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EXHIBIT 4(b)(7)
Appendix A
Equipment Lease Agreement
Trust Indenture and Security Agreement
Participation Agreement
Trust Agreement
DEFINITIONS
General Provisions
The following terms shall have the following meanings for all purposes
of the Operative Agreements referred to below, unless otherwise defined in an
Operative Agreement or the context thereof shall otherwise require and such
meanings shall be equally applicable to both the singular and the plural forms
of the terms herein defined. In the case of any conflict between the
provisions of this Appendix A and the provisions of the main body of any
Operative Agreement, the provisions of the main body of such Operative
Agreement shall control the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as the same may be amended,
supplemented and otherwise modified from time to time, and (ii) references to
parties to agreements shall be deemed to include the permitted successors and
assigns of such parties.
Defined Terms
"AAR" shall mean the American Association of Railroads or any
successor thereto.
"Advance" shall have the meaning specified in Section 3.5 of the
Lease.
"Affiliate" of any Person shall mean any other Person which directly
or indirectly controls, or is controlled by, or is under a common control with,
such Person. The term "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing. Notwithstanding the foregoing, the Bank shall
not be deemed an affiliate of the Owner Participant or Owner Trustee, and vice
versa, solely as a result of the transactions contemplated by the Operative
Agreements.
"After-Tax Basis" shall mean, with respect to any payment received or
accrued by any Person under an Operative Agreement (the "Initial Payment"),
that the amount of such Initial Payment is supplemented by a further payment or
payments so that the sum of all such payments, after reduction for all Taxes
payable by such Person imposed by any taxing authority, shall be equal to the
Initial Payment due to such Person.
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"Alternative Minimum Tax" shall mean the alternative minimum tax
imposed under Section 55 of the Code or any successor section thereto.
"Appraisal" shall have the meaning specified in Section 4.3(a) of the
Participation Agreement.
"Average Life Date" shall mean, with respect to an Equipment Note, the
date which follows the prepayment date or, in the case of an Equipment Note not
being prepaid, the date of such determination, by a period equal to the
Remaining Weighted Average Life of such Equipment Note.
"Bank" shall mean Wilmington Trust Company, a Delaware banking
corporation, in its individual capacity, together with its successors and
assigns.
"Bankruptcy Code" shall mean the United States Bankruptcy Reform Act
of 1978, as amended from time to time, 11 U.S.C. Section 101 et. seq.
"Basic Rent" shall mean, with respect to any Unit, all rent payable by
the Lessee to the Lessor pursuant to Section 3.2 of the Lease for the Basic
Term for such Unit, and all rent payable pursuant to Section 22.4 of the Lease
for any Renewal Term for such Unit.
"Basic Term" shall have the meaning specified in Section 3.1 of the
Lease.
"Basic Term Commencement Date" shall mean September 30, 1998.
"Basic Term Expiration Date" shall mean March 30, 2014.
"Basic Term Purchase Price" shall mean, with respect to any Unit, the
amount equal to the product of the percentage set forth in Schedule 8, 8A, 8B
or 8C, as the case may be, to the Participation Agreement and the Equipment
Cost for such Unit.
"Beneficial Interest" shall mean the interest of the Owner Participant
under the Trust Agreement.
"Xxxx of Sale" shall mean the full warranty xxxx or bills of sale,
dated the Initial Closing Date or the Subsequent Closing Date, as the case may
be, or the date that any Replacement Unit is subjected to the Lease, from
Lessee to Owner Trustee covering the Units delivered on the Initial Closing
Date or the Subsequent Closing Date or such Replacement Unit, as the case may
be.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which commercial banking institutions are authorized or required by law,
regulation or executive order to be closed in New York, New York, Chicago,
Illinois, the city and state in which the principal corporate trust office of
the Owner Trustee is located, or, until the Lien of the Indenture has been
discharged, the city and state in which the principal corporate trust office of
the Indenture Trustee is located.
"Car Type" shall mean a Unit which carries a particular commodity.
"Certificateholder" means the Person in whose name a Pass Through
Certificate is registered in the register for Pass Through Certificates of a
particular series.
"Change in Tax Law" shall mean an amendment, modification, addition or
change in or to any provision of the Code, any regulation thereunder (whether
proposed, temporary or final), or any Xxxxxxx
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Xxxxxx, Xxxxxxx Procedure or other published administrative determination, or
an opinion of the United States Supreme Court on a tax issue that changes the
existing law on that issue, in each case, enacted, issued, promulgated or
rendered after the execution of the Participation Agreement and on or prior to
the Initial or Subsequent Closing Date.
"Claims" shall have the meaning specified in Section 7.2 of the
Participation Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment" with respect to the Owner Participant, shall have the
meaning specified in Section 2.2(a) to the Participation Agreement and with
respect to the Loan Participant, shall have the meaning specified in Section
2.2(b) to the Participation Agreement.
