or loss for federal
income tax purposes as a result of the deposit, defeasance and discharge
and will be subject to federal income tax on the same amount and in the
same manner and at the same time as would have been the case if the
deposit, defeasance and discharge had not occurred.
The deposit of cash or securities as described will not discharge some
obligations, including the obligations:
- To register the transfer or exchange of equipment notes;
- To replace stolen, lost, destroyed or mutilated equipment notes; and
- To maintain paying agencies and hold money for payment in trust.
Upon defeasance, or upon payment in full of the principal of, premium, if
any, and interest on all equipment notes issued under any indenture on its
maturity date or deposit with the applicable indenture trustee of money
sufficient to satisfy those payment obligations no earlier than one year prior
to the maturity of those equipment notes, the holders of the equipment notes
will have no beneficial interest in or other rights related to the equipment
units or other assets subject to the lien of the indenture. As a result, the
lien will terminate.
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<PAGE> 33
OUR ASSUMPTION OF OBLIGATIONS
Unless otherwise specified in the applicable prospectus supplement, upon
our exercise of any options to purchase equipment units we may have under a
lease prior to the end of the term of that lease, we may assume on a full
recourse basis all of the obligations of the owner trustee, other than its
obligations in its individual capacity under the indenture with respect to the
purchased equipment units, including the obligations to make payments on the
related equipment notes.
If we assume the obligations of the owner trustee, relevant provisions of
the related lease, including provisions relating to maintenance, possession and
use of the related equipment units, liens, insurance and events of default, will
be incorporated into the indenture. Also, the equipment notes issued under that
indenture will not be redeemed and will continue to be secured by the equipment
units.
INDENTURE EVENTS OF DEFAULT AND REMEDIES
The prospectus supplement will describe the events of default under the
related indentures, the remedies that the indenture trustee may exercise with
respect to the related equipment units, either at its own initiative or upon
instruction from holders of the equipment notes, and other provisions relating
to the occurrence of an event of default and the exercise of remedies. There
will be no cross-default provisions in the indentures and events resulting in an
event of default under any particular indenture will not necessarily result in
an event of default under any other indenture. Similarly, there will be no
cross-default provisions in the indenture relating to defaults under any of
Union Tank's indebtedness.
In the event of the bankruptcy of an owner participant, it is possible
that, although the related equipment units are owned by an owner trustee in
trust, those equipment units, the related lease and the related equipment notes
might become part of the bankruptcy proceeding. In that event, payments on those
equipment notes might be interrupted and the ability of the indenture trustee to
exercise its remedies under the indenture might be restricted, although the
indenture trustee would retain its status as a secured creditor in relation to
the lease and the related equipment units. In addition, in the event of an owner
participant bankruptcy, the estate might seek court approval to reject the
related lease as an executory contract. A lease rejection, if successful, would
leave the indenture trustee as a secured creditor in relation to the related
equipment units with a claim for damages against the estate.
If we were to become a debtor in a bankruptcy or reorganization case under
the Bankruptcy Code, we or our bankruptcy trustee could reject any or all
leases. In that event, there could be no assurance that the amount of any claim
for damages under those leases that would be allowed in the bankruptcy case
would be in an amount sufficient to provide for the repayment of the related
equipment notes. In any case, rejection of a lease by us or our bankruptcy
trustee would not deprive the related indenture trustee of its security interest
in the related equipment units.
We are not a railroad, and the protections against the automatic stay in
bankruptcy under Section 1168 of the Bankruptcy Code which are granted to
lessors, conditional vendors and purchase money financiers of rolling stock to a
common carrier by railroad will not be available to an indenture trustee upon
the occurrence of a bankruptcy-related event of default by us under a lease.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
GENERAL
Unless otherwise indicated in the applicable prospectus supplement, this
summary describes the principal United States federal income tax consequences of
owning the certificates. This summary is the opinion of Neal, Gerber &
Eisenberg, tax counsel to Union Tank. It applies to you only if you acquire
certificates in the initial offering at the initial offering price and you own
your certificates as capital assets
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<PAGE> 34
for tax purposes. This summary does not apply to you if you are a member of a
class of holders subject to special rules, such as:
- A dealer in securities or currencies;
- A trader in securities that elects to use a mark-to-market method of
accounting;
- A bank;
- A life insurance company;
- A tax-exempt organization;
- A person that owns certificates that are a hedge or that are hedged
against interest rate risks;
- A person that owns certificates as part of a straddle or conversion
transaction for tax purposes; or
- A foreign investor.
This summary is based on the Internal Revenue Code of 1986, as amended (the
"Code"), its legislative history, existing and proposed regulations under the
Internal Revenue Code, published rulings and court decisions, all as currently
in effect. These laws are subject to change, possibly on a retroactive basis.
Please consult your own tax advisor concerning the consequences of owning
these certificates in your particular circumstances under the Code and laws of
any other taxing jurisdiction.
This summary describes the tax consequences to a U.S. certificateholder.
You are a U.S. certificateholder if you are a beneficial owner of a certificate
and you are:
- A citizen or resident of the United States;
- A domestic corporation;
- An estate whose income is subject to United States federal income tax
regardless of its source; or
- A trust if a United States court can exercise primary supervision over
the trust's administration and one or more U.S. persons are authorized to
control all substantial decisions of the trust.
If you are not a U.S. certificateholder, this summary does not apply to you and
you should consult with your own tax advisor regarding the consequences of
owning a certificate.
TAX STATUS OF THE TRUSTS
Each trust will be classified as a grantor trust for United States federal
income tax purposes.
TAXATION OF CERTIFICATEHOLDERS GENERALLY
As a certificateholder, you will be treated as owning your proportional
undivided interest in each of the equipment notes and any other property held by
the related trust. Accordingly, your share of interest paid on the equipment
notes will be taxable as ordinary income, as it is paid or accrued, in
accordance with your method of accounting for United States federal income tax
purposes. If we were to assume an owner trust's obligations under any equipment
notes, that assumption would be treated for United States federal income tax
purposes as a taxable exchange of those equipment notes, resulting in
recognition of gain or loss by you.
You will be entitled to deduct, consistent with your method of accounting,
your proportional share of fees and expenses paid or incurred by the
corresponding trust as provided in Section 162 or 212 of the Code. Some fees and
expenses, including fees paid to the trustee, will be borne by parties other
than the certificateholders. Certain of these fees and expenses will be treated
as constructively received by the trust, in which case a certificateholder will
be required to include in income and will be entitled to deduct its proportional
share of those fees and expenses. If a certificateholder is an individual,
estate or trust, the deduction for the relevant holder's share of fees or
expenses will be allowed only to the extent that all of
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<PAGE> 35
that holder's miscellaneous itemized deductions, including that holder's share
of such fees and expenses, exceed 2% of that holder's adjusted gross income. In
addition, in the case of certificateholders who are individuals, certain
otherwise allowable itemized deductions will be subject generally to additional
limitations on itemized deductions under applicable provisions in the Code.
ORIGINAL ISSUE DISCOUNT
The equipment notes may be issued with original issue discount ("OID"). The
applicable prospectus supplement will state whether any equipment notes to be
held by the related trust will be issued with OID and, if applicable, will
describe the special United States federal income tax rules governing debt
instruments issued with OID. Generally, a holder of a debt instrument issued
with OID that is not de minimis must include that OID in income for United
Stated federal income tax purposes as it accrues, in advance of the receipt of
the cash attributable to that income, under a method that takes into account the
compounding of interest.
SALE OR OTHER DISPOSITION OF THE CERTIFICATES
Upon the sale, exchange or other disposition of a certificate, you will
generally recognize capital gain or loss equal to the difference between the
amount realized on the disposition (other than any amount attributable to
accrued interest which will be taxable as ordinary income) and your adjusted tax
basis in the related equipment notes any other property held by the
corresponding trust. Any gain or loss will be long-term capital gain or loss to
the extent that gain or loss is attributable to property held by the trust for
more than one year. Long-term capital gain of a noncorporate U.S.
certificateholder is generally taxed at a maximum rate of 20%.
BACKUP WITHHOLDING AND INFORMATION REPORTING
In general, if you are a noncorporate certificateholder, all payments on an
equipment note will be reported to the Internal Revenue Service. In addition,
the proceeds of the sale of your certificate before maturity within the United
States will be reported to the Internal Revenue Service. Additionally, backup
withholding at a rate of 31% will apply to any payments if you fail to provide
an accurate taxpayer identification number, or you are notified by the Internal
Revenue Service that you have failed to report all interest and dividends
required to be shown on your federal income tax returns.
CERTAIN ILLINOIS TAXES
The trustee is a national banking association with its principal corporate
trust office in Chicago, Illinois. This summary is the opinion of Neal, Gerber &
Eisenberg, our tax counsel. Under currently applicable law, (i) the trusts will
not be subject to any tax (including, without limitation, net or gross income,
tangible or intangible property, net worth, capital, franchise or doing business
tax), fee or other governmental charge under the laws of the State of Illinois
or any of its political subdivisions and (ii) certificate owners who are not
residents of Illinois or otherwise subject to tax in Illinois will not be
subject to any tax (including, without limitation, net or gross income, tangible
or intangible property, net worth, capital, franchise or doing business tax),
fee or other governmental charge under the laws of the State of Illinois or any
of its political subdivisions solely as a result of purchasing, holding
(including receiving payments under) or disposing of a certificate, except to
the extent (a) the indenture trustee forecloses on equipment units and any of
those equipment units are located in Illinois, or (b) a trust engages in
business in Illinois as a result of such foreclosure. Neither the trusts nor the
certificate owners will be indemnified for any state or local taxes imposed on
them, and therefore, the imposition of any such taxes on a trust could reduce
the amounts available for distribution to the certificate owners of the trust.
In general, if a certificate owner or a trust is subject to any state or local
tax which would not be imposed if the trustee were located in a different
jurisdiction in the United States, the trustee will resign and a new trustee in
that other jurisdiction will be appointed.
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<PAGE> 36
ERISA CONSIDERATIONS
Unless otherwise indicated in the applicable prospectus supplement,
certificates may be purchased by or with assets of an employee benefit plan
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"). A fiduciary of the plan must determine that the purchase of a
certificate is consistent with its fiduciary duties under ERISA and does not
result in a non-exempt prohibited transaction as defined in Section 406 of ERISA
or Section 4975 of the Code. Employee benefit plans which are governmental plans
and certain church plans are not subject to the fiduciary responsibility
provisions of ERISA. Any plan that purchases a certificate must be an
"accredited investor" as defined in Rule 501(a)(1) of Regulation D promulgated
under the Securities Act.
PLAN OF DISTRIBUTION
The certificates may be sold to or through underwriters, directly to
dealers or other purchasers, through agents or through a combination of these
methods. The distribution of the certificates may be effected from time to time
in one or more transactions at:
- A fixed price or prices, which may be changed;
- Market prices prevailing at the time of sale;
- Prices related to the prevailing market prices at the time of sale; or
- Negotiated prices.
In connection with the sale of certificates, underwriters or agents may
receive compensation from us or from purchasers of certificates for whom they
may act as agents in the form of discounts, concessions or commissions.
Underwriters may sell certificates to or through dealers, and those dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters or commissions from the purchasers for whom they may act as
agents. Underwriters, dealers and agents that participate in the distribution of
certificates may be deemed to be underwriters, and any discounts or commissions
received by them from us, and any profit on the resale of certificates by them,
may be deemed to be underwriting discounts and commissions under the Securities
Act. Any outright or deemed underwriter or agent will be identified, and any
related compensation received form us will be described, in the applicable
prospectus supplement.
Under agreements which we may enter into, underwriters and agents who
participate in the distribution of certificates may be entitled to
indemnification by us against some liabilities, including liabilities under the
Securities Act.
We do not intend to apply for the listing of any series of certificates on
a national securities exchange. If the certificates of any series are sold to or
through underwriters, the underwriters may make a market in those certificates,
as permitted by applicable laws and regulations. No underwriter would be
obligated however, to make a market in those certificates, and any market-making
that is done could be discontinued at any time at the sole discretion of the
underwriters. Accordingly, no assurance can be given as to the liquidity of, or
trading markets for, the certificates of any series.
Some of the underwriters or agents and their associates may be customers
of, engage in transactions with and perform services for us in the ordinary
course of business.
LEGAL OPINIONS
Unless otherwise indicated in the applicable prospectus supplement, the
validity of the certificates will be passed upon for us by Neal, Gerber &
Eisenberg, Chicago, Illinois, and for any agents, dealers or underwriters by
Mayer, Brown & Platt, New York, New York. Both Neal, Gerber & Eisenberg and
Mayer, Brown & Platt will rely on the opinion of the Law Department of Bank One,
National Association
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<PAGE> 37
as to matters relating to the authorization, execution, authentication, issuance
and delivery of the certificates under the pass through trust agreement.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our Annual Report on Form 10-K for the year
ended December 31, 1999, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in the registration statement. Our
financial statements are incorporated by reference in reliance on Ernst & Young
LLP's report, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports and other information with
the SEC. You may read and copy any documents we file at the SEC's public
reference room 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the
SEC at 1-800-SEC-0330 for further information on the public reference room. Our
SEC filings are also available to the public on the SEC's web site at
http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information that we file
with the SEC will automatically update and supersede this information as well as
the information included in this prospectus. We incorporate by reference the
documents listed below and any future filings made with the SEC under Sections
13(a), 13(c) or 15(d) of the Securities Exchange Act of 1934 until we sell all
the certificates. This prospectus is part of a registration statement we filed
with the SEC.
- Annual Report on Form 10-K for the fiscal year ended December 31, 1999;
and
- Quarterly Report on Form 10-Q for the quarter ended March 31, 2000.
Union Tank will provide without charge to each person to whom this
prospectus is delivered, upon written request, a copy (without exhibits) of any
or all documents incorporated by reference in this Prospectus. Requests for such
copies should be directed to the General Counsel and Secretary, Union Tank Car
Company, 225 West Washington Street, Chicago, Illinois 60606, telephone (312)
372-9500.
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<PAGE> 38
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This prospectus is
not an offer to sell the securities and it is not soliciting an offer to
buy securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MAY 18, 2000
PROSPECTUS
UNION TANK CAR COMPANY
SENIOR SECURED NOTES
-------------------------
This prospectus relates to the issuance of senior secured notes by Union
Tank Car Company.
ISSUANCE OF SENIOR SECURED NOTES:
- - Series may be periodically offered;
- - Series may be denominated in U.S. dollars or other currencies or currency
units;
- - The notes will rank senior to all of Union Tank's existing and future
subordinated indebtedness;
- - The notes will be secured by a first priority lien on some of our railway tank
cars and other rail cars;
- - Prices and terms will be determined at the time of sale; and
- - The total aggregate principal amount (or, in the case of debt securities
issued at a discount, the initial offering price) will not exceed US
$250,000,000 (or the equivalent in foreign currencies or currency units).
FORMS THAT SENIOR SECURED NOTES MAY TAKE:
- - Registered form;
- - Bearer form; or
- - Global form.
This prospectus is accompanied by a prospectus supplement which includes
additional information as to a particular series of senior secured notes. We may
not sell senior secured notes without both this prospectus and a prospectus
supplement.
INFORMATION FOUND IN THE PROSPECTUS SUPPLEMENT:
- - Aggregate principal amount of the series of senior secured notes
- - Description of the collateral securing the notes
- - Denominations
- - Maturity
- - Interest rate
- - Time of interest payments
- - Any terms for redemption
- - Any terms for sinking fund payments
- - Initial public offering price
- - Names of any underwriters or agents
- - Terms of any underwriting arrangements
- - Amounts to be purchased by underwriters or agents
- - Compensation of underwriters or agents
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 2000.
<PAGE> 39
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission utilizing a shelf registration process. Under
this shelf process, we may sell the securities described in this prospectus in
one or more offerings up to a total dollar amount of $250,000,000. This
prospectus provides you with a general description of the senior secured notes
we may offer.
Each time we sell senior secured notes, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information
contained in this prospectus. You should read both this prospectus and the
prospectus supplement together with additional information described in the
section entitled "Where You Can Find More Information" on page 13.
For more detail, you should read our registration statement and the
exhibits filed with our registration statement.
UNION TANK CAR COMPANY
We are principally engaged in the leasing of railway tank cars and other
rail cars to United States, Canadian and Mexican manufacturers and other
shippers of chemical products, including liquid fertilizers, petroleum products,
including liquid petroleum gas, food products and bulk plastics. We own and
operate one of the largest fleets of privately-owned railway tank cars in the
world.
We are a wholly-owned subsidiary of Marmon Industrial LLC, which is a
wholly-owned subsidiary of Marmon Holdings, Inc. Substantially all the stock of
Marmon Holdings, Inc. is owned, directly or indirectly, by trusts for the
benefit of certain members of the Pritzker family. "Pritzker family" refers to
the lineal descendants of Nicholas J. Pritzker, deceased.
Our principal executive offices are located at 225 West Washington Street,
Chicago, Illinois 60606, and our telephone number is (312) 372-9500.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of senior secured notes for
general corporate purposes, unless otherwise specified in the prospectus
supplement relating to a specific issuance of notes. These general corporate
purposes may include, among other possible uses, financing the addition of
railcars to our fleet, the repayment of indebtedness, capital expenditures and
acquisitions. Pending such use, we may temporarily invest net proceeds in
short-term securities.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
Union Tank and our consolidated subsidiaries for the periods indicated:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
<S> <C> <C> <C> <C>
2.96x 3.23x 2.74x 2.84x 2.41x
</TABLE>
The ratio of earnings to fixed charges represents the number of times that
interest expense, amortization of debt discount and the interest component of
rent expense were covered by income before income taxes and cumulative effect of
a change in accounting principle and such interest, amortization and the
interest component of rentals.
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DESCRIPTION OF SENIOR SECURED NOTES UNION TANK MAY OFFER
GENERAL
As required by federal law for all bonds and notes of companies that are
publicly offered, the senior secured notes are governed by a document called an
indenture and security agreement. The indenture is a contract, dated as of May
17, 2000, between Union Tank and Bank One, National Association, which acts as
trustee.
The trustee has two main roles. First, the trustee can enforce your rights
against us if we default. There are some limitations on the extent to which the
trustee acts on your behalf, described under "Remedies If an Event of Default
Occurs" on page 11. Second, the trustee performs administrative duties for us,
such as sending you interest payments, transferring your debt securities to a
new buyer if you sell and sending you notices.
The indenture and its associated documents contain the full legal text of
the matters described in this section. A copy of the indenture may be obtained
from Union Tank as described below under "Where You Can Find More Information"
on page 13.
Union Tank may issue as many separate series of senior secured notes under
the indenture as it wishes. The indenture does not limit the amount of notes
which can be issued by Union Tank.
This section summarizes the material terms of the senior secured notes that
are common to all series, although the prospectus supplement which describes the
terms of each series of notes may also describe differences from the material
terms summarized here.
Because this section is a summary, it does not describe every aspect of the
senior secured notes. This summary is subject to and qualified in its entirety
by reference to all the provisions of the indenture, including definitions of
certain terms used in the indenture. In this summary, we described the meaning
for only the more important terms. We also have included references in
parentheses to certain sections of the indenture. Whenever Union Tank refers to
particular sections or defined terms of the indenture in this prospectus or in
the prospectus supplement, such sections or defined terms are incorporated by
reference in this prospectus or in the prospectus supplement. You must look to
the indenture for the most complete description of what Union Tank describes in
summary form in this prospectus.
This summary also is a subject to, and qualified by reference to, the
description of the particular terms of the series of senior secured notes
offered by a prospectus supplement. Those terms may vary from the terms
described in this prospectus. The prospectus supplement relating to each series
of notes will be attached to the front of this prospectus. There may also be a
further prospectus supplement, known as a pricing supplement, which contains the
precise terms of notes that Union Tank may offer.
Union Tank may issue the senior secured notes as original issue discount
securities, which will be offered and sold at a substantial discount below their
stated principal amount. The prospectus supplement relating to original issue
discount securities will describe federal income tax consequences and other
special considerations applicable to them. The notes may also be issued as
securities denominated in foreign currencies or currency units, as described in
more detail in the prospectus supplement relating to any of the particular
notes. The prospectus supplement relating to specific notes will also describe
any special considerations and certain additional tax considerations applicable
to such notes.
In addition, the specific financial, legal and other terms particular to a
series of senior secured notes are described in the prospectus supplement and
any pricing supplement relating to the series. The prospectus supplement
relating to a series of debt securities will describe the following terms of the
securities:
- the title of the series of senior secured notes.
- any limit on the aggregate principal amount of the series of senior
secured notes;
- a description of the collateral securing the notes;
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<PAGE> 41
- the person to whom interest on a note is payable, if other than the
holder on the regular record date;
- the date or dates on which the series of notes will mature;
- the annual rate or rates, which may be fixed or variable, at which the
series of notes will bear interest, if any, and the date or dates from
which that interest, if any, will accrue;
- the place or places where the principal of, premium, if any, and interest
on the senior secured notes is payable;
- the dates on which interest, if any, on the series of notes will be
payable and the regular record dates for the interest payment dates;
- any mandatory or optional sinking funds or similar provisions, or
provisions for redemption of the notes at our option;
- the date, if any, after which and the price or prices at which the series
of notes may be redeemed and the other detailed terms and provisions of
those optional or mandatory redemption provisions, if any;
- if other than denominations of $1,000 and any of its integral multiples,
the denominations in which the series of notes will be issuable;
- the currency of payment of principal, premium, if any, and interest on
the series of notes;
- if the currency is subject to the election of Union Tank or a holder, the
currencies which may be elected and the terms and conditions upon which
the election can be made;
- whether the provisions described under "Defeasance" on page 10 apply to
the notes;
- any event of default under the series of senior secured notes which is
different from those described under "What is an Event of Default?" on
page 11;
- if the series of notes will be issuable only in the form of a global
security, the depository or its nominee with respect to the series of
notes and the circumstances under which the global security may be
registered for transfer or exchange in the name of a person other than
the depositary or the nominee; and
- any other special feature of the series of senior secured notes.
LEGAL OWNERSHIP
STREET NAME AND OTHER INDIRECT HOLDERS
We generally will not recognize investors who hold notes in accounts at
banks or brokers as legal holders of notes. This is called holding in street
name. Instead, Union Tank would recognize only the bank or broker, or the
financial institution the bank or broker uses to hold its notes. These
intermediary banks, brokers and other financial institutions pass along
principal, interest and other payments on the notes, either because they agree
to do so in their customer agreements or because they are legally required to do
so. If you hold notes in street name, you should check with your own institution
to find out:
- how it handles securities payments and notices;
- whether it imposes fees or charges;
- how it would handle voting if required;
- whether and how you can instruct it to send you notes registered in your
own name so that you can be a direct holder as described below; and
- how it would pursue rights under the notes if there were a default or
other event triggering the need for holders to act to protect their
interests.
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<PAGE> 42
DIRECT HOLDERS
Our obligations, as well as the obligations of the trustee and those of any
third parties employed by Union Tank or the trustee, run only to persons who are
registered as holders of notes. As noted above, Union Tank does not have
obligations to you if you hold notes in street name or other indirect means,
either because you choose to hold notes in that manner or because the notes are
issued in the form of global securities as described below. For example, once we
make payment to the registered holder, we have no further responsibility for the
payment, even if that holder is legally required to pass the payment along to
you as a street name customer but does not do so.
