EXHIBIT 4.4
FORM OF
________________________________________________
TRUST INDENTURE AND SECURITY AGREEMENT
(GARC II 98-A)
Dated as of September 1, 1998
between
GARC II 98-A RAILCAR TRUST,
By: Wilmington Trust Company,
not in its individual capacity, except as expressly provided herein,
but solely as Owner Trustee
and
STATE STREET BANK AND TRUST COMPANY,
as Indenture Trustee
Tank Cars and Covered Xxxxxx Cars
________________________________________________
TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS
Section 1.1. Certain Definitions......................................................... 4
ARTICLE II. THE EQUIPMENT NOTES
Section 2.1. Form of Equipment Notes..................................................... 4
Section 2.2. Terms of Equipment Notes.................................................... 9
Section 2.3. Payment from Indenture Estate Only.......................................... 10
Section 2.4. Method of Payment........................................................... 10
Section 2.5. Application of Payments to Principal Amount, Premium and Interest........... 11
Section 2.6. Termination of Interest in Indenture Estate................................. 11
Section 2.7. Transfer of Equipment Notes................................................. 11
Section 2.8. Mutilated, Destroyed, Lost or Stolen Equipment Notes........................ 12
Section 2.9. Payment of Transfer Taxes................................................... 12
Section 2.10. Prepayments................................................................. 13
Section 2.11. Equally and Ratably Secured................................................. 15
ARTICLE III. RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME
FROM THE INDENTURE ESTATE; ASSUMPTION OF
OBLIGATIONS OF THE OWNER TRUSTEE BY THE LESSEE
Section 3.1. Basic Rent Distribution..................................................... 15
Section 3.2. Payments in the Event of Prepayment......................................... 16
Section 3.3. Payments after Indenture Default or Indenture Event of Default.............. 17
Section 3.4. Other Payments.............................................................. 18
Section 3.5. Distribution of Excepted Property........................................... 19
Section 3.6. Assumption of Obligations of Owner Trustee by the Lessee.................... 19
ARTICLE IV. REMEDIES OF THE INDENTURE TRUSTEE UPON AN INDENTURE
EVENT OF DEFAULT
Section 4.1. Indenture Events of Default................................................. 21
Section 4.2. Acceleration; Rescission and Annulment...................................... 22
Section 4.3. Remedies with Respect to Indenture Estate................................... 23
Section 4.4. Right to Cure; Option to Purchase; Etc...................................... 26
Section 4.5. Rights of Lessee............................................................ 28
Section 4.6. Waiver of Existing Defaults................................................. 29
ARTICLE V. DUTIES OF THE INDENTURE TRUSTEE
Section 5.1. Action upon Indenture Event of Default...................................... 29
Section 5.2. Action upon Instructions.................................................... 30
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Section 5.3. Indemnification............................................................. 30
Section 5.4. No Duties Except as Specified in Indenture or Instructions.................. 31
Section 5.5. No Action Except under Lease, Indenture or Instructions..................... 31
Section 5.6. Disposition of Units........................................................ 31
Section 5.7. Indenture Supplements for Replacements...................................... 31
Section 5.8. Effect of Replacements...................................................... 32
Section 5.9. Withholding Taxes........................................................... 32
Section 5.10. Lessee's Right of Quiet Enjoyment........................................... 32
Section 5.11. Certain Rights of Owner Trustee and Owner Participant....................... 32
ARTICLE VI. THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE
Section 6.1. Acceptance of Trusts and Duties............................................. 34
Section 6.2. Absence of Duties........................................................... 35
Section 6.3. No Representations or Warranties as to the Equipment or Documents........... 35
Section 6.4. No Segregation of Moneys; No Interest; Investments.......................... 35
Section 6.5. Reliance; Agents; Advice of Counsel......................................... 36
Section 6.6. Not Acting in Individual Capacity........................................... 37
ARTICLE VII. CERTAIN LIMITATIONS ON OWNER TRUSTEE'S
AND INDENTURE TRUSTEE'S RIGHTS
ARTICLE VIII. SUCCESSOR TRUSTEES
Section 8.1. Notice of Successor Owner Trustee........................................... 37
Section 8.2. Resignation of Indenture Trustee; Appointment of Successor.................. 38
ARTICLE IX. SUPPLEMENTS AND AMENDMENTS TO THIS INDENTURE AND OTHER
DOCUMENTS
Section 9.1. Supplemental Indentures without Consent of Holders.......................... 39
Section 9.2. Indenture Trustee Protected................................................. 41
Section 9.3. Request of Substance, Not Form.............................................. 41
Section 9.4. Documents Mailed to Holders................................................. 41
Section 9.5. Amendments, Waivers, Etc. of Other Documents................................ 41
ARTICLE X. MISCELLANEOUS
Section 10.1. Termination of Indenture.................................................... 44
Section 10.2. No Legal Title to Indenture Estate in Holders............................... 44
Section 10.3. Sale of Equipment by Indenture Trustee is Binding........................... 44
Section 10.4. Remedies Cumulative......................................................... 44
Section 10.5. Discontinuance of Proceedings............................................... 45
Section 10.6. Indenture and Equipment Notes for Benefit of Owner Trustee, Indenture
Trustee, Owner Participant and Holders Only................................. 45
Section 10.7. Notices..................................................................... 45
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Section 10.8. Severability................................................................ 47
Section 10.9. Separate Counterparts....................................................... 47
Section 10.10. Successors and Assigns...................................................... 47
Section 10.11. Headings.................................................................... 47
Section 10.12. Governing Law............................................................... 47
Section 10.13. Normal Commercial Relations................................................. 47
Section 10.14. No Recourse Against Others.................................................. 48
Section 10.15. Intercreditor Agreement..................................................... 48
APPENDICES, EXHIBITS AND ANNEXES
EXHIBIT A - Form of Trust Indenture Supplement
EXHIBIT B - Terms of Equipment Notes
EXHIBIT C - Loan Participant
ANNEX A - Rated Amortization Schedule
ANNEX B - Scheduled Amortization Schedule
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TRUST INDENTURE AND SECURITY AGREEMENT
(GARC II 98-A)
This TRUST INDENTURE AND SECURITY AGREEMENT (GARC II 98-A) dated as of
September 1, 1998 (this "Indenture"), is by and between GARC II 98-A Railcar
Trust, by Wilmington Trust Company, not in its individual capacity, except as
otherwise expressly set forth herein, but solely as trustee under the Trust
Agreement referred to below and any successor appointed in accordance with the
terms hereof and of the Trust Agreement (in such trustee capacity, the "Owner
Trustee"), and State Street Bank and Trust Company, a national banking
association, as Indenture Trustee hereunder and any successor appointed in
accordance with the terms hereof (the "Indenture Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Owner Participant and the Owner Trustee in its individual
capacity have entered into the Trust Agreement pursuant to which, among other
things, (i) the Owner Trustee establishes a certain trust for the use and
benefit of the Owner Participant, subject, however, to the Indenture Estate
created pursuant hereto for the use and benefit of, and with the priority of
payment to, the holders of the Equipment Notes, and (ii) the Owner Trustee is
authorized and directed to execute and deliver this Indenture;
WHEREAS, the Owner Trustee and the Indenture Trustee desire by this
Indenture, among other things, (i) to provide for the issuance by the Owner
Trustee of the Equipment Notes, and (ii) to provide for the assignment, mortgage
and pledge by the Owner Trustee to the Indenture Trustee, as part of the
Indenture Estate hereunder, among other things, of, and the grant of a security
interest in, certain of the Owner Trustee's right, title and interest in and to
the Equipment and the Lease and certain payments and other amounts received
hereunder or thereunder, in accordance with the terms hereof, in trust, as
security for, among other things, the Owner Trustee's obligations for the equal
and ratable benefit of the holders of the Equipment Notes; and
WHEREAS, all things necessary to make this Indenture the legal, valid and
binding obligation of the Owner Trustee and the Indenture Trustee, for the uses
and purposes herein set forth, in accordance with its terms, have been done and
performed and have happened.
GRANTING CLAUSE
NOW, THEREFORE, 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 Equipment Notes from time to time outstanding hereunder and the
performance and observance by the Owner Trustee of all the agreements, covenants
and provisions contained herein, in the other Operative Agreements and in the
Equipment Notes all for the benefit of the holders of the Equipment Notes, and
the prompt payment of any and all amounts from time to time owing hereunder and
under the other Operative Agreements by the Owner Trustee, the Owner Participant
and the Lessee to the holders of the Equipment 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
Equipment Notes by the Loan
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Trust Indenture and Security Agreement (GARC II 98-A)
Participant, the Owner Trustee does hereby sell, assign, transfer, convey,
mortgage, pledge, and confirm unto the Indenture Trustee, its successors and
assigns, for the security and benefit of the holders of the Equipment Notes from
time to time, a security interest in and mortgage lien on all right, title and
interest of the Owner Trustee in and to the following described property,
rights, interests and privileges insofar as it does not constitute Excepted
Property or Excepted Rights (which collectively, including all property
hereafter required to be subjected to the Lien of this Indenture by any
instrument supplemental hereto, but excluding Excepted Property and Excepted
Rights, being herein called the "Indenture Estate"), to wit:
(1) the Lease (including, without limitation, all amounts of Basic Rent,
Supplemental Rent, insurance proceeds and other payments of any kind for or with
respect to the Equipment), the Participation Agreement, the Transfer and
Contribution Agreement, the Intercreditor Agreement, the GATC Xxxx of Sale and
the Xxxx of Sale;
(2) the Equipment, the Replacement Units and all substitutions therefor in
which the Owner Trustee shall from time to time acquire an interest under the
Lease, all as more particularly described in the Indenture Supplements and Lease
Supplements executed and delivered with respect to the Equipment or any such
Replacement Units or any substitutions therefor, as provided in this Indenture
and the Lease;
(3) all requisition proceeds with respect to the Equipment or any Unit
thereof (to the extent of the Owner Trustee's interest therein pursuant to the
terms of the Lease);
(4) all monies and securities now or hereafter paid or deposited or
required to be paid or deposited with the Indenture Trustee pursuant to any term
of this Indenture, the Lease or the Participation Agreement or required to be
held by the Indenture Trustee hereunder or thereunder (including, without
limitation, the Payment Account); and
(5) all proceeds of the foregoing;
PROVIDED, HOWEVER, that the foregoing granting clause shall not subject to the
Lien of this Indenture any (i) Excepted Rights, (ii) Excepted Property or (iii)
payment of amounts which have been distributed to the Owner Trustee or any other
Person in accordance with the provisions of this Indenture.
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, in trust for the benefit and
security of the holders of the Equipment Notes from time to time, without any
priority of any one Equipment Note over any other, and for the uses and
purposes, and subject to the terms and provisions, set forth in this Indenture.
It is expressly agreed that, notwithstanding anything to the contrary
contained herein, the Owner Trustee shall remain liable under each of the
Operative Agreements to which it is a party to perform all of the obligations,
if any, assumed by it thereunder, all in accordance with and
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Trust Indenture and Security Agreement (GARC II 98-A)
pursuant to the terms and provisions thereof, and the Indenture Trustee and the
holders of the Equipment Notes shall have no obligation or liability under any
of the Operative Agreements to which the Owner Trustee is a party by reason of
or arising out of this assignment, nor shall the Indenture Trustee (unless the
Indenture Trustee shall have become the "Lessor" under the Lease) or the holders
of the Equipment Notes be required or obligated in any manner to perform or
fulfill any obligations of the Owner Trustee under or pursuant to any of the
Operative Agreements to which the Owner Trustee is a party or, except as herein
expressly provided, to make any payment, or to make any inquiry as to the nature
or sufficiency of any payment received by it, or present or file any claim, or
take any action to collect or enforce the payment of any amounts which may have
been assigned to it or to which it may be entitled at any time or times.
The Owner Trustee does hereby constitute the Indenture Trustee the true and
lawful attorney of the Owner Trustee, irrevocably, with full power (in the name
of the Owner Trustee or otherwise), to ask, require, demand, receive, compound
and give acquittance for any and all moneys and claims for moneys due and to
become due to the Owner Trustee (other than Excepted Property), under or arising
out of the Lease and the other Operative Agreements and all other property which
now or hereafter constitutes part of the Indenture Estate, or to endorse any
checks or other instruments or orders in connection therewith and to file any
claims or take any action or institute any proceedings which the Indenture
Trustee may deem to be necessary or advisable in the premises. The Owner
Trustee has directed the Lessee to make all payments of Rent (other than
Excepted Property) payable to the Owner Trustee by the Lessee and all other
amounts which are required to be paid to or deposited with the Owner Trustee
pursuant to the Lease (other than Excepted Property) directly to the Indenture
Trustee at such address as the Indenture Trustee shall specify, for application
as provided in this Indenture. The Owner Trustee agrees that promptly on
receipt thereof, it will transfer to the Indenture Trustee any and all moneys
from time to time received by it constituting part of the Indenture Estate, for
distribution by the Indenture Trustee pursuant to this Indenture, except that
the Owner Trustee shall accept for distribution pursuant to the Trust Agreement
any amounts distributed to it by the Indenture Trustee as expressly provided in
this Indenture and any Excepted Property.
The Owner Trustee agrees that at any time and from time to time, upon the
written request of the Indenture Trustee, the Owner Trustee will promptly and
duly execute and deliver or cause to be executed and delivered any and all such
further instruments and documents as the Indenture Trustee may reasonably deem
to be necessary in order to obtain the full benefits of this assignment and of
the rights and powers herein granted.
The Owner Trustee does hereby warrant and represent that it has not
assigned or pledged, and hereby covenants that it will not assign or pledge, so
long as the assignment hereunder shall remain in effect, any of its right, title
or interest hereby assigned, to anyone other than the Indenture Trustee, and
that it will not (other than in respect of Excepted Property), except as
provided in or permitted by this Indenture, accept any payment from the Lessee,
enter into an agreement amending or supplementing any of the Operative
Agreements, execute any waiver or modification of, or consent under the terms of
any of the Operative Agreements (other than the
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Trust Indenture and Security Agreement (GARC II 98-A)
Tax Indemnity Agreement), settle or compromise any claim (other than claims in
respect of Excepted Property) against the Lessee arising under any of the
Operative Agreements, or submit or consent to the submission of any dispute,
difference or other matter arising under or in respect of any of the Operative
Agreements, to arbitration thereunder.
IT IS HEREBY COVENANTED AND AGREED by and between the parties hereto as
follows:
ARTICLE I. DEFINITIONS
Section 1.1. Certain Definitions. Unless the context otherwise requires,
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all capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Equipment Lease Agreement (GARC II 98-A) dated as of
September 1, 1998 (the "Lease") between the Owner Trustee and General American
Railcar Corporation II, a Delaware corporation. All references to articles,
sections, clauses, schedules and appendices in this Indenture are to articles,
sections, clauses, schedules, exhibits, annexes and appendices in and to this
Indenture unless otherwise indicated.