"Debt Closing Date" shall mean the date on which the transactions
contemplated by the Underwriting Agreement are consummated.
"Debt Rate" shall mean as of the date of determination, a rate equal
to the rate of interest per annum borne by the Equipment Notes then outstanding
(computed on the basis of a 360-day year of twelve 30-day months).
"Deferred Portion" shall mean that portion of the Early Purchase
Price, the payment of which may be deferred by the Lessee, as set forth in
Schedule 7 to the Participation Agreement.
"Determination Date" shall mean the second day of any specified
calendar month.
"Early Purchase Date" shall mean the date specified on Schedule 7 to
the Participation Agreement.
"Early Purchase Price" shall mean, with respect to any Unit, the
amount equal to the product of the percentage set forth in Schedule 7, 7A, 7B
or 7C, as the case may be, to the Participation Agreement and the Equipment
Cost for such Unit.
"Equipment" shall mean collectively those items of railroad rolling
stock described in the Lease Supplements and the Indenture 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 the Owner Trustee pursuant to the terms of a Xxxx of Sale or the
Lease, and "Unit" shall mean individually the various items thereof.
"Equipment Cost" shall mean, for each Unit, the purchase price
therefor paid by the Owner Trustee to the Lessee pursuant to Section 2 of the
Participation Agreement and as set forth in Schedule 1A, 1B or 1C to the
Participation Agreement with respect to such Unit.
"Equipment Group" shall mean each of the two groups of Equipment so
designated in Schedule 1A, 1B or 1C to the Participation Agreement.
"Equipment Notes" shall mean the Equipment Notes, each to be
substantially in the form therefor set forth in Section 2.01 of the Indenture,
issued by the Owner Trustee pursuant to Section 2.02 of the Indenture, and
authenticated by the Indenture Trustee, in principal amounts and bearing
interest at the rate and payable as provided in Section 2.02 of the Indenture
and secured as provided in the Granting
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Clause of the Indenture, and shall include any Equipment Notes issued in
exchange therefor or replacement thereof pursuant to Section 2.07 or 2.08 of
the Indenture.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law.
"Event of Loss" shall have the meaning specified in Section 11.1 of
the Lease.
"Excepted Property" shall mean (i) all indemnity payments (including,
without limitation, payments pursuant to Section 7 of the Participation
Agreement and payments under the Tax Indemnity Agreement (including that
portion of any increase in any payment of Basic Rent, Stipulated Loss Value,
Termination Value or any fixed purchase price payable for any Unit, which
increase is solely attributable to the upward adjustment to such payment price
pursuant to Section 5(a)(3)(B) of the Tax Indemnity Agreement)) to which the
Owner Participant, the Owner Trustee, the Bank, or any of their respective
successors, permitted assigns, directors, officers, employees, servants and
agents is entitled pursuant to the Operative Agreements and all rights of the
Owner Participant in, to and under the Tax Indemnity Agreement, (ii) any right,
title or interest of the Owner Trustee, the Bank, or the Owner Participant to
any payment which by the terms of Section 17 of the Lease or any corresponding
payment under Section 3.3 of the Lease shall be payable to or on behalf of the
Owner Trustee, as trustee or in its individual capacity, or to the Owner
Participant, as the case may be, (iii) any insurance proceeds payable under
insurance maintained by the Owner Trustee, the Bank, or the Owner Participant
pursuant to Section 12.5 of the Lease, (iv) any insurance proceeds payable to
or on behalf of the Owner Trustee, as trustee or in its individual capacity, or
to the Owner Participant, under any public liability insurance maintained by
Lessee pursuant to Section 12 of the Lease or by any other Person, (v)
Transaction Costs or other amounts or expenses paid or payable to, or for the
benefit of Owner Trustee, the Bank, or Owner Participant pursuant to the
Participation Agreement or the Trust Agreement, (vi) all right, title and
interest of Owner Participant, Owner Trustee or the Bank, in or relating to any
portion of the Units and any other property (tangible or intangible), rights,
titles or interests to the extent any of the foregoing has been released from
the Lien of the Indenture pursuant to the terms thereof, (vii) upon termination
of the Indenture pursuant to the terms thereof with respect to any Unit, all
remaining amounts which shall have been paid or are payable by Lessee and
calculated on the basis of Stipulated Loss Value, (viii) any rights of the
Owner Participant, the Owner Trustee or the Bank, to demand, collect, xxx for,
or otherwise receive and enforce payment of the foregoing amounts, (ix) any
amount payable to the Owner Participant by any Transferee as the purchase price
of the Owner Participant's interest in the Trust Estate in compliance with the
terms of the Participation Agreement and the Trust Agreement, (x) any payments
of Unrealized Residual Value to which the Owner Participant or the Owner
Trustee is entitled pursuant to Section 6.3 of the Lease and any and all rights
of the Owner Participant or the Owner Trustee in, to and under Section 6.3 of
the Lease and (xi) the respective rights of the Owner Trustee, the Bank or the
Owner Participant to the proceeds of and interest on the foregoing.