GLOBAL SECURITIES
- WHAT IS A GLOBAL SECURITY? A global security is a special type of
indirectly held security, as described above under "Street Name and Other
Indirect Holders". If Union Tank chooses to issue notes in the form of
global securities, the ultimate beneficial owners can only be indirect
holders. Union Tank would do this by requiring that the global security
be registered in the name of a financial institution it selects and by
requiring that the notes represented by the global security not be
transferred to the name of any other direct holder unless the special
circumstances described below occur. The financial institution that acts
as the sole direct holder of a global security is called the depositary.
Any person wishing to own a note must do so indirectly through an account
with a broker, bank or other financial institution that in turn has an
account with the depositary. The prospectus supplement indicates whether
your series of senior secured notes will be issued only in the form of
global securities.
- SPECIAL INVESTOR CONSIDERATIONS FOR GLOBAL SECURITIES. As an indirect
holder, an investor's rights relating to a global security will be
governed by the account rules of the investor's financial institution and
of the depositary, as well as general laws relating to securities
transfers. We do not recognize an indirect holder as a holder of notes
and instead deal only with the depositary that holds the global security.
If you are an investor, you should be aware that if notes are issued only
in the form of global securities:
- You cannot get notes registered in your own name.
- You cannot receive physical certificates for your interest in the notes.
- You will be a street name holder and must look to your own bank or broker
for payments on the notes and protection of your legal rights relating to
the notes. See "Legal Ownership -- Street Name and Other Indirect
Holders" on page 4.
- You may not be able to sell interests in the notes to some insurance
companies and other institutions that are required by law to own their
securities in the form of physical certificates.
- The depositary's policies will govern payments, transfers, exchange and
other matters relating to your interest in the global security. Union
Tank and the trustee have no responsibility for any aspect of the
depositary's actions or for its records of ownership interest in the
global security. Union Tank and the trustee also do not supervise the
depositary in any way.
- SPECIAL SITUATIONS WHEN A GLOBAL SECURITY WILL BE TERMINATED. In a few
special situations described in the next paragraph, a global security
will terminate and interests in it will be exchanged for physical
certificates representing notes. After that exchange, the choice of
whether to hold notes directly or in street name will be up to you. You
will have to consult your own bank or broker to find out how to have your
interests in notes transferred to your own name, so that you will be a
direct holder. When a global security terminates, certificates will be
issued in the names of registered holders specified by the depositary,
not by Union Tank or the trustee. The rights of street name investors and
direct holders of notes have been previously described in the subsections
entitled "Street Name and Other Indirect Holders" on page 4 and "Direct
Holders" on page 5.
5
<PAGE> 43
The special situations in which a global security will be terminated are:
- When the depositary notifies Union Tank that it is unwilling, unable or
no longer qualified to continue as depositary.
- When Union Tank notifies the trustee that it wishes to terminate the
global security.
- When an event of default on the notes has occurred and has not been
cured. (Default is discussed later under "Events of Default" on page 10.)
The prospectus supplement may also describe additional situations for
terminating a global security that would apply only to the particular series of
notes covered by the prospectus supplement.
In the remainder of this description "you" means direct holders and not
street name or other indirect holders of notes. Indirect holders should read the
previous subsection on page 4 entitled "Street Name and Other Indirect Holders".
OVERVIEW OF REMAINDER OF THIS DESCRIPTION
The remainder of this description summarizes:
- Additional Mechanics relevant to the notes under normal circumstances,
such as how you transfer ownership and where Union Tank makes payments;
- Your rights in several Special Situations, such as if Union Tank merges
with another company, or if Union Tank wants to change a term of the
notes;
- Except for its obligations relating to the collateral securing a series
of notes, the absence in the indenture of any promises by Union Tank
about how it will run its business or any business action Union Tank
promises to take, known as a Restrictive Covenant;
- Defeasance clauses, which may allow for Union Tank to be completely
released from its payment and other obligations on the notes or partially
released from any restrictive covenants in the indenture; and
- Your rights if Union Tank Defaults or experiences other financial
difficulties.
ADDITIONAL MECHANICS
FORM, EXCHANGE AND TRANSFER
Unless otherwise specified in a prospectus supplement, the notes will be
issued:
- only in fully registered form;
- without interest coupons; and
- in denominations that are even multiples of $1,000. (Section 2.2).
You may have your notes divided into more notes of smaller denominations or
combined into fewer notes of larger denominations, as long as the total
principal is not changed. (Section 2.8). This is called an exchange.
You may exchange or transfer notes at the office of the trustee. The
trustee acts as Union Tank's agent for registering notes in the names of holders
and transferring notes. Union Tank may change this appointment to another entity
or perform these functions itself. The entity performing the role of maintaining
the list of registered holders is called the security registrar. It will also
perform transfers. (Section 2.7).
You will not be required to pay a service charge to transfer or exchange
notes, but you may be required to pay for any tax or other governmental charge
associated with the exchange or transfer. The
6
<PAGE> 44
transfer or exchange will only be made if the security registrar is satisfied
with your proof of ownership. (Section 2.8).
If the notes are redeemable, neither the registrar nor Union Tank is
required to register the transfer or exchange of notes during the period
beginning 15 days before the day Union Tank mails the notice of redemption and
ending on the day on which the notice of redemption is first published. Union
Tank may also refuse to register transfers or exchanges of notes selected for
redemption, except that Union Tank will continue to permit transfers and
exchanges of the unredeemed portion of any note being partially redeemed.
(Section 2.8).
PAYMENT AND PAYING AGENTS
Union Tank will pay interest to you, if you are a direct holder listed in
the trustee's records at the close of business on a particular day in advance of
each due date for interest, even if you no longer own the note on the date
interest is actually paid. That particular day, usually about two weeks in
advance of the payment date, is called the regular record date and is stated in
the prospectus supplement. Holders buying and selling debt securities must work
out between them how to compensate for the fact that Union Tank will pay all the
interest for an interest period to the one who is the registered holder on the
regular record date. The most common manner is to adjust the sales price of the
securities to pro rate interest fairly between buyer and seller. This prorated
interest amount is called accrued interest.
Union Tank will pay interest, principal and any other money due on the
notes at the corporate trust office of the trustee in New York City. You must
make arrangements to have your payments picked up at or wired from that office.
Union Tank may choose to pay interest by mailing checks.
Street Name and other indirect holders should consult their banks, brokers
or other financial institutions for information on how they will receive
payments.
Union Tank may also arrange for additional payment offices, and may cancel
or change these offices, including its use of the trustee's corporate trust
office. These offices are called paying agents. Union Tank may also choose to
act as its own paying agent. Union Tank must notify the trustee of the name and
address of any paying agent that is not a party to the indenture. (Section 2.4).
NOTICES
Union Tank and the trustee will send notices regarding the notes only to
direct holders, using their addresses as listed in the trustee's records.
(Sections 5.2 and 8.6).
SPECIAL SITUATIONS
MERGERS AND SIMILAR EVENTS
Union Tank is generally permitted to consolidate or merge with another
person. We are also permitted to sell or convey all or substantially all of our
assets to another person. However, we may not take any of these actions unless
the following conditions are met:
- Where Union Tank merges out of existence or sells or conveys all or
substantially all of its assets, the other person must be organized under
the laws of any state or the District of Columbia or under federal law,
and it must agree to be legally responsible for the notes.
- Immediately after giving effect to the merger, sale of assets or other
transaction, Union Tank must not be in default on the notes. For purposes
of this no-default test, a default would include an event of default that
has occurred and not been cured. A default for this purpose would also
include any event that would be an event of default if Union Tank were to
be given a default notice or if the event were to exist for a specific
period of time. (Section 6.1).
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<PAGE> 45
Following the consolidation or merger with or sale or lease of assets to another
person, that person will be substituted for Union Tank under the indenture, and,
except in the case of a lease, all obligations of Union Tank under the indenture
and the debt securities will terminate.
MODIFICATION AND WAIVER
There are three types of changes Union Tank can make to the indenture and
the notes.
CHANGES REQUIRING YOUR APPROVAL. We cannot make the following changes to
your notes without your specific approval:
- change the rate of interest or the time of payment of any note;
- change the principal amount of or the stated maturity of any note;
- reduce any premium payable upon the redemption of any note;
- waive a default in the payment of the principal of or interest on any
note;
- change the currency of payment on a note;
- impair your right to sue for payment;
- permit the disposition of the collateral securing the notes except as
permitted by the indenture;
- reduce the percentage of the principal amount of notes the consent of
which is needed to modify or amend the indenture;
- reduce the percentage of the principal amount of notes the consent of
which is needed to waive compliance with certain provisions of the
indenture or to waive certain defaults; or
- modify any other aspect of the provisions dealing with modification and
waiver of the indenture. (Section 10.2).
CHANGES REQUIRING A MAJORITY VOTE. The second type of change to the
indenture and the notes is the kind that requires a vote in favor by the holders
of notes owning a majority of the principal amount of the particular series
affected. Most changes fall into this category, except for clarifying changes
and certain other changes that would not adversely affect holders of the notes
described in the next paragraph. (Section 10.2). Union Tank may obtain a waiver
of a past default from the holders of notes owning a majority of the principal
amount of the particular series affected. However, Union Tank cannot obtain a
waiver of a payment default or any other aspect of the indenture or the notes
listed and described previously under "Changes Requiring Your Approval" unless
Union Tank obtains a consent to the waiver from every holder. (Section 10.2).
CHANGES NOT REQUIRING APPROVAL. The third type of change to the indenture
and the notes does not require any vote by holders of notes. This type is
limited to:
- cure any ambiguity, defect or inconsistency in the indenture or in the
debt securities;
- provide for the assumption of all the obligations of Union Tank under the
debt securities and under the indenture by any corporation in connection
with a merger, consolidation, or transfer or lease of substantially all
of our assets;
- to secure the debt securities;
- provide for uncertificated debt securities in addition to or in place of
certificated debt securities;
- make any change that does not adversely effect the rights of any holder
of a debt security;
- provide for the issuance of and establish the form and terms and
conditions of a series of debt securities; or
- add to rights of holders of debt securities. (Section 10.1).
8
<PAGE> 46
ABSENCE OF RESTRICTIVE COVENANTS
Except for its obligations relating to the collateral as described below
under "Security," the indenture does not contain any promises by Union Tank on
how it will operate its business and does not restrict Union Tank's ability to
incur debt or grant liens on its assets. Similarly, the indenture does not
contain any "event risk" provisions that may afford holders of notes protection
in the event of a highly leveraged transaction involving Union Tank. If Union
Tank determines to include such a promise for the benefit of a particular series
of notes, such promise, or restrictive covenant, will be described in the
prospectus supplement relating to that series of notes.
SECURITY
Each series of notes will be secured by a first priority lien on some of
our railway tank cars and other rail cars of the types used in our business. The
specific collateral that secures a series of notes, the cost of the collateral
and the earliest date on which any of the collateral was put in use, will be
described in the prospectus supplement for that series. The cost of any unit of
equipment included in the collateral that is built by us or our subsidiary will
be the so-called "car builder's cost." This includes our cost of labor and
material and overhead, but does not include any manufacturing profit. The cost
of any unit of equipment included in the collateral that we purchase from
another manufacturer will be our actual cost.
The indenture contains provisions requiring us to record the indenture and
each indenture supplement promptly after they are executed and delivered with
the Surface Transportation Board of the U.S. Department of Transportation and
the Registrar General of Canada. We will be required to take similar actions in
all other jurisdictions required by law or reasonably requested by the trustee
in order to protect the trustee's security interest in the collateral and your
rights, but we will not be required to recorded in any jurisdiction if:
- in our opinion the recording would be too burdensome, and
- after taking into account our failure to record, we have done everything
required by law to protect the trustee's security interest in collateral
with a value of not less than 90% of the value of all collateral securing
the particular series of notes. The indenture defines "value" as the
greater of the fair market value of the collateral and the cost of the
collateral reduced by 1/20 of the cost for each year the collateral has
been in use.
MAINTENANCE, RELEASE AND SUBSTITUTION OF COLLATERAL
We will be required to maintain the collateral in good condition until it
becomes worn out, unsuitable for use, lost or destroyed. This is called a
casualty occurrence. The indenture provides that whenever collateral securing a
particular series of notes with a value of $750,000 or 1% of the principal
amount of that series of notes then outstanding, whichever is less, has suffered
a casualty occurrence, we must either deposit with the trustee cash equal to the
value of the collateral that suffered the casualty occurrence as of the date of
the casualty occurrence or deliver to the trustee collateral with a value at
least equal to the value of the collateral that suffered the casualty
occurrence.
The indenture provides for the release by the trustee of collateral
securing a particular series of notes at our request provided that we:
- grant to the trustee a first priority lien on other units of equipment,
regardless of when those units were first put into use with a value at
least equal to the value of the collateral to be released, or
- pay to the trustee cash equal to the value of the collateral to be
released.
Any cash we deposit with the trustee in connection with a casualty occurrence or
a release of collateral will be paid by the trustee to us if we elect to
exchange additional units of equipment with a value at least equal to the amount
of cash to be paid by the trustee.
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<PAGE> 47
RANKING OF THE SENIOR SECURED NOTES
The notes will rank senior in right of payment to all of our existing and
future subordinated indebtedness. "Subordinated indebtedness" means all of our
indebtedness that is expressly subordinate in right of payment to the notes.
Each series of senior secured notes will rank equal in right of payment to all
other series of notes issued under the indenture and to our other indebtedness
which is not subordinated.
DEFEASANCE
Union Tank may be completely released from its payment and other
obligations on the notes or may be released from certain events of default as
described below. The following discussion of defeasance, satisfaction and
discharge will be applicable to your series of notes unless Union Tank chooses
not to have them apply to that series, in which case it will state that in the
prospectus supplement. (Section 9.1).
FULL DEFEASANCE
Union Tank can legally release itself from certain obligations on the notes
of a series, called defeasance, if Union Tank puts in place the following
arrangement for you to be repaid:
- Union Tank must deposit with the trustee, in trust, at or before
maturity, for your benefit and the benefit of all holders of the debt
securities of that series a combination of money and U.S. government
notes or bonds or notes or obligations guaranteed by the U.S. government
that, in the opinion of a nationally recognized firm of independent
public accountants chosen by Union Tank, will generate enough cash to
make interest, principal and any other payments on the notes on their
various due dates. (Section 8.1).
Defeasance of the notes would be subject to the satisfaction of certain
conditions, including:
- There cannot be an event of default on the date Union Tank makes the
deposit in trust;
- Your interest and all other holders of notes in the deposit must be
perfected; and
- The deposit must not result in the breach by Union Tank of any of its
material agreements.
SATISFACTION AND DISCHARGE
If we are able to defease the notes, as described above, and satisfy
certain other conditions, Union Tank will be released from its obligations to
pay principal and interest on the notes when due, and you would have to rely
solely on the money or securities deposited in trust for repayment of the notes.
You could not look to Union Tank for repayment.
The conditions that must be satisfied include, except in limited
circumstances involving a deposit made within one year of maturity of the notes:
- There cannot be an event of default on the date we make the deposit or on
the 91st day after we make the deposit; and
- Union Tank must deliver to the trustee a legal opinion of nationally
recognized tax counsel confirming that Union Tank may make the deposit of
money or securities without causing you to be taxed on the notes any
differently than if Union Tank did not make the deposit and instead
repaid the notes in accordance with their terms.
DEFAULT AND RELATED MATTERS
EVENTS OF DEFAULT
You will have special rights if an event of default occurs and is not
cured, as described later in this subsection. Unless otherwise specified in a
prospectus supplement, all of the senior secured notes issued under the same
indenture supplement will relate to specific collateral and there will be no
cross-collateralization or cross-default provisions in the indenture
supplements.
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<PAGE> 48
WHAT IS AN EVENT OF DEFAULT? The term "Event of Default" means any of the
following:
- Union Tank does not pay the principal of a note on its due date.
- Union Tank does not pay interest on a note within 30 days of its due
date.
- Union Tank does not deposit money in a separate account, known as a
sinking fund, when a deposit is due.
- Union Tank remains in breach of any agreement of Union Tank contained in
the indenture for 90 days after we receive a notice of default stating we
are in breach. The notice must be sent by either the trustee or holders
of 25% of the outstanding principal amount of notes of the affected
series.
- Union Tank files for bankruptcy or certain other events of bankruptcy,
insolvency or reorganization occur. (Section 7.1).
REMEDIES IF AN EVENT OF DEFAULT OCCURS. If an event of default has occurred
and has not been cured, the trustee or the holders of at least 25% in principal
amount of the notes of the affected series may declare the entire principal
amount of all the notes of that series and any accrued interest to be due and
immediately payable. In the case of original issue discount securities, the
trustee or the required percentage of holders may declare due and payable the
portion of the principal amount that is specified in the terms of the affected
debt security. This is called a declaration of acceleration of maturity.
However, a declaration of acceleration of maturity may be cancelled by the
holders of at least a majority in principal amount of the notes of the affected
series if all events of default have been cured or waived but only before a
judgment or decree based on the acceleration has been obtained. (Section 7.2).
Please refer to the prospectus supplement relating to any series of notes
which are original issue discount securities for the particular provisions
relating to acceleration of the maturity of original issue discount securities
upon the occurrence of an event of default.
Except in cases of default, where the trustee has some special duties, the
trustee is not required to take any action under the indenture at the request of
any holders unless the holders offer the trustee reasonable protection from
expenses and liability. This protection is called an indemnity. (Section 8.1).
If reasonable indemnity is provided, subject to some limitations, the holders of
a majority of the outstanding principal amount of the notes of the relevant
series may direct the time, method and place of conducting any lawsuit or other
formal legal action seeking any remedy available to the trustee. These majority
holders may also direct the trustee in performing any other action under the
indenture. (Section 7.6).
Before you bypass the trustee and bring your own lawsuit or other formal
legal action or take other steps to enforce your rights or protect your
interests relating to the notes, the following must occur:
- You must give the trustee written notice that an event of default has
occurred and remains uncured.
- The holders of 25% of the outstanding principal amount of all the notes
of the relevant series must make a written request that the trustee take
action because of an event of default, and must offer reasonable
indemnity to the trustee against the cost and other liabilities of taking
that action.
- The trustee must have not taken action for 60 days after receipt of the
above written request and offer of indemnity and no directions
inconsistent with the above written request must have been given to the
trustee by the holders of a majority of the outstanding principal amount
of the notes during such period. (Section 7.7).
However, you are entitled at any time to bring a lawsuit for the payment of
money due on your notes on or after its due date. (Section 7.8).
Street name and other indirect holders should consult their banks, brokers
or other financial institutions for information on how to give notice or
direction to or make a request of the trustee and to make or cancel a
declaration of acceleration.
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<PAGE> 49
OUR RELATIONSHIP TO THE TRUSTEE
Bank One, National Association is the trustee under certain indentures,
equipment trust agreements and a pass through trust agreement to which Union
Tank is a party. Certain of these agreements relate to indebtedness which is
secured. If an event of default occurred under the indenture relating to the
senior secured notes or one of the other agreements under which Bank One,
National Association acts as trustee, Bank One, National Association may be
deemed to have a conflicting interest with respect to the notes for purposes of
the Trust Indenture Act of 1939 and, therefore, may be required to resign as
trustee. First Chicago also provides customary banking services, including
commercial credit facilities and standby letters of credit to Union Tank and
certain of our affiliates. In 1998, Union Tank entered into a sale-leaseback
transaction with a trust for the benefit of an affiliate of the trustee in which
we sold to and leased back from the trust approximately $130,000,000 in rail
cars. In 1992, we entered into a sale-leaseback transaction with a trust for the
benefit of, among others, a subsidiary of Bank One, National Association's
parent. In that transaction, Union Tank sold to and leased back from the trust
approximately $118,000,000 in rail cars.
PLAN OF DISTRIBUTION
Union Tank may sell senior secured notes:
- to or through underwriters;
- through agents;
- through dealers; or
- through a combination of these methods.
The distribution of the notes may be effected from time to time in one or
more transactions at (i) a fixed price or prices, which may be changed, (ii)
market prices prevailing at the time of sale, (iii) prices related to the
prevailing market prices at the time of sale, or (iv) negotiated prices.
The prospectus supplement for each series of notes will describe:
- the terms of the offering of those notes, including the names of any
agents or underwriters;
- the public offering or purchase price;
- any discounts and commissions to be allowed or paid to the agents or
underwriters and all other items which are underwriting compensation;
- any discounts and commissions to be allowed or paid to dealers; and
- other specific terms of the particular notes.
Only the agents or underwriters named in a particular prospectus supplement
are agents or underwriters in connection with the notes being offered by that
prospectus supplement.
Underwriters, agents and dealers may be entitled, under agreements with
Union Tank, to indemnification against certain civil liabilities, including
liabilities under the Securities Act of 1933.
Each series of senior secured notes will be a new issue of securities and
will not have an established trading market. Union Tank will not list any series
of notes on an exchange. No assurance can be given that you will be able to
resell any notes that you may purchase.
Underwriters, dealers or agents may engage in transactions with, or perform
services for, Union Tank or its affiliates in the ordinary course of business.
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<PAGE> 50
LEGAL OPINIONS
Unless otherwise indicated in the applicable prospectus supplement, the
validity of the senior secured notes offered hereby will be passed upon for us
by Neal, Gerber & Eisenberg, Chicago, Illinois, and for any agents, dealers or
underwriters by Mayer, Brown & Platt, New York, New York.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our Annual Report on Form 10-K for the year
ended December 31, 1999, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in the registration statement. Our
financial statements are incorporated by reference in reliance on Ernst & Young
LLP's report, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports and other information with
the Securities and Exchange Commission. You may read and copy any documents we
file at the SEC's public reference room, 450 Fifth Street, N.W., Washington,
D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference room. Our SEC filings are also available to the public on the
SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information that we file
with the SEC will automatically update and supersede this information as well as
the information included in this prospectus. We incorporate by reference the
documents listed below and any future filing we make with the SEC under Sections
13(a), 13(c) or 15(d) of the Securities Exchange Act of 1934 until we sell all
the senior secured notes. This prospectus is part of a registration statement we
filed with the SEC.
- Annual Report on Form 10-K for the fiscal year ended December 31, 1999;
and
- Quarterly Report on Form 10-Q for the quarter ended March 31, 2000.
We will provide without charge to each person to whom this prospectus is
delivered, upon written request, a copy (without exhibits) of any or all
documents incorporated by reference in this prospectus. Requests for such copies
should be directed to the General Counsel and Secretary, Union Tank Car Company,
225 West Washington Street, Chicago, Illinois 60606, telephone (312) 372-9500.
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<PAGE> 51
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses (other than
underwriting discounts and commissions) to be incurred by the registrant in
connection with the offering described in this Registration Statement:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $ 66,000*
Trustees' fees and expenses................................. 13,000
Printing expenses........................................... 75,000
Auditors' fees and expenses................................. 15,000
Attorneys' fees and expenses................................ 75,000
Rating agency fees.......................................... 125,000
Miscellaneous............................................... 11,000
--------
Total................................................ $380,000
========
</TABLE>
- -------------------------
* Actual. All other amounts are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law, Article Sixth of Union
Tank's Restated Certificate of Incorporation and Article VIII of Union Tank's
By-Laws authorize and empower Union Tank to indemnify its directors, officers,
employees and agents against liabilities incurred in connection with, and
related expenses resulting from, any claim, action or suit brought against any
such person as a result of such person's relationship with Union Tank, provided
that such persons acted in accordance with a stated standard of conduct in
connection with the acts or events on which such claim, action or suit is based.