ARTICLE II. THE EQUIPMENT NOTES
Section 2.1. Form of Equipment Notes. The Equipment Notes shall be
-----------------------
substantially in the form set forth below:
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Trust Indenture and Security Agreement (GARC II 98-A)
_____% EQUIPMENT NOTE
(GARC II 98-A)
(Secured by, among others, Lease Obligations of
General American Railcar Corporation II)
Issued in Connection with certain Railroad Rolling Stock
No. ______ Chicago, Illinois
$_____________ ____________________, 1998
GARC II 98-A Railcar Trust, by Wilmington Trust Company, not in its
individual capacity, but solely as owner trustee (herein in such capacity called
the "Owner Trustee") under that certain Trust Agreement (GARC II 98-A), dated as
of September 1, 1998, as from time to time supplemented and amended (herein
called the "Trust Agreement"), between the Owner Trustee in its individual
capacity and the institution referred to therein as the "Owner Participant",
hereby promises to pay to __________________, or registered assigns, the
principal sum of $________________ (or such lesser amount as shall equal the
unpaid principal amount of this Equipment Note), in lawful currency of the
United States of America, on the Rated Maturity Date and on each Payment Date
commencing on ___________ ____, 1998 that precedes the Rated Maturity Date, (i)
the principal amount required to be paid on such date by Sections 2.2 and 3.1 of
the Indenture, (ii) interest (computed on the basis of a 360-day year of twelve
30-day months) on the unpaid principal balance hereof, from and including the
date hereof or the most recent Payment Date for which interest has been duly
paid to but excluding such Payment Date at the Debt Rate, (iii) without
duplication of any amount payable pursuant to clause (ii), interest (computed on
the basis of a 360-day year of twelve 30-day months) on any Rated Amortization
of this Equipment Note, and, to the extent lawful, interest payable under the
foregoing clause (ii), that is not paid on the date such principal or interest
becomes due and payable, for the period from and including the date such Rated
Amortization becomes due and payable to but excluding the date such principal is
paid in full, at the Default Rate, (iv) any Premium required to be paid on such
date by Sections 2.2 and 3.1 of the Indenture, and (v) any interest (computed on
the basis of a 360-day year of twelve 30-day months) required to be paid on such
date by Sections 2.2 and 3.1 of the Indenture on any Premium payable on this
Equipment Note.
All payments of principal and interest and Premium, if any, to be made
hereunder and under the Trust Indenture and Security Agreement (GARC II 98-A),
dated as of September 1, 1998 as from time to time amended and supplemented
(herein called the "Indenture"; unless otherwise defined herein, defined terms
used herein shall have the meanings assigned to such terms in the Indenture),
between the Owner Trustee and State Street Bank and Trust Company, as Indenture
Trustee thereunder for the holder of this Equipment Note and the holders of
other Equipment Notes outstanding thereunder (in such capacity, the "Indenture
Trustee") shall be made only from the income and proceeds from the Indenture
Estate and only to the extent that the Indenture Trustee shall have sufficient
income or proceeds from the Indenture Estate to make
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Trust Indenture and Security Agreement (GARC II 98-A)
such payments in accordance with the terms of Article III of the Indenture. Each
holder hereof, by its acceptance of this Equipment Note, agrees that it will
look solely to the income and proceeds from the Indenture Estate to the extent
available for distribution to the holder hereof as provided in the Indenture and
that none of the Owner Trustee, the Owner Participant, the Indenture Trustee or
their permitted successors and assigns is or shall be personally liable to the
holder hereof for any amount payable under this Equipment Note or the Indenture
or, except as expressly provided in the Participation Agreement or the
Indenture, for any liability under the Participation Agreement or (in the case
of the Owner Trustee or the Indenture Trustee) the Indenture.
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 the Indenture
Trustee, or as otherwise provided in the Indenture. Each such payment shall be
made on the date such payment is due and without any presentment or surrender of
this Equipment Note, except as provided in Section 2.4. 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 that 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 Equipment Note, agrees that
each payment received by it hereunder shall be applied in the order of priority
set forth in Article III of the Indenture.
This Equipment Note is one of the Equipment Notes referred to in the
Indenture which have been or are to be issued by the Owner Trustee pursuant to
the terms of the Indenture and relates to the Units described in Lease
Supplement No. __. The Indenture Estate is held by the Indenture Trustee as
security for the Equipment Notes. 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 Equipment Note, as well as for a statement of the terms and
conditions of the trusts created by the Indenture, to all of which terms and
conditions in the Indenture each holder hereof agrees by its acceptance of this
Equipment Note.
This Equipment Note is not subject to redemption or prepayment except as
provided in Sections 2.10, 3.2 and 3.3 of the Indenture. This Equipment Note is
subject to purchase by the Owner Trustee as provided in Section 4.4(b) of the
Indenture (including purchase without Make-Whole Amount under certain
circumstances as described therein). The holder hereof, by its acceptance of
this Equipment Note, agrees to be bound by said provisions.
This Equipment Note is a registered Equipment Note and is transferable, as
provided in the Indenture, only upon surrender of this Equipment Note for
registration of transfer duly endorsed by, or accompanied by a written statement
of transfer duly executed by, the registered
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Trust Indenture and Security Agreement (GARC II 98-A)
holder hereof or his attorney duly authorized in writing. Prior to the due
presentation for registration of transfer of this Equipment Note, the Owner
Trustee and the Indenture Trustee may deem and treat the registered holder of
this Equipment Note as the absolute owner and holder hereof for the purpose of
receiving payment of all amounts payable with respect hereto and for all other
purposes and shall not be affected by any notice to the contrary.
THIS EQUIPMENT NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE TRANSFERRED IN VIOLATION OF SUCH ACT. THIS
EQUIPMENT NOTE SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Indenture Trustee by manual signature, this Equipment Note shall
not be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
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Trust Indenture and Security Agreement (GARC II 98-A)
IN WITNESS WHEREOF, the Owner Trustee has caused this Equipment Note to be
executed by one of its authorized officers as of the date hereof.
GARC II 98-A RAILCAR TRUST, by Wilmington
Trust Company, not in its individual capacity, but
solely as Owner Trustee
By:______________________________________
Name:____________________________________
Title:___________________________________
FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Equipment Notes referred to in the within-mentioned
Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Indenture Trustee
By:_______________________________________
Authorized Officer
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Trust Indenture and Security Agreement (GARC II 98-A)
Section 2.2. Terms of Equipment Notes. There shall be issued and
------------------------
delivered to the Loan Participant one Equipment Note related to the Lease
Supplement executed and delivered in respect of the Units delivered on the
Closing Date in the maturity, principal amount and bearing the interest rate as
set forth in Exhibit B hereto, and the Equipment Note related to each such Lease
Supplement shall be in a principal amount equal to the loan made by the Loan
Participant to the Owner Trustee pursuant to Section 2 of the Participation
Agreement relating to the Units under such Lease Supplement. Such Equipment
Note shall evidence the loan made by the Loan Participant in connection with the
purchase of the Equipment by the Owner Trustee from the Lessee, shall be
substantially in the form set forth in Section 2.1, with deletions and
insertions as appropriate, and duly authenticated by the Indenture Trustee and
dated the Closing Date of the Equipment.
The principal amount of, Premium, if any, and interest on the Equipment
Notes issued pursuant to the provisions of this Indenture shall be payable as
follows:
(i) accrued and unpaid Regular Interest on the Equipment Notes
shall become due and payable on each Payment Date commencing on
____________ ____, 1998;
(ii) on each Payment Date that precedes the Rated Maturity
Date, there shall become due and payable an aggregate unpaid principal
amount of the outstanding Equipment Notes equal to the Rated Amortization
Amount at such Payment Date;
(iii) on each Payment Date that precedes the Rated Maturity
Date, there shall become due and payable, in addition to any aggregate
unpaid principal amount of the outstanding Equipment Notes that becomes due
and payable on that Payment Date pursuant to clause (ii) above, an
aggregate unpaid principal amount of the outstanding Equipment Notes equal
to any Scheduled Obligations Due;
(iv) any accrued and unpaid Default Interest on the Equipment
Notes shall become due and payable on each Payment Date;
(v) if the Scheduled Amortization Amount at any Payment Date
exceeds the aggregate principal amount of the Equipment Notes paid on that
Payment Date, then (y) the amount equal to the difference between (1) the
greater of (A) the principal amount of the Equipment Notes paid on such
Payment Date and (B) the Rated Amortization Amount payable on such Payment
Date and (2) the Scheduled Amortization Amount payable on such Payment Date
shall constitute a "Payment Deficiency" for the period from and including
that Payment Date to but excluding the next succeeding Payment Date and (z)
on the next succeeding Payment Date, there shall become payable a Late
Payment Premium with respect to such Payment Deficiency.
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Trust Indenture and Security Agreement (GARC II 98-A)
Notwithstanding the foregoing, the final payment made under each Equipment
Note shall be in an amount sufficient to discharge in full the unpaid principal
of and all accrued and unpaid interest on, unpaid Premium (if any), and any
other amounts due under, such Equipment Note.
Any unpaid portion of Late Payment Premium that has accrued under the
Equipment Notes shall bear interest (computed on the basis of a 360-day year of
twelve 30-day months) from the date such Late Payment Premium became payable
until such Late Payment Premium is paid in full at a rate per annum equal to
1.5%. The Owner Trustee shall cause such interest to be paid on such amount on
the date or dates provided for in this Indenture, pro rata among the Equipment
Notes.
All amounts payable pursuant to this Section 2.2 shall be payable from
funds to be withdrawn from the Payment Account pursuant to Section 3.1 in the
priority set forth therein.
No Equipment Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless it shall have been authenticated
by or on behalf of the Indenture Trustee by manual signature.
Section 2.3. Payment from Indenture Estate Only. All payments to be made
----------------------------------
under the Equipment Notes and this Indenture shall be made only from the income
and the proceeds from the Indenture Estate and only to the extent that the
Indenture Trustee shall have received sufficient income or proceeds from the
Indenture Estate to make such payments in accordance with the terms of Article
III hereof. Each holder of an Equipment Note, by its acceptance of such
Equipment Note, agrees that it will look solely to the income and proceeds from
the Indenture Estate to the extent available for distribution to such holder as
herein provided and that none of the Owner Trustee, the Owner Participant, the
Indenture Trustee or their permitted successors and assigns is or shall be
personally liable to the holder of any Equipment Note for any amount payable
under such Equipment Note or the Indenture or, except as expressly provided in
the Participation Agreement or the Indenture, for any liability under the
Participation Agreement or (in the case of the Owner Trustee or the Indenture
Trustee) the Indenture.
Section 2.4. Method of Payment. (a) The principal of and Premium, if any,
-----------------
and interest on each Equipment Note will be payable in U.S. dollars in
immediately available funds at the principal corporate trust administration
office of the Indenture Trustee or as otherwise directed in the manner provided
herein. Notwithstanding the foregoing or any provision in any Equipment Note to
the contrary, the Indenture Trustee will pay, or cause to be paid, if so
requested by any holder of an Equipment Note by written notice to the Owner
Trustee and the Indenture Trustee, all amounts payable by the Owner Trustee
hereunder to such holder or a nominee therefor either (i) by transferring by
wire in immediately available funds to an account maintained by such holder with
a bank in the United States the amount to be distributed to such holder or (ii)
by mailing a check denominated in U.S. dollars to such holder at such address as
such holder shall have specified in such notice, in any case without any
presentment or surrender of any Equipment Note, except that the holder of an
Equipment Note shall surrender such Equipment Note to the Indenture Trustee upon
payment in full of the principal amount of and interest on such
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Trust Indenture and Security Agreement (GARC II 98-A)
Equipment Note and such other sums payable to such holder hereunder or under the
Equipment Note.
(b) Whenever the date scheduled for any payment to be made hereunder
or under any Equipment Note 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 that 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.
Section 2.5. Application of Payments to Principal Amount, Premium and
--------------------------------------------------------
Interest. In the case of each Equipment Note, each payment of principal thereof
--------
and Premium, if any, and interest thereon shall be applied in the order of
priority set forth in Article III hereof; provided, that the Owner Trustee may
only prepay such Equipment Note in accordance with the provisions of Sections
2.10, 3.2 and 3.3 hereof.
Section 2.6. Termination of Interest in Indenture Estate. A holder shall
-------------------------------------------
have no further interest in, or other right with respect to, the Indenture
Estate when and if the principal amount of and interest on all Equipment Notes
held by such holder and all other sums payable to such holder hereunder and
under such Equipment Notes and under the Participation Agreement shall have been
paid in full.
Section 2.7. Transfer of Equipment Notes. The Indenture Trustee shall
---------------------------
maintain at its corporate trust administration office in Boston, Massachusetts
or in the city in which the corporate trust office of a successor Indenture
Trustee is located, a register for the purpose of registering transfers and
exchanges of Equipment Notes. A holder of an Equipment Note intending to
transfer such Equipment Note to a new payee, or to exchange any Equipment Note
or Equipment Notes held by it for an Equipment Note or Equipment Notes of a
different denomination or denominations, may surrender such Equipment Note or
Equipment Notes to the Indenture Trustee at such principal corporate trust
administration office of the Indenture Trustee, together with a written request
from such holder for the issuance of a new Equipment Note or Equipment Notes,
specifying the denomination or denominations (each of which shall be not less
than $1,000,000 or a whole multiple thereof or such smaller denomination as may
be necessary due to the original issuance of Equipment Notes of the applicable
maturity in an aggregate principal amount not evenly divisible by $1,000,000) of
the same, and, in the case of a surrender for registration of transfer, the name
and address of the transferee or transferees. Promptly upon receipt of such
documents, the Owner Trustee will issue, and the Indenture Trustee will
authenticate, a new Equipment Note or Equipment Notes in the same aggregate
principal amount and dated the same date or dates as, with the same payment
schedule, in the form set forth in Section 2.1, having the same maturity and
bearing the same interest rate as the Equipment Note or Equipment Notes
surrendered, in such denomination or denominations and payable to such payee or
payees as shall be specified in the written request from such holder. All
Equipment Notes issued upon any registration of transfer or exchange of
Equipment Notes shall be the valid obligations of the Owner Trustee evidencing
the same respective obligations, and entitled to the
11
Trust Indenture and Security Agreement (GARC II 98-A)
same security and benefits under this Indenture, as the Equipment Notes
surrendered upon such registration of transfer or exchange. The Indenture
Trustee shall make a notation on each new Equipment Note or Equipment Notes of
the amount of all payments or prepayments of principal and interest previously
made on the old Equipment Note or Equipment Notes with respect to which such new
Equipment Note or Equipment Notes is or are issued. From time to time, the
Indenture Trustee will provide the Owner Trustee and the Lessee with such
information as either of them may request as to the registered holders of
Equipment Notes. The Owner Trustee shall not be required to exchange any
surrendered Equipment Notes as above provided during the 10-day period preceding
the due date of any payment on such Equipment Notes.