"Fair Market Renewal Term" shall have the meaning specified in Section
22.4 of the Lease.
"Fair Market Rental Value" or "Fair Market Sales Value" with respect
to any Unit of Equipment shall mean the cash rent or cash price obtainable for
such Unit in an arm's length lease or sale between an informed and willing
lessee or purchaser under no compulsion to lease or purchase, as the case may
be, and an informed and willing lessor or seller, under no compulsion to lease
or sell, as the case may be, as the same shall be specified by agreement
between Lessor and Lessee. If the parties are unable to agree upon a Fair
Market Rental Value and/or a Fair Market Sales Value within 30 days after
delivery of notice by Lessee pursuant to Section 22.2 of the Lease, or
otherwise where such determination is
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required, within a reasonable period of time, such value shall be determined by
appraisal. Lessee will within 15 days after such 30-day period provide Lessor
the name of an appraiser that would be satisfactory to Lessee, and Lessor and
Lessee will consult with the intent of selecting a mutually acceptable
appraiser. If a mutually acceptable appraiser is selected, the Fair Market
Rental Value or the Fair Market Sales Value, as the case may be, shall be
determined by such appraiser and Lessee shall bear the cost thereof. If Lessee
and Lessor are unable to agree upon a single appraiser within such 15-day
period, two independent qualified appraisers, one chosen by the Lessee and one
chosen by the Lessor shall jointly determine such value and Lessor shall bear
the cost of the appraiser selected by Lessor and Lessee shall bear the cost of
the appraiser selected by Lessee. If such appraisers cannot agree on the
amount of such value within 15 days of appointment, one independent qualified
appraiser shall be chosen by the American Arbitration Association. All three
appraisers shall make a determination within a period of 15 days following
appointment, and shall promptly communicate such determination in writing to
the Lessor and Lessee. If there shall be a panel of three appraisers, the
three appraisals shall be averaged and such average shall be the Fair Market
Rental Value or Fair Market Sales Value, as the case may be. The determination
made shall be conclusively binding on both the Lessor and Lessee. If there
shall be a panel of three appraisers, Lessee and Lessor shall equally share the
cost of the third appraiser. If such appraisal is in connection with the
exercise of remedies set forth in Section 15 of the Lease, Lessee shall pay the
costs of such appraisal. Notwithstanding any of the foregoing, for the
purposes of Section 15 of the Lease, the Fair Market Rental Value or the Fair
Market Sales Value, as the case may be, shall be zero with respect to any Unit
if Lessor is unable to recover possession of such Unit in accordance with the
terms of paragraph (b) of Section 15.1 of the Lease. In determining Fair
Market Rental Value or Fair Market Sales Value by appraisal or otherwise, it
will be assumed that the relevant Unit is in the condition and location in
which it is required to be returned to Lessor pursuant to Section 6 of the
Lease and unencumbered by the Lease, any sublease or any Liens, except that
with respect to Section 15 of the Lease or as otherwise specifically provided
therein, a determination of Fair Market Rental Value or Fair Market Sales Value
shall be based on "as is, where is" condition.
"Fixed Rate Renewal Term" shall have the meaning specified in Section
22.4 of the Lease.
"FRA" shall mean the Federal Railroad Administration or any successor
thereto.
"Hazardous Substances" shall mean any dangerous, hazardous or toxic
substances, materials or wastes, including, but not limited to, those
substances, materials, and wastes listed in the United States Department of
Transportation Hazardous Materials Table (49 CFR 172.101) or by the
Environmental Protection Agency as hazardous substances (40 CFR part 302) and
amendments thereto, or such substances, materials and wastes which are or
become regulated under any applicable local, state or federal law or the
equivalent under applicable foreign laws including, without limitation, any
materials, waste or substance which is (a) petroleum, (b) asbestos, (c)
polychlorinated biphenyls, (d) defined as a "hazardous material," "hazardous
substance" or "hazardous waste" under applicable local, state or federal law or
the equivalent under applicable foreign laws, (e) designated as a "hazardous
substance" pursuant to Section 311 of the Clean Water Act, (f) defined as
"hazardous waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act, (g) defined as "hazardous substances" pursuant to Section 101 of
the Comprehensive Environmental Response, Compensation, and Liability Act, or
(h) natural gas, synthetic gas and any mixtures thereof.
"Holdover Rent" shall have the meaning specified in Section 6.1(e) of
the Lease.
"Initial Closing Date" shall have the meaning specified in Section 2.1
of the Participation Agreement.
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"Income Tax" shall have the meaning specified in Section 7.1(l) of the
Participation Agreement.
"Indemnified Person" shall have the meaning specified in Section
7.2(b) of the Participation Agreement.