The finding of either civil or criminal liability on the pan of such persons in
connection with such acts or events is not necessarily determinative of the
question of whether such persons have met the required standard of conduct and
are, accordingly, entitled to be indemnified.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENTS
- ------- ------------------------
<C> <C> <S>
1(a) -- Form of Underwriting Agreement (Debt Securities).*
1(b) -- Form of Underwriting Agreement (Pass Through Certificates).*
1(c) -- Form of Underwriting Agreement (Senior Secured Notes).*
4(a)(1) -- Indenture dated as of January 16, 1997 between Union Tank
and Harris Trust and Savings Bank. Incorporated by reference
to Exhibit 4(b) to Union Tank's Registration Statement on
Form S-3 (Registration No. 333-17121).
4(a)(2) -- Pass Through Trust Agreement dated as of May 17, 2000
between Union Tank and Bank One, National Association.
4(a)(3) -- Indenture and Security Agreement dated as of May 17, 2000
between Union Tank and Bank One, National Association.
5(a) -- Opinion of Neal, Gerber & Eisenberg, counsel for Union Tank,
relating to Debt Securities.
5(b) -- Opinion of Neal, Gerber & Eisenberg, counsel for Union Tank,
relating to Pass Through Certificates.
5(c) -- Opinion of Neal, Gerber & Eisenberg, counsel for Union Tank,
relating to Senior Secured Notes.
</TABLE>
II-1
<PAGE> 52
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENTS
- ------- ------------------------
<C> <C> <S>
8 -- Tax Opinion of Neal, Gerber & Eisenberg, counsel for the
Company.
12 -- Computation of Ratios of Earnings to Fixed Charges for the
five years ended December 31, 1999. Incorporated by
reference to Exhibit 12 to Union Tank's Annual Report on
Form 10-K for the year ended December 31, 1999.
23(a) -- Consent of Ernst & Young LLP, Independent Auditors.
23(b) -- Consent of Neal, Gerber & Eisenberg (included in Exhibits
5(a), 5(b), 5(c) and 8(a)).
24 -- Powers of Attorney (included on the signature pages to this
Registration Statement).
25(a) -- Statement of Eligibility on Form T-1 of Harris Trust and
Savings Bank as trustee for the Debt Securities.
Incorporated by reference to Exhibit 25(b) to Union Tank's
Registration Statement on Form S-3 (Registration No.
333-17121).
25(b) -- Statement of Eligibility on Form T-1 of Bank One, National
Association, as trustee under the Pass Through Trust
Agreement and under the Indenture and Security Agreement.
</TABLE>
- -------------------------
* To be filed by amendment or as an exhibit to a Current Report on Form 8-K.
ITEM 17. UNDERTAKINGS
A. Undertakings Regarding Rule 415 Offering.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs 1(i) and 1(ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
II-2
<PAGE> 53
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
B. Undertaking Regarding Documents Subsequently Filed Under the Exchange
Act.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new Registration Statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
C. Undertaking in Respect of Indemnification.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-3
<PAGE> 54
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Union Tank Car
Company certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chicago, State of Illinois on the 17th day of May,
2000.
UNION TANK CAR COMPANY
/s/ R.C. GLUTH
--------------------------------------
Robert C. Gluth,
Executive Vice President,
Treasurer and Director
Each person whose signature appears below hereby constitutes and appoints
Robert C. Gluth, Robert W. Webb and Kenneth P. Fischl, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned, with full power
of substitution and resubstitution, for and in the name, place and stead of the
undersigned and to file the same, with all exhibits thereto, in any and all
capabilities, to sign any and all amendments and any registration statement
filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended
(including post-effective amendments thereto and other documents in connection
therewith), with the Securities and Exchange Commission, and hereby grants to
such attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done,
as fully to all intents and purposes as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 17th day of May, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ ROBERT A. PRITZKER President and Director (principal executive
- --------------------------------------------------- officer)
Robert A. Pritzker
/s/ R.C. GLUTH Executive Vice President, Treasurer and
- --------------------------------------------------- Director (principal financial and accounting
Robert C. Gluth officer)
/s/ K.P. FISCHL Director
- ---------------------------------------------------
K.P. Fischl
</TABLE>
II-4
<PAGE> 1
EXHIBIT 4(a)(2)
PASS THROUGH TRUST AGREEMENT
DATED AS OF MAY 17, 2000
BETWEEN
UNION TANK CAR COMPANY
AND
BANK ONE, NATIONAL ASSOCIATION,
AS TRUSTEE
<PAGE> 2
ARTICLE I
DEFINITIONS
<TABLE>
<S> <C> <C>
Section 1.01 DEFINITIONS................................................................................2
Section 1.02 COMPLIANCE CERTIFICATES AND OPINIONS.......................................................9
Section 1.03 FORM OF DOCUMENTS DELIVERED TO TRUSTEE....................................................10
Section 1.04 DIRECTIONS OF CERTIFICATEHOLDERS..........................................................10
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES: ACQUISITION OF TRUST PROPERTY
Section 2.01 AMOUNT UNLIMITED; ISSUABLE IN SERIES......................................................11
Section 2.02 ACQUISITION OF EQUIPMENT NOTES............................................................13
Section 2.03 ACCEPTANCE BY TRUSTEE.....................................................................15
Section 2.04 LIMITATION OF POWERS......................................................................15
ARTICLE III
THE CERTIFICATES
Section 3.01 FORM, DENOMINATION AND EXECUTION OF CERTIFICATES..........................................16
Section 3.02 AUTHENTICATION OF CERTIFICATES............................................................16
Section 3.03 TEMPORARY CERTIFICATES....................................................................17
Section 3.04 TRANSFER AND EXCHANGE.....................................................................17
Section 3.05 BOOK-ENTRY AND DEFINITIVE CERTIFICATES....................................................18
Section 3.06 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.........................................20
Section 3.07 PERSONS DEEMED OWNERS.....................................................................20
Section 3.08 CANCELLATION..............................................................................20
Section 3.09 LIMITATION OF LIABILITY FOR PAYMENTS......................................................20
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS
Section 4.01 CERTIFICATE ACCOUNT AND SPECIAL PAYMENTS ACCOUNT..........................................21
Section 4.02 DISTRIBUTIONS FROM CERTIFICATE ACCOUNT AND SPECIAL PAYMENTS ACCOUNT.......................21
Section 4.03 STATEMENTS TO CERTIFICATEHOLDERS..........................................................23
Section 4.04 INVESTMENT OF SPECIAL PAYMENT MONEYS......................................................24
ARTICLE V
THE COMPANY
Section 5.01 MAINTENANCE OF CORPORATE EXISTENCE........................................................24
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
Section 5.02 CONSOLIDATION, MERGER, ETC................................................................24
ARTICLE VI
DEFAULT
Section 6.01 EVENTS OF DEFAULT; EXERCISE OF REMEDIES...................................................25
Section 6.02 INCIDENTS OF SALE OF EQUIPMENT NOTES......................................................25
Section 6.03 JUDICIAL PROCEEDINGS INSTITUTED BY TRUSTEE; TRUSTEE MAY BRING SUIT........................26
Section 6.04 CONTROL BY CERTIFICATEHOLDERS.............................................................26
Section 6.05 WAIVER OF PAST DEFAULTS...................................................................27
Section 6.06 RIGHT OF CERTIFICATEHOLDERS TO RECEIVE PAYMENTS NOT TO BE IMPAIRED........................27
Section 6.07 CERTIFICATEHOLDERS MAY NOT BRING SUIT EXCEPT UNDER CERTAIN CONDITIONS.....................27
Section 6.08 REMEDIES CUMULATIVE.......................................................................28
Section 6.09 UNDERTAKING FOR COSTS.....................................................................28
ARTICLE VII
THE TRUSTEE
Section 7.01 CERTAIN DUTIES AND RESPONSIBILITIES.......................................................28
Section 7.02 NOTICE OF DEFAULTS........................................................................29
Section 7.03 CERTAIN RIGHTS OF TRUSTEE.................................................................29
Section 7.04 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF CERTIFICATES..................................30
Section 7.05 MAY HOLD CERTIFICATES.....................................................................31
Section 7.06 MONEY HELD IN TRUST.......................................................................31
Section 7.07 COMPENSATION AND REIMBURSEMENT............................................................31
Section 7.08 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY...................................................32
Section 7.09 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.........................................32
Section 7.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR....................................................34
Section 7.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS...............................34
Section 7.12 MAINTENANCE OF AGENCIES...................................................................35
Section 7.13 MONEY FOR CERTIFICATE PAYMENTS TO BE HELD IN TRUST........................................36
Section 7.14 REGISTRATION OF EQUIPMENT NOTES IN TRUSTEE'S NAME.........................................36
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
Section 7.15 REPRESENTATIONS AND WARRANTIES OF TRUSTEE.................................................36
Section 7.16 WITHHOLDING TAXES; INFORMATION REPORTING..................................................37
Section 7.17 TRUSTEE'S LIENS...........................................................................38
Section 7.18 PREFERENTIAL COLLECTION OF CLAIMS.........................................................38
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01 THE COMPANY TO FURNISH TRUSTEE WITH NAMES AND ADDRESSES OF CERTIFICATEHOLDERS.............38
Section 8.02 PRESERVATION OF INFORMATION; COMMUNICATIONS TO CERTIFICATEHOLDERS.........................38
Section 8.03 REPORTS BY TRUSTEE........................................................................38
Section 8.04 REPORTS BY THE COMPANY....................................................................38
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01 SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF CERTIFICATEHOLDERS.............................39
Section 9.02 SUPPLEMENTAL AGREEMENTS WITH CONSENT OF CERTIFICATEHOLDERS................................40
Section 9.03 DOCUMENTS AFFECTING IMMUNITY OR INDEMNITY.................................................41
Section 9.04 EXECUTION OF SUPPLEMENTAL AGREEMENTS......................................................41
Section 9.05 EFFECT OF SUPPLEMENTAL AGREEMENTS.........................................................42
Section 9.06 CONFORMITY WITH TRUST INDENTURE ACT.......................................................42
Section 9.07 REFERENCE IN CERTIFICATES TO SUPPLEMENTAL AGREEMENTS......................................42
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS
Section 10.01 AMENDMENTS AND SUPPLEMENTS TO INDENTURE AND OTHER NOTE DOCUMENTS..........................42
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01 TERMINATION OF THE TRUSTS.................................................................43
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS................................................44
Section 12.02 LIABILITIES OF CERTIFICATEHOLDERS.........................................................44
Section 12.03 NOTICES...................................................................................44
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
Section 12.04 GOVERNING LAW.............................................................................45
Section 12.05 SEVERABILITY OF PROVISIONS................................................................45
Section 12.06 TRUST INDENTURE ACT CONTROLS..............................................................46
Section 12.07 EFFECT OF HEADINGS AND TABLE OF CONTENTS..................................................46
Section 12.08 SUCCESSORS AND ASSIGNS....................................................................46
Section 12.09 BENEFITS OF AGREEMENT.....................................................................46
Section 12.10 LEGAL HOLIDAYS............................................................................46
Section 12.11 COUNTERPARTS..............................................................................46
Section 12.12 COMMUNICATION BY CERTIFICATEHOLDERS WITH OTHER CERTIFICATEHOLDERS.........................46
Section 12.13 INTENTION OF PARTIES......................................................................46
</TABLE>
iv
<PAGE> 6
UNION TANK CAR COMPANY
Reconciliation and tie between Union Tank Car Company Pass Through Trust
Agreement, dated as of May 17, 2000 and the Trust Indenture Act of 1939. This
reconciliation does not constitute part of the Pass Through Trust Agreement.
<TABLE>
<CAPTION>
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
-------------------------- -----------------------
<S> <C>
310(a)(1) 7.08
(a)(2) 7.08
310(b)(i)-(iii) 7.09
312(a) 3.05; 8.01; 8.02
313(a) 8.03
313(c) 8.04
314(a) 8.04(a) - (c)
(a)(4) 8.04(d)
(c)(1) 1.02
(c)(2) 1.02
(e) 1.02
315(b) 7.02
316(a)(last sentence) 1.04(c)
(a)(1)(A) 6.04
(a)(1)(B) 6.05
(b) 6.06
(c) 1.04(d)
317(a)(1) 6.03
(b) 7.13
318(a) 12.06
</TABLE>
<PAGE> 7
PASS THROUGH TRUST AGREEMENT
This PASS THROUGH TRUST AGREEMENT, dated as of May 17, 2000 (the "Basic
Agreement"), between UNION TANK CAR COMPANY, a Delaware corporation (the
"Company"), and BANK ONE, NATIONAL ASSOCIATION, a national banking association,
as Trustee, is made with respect to the formation from time to time of separate
Pass Through Trusts, and the issuance from time to time of separate series of
Pass Through Certificates representing fractional undivided interests in the
respective Trusts.
WITNESSETH:
WHEREAS, capitalized terms used herein shall have the meanings set forth or
referred to in Section 1.01;
WHEREAS, from time to time, the Company and the Trustee may enter into a
Trust Supplement pursuant to which the Trustee shall declare the creation of a
separate Trust for the benefit of the Holders of the series of Certificates to
be issued in respect of such Trust, and the initial Holders of the Certificates
of such series, as the grantors of such Trust, by their respective acceptances
of the Certificates of such series, shall join in the creation of such Trust
with the Trustee;
WHEREAS, all Certificates to be issued in respect of each separate Trust
will be issued as a separate series pursuant to this Agreement, will evidence
fractional undivided interests in such Trust and will have no rights, benefits
or interests in respect of any other separate Trust or the property held
therein;
WHEREAS, from time to time, pursuant to the terms and conditions of this
Agreement with respect to each separate Trust formed hereunder, the Trustee on
behalf of such Trust shall purchase one or more issues of Equipment Notes having
the same interest rate as, and final maturity dates not later than the final
Regular Distribution Date of, the series of Certificates issued in respect of
such Trust and shall hold such Equipment Notes in trust for the benefit of the
Certificateholders of such Trust;
WHEREAS, to facilitate the sale of Equipment Notes to, and the purchase of
Equipment Notes by, the Trustee on behalf of each Trust created from time to
time pursuant to this Agreement, the Company as the "Issuer", as such term is
defined in and solely for purposes of the Securities Act of 1933, as amended, of
the Certificates to be issued in respect of each Trust and as the "Obligor", as
such term is defined in and solely for purposes of the Trust Indenture Act of
1939, as amended, has duly authorized the execution and delivery of this Basic
Agreement and each Trust Supplement with respect to all such Certificates and is
undertaking to perform certain administrative and ministerial duties hereunder
and is also undertaking to pay the fees and expenses of the Trustee; and
WHEREAS, this Basic Agreement, as supplemented from time to time, 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;
1
<PAGE> 8
NOW, THEREFORE, in consideration of the mutual agreements herein contained,
and of other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS. For all purposes of this Basic Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms used herein that are defined in this Article I
have the meanings assigned to them in this Article I, and include the
plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, or by the rules
promulgated under the Trust Indenture Act, have the meanings assigned to
them therein;
(c) all references in this Basic Agreement to designated
"Articles", "Sections", "Subsections" and other subdivisions are to the
designated Articles, Sections, Subsections and other subdivisions of this
Basic Agreement;
(d) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Basic Agreement as a whole and not to any
particular Article, Section, Subsection or other subdivision;
(e) whenever the words "including", "include" or "includes" are
used herein, it shall be deemed to be followed by the phrase "without
limitation"; and
(f) the term "this Agreement" (as distinguished from "this Basic
Agreement") refers, unless the context otherwise requires, to this Basic
Agreement as supplemented by the Trust Supplement creating a particular
Trust and establishing the series of Certificates issued or to be issued in
respect thereof, with reference to such Trust and such series of
Certificates, as this Basic Agreement as so supplemented may be further
supplemented with respect to such Trust and such series of Certificates.
Act has the meaning, with respect to any Certificateholder, specified in
Section 1.04(a).
Affiliate has, for any Person, the meaning specified in Rule 0-2 under the
Trust Indenture Act.
Authorized Agent means, with respect to the Certificates of any series, any
Paying Agent or Registrar for the Certificates of such series.
Basic Agreement means this Pass Through Trust Agreement, as the same may
from time to time be supplemented, amended or modified, but does not include any
Trust Supplement.
2
<PAGE> 9
Book-Entry Certificates means, with respect to the Certificates of any
series, a beneficial interest in the Certificates of such series, ownership and
transfers of which shall be made through book entries as described in Section
3.05.
Business Day means, with respect to the Certificates of any series, any day
other than a Saturday, a Sunday or a day on which commercial banks are required
or authorized to close in Chicago, Illinois; New York, New York; or, so long as
any Certificate of such series is outstanding, the city and state in which the
Trustee or any related Indenture Trustee maintains its Corporate Trust Office or
receives and disburses funds.
Certificate means any one of the certificates executed and authenticated by
the Trustee, substantially in the form of Exhibit A hereto.
Certificate Account means, with respect to the Certificates of any series,
the account or accounts created and maintained for such series pursuant to
Section 4.01(a) and the related Trust Supplement.
Certificateholder or Holder means, with respect to the Certificates of any
series, the Person in whose name a Certificate of such series is registered in
the Register for Certificates of such series.
Certificate Owner means, with respect to the Certificates of any series,
for purposes of Section 3.05, the Person who owns a Book-Entry Certificate of
such series.
Clearing Agency means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended.
Clearing Agency Participant means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency
effects, directly or indirectly, book-entry transfers and pledges of securities
deposited with the Clearing Agency.
Company means Union Tank Car Company, a Delaware corporation, or its
successor in interest pursuant to Section 5.02, or (only in the context of
provisions hereof, if any, when such reference is required for purposes of
compliance with the Trust Indenture Act) any other "obligor" (within the meaning
of the Trust Indenture Act) with respect to the Certificates of any series.
Corporate Trust Office means, with respect to the Trustee or any Indenture
Trustee, the office of such trustee in the city at which at any particular time
its corporate trust business shall be principally administered.
Cut-Off Date means, with respect to the Certificates of any series, the
date designated as such in the Trust Supplement establishing such series.
Definitive Certificates has the meaning, with respect to the Certificates
of any series, specified in Section 3.05.
Direction has the meaning specified in Section 1.04(a).
3
<PAGE> 10
Equipment means the items of railroad rolling stock described in each Lease
and the related Lease Supplements, together with any and all accessions,
additions, improvements and replacements from time to time incorporated or
installed in any item thereof which are the property of an Owner Trustee
pursuant to a bill of sale or a Lease and securing one or more Equipment Notes.
Equipment Notes means, with respect to the Certificates of any series, all
of the equipment notes issued under the Indentures related to such series of
Certificates.
ERISA means the Employee Retirement Income Security Act of 1974, as amended
from time to time, or any successor federal statute.
Escrow Account has the meaning, with respect to the Certificates of any
series, specified in Section 2.02(b).
Escrowed Funds has the meaning, with respect to any Trust, specified in
Section 2.02(b).
Event of Default means, in respect of any Trust, an Indenture Event of
Default under any Indenture pursuant to which Equipment Notes held by such Trust
were issued.
Fractional Undivided Interest means the fractional undivided interest in a
Trust that is evidenced by a Certificate relating to such Trust.
Indenture means, with respect to any Trust, each of the one or more
separate trust indenture and security agreements or trust indenture and
mortgages or similar documents described in, or on a schedule attached to, the
Trust Supplement and trust indenture and security agreement or trust indenture
and mortgage or similar document having substantially the same terms and
conditions which relates to Substitute Equipment, as each such indenture may be
amended or supplemented in accordance with its respective terms; and
"Indentures" means all of such agreements.
Indenture Event of Default means, with respect to any Indenture, any
Indenture Event of Default (as such term is defined in such Indenture).
Indenture Trustee means, with respect to any Equipment Note or the
Indenture applicable thereto, the bank or trust company designated as loan or
indenture trustee under such Indenture, and any successor to such Indenture
Trustee as such trustee; and "Indenture Trustees" means all of the Indenture
Trustees under the Indentures.
Initial Regular Distribution Date means, with respect to the Certificates
of any series, the first Regular Distribution Date on which a Scheduled Payment
is to be made.
Issuance Date means, with respect to the Certificates of any series, the
date of the issuance of such Certificates.
Lease means any lease between an Owner Trustee, as the lessor, and the
Company, as the lessee, referred to in the related Indenture, as such lease may
be amended, supplemented or otherwise modified in accordance with its terms; and
"Leases" means all such Leases.
4
<PAGE> 11
Letter of Representations means, with respect to the Certificates of any
series, an agreement among the Company, the Trustee and the initial Clearing
Agency.
Note Documents means, with respect to the Certificates of any series, the
Equipment Notes with respect to such Certificates and, with respect to such
Equipment Notes, the related Indenture, Participation Agreement, if any, and, if
the related Equipment is leased to the Company, the related Lease and the
related Owner Trustee's Purchase Agreement.
Officer's Certificate means a certificate signed by a Responsible Officer
of the Company, the Trustee, an Owner Trustee or a Indenture Trustee, as the
case may be.
Opinion of Counsel means a written opinion of legal counsel who (a) in the
case of counsel for the Company may be (i) the General Counsel or Assistant
General Counsel of the Company, (ii) Neal, Gerber & Eisenberg or (iii) such
other counsel designated by the Company and reasonably acceptable to the Trustee
and (b) in the case of any Owner Trustee or any Indenture Trustee, may be such
counsel as may be designated by any of them whether or not such counsel is an
employee of any of them, and who shall be reasonably acceptable to the Trustee.
Other Agreements has the meaning specified in Section 6.01(b).
Outstanding when used with respect to Certificates of any series, means, as
of the date of determination, all Certificates of such series theretofore
authenticated and delivered under this Agreement, except:
(i) Certificates of such series theretofore canceled by the
Registrar or delivered to the Trustee or the Registrar for cancellation;
(ii) all of the Certificates of such series if money in the full
amount required to make the final distribution with respect to such series
pursuant to Section 11.01 hereof has been theretofore deposited with the
Trustee in trust for the Holders of the Certificates of such series as
provided in Section 4.01 pending distribution of such money to such
Certificateholders pursuant to payment of such final distribution payment;
and
(iii) Certificates of such series in exchange for or in lieu of which
other Certificates of such series have been authenticated and delivered
pursuant to this Agreement.
Owner Participant means, with respect to any Equipment Note, the "Owner
Participant", if any, as referred to in the Indenture pursuant to which such
Equipment Note is issued and any permitted successor or assign of such Owner
Participant; and "Owner Participants" at any time of determination means all of
the Owner Participants thus referred to in the Indentures.
Owner Trustee means, with respect to any Equipment Note, the "Owner
Trustee", if any, as referred to in the Indenture pursuant to which such
Equipment Note is issued, not in its individual capacity but solely as trustee;
and "Owner Trustees" means all of the Owner Trustees party to any of the related
Indentures.
