Common use of Replacement of Items of Equipment upon Event of Loss Clause in Contracts

Replacement of Items of Equipment upon Event of Loss. (a) Upon the occurrence of an Event of Loss with respect to an Item of Equipment, the Company shall notify the Trustee of such occurrence within 60 days after the Company obtains actual knowledge of such occurrence. Within 60 days after the Company so notifies the Trustee of the occurrence of such Event of Loss, the Company shall give the Trustee notice of its election to perform one of the following options (it being agreed that if the Company shall not have given such notice of election within such 60-day period, the Company shall be deemed to have elected to perform the option set forth in the following clause (ii)). The Company may elect either to: (i) not more than 60 days after notice of its election to the Trustee pursuant to the immediately preceding sentence (such 60th day being the "Loss Replacement Date"), replace the Item of Equipment subject to the Event of Loss with railcars having the same or greater Fair Value; or (ii) on the first Payment Date occurring at least 30 days after notice of its election to the Trustee pursuant to the immediately preceding sentence on which the aggregate principal amount of Equipment Notes to be redeemed pursuant to Section 2.12(b) (together with equipment notes to be redeemed pursuant to Section 2.12(b) of each of the Other Indentures) shall be equal to or greater than $2,000,000 (such Payment Date being the "Loss Redemption Date"), redeem the Equipment Notes in accordance with Section 2.12(b). (b) If the Company elects to substitute a Replacement Item of Equipment pursuant to clause (i) above, the Company shall, at its sole expense, not later than the Loss Replacement Date: (i) deliver to the Trustee, (A) for execution pursuant to Section 5.07, an Indenture Supplement covering the Replacement Item of Equipment and the related Lease, if any, duly executed by the Company and the Guarantor, and a Memorandum of Trust covering the Replacement Item of Equipment, duly executed by the Company and the Guarantor, and (B) a Memorandum of Lease covering the Lease, if any, relating to such Replacement Item of Equipment and cause such executed Memorandum of Trust and Memorandum of Lease, if any, to be duly filed and recorded with the STB pursuant to 49 U.S.C. Section 11301 and deposited in the office of the Registrar General of Canada pursuant to Section 105 of the Canada Transportation Act; (ii) cause a financing statement or statements with respect to the Replacement Item of Equipment and the related Lease, if any, to be filed in such place or places as are necessary in order to evidence and perfect the interests of the Trustee therein; (iii) furnish the Trustee with evidence of compliance with the insurance provisions of Section 9.09 with respect to the Replacement Item of Equipment substantially similar to that originally furnished to the Trustee with respect to the replaced Item of Equipment pursuant to this Indenture; (iv) furnish the Trustee with an Officer's Certificate certifying that, upon consummation of such replacement, no Indenture Default or Indenture Event of Default which arises solely as a result of such replacement will exist hereunder; (v) furnish the Trustee with an Officer's Certificate stating (A) that the Replacement Item of Equipment is free of all Liens (other than Liens permitted under Section 9.06) and has a Fair Value at least equal to the Fair Value of the Item of Equipment so replaced immediately prior to the occurrence of such Event of Loss (which Certificate shall include the basis for determination of such Fair Value), (B) whether such Replacement Item of Equipment is then subject to a lease and, if so, the name of the lessee and such other information as the Trustee may reasonably request, (C) that each Replacement Item of Equipment has been marked in accordance with Section 9.07(d), and (D) that, in the opinion of the signer, all conditions precedent provided for in this Indenture relating to such replacement have been complied with; and (vi) take such other actions and furnish such other certificates and documents as may be necessary or as the Trustee may reasonably require in order to assure that the Replacement Item of Equipment and the related Lease, if any, are duly and properly subjected to the Lien of this Indenture, to the same extent as the Item of Equipment replaced thereby and the related Lease, if any.

Replacement of Items of Equipment upon Event of Loss. (a) Upon the occurrence of an Event of Loss with respect to an Item of Equipment, the Company shall notify the Trustee of such occurrence within 60 days after the Company obtains actual knowledge of such occurrence. Within 60 days after the Company so notifies the Trustee of the occurrence of such Event of Loss, the Company shall give the Trustee notice of its election to perform one of the following options (it being agreed that if the Company shall not have given such notice of election within such 60-day period, the Company shall be deemed to have elected to perform the option set forth in the following clause (ii)). The Company may elect either to: (i) not more than 60 days after notice of its election to the Trustee pursuant to the immediately preceding sentence (such 60th day being the "Loss Replacement Date"), replace the Item of Equipment subject to the Event of Loss with railcars having the same or greater Fair Value; or (ii) on the first Payment Date occurring at least 30 days after notice of its election to the Trustee pursuant to the immediately preceding sentence on which the aggregate principal amount of Equipment Notes to be redeemed pursuant to Section 2.12(b) (together with equipment notes to be redeemed pursuant to Section 2.12(b) of each of the Other Indentures) shall be equal to or greater than $2,000,000 (such Payment Date being the "Loss Redemption Date"), redeem the Equipment Notes in accordance with Section 2.12(b). (b) If the Company elects to substitute a Replacement Item of Equipment pursuant to clause (i) above, the Company shall, at its sole expense, not later than the Loss Replacement Date: (i) deliver to the Trustee, (A) for execution pursuant to Section 5.07, an Indenture Supplement covering the Replacement Item of Equipment and the related Lease, if any, duly executed by the Company and the Guarantor, and a Memorandum of Trust covering the Replacement Item of Equipment, duly executed by the Company and the Guarantor, and (B) a Memorandum of Lease covering the Lease, if any, relating to such Replacement Item of Equipment and cause such executed Memorandum of Trust and Memorandum of Lease, if any, to be duly filed and recorded with the STB pursuant to 49 U.S.C. Section 11301 ss.11301 and deposited in the office of the Registrar General of Canada pursuant to Section 105 of the Canada Transportation Act; (ii) cause a financing statement or statements with respect to the Replacement Item of Equipment and the related Lease, if any, to be filed in such place or places as are necessary in order to evidence and perfect the interests of the Trustee therein; (iii) furnish the Trustee with evidence of compliance with the insurance provisions of Section 9.09 with respect to the Replacement Item of Equipment substantially similar to that originally furnished to the Trustee with respect to the replaced Item of Equipment pursuant to this Indenture; (iv) furnish the Trustee with an Officer's Certificate certifying that, upon consummation of such replacement, no Indenture Default or Indenture Event of Default which arises solely as a result of such replacement will exist hereunder; (v) furnish the Trustee with an Officer's Certificate stating (A) that the Replacement Item of Equipment is free of all Liens (other than Liens permitted under Section 9.06) and has a Fair Value at least equal to the Fair Value of the Item of Equipment so replaced immediately prior to the occurrence of such Event of Loss (which Certificate shall include the basis for determination of such Fair Value), (B) whether such Replacement Item of Equipment is then subject to a lease and, if so, the name of the lessee and such other information as the Trustee may reasonably request, (C) that each Replacement Item of Equipment has been marked in accordance with Section 9.07(d), and (D) that, in the opinion of the signer, all conditions precedent provided for in this Indenture relating to such replacement have been complied with; and (vi) take such other actions and furnish such other certificates and documents as may be necessary or as the Trustee may reasonably require in order to assure that the Replacement Item of Equipment and the related Lease, if any, are duly and properly subjected to the Lien of this Indenture, to the same extent as the Item of Equipment replaced thereby and the related Lease, if any.