"Indenture" or "Trust Indenture" shall mean the Trust Indenture and
Security Agreement (UTC Trust No. 1998-A) (L-15), dated March 30, 1998 between
the Owner Trustee, in the capacities described therein, and the Indenture
Trustee. The term "Indenture" shall include each Indenture Supplement entered
into pursuant to the terms of the Indenture.
"Indenture Default" shall mean an Indenture Event of Default or an
event which with notice or the lapse of time or both would become an Indenture
Event of Default.
"Indenture Estate" shall have the meaning specified in the Granting
Clause of the Indenture.
"Indenture Event of Default" shall have the meaning specified in
Section 4.01 of the Indenture.
"Indenture Investment" shall mean any obligation issued or guaranteed
by the United States of America or any of its agencies for the payment of which
the full faith and credit of the United States of America is pledged.
"Indenture Supplement" shall mean an Indenture Supplement dated the
Initial Closing Date or the Subsequent Closing Date, as the case may be, or the
date that any Replacement Unit is subjected to the lien and security interest
of the Indenture, substantially in the form of Exhibit A to the Indenture,
between the Owner Trustee and the Indenture Trustee, covering the Units
delivered on the Initial Closing Date or the Subsequent Closing Date or such
Replacement Unit, as the case may be. A "related" Indenture Supplement, when
used with respect to any Unit or Units of Equipment, shall mean the Indenture
Supplement under which such Unit or Units of Equipment is or are included in
the Indenture Estate.
"Indenture Trustee" shall mean Xxxxxx Trust and Savings Bank, an
Illinois banking corporation, as trustee under the Indenture and its successors
thereunder.
"Indenture Trustee Agreements" shall mean the Operative Agreements to
which the Indenture Trustee is or will be a party.
"Initial Closing Date" shall have the meaning specified in Section 2.1
of the Participation Agreement.
"Interchange Rules" shall mean the interchange rules or supplements
thereto of the Mechanical Division of the Association of American Railroads, as
the same may be in effect from time to time.
"Interim Interest" shall have the meaning specified in Section 2.2(c) of the
Participation Agreement.
"Interim Interest Payment Date" shall mean July 2, 1998.
"Interim Term" shall have the meaning specified in Section 3.1 of the
Lease.
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"Investment Banker" shall mean an independent investment banking
institution of national standing appointed by Lessee or, if the Indenture
Trustee does not receive notice of such appointment at least ten days prior to
a scheduled prepayment date or if a Lease Event of Default under the applicable
Lease shall have occurred and be continuing, appointed by the Indenture
Trustee.
"Inspectable Group" shall have the meaning specified in Section 6.1(b)
of the Lease.
"Inspection Period" shall have the meaning specified in Section 6.1(h)
of the Lease.
"Late Rate" shall mean the lesser of 2% over the Debt Rate and the
maximum interest rate from time to time permitted by law.
"Lease" or "Lease Agreement" or "Equipment Lease" shall mean the
Equipment Lease Agreement (UTC Trust No. 1998-A) (L-15), relating to the
Equipment, dated March 30, 1998, between the Owner Trustee, as Lessor, and the
Lessee. The term "Lease" shall include each Lease Supplement entered into
pursuant to the terms of the Lease.
"Lease Default" shall mean a Lease Event of Default or an event which
with notice or lapse of time or both would become a Lease Event of Default.
"Lease Event of Default" shall mean a Lease Event of Default under the
Lease as specified in Section 14 thereof.
"Lease Supplement" shall mean a Lease Supplement (UTC Trust No.
1998-A) (L-15), dated the Initial Closing Date or the Subsequent Closing Date,
as the case may be, or the date that any Replacement Unit is subjected to the
Lease, substantially in the form of Exhibit A to the Lease, between the Lessor
and the Lessee, covering the Units delivered on the Initial Closing Date or the
Subsequent Closing Date or such Replacement Unit, as the case may be. A
"related" Lease Supplement, when used with respect to any Unit or Units of
Equipment, shall mean the Lease Supplement under which such Unit or Units of
Equipment is or are leased.
"Lease Term" shall mean, with respect to any Unit, the Interim Term
applicable to such Unit, the Basic Term applicable to such Unit and any Renewal
Term applicable to such Unit then in effect.
"Lessee" shall mean Union Tank Car Company, a Delaware corporation,
and its successors and permitted assigns.
"Lessee Agreements" shall mean the Operative Agreements to which
Lessee is or will be a party.
"Lessor" shall have the meaning specified in the recitals to the
Lease.
"Lessor's Liens" means any Lien affecting, on or in respect of the
Equipment, the Lease or the Trust Estate arising as a result of (i) claims
against Lessor (as the Bank or as Owner Trustee) or the Owner Participant, not
related to the transactions contemplated by the Operative Agreements, or (ii)
acts or omissions of the Lessor (as the Bank or as Owner Trustee) or the Owner
Participant not related to the transactions contemplated by the Operative
Agreements or in breach of any covenant or agreement of such Person set forth
in any of the Operative Agreements, or (iii) taxes imposed against the Lessor
(as the Bank or as Owner Trustee) or the Owner Participant or the Trust Estate
which are not indemnified against by the Lessee pursuant to the Participation
Agreement or under the Tax Indemnity Agreement.