5
<PAGE> 12
Participation Agreement means, with respect to the Certificates of any
series, any participation or similar agreement providing for, among other
things, the purchase of Equipment Notes by the Trustee on behalf of the relevant
Trust; and "Participation Agreements" means all of such Agreements.
Paying Agent means, with respect to the Certificates of any series, the
paying agent maintained and appointed for the Certificates of such series
pursuant to Section 7.12.
Permitted Investments means obligations of the United States of America or
agencies or instrumentalities thereof for the payment of which the full faith
and credit of the United States of America is pledged, maturing in not more than
60 days after the date of acquisition thereof or such lesser time as is required
for the distribution of any Special Payments on a Special Distribution Date.
Person means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, trustee,
unincorporated organization, or government or any agency or political
subdivision thereof.
Pool Balance means, with respect to the Certificates of any series as of
any date, (i) the original aggregate face amount of the Certificates of any
series less (ii) the aggregate amount of all payments made in respect of such
Certificates other than payments made in respect of interest or premium thereon
or reimbursement of any costs or expenses incurred in connection therewith. The
Pool Balance as of any Regular Distribution Date or Special Distribution Date
shall be computed after giving effect to the payment of principal, if any, on
the Equipment Notes or other Trust Property held in the Trust and the
distribution thereof to be made on such date.
Pool Factor means, with respect to any series of Certificates as of any
date, the quotient (rounded to the seventh decimal place) computed by dividing
(i) the Pool Balance of such series as at such date by (ii) the original
aggregate face amount of the Certificates of such series. The Pool Factor as of
any Regular Distribution Date or Special Distribution Date shall be computed
after giving effect to the payment of principal, if any, on the Equipment Notes
or other Trust Property held in the Trust and the distribution thereof to be
made on such Distribution Date.
Postponed Notes means, with respect to any Trust or the related series of
Certificates, the Equipment Notes to be held in such Trust as to which a
Postponement Notice shall have been delivered pursuant to Section 2.02(b).
Postponement Notice means, with respect to any Trust or the related series
of Certificates, an Officer's Certificate of the Company (1) requesting that the
Trustee temporarily postpone purchase of the related Equipment Notes to a date
later than the Issuance Date of such series of Certificates, (2) identifying the
amount of the purchase price of each such Equipment Note and the aggregate
purchase price for all such Equipment Notes, (3) setting forth the reasons for
such postponement and (4) with respect to each such Equipment Note, either (a)
setting or resetting a new Transfer Date (which shall be on or prior to the
applicable Cut-off Date) for payment by the Trustee of such purchase price and
issuance of the related Equipment Note (subject to subsequent change from time
to time in accordance with the relevant Note Purchase Agreement or Participation
Agreement), or (b) indicating that such new Transfer Date (which
6
<PAGE> 13
shall be on or prior to the applicable Cut-off Date) will be set by subsequent
written notice not less than one Business Day prior to such new Transfer Date
(subject to subsequent change from time to time in accordance with the relevant
Note Purchase Agreement or Participation Agreement).
Record Date means, with respect to any Trust or the related series of
Certificates, (i) for Scheduled Payments to be distributed on any Regular
Distribution Date, other than the final distribution with respect to such
series, the 15th day (whether or not a Business Day) preceding such Regular
Distribution Date, and (ii) for Special Payments to be distributed on any
Special Distribution Date, other than the final distribution with respect to
such series, the 15th day (whether or not a Business Day) preceding such Special
Distribution Date.
Register and Registrar means, each with respect to the Certificates of any
series, the register maintained and the registrar appointed pursuant to Sections
3.04 and 7.12.
Regular Distribution Date means, with respect to distributions of Scheduled
Payments in respect of any series of Certificates, each date designated as such
in this Agreement, until payment of all the Scheduled Payments to be made under
the Equipment Notes held in the Trust have been made.
Request means a request by the Company setting forth the subject matter of
the request accompanied by an Officer's Certificate and an Opinion of Counsel as
provided in Section 1.02 of this Basic Agreement.
Responsible Officer means, in the case of the Company, the President or any
other officer with the authority of at least a vice president; and, in the case
of any Trustee, any Indenture Trustee and any Owner Trustee, any officer in the
Corporate Trust Department of the Trustee, Indenture Trustee or Owner Trustee or
any other officer 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.
Responsible Party means, with respect to the Certificates of any series,
the person designated as such in the related Trust Supplement.
Scheduled Payment means, with respect to any Equipment Note, any payment of
principal or interest on such Equipment Note (other than any such payment which
is not in fact received by the Trustee within five days of the date on which
such payment is scheduled to be made; PROVIDED, HOWEVER, that any payment of
principal, premium, if any, or interest resulting from the redemption or
purchase of any Equipment Note shall not constitute a Scheduled Payment.
SEC means the Securities and Exchange Commission, as from time to time
constituted or created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
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Special Distribution Date means, with respect to the Certificates of any
series, each date on which a Special Payment is to be distributed as specified
in this Agreement.
Special Payment means (i) any payment (other than a Scheduled Payment) in
respect of, or any proceeds of, any Equipment Note or Trust Indenture Estate (as
defined in each Indenture), (ii) the amounts required to be distributed pursuant
to the last paragraph of Section 2.02(b) (iii) the amounts required to be
distributed pursuant to the penultimate paragraph of Section 2.02(b), (iv) any
payment in respect of proceeds received from the sale of all or part of the
Equipment Notes by the Trustee, (v) any payment in respect of amounts paid in
respect of the Equipment Notes following an Indenture Event of Default (other
than Scheduled Payments), or (vi) any payment in respect of amounts paid by the
applicable Owner Trustee to the Trustee for the purchase or redemption of
Equipment Notes.
Special Payments Account means, with respect to the Certificates of any
series, the account or accounts created and maintained for such series pursuant
to Section 4.01(b) and the related Trust Supplement.
Specified Investments means, with respect to any Trust, unless otherwise
specified in the related Trust Supplement, (i) obligations of, or guaranteed by,
the United States Government or agencies thereof, (ii) open market commercial
paper of any corporation incorporated under the laws of the United States of
America or any state thereof rated at least P-2 or its equivalent by Moody's
Investors Service, Inc. or at least A-2 or its equivalent by Standard & Poor's
Ratings Services, (iii) certificates of deposit issued by commercial banks
organized under the laws of the United States or of any political subdivision
thereof having a combined capital and surplus in excess of $100,000,000 which
banks or their holding companies have a rating of A or its equivalent by Moody's
Investors Service, Inc. or Standard & Poor's Ratings Services; PROVIDED,
HOWEVER, that the aggregate amount at any one time so invested in certificates
of deposit issued by any one bank shall not exceed 5% of such bank's capital and
surplus, (iv) U.S. dollar-denominated offshore certificates of deposit issued
by, or offshore time deposits with, any commercial bank described in clause
(iii) above or any subsidiary thereof and (v) repurchase agreements with any
financial institution having combined capital and surplus of at least
$100,000,000 with any of the obligations described in clauses (i) through (iv)
above as collateral; PROVIDED FURTHER that if all of the above investments are
unavailable, the entire amounts to be invested may be used to purchase federal
funds from an entity described in clause (iii) above.
Substitute Equipment means, with respect to any Trust, any Equipment of a
type specified in this Agreement and, at the election of the Company,
substituted prior to the applicable Cut-off Date, if any, pursuant to the terms
of this Agreement.
Transfer Date has the meaning assigned to that term or any of the terms
"Delivery Date", "Funding Date" or "Closing Date" in a Participation Agreement,
and in any event refers to any such date as it may be changed from time to time
in accordance with the terms of such Participation Agreement.
Trust means, with respect to the Certificates of any series, the trust
under this Agreement.
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Trustee means Bank One, National Association, or its successor in interest,
and any successor or other trustee appointed as provided herein.
Trust Indenture Act except as otherwise provided in Section 9.06, means,
with respect to any particular Trust, the United States Trust Indenture Act of
1939, as in force at the date as of which the related Trust Supplement was
executed.
Trust Property means, with respect to any Trust, (i) the Equipment Notes
held as the property of such Trust, all monies at any time paid thereon and all
monies due and to become due thereunder and (ii) funds from time to time
deposited in the related Escrow Account, the related Certificate Account and the
related Special Payments Account and any proceeds from the sale by the Trustee
pursuant to Article VI hereof of any such Equipment Note.
Trust Supplement means an agreement supplemental hereto pursuant to which
(i) a separate Trust is created for the benefit of the Holders of the
Certificates of a series, (ii) the issuance of the Certificates of such series
representing fractional undivided interests in such Trust is authorized and
(iii) the terms of the Certificates of such series are established.
Section 1.02 COMPLIANCE CERTIFICATES AND OPINIONS. Upon any application or
request by the Company, any Owner Trustee or any Indenture Trustee to the
Trustee to take any action under any provision of this Basic Agreement or, in
respect of the Certificates of any series, this Agreement, the Company, such
Owner Trustee or such Indenture Trustee, as the case may be, shall furnish to
the Trustee (i) an Officer's Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Basic Agreement
or this Agreement relating to the proposed action have been complied with and
(ii) an Opinion of Counsel stating that all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required by
any provision of this Basic Agreement or this Agreement relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Basic Agreement or, in respect of the Certificates
of any series, this Agreement (other than a certificate provided pursuant to
Section 8.04(d)) or any Trust Supplement shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions in this
Basic Agreement or this Agreement relating thereto;
(2) 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;
(3) a statement that, in the opinion of each such individual, 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
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(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03 FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters and any such Person may certify or give an opinion as to such
matters in one or several documents.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Basic Agreement or, in respect of the Certificates of any
series, this Agreement, they may, but need not, be consolidated and form one
instrument.
Section 1.04 DIRECTIONS OF CERTIFICATEHOLDERS.
(a) Any direction, consent, request, demand, authorization,
notice, waiver or other action provided by this Agreement in respect of the
Certificates of any series to be given or taken by Certificateholders (a
"Direction") may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Certificateholders in person or
by an agent or proxy duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, when it is
hereby expressly required pursuant to this Agreement, to the Company or any
Indenture Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Certificateholders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any
such agent or proxy shall be sufficient for any purpose of this Trust
Agreement and conclusive in favor of the Trustee, the Company and the
related Indenture Trustee, if made in the manner provided in this Section
1.04.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public
or other officer of any jurisdiction authorized to take acknowledgments of
deeds or administer oaths that the Person executing such instrument
acknowledged to him the execution thereof, or by an affidavit of a witness
to such execution sworn to before any such notary or such other officer,
and where such execution is by an officer of a corporation or association
or a member of a partnership, on behalf of such corporation, association or
partnership, such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same,
may also be proved in any other reasonable manner which the Trustee deems
sufficient.
(c) In determining whether the Certificateholders of the
requisite Fractional Undivided Interests of Certificates of any series
Outstanding have given any Direction
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under this Agreement, Certificates owned by the Company or any Affiliate
thereof shall be disregarded and deemed not to be Outstanding for purposes
of any such determination. In determining whether the Trustee shall be
protected in relying upon any such Direction, only Certificates which the
Trustee knows to be so owned shall be so disregarded. Notwithstanding the
foregoing, (i) if any such Person owns 100% of the Certificates of any
series Outstanding, such Certificates shall not be so disregarded, and (ii)
if any amount of Certificates of any series so owned by any such Person
have been pledged in good faith, such Certificates shall not be disregarded
if the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Certificates and that the pledgee is
not the Company or any Affiliate thereof.
(d) The Company may, at its option, by delivery of an Officer's
Certificate to the Trustee, set a record date to determine the
Certificateholders in respect of the Certificates of any series entitled to
give any Direction. Notwithstanding Section 316(c) of the Trust Indenture
Act, such record date shall be the record date specified in such Officer's
Certificate, which shall be a date not more than 30 days prior to the first
solicitation of Certificateholders of the applicable series in connection
therewith. If such a record date is fixed, such Direction may be given
before or after such record date, but only the Certificateholders of record
of the applicable series at the close of business on such record date shall
be deemed to be Certificateholders for the purposes of determining whether
Certificateholders of the requisite proportion of Outstanding Certificates
of such series have authorized or agreed or consented to such Direction,
and for that purpose the Outstanding Certificates shall be computed as of
such record date; provided, however, that no such Direction by the
Certificateholders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Agreement not
later than one year after such record date.
(e) Any Direction by the Holder of any Certificate shall bind
the Holder of every Certificate issued upon the transfer thereof or in
exchange therefor or in lieu thereof, whether or not notation of such
Direction is made upon such Certificate.
(f) Except as otherwise provided in Section 1.04(c),
Certificates of any series owned by or pledged to any Person shall have an
equal and proportionate benefit under the provisions of this Agreement,
without preference, priority or distinction as among all of the
Certificates of such series.
ARTICLE II
ORIGINAL ISSUANCE OF CERTIFICATES:
ACQUISITION OF TRUST PROPERTY
Section 2.01 AMOUNT UNLIMITED; ISSUABLE IN SERIES.
(a) The aggregate principal amount of Certificates which may be
authenticated and delivered under this Basic Agreement is unlimited. The
Certificates may be issued from time to time in one or more series and
shall be designated generally as the "Pass Through Certificates", with such
further designations added or incorporated
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in such title for the Certificates of each series as specified in the
related Trust Supplement. Each Certificate shall bear upon its face the
designation so selected for the series to which it belongs. All
Certificates of the same series shall be substantially identical except
that the Certificates of a series may differ as to denomination and as may
otherwise be provided in the Trust Supplement establishing the Certificates
of such series. Each series of Certificates issued pursuant to this
Agreement will evidence fractional undivided interests in the related Trust
and, except as may be contained in any Intercreditor Agreement, will have
no rights, benefits or interests in respect of any other Trust or the Trust
Property held therein. All Certificates of the same series shall be in all
respects equally and ratably entitled to the benefits of this Agreement
without preference, priority or distinction on account of the actual time
or times of authentication and delivery, all in accordance with the terms
and provisions of this Agreement.
(b) The following matters shall be established with respect to
the Certificates of each series issued hereunder by a Trust Supplement
executed and delivered by and among the Company and the Trustee:
(1) the formation of the Trust as to which the Certificates
of such series represent fractional undivided interests and its
designation (which designation shall distinguish such Trust from
each other Trust created under this Basic Agreement and a Trust
Supplement);
(2) the specific title of the Certificates of such series
(which title shall distinguish the Certificates of such series
from each other series of Certificates created under this Basic
Agreement and a Trust Supplement);
(3) any limit upon the aggregate principal amount the
Certificates of such series which may be authenticated and
delivered (which limit shall not pertain to Certificates
authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Certificates of the series
pursuant to Sections 3.03, 3.04 and 3.06);
(4) the Cut-off Date with respect to the Certificates of
such series;
(5) the Regular Distribution Dates applicable to the
Certificates of such series;
(6) the Special Distribution Dates applicable to the
Certificates of such series;
(7) if other than as provided in Section 7.12(b), the
Registrar or the Paying Agent for the Certificates of such
series, including any Co-Registrar or additional Paying Agent;
(8) if other than as provided in Section 3.02, the
denominations in which the Certificates of such series shall be
issuable;
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(9) if other than United States dollars, the currency or
currencies (including currency units) in which the Certificates
of such series shall be denominated;
(10) the specific form of the Certificates of such series
(including the interest rate applicable thereto) and whether or
not Certificates of such series are to be issued as Book-Entry
Certificates and, if such Certificates are to be Book-Entry
Certificates, the form of Letter of Representations, if any (or,
in the case of any Certificates denominated in a currency other
than United States dollars and if other than as provided in
Section 3.05, whether and the circumstances under which
beneficial owners of interests in such Certificates in permanent
global form may exchange such interests for Certificates of such
series and of like tenor of any authorized form and
denomination);
(11) a description of the Equipment Notes to be acquired and
held in the related Trust and of the related Equipment and Note
Documents;
(12) provisions with respect to the terms for which the
definitions set forth in Article I hereof or the terms of Section
11.01 hereof permit or require further specification in the
related Trust Supplement;
(13) any restrictions (including legends) in respect of
ERISA;
(14) whether there will be a deposit agreement or other
comparable arrangement prior to the delivery of one or more
Equipment and, if so, any terms appropriate thereto; and
(15) any other terms of the Certificates of such series
(which terms shall not be inconsistent with the provisions of the
Trust Indenture Act), including any terms of the Certificates of
such series which may be required or advisable under United
States laws or regulations or advisable in connection with the
marketing of Certificates of the series.
(c) At any time and from time to time after the execution and
delivery of this Basic Agreement and a Trust Supplement forming a Trust and
establishing the terms of Certificates of a series, Certificates of such
series shall be executed, authenticated and delivered by the Trustee to the
Person or Persons specified by the Company upon request of the Company and
upon satisfaction or waiver of any conditions precedent set forth in such
Trust Supplement.
Section 2.02 ACQUISITION OF EQUIPMENT NOTES.
(a) Unless otherwise specified in the related Trust Supplement,
on or prior to the Issuance Date of the Certificates of a series, the
Trustee shall execute and deliver the related Participation Agreements each
in the form delivered to the Trustee by the Company and shall, subject to
the respective terms thereof, perform its obligations under such
Participation Agreements. The Trustee shall issue and sell such
Certificates, in authorized denominations and in such Fractional Undivided
Interests, so as to result in
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the receipt of consideration in an amount equal to the aggregate purchase
price of the Equipment Notes contemplated to be purchased by the Trustee
under the related Participation Agreements and, concurrently therewith, the
Trustee shall purchase, pursuant to the terms and conditions of the
Participation Agreements such Equipment Notes at an aggregate purchase
price equal to the amount of such consideration so received. Except as
provided in Sections 3.03, 3.04 and 3.06 hereof, the Trustee shall not
execute, authenticate or deliver Certificates of such series in excess of
the aggregate amount specified in this paragraph. The provisions of this
Subsection (a) are subject to the provisions of Subsection (b) below.
(b) If on or prior to the Issuance Date with respect to a series
of Certificates the Company shall deliver to the Trustee a Postponement
Notice relating to one or more Postponed Notes, the Trustee shall postpone
the purchase of such Postponed Notes and shall deposit into an escrow
account (as to such Trust, the "Escrow Account") to be maintained as part
of the related Trust an amount equal to the purchase price of such
Postponed Notes (the "Escrowed Funds"). The portion of the Escrowed Funds
so deposited with respect to any particular Postponed Notes shall be
invested by the Trustee at the written direction and risk of, and for the
benefit of, the Company in Specified Investments (i) maturing no later than
any scheduled Transfer Date relating to such Postponed Notes or (ii) if no
such Transfer Date has been scheduled, maturing on the next Business Day,
or (iii) if the Company has given notice to the Trustee that such Postponed
Notes will not be issued, maturing on the next applicable Special
Distribution Date, if such investments are reasonably available for
purchase. The Trustee shall make withdrawals from the Escrow Account only
as provided in this Agreement. Upon request of the Company on one or more
occasions and the satisfaction or waiver of the closing conditions
specified in the applicable Note Purchase Agreements on or prior to the
related Cut-off Date, the Trustee shall purchase the applicable Postponed
Notes with the Escrowed Funds withdrawn from the Escrow Account. The
purchase price shall equal the principal amount of such Postponed Notes.
The Trustee shall hold all Specified Investments until the maturity thereof
and will not sell or otherwise transfer Specified Investments. If Specified
Investments held in an Escrow Account mature prior to any applicable Transfer
Date, any proceeds received on the maturity of such Specified Investments (other
than any earnings thereon) shall be reinvested by the Trustee at the written
direction and risk of, and for the benefit of, the Responsible Party in
Specified Investments maturing as provided in the preceding paragraph.
Unless an Indenture Event of Default or an Event of Default has occurred
and is continuing, any earnings on Specified Investments received from time to
time by the Trustee shall be promptly distributed to the Responsible Party. The
Company shall pay, or cause the Responsible Party to pay, to the Trustee for
deposit to the relevant Escrow Account an amount equal to any losses on such
Specified Investments as incurred. On the Initial Regular Distribution Date in
respect of the Certificates of any series, the Company will pay, or cause the
Responsible Party to pay (in immediately available funds), to the Trustee an
amount equal to the interest that would have accrued on any Postponed Notes with
respect to such Certificates, if any, purchased after the Issuance Date if such
Postponed Notes had been purchased on the
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Issuance Date, from the Issuance Date to, but not including, the date of the
purchase of such Postponed Notes by the Trustee.
If, in respect of the Certificates of any series, the Company notifies the
Trustee prior to the Cut-off Date that any Postponed Notes will not be issued on
or prior to the Cut-off Date for any reason, on the next Special Distribution
Date for such Certificates occurring not less than 15 days following the date of
such notice, (i) the Company shall pay, or cause the Responsible Party to pay,
to the Trustee for deposit in the related Special Payments Account, in
immediately available funds, an amount equal to the interest that would have
accrued on the Postponed Notes designated in such notice at a rate equal to the
interest rate applicable to such Certificates from the Issuance Date to, but not
including, such Special Distribution Date and (ii) the Trustee shall transfer an
amount equal to that amount of Escrowed Funds that would have been used to
purchase the Postponed Notes designated in such notice and the amount paid by
the Company or the Responsible Party pursuant to the immediately preceding
clause (i) to the related Special Payments Account for distribution as a Special
Payment in accordance with the provisions hereof.
If, on such Cut-off Date, an amount equal to less than all of the Escrowed
Funds (other than Escrowed Funds referred to in the immediately preceding
paragraph) has been used to purchase Postponed Notes, on the next such Special
Distribution Date occurring not less than 15 days following such Cut-off Date
(i) the Company shall pay, or cause the Responsible Party to pay, to the Trustee
for deposit in such Special Payments Account, in immediately available funds, an
amount equal to the interest that would have accrued on such Postponed Notes
contemplated to be purchased with such unused Escrowed Funds (other than
Escrowed Funds referred to in the immediately preceding paragraph) but not so
purchased at a rate equal to the interest rate applicable to such Certificates
from the Issuance Date to, but not including, such Special Distribution Date and
(ii) the Trustee shall transfer such unused Escrowed Funds and the amount paid
by the Company or the Responsible Party pursuant to the immediately preceding
clause (i) to such Special Payments Account for distribution as a Special
Payment in accordance with the provisions hereof.
Section 2.03 ACCEPTANCE BY TRUSTEE. The Trustee, upon the execution and
delivery of a Trust Supplement creating a Trust and establishing a series of
Certificates, shall acknowledge its acceptance of all right, title and interest
in and to the Trust Property to be acquired pursuant to Section 2.02 hereof and
the related Participation Agreements and shall declare that the Trustee holds
and will hold such right, title and interest for the benefit of all then present
and future Certificateholders of such series, upon the trusts herein and in such
Trust Supplement set forth. By the acceptance of each Certificate of such series
issued to it under this Agreement, each initial Holder of such series as grantor
of such Trust shall thereby join in the creation and declaration of such Trust.
Section 2.04 LIMITATION OF POWERS. Each Trust shall be constituted solely
for the purpose of making the investment in the Equipment Notes provided for in
the related Trust Supplement, and, except as set forth herein, the Trustee shall
not be authorized or empowered to acquire any other investments or engage in any
other activities and, in particular, the Trustee shall not be authorized or
empowered to do anything that would cause such Trust to fail to qualify as a
"grantor trust" for federal income tax purposes (including, as subject to this
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restriction, acquiring any Equipment (as defined in the respective Indentures),
by bidding such Equipment Notes or otherwise, or taking any action with respect
to any such Equipment once acquired).