Prior to the due presentment for registration of transfer of an Equipment
Note, the Owner Trustee and the Indenture Trustee may deem and treat the
registered holder of such Equipment Note as the absolute owner and holder of
such Equipment Note for the purpose of receiving payment of all amounts payable
with respect to such Equipment Note and for all other purposes and shall not be
affected by any notice to the contrary.
The Indenture Trustee will promptly notify the Owner Trustee and the Lessee
of each request for a registration of transfer of an Equipment Note. The
Indenture Trustee will promptly cancel and destroy all Equipment Notes
surrendered for transfer or exchange pursuant to this Section.
Section 2.8. Mutilated, Destroyed, Lost or Stolen Equipment Notes. If any
----------------------------------------------------
Equipment Note shall become mutilated, destroyed, lost or stolen, the Owner
Trustee shall, upon the written request of the holder of such Equipment Note,
issue, and the Indenture Trustee shall authenticate and deliver in replacement
thereof, a new Equipment Note in the form set forth in Section 2.1, payable to
the same holder in the same principal amount, of the same maturity, with the
same payment schedule, bearing the same interest rate and dated the same date as
the Equipment Note so mutilated, destroyed, lost or stolen. The Indenture
Trustee shall make a notation on each new Equipment Note of the amount of all
payments or prepayments of principal and interest theretofore made on the
Equipment Note so mutilated, destroyed, lost or stolen and the date to which
interest on such old Equipment Note has been paid. If the Equipment Note being
replaced has become mutilated, such Equipment Note shall be surrendered to the
Indenture Trustee and forwarded to the Owner Trustee by the Indenture Trustee.
If the Equipment Note being replaced has been destroyed, lost or stolen, the
holder of such Equipment Note shall furnish to the Owner Trustee and the
Indenture Trustee such security or indemnity as may be required by them to save
the Owner Trustee and the Indenture Trustee harmless and evidence satisfactory
to the Owner Trustee and the Indenture Trustee of the destruction, loss or theft
of such Equipment Note and of the ownership thereof.
Section 2.9. Payment of Transfer Taxes. Upon the transfer of any
-------------------------
Equipment Note or Equipment Notes pursuant to Section 2.7, the Owner Trustee or
the Indenture Trustee may require from the party requesting such new Equipment
Note or Equipment Notes payment of a sum to reimburse the Owner Trustee or the
Indenture Trustee for, or to provide funds for the payment of, any tax or other
governmental charge in connection therewith.
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Trust Indenture and Security Agreement (GARC II 98-A)
Section 2.10. Prepayments. (a) Each Equipment Note shall be prepaid in
-----------
whole or in part by the Owner Trustee on a Rent Payment Date upon at least 25
days' prior notice from the Owner Trustee (or the Lessee on its behalf) to the
Indenture Trustee in the event that the Lease as applicable to any Unit or Units
related to such Equipment Note is terminated pursuant to Section 10 of the
Lease, at a price equal to the sum of (i) as to principal thereof, an amount
equal to the product obtained by multiplying the unpaid principal amount of such
Equipment Note as at the date of such prepayment (after deducting therefrom the
principal installment, if any, paid on the date of such prepayment) by a
fraction, the numerator of which shall be the Equipment Cost of such Unit or
Units and the denominator of which shall be the aggregate Equipment Cost of all
Units included in the Indenture Estate under the related Indenture Supplement
immediately prior to the date of such prepayment, (ii) as to interest, the
aggregate amount of interest accrued and unpaid in respect of the principal
amount to be prepaid pursuant to clause (i) above on the date of such payment
after giving effect to the application of any Basic Rent paid on the date of
such prepayment, (iii) any unpaid Late Payment Premium (and accrued and unpaid
interest thereon) in respect of the principal amount to be prepaid pursuant to
clause (i), (iv) a premium in an amount equal to the Make-Whole Amount, if any,
applicable in respect of the principal amount to be prepaid pursuant to clause
(i) above on the date of such prepayment, and (v) all other amounts payable
hereunder or under the other Operative Agreements to the holders of the
Equipment Notes in respect of the principal amount to be prepaid pursuant to
clause (i).
(b) Each Equipment Note shall be prepaid in whole or in part by the
Owner Trustee on a Rent Payment Date upon at least 25 days' prior notice from
the Owner Trustee (or the Lessee on its behalf) to the Indenture Trustee in
connection with the occurrence of an Event of Loss or the deemed occurrence of
an Event of Loss pursuant to Section 9.1 of the Lease with respect to any Unit
or Units related to such Equipment Note (if such Unit or Units are not replaced
pursuant to Section 11.2(i) of the Lease) at a price equal to the sum of (i) as
to principal thereof, an amount equal to the product obtained by multiplying the
aggregate unpaid principal amount of such Equipment Note as at such prepayment
date (after deducting therefrom the principal installment, if any, paid on such
date) by a fraction, the numerator of which shall be the Equipment Cost of such
Unit or Units and the denominator of which shall be the aggregate Equipment Cost
of all Units included in the Indenture Estate under the related Indenture
Supplement immediately prior to such date, (ii) as to interest, the aggregate
amount of interest accrued and unpaid in respect of the principal amount to be
prepaid pursuant to clause (i) above to but not including the date of prepayment
after giving effect to the application of any Basic Rent paid on the date of
such prepayment, (iii) any unpaid Late Payment Premium (and accrued and unpaid
interest thereon) in respect of the principal amount to be prepaid pursuant to
clause (i), but without the payment of any Make-Whole Amount, and (iv) all other
amounts payable hereunder or under the other Operative Agreements to the holders
of the Equipment Notes in respect of the principal amount to be prepaid pursuant
to clause (i).
(c) (A) Unless Lessee shall have elected pursuant to Section 6.9 of
the Participation Agreement to assume all of the rights and obligations of the
Owner Trustee under this Indenture in respect of the Equipment Notes, each
Equipment Note shall be prepaid in whole
13
Trust Indenture and Security Agreement (GARC II 98-A)
by the Owner Trustee on the Determination Date specified by Lessee to Owner
Trustee and Indenture Trustee in accordance with Section 6.9 of the
Participation Agreement, in the event that Lessee exercises the purchase option
under Section 6.9 of the Participation Agreement with respect to all Units
related to such Equipment Note, at a price equal to the sum of (i) as to
principal thereof, the aggregate unpaid principal amount of such Equipment Note
as at the date of such prepayment in whole under Section 6.9 of the
Participation Agreement, (ii) as to interest, the aggregate amount of interest
accrued and unpaid in respect of the principal amount to be prepaid pursuant to
clause (i) above on the date of such prepayment after giving effect to the
application of any Basic Rent paid on the date of such prepayment, (iii) any
unpaid Late Payment Premium (and accrued and unpaid interest thereon) on such
Equipment Note, (iv) a premium in an amount equal to the aggregate Make-Whole
Amount, if any, applicable in respect of the principal amount to be prepaid
pursuant to clause (i) above on the date of such prepayment, and (v) all other
amounts payable hereunder or under the other Operative Agreements to the holders
of the Equipment Notes in respect of the principal amount to be prepaid pursuant
to clause (i).
(B) Unless Lessee shall have elected pursuant to Section 22.1 of the
Lease to assume all of the rights and obligations of the Owner Trustee under
this Indenture in respect of the Equipment Notes, each Equipment Note shall be
prepaid in whole but not in part by the Owner Trustee on the Determination Date
specified by Lessee to Owner Trustee and Indenture Trustee in accordance with
Section 22.1 of the Lease, in the event that Lessee exercises the purchase
option under Section 22.1 of the Lease, with respect to all Units related to
such Equipment Note, at a price equal to the sum of (i) as to principal thereof,
the aggregate unpaid principal amount of such Equipment Note as at the date of
such prepayment in whole under Section 22.1 of the Lease (after deducting
therefrom the principal installment, if any, paid on the date of such
prepayment), (ii) as to interest, the aggregate amount of interest accrued and
unpaid in respect of the principal amount to be prepaid pursuant to clause (i)
above on the date of such prepayment after giving effect to the application of
any Basic Rent paid on the date of such prepayment, (iii) any unpaid Late
Payment Premium (and accrued and unpaid interest thereon) on such Equipment
Note, (iv) a premium in an amount equal to the aggregate Make-Whole Amount, if
any, applicable in respect of the principal amount to be prepaid pursuant to
clause (i) above on the date of such prepayment, and (v) all other amounts
payable hereunder or under the other Operative Agreements to the holders of the
Equipment Notes in respect of the principal amount to be prepaid pursuant to
clause (i).
(d) In the event of a refunding or refinancing pursuant to Section
10.2 of the Participation Agreement, all Equipment Notes shall be prepaid in
whole but not in part on the Refunding Date specified by the Lessee to the
Indenture Trustee in accordance with Section 10.2(f) of the Participation
Agreement at a price equal to the unpaid principal amount thereof together with
accrued but unpaid interest thereon, plus, any unpaid Late Payment Premium (and
accrued and unpaid interest thereon) on such Equipment Notes, plus, a premium in
an amount equal to the Make-Whole Amount, if any, and all other amounts due and
payable hereunder or under the other Operative Agreements to the holders of the
Equipment Notes.
14
Trust Indenture and Security Agreement (GARC II 98-A)
(e) The Indenture Trustee shall give prompt notice of any prepayment
of any of the Equipment Notes to all holders of the Equipment Notes as soon as
the Indenture Trustee shall have knowledge that such prepayment is expected to
occur, which notice shall specify the Equipment Note or Notes to be prepaid, the
principal amount of such Equipment Note or Notes to be prepaid and the expected
date of prepayment which date shall be not less than 25 days after the date of
such notice.
Section 2.11. Equally and Ratably Secured. All Equipment Notes at any
---------------------------
time outstanding under this Indenture shall be equally and ratably secured
hereby without preference, priority or distinction on account of the date or
dates or the actual time or times of the issue or maturity of such Equipment
Notes so that all Equipment Notes at any time issued and outstanding hereunder
shall have the same rights, Liens and preferences under and by virtue of this
Indenture.
ARTICLE III. RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME
FROM THE INDENTURE ESTATE; ASSUMPTION OF
OBLIGATIONS OF THE OWNER TRUSTEE BY THE LESSEE
Section 3.1. Basic Rent Distribution. Except as otherwise provided in
-----------------------
Section 3.3 or 3.5, each installment of Basic Rent, as well as any installment
of interest on overdue installments of Basic Rent and any other moneys paid over
by the Lessee or the Owner Trustee to the Indenture Trustee for such purpose,
shall be deposited into the Payment Account maintained by the Indenture Trustee
pursuant to Section 6.4(c) hereof and distributed by the Indenture Trustee as
promptly as possible (it being understood that any payments of Basic Rent
received by the Indenture Trustee on a timely basis and in accordance with the
provisions of Section 3.5 of the Lease shall be distributed on the date received
in the funds so received) in the following order of priority:
first, to the holders of the Equipment Notes, an amount equal to all
-----
Regular Interest accrued and unpaid on the Equipment Notes as of such date,
second, after giving effect to the first clause above, so much of such
------
installment or payment remaining as shall be available to pay to the
holders of the Equipment Notes, an amount equal to any Rated Amortization
Amount of principal due on the Equipment Notes as of such date,
third, after giving effect to the second clause above, so much of such
-----
installment or payment remaining as shall be available to pay to the
holders of the Equipment Notes, an amount equal to any Scheduled
Obligations Due as of such Payment Date,
fourth, after giving effect to the third clause above, so much of such
------
installment or payment remaining as shall be available to pay the
Accumulated Equity Deficiency Amount to the Owner Trustee for distribution
in accordance with the terms of the Trust Agreement,
15
Trust Indenture and Security Agreement (GARC II 98-A)
fifth, after giving effect to the fourth clause above, so much of such
-----
installment or payment remaining as shall be available to pay to the
holders of the Equipment Notes accrued and unpaid Default Interest on past
due principal referred to in clause second above and accrued and unpaid
------
Regular Interest (but not any Late Payment Premium or interest thereon),
sixth, after giving effect to the fifth clause above, so much of such
-----
installment or payment remaining as shall be available to pay to the
holders of the Equipment Notes, an amount equal to any interest on Late
Payment Premium then due and owing on the Equipment Notes,
seventh, after giving effect to the sixth clause above, so much of
-------
such installment or payment remaining as shall be available to pay to the
holders of the Equipment Notes, an amount equal to any Late Payment Premium
then due and owing on the Equipment Notes, and
eighth, the balance, if any, of such Payment Account, to the Owner
------
Trustee for distribution in accordance with the terms of the Trust
Agreement.
To the extent there are insufficient proceeds in the Payment Account to pay
all amounts pursuant to clauses "first", "second", "third", "fourth", "sixth",
and "seventh", in the order of priority set forth therein, any partial payment
with respect to any such clause shall be made pro rata in respect of such clause
--- ----
in proportion to the unpaid principal amounts of the outstanding Equipment Notes
on such date.
Section 3.2. Payments in the Event of Prepayment. (a) Except as otherwise
-----------------------------------
provided in Section 3.3 or 3.5, in the event of any prepayment of an Equipment
Note or Notes, in whole or in part, in accordance with the provisions of Section
2.10 any amount received by the Indenture Trustee shall in each case be
distributed and paid in the following order of priority: first, so much of such
-----
amount as shall be required to pay the aggregate amount of the principal,
Premium, if any, and interest and all other amounts to be paid on such Equipment
Note or Notes pursuant to Section 2.10 shall be paid to the holders of such
Equipment Note or Notes, such prepayment to be made ratably to such Equipment
Note or Notes to which such prepayment relates, without priority of one over any
other, in the proportion that the amount to be prepaid on each such Equipment
Note bears to the aggregate amount to be paid on all such Equipment Notes; and
second, the balance, if any, of such amount remaining thereafter shall be
------
distributed to the Owner Trustee for distribution in accordance with the terms
of the Trust Agreement.