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"Lien" shall mean any mortgage, pledge, security interest, lien,
encumbrance, lease, disposition of title or other charge of any kind on
property.
"Limited Use Property" shall have the meaning set forth in Rev. Proc.
76-30, 1976-2 C.B. 647.
"Loan Participant" shall mean and include each registered holder from
time to time of an Equipment Note issued under the Indenture, including, so
long as it holds any Equipment Notes issued thereunder, the Pass Through
Trustee under the Pass Through Trust Agreement.
"Majority In Interest" as of a particular date of determination shall
mean with respect to any action or decision of the holders of the Equipment
Notes, the holders of more than 50% in aggregate unpaid principal amount of the
Equipment Notes, if any, then outstanding which are affected by such decision
or action, excluding any Equipment Notes held by the Owner Participant or the
Lessee or an Affiliate of the Owner Participant or the Lessee unless all
Equipment Notes are so held.
"Make-Whole Amount" shall mean, with respect to the principal amount
of any Equipment Note to be prepaid on any prepayment date, the amount to be
determined as of the third Business Day prior to the applicable prepayment
date, equal to the product obtained by multiplying (a) the excess, if any, of
(i) the sum of the present values of all the remaining scheduled payments of
principal and interest from the prepayment date to maturity of such Equipment
Note, discounted semi-annually on each January 2 and July 2 at a rate equal to
the Treasury Rate, based on a 360-day year of twelve 30-day months, over (ii)
the aggregate unpaid principal amount of such Equipment Note plus any accrued
but unpaid interest thereon by (b) a fraction the numerator of which shall be
the principal amount of such Equipment Note to be prepaid on such prepayment
date and the denominator of which shall be the aggregate unpaid principal
amount of such Equipment Note; provided that the aggregate unpaid principal
amount of such Equipment Note for the purpose of clause (a)(ii) and (b) of this
definition shall be determined after deducting the principal installment, if
any, due on such prepayment date. The Make-Whole Amount will be calculated by
the Investment Banker.
"Modification" shall have the meaning specified in Section 9.2 of the
Lease.
"Multiple Loss" shall have the meaning specified in Section 11.2 of
the Lease.
"Multiple Loss Determination Date" shall have the meaning specified in
Section 11.2 of the Lease.
"Multiple Loss Payment Date" shall have the meaning specified in
Section 11.2 of the Lease.
"Net Economic Return" shall mean the net after-tax book yield and
total after-tax cash flow (but not the pattern of earnings) expected by the
original Owner Participant with respect to the Equipment, utilizing the
multiple investment sinking fund method of analysis and the same assumptions as
used by such Owner Participant in making the computations of Basic Rent,
Stipulated Loss Value, Termination Value, Early Purchase Price, Basic Term
Purchase Price and Outside Date Purchase Price initially set forth in Schedules
3A, 3B, 3C, 4A, 4B, 4C, 5A, 5B, 5C, 7, 7A, 7B, 7C, 8, 8A, 8B, 8C, 9, 9A, 9B and
9C to the Participation Agreement.
"Net Proceeds" shall mean the net amount actually received by Lessor
upon the sale of any Units or the Beneficial Interest, after subtracting all
fees, costs, expenses and withholdings incurred directly or indirectly in
connection with such sale, including, but not limited to, any commissions,
brokerage fees
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or remarketing fees and related costs and expenses paid to any person
(including Lessee), any storage, transportation, reconditioning, removal, or
repair costs and expenses, and reasonable attorneys' fees and disbursements.
"Non-Severable Modification" shall mean any Modification that is not
readily removable without causing material damage to the Equipment or any Unit
or without diminishing the value, utility or remaining useful life of the
Equipment or any Unit below the value, utility or remaining useful life of the
Equipment or such Unit immediately prior to removal of such Modification,
assuming that the Equipment or such Unit is then at least in the condition
required to be maintained by the terms of the Lease other than in a de minimis
nature.
"Officer's Certificate" shall mean a certificate signed (i) in the
case of a corporation by the President, any Vice President, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of such
corporation, (ii) in the case of a partnership by the Chairman of the Board,
the President or any Vice President, the Treasurer or an Assistant Treasurer of
a corporate general partner, and (iii) in the case of a commercial bank or
trust company, the Chairman or Vice Chairman of the Executive Committee or the
Treasurer, any Trust Officer, any Vice President, any Executive or Senior or
Second or Assistant Vice President, or any other officer, assistant officer or
other authorized employee customarily performing the functions similar to those
performed by the persons who at the time shall be such officers, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Operative Agreements" shall mean the Participation Agreement, the
Xxxx of Sale, the Trust Agreement, the Pass Through Trust Agreement, the Pass
Through Certificates, the Equipment Notes, the Lease, the Lease Supplements,
the Indenture, the Indenture Supplements, the Tax Indemnity Agreement, the
insurance side letter and the Underwriting Agreement.