ARTICLE III
THE CERTIFICATES
Section 3.01 FORM, DENOMINATION AND EXECUTION OF CERTIFICATES. The
Certificates of each series shall be issued in fully registered form without
coupons and shall be substantially in the form attached hereto as Exhibit A,
with such omissions, variations and insertions as are permitted by this
Agreement, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange on which such Certificates may be
listed or to conform to any usage in respect thereof, or as may, consistently
herewith, be determined by the Trustee or the officers executing such
Certificates, as evidenced by the Trustee's or respective officers' execution of
the Certificates.
Except as provided in Section 3.05, the definitive Certificates of such
series shall be typed, printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any other manner permitted by
the rules of any securities exchange on which the Certificates may be listed,
all as determined by the officers executing such Certificates, as evidenced by
their execution of such Certificates.
Except as otherwise provided in the related Trust Supplement, the
Certificates of each series shall be issued in minimum denominations of $1,000
or integral multiples thereof except that one Certificate of such series may be
issued in a different denomination.
The Certificates of such series shall be executed on behalf of the Trustee
by manual or facsimile signature of a Responsible Officer of the Trustee.
Certificates of any series bearing the manual or facsimile signature of an
individual who was, at the time when such signature was affixed, authorized to
sign on behalf of the Trustee shall be valid and binding obligations of the
Trustee, notwithstanding that such individual has ceased to be so authorized
prior to the authentication and delivery of such Certificates or did not hold
such office at the date of such Certificates.
Section 3.02 AUTHENTICATION OF CERTIFICATES.
(a) On the Issuance Date, the Trustee shall duly execute,
authenticate and deliver Certificates of each series in authorized
denominations equalling in the aggregate the aggregate principal amount of
the Equipment Notes that may be purchased by the Trustee pursuant to the
related Participation Agreements, and evidencing the entire ownership of
the related Trust. Thereafter, the Trustee shall duly execute, authenticate
and deliver the Certificates of such series as herein provided.
(b) No Certificate of any series shall be entitled to any
benefit under this Agreement, or be valid for any purpose, unless there
appears on such Certificate a certificate of authentication substantially
in the form set forth in Exhibit A hereto
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executed by the Trustee by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates of any series shall be dated the date
of their authentication.
Section 3.03 TEMPORARY CERTIFICATES. Until definitive Certificates are
ready for delivery, the Trustee shall execute, authenticate and deliver
temporary Certificates of each series. Temporary Certificates of each series
shall be substantially in the form of definitive Certificates of such series but
may have insertions, substitutions, omissions and other variations determined to
be appropriate by the officers executing the temporary Certificates of such
series, as evidenced by their execution of such temporary Certificates. If
temporary Certificates of any series are issued, the Trustee will cause
definitive Certificates of such series to be prepared without unreasonable
delay. After the preparation of definitive Certificates of such series, the
temporary Certificates shall be exchangeable for definitive Certificates upon
surrender of such temporary Certificates at the office or agency of the Trustee
designated for such purpose pursuant to Section 7.12, without charge to the
Certificateholder. Upon surrender for cancellation of any one or more temporary
Certificates, the Trustee shall execute, authenticate and deliver in exchange
therefor a like face amount of definitive Certificates of like series, in
authorized denominations and of a like Fractional Undivided Interest. Until so
exchanged, such temporary Certificates shall be entitled to the same benefits
under this Agreement as definitive Certificates.
Section 3.04 TRANSFER AND EXCHANGE. The Trustee shall cause to be kept at
the office or agency to be maintained by it in accordance with the provisions of
Section 7.12 a register (the "Register") for each series of Certificates in
which, subject to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates of such series and of
transfers and exchanges of such Certificates as herein provided. The Trustee
shall initially be the registrar (the "Registrar") for the purpose of
registering such Certificates of each series and transfers and exchanges of such
Certificates as herein provided.
All Certificates issued upon any registration of transfer or exchange of
Certificates of any series shall be valid obligations of the applicable Trust,
evidencing the same interest therein, and entitled to the same benefits under
this Agreement, as the Certificates of such series surrendered upon such
registration of transfer or exchange.
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office or such other office or agency, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of like series, in authorized
denominations of a like aggregate Fractional Undivided Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of like series, in authorized denominations and of a like
aggregate Fractional Undivided Interest, upon surrender of the Certificates to
be exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange, the Trustee shall execute, authenticate and deliver
the Certificates that the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of transfer
or exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Trustee
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and the Registrar duly executed by the Certificateholder thereof or its attorney
duly authorized in writing.
No service charge shall be made to a Certificateholder for any registration
of transfer or exchange of Certificates, but the Trustee shall require payment
of a sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer or exchange of Certificates. All Certificates
surrendered for registration of transfer or exchange shall be canceled and
subsequently destroyed by the Trustee.
Section 3.05 BOOK-ENTRY AND DEFINITIVE CERTIFICATES.
(a) The Certificates of any series may be issued in the form of
one or more typewritten Certificates representing the Book-Entry
Certificates of such series, to be delivered to The Depository Trust
Company, the initial Clearing Agency, by, or on behalf of, the Company. In
such case, the Certificates of such series delivered to The Depository
Trust Company shall initially be registered on the Register in the name of
CEDE & Co., the nominee of the initial Clearing Agency, and no Certificate
Owner will receive a definitive certificate representing such Certificate
Owner's interest in the Certificates of such series, except as provided
above and in Subsection (d) below. As to the Certificates of any series,
unless and until definitive, fully registered Certificates (the "Definitive
Certificates") have been issued pursuant to Subsection (d) below:
(i) the provisions of this Section 3.05 shall be in full force
and effect;
(ii) the Company, the Paying Agent, the Registrar and the Trustee
may deal with the Clearing Agency Participants for all purposes (including
the making of distributions on the Certificates) as the authorized
representatives of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.05
conflict with any other provisions of this Agreement (other than the
provisions of any Trust Supplement expressly amending this Section 3.05 as
permitted by this Basic Agreement), the provisions of this Section 3.05
shall control;
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Certificate Owners and the Clearing Agency
Participants; and until Definitive Certificates are issued pursuant to
Subsection (d) below, the Clearing Agency will make book-entry transfers
among the Clearing Agency Participants and receive and transmit
distributions of principal, interest and premium, if any, on the
Certificates to such Clearing Agency Participants; and
(v) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Certificateholders of such
series holding Certificates of such series evidencing a specified
percentage of the Fractional Undivided Interests in the related Trust, the
Clearing Agency shall be deemed to represent such percentage only to the
extent that it has received instructions to such effect from Clearing
Agency Participants owning or representing, respectively, such required
percentage of the
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beneficial interest in Certificates of such series and has delivered such
instructions to the Trustee. The Trustee shall have no obligation to
determine whether the Clearing Agency has in fact received any such
instructions.
(b) Whenever notice or other communication to the
Certificateholders of such series is required under this Agreement, unless
and until Definitive Certificates shall have been issued pursuant to
Subsection (d) below, the Trustee shall give all such notices and
communications specified herein to be given to Certificateholders of such
series to the Clearing Agency.
(c) Unless and until Definitive Certificates of a series are
issued pursuant to Subsection (d) below, on the Record Date prior to each
applicable Regular Distribution Date and Special Distribution Date, the
Trustee will request from the Clearing Agency a securities position listing
setting forth the names of all Clearing Agency Participants reflected on
the Clearing Agency's books as holding interests in the Certificates on
such Record Date.
(d) If with respect to the Certificates of any series (i) the
Company advises the Trustee in writing that the Clearing Agency is no
longer willing or able to discharge properly its responsibilities and the
Trustee or the Company is unable to locate a qualified successor, (ii) the
Company, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after
the occurrence of an Event of Default, Certificate Owners of Book-Entry
Certificates of such series evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in the related Trust, by
Act of such Certificate Owners delivered to the Company and the Trustee,
advise the Company, the Trustee and the Clearing Agency through the
Clearing Agency Participants in writing that the continuation of a
book-entry system through the Clearing Agency Participants is no longer in
the best interests of the Certificate Owners of such series, then the
Trustee shall notify all Certificate Owners of such series, through the
Clearing Agency, of the occurrence of any such event and of the
availability of Definitive Certificates. Upon surrender to the Trustee of
all the Certificates of such series held by the Clearing Agency,
accompanied by registration instructions from the Clearing Agency
Participants for registration of Definitive Certificates in the names of
Certificate Owners of such series, the Trustee shall issue and deliver the
Definitive Certificates of such series in accordance with the instructions
of the Clearing Agency. Neither the Company, the Registrar, the Paying
Agent nor the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in
relying on, such registration instructions. Upon the issuance of Definitive
Certificates of such series, the Trustee shall recognize the Person in
whose name the Definitive Certificates are registered in the Register as
Certificateholders hereunder. Neither the Company nor the Trustee shall be
liable if the Trustee or the Company is unable to locate a qualified
successor Clearing Agency.
(e) Except as otherwise provided in the related Trust
Supplement, the Trustee shall enter into the applicable Letter of
Representations with respect to such series of Certificates and fulfill its
responsibilities thereunder.
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(f) The provisions of this Section 3.05 may be made inapplicable to any
series or may be amended with respect to any series in the related Trust
Supplement.
Section 3.06 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (a)
any mutilated Certificate is surrendered to the Registrar, or the Registrar
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (b) there is delivered to the Registrar and the Trustee such
security, indemnity or bond, as may be required by them to save each of them
harmless, then, in the absence of notice to the Registrar or the Trustee that
such destroyed, lost or stolen Certificate has been acquired by a protected
purchaser, and PROVIDED, HOWEVER, that the requirements of Section 8-405 of the
Uniform Commercial Code in effect in any applicable jurisdiction are met, the
Trustee shall execute, authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Certificate, a new Certificate or
Certificates of like series, in authorized denominations and of like Fractional
Undivided Interest and bearing a number not contemporaneously outstanding.
In connection with the issuance of any new Certificate under this
Section 3.06, the Trustee shall require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee and the
Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section 3.06 shall
constitute conclusive evidence of the appropriate Fractional Undivided Interest
in the related Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
The provisions of this Section 3.06 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.07 PERSONS DEEMED OWNERS. Prior to due presentment of a
Certificate for registration of transfer, the Trustee, the Registrar and any
Paying Agent may treat the Person in whose name any Certificate is registered
(as of the day of determination) as the owner of such Certificate for the
purpose of receiving distributions pursuant to Article IV and for all other
purposes whatsoever, and none of the Trustee, the Registrar or any Paying Agent
shall be affected by any notice to the contrary.
Section 3.08 CANCELLATION. All Certificates surrendered for payment or
transfer or exchange shall, if surrendered to the Trustee or any agent of the
Trustee other than the Registrar, be delivered to the Registrar for cancellation
and shall promptly be canceled by it. No Certificates shall be authenticated in
lieu of or in exchange for any Certificates canceled as provided in this Section
3.08, except as expressly permitted by this Agreement. All canceled Certificates
held by the Registrar shall be destroyed and a certification of their
destruction delivered to the Trustee.
Section 3.09 LIMITATION OF LIABILITY FOR PAYMENTS. All payments and
distributions made to Certificateholders of any series in respect of the
Certificates of such series shall be made only from the Trust Property of the
related Trust and only to the extent that the Trustee shall have sufficient
income or proceeds from such Trust Property to make such
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payments in accordance with the terms of Article IV of this Agreement. Each
Certificateholder, by its acceptance of a Certificate, agrees that it will look
solely to the income and proceeds from the Trust Property of the related Trust
for any payment or distribution due to such Certificateholder pursuant to the
terms of this Agreement and that it will not have any recourse to the Company,
the Trustee, the Indenture Trustees, the Owner Trustees or the Owner
Participants.
The Company is a party to this Agreement solely for purposes of meeting
the requirements of the Trust Indenture Act, and therefore shall not have any
right, obligation or liability hereunder (except as otherwise expressly provided
herein).
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.01 CERTIFICATE ACCOUNT AND SPECIAL PAYMENTS ACCOUNT.
(a) The Trustee shall establish and maintain on behalf of the
Certificateholders of each series a Certificate Account as one or more
non-interest-bearing accounts. The Trustee shall hold such Certificate
Account in trust for the benefit of the Certificateholders of such
series, and shall make or permit withdrawals therefrom only as provided
in this Agreement. On each day when a Scheduled Payment is made to the
Trustee (under an Intercreditor Agreement, if applicable) with respect
to the Certificates of such series, the Trustee, upon receipt thereof,
shall immediately deposit the aggregate amount of such Scheduled
Payment in such Certificate Account.
(b) The Trustee shall establish and maintain on behalf of the
Certificateholders of each series a Special Payments Account as one or
more accounts, which shall be non-interest bearing except as provided
in Section 4.04. The Trustee shall hold the Special Payments Account in
trust for the benefit of the Certificateholders of such series and
shall make or permit withdrawals therefrom only as provided in this
Agreement. On each day when one or more Special are made to the Trustee
(under an Intercreditor Agreement, if applicable) with respect to the
Certificates of such series, the Trustee, upon receipt thereof, shall
immediately deposit the aggregate amount of such Special Payments in
such Special Payments Account.
(c) The Trustee shall present to the related Indenture Trustee of
each Equipment Note such Equipment Note on the date of its stated final
maturity or, in the case of any Equipment Note which is to be redeemed
in whole pursuant to the related Indenture, on the applicable
redemption date under such Indenture.
Section 4.02 DISTRIBUTIONS FROM CERTIFICATE ACCOUNT AND SPECIAL
PAYMENTS ACCOUNT.
(a) On each Regular Distribution Date with respect to a series of
Certificates or as soon thereafter as the Trustee has confirmed receipt
of the payment of all or any part of the Scheduled Payments due on the
Equipment Notes held in the related Trust on such date, the Trustee
shall distribute out of the applicable Certificate Account the entire
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amount deposited therein pursuant to Section 4.01(a). There shall be
so distributed to each Certificateholder of record of such series on
the Record Date with respect to such Regular Distribution Date (other
than as provided in Section 11.01 concerning the final distribution)
by check mailed to such Certificateholder, at the address appearing in
the Register, such Certificateholder's pro rata share (based on the
Fractional Undivided Interest in the Trust held by such
Certificateholder) of the total amount in the applicable Certificate
Account, except that, with respect to Certificates registered on the
Record Date in the name of a Clearing Agency (or its nominee), such
distribution shall be made by wire transfer in immediately available
funds to the account designated by such Clearing Agency (or such
nominee).
(b) On each Special Distribution Date with respect to any Special
Payment with respect to a series of Certificates or as soon thereafter
as the Trustee has confirmed receipt of any Special Payments due on the
Equipment Notes held in the related Trust or realized upon the sale of
such Equipment Notes, the Trustee shall distribute out of the
applicable Special Payments Account the entire amount of such
applicable Special Payment deposited therein pursuant to Section
4.01(b). There shall be so distributed to each Certificateholder of
record of such series on the Record Date with respect to such Special
Distribution Date (other than as provided in Section 11.01 concerning
the final distribution) by check mailed to such Certificateholder, at
the address appearing in the Register, such Certificateholder's pro
rata share (based on the Fractional Undivided Interest in the related
Trust held by such Certificateholder) of the total amount in the
applicable Special Payments Account on account of such Special Payment,
except that, with respect to Certificates registered on the Record Date
in the name of a Clearing Agency (or its nominee), such distribution
shall be made by wire transfer in immediately available funds to the
account designated by such Clearing Agency (or such nominee).
(c) The Trustee shall, at the expense of the Company, cause notice
of each Special Payment with respect to a series of Certificates to be
mailed to each Certificateholder of such series at his address as it
appears in the Register. In the event of redemption or purchase of
Equipment Notes held in the related Trust, such notice shall be mailed
not less than 15 days prior to the Special Distribution Date for the
Special Payment resulting from such redemption or purchase, which
Special Distribution Date shall be the date of such redemption or
purchase. In the event that the Trustee receives a notice from the
Company that Postponed Notes will not be purchased by the Trustee
pursuant to Section 2.02, such notice of Special Payment shall be
mailed as soon as practicable after receipt of such notice from the
Company and shall state the Special Distribution Date for such Special
Payment, which shall occur 15 days after the date of such notice of
Special Payment or (if such 15th day is not practicable) as soon as
practicable thereafter. In the event that any Special Payment is to be
made pursuant to the last paragraph of Section 2.02(b) hereof, there
shall be mailed on the Cut-off Date (or, if such mailing on the Cutoff
Date is not practicable, as soon as practicable after the Cut-off
Date), notice of such Special Payment stating the Special Distribution
Date for such Special Payment, which shall occur 15 days after the date
of such notice of such Special Payment (or, if such 15th day is not
practicable, as soon as practicable thereafter). In the case of any
other Special Payments, such notice shall be mailed as soon as
practicable after the Trustee has confirmed that it has received funds
for such Special Payment,
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stating the Special Distribution Date for such Special Payment which
shall occur not less than 15 days after the date of such notice and as
soon as practicable thereafter. Notices mailed by the Trustee shall
set forth:
(i) the Special Distribution Date and the Record Date therefor
(except as otherwise provided in Section 11.01),
(ii) the amount of the Special Payment (taking into account any
payment to be made by the Company pursuant to Section 2.02(b)) for each
$1,000 face amount Certificate and the amount thereof constituting
principal, premium, if any, and interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a
Regular Distribution Date for the Certificates of such series, the
total amount to be received on such date for each $1,000 face amount
Certificate.
If the amount of premium, if any, payable upon the redemption or purchase of an
Equipment Note has not been calculated at the time that the Trustee mails notice
of a Special Payment, it shall be sufficient if the notice sets forth the other
amounts to be distributed and states that any premium received will also be
distributed.
If any redemption of the Equipment Notes held in any Trust is canceled,
the Trustee, as soon as possible after learning thereof, shall cause notice
thereof to be mailed to each Certificateholder of the related series at its
address as it appears on the Register.
Section 4.03 STATEMENTS TO CERTIFICATEHOLDERS.
(a) On each Regular Distribution Date and Special Distribution
Date, the Trustee will include with each distribution of a Scheduled
Payment or Special Payment, as the case may be, to Certificateholders
of the related series a statement setting forth the information
provided below. Such statement shall set forth (per $1,000 aggregate
principal amount of Certificate as to (i) and (ii) below) the following
information:
(i) the amount of such distribution hereunder allocable to
principal and the amount allocable to premium, if any;
(ii) the amount of such distribution hereunder allocable to
interest; and
(iii) the Pool Balance and the Pool Factor of the related Trust.
With respect to the Certificates registered in the name of a
Clearing Agency or its nominee, on the Record Date prior to each
Regular Distribution Date and Special Distribution Date, the Trustee
will request from the Clearing Agency a securities position listing
setting forth the names of all the Clearing Agency Participants
reflected on the Clearing Agency's books as holding interests in the
Certificates on such Record Date. On each Distribution Date, the
applicable Trustee will mail to each such Clearing Agency Participant
the statement described above and will make available additional copies
as
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requested by such Clearing Agency Participant for forwarding to
holders of interests in the Certificates.
(b) Within a reasonable period of time after the end of each
calendar year but not later than the latest date permitted by law, the
Trustee shall furnish to each Person who at any time during such
calendar year was a Certificateholder of record a statement containing
the sum of the amounts determined pursuant to clauses (a)(i) and
(a)(ii) above with respect to the related Trust for such calendar year
or, in the event such Person was a Certificateholder of record during a
portion of such calendar year, for the applicable portion of such year,
and such other items as are readily available to the Trustee and which
a Certificateholder shall reasonably request as necessary for the
purpose of such Certificateholder's preparation of its federal income
tax returns. With respect to Certificates registered in the name of a
Clearing Agency or its nominee, such statement and such other items
shall be prepared on the basis of information supplied to the Trustee
by the Clearing Agency Participants and shall be delivered by the
Trustee to such Clearing Agency Participants to be available for
forwarding by such Clearing Agency Participants to the holders of
interests in the Certificates in the manner described in Section
4.03(a).
Section 4.04 INVESTMENT OF SPECIAL PAYMENT MONEYS. Any money received
by the Trustee pursuant to Section 4.01(b) representing a Special Payment which
is not distributed on the date received shall, to the extent practicable, be
invested in Permitted Investments by the Trustee pending distribution of such
Special Payment pursuant to 4.02. Any investment made pursuant to this Section
4.04 shall be in such Permitted Investments having maturities not later than the
date that such moneys are required to be used to make the payment required under
Section 4.02 on the applicable Special Distribution Date and the Trustee shall
hold any such Permitted Investments until maturity. The Trustee shall have no
liability with respect to any investment made pursuant to this Section 4.04,
other than by reason of the willful misconduct or negligence of the Trustee. All
income and earnings from such investments shall be distributed on such Special
Distribution Date as part of such Special Payment.
ARTICLE V
THE COMPANY
Section 5.01 MAINTENANCE OF CORPORATE EXISTENCE. The Company, at its
own cost and expense, will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
franchises, except as otherwise specifically permitted in Section 5.02;
PROVIDED, HOWEVER, that the Company shall not be required to preserve any right
or franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
Section 5.02 CONSOLIDATION, MERGER, ETC. The Company shall not
consolidate with or merge into any other Person or convey, transfer or lease
substantially all of its assets as an entirety to any Person unless:
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(a) the Person formed by such consolidation or into which the
Company is merged or the Person that acquires by conveyance, transfer
or lease substantially all of the assets of the Company as an entirety
shall be organized and validly existing under the laws of the United
States of America or any state thereof or the District of Columbia; and
(b) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance, transfer
or lease substantially all of the assets of the Company as an entirety
shall execute and deliver to the Trustee applicable to the Certificates
of each series a duly authorized, valid, binding and enforceable
agreement in form and substance reasonably satisfactory to the Trustee
containing an assumption by such successor corporation or Person of the
due and punctual performance and observance of each covenant and
condition of the Note Documents and of this Agreement applicable to the
Certificates of each series to be performed or observed by the Company.
The Company shall have delivered to the Trustee an Officer's Certificate of the
Company and an Opinion or Opinions of Counsel of the Company each stating that
such consolidation, merger, conveyance, transfer or lease and the assumption
agreement mentioned in clause (b) above comply with this Section 5.02 and that
all conditions precedent herein provided for relating to such transaction have
been complied with.
Upon any consolidation or merger, or any conveyance, transfer or lease
of substantially all of the assets of the Company as an entirety in accordance
with this Section 5.02, the successor or Person 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 Agreement applicable to the Certificates of
each series with the same effect as if such successor or Person had been named
as the Company herein. No such conveyance, transfer or lease of substantially
all of the assets of the Company as an entirety shall have the effect of
releasing any successor or Person which shall have become such in the manner
prescribed in this Section 5.02 from its liability in respect of this Agreement
and any Note Document applicable to the Certificates of such series to which it
is a party.
ARTICLE VI
DEFAULT
Section 6.01 EVENTS OF DEFAULT; EXERCISE OF REMEDIES. Upon the
occurrence and during the continuation of any Indenture Event of Default under
any Indenture, the Trustee may direct the exercise of remedies or take other
action as provided in the relevant Indenture to the extent that it may do so as
the holder of the Equipment Notes issued under such Indenture and held in the
related Trust.