(b) Except as otherwise provided in Section 3.3 or 3.5 hereof, any
amounts received directly or through the Lessee from any governmental authority
or other party pursuant to Section 11 of the Lease with respect to any Unit as
the result of an Event of Loss, to the extent that such amounts are not at the
time required to be paid to the Lessee pursuant to said Section 11, and any
amounts of insurance proceeds for damage to the Indenture Estate received
directly or though the Lessee from any insurer pursuant to Section 12 of the
Lease with respect
16
Trust Indenture and Security Agreement (GARC II 98-A)
thereto as the result of an Event of Loss, to the extent such amounts are not at
the time required to be paid to the Lessee pursuant to said Section 12, shall be
applied as provided in clause (a) of this Section 3.2; provided that, if any
Replacement Unit is to be substituted for the Unit subject to such Event of Loss
as provided in Section 11.2 of the Lease and Section 5.7 hereof, any proceeds
which result from such Event of Loss and are paid to the Indenture Trustee shall
be held by the Indenture Trustee as part of the Indenture Estate as security for
the obligations of the Lessee under the Operative Agreements and invested in
accordance with the terms of Section 6.4(b) hereof and, unless theretofore
applied in accordance with the provisions of the Lease and this Indenture, such
proceeds shall, to the extent payable to the Lessee under the Lease, be released
to the Lessee upon or in connection with the replacement thereof as provided in
such Sections.
Section 3.3. Payments after Indenture Default or Indenture Event of
------------------------------------------------------
Default. (a) Except as provided in Section 3.5, all payments received and
-------
amounts realized by the Indenture Trustee after an Indenture Event of Default
shall have occurred and be continuing and after the Indenture Trustee has
declared (as assignee from the Owner Trustee of the Lease) the Lease to be in
default pursuant to Section 15 thereof or has declared the Equipment Notes to be
accelerated pursuant to Section 4.2, as the case may be, or has elected to
foreclose or otherwise exercise any remedies under this Indenture (including any
amounts realized by the Indenture Trustee from the exercise of any remedies
pursuant to Section 15 of the Lease or Article IV), as well as all payments or
amounts then held or thereafter received by the Indenture Trustee as part of the
Indenture Estate while such Indenture Event of Default shall be continuing,
shall be distributed forthwith by the Indenture Trustee in the following order
of priority:
First, so much of such payments or amounts as shall be required to
-----
reimburse the Indenture Trustee for any fees which are due and payable for
its services under this Indenture and any tax, expense (including
reasonable attorneys' fees) or other loss incurred by the Indenture Trustee
(to the extent reimbursable and not previously reimbursed and to the extent
incurred in connection with its duties as Indenture Trustee) shall be
distributed to the Indenture Trustee;
Second, so much of such payments or amounts as shall be required to
------
reimburse the holders of the Equipment Notes for payments made by them to
the Indenture Trustee pursuant to Section 5.3 (to the extent not previously
reimbursed), and to pay such holders of the Equipment Notes the amounts
payable to them pursuant to the provisions of the Participation Agreement,
shall be distributed to such holders of the Equipment Notes, without
priority of one over the other, in accordance with the amount of the
payment or payments made by, or payable to, each such holder;
Third, so much of such payments or amounts remaining as shall be
-----
required to pay the principal of, Premium, if any, and accrued interest (to
the date of distribution) on all Equipment Notes (including any accrued
interest on any Premium), then due and payable to the Loan Participant,
whether by declaration of acceleration pursuant to Section 4.2 or
otherwise, shall be applied in the following order of priority: first, to
the interest accrued
17
Trust Indenture and Security Agreement (GARC II 98-A)
and unpaid on the Equipment Notes, second, to any Premium then due and
owing under the Equipment Notes, third, to all other amounts due and owing
under the Equipment Notes (other than principal), and fourth, to the unpaid
principal of the Equipment Notes, and in case the aggregate amount so to be
distributed shall be insufficient to pay in full the aforesaid amounts in
clauses "first" through "fourth", any partial distribution with respect to
any such clause shall be made pro rata in respect of such clause in
--- ----
proportion to the unpaid principal amounts of the outstanding Equipment
Notes;
Fourth, the balance, if any, of such payments or amounts remaining
------
thereafter shall be distributed to the Owner Trustee for distribution in
accordance with the terms of the Trust Agreement.
(b) Except as provided in Sections 3.3(a) and 3.5, if an Indenture
Default or Indenture Event of Default shall have occurred and be continuing, the
Indenture Trustee shall not make any distribution to the Owner Trustee but shall
hold amounts otherwise distributable to the Owner Trustee as collateral security
for the obligations secured hereby and invested as provided in Section 6.4(b)
until the earlier to occur of (a) the date on which such Indenture Default or
Indenture Event of Default shall have been cured or waived, and (b) the date on
which such acceleration occurs and such amounts are applied pursuant to Section
3.3(a); provided, that if any amounts are held pursuant to this Section 3.3(b)
for a period of 90 days, then (x) all amounts then held by the Indenture Trustee
under this Section 3.3(b) with respect to such Indenture Default or Indenture
Event of Default which have been so held for at least 60 days shall on the 91st
day be distributed to the Owner Trustee for distribution in accordance with the
terms of the Trust Agreement and (y) any such amounts which are being held
pursuant to this Section 3.3(b) with respect to such Indenture Default or
Indenture Event of Default but which have not been released pursuant to clause
(x) because they had not been held for at least 60 days at the time the funds
are released pursuant to clause (x) and any other amounts thereafter held by the
Indenture Trustee with respect to such Indenture Default or Indenture Event of
Default shall, on the 61st day following the date on which such amount was
initially received by the Indenture Trustee, thereafter be distributed to the
Owner Trustee for distribution in accordance with the terms of the Trust
Agreement.
Section 3.4. Other Payments. Except as otherwise provided in Section 3.3
--------------
or 3.5, (a) any payments received by the Indenture Trustee for which no
provision as to the application thereof is made in the Lease or the
Participation Agreement or elsewhere in this Article III, and (b) all payments
received and amounts realized by the Indenture Trustee under the Lease or
otherwise with respect to the Equipment to the extent received or realized at
any time after payment in full of the principal of and interest and Premium, if
any, on all Equipment Notes, as well as any other amounts remaining as part of
the Indenture Estate after payment in full of the principal of and interest and
Premium, if any, shall be distributed forthwith by the Indenture Trustee in the
order of priority set forth in Section 3.3(a), except that in the case of any
payment described in clause (b) of this Section 3.4, such payment shall be
distributed omitting clause "third" of such Section 3.3(a) on all Equipment
Notes issued hereunder.
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Trust Indenture and Security Agreement (GARC II 98-A)
Any payments received by the Indenture Trustee for which provision as to
the application thereof is made in the Lease or the Participation Agreement but
not elsewhere in this Indenture shall be applied to the purposes for which such
payments were made in accordance with the provisions of the Lease or the
Participation Agreement, as the case may be.
Section 3.5. Distribution of Excepted Property. All amounts constituting
---------------------------------
Excepted Property received by the Indenture Trustee shall be paid promptly by
the Indenture Trustee to the Person or Persons entitled thereto.
Section 3.6. Assumption of Obligations of Owner Trustee by the Lessee. In
--------------------------------------------------------
the event that the Lessee shall have elected to assume all of the rights and
obligations of the Owner Trustee under this Indenture in respect of the
Equipment Notes and any other obligations or liabilities of the Owner Trustee
(whether as trustee or in its individual capacity) from which the Owner Trustee
will be released hereby upon such purchase in connection with the purchase by
the Lessee of Units pursuant to Section 6.9 of the Participation Agreement or
Section 22.1 of the Lease and, if on or prior to the applicable purchase date:
(a) The Lessee shall have delivered to the Indenture Trustee and
the Owner Trustee a certificate, dated the date of such purchase, of a
Responsible Officer of the Lessee stating that the Lessee has paid to the Owner
Trustee all amounts required to be paid to the Owner Trustee pursuant to Section
3.3 of the Lease in connection with such purchase and assumption;
(b) no Indenture Default shall have occurred and be continuing
immediately subsequent to such purchase or assumption after giving effect to the
indenture supplement referred to below and the Indenture Trustee and the Owner
Trustee shall have received a certificate, dated the date of such purchase, of a
Responsible Officer of the Lessee to such effect;
(c) the Indenture Trustee shall have received, on or prior to the
date of such purchase, evidence of all filings, recordings and other action
referred to in the opinion or opinions of counsel referred to below;
(d) the Indenture Trustee and the Owner Trustee shall have
received an opinion or opinions of counsel for the Lessee, dated the date of
such purchase which without unusual qualification and permitting reliance on
proposed Treasury Regulations shall be to the effect that, after giving effect
to the indenture supplement referred to below:
(i) this Indenture, the indenture supplement referred to
below and the Equipment Notes issued thereunder each constitutes the legal,
valid and binding obligation of the Lessee, enforceable against the Lessee
in accordance with their respective terms, except as the same may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by general
principles of equity, and except as limited by applicable laws
which may affect the remedies provided for in this Indenture, which laws,
however, do
19
Trust Indenture and Security Agreement (GARC II 98-A)
not in the opinion of such counsel make the remedies provided for in this
Agreement inadequate for the practical realization of the rights and
benefits provided for in this Indenture;
(ii) all filings and recordings and other action necessary or
appropriate to protect the interests of the Indenture Trustee in the Units
to be so purchased by the Lessee have been accomplished;
(iii) no holder of Equipment Notes will be required to recognize
gain or loss for tax purposes in connection with such assumption; and
(iv) covering such other matters as the Indenture Trustee shall
reasonably request that are customary for transactions of this type;
(e) upon delivery of an indenture supplement giving effect to such
assumption reasonably satisfactory to the Indenture Trustee and amending the
Indenture to incorporate such definitions, covenants, events of default,
agreements, terms and conditions from the Lease as may be reasonably required by
the Indenture Trustee, and execution and delivery of Equipment Notes reflecting
such assumption, each dated the date of such purchase; and
(f) the Lessee shall have delivered to the Indenture Trustee and the
Pass Through Trustee a written confirmation from each Rating Agency that such
assumption would not result in a (i) reduction of the rating of the Pass Through
Certificates below the then current rating for such Pass Through Certificates or
(ii) a withdrawal or suspension of the rating of the Pass Through Certificates;
then, automatically and without the requirement of further action by any Person,
effective as of the date of such purchase, the Owner Trustee shall be released
from all of its obligations under the Equipment Notes and under this Indenture
in respect of the Equipment Notes or otherwise and the Lien of this Indenture
upon the sale proceeds and other amounts paid or payable to the Owner Trustee
shall be discharged. If requested by the Owner Trustee, the Indenture Trustee
shall execute and deliver an instrument, in form and substance satisfactory to
the Owner Trustee, confirming such release and discharge.
Neither Lessee nor any other Person may assume obligations under the
Notes except pursuant to and in accordance with the provisions of this Section
3.6. Lessee shall pay all reasonable costs and expenses (including counsel's
fees and disbursements, and Taxes payable pursuant to Section 7.1 of the
Participation Agreement) of Owner Trustee, Owner Participant, Indenture Trustee
and the holders of the Equipment Notes in connection with the consummation of
the transactions contemplated by this Section 3.6.
20
Trust Indenture and Security Agreement (GARC II 98-A)
ARTICLE IV. REMEDIES OF THE INDENTURE TRUSTEE UPON AN INDENTURE
EVENT OF DEFAULT
Section 4.1. Indenture Events of Default. The following events shall
---------------------------
constitute "Indenture Events of Default" and each such Indenture Event of
Default shall be deemed to exist and continue so long as, but only so long as,
it shall not have been remedied:
(a) a Lease Event of Default (other than a Lease Event of Default
by reason of a default by the Lessee to pay any amounts which are part of the
Excepted Property); provided that a Lease Event of Default arising solely from
the Lessee's failure to make any payment of Supplemental Rent, including
indemnity or tax indemnity payment as set forth in Section 14(b) of the Lease
not a part of Excepted Property shall not constitute an "Indenture Event of
Default" hereunder unless and until the Indenture Trustee, acting solely upon
the direction of a Super-Majority in Interest, shall expressly declare such
Lease Event of Default to be an "Indenture Event of Default"; or
(b) default (not attributable to a default by the Lessee under
the Lease) by the Owner Trustee in making any payment when due of the Rated
Amortization Amount of, Make-Whole Amount, if any, or Regular Interest (other
than interest on overdue principal and interest) on, any Equipment Note or
Equipment Notes, and the continuance of such default unremedied for ten Business
Days after the same shall have become due and payable; or
(c) any failure by the Owner Trustee or the Owner Participant to
observe or perform any covenant or obligation (other than payment of Scheduled
Amortization Amount or Late Payment Premium or interest thereon) of them or any
of them, in this Indenture or the Equipment Notes (other than as set forth in
clause (b) above) or in the Participation Agreement or by any Person
guaranteeing or supporting the obligations of the Owner Participant or the Owner
Trustee under the Operative Agreements in any related guarantee or support
agreement, if such failure is not remedied within a period of 30 days after
there has been given to the Owner Trustee, the Owner Participant and the Lessee
or such Person, as the case may be, by the Indenture Trustee or by any holder of
an Equipment Note a written notice specifying such failure and requiring it to
be remedied; provided that, if such failure is capable of being remedied, and
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the remedy requires an action other than, or in addition to, the payment of
money, no such failure (other than one relating to the payment of such money)
shall constitute an Indenture Event of Default hereunder for an additional
period of 30 days after the expiration of the aforesaid 30-day period so long as
the Owner Trustee or the Owner Participant or such Person, as the case may be,
is diligently proceeding to remedy such failure and shall in fact remedy such
failure within such period; or the disaffirmance or repudiation by any Person
that has guaranteed or may guarantee or support the obligations of the Owner
Participant or the Owner Trustee under the Operative Agreements; or
(d) any representation or warranty made by the Owner Trustee as
Owner Trustee and not in its individual capacity or the Owner Participant under
the Participation Agreement, or by the Owner Trustee hereunder, or by any
representative of the Owner Trustee or
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Trust Indenture and Security Agreement (GARC II 98-A)
the Owner Participant in any document or certificate furnished to the Indenture
Trustee or the Loan Participant in connection herewith or therewith or pursuant
hereto or thereto or by any Person guaranteeing or supporting the obligations of
the Owner Participant or the Owner Trustee under the Operative Agreements in any
related guarantee or support agreement, shall prove at any time to have been
incorrect in any material respect as of the date made and such incorrectness
shall remain material and continue unremedied for a period of 30 days after the
Indenture Trustee or any holder of an Equipment Note has given to the Owner
Trustee and the Owner Participant or such Person, as the case may be, a written
notice specifying such incorrectness, stating that such incorrectness is a
default hereunder and requiring it to be remedied; provided that, if such
incorrectness is capable of being remedied, no such incorrectness shall
constitute an Indenture Event of Default hereunder for an additional period of
15 days after the expiration of the aforesaid 30-day period so long as the Owner
Trustee or the Owner Participant or such Person, as the case may be, is
diligently proceeding to remedy such incorrectness and shall in fact remedy such
incorrectness within such period; provided that such incorrect representation or
warranty shall be deemed to be remedied only after the Indenture Trustee
receives an opinion of counsel stating that all adverse consequences thereof, if
any, have been remedied; or
(e) the Owner Trustee (as Owner Trustee and not in its individual
capacity) or the Owner Participant or any Person that has guaranteed or may
guarantee or support the obligations of the Owner Participant or the Owner
Trustee under the Operative Agreements, as the case may be, shall (i) commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
similar law now or hereafter in effect, or seeking the appointment of a trustee,
receiver, liquidator, custodian or similar official of it or any substantial
part of its property, or (ii) consent to any such relief or to the appointment
of or taking possession by any such official in any voluntary case or other
proceeding commenced against it, or (iii) admit in writing its inability to pay
its debts generally as they come due, or (iv) make a general assignment for the
benefit of creditors, or (v) take any action to authorize any of the foregoing;
or
(f) an involuntary case or other proceeding shall be commenced
against the Owner Trustee (as Owner Trustee and not in its individual capacity)
or the Owner Participant or any Person that has guaranteed or may guarantee or
support the obligations of the Owner Participant or the Owner Trustee under the
Operative Agreements seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect, or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days.