"Outside Date" shall have the meaning specified in Section 22.3 of the
Lease.
"Outside Date Purchase Price" shall mean, with respect to any Unit,
the amount equal to the product of the percentage set forth in Schedules 9, 9A,
9B or 9C, as the case may be, to the Participation Agreement and the Equipment
Cost for such Unit.
"Owner Participant" shall mean FNBC Leasing Corporation and its
successors and permitted assigns.
"Owner Participant Agreements" shall mean the Operative Agreements to
which the Owner Participant is or will be a party.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity but solely in its trust
capacity as Owner Trustee under the Trust Agreement and its successors
thereunder.
"Owner Trustee Agreements" shall mean the Operative Agreements to
which the Owner Trustee, either in its individual or fiduciary capacity, is or
will be a party.
"Participants" shall mean the Loan Participant and the Owner
Participant.
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"Participation Agreement" shall mean the Participation Agreement (UTC
Trust No. 1998-A) (L-15) dated as of March 18, 1998, among the Lessee, the Pass
Through Trustee, the Owner Participant, the Owner Trustee and the Indenture
Trustee.
"Pass Through Certificates" shall mean the Pass Through Certificates
issued pursuant to a Pass Through Trust Agreement.
"Pass Through Trust Agreement" shall mean the Pass Through Trust
Agreement, dated as of March 18, 1998, between the Lessee and the Pass Through
Trustee.
"Pass Through Trustee" shall mean Xxxxxx Trust and Savings Bank, an
Illinois banking corporation, in its capacity as trustee under each Pass
Through Trust Agreement, and each other person which may from time to time be
acting as successor trustee under a Pass Through Trust Agreement.
"Pass Through Trustee Agreements" shall mean the Operative Agreements
to which the Pass Through Trustee is or will be a party.
"Permitted Liens" with respect to the Equipment and each Unit thereof
shall mean: (i) the interests of the Lessee and the Owner Trustee under the
Lease and the Lease Supplements; (ii) the interest of the Lessee and any
sublessee as provided in any sublease permitted pursuant to Section 8.3 of the
Lease; (iii) any Liens thereon for taxes, assessments, levies, fees and other
governmental and similar charges not due and payable or the amount or validity
of which is being contested in good faith by appropriate proceedings so long as
there exists no material risk of sale, forfeiture, loss, or loss of or
interference with use or possession of any Unit or interference with the
payment of Rent; (iv) any Liens of mechanics, suppliers, materialmen, laborers,
employees, repairmen and other like Liens arising in the ordinary course of
Lessee's (or if a sublease is then in effect, any sublessee's) business
securing obligations which are not due and payable or the amount or validity of
which is being contested in good faith by appropriate proceedings so long as
there exists no material risk of sale, forfeiture, loss, or loss of or
interference with use or possession of any Unit or interference with the
payment of Rent; (v) the Lien and security interest granted to the Indenture
Trustee under and pursuant to the Indenture, and the respective rights of the
Loan Participant, the Indenture Trustee, the Owner Participant, the Bank and
the Owner Trustee under the Operative Agreements; (vi) Liens arising out of any
judgment or award against the Lessee (or any sublessee permitted pursuant to
Section 8.3 of the Lease) with respect to which an appeal or proceeding for
review is being presented in good faith and for the payment of which adequate
reserves have been provided as required by generally accepted accounting
principles or other appropriate provisions have been made and with respect to
which there shall have been secured a stay of execution pending such appeal or
proceeding for review and there exists no material risk of sale, forfeiture,
loss, or loss of or interference with the use or possession of any Unit or any
interest therein or interference with the payment of Rent, and (vii) salvage
rights of insurers under insurance policies maintained pursuant to Section 12
of the Lease; provided, however, that the Lessee shall give notice to the Owner
Trustee and the Indenture Trustee of any contest or appeal referred to in
clauses (iii), (iv) or (vi) of the foregoing definition where the amount in
question exceeds $1,000,000.
"Permitted Subleases" shall have the meaning specified in Section 8.3
of the Lease.
"Person" shall mean an individual, partnership, corporation, trust,
association or unincorporated organization, and a government or agency or
political subdivision thereof.
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11
"Quarterly Date" shall mean April 15, June 15, September 15 and
December 15 following the Early Purchase Date, as applicable.
"Refunding Date" shall have the meaning specified in Section 10.2(a)
of the Participation Agreement.
"Registration Statement" shall mean the registration statement filed
by the Lessee (File Number 333-45105), including incorporated documents,
exhibits and financial statements, as amended at the time of the Debt Closing
Date, including any post-effective amendment thereto which has become effective
prior to the Debt Closing Date.
"Related Indemnitee Group" shall have the meaning specified in Section
7.2(b) of the Participation Agreement.