Section 6.02 INCIDENTS OF SALE OF EQUIPMENT NOTES. Upon any sale of all
or any part of the Equipment Notes held in the Trust made either under the power
of sale given under this Agreement or otherwise for the enforcement of this
Agreement, the following shall be applicable:
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(a) CERTIFICATEHOLDERS AND TRUSTEE MAY PURCHASE EQUIPMENT NOTES.
Any Certificateholder, the Trustee in its individual or any other
capacity or any other Person may bid for and purchase any of the
Equipment Notes held in the Trust, and upon compliance with the terms
of sale, may hold, retain, possess and dispose of such Equipment Notes
in their own absolute right without further accountability.
(b) RECEIPT OF TRUSTEE SHALL DISCHARGE PURCHASER. The receipt of
the Trustee 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.
(c) APPLICATION OF MONEYS RECEIVED UPON SALE. Any moneys collected
by the Trustee upon any sale made either under the power of sale given
by this Agreement or otherwise for the enforcement of this Agreement
shall be applied as provided in Section 4.02.
Section 6.03 JUDICIAL PROCEEDINGS INSTITUTED BY TRUSTEE; TRUSTEE MAY
BRING SUIT. If there shall be a failure to make payment of the principal of,
premium, if any, or interest on any Equipment Note held in the related Trust, or
if there shall be any failure to pay Rent (as defined in the relevant Lease)
under any Lease when due and payable, then the Trustee, in its own name and as
trustee of an express trust, as holder of such Equipment Notes, to the extent
permitted by and in accordance with the terms of any related Note Documents
(subject to rights of the applicable Owner Trustee or Owner Participant to cure
any such failure to pay principal of, premium, if any, or interest on any
Equipment Note or to pay Rent under any Lease in accordance with the applicable
Indenture), shall be entitled and empowered to institute any suits, actions or
proceedings at law, in equity or otherwise, for the collection of the sums so
due and unpaid on such Equipment Notes or under such Lease and may prosecute any
such claim or proceeding to judgment or final decree with respect to the whole
amount of any such sums so due and unpaid.
Section 6.04 CONTROL BY CERTIFICATEHOLDERS. Subject to Section 6.03,
the Certificateholders holding Certificates of a series evidencing Fractional
Undivided Interests aggregating not less than a majority in interest in the
related Trust shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee with respect
to such Trust or exercising any trust or power conferred on the Trustee under
this Agreement, including any right of the Trustee as holder of the Equipment
Notes held in the related Trust; PROVIDED, HOWEVER, that
(a) such Direction shall not in the opinion of the Trustee be in
conflict with any rule of law or with this Agreement and would not
involve the Trustee in personal liability or expense,
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(b) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Certificateholders of such series
not taking part in such Direction, and
(c) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such Direction.
Section 6.05 WAIVER OF PAST DEFAULTS. The Certificateholders holding
Certificates of a series evidencing Fractional Undivided Interests aggregating
not less than a majority in interest in the Trust may on behalf of all of the
Certificateholders waive any past Event of Default hereunder and its
consequences, except a default:
(a) in the deposit of any Scheduled Payment or Special Payment
under Section 4.01 or in the distribution of any payment under Section
4.02 on the Certificates of a series, or
(b) in the payment of the principal of (premium, if any) or
interest on the Equipment Notes held in the related Trust, or
(c) in respect of a covenant or provision hereof which under
Article IX hereof cannot be modified or amended without the consent of
each Certificateholder holding an Outstanding Certificate of a series
affected thereby.
Upon any such waiver, such default shall cease to exist with respect to the
Certificates of such series and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose and any direction given by the
Trustee on behalf of the Certificateholders of such series to the relevant
Indenture Trustee shall be annulled with respect thereto; but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon. Upon any such waiver, the Trustee shall vote the
Equipment Notes issued under the relevant Indenture to waive the corresponding
Indenture Event of Default.
Section 6.06 RIGHT OF CERTIFICATEHOLDERS TO RECEIVE PAYMENTS NOT TO BE
IMPAIRED. Anything in this Agreement to the contrary notwithstanding, including,
without limitation, Section 6.07 hereof, the right of any Certificateholder to
receive distributions of payments required pursuant to Section 4.02 hereof on
the applicable Certificates when due, or to institute suit for the enforcement
of any such payment on or after the applicable Regular Distribution Date or
Special Distribution Date, shall not be impaired or affected without the consent
of such Certificateholder.
Section 6.07 CERTIFICATEHOLDERS MAY NOT BRING SUIT EXCEPT UNDER CERTAIN
CONDITIONS. A Certificateholder of any series shall not have the right to
institute any suit, action or proceeding at law or in equity or otherwise with
respect to this Agreement, for the appointment of a receiver or for the
enforcement of any other remedy under this Agreement, unless:
(a) such Certificateholder previously shall have given written
notice to the Trustee of a continuing Event of Default;
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(b) Certificateholders holding Certificates of such series
evidencing Fractional Undivided Interests aggregating not less than 25%
of the related Trust shall have requested the Trustee in writing to
institute such action, suit or proceeding and shall have offered to the
Trustee indemnity as provided in Section 7.03(e);
(c) the Trustee shall have refused or neglected to institute any
such action, suit or proceeding for 60 days after receipt of such
notice, request and offer of indemnity; and
(d) no direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by
Certificateholders holding Certificates of such series evidencing
Fractional Undivided Interests aggregating not less than a majority in
interest in the related Trust.
It is understood and intended that no one or more of the
Certificateholders of any series shall have any right in any manner whatsoever
hereunder or under the related Trust Supplement or under the Certificates of
such series to (i) surrender, impair, waive, affect, disturb or prejudice any
property in the Trust Property of the related Trust, or the lien of any related
Indenture on any property subject thereto, or the rights of the
Certificateholders of such series or the holders of the related Equipment Notes,
(ii) obtain or seek to obtain priority over or preference with respect to any
other such Certificateholder of such series or (iii) enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all the Certificateholders of such series subject to the
provisions of this Agreement.
Section 6.08 REMEDIES CUMULATIVE. Every remedy given hereunder to the
Trustee or to any of the Certificateholders of any series shall not be exclusive
of any other remedy or remedies, and every such remedy shall be cumulative and
in addition to every other remedy given hereunder or now or hereafter given by
statute, law, equity or otherwise.
Section 6.09 UNDERTAKING FOR COSTS. In any suit for the enforcement of
any right or remedy under this Agreement, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, a court may require any
party litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; PROVIDED, HOWEVER, that neither
this Section 6.09 nor the Trust Indenture Act shall be deemed to authorize any
court to require such an undertaking or to make such an assessment in any suit
instituted by the Company.
ARTICLE VII
THE TRUSTEE
Section 7.01 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default in
respect of a Trust, the Trustee undertakes to perform such duties in
respect of such Trust as are specifically set forth in this Agreement,
and no implied covenants or obligations shall be read into this
Agreement against the Trustee.
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(b) In case an Event of Default in respect of a Trust has occurred
and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Agreement in respect of such Trust, 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.
(c) No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a)of this Section 7.01; and
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee, unless
it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts.
(d) Whether or not herein expressly so provided, every provision
of this Agreement relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the
provisions of this
Section 7.02 NOTICE OF DEFAULTS. As promptly as practicable after, and
in any event within 90 days after, the occurrence of any default (as such term
is defined below) hereunder known to the Trustee, the Trustee shall transmit by
mail to the Company, any related Owner Trustees, any related Owner Participants,
the related Indenture Trustees and the Certificateholders holding Certificates
of the related series in accordance with Section 313(c) of the Trust Indenture
Act, notice of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; PROVIDED, HOWEVER, that, except in the case of
a default in the payment of the principal, premium, if any, or interest on any
Equipment Note, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee or a trust committee
of directors and/or Responsible Officers of the Trustee in good faith shall
determine that the withholding of such notice is in the interests of the
Certificateholders of the related series. For the purpose of this Section 7.02
in respect of any Trust, the term "Default" means any event that is, or after
notice or lapse of time or both would become, an Event of Default in respect of
that Trust.
Section 7.03 CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of
Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Request;
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(c) whenever in the administration of this Agreement, the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officer's Certificate of the
Company, any related Owner Trustee or any related Indenture Trustee;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement at the Direction of
any of the Certificateholders pursuant to this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the cost, expenses and liabilities which
might be incurred by it in compliance with such Direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document;
(g) the Trustee may execute any of the trusts or powers under this
Agreement or perform any duties under this Agreement either directly or
by or through agents or attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it under this Agreement;
(h) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
Direction of the Certificateholders holding Certificates of any series
evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in the related Trust relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Agreement; and
(i) the Trustee shall not be required to expend or risk its own
funds in the performance of any of its duties under this Agreement, or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk is not reasonably assured to it.
Section 7.04 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF CERTIFICATES.
The recitals contained herein and in the Certificates of each series, except the
certificates of authentication, shall not be taken as the statements of the
Trustee, and the Trustee assumes no responsibility for their correctness.
Subject to Section 7.15, the Trustee makes no representations as to the validity
or sufficiency of this Basic Agreement, any Equipment Notes, the Certificates of
any series, any Trust Supplement or any Note Documents, except that the Trustee
hereby represents and warrants that this Basic Agreement has been, and each
Trust Supplement, each Certificate and each Participation Agreement of, or
relating to, each series will
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be executed and delivered by one of its officers who is duly authorized to
execute and deliver such document on its behalf.
Section 7.05 MAY HOLD CERTIFICATES. The Trustee, any Paying Agent,
Registrar or any of their Affiliates or any other agent, in their respective
individual or any other capacity, may become the owner or pledgee of
Certificates and, subject to Sections 310(b) and 311 of the Trust Indenture Act,
if applicable, may otherwise deal with the Company, any Owner Trustees or the
Indenture Trustees with the same rights it would have if it were not Trustee,
Paying Agent, Registrar or such other agent.
Section 7.06 MONEY HELD IN TRUST. Money held by the Trustee or the
Paying Agent in trust under this Agreement need not be segregated from other
funds except to the extent required herein or by law and neither the Trustee nor
the Paying Agent shall have any liability for interest upon any such moneys
except as provided for herein.
Section 7.07 COMPENSATION AND REIMBURSEMENT. The Company agrees:
(a) to pay, or cause to be paid, to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust); and
(b) except as otherwise expressly provided herein or in any Trust
Supplement, to reimburse, or cause to be reimbursed, the Trustee upon
its request for all reasonable out-of-pocket expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Basic Agreement and any Trust Supplement (including
the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence, willful misconduct or bad
faith or as may be incurred due to the Trustee's breach of its
representations and warranties set forth in Section 7.15; and
(c) to indemnify, or cause to be indemnified, the Trustee with
respect to the Certificates of any series, pursuant to the particular
sections of the Participation Agreements specified in the related Trust
Supplement.
The Trustee shall be entitled to reimbursement from, and shall have a
lien prior to the Certificates of each series upon, all property and funds held
or collected by the Trustee in its capacity as Trustee with respect to such
series or the related Trust for any tax incurred without negligence, bad faith
or willful misconduct, on its part, arising out of or in connection with the
acceptance or administration of such Trust (other than any tax attributable to
the Trustee's compensation for serving as such), including any costs and
expenses incurred in contesting the imposition of any such tax. The Trustee
shall notify the Company of any claim for any tax for which it may seek
reimbursement. If the Trustee reimburses itself from the Trust Property of such
Trust for any such tax, it will mail a brief report within 30 days setting forth
the amount of such tax and the circumstances thereof to all Certificateholders
of such series as their names and addresses appear in the Register.
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Section 7.08 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. Each Trust shall
at all times have a Trustee which shall be eligible to act as a trustee under
Section 310(a) of the Trust Indenture Act and shall have a combined capital and
surplus of at least $75,000,000 (or a combined capital and surplus in excess of
$5,000,000 and the obligations of which, whether now in existence or hereafter
incurred, are fully and unconditionally guaranteed by a corporation organized
and doing business under the laws of the United States, any state or territory
thereof or of the District of Columbia and having a combined capital and surplus
of at least $75,000,000). If such corporation publishes reports of conditions at
least annually, pursuant to law or to the requirements of federal, state,
territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section 7.08 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of conditions so published.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.08 to act as Trustee of any
Trust, the Trustee shall resign immediately as Trustee of such Trust in the
manner and with the effect specified in Section 7.09.
Section 7.09 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee of any Trust pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee
under Section 7.10.
(b) The Trustee may resign at any time as Trustee of any or all
Trusts by giving prior written notice thereof to the Company, the
Authorized Agents, the related Owner Trustees and the related Indenture
Trustees. If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Company, the related Owner Trustees and
the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Direction of the
Certificateholders of the related series holding Certificates
evidencing Fractional Undivided Interests aggregating not less than a
majority in interest in such Trust delivered to the Trustee and to the
Company, the related Owner Trustees and the related Indenture Trustees.
(d) If at any time in respect of any Trust:
(1) the Trustee shall fail to comply with Section 310 of the
Trust Indenture Act, if applicable, after written request therefor
by the Company or by any Certificateholder who has been a bona
fide holder of Certificates for at least six months; or
(2) the Trustee shall cease to be eligible under Section 7.08
and shall fail to resign after written request therefor by the
Company or by any such Certificateholder; or
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(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or
of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation; then, in any case, (i) the Company may remove the
Trustee or (ii) any Certificateholder of the related series who
has been a bona fide holder of Certificates for at least six
months may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee of such
Trust.
(e) If a Responsible Officer of the Trustee shall obtain actual
knowledge of an Avoidable Tax (as defined below) in respect of any
Trust which has been or is likely to be asserted, the Trustee shall
promptly notify the Company and shall, within 30 days of such
notification, resign as Trustee of such Trust hereunder unless within
such 30-day period the Trustee shall have received notice that the
Company has agreed to pay such tax. The Company shall promptly appoint
a successor Trustee of such Trust in a jurisdiction where there are no
Avoidable Taxes. As used herein, an "Avoidable Tax" in respect of such
Trust means a state or local tax: (i) upon (w) such Trust, (x) such
Trust Property, (y) Certificateholders of such Trust or (z) the Trustee
for which the Trustee is entitled to seek reimbursement from the Trust
Property of such Trust, and (ii) which would be avoided if the Trustee
were located in another state, or jurisdiction within a state, within
the United States of America. A tax shall not be an Avoidable Tax in
respect of any Trust if the Company or any Owner Trustee shall agree to
pay, and shall pay, such tax.
(f) If the Trustee shall resign, be removed or become incapable of
acting as Trustee of any Trust or if a vacancy shall occur in the
office of the Trustee of any Trust for any cause, the Company shall
promptly appoint a successor Trustee of such Trust. If, within one year
after such resignation, removal or incapability, or other occurrence of
such vacancy, a successor Trustee of such Trust shall be appointed by
Direction of the Certificateholders of the related series holding
Certificates of such series evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in such Trust
delivered to the Company, the related Owner Trustees, the related
Indenture Trustee and the retiring Trustee, then the successor Trustee
of such Trust so appointed shall, with the approval of the Company of
such appointment, which approval shall not be unreasonably withheld,
forthwith upon its acceptance of such appointment, become the successor
Trustee of such Trust and supersede the successor Trustee of such Trust
appointed as provided above. If no successor Trustee shall have been so
appointed as provided above and accepted appointment in the manner
hereinafter provided, the resigning Trustee or any Certificateholder
who has been a bona fide holder of Certificates of the related series
for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee of such Trust.
(g) The successor Trustee of a Trust shall give notice of the
resignation and removal of the Trustee and appointment of the successor
Trustee by mailing written notice of such event by first-class mail,
postage prepaid, to the Certificateholders of the
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related series as their names and addresses appear in the register.
Each notice shall include the name of such successor Trustee and the
address of its Corporate Trust Office.
Section 7.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. Every successor
Trustee appointed hereunder shall execute and deliver to the Company and to the
retiring Trustee with respect to any or all Trusts an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
with respect to such Trusts shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall execute and
deliver an instrument transferring to such successor Trustee all such rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all Trust Property held by such retiring
Trustee in respect of such Trusts hereunder, subject nevertheless to its lien,
if any, provided for in Section 7.07. Upon request of any such successor
Trustee, the Company, the retiring Trustee and such successor Trustee shall
execute and deliver any and all instruments containing such provisions as shall
be necessary or desirable to transfer and confirm to, and for more fully and
certainly vesting in, such successor Trustee all such rights, powers and trusts.
If a successor Trustee is appointed with respect to one or more (but
not all) Trusts, the Company, the predecessor Trustee and each successor Trustee
with respect to any Trust shall execute and deliver a supplemental agreement
hereto which shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
predecessor Trustee with respect to the Trusts as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee,
and shall add to or change any of the provisions of this Basic Agreement and the
applicable Trust Supplements 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 agreement shall
constitute such Trustees as co-Trustees of the same Trust and that each such
Trustee shall be Trustee of separate Trusts.
No institution shall accept its appointment as a Trustee hereunder
unless at the time of such acceptance such institution shall be qualified and
eligible under this Article VII.
Section 7.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder;
PROVIDED, HOWEVER, that such corporation shall be otherwise qualified and
eligible under this Article VII, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any
Certificates shall have been executed or authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion or consolidation
to such authenticating Trustee may adopt such execution or authentication and
deliver the Certificates so executed or authenticated with the same effect as if
such successor Trustee had itself executed or authenticated such Certificates.
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Section 7.12 MAINTENANCE OF AGENCIES.
(a) With respect to each series of Certificates, there shall at
all times be maintained an office or agency in the location set forth
in Section 12.04 where Certificates of such series may be presented or
surrendered for registration of transfer or for exchange, and for
payment thereof, and where notices and demands, to or upon the Trustee
in respect of such Certificates or this Agreement may be served;
PROVIDED, HOWEVER, that, if it shall be necessary that the Trustee
maintain an office or agency in another location with respect to the
Certificates of any series (e.g., the Certificates of such series shall
be represented by Definitive Certificates and shall be listed on a
national securities exchange), the Trustee will make all reasonable
efforts to establish such an office or agency. Written notice of the
location of each such other office or agency and of any change of
location thereof shall be given by the Trustee to the Company, any
Owner Trustees, the Indenture Trustees (in the case of any Owner
Trustee or Indenture Trustee, at its address specified in the Note
Documents or such other address as may be notified to the Trustee) and
the Certificateholders of such series. In the event that no such office
or agency shall be maintained or no such notice of location or of
change of location shall be given, presentations and demands may be
made and notices may be served at the Corporate Trust Office of the
Trustee.
(b) There shall at all times be a Registrar and a Paying Agent
hereunder with respect to the Certificates of each series Each such
Authorized Agent shall be a bank or trust company, shall be a
corporation organized and doing business under the laws of the United
States or any state, with a combined capital and surplus of at least
$75,000,000, or a corporation having a combined capital and surplus in
excess of $5,000,000, the obligations of which are guaranteed by a
corporation organized and doing business under the laws of the United
States or any state, with a combined capital and surplus of at least
$75,000,000, and shall be authorized under such laws to exercise
corporate trust powers, subject to supervision by federal or state
authorities. The Trustee shall initially be the Paying Agent and, as
provided in Section 3.04, Registrar hereunder with respect to the
Certificates of each series. Each Registrar shall furnish to the
Trustee, at stated intervals of not more than six months, and at such
other times as the Trustee may request in writing, a copy of the
Register maintained by such Registrar.
(c) Any corporation into which any Authorized Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
Authorized Agent shall be a party, or any corporation succeeding to the
corporate trust business of any Authorized Agent, shall be the
successor of such Authorized Agent, if such successor corporation is
otherwise eligible under this Section 7.12, without the execution or
filing of any paper or any further act on the part of the parties
hereto or such Authorized Agent or such successor corporation.
(d) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Trustee, the Company, any related Owner
Trustees and the related Indenture Trustees. The Company may, and at
the request of the Trustee shall, at any time terminate the agency of
any Authorized Agent by giving written notice of
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termination to such Authorized Agent and to the Trustee. Upon the
resignation or termination of an Authorized Agent or in case at any
time any such Authorized Agent shall cease to be eligible under this
Section 7.12 (when, in either case, no other Authorized Agent
performing the functions of such Authorized Agent shall have been
appointed), the Company shall promptly appoint one or more qualified
successor Authorized Agents, reasonably satisfactory to the Trustee, to
perform the functions of the Authorized Agent which has resigned or
whose agency has been terminated or who shall have ceased to be
eligible under this Section 7.12. The Company shall give written notice
of any such appointment made by it to the Trustee, any related Owner
Trustees and the related Indenture Trustees; and in each case the
Trustee shall mail notice of such appointment to all Certificateholders
of the related series as their names and addresses appear on the
Register for such series.
(e) The Company agrees to pay, or cause to be paid, from time to
time to each Authorized Agent reasonable compensation for its services
and to reimburse it for its reasonable expenses.
Section 7.13 MONEY FOR CERTIFICATE PAYMENTS TO BE HELD IN TRUST. All
moneys deposited with any Paying Agent for the purpose of any payment on
Certificates shall be deposited and held in trust for the benefit of the
Certificateholders entitled to such payment, subject to the provisions of this
Section 7.13. Moneys so deposited and held in trust shall constitute a separate
trust fund for the benefit of the Certificateholders with respect to which such
money was deposited.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Agreement or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Section 7.14 REGISTRATION OF EQUIPMENT NOTES IN TRUSTEE'S NAME. The
Trustee agrees that all Equipment Notes to be purchased by any Trust and
Permitted Investments, if any, shall be issued in the name of the Trustee as
trustee for the applicable Trust or its nominee and held by the Trustee in trust
for the benefit of the Certificateholders of such series, or, if not so held,
the Trustee or its nominee shall be reflected as the owner of such Equipment
Notes or Permitted Investments, as the case may be, in the register of the
issuer of such Equipment Notes or Permitted Investments, as the case may be.
Section 7.15 REPRESENTATIONS AND WARRANTIES OF TRUSTEE. The Trustee
hereby represents and warrants that:
(a) the Trustee is a national banking association organized and
validly existing in good standing under the laws of the United States
of America;
(b) the Trustee has full power, authority and legal right to
execute, deliver and perform this Agreement and any Participation
Agreement and has taken all necessary
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action to authorize the execution, delivery and performance by it
of this Agreement and any Participation Agreement;
(c) the execution, delivery and performance by the Trustee of this
Agreement and any Participation Agreement (i) will not violate any
provision of any United States federal law or the law of the state of
the United States where it is located governing the banking and trust
powers of the Trustee or any order, writ, judgment, or decree of any
court, arbitrator or governmental authority applicable to the Trustee
or any of its assets, (ii) will not violate any provision of the
articles of association or by-laws of the Trustee, and (iii) will not
violate any provision of, or constitute, with or without notice or
lapse of time, a default under, or result in the creation or imposition
of any lien on any properties included in the Trust Property pursuant
to the provisions of any mortgage, indenture, contract, agreement or
other undertaking to which it is a party, which violation, default or
lien could reasonably be expected to have an adverse effect on the
Trustee's performance or ability to perform its duties hereunder or
thereunder or on the transactions contemplated herein or therein;
(d) the execution, delivery and performance by the Trustee of this
Agreement and any Participation Agreement will not require the
authorization, consent, or approval of, the giving of notice to, the
filing or registration with, or the taking of any other action in
respect of, any governmental authority or agency of the United States
or the state of the United States where it is located regulating the
banking and corporate trust activities of the Trustee; and
(e) this Agreement has been and any Participation Agreement will
be duly executed and delivered by the Trustee and constitutes or will
constitute the legal, valid and binding agreements of the Trustee,
enforceable against it in accordance with their respective terms;
PROVIDED, HOWEVER, that enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and (ii) general principles
of equity.