Section 4.2. Acceleration; Rescission and Annulment. (a) If an Indenture
--------------------------------------
Event of Default occurs and is continuing, the Indenture Trustee may, subject to
clause (b) of this Section 4.2, and upon the directions of a Majority in
Interest shall, subject to Section 4.4, declare the unpaid principal amount of
all Equipment Notes then outstanding, Late Payment Premium and accrued interest
thereon and on the Equipment Notes to be due and payable, it being agreed
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Trust Indenture and Security Agreement (GARC II 98-A)
that no Make-Whole Amount shall be payable in such event. At any time after the
Indenture Trustee has declared the unpaid principal amount of all Equipment
Notes then outstanding to be due and payable and prior to the sale of any of the
Indenture Estate pursuant to this Article IV, a Majority in Interest, by written
notice to the Owner Trustee, the Lessee and the Indenture Trustee, may rescind
and annul such declaration and thereby annul its consequences if: (i) there has
been paid to or deposited with the Indenture Trustee an amount sufficient to pay
all overdue installments of interest and Late Payment Premium (and accrued
interest thereon) on the Equipment Notes, and the principal of any Equipment
Notes that has become due otherwise than by such declaration of acceleration,
(ii) the rescission would not conflict with any judgment or decree, and (iii)
all other Indenture Defaults and Indenture Events of Default, other than
nonpayment of principal, Late Payment Premium or interest on the Equipment Notes
that have become due solely because of such acceleration, have been cured or
waived.
(b) If an Indenture Event of Default referred to in clause (e) or
(f) of Section 4.1 shall have occurred, or a Lease Event of Default under clause
(g) or (h) of Section 14 of the Lease shall have occurred, then and in every
such case the unpaid principal amount of all Equipment Notes then outstanding,
Late Payment Premium and accrued interest thereon and on the Equipment Notes
shall immediately and without further act become due and payable without
presentment, demand, protest or notice, all of which are hereby waived.
Section 4.3. Remedies with Respect to Indenture Estate. (a) After an
-----------------------------------------
Indenture Event of Default shall have occurred and so long as such Indenture
Event of Default shall be continuing, then and in every such case the Indenture
Trustee, as assignee hereunder of the Lease or as mortgagee hereunder of the
Equipment or otherwise, may, and when required pursuant to the provisions of
Article V hereof shall, subject to Sections 4.4 and 4.5, exercise any or all of
the rights and powers and pursue any and all of the remedies pursuant to Section
15 of the Lease and this Article IV and may recover judgment in its own name as
Indenture Trustee against the Indenture Estate and may take possession of all or
any part of the Indenture Estate, and may exclude the Owner Trustee and the
Owner Participant and all Persons claiming under any of them wholly or partly
therefrom; provided, however, that nothing contained in this Indenture shall
permit or require the Indenture Trustee to take any action contrary to, or to
disturb, the Lessee's rights under the Lease, except in accordance with the
provisions of the Lease. The Indenture Trustee, after the occurrence of any
Indenture Event of Default, shall give the Owner Participant and the Owner
Trustee 10 Business Days' (or such shorter period as practical) prior notice of
the date before which the Indenture Trustee shall not exercise any remedy which
would result in the exclusion of the Owner Trustee from the Indenture Estate or
any part thereof other than pursuant to Section 4.3(b).
(b) Subject to Section 4.4 and Section 4.5, the Indenture Trustee
may, if at the time such action may be lawful and always subject to compliance
with any mandatory legal requirements, either with or without taking possession,
and either before or after taking possession, and without instituting any legal
proceedings whatsoever, and having first given notice of such sale by registered
mail to the Owner Trustee, the Owner Participant and the Lessee once at least 20
days prior to the date of such sale or the date on which the Indenture Trustee
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Trust Indenture and Security Agreement (GARC II 98-A)
enters into a binding contract for a private sale, and any other notice which
may be required by law, sell and dispose of the Indenture Estate, or any part
thereof, or interest therein, at public auction to the highest bidder or at
private sale in one lot as an entirety or in separate lots, and either for cash
or on credit and on such terms as the Indenture Trustee may determine, and at
any place (whether or not it be the location of the Indenture Estate or any part
thereof) and time designated in the notice above referred to; provided, however,
that, notwithstanding any provision herein to the contrary, the Indenture
Trustee shall not sell any of the Indenture Estate or exercise any other
remedies which would result in the exclusion of the Owner Trustee from the
Indenture Estate or any part thereof unless a declaration of acceleration has
been made pursuant to Section 4.2; provided further, that, in the event the
circumstances contemplated by Section 4.4(c) exist, the Indenture Trustee shall
not be allowed to deliver the notice required by this Section 4.3(b) (x) until
the earlier of (1) such time as such circumstances no longer exist or (2) the
expiration of the 270-day period set forth in Section 4.4(c) or (y) if the
circumstances contemplated by the second proviso of Section 4.4(c) then exist.
Any such public sale or sales may be adjourned from time to time by announcement
at the time and place appointed for such sale or sales, or for any such
adjourned sale or sales, without further notice, and the Indenture Trustee or
the holder or holders of any Equipment Notes, or any interest therein, may bid
and become the purchaser at any such public sale. The Indenture Trustee may
exercise such right without possession or production of the Equipment Notes or
proof of ownership thereof, and as representative of the holders may exercise
such right without including the holders as parties to any suit or proceeding
relating to foreclosure of any property in the Indenture Estate. The Owner
Trustee hereby irrevocably constitutes the Indenture Trustee the true and lawful
attorney-in-fact of the Owner Trustee (in the name of the Owner Trustee or
otherwise) for the purpose of effectuating any sale, assignment, transfer or
delivery for enforcement of the Lien of this Indenture, whether pursuant to
foreclosure or power of sale or otherwise, to execute and deliver all such bills
of sale, assignments and other instruments as the Indenture Trustee may consider
necessary or appropriate, with full power of substitution, the Owner Trustee
hereby ratifying and confirming all that such attorney or any substitute shall
lawfully do by virtue hereof. Nevertheless, if so requested by the Indenture
Trustee or any purchaser, the Owner Trustee shall ratify and confirm any such
sale, assignment, transfer or delivery, by executing and delivering to the
Indenture Trustee or such purchaser all bills of sale, assignments, releases and
other proper instruments to effect such ratification and confirmation as may be
designated in any such request.
(c) Subject to Section 4.4 and Section 4.5, the Owner Trustee
agrees, to the fullest extent that it lawfully may, that, in case one or more of
the Indenture Events of Default shall have occurred and be continuing, then, in
every such case, the Indenture Trustee may take possession of all or any part of
the Indenture Estate and may exclude the Owner Trustee and the Owner Participant
and all Persons claiming under any of them wholly or partly therefrom. At the
request of the Indenture Trustee, the Owner Trustee shall promptly execute and
deliver to the Indenture Trustee such instruments of title and other documents
as the Indenture Trustee may deem necessary or advisable to enable the Indenture
Trustee or an agent or representative designated by the Indenture Trustee, at
such time or times and place or places as the Indenture Trustee may specify, to
obtain possession of all or any part of the Indenture Estate. If the Owner
Trustee shall fail for any reason to execute and deliver such instruments and
documents to the
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Trust Indenture and Security Agreement (GARC II 98-A)
Indenture Trustee, the Indenture Trustee may pursue all or part of the Indenture
Estate wherever it may be found and may enter any of the premises of the Lessee
wherever the Indenture Estate may be or be supposed to be and search for the
Indenture Estate and, subject to Section 4.4 and Section 4.5, take possession of
and remove the Indenture Estate. Upon every such taking of possession, the
Indenture Trustee may, from time to time, at the expense of the Indenture
Estate, make all such expenditures for maintenance, insurance, repairs,
replacements, alterations, additions and improvements to any of the Indenture
Estate, as it may deem proper. In each such case, the Indenture Trustee shall
have the right to use, operate, store, control or manage the Indenture Estate,
and to carry on the business and to exercise all rights and powers of the Owner
Trustee relating to the Indenture Estate, as the Indenture Trustee shall deem
best, including the right to enter into any and all such agreements with respect
to the maintenance, operation, leasing or storage of the Indenture Estate or any
part thereof as the Indenture Trustee may determine; and the Indenture Trustee
shall be entitled to collect and receive all tolls, rents, revenues, issues,
income, products and profits of the Indenture Estate and every part thereof,
without prejudice, however, to the right of the Indenture Trustee under any
provision of this Indenture to collect and receive all cash held by, or required
to be deposited with, the Indenture Trustee hereunder. Such tolls, rents,
revenues, issues, income, products and profits shall be applied to pay the
expenses of holding and operating the Indenture Estate and of conducting the
business thereof, and of all maintenance, repairs, replacements, alterations,
additions and improvements, and to make all payments which the Indenture Trustee
may be required or may elect to make, if any, for taxes, assessments, insurance
or other proper charges upon the Indenture Estate or any part thereof (including
the employment of engineers and accountants to examine, inspect and make reports
upon the properties and books and records of the Indenture Estate), and all
other payments which the Indenture Trustee may be required or authorized to make
under any provision of this Indenture, as well as just and reasonable
compensation for the services of the Indenture Trustee, and of all persons
properly engaged and employed by the Indenture Trustee, including the reasonable
expenses of the Indenture Trustee.
(d) If an Indenture Event of Default occurs and is continuing and
the Indenture Trustee shall have obtained possession of a Unit, the Indenture
Trustee shall not be obligated to use or operate such Unit or cause such Unit to
be used or operated directly or indirectly by itself or through agents or other
representatives or to lease, license or otherwise permit or provide for the use
or operation of such Unit or Equipment by any other Person unless (i) the
Indenture Trustee shall have been able to obtain insurance in kinds, at rates
and in amounts satisfactory to it in its discretion to protect the Indenture
Estate and the Indenture Trustee, as trustee and individually, against any and
all liability for loss or damage to such Unit and for public liability and
property damage resulting from use or operation of such Unit and (ii) funds are
available in the Indenture Estate to pay for all such insurance or, in lieu of
such insurance, the Indenture Trustee is furnished with indemnification from the
holders of the Equipment Notes or any other Person upon terms and in amounts
satisfactory to the Indenture Trustee in its discretion to protect the Indenture
Estate and the Indenture Trustee, as trustee and individually, against any and
all such liabilities.
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Trust Indenture and Security Agreement (GARC II 98-A)
(e) Notwithstanding anything contained herein, so long as the
Pass Through Trustee under any Pass Through Trust Agreement is the registered
holder of any Equipment Note issued hereunder, the Indenture Trustee is not
authorized or empowered to acquire title to any Indenture Estate or take any
action with respect to any Indenture Estate so acquired by it if such
acquisition or action would cause the trust created by the Trust Agreement or
the Pass Through Trust Agreement to fail to qualify as a "grantor trust" for
federal income tax purposes.
Section 4.4. Right to Cure; Option to Purchase; Etc.
--------------------------------------
(a) Right to Cure. (A) If there shall occur a Lease Event of
-------------
Default in respect of the payment of Basic Rent as described in Section 14(a) of
the Lease, then as long as no other Indenture Event of Default (other than
arising from such failure to pay Basic Rent or which is concurrently being cured
pursuant to this Section 4.4(a)) shall have occurred and be continuing the Owner
Participant or the Owner Trustee may (but need not) pay to the Indenture
Trustee, at any time prior to the expiration of a period of 20 calendar days (a
"20-Day Period") after receiving written notice of such Indenture Event of
Default from the Indenture Trustee (prior to the expiration of which 20-Day
Period the Indenture Trustee shall not declare the Lease in default pursuant to
Section 15 thereof or exercise any of the rights, powers or remedies pursuant to
such Section 15 or this Article IV), an amount equal to the Rated Amortization
Amount due and payable, together with any interest due thereon on account of the
delayed payment thereof, and such payment by the Owner Participant or the Owner
Trustee shall be deemed to cure any Indenture Event of Default which arose from
such failure of the Lessee (but such cure shall not relieve the Lessee of any of
its obligations and shall not cure any other Indenture Event of Default) or (B)
if there shall occur a Lease Event of Default in respect of any other payment of
Rent (other than Basic Rent) or a Lease Event of Default shall have occurred and
be continuing, which Lease Event of Default is curable by the payment of money
(it being understood that actions such as the obtaining of insurance or the
procuring of maintenance services can be so effected), and, in each case, such
Lease Event of Default constitutes an Indenture Event of Default then as long as
no other Indenture Event of Default (other than arising from such Indenture
Event of Default or which is concurrently being cured pursuant to this Section
4.4(a)) shall have occurred and be continuing the Owner Participant or the Owner
Trustee may (but need not) pay to the Indenture Trustee, at any time prior to
the expiration of a period of 30 days (a "30-Day Period") after receiving
written notice of such Lease Event of Default from the Indenture Trustee (prior
to the expiration of which 30-Day Period the Indenture Trustee shall not declare
the Lease in default pursuant to Section 15 thereof or exercise any of the
rights, powers or remedies pursuant to such Section 15 or this Article IV), an
amount equal to the full amount of such payment of Rent, together with any
interest due thereon on account of the delayed payment thereof or otherwise make
such payment as shall effect such cure, and such payment by the Owner
Participant or the Owner Trustee shall be deemed to cure any Indenture Event of
Default which arose from such Lease Event of Default (but such cure shall not
relieve the Lessee of any of its obligations); provided however, Owner
Participant and Owner Trustee, collectively, shall not be entitled to (x) cure
more than eighteen consecutive or thirty-six total defaults in the payment of
Basic Rent, or (y) cure other Lease Events of Default if the outstanding amount
which has been paid by the Owner Participant or the Owner Trustee and not
reimbursed to such
26
Trust Indenture and Security Agreement (GARC II 98-A)
parties by the Lessee pursuant to this clause (y) exceeds in the aggregate
$20,000,000, which amount shall be adjusted by the Indenture Trustee after the
Closing Date by notice to the Owner Trustee not more frequently than annually by
reference only to increases (and without regard to decreases) in the Consumer
Price Index released by the Bureau of Labor Statistics, United States Department
of Labor since the date of this Indenture. Upon any cure by the Owner
Participant or the Owner Trustee in accordance with the first sentence of this
Section 4.4(a), the Owner Participant or the Owner Trustee shall, to the extent
of their respective payments, be subrogated to the rights of the Indenture
Trustee, as assignee hereunder of the Owner Trustee to receive such payment of
Rent (and any interest due thereon on account of the delayed payment thereof) or
right of reimbursement, and shall be entitled to receive such payment upon its
receipt by the Indenture Trustee as aforesaid (but in each case only if the
Rated Obligations Due and the Scheduled Obligations Due shall have been paid in
full); provided that neither the Owner Participant nor the Owner Trustee shall
attempt to recover any such amount paid by it on behalf of the Lessee pursuant
to this Section 4.4(a) except, subject to the Intercreditor Agreement, by
demanding of the Lessee payment of such amount or by prosecuting an action
against the Lessee to require the payment of such amount; provided further, that
with respect to any amounts advanced by and owing to the Owner Trustee and the
Owner Participant, the Owner Trustee and the Owner Participant shall be
expressly subordinated to the right of the holders of the Equipment Notes to
receive any and all Rated Obligations Due and Scheduled Obligations Due then due
and owing on the Equipment Notes prior to any payment from the Lessee to the
Owner Trustee or the Owner Participant.