"Remaining Weighted Average Life" shall mean, with respect to any date
of prepayment or any date of determination of any Equipment Note, the number of
days equal to the quotient obtained by dividing (a) the sum of the products
obtained by multiplying (i) the amount of each then remaining principal payment
on such Equipment Note by (ii) the number of days from and including the
prepayment date or date of determination to but excluding the scheduled payment
date of such principal payment by (b) the unpaid principal amount of such
Equipment Note.
"Renewal Term" shall mean, with respect to any Unit, any term in
respect of which the Lessee shall have exercised its option to renew the Lease
for such Unit pursuant to Section 22.4 thereof, including any Fixed Rate
Renewal Term or Fair Market Renewal Term.
"Rent" shall mean all Basic Rent and Supplemental Rent.
"Rent Payment Date" or "Payment Date" shall mean each January 2 and
July 2 of each year occurring during the Lease Term, commencing January 2, 1998
provided that if any such date shall not be a Business Day, then "Rent Payment
Date" or "Payment Date" shall mean the next succeeding Business Day.
"Replacement Unit" shall mean a covered xxxxxx car or a tank car, as
the case may be, which shall have been substituted for another such car and
leased under the Lease pursuant to Section 10.4 or 11.4 of the Lease.
"Required Modification" shall have the meaning specified in Section
9.1 of the Lease.
"Residual Date" shall mean, with respect to any Unit, March 30, 2014
or such later date as Lessee may return such Unit in compliance with Sections
6.1 and 6.2 of the Lease.
"Responsible Officer" shall mean, with respect to the subject matter
of any covenant, agreement or obligation of any party contained in any
Operative Agreement, the President, or any Vice President, Assistant Vice
President, Treasurer, Assistant Treasurer or other officer, who in the normal
performance of his operational responsibility would have knowledge of such
matters and the requirements with respect thereto.
"STB" shall mean the Surface Transportation Board of the Department of
Transportation.
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12
"Scheduled Closing Date" shall have the meaning specified in Section
2.7 of the Participation Agreement.
"Security" shall have the same meaning as in Section 2(1) of the
Securities Act of 1933, as amended.
"Severable Modification" shall mean any Modification that is readily
removable without causing material damage to the Equipment or any Unit and
without diminishing the value, utility or remaining useful life of the
Equipment or any Unit below the value, utility or remaining useful life of the
Equipment or such Unit immediately prior to such Modification, assuming that
the Equipment or such Unit was then at least in the condition required to be
maintained by the terms of the Lease, other than in a de minimis nature.
"Specified Investments" shall mean (i) direct obligations of the
United States of America and agencies thereof for which the full faith and
credit of the United States is pledged, (ii) obligations fully guaranteed by
the United States of America, (iii) certificates of deposit issued by, or
bankers' acceptances of, or time deposits with, any bank, trust company or
national banking association incorporated or doing business under the laws of
the United States of America or one of the States thereof having combined
capital and surplus and retained earnings of at least $500,000,000 (including
the Indenture Trustee or the Bank if such conditions are met), and (iv)
repurchase agreements with any financial institution having a combined capital
and surplus of at least $750,000,000 fully collateralized by obligations of the
type described in clauses (i) and (iii) above; provided that if all of the
above investments are unavailable, the entire amount to be invested may be used
to purchase Federal funds from an entity described in (iii) above; and provided
further that no investment shall be eligible as a "Specified Investment" unless
the final maturity or date of return of such investment is 91 days or less from
the date of purchase thereof.
"Stipulated Loss Value" for any Unit as of any date of determination
shall mean the amount determined by multiplying the Equipment Cost for such
Unit by the percentage set forth in Schedule 4A, 4B or 4C, as the case may be,
to the Participation Agreement opposite the Rent Payment Date or the
Determination Date, as applicable, on which such Stipulated Loss Value is being
determined; provided that during any Renewal Term, "Stipulated Loss Value"
shall be determined as provided in Section 22.6 of the Lease. Anything
contained in the Lease or in the Participation Agreement to the contrary
notwithstanding, Stipulated Loss Value for such Unit (both before and after any
adjustment pursuant to Section 2.6 of the Participation Agreement or any
deduction pursuant to Section 3.5 of the Lease) will, under any circumstances
and in any event, be an amount which, together with any other amounts required
to be paid by Lessee under the Lease in connection with an Event of Loss, will
be at least sufficient to pay in full as of the date of payment thereof the
aggregate unpaid principal of the Equipment Notes issued in respect of such
Unit, together with all unpaid interest and Make-Whole Amount, if any, thereon
accrued to the date on which such amount is paid in accordance with the terms
hereof and all other amounts then due to the holders of the Equipment Notes.
"Storage Period" shall have the meaning specified in Section 6.1(c) of
the Lease.
"Subsequent Closing Date" shall have the meaning specified in
Section 2.1 of the Participation Agreement.