Section 7.16 WITHHOLDING TAXES; INFORMATION REPORTING. As to the
Certificates of any series, the Trustee, as trustee of the related grantor trust
created by this Agreement, shall exclude and withhold from each distribution of
principal, premium, if any, and interest and other amounts due under this
Agreement or under the Certificates of such series any and all withholding taxes
applicable thereto as required by law. The Trustee agrees to act as such
withholding agent and, in connection therewith, whenever any present or future
taxes or similar charges are required to be withheld with respect to any amounts
payable in respect of the Certificates of such series, to withhold such amounts
and timely pay the same to the appropriate authority in the name of and on
behalf of the Certificateholders of such series, that it will file any necessary
withholding tax returns or statements when due, and that, as promptly as
possible after the payment thereof, it will deliver to each such
Certificateholder of such series appropriate documentation showing the payment
thereof, together with such additional documentary evidence as such
Certificateholders may reasonably request from time to time. The Trustee agrees
to file any other information reports as it may be required to file under United
States law.
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Section 7.17 TRUSTEE'S LIENS. The Trustee in its individual capacity
agrees that it will, in respect of each Trust created by this Agreement, at its
own cost and expense promptly take any action as may be necessary to duly
discharge and satisfy in full any mortgage, pledge, lien, charge, encumbrance,
security interest or claim ("Trustee's Liens") on or with respect to the Trust
Property of such Trust which is attributable to the Trustee either (i) in its
individual capacity and which is unrelated to the transactions contemplated by
this Agreement or the related Note Documents or (ii) as Trustee hereunder or in
its individual capacity and which arises out of acts or omissions which are not
contemplated by this Agreement.
Section 7.18 PREFERENTIAL COLLECTION OF CLAIMS. The Trustee shall
comply with Section 311(a) of the Trust Indenture Act, excluding any creditor
relationship listed in Section 311(b) of the Trust Indenture Act. If the Trustee
shall resign or be removed as Trustee, it shall be subject to Section 311(a) of
the Trust Indenture Act to the extent provided therein.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01 THE COMPANY TO FURNISH TRUSTEE WITH NAMES AND ADDRESSES OF
CERTIFICATEHOLDERS. The Company will furnish to the Trustee within 15 days after
each Record Date with respect to a Scheduled Payment, and at such other times as
the Trustee may request in writing within 30 days after receipt by the Company
of any such request, a list, in such form as the Trustee may reasonably require,
of all information in the possession or control of the Company as to the names
and addresses of the Certificateholders of each series, in each case as of a
date not more than 15 days prior to the time such list is furnished; PROVIDED,
HOWEVER, that so long as the Trustee is the sole Registrar for such series, no
such list need be furnished; and PROVIDED FURTHER, HOWEVER, that no such list
need be furnished for so long as a copy of the Register is being furnished to
the Trustee pursuant to Section 7.12.
Section 8.02 PRESERVATION OF INFORMATION; COMMUNICATIONS TO
CERTIFICATEHOLDERS. The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Certificateholders of each
series contained in the most recent list furnished to the Trustee as provided in
Section 7.12 or Section 8.01, as the case may be, and the names and addresses of
Certificateholders of each series received by the Trustee in its capacity as
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 7.12 or Section 8.01, as the case may be, upon receipt of a
new list so furnished.
Section 8.03 REPORTS BY TRUSTEE. Within 60 days after May 15 of each
year commencing with the first full year following the issuance of any series of
Certificates, the Trustee shall transmit to the Certificateholders of such
series, as provided in Section 313(c) of the Trust Indenture Act, a brief report
dated as of such May 15, if required by Section 313(a) of the Trust Indenture
Act.
Section 8.04 REPORTS BY THE COMPANY. The Company shall:
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(a) file with the Trustee, within 30 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 is required to file
with the SEC pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934, as amended; or, 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 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 in such rules and regulations;
(b) file with the Trustee and the SEC, in accordance with the
rules and regulations prescribed by the SEC, such additional
information, documents and reports with respect to compliance by the
Company with the conditions and covenants of the Company provided for
in this Agreement, as may be required by such rules and regulations,
including, in the case of annual reports, if required by such rules and
regulations, certificates or opinions of independent public
accountants, conforming to the requirements of Section 1.02;
(c) transmit to all Certificateholders, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act such
summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this
Section 8.04 as may be required by rules and regulations prescribed by
the SEC; and
(d) 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 knowledge of the
Company's compliance with all conditions and covenants under this
Agreement (it being understood that for purposes of this paragraph (d),
such compliance shall be determined without regard to any period of
grace or requirement of notice provided under this Agreement).
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01 SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF
CERTIFICATEHOLDERS. Without the consent of the Certificateholders, the Company
may (but will not be required to), and the Trustee (subject to Section 9.03)
shall, at the Company's request, at any time and from time to time, enter into
one or more agreements supplemental hereto in form satisfactory to the Trustee,
for any of the following purposes:
(a) to provide for the formation of a Trust, the issuance of a
series of Certificates and other matters contemplated by Section
2.01(b); or
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<PAGE> 46
(b) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein contained; or
(c) to add to the covenants of the Company for the benefit of the
Certificateholders of any series, or to surrender any right or power
conferred upon the Company in this Agreement; or
(d) to correct or supplement any provision in this Agreement which
may be defective or inconsistent with any other provision herein or
therein or to cure any ambiguity or to modify any other provision with
respect to matters or questions arising under this Agreement; PROVIDED,
HOWEVER, that any such action shall not materially adversely affect the
interests of the Certificateholders of any series; or to correct any
mistake in this Agreement; or
(e) to comply with any requirement of the SEC, any applicable law,
rules or regulations of any exchange or quotation system on which the
Certificates of any series are listed or of any regulatory body; or
(f) to modify, eliminate or add to the provisions of this
Agreement to such extent as shall be necessary to continue the
qualification of this Agreement (including any supplemental agreement)
under the Trust Indenture Act or under any similar Federal statute
hereafter enacted, and to add to this Agreement such other provisions
as may be expressly permitted by the Trust Indenture Act, excluding,
however, the provisions referred to in Section 316(a)(2) of the Trust
Indenture Act as in effect at the date as of which this Basic Agreement
was executed or any corresponding provision in any similar Federal
statute hereafter enacted; or
(g) to evidence and provide for the acceptance of appointment
under this Agreement by a successor Trustee with respect to one or more
Trusts and to add to or change any of the provisions of this Agreement
as shall be necessary to provide for or facilitate the administration
of the Trust, pursuant to the requirements of Section 7.10; or
(h) to provide the information required under Section 7.12 and
Section 12.04 as to the Trustee; or
(i) to make any other amendments or modifications hereto;
PROVIDED, HOWEVER, that such amendments or modifications shall apply to
Certificates of any series to be thereafter issued; PROVIDED, HOWEVER,
that no such supplemental agreement shall adversely affect the status
of any Trust as a grantor trust under Subpart E, Part I of Subchapter J
of Chapter 1 of Subtitle A of the Internal Revenue Code of 1986, as
amended, for U.S. federal income tax purposes.
Section 9.02 SUPPLEMENTAL AGREEMENTS WITH CONSENT OF
CERTIFICATEHOLDERS. With respect to each separate Trust and the series of
Certificates relating thereto, with the consent of the Certificateholders
holding Certificates of such series (including consents obtained in connection
with a tender offer or exchange offer for the Certificates) evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in such Trust, by Direction of said Certificateholders delivered to the Company
and the
40
<PAGE> 47
Trustee, the Company may (with the consent of the Owner Trustees, if any,
relating to such Certificates, which consent shall not be unreasonably
withheld), but shall not be obligated to, and the Trustee (subject to Section
9.03) shall, enter into an agreement or agreements supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement to the extent applicable to such
Certificateholders or of modifying in any manner the rights and obligations of
such Certificateholders under this Agreement; PROVIDED, HOWEVER, that no such
agreement shall, without the consent of the Certificateholder of each
Outstanding Certificate affected thereby:
(a) reduce in any manner the amount of, or delay the timing of,
any receipt by the Trustee of payments on the Equipment Notes held in
such Trust or distributions that are required to be made herein on any
Certificate of such series, or change any date of payment on any
Certificate of such series, or change the place of payment where, or
the coin or currency in which, any Certificate of such series is
payable, or impair the right to institute suit for the enforcement of
any such payment or distribution on or after the Regular Distribution
Date or Special Distribution Date applicable thereto; or
(b) permit the disposition of any Equipment Note included in the
Trust Property of such Trust except as permitted by this Agreement, or
otherwise deprive such Certificateholder of the benefit of the
ownership of the Equipment Notes in such Trust; or
(c) reduce the specified percentage of the aggregate Fractional
Undivided Interests of such Trust that is required for any such
supplemental agreement, or reduce such specified percentage required
for any waiver (of compliance with certain provisions of this Agreement
or certain defaults hereunder and their consequences) provided for in
this Agreement; or
(d) modify any of the provisions of this Section 9.02 or Section
6.05, except to increase any such percentage or to provide that certain
other provisions of this Agreement cannot be modified or waived without
the consent of the Certificateholder of each Certificate of such series
affected thereby; or
(e) adversely affect the status of any Trust as a grantor trust
under Subpart E, Part I of Subchapter J of Chapter 1 of Subtitle A of
the Internal Revenue Code of 1986, as amended, for U.S. federal income
tax purposes.
It shall not be necessary for any Direction of such Certificateholders
under this Section 9.02 to approve the particular form of any proposed
supplemental agreement, but it shall be sufficient if such Direction shall
approve the substance thereof.
Section 9.03 DOCUMENTS AFFECTING IMMUNITY OR INDEMNITY. If in the
opinion of the Trustee any document required to be executed by it pursuant to
the terms of Section 9.01 or 9.02 affects any interest, right, duty, immunity or
indemnity in favor of the Trustee under this Basic Agreement or any Trust
Supplement, the Trustee may in its discretion decline to execute such document.
Section 9.04 EXECUTION OF SUPPLEMENTAL AGREEMENTS. In executing, or
accepting the additional trusts created by, any supplemental agreement permitted
by this Article
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<PAGE> 48
or the modifications thereby of the trusts created by this Agreement, the
Trustee shall be entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
agreement is authorized or permitted by this Agreement.
Section 9.05 EFFECT OF SUPPLEMENTAL AGREEMENTS. Upon the execution of
any agreement supplemental to this Agreement under this Article, this Basic
Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Basic Agreement for all purposes; and every
Certificateholder of each series theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby to the extent applicable to such
series.
Section 9.06 CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
agreement executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
Section 9.07 REFERENCE IN CERTIFICATES TO SUPPLEMENTAL AGREEMENTS.
Certificates of each series authenticated and delivered after the execution of
any supplemental agreement applicable to such series pursuant to this Article
may bear a notation in form approved by the Trustee as to any matter provided
for in such supplemental agreement; and, in such case, suitable notation may be
made upon Outstanding Certificates of such series after proper presentation and
demand.
ARTICLE X
AMENDMENTS TO INDENTURE AND NOTE DOCUMENTS
Section 10.01 AMENDMENTS AND SUPPLEMENTS TO INDENTURE AND OTHER NOTE
DOCUMENTS. In the event that the Trustee, as holder of any Equipment Notes (or
as a prospective purchaser of any Postponed Notes) in trust for the benefit of
the Certificateholders of any series receives a request for a consent to any
amendment, modification, waiver or supplement under any Indenture, other Note
Document or any other related document, the Trustee shall forthwith send a
notice of such proposed amendment, modification, waiver or supplement to each
Certificateholder of such series registered on the Register as of the date of
such notice. The Trustee shall request from the Certificateholders of such
series a Direction as to (a) whether or not to take or refrain from taking any
action which a holder of (or, with respect to Postponed Notes, a prospective
purchaser of) such Equipment Note has the option to direct, (b) whether or not
to give or execute any waivers, consents, amendments, modifications or
supplements as a holder of (or, with respect to Postponed Notes, a prospective
purchaser of) such Equipment Note and (c) how to vote any Equipment Note (or,
with respect to a Postponed Note, its commitment to acquire such Postponed Note)
if a vote has been called for with respect thereto. Provided such a request for
Certificateholder Direction shall have been made, in directing any action or
casting any vote or giving any consent as the holder of any Equipment Note the
Trustee shall vote for or give consent to any such action with respect to such
Equipment Note (or Postponed Note) in the same proportion as that of (A) the
aggregate face amounts of all Certificates actually voted in favor of or for
giving consent to such action by such Direction of Certificateholders to (B) the
aggregate face amount of all Outstanding. For purposes of the immediately
preceding sentence, a Certificate shall have been "actually voted" if the Holder
of
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<PAGE> 49
such Certificate has delivered to the Trustee an instrument evidencing such
Holder's consent to such Direction prior to one Business Day before the Trustee
directs such action or casts such vote or gives such consent. Notwithstanding
the foregoing, but subject to Section 6.04, the Trustee may, with respect to the
Certificates of any series, in its own discretion and at its own direction,
consent and notify the relevant Indenture Trustee of such consent to any
amendment, modification, waiver or supplement under any related Indenture or any
other related Note Document if an Event of Default hereunder shall have occurred
and be continuing or if such amendment, modification, waiver or supplement will
not materially adversely affect the interests of the Certificateholders of such
series.
ARTICLE XI
TERMINATION OF TRUSTS
Section 11.01 TERMINATION OF THE TRUSTS. In respect of each Trust
created by the Basic Agreement as supplemented by a related Trust Supplement,
the respective obligations and responsibilities of the Company and the Trustee
with respect to such Trust shall terminate upon the distribution to all Holders
of Certificates of the series of such Trust and the Trustee of all amounts
required to be distributed to them pursuant to this Agreement and the
disposition of all property held as part of the Trust Property of such Trust;
PROVIDED, HOWEVER, that in no event shall such Trust continue beyond the final
expiration date determined as provided in such Trust Supplement.
Notice of any termination of a Trust, specifying the applicable Regular
Distribution Date (or applicable Special Distribution Date, as the case may be)
upon which the Certificateholders of any series may surrender their Certificates
to the Trustee for payment of the final distribution and cancellation, shall be
mailed promptly by the Trustee to Certificateholders of such series not earlier
than the minimum number of days and not later than the maximum number of days
specified therefor in the related Trust Supplement preceding such final
distribution specifying (A) the Regular Distribution Date (or Special
Distribution Date, as the case may be) upon which the proposed final payment of
the Certificates of such series will be made upon presentation and surrender of
Certificates of such series at the office or agency of the Trustee therein
specified, (B) the amount of any such proposed final payment, and (C) that the
Record Date otherwise applicable to such Regular Distribution Date (or Special
Distribution Date, as the case may be) is not applicable, payments being made
only upon presentation and surrender of the Certificates of such series at the
office or agency of the Trustee therein specified. The Trustee shall give such
notice to the Registrar at the time such notice is given to Certificateholders
of such series. Upon presentation and surrender of the Certificates of such
series in accordance with such notice, the Trustee shall cause to be distributed
to Certificateholders of such series amounts distributable on such Regular
Distribution Date (or Special Distribution Date, as the case may be) pursuant to
Section 4.02.
In the event that all of the Certificateholders of such series shall
not surrender their Certificates for cancellation within six months after the
date specified in the above-mentioned written notice, the Trustee shall give a
second written notice to the remaining Certificateholders of such series to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. No additional interest shall accrue on the Certificates of
such series after
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<PAGE> 50
any Regular Distribution Date (or Special Distribution Date, as the case may be)
of such series, as specified in the first written notice. In the event that any
money held by the Trustee for the payment of distributions on the Certificates
of such series shall remain unclaimed for two years (or such lesser time as the
Trustee shall be satisfied, after 60 days' notice from the Company, is one month
prior to the escheat period provided under applicable law) after the final
distribution date with respect thereto, the Trustee shall pay to each Indenture
Trustee the appropriate amount of money relating to such Indenture Trustee and
shall give written notice thereof to the related Owner Trustees and the Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS. The death or
incapacity of any Certificateholder of any series shall not operate to terminate
this Agreement or the related Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations, and liabilities of the parties
hereto or any of them
Section 12.02 LIABILITIES OF CERTIFICATEHOLDERS. Neither the existence
of the Trust nor any provision in this Agreement is intended to or shall limit
the liability the Certificateholders would otherwise incur if the
Certificateholders owned Trust Property as co-owners, or incurred any
obligations of the Trust, directly rather than through the Trust.
Section 12.03 NOTICES.
(a) Unless otherwise specifically provided herein or in the
applicable Trust Supplement with respect to any Trust, all notices
required under the terms and provisions of this Basic Agreement or such
Trust Supplement with respect to such Trust shall be in English and in
writing, and any such notice may be given by United States mail,
courier service or telecopy, and any such notice shall be effective
when delivered or received or, if mailed, three days after deposit in
the United States mail with proper postage for ordinary mail prepaid if
to the Company:
Union Tank Car Company
225 West Washington Street
19th Floor
Chicago, Illinois 60606
Attention: Robert W. Webb, Secretary
Facsimile: (312) 845-8769 (Legal)
Telephone: (312) 372-9500
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<PAGE> 51
if to the Trustee:
Bank One, National Association
One North State Street
Ninth Floor
Chicago, Illinois 60602
Attention: Janice Ott Rotunno
Facsimile: (312) 407-1708
Telephone: (312) 407-1682
(b) The Company or the Trustee, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Certificateholders of any
series shall be mailed by first-class mail to the addresses for
Certificateholders of such series shown on the Register kept by the
Registrar and to addresses filed with the Trustee for Certificate
Owners of such series. Failure so to mail a notice or communication or
any defect in such notice or communication shall not affect its
sufficiency with respect to other Certificateholders or Certificate
Owners of such series.
(d) If a notice or communication is mailed in the manner provided
above within the time prescribed, it is conclusively presumed to have
been duly given, whether or not the addressee receives it.
(e) If Company mails a notice or communication to the
Certificateholders of such series, it shall mail a copy to the Trustee
and to each Paying Agent for such series at the same time.
(f) Notwithstanding the foregoing, all communications or notices
to the Trustee shall be deemed to be given only when received by a
Responsible Officer of the Trustee.
(g) The Trustee shall promptly furnish the Company with a copy of
any demand, notice or written communication received by the Trustee
hereunder from any Certificateholder, Owner Trustee or Indenture
Trustee.
Section 12.04 GOVERNING LAW. THIS BASIC AGREEMENT, TOGETHER WITH ALL
TRUST SUPPLEMENTS AND CERTIFICATES, SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.05 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions, or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or the related Trust,
or of the Certificates of such series or the rights of the Certificateholders
thereof.
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<PAGE> 52
Section 12.06 TRUST INDENTURE ACT CONTROLS. This Agreement is subject
to the provisions of the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions. If any provision of this Agreement
limits, qualifies or conflicts with another provision which is required to be
included in this Agreement by the Trust Indenture Act, the required provision
shall control.
Section 12.07 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 12.08 SUCCESSORS AND ASSIGNS. All covenants, agreements,
representations and warranties in this Agreement by the Trustee and the Company
shall bind and, to the extent permitted hereby, shall inure to the benefit of
and be enforceable by their respective successors and assigns, whether so
expressed or not.
Section 12.09 BENEFITS OF AGREEMENT. Nothing in this Agreement or in
the Certificates of any series, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the
Certificateholders of each series, any benefit or any legal or equitable right,
remedy or claim under this Agreement.
Section 12.10 LEGAL HOLIDAYS. In any case where any Regular
Distribution Date or Special Distribution Date relating to any Certificate of
any series shall not be a Business Day with respect to such series, then
(notwithstanding any other provision of this Agreement) payment need not be made
on such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on such Regular Distribution Date or Special
Distribution Date.
Section 12.11 COUNTERPARTS. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
Section 12.12 COMMUNICATION BY CERTIFICATEHOLDERS WITH OTHER
CERTIFICATEHOLDERS. Certificateholders of any series may communicate with other
Certificateholders of such series with respect to their rights under this Basic
Agreement, the related Trust Supplement or the Certificates of such series
pursuant to Section 312(b) of the Trust Indenture Act. The Company, the Trustee
and any and all other persons benefitted by this Agreement shall have the
protection afforded by Section 312(c) of the Trust Indenture Act.
Section 12.13 INTENTION OF PARTIES. The parties hereto intend that each
Trust be classified for U.S. federal income tax purposes as a grantor trust
under Subpart E, Part I of Subchapter J of the Internal Revenue Code of 1986, as
amended, and not as a trust or association taxable as a corporation or as a
partnership. The powers granted and obligations undertaken pursuant to this
Agreement shall be so construed so as to further such intent.
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<PAGE> 53
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first written above.
UNION TANK CAR COMPANY
By:
--------------------------------------------
Name:
Title:
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------------------
Name:
Title:
47
<PAGE> 54
EXHIBIT A
FORM OF CERTIFICATE
This legend to appear on Book-Entry Certificates to be deposited with The
Depository Trust Company.
The certificates represent fractional undivided interests in the
Trust and the Trust Property, and have no rights, benefits or interest in
respect of any other separate trust established pursuant to the terms of the
Basic Agreement for any other series of certificates issued pursuant thereto.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate 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 as the registered owner
hereof, Cede & Co., has an interest herein.
UNION TANK CAR COMPANY 2000 PASS THROUGH TRUST
2000 Pass Through Certificate, Series 200__-_____
Final Regular Distribution Date: __________, ____
evidencing a fractional undivided interest in a trust, the property of
which includes certain equipment notes each secured by equipment leased
to Union Tank Car Company.
Certificate No.
------------
$_________ Fractional Undivided Interest representing ._____% of the Trust per
$1,000 face amount
THIS CERTIFIES THAT ___________________, for value received, is
the registered owner of a $___________ (_________________ dollars) Fractional
Undivided Interest in the Union Tank Car Company 2000 Pass Through Trust, Series
200__-____ (the "Trust") created by ___________, as trustee (the "Trustee"),
pursuant to a Pass Through Trust Agreement dated as of May __, 2000 (the "Basic
Agreement"), as supplemented by Trust Supplement No. _______ thereto dated
__________, 2000 (collectively, the "Agreement"), between the Trustee and Union
Tank Car Company, a Delaware corporation (the "Company"), a summary of certain
of the pertinent provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Agreement. This Certificate is one of the duly
authorized Certificates designated as "2000 Pass Through Certificate, Series
200__-____" (herein called the "Certificates"). This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement. By
virtue of its acceptance hereof, the Certificateholder of this Certificate
assents to and agrees to be
A-1
<PAGE> 55
bound by the provisions of the Agreement. The property of the Trust includes
certain Equipment Notes (the "Trust Property"). Each issue of the Equipment
Notes is or will be secured by, among other things, a security interest in
equipment leased to the Company.