(b) Option to Purchase Equipment Notes. In the event that (i) at any
----------------------------------
time one or more Lease Events of Default shall have occurred and be continuing,
(ii) the Equipment Notes shall have been accelerated pursuant to Section 4.2 or
(iii) the Indenture Trustee, as assignee hereunder of the Lease, shall have
declared the Lease to be in default and shall have commenced the exercise of any
significant remedy in respect of the Units under the Lease, then and in any such
case, upon 30 days' notice (which notice shall be irrevocable) from the Owner
Trustee to the Indenture Trustee designating a date of purchase (the "Purchase
Date") which shall be a Determination Date, each holder of an Equipment Note
will be obligated to, upon and subject to receipt by the Indenture Trustee from
the Owner Trustee or its nominee of an amount equal to the aggregate unpaid
principal amount of all Equipment Notes, together with accrued interest thereon
to the Purchase Date, plus all other sums then due and payable to such holder of
an Equipment Note hereunder, but without any Make-Whole Amount, forthwith sell,
assign, transfer and convey to the Owner Trustee or its nominee on the Purchase
Date all of the right, title and interest of such holder in and to the Equipment
Notes then held by such holder, and the Owner Trustee or its nominee shall
assume all of such holder's obligations under the Participation Agreement;
provided that the Owner Trustee or its nominee must purchase all and not less
than all of the Equipment Notes then outstanding; and provided further that if
such option is exercised pursuant to clause (i) above at a time when there shall
have occurred and be continuing for less than 180 days a Lease Event of Default
(and none of the events described in clauses (ii) and (iii) above shall have
occurred), a Make-Whole Amount shall be due and payable to such holder of an
Equipment Note hereunder. During such 30-day notice period, the Indenture
Trustee shall not exercise any of the rights, remedies or powers pursuant to
Section 15 of the Lease or this
27
Trust Indenture and Security Agreement (GARC II 98-A)
Article IV, so long as the Owner Participant (or any nominee of the Owner
Participant reasonably acceptable to the Indenture Trustee) has notified the
Indenture Trustee that the notice so provided by the Owner Trustee or its
nominee pursuant to this Section 4.4(b) constitutes the binding obligation of
the Owner Trustee or its nominee to purchase the Equipment Notes.
(c) Restrictions on Certain Actions. Notwithstanding any provision to
-------------------------------
the contrary contained in this Indenture, the Indenture Trustee shall not
foreclose the Lien of this Indenture or otherwise exercise remedies hereunder
which would result in the exclusion of the Owner Trustee from the Indenture
Estate or any part thereof as a result of an Indenture Event of Default that
constitutes or occurs solely by virtue of one or more Lease Events of Default
(at a time when no other Indenture Event of Default unrelated to any Lease Event
of Default shall have occurred and be continuing) unless the Indenture Trustee,
as security assignee of the Owner Trustee, has proceeded or is then currently
proceeding, to the extent it is then entitled to do so hereunder and under the
Lease and is not then stayed or otherwise prevented from doing so by operation
of law, to terminate the Lease and repossess the Equipment as provided for in
Section 15 of the Lease with respect to the Equipment, provided that in the
event the Indenture Trustee shall be so stayed or otherwise prevented from
exercising such remedies under the Lease, it shall in any event refrain from so
foreclosing or exercising such other remedies hereunder for a period of not less
than 270 days, and further provided that in the event the Lessee as debtor in a
proceeding under Chapter 11 of the Bankruptcy Code (or any trustee appointed for
the Lessee as debtor in any such bankruptcy case) shall have assumed the Lease
with the approval of the bankruptcy court having jurisdiction over such case,
under Section 365 of the Bankruptcy Code or any amended or successor version
thereof, and no Lease Event of Default other than as specified in Section 14(g)
or Section 14(h) of the Lease has occurred and is continuing and no Indenture
Event of Default unrelated to a Lease Event of Default occurring solely pursuant
to Section 14(g) or 14(h) of the Lease shall have occurred and be continuing,
the Indenture Trustee shall refrain from so foreclosing or exercising such other
remedies hereunder. Subject to Sections 4.4(a) and 4.4(b), nothing in this
Section 4.4(c) shall prevent the Indenture Trustee from foreclosing or
exercising such other remedies hereunder to the extent the Lessee fails to
comply with any provisions of any order issued in connection with the assumption
of the Lease and the Indenture Trustee has been stayed or otherwise prevented
from exercising such remedies under the Lease for a period of not less than 270
days.
Section 4.5. Rights of Lessee. Notwithstanding the provisions of this
----------------
Indenture, including, without limitation, Section 4.3, so long as no Lease Event
of Default shall have occurred and be continuing, neither the Indenture Trustee
nor the Owner Trustee shall take any action contrary to, or disturb, the
Lessee's rights under the Lease, except in accordance with the provisions of the
Lease, including, without limitation, (i) the right to receive all monies due
and payable to it in accordance with the provisions of the Lease and (ii) the
Lessee's rights to possession and use of, and of quiet enjoyment of, the
Equipment.
Section 4.6. Waiver of Existing Defaults. A Majority in Interest, by
---------------------------
notice to the Indenture Trustee on behalf of all holders of the Equipment Notes,
may waive any past default hereunder and its consequences, except a default:
(i) in the payment of the principal of,
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Trust Indenture and Security Agreement (GARC II 98-A)
Premium, if any, or interest on any Equipment Note, or (ii) in respect of a
covenant or provision hereof which under Article IX hereof cannot be modified or
amended without the consent of the holder of each Equipment Note affected. Upon
any such waiver, such default shall cease to exist, and any Indenture Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
ARTICLE V. DUTIES OF THE INDENTURE TRUSTEE
Section 5.1. Action upon Indenture Event of Default. If any payments of
--------------------------------------
Basic Rent or payments of the Rated Amortization Amount of or interest or
Premium, if any, on the Equipment Notes due and payable on any Rent Payment Date
shall not have been paid in full on such Rent Payment Date, the Indenture
Trustee shall give telephonic notice within one Business Day (followed by prompt
written notice) to the Owner Trustee, the Collateral Agent, the Owner
Participant, the Loan Participant and the Lessee specifying the amount and
nature of such deficiency in payment. In the event the Indenture Trustee shall
have knowledge of an Indenture Event of Default or an Indenture Default, the
Indenture Trustee shall give prompt notice of such Indenture Event of Default or
Indenture Default to the Lessee, the Owner Trustee, the Owner Participant and
the Loan Participant by telegram, facsimile, or telephone (to be promptly
confirmed in writing). In the event the Owner Trustee shall have knowledge of
an Indenture Event of Default or an Indenture Default, the Owner Trustee shall
give notice of such Indenture Event of Default or Indenture Default in the same
manner to the Lessee, the Indenture Trustee, the Owner Participant and the Loan
Participant. Subject to the terms of Section 5.3 and Section 4.1(a), the
Indenture Trustee shall take such action, or refrain from taking such action,
with respect to such Indenture Event of Default or Indenture Default as the
Indenture Trustee shall be instructed in writing by a Majority in Interest. If
the Indenture Trustee shall not have received instructions as above provided
within 20 days after the mailing of notice of such Indenture Event of Default or
such Indenture Default to the Loan Participant by the Indenture Trustee, the
Indenture Trustee may, but shall not be obligated to, take such action, or
refrain from taking such action, with respect to such Indenture Event of Default
or Indenture Default as it shall determine to be advisable in the best interests
of the Loan Participant. Notwithstanding any provision to the contrary
contained in this Section 5.1, the Indenture Trustee shall not declare the Lease
to be in default solely in respect of the Lessee's failure to make any payment
of Basic Rent within 20 calendar days after the same shall have become due,
unless the 20-Day Period within which, pursuant to Section 4.4(a), the Owner
Participant or the Owner Trustee are entitled to cure such failure shall have
expired. For all purposes of this Indenture, in the absence of actual
knowledge, neither the Owner Trustee nor the Indenture Trustee shall be deemed
to have knowledge of an Indenture Event of Default (except, in the case of the
Indenture Trustee, the failure of the Lessee to pay any installment of Basic
Rent that is required to be paid directly to the Indenture Trustee within the 20
calendar days after the same shall become due or the failure of the Lessee to
maintain insurance as required under Section 12 of the Lease if the
Indenture Trustee shall receive notice thereof from an insurer or insurance
broker) unless notified in writing by the Lessee, the Owner Trustee, one or more
Loan Participants or the Owner Participant; and "actual knowledge" (as used in
the foregoing clause) of the Owner Trustee or the
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Trust Indenture and Security Agreement (GARC II 98-A)
Indenture Trustee shall mean actual knowledge of an officer in the Corporate
Trust Administration of the Owner Trustee or the Corporate Trust Department of
the Indenture Trustee, as the case may be. Whenever the Indenture Trustee gives
any notice hereunder to the holders of the Equipment Notes it shall provide a
copy thereof to each Rating Agency.
Section 5.2. Action upon Instructions. Subject to the terms of Sections
------------------------
5.1 and 5.3, upon the written instructions at any time and from time to time of
a Majority in Interest, the Indenture Trustee shall take such of the following
actions as may be specified in such instructions (subject to the rights of the
other parties thereto, except to the extent assigned hereunder): (i) subject to
and solely to the extent permitted by the terms hereof and of the Lease, give
such notice, direction or consent, or exercise such right, remedy or power
hereunder or under the Lease or in respect of any part or all of the Indenture
Estate or take such other action as shall be specified in such instructions; and
(ii) after an Indenture Event of Default shall have occurred and so long as such
Indenture Event of Default shall be continuing, subject to Section 5.11, approve
as satisfactory to it all matters required by the terms of the Lease to be
satisfactory to the Owner Trustee, it being understood that without the written
instructions of a Majority in Interest the Indenture Trustee shall not take any
action described in clauses (i) and (ii) above.
Upon the expiration or earlier termination of the Lease Term with respect
to any Unit under the Lease, or, if and so long as no Indenture Event of Default
shall have occurred and be continuing, upon the transfer by the Owner Trustee to
the Lessee or its designee of any Unit pursuant to Section 10 or 11 of the Lease
or the retention by the Owner Trustee of any Unit pursuant to Section 10.3 of
the Lease, then the Indenture Trustee shall in either such case, upon the
written request of the Owner Trustee, and receipt by the Indenture Trustee of
funds necessary to prepay the Equipment Notes required to be prepaid in
connection with such purchase, termination, retention or Event of Loss, execute
and deliver to, or as directed in writing by, the Owner Trustee an appropriate
instrument (in due form for recording) furnished by the Owner Trustee or the
Lessee releasing the affected Unit or Units from the Lien of this Indenture.
Section 5.3. Indemnification. (a) The Indenture Trustee shall not be
---------------
required to take any action or refrain from taking any action under Section 5.1
(other than the first two sentences thereof) or 5.2 or Article IV if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnification against such risk is not reasonably assured to it. The
Indenture Trustee shall not be required to take any action under Section 5.1 or
5.2 or Article IV, nor shall any other provision of this Indenture be deemed to
impose a duty on the Indenture Trustee to take any action, if the Indenture
Trustee shall have been advised in writing by independent counsel that such
action is contrary to the terms hereof or of the Lease or the Participation
Agreement, or is otherwise contrary to law.
(b) Each Loan Participant may, but shall not be required to, participate in
any indemnification of the Indenture Trustee given pursuant to paragraph (a) of
this Section 5.3. Each Loan Participant so participating shall be entitled to
reimbursement for such participation in accordance with Article III.
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Trust Indenture and Security Agreement (GARC II 98-A)
Section 5.4. No Duties Except as Specified in Indenture or Instructions.
----------------------------------------------------------
The Indenture Trustee shall not have any duty or obligation to manage, control,
use, sell, dispose of or otherwise deal with the Equipment or any other part of
the Indenture Estate, or to otherwise take or refrain from taking any action
under, or in connection with, this Indenture, the Lease, or the Participation
Agreement, except as expressly provided by the terms of this Indenture or as
expressly provided in written instructions received pursuant to the terms of
Section 5.1 or 5.2; and no implied duties or obligations shall be read into this
Indenture against the Indenture Trustee. Each of the Owner Trustee (only in its
individual capacity) and the Indenture Trustee nevertheless agrees that it will,
at its own cost and expense, promptly take such action as may be necessary duly
to discharge any Lien on all or any part of the Indenture Estate, or on any
properties of the Owner Trustee assigned, pledged or mortgaged as part of the
Indenture Estate, which result from claims against it in its individual capacity
not related to the ownership of the Equipment (in the case of the Owner
Trustee), administration of the Indenture Estate (in the case of the Indenture
Trustee) or any other transaction under this Indenture or the Trust Agreement or
any document included in the Indenture Estate.