"Subsidiary" of any Person shall mean any corporation, association, or
other business entity of which more than 50% (by number of votes) of the voting
stock at the time outstanding shall at the time
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13
be owned, directly or indirectly, by such Person or by any other corporation,
association or trust which is itself a Subsidiary within the meaning of this
definition, or collectively by such Person and any one or more such
Subsidiaries.
"Supplemental Rent" shall mean all amounts, liabilities and
obligations (other than Basic Rent) which the Lessee assumes or agrees to pay
under the Operative Agreements to or on behalf of any of the other parties
thereto, including, but not limited to, Termination Value and Stipulated Loss
Value payments.
"Taxes" shall have the meaning specified in Section 7.1(b) of the
Participation Agreement.
"Tax Indemnitee" shall have the meaning specified in Section 7.1 of
the Participation Agreement.
"Tax Indemnity Agreement" shall mean the Tax Indemnity Agreement dated
March 30, 1998 between the Lessee and the Owner Participant.
"10-Pay Period" shall have the meaning specified in Section 5.04(a) of
the Indenture.
"Terminated Units" shall have the meaning specified in Section 10.1 of
the Lease.
"Termination Date" shall have the meaning specified in Section 10.1 of
the Lease.
"Termination Value" for any Unit as of any date of determination shall
mean the amount determined by multiplying the Equipment Cost for such Unit by
the percentage set forth in Schedule 5A, 5B or 5C, as the case may be, to the
Participation Agreement opposite the Rent Payment Date or the Determination
Date, as applicable, on which such Termination Value is being determined;
provided that during any Renewal Term, "Termination Value" shall be determined
as provided in Section 22.6 of the Lease. Anything contained in the Lease or
in the Participation Agreement to the contrary notwithstanding, Termination
Value for such Unit (both before and after any adjustment pursuant to Section
2.6 of the Participation Agreement or any deduction pursuant to Section 3.5 of
the Lease) will, under any circumstances and in any event, be an amount which,
together with any other amounts required to be paid by Lessee under the Lease
in connection with such termination, will be at least sufficient to pay in full
as of the date of payment thereof the aggregate unpaid principal of the
Equipment Notes issued in respect of such Unit, together with all unpaid
interest and Make-Whole Amount, if any, thereon accrued to the date on which
such amount is paid in accordance with the terms thereof and all other amounts
then due to the holders of the Equipment Notes.
"30-Day Period" shall have the meaning specified in Section 5.04(a) of
the Indenture.
"Total Equipment Cost" shall mean the sum of the Equipment Cost for
each Unit.
"Transaction Costs" shall have the meaning specified in Section 2.5(a)
of the Participation Agreement.
"Transferee" shall have the meaning specified in Section 6.1(a) of the
Participation Agreement.
"Treasury Rate" shall mean with respect to prepayment of each
Equipment Note, a per annum rate (expressed as a semi-annual equivalent and as
a decimal and, in the case of U.S. Treasury bills, converted to a bond
equivalent yield), determined to be the per annum rate equal to the semi-annual
yield
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14
to maturity for U.S. Treasury securities maturing on the Average Life Date of
such Equipment Note, as determined by interpolation between the most recent
weekly average yields to maturity for two series of U.S. Treasury securities,
(A) one maturing as close as possible to, but earlier than, the Average Life
Date of such Equipment Note and (B) the other maturing as close as possible to,
but later than, the Average Life Date of such Equipment Note, in each case as
published in the most recent H.15(519) (or, if a weekly average yield to
maturity for United States Treasury securities maturing on the Average Life
Date of such Equipment Note is reported in the most recent H.15(519), as
published in H.15(519)). H.15(519) means "Statistical Release H.15(519),
Selected Interest Rates," or any successor publication, published by the Board
of Governors of the Federal Reserve System. The most recent H.15(519) means
the latest H.15(519) which is published prior to the close of business on the
fourth Business Day preceding the scheduled prepayment date.
"Trust" shall have the meaning specified in the Trust Agreement.
"Trust Agreement" shall mean that certain Trust Agreement (UTC Trust
No. 1998-A) (L-15), dated as of March 18, 1998, between the Owner Participant
and the Owner Trustee.
"Trust Estate" shall have the meaning set forth in the Trust
Agreement.
"Trustee" shall mean each of the Owner Trustee, the Indenture Trustee
or the Pass Through Trustee and "Trustees" shall mean the Owner Trustee,
Indenture Trustee and the Pass Through Trustee, collectively.
"Underwriter" shall mean Salomon Brothers Inc.
"Underwriting Agreement" shall mean that certain Underwriting
Agreement between the Lessee and the Underwriter, pertaining to the sale of the
Pass Through Certificates.
"Unit" shall mean each unit or item of Equipment.
"Unrealized Residual Value" shall mean an amount equal to the excess
of (a) an amount equal to 7.75% of the Equipment Cost of the Units being sold
over (b) any Net Proceeds from the sale of such Units or the Beneficial
Interest.
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