Subject to and in accordance with the terms of the Agreement,
from funds then available to the Trustee, there will be distributed on each
__________ and ___________ (a "Regular Distribution Date"), commencing on
____________, 200__, to the Person in whose name this Certificate is registered
at the close of business on the 15th day preceding the Regular Distribution
Date, an amount in respect of the Scheduled Payments on the Equipment Notes due
on such Regular Distribution Date, the receipt of which has been confirmed by
the Trustee, equal to the product of the percentage interest in the Trust
evidenced by this Certificate and an amount equal to the sum of such Scheduled
Payments. Subject to and in accordance with the terms of the Agreement, in the
event that Special Payments on the Equipment Notes are received by the Trustee,
from funds then available to the Trustee, there shall be distributed on the
applicable Special Distribution Date, to the Person in whose name this
Certificate is registered at the close of business on the 15th day preceding the
Special Distribution Date, an amount in respect of such Special Payments on the
Equipment Notes, the receipt of which has been confirmed by the Trustee, equal
to the product of the percentage interest in the Trust evidenced by this
Certificate and an amount equal to the sum of such Special Payments so received.
If a Regular Distribution Date or Special Distribution Date is not a Business
Day, distribution shall be made on the immediately following Business Day with
the same force and effect as if made on such Regular Distribution Date or
Special Distribution Date. The Trustee shall mail notice of each Special Payment
and the Special Distribution Date therefor to the Certificateholder of this
Certificate.
Distributions on this Certificate will be made by the Trustee by
check mailed to the Person entitled thereto, without the presentation or
surrender of this Certificate or the making of any notation hereon. Except as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after notice mailed by the Trustee
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency of the Trustee specified in such
notice.
THIS CERTIFICATE AND THE AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES AND CERTIFICATEHOLDERS HEREUNDER AND THEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee, by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement or be valid for any purpose.
A-2
<PAGE> 56
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
UNION TANK CAR COMPANY
PASS THROUGH TRUST, SERIES 200 -
By: BANK ONE, NATIONAL
ASSOCIATION, as Trustee
By:
-------------------------------------------
Title:
[Reverse of Pass Through Certificate]
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, the Company or the Trustee or any
affiliate thereof. The Certificates are limited in right of payment, all as more
specifically set forth on the face hereof and in the Trust Agreement and related
Trust Supplement. All payments or distributions made to Certificateholders under
the Trust Agreement shall be made only from the Trust Property and only to the
extent that the Trust Trustee shall have sufficient income or proceeds from the
Trust Property to make such payments in accordance with the terms of the Trust
Agreement and related Trust Supplement. Each Certificateholder of this
Certificate, by its acceptance hereof, agrees that it will look solely to the
income and proceeds from the Trust Property to the extent available for
distribution to such Certificateholder as provided in the Trust Agreement and
related Trust Supplement. This Certificate does not purport to summarize the
Trust Agreement and related Trust Supplement and reference is made to the Trust
Agreement and related Trust Supplement for information with respect to the
interests, rights, benefits, obligations, proceeds, and duties evidenced hereby.
A copy of the Trust Agreement may be examined during normal business hours at
the principal office of the Trust Trustee, and at such other places, if any,
designated by the Trust Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Certificateholders under the Agreement at any time
by the Company and the Trustee with the consent of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Trust. Any such consent by the
Certificateholder of this Certificate shall be conclusive and binding on such
Certificateholder and upon all future Certificateholders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Certificateholders of any of
the Certificates.
A-3
<PAGE> 57
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee in its capacity as Registrar, or
by any successor Registrar duly endorsed or accompanied by a written instrument
of transfer in form satisfactory to the Trustee and the Registrar, duly executed
by the Certificateholder hereof or such Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate Fractional Undivided Interest in the
Trust will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in minimum denominations of $1,000 Fractional Undivided Interest
and integral multiples thereof except that one Certificate may be issued in a
different denomination. As provided in the Agreement and subject to certain
limitations therein set forth, the Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
Fractional Undivided Interest in the Trust, as requested by the
Certificateholder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee shall require payment of a sum sufficient
to cover any tax or governmental charge payable in connection therewith.
The Trustee, the Registrar, and any agent of the Trustee or the
Registrar may treat the person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Trustee, the Registrar, nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and
the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
the Agreement and the disposition of all property held as part of the Trust
Property.
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated:
This is one of the Certificates referred to in the
within-mentioned Pass Through Agreement and related Trust Supplement.
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------------------
Authorized Officer
A-4
<PAGE> 1
EXHIBIT 4(a)(3)
================================================================================
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
---------------------------
================================================================================
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.]
<PAGE> 2
TABLE OF CONTENTS
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SECTION PAGE
<S> <C> <C>
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)
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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)
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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
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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.
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TRUST INDENTURE ACT INDENTURE
OF 1939 SECTION SECTION
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<S> <C>
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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<TABLE>
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(a)(2)...................................................................7.11
(b).......................................................................2.6
318(a).......................................................................11.1
</TABLE>
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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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<PAGE> 9
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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<PAGE> 10
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
-5-
<PAGE> 13
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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<PAGE> 14
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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<PAGE> 15
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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<PAGE> 18
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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<PAGE> 19
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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<PAGE> 20
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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<PAGE> 21
SECTION 1.2. Other Definitions.
<TABLE>
<CAPTION>
TERM SECTION
---- -------
<S> <C>
"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
</TABLE>
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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<PAGE> 22
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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<PAGE> 24
(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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<PAGE> 25
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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<PAGE> 26
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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<PAGE> 27
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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<PAGE> 28
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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<PAGE> 29
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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<PAGE> 77
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: ,
----- -----
-70-
<PAGE> 1
EXHIBIT 5(a)
NEAL, GERBER & EISENBERG LETTERHEAD
May 17, 2000
Union Tank Car Company
225 West Washington Street
Chicago, Illinois 60606
Re: Registration of Debt Securities
Ladies and Gentlemen:
We have acted as counsel to you in connection with the filing by Union
Tank Car Company, a Delaware corporation (the "Company"), of its Registration
Statement on Form S-3 (the "Registration Statement") under the Securities Act of
1933, which Registration Statement, together with a registration statement
previously filed by the Company (Registration No. 333-45105), relates to up to
$302,148,000 in aggregate principal amount of debt securities of the Company
(the "Debt Securities"). The Debt Securities are to be issued by the Company in
one or more series pursuant to an Indenture, dated as of May 16, 1997, between
the Company and Harris Trust and Savings Bank (the "Trustee"), which has been
incorporated by reference as an exhibit to the Registration Statement (the
"Indenture"), as it may be supplemented from time to time by a separate
supplement for each series of Debt Securities (each, a "Supplement").
As such counsel, we have examined the Indenture and such other papers,
documents and certificates of public officials and certificates of officers of
the Company as we have deemed relevant and necessary as a basis for the opinions
hereinafter expressed. In such examinations, we have assumed the genuineness of
all signatures and the authenticity of all documents submitted to us as
originals and the conformity to original documents of all documents submitted to
us as conformed or photostatic copies. We have also assumed that the specific
terms and provisions of each series of Debt Securities will be approved by or
pursuant to appropriate action of the Board of Directors of the Company and that
the Supplement for each such series of Debt Securities will be duly authorized,
executed and delivered by the Company and the Trustee. As to any facts material
to our opinion, we have relied upon statements, certificates and representations
and warranties of the Company, and its officers, including representations and
warranties contained in the Indenture.
<PAGE> 2
Based upon and subject to the foregoing, it is our opinion that the
Debt Securities, when each applicable Supplement is duly executed and delivered
and the specific terms and provisions of each series of Debt Securities have
been duly established and when duly executed on behalf of the Company,
authenticated by the Trustee under the Indenture and sold by the Company in
accordance with the related purchase agreement or underwriting agreement between
the Company and the purchasers or underwriters, as the case may be, named
therein, will be validly issued, will constitute valid and binding obligations
of the Company in accordance with their respective terms and will be entitled to
the benefits of the Indenture in accordance with their terms and the terms of
the Indenture.
The foregoing opinions are subject, as to enforceability, to the effect
of (1) applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting enforcement of creditors' rights
generally, and (2) general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
We are members of the Bar of the State of Illinois, and we express no
opinion herein concerning any laws other than the law of the State of Illinois,
the Delaware General Corporation Law and the Federal law of the United States of
America.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Opinions" in the prospectus relating to the Debt Securities that constitutes a
part of the Registration Statement.
Very truly yours,
/s/ Neal, Gerber & Eisenberg
NEAL, GERBER & EISENBERG
<PAGE> 1
EXHIBIT 5(b)
NEAL, GERBER & EISENBERG LETTERHEAD
May 17, 2000
Union Tank Car Company
225 West Washington Street
Chicago, Illinois 60606
Re: Registration of Pass Through Certificates
Ladies and Gentlemen:
We have acted as counsel to you in connection with the filing by Union
Tank Car Company, a Delaware corporation (the "Company"), of its Registration
Statement on Form S-3 (the "Registration Statement") under the Securities Act of
1933, which Registration Statement, together with a registration statement
previously filed by the Company (Registration No. 333-45105), relates to up to
$302,148,000 in aggregate principal amount of Pass Through Certificates of the
Company (the "Certificates"). The Certificates will be issued pursuant to the
terms of the Pass Through Trust Agreement dated as of May 17, 2000, to be
entered into between the Company and Bank One, National Association, as Pass
Through Trustee (the "Pass Through Trustee"), the form of which has been filed
as an exhibit to the Registration Statement (the "Pass Through Trust
Agreement"), as it may be supplemented from time to time by a separate
supplement for each series of Certificates (each, a "Supplement").
As such counsel, we have examined the proposed form of the Pass Through
Trust Agreement and such other papers, documents and certificates of public
officials and certificates of officers of the Company as we have deemed relevant
and necessary as a basis for the opinions hereinafter expressed. In such
examinations, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as conformed or photostatic
copies. We have also assumed that the Pass Through Trust Agreement will, when
executed and delivered, be substantially in the form submitted to us for
examination, that the specific terms and provisions of each series of
Certificates will be approved by or pursuant to appropriate action of the Board
of Directors of the Company and that the Supplement for each such series of
Certificates will be duly authorized, executed and delivered by the Company. As
to any facts material to our opinion, we have relied upon statements,
certificates and representations and warranties of the Company, and its
officers, including representations and warranties contained in the Pass Through
Trust Agreement.
<PAGE> 2
Based upon and subject to the foregoing, it is our opinion that,
assuming (i) the due authorization, execution and delivery of the Pass Through
Trust Agreement and each applicable Supplement by each of the parties thereto
(other than the Company), (ii) that the Pass Through Trust Agreement and each
applicable Supplement have not been terminated, varied, transferred or assigned
and (iii) the due authorization, execution, issue, delivery and authentication
by the Pass Through Trustee of the Certificates to be issued under the Pass
Through Trust Agreement and each applicable Supplement, in each case in
accordance with the terms of the Pass Through Trust Agreement and each such
Supplement, (A) each of the Pass Through Trust Agreement and each applicable
Supplement, when duly executed and delivered, will constitute a valid and
binding agreement of each of the parties thereto, and (B) the Certificates, when
duly executed, delivered and authenticated by the Pass Through Trustee in
accordance with the terms of the Pass Through Trust Agreement and each
applicable Supplement and sold in accordance with the related purchase agreement
or underwriting agreement between the Company and the purchasers or
underwriters, as the case may be, named therein, will be validly issued, will
constitute valid and binding obligations of the Pass Through Trustee in
accordance with their respective terms and will be entitled to the benefits of
the Pass Through Trust Agreement and each applicable Supplement in accordance
with their respective terms and the terms of the Pass Through Trust Agreement
and such Supplement.
The foregoing opinions are subject, as to enforceability, to the effect
of (1) applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting enforcement of creditors' rights
generally, and (2) general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
We are members of the Bar of the State of Illinois, and we express no
opinion herein concerning any laws other than the law of the State of Illinois,
the Delaware General Corporation Law and the Federal law of the United States of
America.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Opinions" in the prospectus relating to the Certificates that constitutes a part
of the Registration Statement.
Very truly yours,
/s/ Neal, Gerber & Eisenberg
NEAL, GERBER & EISENBERG
<PAGE> 1
EXHIBIT 5(c)
NEAL, GERBER & EISENBERG LETTERHEAD
May 17, 2000
Union Tank Car Company
225 West Washington Street
Chicago, Illinois 60606
Re: Registration of Senior Secured Notes
Ladies and Gentlemen:
We have acted as counsel to you in connection with the filing by Union
Tank Car Company, a Delaware corporation (the "Company"), of its Registration
Statement on Form S-3 (the "Registration Statement") under the Securities Act of
1933, which Registration Statement relates to up to $250,000,000 in aggregate
principal amount of senior secured notes of the Company (the "Senior Secured
Notes"). The Senior Secured Notes are to be issued by the Company in one or more
series pursuant to an Indenture and Security Agreement to be entered into
between the Company and Bank One, National Association, as Trustee (the
"Trustee"), the form of which has been filed as an exhibit to the Registration
Statement (the "Indenture and Security Agreement"), as it may be supplemented
from time to time by a separate supplement for each series of Senior Secured
Notes (each, a "Supplement").
As such counsel, we have examined the proposed form of the Indenture
and Security Agreement and such other papers, documents and certificates of
public officials and certificates of officers of the Company as we have deemed
relevant and necessary as a basis for the opinions hereinafter expressed. In
such examinations, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as conformed or photostatic
copies. We have also assumed that the Indenture and Security Agreement will,
when executed and delivered, be substantially in the form submitted to us for
examination, that the specific terms and provisions of each series of Senior
Secured Notes will be approved by or pursuant to appropriate action of the Board
of Directors of the Company and that the Supplement for each such series of
Senior Secured Notes will be duly authorized, executed and delivered by the
Company. As to any facts material to our opinion, we have relied upon
statements, certificates and representations and warranties of the Company, and
its officers, including representations and warranties contained in the
Indenture and Security Agreement.
<PAGE> 2
Based upon and subject to the foregoing, it is our opinion that the
Senior Secured Notes, when the Indenture and Security Agreement and each
applicable Supplement are duly executed and delivered and the specific terms and
provisions of each series of Senior Secured Notes have been duly established and
when duly executed on behalf of the Company, authenticated by the Trustee under
the Indenture and Security Agreement and sold by the Company in accordance with
the related purchase agreement or underwriting agreement between the Company and
the purchasers or underwriters, as the case may be, named therein, will be
validly issued, will constitute valid and binding obligations of the Company in
accordance with their respective terms and will be entitled to the benefits of
the Indenture and Security Agreement in accordance with their terms and the
terms of the Indenture and Security Agreement.
The foregoing opinions are subject, as to enforceability, to the effect
of (1) applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting enforcement of creditors' rights
generally, and (2) general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
We are members of the Bar of the State of Illinois, and we express no
opinion herein concerning any laws other than the law of the State of Illinois,
the Delaware General Corporation Law and the Federal law of the United States of
America.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Opinions" in the prospectus relating to the Senior Secured Notes that
constitutes a part of the Registration Statement.
Very truly yours,
/s/ Neal, Gerber & Eisenberg
NEAL, GERBER & EISENBERG
<PAGE> 1
EXHIBIT 8
NEAL, GERBER & EISENBERG LETTERHEAD
May 17, 2000
Union Tank Car Company
225 West Washington Street
Chicago, Illinois 60606
Re: Pass Through Certificates
Ladies and Gentlemen:
We have acted as counsel to you in connection with the filing by Union
Tank Car Company, a Delaware corporation (the "Company"), of its Registration
Statement on Form S-3 (the "Registration Statement") under the Securities Act of
1933, which Registration Statement, together with a registration statement
previously filed by the Company (Registration No. 333-45105), relates to up to
$302,148,000 in aggregate principal amount of Pass Through Certificates of the
Company (the "Certificates"). The Certificates will be issued pursuant to the
terms of the Pass Through Trust Agreement dated as of May 17, 2000, to be
entered into between the Company and Bank One, National Association, as Pass
Through Trustee (the "Pass Through Trustee"), the form of which has been filed
as an exhibit to the Registration Statement (the "Pass Through Trust
Agreement"), as it may be supplemented from time to time by a separate
supplement for each series of Certificates (each, a "Supplement").
As such counsel, we have examined the proposed form of the Pass Through
Trust Agreement and such other papers, documents and certificates of public
officials and certificates of officers of the Company as we have deemed relevant
and necessary as a basis for the opinions hereinafter expressed. In such
examinations, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as conformed or photostatic
copies. We have also assumed that the Pass Through Trust Agreement will, when
executed and delivered, be substantially in the form submitted to us for
examination. As to any facts material to our opinion, we have relied upon
statements, certificates and representations and warranties of the Company, and
its officers, including representations and warranties contained in the Pass
Through Trust Agreement.
We hereby confirm to you our opinion(s) as set forth under the headings
"Certain United States Federal Income Tax Consequences" and "Certain Illinois
Taxes" in the Prospectus relating to the Certificates included in the
Registration Statement.
<PAGE> 2
We are members of the Bar of the State of Illinois, and we express no
opinion herein concerning any laws other than the law of the State of Illinois
and the Federal law of the United States of America.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the captions
"Certain United States Federal Income Tax Consequences" and "Certain Illinois
Taxes" in the prospectus relating to the Certificates that constitutes a part of
the Registration Statement.
Very truly yours,
/s/ Neal, Gerber & Eisenberg
NEAL, GERBER & EISENBERG
<PAGE> 1
Exhibit 23(a)
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectuses of Union Tank Car
Company for the registration of up to $250,000,000 of indebtedness and to
incorporation by reference therein of our report dated March 8, 2000, with
respect to the consolidated financial statements of Union Tank Car Company
included in its Annual Report (Form 10-K) for the year ended December 31, 1999,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Chicago, Illinois
May 12, 2000
<PAGE> 1
EXHIBIT 25(b)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
----------------------------
BANK ONE, NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
1 BANK ONE PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE, NATIONAL ASSOCIATION
1 BANK ONE PLAZA, SUITE IL 1-0126
CHICAGO, ILLINOIS 60670-0126
ATTN: SANDRA L. CARUBA (312) 336-9436
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
=============================
UNION TANK CAR COMPANY
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 36-3104688
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
225 W. WASHINGTON STREET
CHICAGO, ILLINOIS 60606
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
PASS THROUGH TRUST CERTIFICATES
SENIOR SECURED NOTES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance
Corporation, Washington, D.C., The Board of Governors of the Federal
Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE
TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS
STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise corporate
trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority.
8. Not Applicable.
9. Not Applicable.
<PAGE> 3
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One, National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 17th day of May, 2000.
BANK ONE, NATIONAL ASSOCIATION,
TRUSTEE
By /s/ Sandra L. Caruba
----------------------------------
Sandra L. Caruba
Vice President
* Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of Bank One, National
Association, filed as Exhibit 25 to the Registration Statement on Form S-3 of
Household Finance Corporation filed with the Securities and Exchange Commission
on March 24, 2000 (Registration No. 333-33240).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
May 17, 2000
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen::
In connection with the qualification of an indenture between Union Tank Car
Company and Bank One, National Association, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
BANK ONE, NATIONAL ASSOCIATION
By /s/ Sandra L. Caruba
----------------------------------
Sandra L. Caruba
Vice President
<PAGE> 5
EXHIBIT 7
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: Bank One, NA Call Date: 12/31/99 ST-BK: 17-1630 FFIEC 031
Address: 1 Bank One Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C400
RCFD BIL MIL THOU
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RCFD
RC-A): ----
a. Noninterest-bearing balances and currency and coin(1)............ 0081 5,055,227 1.a
b. Interest-bearing balances(2)..................................... 0071 6,267,008 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)........ 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)..... 1773 10,171,065 2.b
3. Federal funds sold and securities purchased under agreements to
resell 1350 9,133,306 3.
4. Loans and lease financing receivables: RCFD
a. Loans and leases, net of unearned income (from Schedule ----
RC-C)............................................................... 2122 54,113,895 4.a
b. LESS: Allowance for loan and lease losses........................ 3123 485,672 4.b
c. LESS: Allocated transfer risk reserve............................ 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
----
reserve (item 4.a minus 4.b and 4.c)................................ 2125 53,628,223 4.d
5. Trading assets (from Schedule RD-D)................................. 3545 5,625,628 5.
6. Premises and fixed assets (including capitalized leases)............ 2145 728,892 6.
7. Other real estate owned (from Schedule RC-M)........................ 2150 2,661 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)...................................... 2130 225,055 8.
9. Customers' liability to this bank on acceptances outstanding........ 2155 318,645 9.
10. Intangible assets (from Schedule RC-M).............................. 2143 222,903 10.
11. Other assets (from Schedule RC-F)................................... 2160 2,515,075 11.
12. Total assets (sum of items 1 through 11)............................ 2170 93,893,688 12.
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: Bank One, NA Call Date: 12/31/99 ST-BK: 17-1630 FFIEC 031
Address: 1 Bank One Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
LIABILITIES
<S> <C> <C> <C>
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1)....................................... 2200 26,310,375 13.a
(1) Noninterest-bearing(1)........................................ 6631 11,553,564 13.a1
(2) Interest-bearing.............................................. 6636 14,756,811 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)................................ 2200 28,917,958 13.b
(1) Noninterest bearing........................................... 6631 623,837 13.b1
(2) Interest-bearing.............................................. 6636 28,294,121 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 9,453,894 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 1,263,434 15.a
b. Trading Liabilities(from Schedule RC-D)........................... RCFD 3548 3,262,946 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less........................ 2332 12,462,976 16.a
b. With original maturity of more than one year..................... A547 1,049,525 16.b
c. With original maturity of more than three years................... A548 477,923 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding 2920 318,645 18.
19. Subordinated notes and debentures.................................... 3200 3,250,000 19.
20. Other liabilities (from Schedule RC-G)............................... 2930 1,377,838 20.
21. Total liabilities (sum of items 13 through 20)....................... 2948 88,145,514 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus........................ 3838 0 23.
24. Common stock......................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) 3839 3,660,673 25.
26. a. Undivided profits and capital reserves............................ 3632 2,057,661 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities........................................................ 8434 (170,996) 26.b
c. ACCUMULATED NET GAINS (LOSSES) ON CASH FLOW HEDGES................ 4336 0 26.c
27. Cumulative foreign currency translation adjustments.................. 3284 ( 22) 27.
28. Total equity capital (sum of items 23 through 27).................... 3210 5,748,174 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)................................ 3300 93,893,688 29.
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external auditors as of any date Number
during 1996 .............................................................................RCFD 6724 .....[N/A ] M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank
with generally accepted auditing standards by a certified external auditors (may be required
public accounting firm which submits a report on the bank by state chartering authority)
2 = Independent audit of the bank's parent holding company 5. = Review of the bank's financial
conducted in accordance with generally accepted auditors
auditing standards by a certified public accounting firm which 6. = Compilation of the bank's
submits a report on the consolidated holding company financial statements by external auditors
(but not on the bank separately) 7. = Other audit procedures (excluding tax
3 = Directors' examination of the bank conducted in preparation work)
accordance with generally accepted auditing standards by a certified public 8. = No external audit work
accounting firm (may be required by state chartering authority)
</TABLE>
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