Section 5.5. No Action Except under Lease, Indenture or Instructions. The
-------------------------------------------------------
Indenture Trustee agrees that it will not manage, control, use, sell, dispose of
or otherwise deal with the Equipment or other property constituting part of the
Indenture Estate except (i) as required by the terms of the Lease and the
Participation Agreement, (ii) in accordance with the powers granted to, or the
authority conferred upon, the Indenture Trustee pursuant to this Indenture, or
(iii) in accordance with the express terms hereof or with written instructions
pursuant to Section 5.1 or 5.2.
Section 5.6. Disposition of Units. At any time and from time to time
--------------------
prior to the expiration of the Lease Term, any Unit for which the provisions of
Section 11.4(a) of the Lease have been satisfied may be disposed of in
accordance with the provisions of Section 11.4(a) of the Lease, and the Owner
Trustee shall, from time to time, direct the Indenture Trustee to, provided no
Lease Event of Default shall have occurred and be continuing, execute and
deliver to it, or as directed in writing by the Owner Trustee, an appropriate
instrument furnished by the Owner Trustee or the Lessee releasing such Unit from
the Lien of the Indenture, but only in respect of such Unit.
Section 5.7. Indenture Supplements for Replacements. In the event of a
--------------------------------------
Replacement Unit being substituted as contemplated by Section 11.2 of the Lease,
the Owner Trustee and the Indenture Trustee agree for the benefit of the holders
of the Equipment Notes and the Lessee, subject to compliance by the Lessee with
its obligations set forth in Section 11 of the Lease, to execute and deliver an
Indenture Supplement substantially in the form of Exhibit A hereto and, provided
that no Lease Event of Default, or Lease Default pursuant to Section 14(a),
14(b), 14(g) or 14(h), shall have occurred and be continuing, execute and
deliver to the Lessee an appropriate instrument releasing the Unit being
replaced from the Lien of the Indenture.
Section 5.8. Effect of Replacements. In the event of the substitution of
----------------------
a Replacement Unit, all provisions of this Indenture relating to the Unit or
Units being replaced shall be
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Trust Indenture and Security Agreement (GARC II 98-A)
applicable to such Replacement Unit with the same force and effect as if such
Replacement Unit was the same Unit being replaced.
Section 5.9. Withholding Taxes. The Indenture Trustee, as agent for the
-----------------
Owner Trustee, shall exclude and withhold from each payment of principal,
Premium, if any, and interest and other amounts due hereunder or under the
Equipment Notes any and all withholding taxes applicable thereto as required by
law. The Indenture 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 Equipment Notes, to withhold such amounts and timely pay the same to the
appropriate authority in the name of and on behalf of the holders of the
Equipment Notes, 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 holder of an Equipment Note appropriate
documentation showing the payment thereof, together with such additional
documentary evidence as such holders may reasonably request from time to time.
Section 5.10. Lessee's Right of Quiet Enjoyment. Notwithstanding anything
---------------------------------
to the contrary contained in this Indenture, so long as the Lessee is in
compliance with its obligations under the Lease (including applicable grace
periods) and no Lease Event of Default has occurred and is continuing
unremedied, the Indenture Trustee will comply with Section 8 of the
Participation Agreement to the same extent as if it were the Lessor under the
Lease. Each holder of an Equipment Note, by its acceptance thereof, consents in
all respects to the terms of the Lease and the Participation Agreement and
agrees to the provisions of this Section 5.10.
Section 5.11. Certain Rights of Owner Trustee and Owner Participant.
-----------------------------------------------------
Notwithstanding any other provisions of this Indenture, including the Granting
Clause, but subject always to the penultimate paragraph of this Section 5.11,
the following rights (the "Excepted Rights") shall be reserved to the Owner
Trustee or Owner Participant, as the case may be (as separate and independent
rights) to the extent described herein:
(a) subject to the Intercreditor Agreement, the Owner Trustee or
the Owner Participant shall at all times retain the right, to the exclusion of
the Indenture Trustee, (i) to demand, collect, xxx for or otherwise obtain all
amounts included in Excepted Property from the Lessee, exercise any election or
option or make any decision or determination or give or receive any notice,
consent, waiver or approval in respect of any Excepted Property and seek
equitable remedies to require the Lessee to maintain the insurance coverage
referred to in Section 12 of the Lease and specific performance of the covenants
of the Lessee under the Lease relating to the protection, maintenance,
possession and use of the Units; provided, that the rights referred to in this
clause (a) shall not be deemed to include the exercise of any remedies provided
for in Section 15.1 of the Lease other than the right to proceed by appropriate
court action, either at law or in equity, to enforce payment by the Lessee of
such amounts included in Excepted Property or obtain specific performance by the
Lessee of such insurance covenant or for specific performance of any other
covenant of the Lessee or to recover damages for the breach thereof and (ii) to
adjust Basic Rent, the percentages relating to Stipulated Loss Value and
Termination Value and Early
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Trust Indenture and Security Agreement (GARC II 98-A)
Purchase Price as provided in Section 3.4 of the Lease and Section 2.6 of the
Participation Agreement, subject always to the second paragraph of Section 3.2
of the Lease and the second sentence of the definitions of "Stipulated Loss
Value", "Termination Value" and "Early Purchase Price";
(b) (i) the Indenture Trustee shall not, without the consent of the
Owner Trustee, enter into, execute and deliver amendments or modifications in
respect of any of the provisions of the Lease or the Intercreditor Agreement,
and (ii) unless an Indenture Event of Default shall have occurred and be
continuing, the Indenture Trustee shall not, without the consent of the Owner
Trustee, which consent shall not be withheld if no right or interest of the
Owner Trustee or the Owner Participant shall be materially diminished or
impaired thereby, (A) enter into, execute and deliver waivers or consents in
respect of any of the provisions of the Lease or the Intercreditor Agreement, or
(B) approve any accountants, engineers, appraisers or counsel as satisfactory to
render services for or issue opinions to the Owner Trustee pursuant to the
Operative Agreements (other than counsel rendering tax opinions issued to the
Owner Participant or the Owner Trustee, the approval of which shall be reserved
exclusively to the Owner Participant or the Owner Trustee, as the case may be);
provided that, whether or not an Indenture Event of Default has occurred and is
continuing the Owner Trustee's consent shall be required with respect to any
waivers or consents in respect of any of the provisions of Sections 6, 8, 12 or
22 of the Lease, or of any other Section of the Lease or the Intercreditor
Agreement to the extent such action shall affect (x) the amount or timing of, or
the right to enforce payment of, any Excepted Property, (y) the timing or
priority of any transfer or distribution of funds pursuant to the Intercreditor
Agreement or the release of funds from, or the imposition of caps on, the Cash
Trapping Account (as defined in the Intercreditor Agreement) or (z) the amount
or timing of any amounts payable by the Lessee under the Lease or the
Intercreditor Agreement as originally executed (or as subsequently modified with
the consent of the Owner Trustee) which, absent the occurrence and continuance
of an Indenture Event of Default hereunder, would be distributable to the Owner
Trustee under Article III hereof;
(c) at all times, whether or not an Indenture Event of Default has
occurred and is continuing, the Owner Trustee and the Owner Participant shall
have the right, together with the Indenture Trustee, (i) to receive from the
Lessee, the Manager, the Insurance Manager and the Collateral Agent all notices,
certificates, reports, filings, opinions of counsel and other documents and all
information which any thereof is permitted or required to give or furnish to the
Owner Trustee pursuant to any Operative Agreement (including pursuant to Section
13 of the Lease and Sections 2.5(a) and 3.14 of the Intercreditor Agreement),
(ii) to exercise inspection rights pursuant to Section 13 of the Lease and
Section 2.5(b) of the Intercreditor Agreement, (iii) to retain all rights with
respect to insurance maintained for its own account which Section 12 of the
Lease specifically confers on the Owner Participant or the Owner Trustee in its
individual capacity and (iv) to exercise the rights of the Owner Trustee to give
any notices of default under Section 15 of the Lease and declare the Lease in
default;
(d) unless an Indenture Event of Default has occurred and is
continuing (which has not been caused by a Lease Default), the Owner Trustee
shall have the right, together
33
Trust Indenture and Security Agreement (GARC II 98-A)
with the Indenture Trustee, (i) to consent to any amendment or modification of
the Lessee's certificate of incorporation or bylaws in accordance with Section
6.2(q) of the Intercreditor Agreement, and (ii) to consent to the Lessee's
entering into any additional lease and related documents in accordance with
Section 6.4(f) of the Intercreditor Agreement;
(e) except as expressly provided to the contrary in clauses (a), (b),
(c) and (d) above, so long as no Indenture Event of Default has occurred and is
continuing, all rights (including options, elections, determinations, consents,
approvals, waivers and the giving of notices) of the Owner Trustee and the Owner
Participant, as the case may be, under the Lease and the Intercreditor Agreement
to the exclusion of the Indenture Trustee and any holder of an Equipment Note
and without the consent of the Indenture Trustee or any holder of an Equipment
Note; provided that the foregoing shall not, nor shall any other provision of
this Section 5.11, limit (A) any rights separately and expressly granted to the
Indenture Trustee or any holder of an Equipment Note under the Lease or the
other Operative Agreements (including, without limitation, Section 9.5 hereof,
Sections 8.2 and 8.4 of the Management Agreement and Sections 6.02 and 6.03 of
the Insurance Agreement) or (B) the right of the Indenture Trustee or any holder
of an Equipment Note to receive any funds to be delivered to the Owner Trustee
under the Lease or the Intercreditor Agreement (except with respect to Excepted
Property).
Notwithstanding the foregoing provisions of this Section 5.11, but subject
always to Section 4.5 hereof and to the rights of the Owner Participant under
Section 4.4 hereof, the Indenture Trustee shall at all times have the right, to
the exclusion of the Owner Trustee and the Owner Participant, to (A) demand,
collect, xxx for or otherwise receive and enforce the payment of all Rent due
and payable under the Lease (other than any thereof constituting an Excepted
Property or Excepted Right) and (B) subject only to the provisions of Sections
4.3 and 4.4 hereof, exercise the remedies set forth in such Section 15 (other
than in connection with the Excepted Property) and in Article IV hereof.
The term "Indenture Event of Default" as used in this Section 5.11 only
shall have the meaning attributed to such term in Section 4.1 but excluding the
proviso in Section 4.1(a) thereof.
ARTICLE VI. THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE
Section 6.1. Acceptance of Trusts and Duties. The Indenture Trustee
-------------------------------
accepts the trusts hereby created and applicable to it and agrees to perform the
same but only upon the terms of this Indenture and agrees to receive and
disburse all moneys received by it constituting part of the Indenture Estate in
accordance with the terms hereof. The Indenture Trustee shall not be answerable
or accountable under any circumstances, except for its own willful misconduct or
gross negligence (or negligence or willful misconduct in the case of application
or investment of moneys constituting the Indenture Estate) or breach of any of
its representations or warranties or
covenants set forth herein or in the Participation Agreement, or failure in the
performance of its obligations under the last sentence of Section 5.4, and the
Owner Trustee shall not be liable for any action or inaction of the Indenture
Trustee and the Indenture Trustee shall not be liable for
34
Trust Indenture and Security Agreement (GARC II 98-A)
any action or inaction of the Owner Trustee. The Owner Trustee shall not be
deemed a trustee for, or agent of, the holders of the Equipment Notes for any
purpose.
Section 6.2. Absence of Duties. Except in accordance with written
-----------------
instructions or requests furnished pursuant to Section 5.1 or Section 5.2 and
except as provided in, and without limiting the generality of, Section 5.4, the
Indenture Trustee shall have no duty (i) to see to any registration of the
Equipment or any recording or filing of the Lease, or of this Indenture or any
other document, or to see to the maintenance of any such registration, recording
or filing, (ii) to see to any insurance on the Equipment or to effect or
maintain any such insurance, whether or not the Lessee shall be in default with
respect thereto, (iii) to confirm, verify or inquire into the failure to receive
any financial statements of the Lessee or (iv) to inspect the Equipment at any
time or ascertain or inquire as to the performance or observance of any of the
Lessee's covenants under the Lease with respect to the Equipment.
Notwithstanding the foregoing, the Indenture Trustee will furnish to any Loan
Participant, so long as such Loan Participant or its nominees shall hold any of
the Equipment Notes and to each of the Rating Agencies, promptly upon receipt
thereof, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and other instruments furnished to the
Indenture Trustee under this Indenture, to the extent that the same shall not
have been furnished to the Indenture Trustee and the Loan Participants or the
Rating Agencies, as the case may be, pursuant to the Lease or the Participation
Agreement.
Section 6.3. No Representations or Warranties as to the Equipment or
-------------------------------------------------------
Documents. Neither the Owner Trustee nor WTC nor the Indenture Trustee makes or
---------
shall be deemed to have made (i) any representation or warranty, express or
implied, as to the value, condition, design, operation, merchantability or
fitness for use of the Equipment or as to their title thereto, or any other
representation or warranty with respect to the Equipment whatsoever, or (ii) any
representation or warranty as to the validity, legality or enforceability of
this Indenture, the Trust Agreement, the Participation Agreement, the Equipment
Notes, the Lease, any Lease Supplement, any Indenture Supplement or any other
document or instrument or as to the correctness of any statement contained in
any thereof (except as to the representations and warranties made by WTC as set
forth in Section 3.1 of the Participation Agreement), except that WTC and the
Indenture Trustee in its individual capacity hereby confirms the representations
and warranties made by it in its individual capacity in Sections 3.1 and 3.3,
respectively, of the Participation Agreement.
Section 6.4. No Segregation of Moneys; No Interest; Investments. (a)
--------------------------------------------------
Subject to Section 6.4(b) and 6.4(c), no moneys received by the Indenture
Trustee hereunder need be segregated in any manner except to the extent required
by law, and any such moneys may be deposited under such general conditions for
the holding of trust funds as may be prescribed by law applicable to the
Indenture Trustee, and, except as otherwise agreed by the Owner Trustee or the
Indenture Trustee, as the case may be, neither the Owner Trustee nor the
Indenture Trustee shall be liable for any interest thereon.
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Trust Indenture and Security Agreement (GARC II 98-A)
(b) Any amounts held by the Indenture Trustee pursuant to the express
terms of this Indenture or the Lease and not required to be distributed as
herein provided shall be invested and reinvested by the Indenture Trustee from
time to time in Specified Investments at the written direction and at the risk
and expense of the Lessee, except that in the absence of any such direction,
such amounts need not be invested and reinvested and except that after a Lease
Event of Default shall have occurred and be continuing, such amounts shall be so
invested and reinvested by the Indenture Trustee in Indenture Investments. Any
net income or gain realized as a result of any such investments or reinvestment
shall be held as part of the Indenture Estate and shall be applied by the
Indenture Trustee at the same times, on the same conditions and in the same
manner as the amounts in respect of which such income or gain was realized are
required to be distributed in accordance with the provisions hereof or of the
Lease pursuant to which such amounts were required to be held and if no Lease
Event of Default shall have occurred and be continuing any excess shall be paid
to the Collateral Agent. Any such Specified Investments or Indenture
Investments may be sold or otherwise reduced to cash (without regard to maturity
date) by the Indenture Trustee whenever necessary to make any application as
required by such provisions. The Indenture Trustee shall have no liability for
any loss resulting from any such investment or reinvestment other than by reason
of the willful misconduct or gross negligence of the Indenture Trustee.
(c) On or prior to the Closing Date, the Indenture Trustee shall
establish and thereafter maintain, in the name of the Indenture Trustee, for the
benefit of the holders of the Equipment Notes, at the offices of the Indenture
Trustee, a segregated account (the "Payment Account") bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of
the holders of the Equipment Notes, but subject to the terms and conditions of
this Indenture. The Indenture Trustee shall have sole dominion and control over
the Payment Account and all amounts on deposit therein, including the sole power
to direct withdrawals from the Payment Account. Amounts may be withdrawn from
the Payment Account only in accordance with the provisions of Article III of
this Indenture and only by officers and employees authorized by the Indenture
Trustee in writing.
Section 6.5. Reliance; Agents; Advice of Counsel. The Indenture Trustee
-----------------------------------
shall incur no liability to anyone acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion, bond
or other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Indenture Trustee may accept a copy
of a resolution of the Board of Directors of any party to the Participation
Agreement, certified by the Secretary or an Assistant Secretary of such party as
duly adopted and in full force and effect, as conclusive evidence that such
resolution has been duly adopted by said Board and that the same is in full
force and effect. As to any fact or matter the manner of ascertainment of which
is not specifically described herein, the Indenture Trustee may for all purposes
hereof rely on a certificate, signed by an officer of the Lessee, as to such
fact or matter, and such certificate shall constitute full protection to the
Indenture Trustee for any action taken or omitted to be taken by it in good
faith in reliance thereon. The Indenture Trustee shall furnish to the Owner
Trustee upon request such information and copies of such documents as the
Indenture Trustee may have and as are necessary for the Owner Trustee to perform
its duties under Article II hereof. The
36
Trust Indenture and Security Agreement (GARC II 98-A)
Indenture Trustee shall assume, and shall be fully protected in assuming, that
the Owner Trustee is authorized by the Trust Agreement to enter into this
Indenture and to take all action permitted to be taken by it pursuant to the
provisions hereof, and need not inquire into the authorization of the Owner
Trustee with respect thereto. In the administration of the trusts hereunder, the
Indenture Trustee may execute any of the trusts or powers hereof and perform its
powers and duties hereunder directly or through agents or attorneys and may, at
the reasonable expense of the Indenture Estate, consult with independent
counsel, accountants and other skilled persons to be selected and employed by
it, and the Indenture Trustee shall not be liable for anything done, suffered,
or omitted in good faith by it in accordance with the written advice or opinion
of any such independent counsel, accountants or other skilled persons acting
within such persons' area of competence (so long as the Indenture Trustee shall
have exercised reasonable care in selecting such persons).
Section 6.6. Not Acting in Individual Capacity. The Owner Trustee and the
---------------------------------
Indenture Trustee each acts hereunder solely as trustee hereunder and, in the
case of the Owner Trustee, under the Trust Agreement and not in its individual
capacity unless otherwise expressly provided; and all Persons, other than the
holders of Equipment Notes to the extent expressly provided in this Indenture,
having any claim against the Owner Trustee or the Indenture Trustee by reason of
the transactions contemplated hereby shall, subject to the Lien and priorities
of payment as herein provided, look only to the Indenture Estate for payment or
satisfaction thereof.
ARTICLE VII. CERTAIN LIMITATIONS ON OWNER TRUSTEE'S
AND INDENTURE TRUSTEE'S RIGHTS
Each of the Owner Trustee and the Indenture Trustee agrees that it shall
have no right against the holders of the Equipment Notes or the Indenture Estate
(except in the case of the Indenture Trustee as expressly provided in Section
4.3 hereof) for any fee as compensation for its services hereunder or any
expenses or disbursements incurred in connection with the exercise and
performance of its powers and duties hereunder or any indemnification against
liability which it may incur in the exercise and performance of such powers and
duties but, on the contrary, shall look solely to the Lessee for such payment
and indemnification and that neither the Owner Trustee nor the Indenture Trustee
shall have any Lien on the Indenture Estate as security for such compensation,
expenses, reasonable counsel fees, if any, disbursements and indemnification.
ARTICLE VIII. SUCCESSOR TRUSTEES
Section 8.1. Notice of Successor Owner Trustee. In the case of any
---------------------------------
appointment of a successor Owner Trustee pursuant to the Trust Agreement or any
merger, conversion, consolidation or sale of substantially all the business
involving the Owner Trustee pursuant to the Trust Agreement, the successor Owner
Trustee shall give prompt written notice thereof to the Indenture Trustee, the
Lessee and the holders of all Equipment Notes at the time outstanding.
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Trust Indenture and Security Agreement (GARC II 98-A)
Section 8.2. Resignation of Indenture Trustee; Appointment of Successor.
----------------------------------------------------------
The resignation or removal of the Indenture Trustee and the appointment of a
successor Indenture Trustee shall become effective only upon the successor
Indenture Trustee's acceptance of appointment as provided in this Section 8.2.
The Indenture Trustee or any successor thereto may resign at any time without
cause by giving at least 30 days' prior written notice to the Owner Trustee, the
Owner Participant, the Lessee and the holders of the Equipment Notes. A
Majority in Interest may at any time remove the Indenture Trustee without cause
by an instrument in writing delivered to the Owner Trustee, the Owner
Participant, the Lessee and the Indenture Trustee. The Owner Trustee may remove
the Indenture Trustee if: (1) the Indenture Trustee fails to comply with
Section 8.2(c); (2) the Indenture Trustee is adjudged a bankrupt or an
insolvent; (3) a receiver or public officer takes charge of the Indenture
Trustee or its property; or (4) the Indenture Trustee becomes incapable of
performing its duties hereunder.
(a) In the case of the resignation or removal of the Indenture
Trustee, the Owner Trustee shall, unless otherwise directed by a Majority in
Interest, promptly appoint a successor Indenture Trustee, provided that a
Majority in Interest may appoint, within one year after such resignation or
removal, a successor Indenture Trustee which may be other than the successor
Indenture Trustee appointed as provided above, and such successor Indenture
Trustee appointed as provided above shall be superseded by the successor
Indenture Trustee so appointed by a Majority in Interest. If a successor
Indenture Trustee shall not have been appointed and accepted its appointment
hereunder within 60 days after the Indenture Trustee gives notice of resignation
or is removed as provided above, the retiring Indenture Trustee, the Lessee, the
Owner Trustee or a Majority in Interest may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee. Any
successor Indenture Trustee so appointed by such court shall immediately and
without further act be superseded by any successor Indenture Trustee appointed
as provided in the proviso to the first sentence of this paragraph (a) within
one year from the date of the appointment by such court.
(b) Any successor Indenture Trustee, however appointed, shall execute
and deliver to the Owner Trustee and the Lessee and to the predecessor Indenture
Trustee an instrument accepting such appointment, and thereupon such successor
Indenture Trustee, without further act, shall become vested with all the
estates, properties, rights, powers, duties and trusts of the predecessor
Indenture Trustee hereunder in the trusts hereunder applicable to it with like
effect as if originally named the Indenture Trustee herein; but nevertheless,
upon the written request of such successor Indenture Trustee, such predecessor
Indenture Trustee shall execute and deliver an instrument transferring to such
Indenture Trustee, upon the trusts herein expressed applicable to it, all the
estates, properties, rights, powers and trusts of such predecessor Indenture
Trustee, and such Indenture Trustee shall duly assign, transfer, deliver and pay
over to such successor Indenture Trustee all moneys or other property then held
by such predecessor Indenture Trustee hereunder.
(c) The Indenture Trustee shall be a bank or trust company organized
under the laws of the United States or any State thereof having a combined
capital and surplus of at
38
Trust Indenture and Security Agreement (GARC II 98-A)
least $100,000,000, if there be such an institution willing, able and legally
qualified to perform the duties of the Indenture Trustee hereunder upon
reasonable or customary terms.
(d) Any corporation into which the Indenture 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 Indenture Trustee
shall be a party, or any corporation to which substantially all the corporate
trust business of the Indenture Trustee may be transferred, shall, subject to
the terms of paragraph (c) of this Section, be the Indenture Trustee under this
Indenture without further act.
ARTICLE IX. SUPPLEMENTS AND AMENDMENTS
TO THIS INDENTURE AND OTHER DOCUMENTS
Section 9.1. Supplemental Indentures without Consent of Holders. (a) The
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Owner Trustee and the Indenture Trustee, at any time and from time to time,
without notice to or the consent of any holders of any Equipment Notes (except
that the Indenture Trustee shall give notice to each of the Rating Agencies),
may enter into one or more indentures supplemental hereto for any of the
following purposes:
(i) to correct or amplify the description of any property at
any time subject to the Lien of this Indenture or better to assure, convey
and confirm unto the Indenture Trustee any property subject or required to
be subject to the Lien of this Indenture or to subject to the Lien of this
Indenture any Unit or Units substituted for any Unit or Units in accordance
with the Lease; provided, however, that indenture supplements entered into
for the purpose of subjecting to the Lien of this Indenture any Unit or
Units substituted for any Unit or Units in accordance with the Lease need
only be executed by the Owner Trustee; or
(ii) to evidence the succession of another trustee to the Owner
Trustee and the assumption by any such successor of the covenants of the
Owner Trustee herein and in the Equipment Notes contained, or to evidence
(in accordance with Article VIII) the succession of a new Indenture Trustee
hereunder; or
(iii) to add to the covenants of the Owner Trustee, for the
benefit of the holders of the Equipment Notes, or to surrender any right or
power herein conferred upon the Owner Trustee; or
(iv) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to matters
or questions arising hereunder so long as any such action does not
adversely affect the interests of the holders of the Equipment Notes;
provided that no such supplement to this Indenture or waiver or modification of
the terms hereof shall adversely affect in a substantive manner the interests of
the Lessee without the Lessee's
39
Trust Indenture and Security Agreement (GARC II 98-A)
prior written consent, and in no event shall the terms of (x) the proviso to the
first sentence of Section 4.3(a) or (y) Section 4.5 be so altered or modified
without such Lessee consent.
(b) Supplemental Indentures with Consent of Majority In Interest.
------------------------------------------------------------
With the written consent of a Majority in Interest, the Owner Trustee (but only
on the written request of the Owner Participant) may, and the Indenture Trustee,
subject to Section 9.2 hereof, shall, at any time and from time to time, enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights and obligations of
holders of the Equipment Notes and of the Owner Trustee under this Indenture;
provided, however, without the consent of each holder of an Equipment Note
affected thereby, no such supplemental indenture shall:
(1) change the final maturity of the principal of any Equipment
Note, or change the dates or amounts of payment of any installment of the
principal of, Premium, if any, or interest on any Equipment Note, or reduce
the principal amount thereof or the Premium, if any, or interest thereon,
or change to a location outside the United States the place of payment
where, or the coin or currency in which, any Equipment Note or the Premium,
if any, or interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment of principal or Premium, if
any, or interest on or after the date such principal or Premium, if any, or
interest becomes due and payable; or
(2) create any Lien with respect to the Indenture Estate ranking
prior to, or on a parity with, the security interest created by this
Indenture except such as are permitted by this Indenture, or deprive any
holder of an Equipment Note of the benefit of the Lien on the Indenture
Estate created by this Indenture; or
(3) reduce the percentage in principal amount of the Equipment
Notes, the consent of whose holders is required for any such supplemental
indenture, or the consent of whose holders is required for any waiver (of
compliance with certain provisions of this Indenture, or of certain
defaults hereunder and their consequences) provided for in this Indenture;
or
(4) modify any provisions of this Section 9.1(b), except to
provide that certain other provisions of this Indenture cannot be modified
or waived without the consent of the holder of each Equipment Note affected
thereby;
provided that so long as no Lease Event of Default shall have occurred and be
continuing, no such supplement to this Indenture or waiver or modification of
the terms hereof shall adversely affect in a substantive manner the interests of
the Lessee without the Lessee's prior written consent, and in no event shall the
terms of (x) the proviso to the first sentence of Section 4.3(a) or (y) Section
4.5 be so altered or modified without such Lessee consent.
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Trust Indenture and Security Agreement (GARC II 98-A)
Section 9.2. Indenture Trustee Protected. If in the opinion of the
---------------------------
Indenture Trustee any document required to be executed pursuant to the terms of
Section 9.1 adversely affects any right, duty, immunity or indemnity in favor of
the Indenture Trustee under this Indenture, the Participation Agreement or the
Lease, the Indenture Trustee may in its discretion decline to execute such
document.
Section 9.3. Request of Substance, Not Form. It shall not be necessary
------------------------------
for the consent of the holders of Equipment Notes under Section 9.1(b) to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such consent shall approve the substance thereof.
Section 9.4. Documents Mailed to Holders. Promptly after the execution by
---------------------------
the Indenture Trustee of any document entered into pursuant to Section 9.1(b),
the Indenture Trustee shall mail, by first-class mail, postage prepaid, a
conformed copy thereof to each holder of an Equipment Note at its address last
known to the Indenture Trustee, but the failure of the Indenture Trustee to mail
such conformed copies shall not impair or affect the validity of such document.
Section 9.5. Amendments, Waivers, Etc. of Other Documents. (a)
--------------------------------------------
Notwithstanding any provision of this Indenture to the contrary, without the
consent of a Majority in Interest, the respective parties to the Lease, the
Participation Agreement, the Intercreditor Agreement and the Trust Agreement may
not modify, amend or supplement any of such agreements, or give any consent,
waiver, authorization or approval under any of such agreements, for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions thereof or of modifying in any manner the rights of the respective
parties thereunder; provided, however, that the actions specified in subsection
(b) of this Section 9.5 may be taken, except as otherwise expressly provided
therein, without the consent of the Indenture Trustee or of a Majority in
Interest or any holder of an Equipment Note.
(b) Subject to the provisions of subsection (c) of this Section 9.5,
the respective parties to the Lease, the Trust Agreement and the Participation
Agreement, at any time and from time to time without the consent of the
Indenture Trustee or of a Majority in Interest or any holder of an Equipment
Note, may:
(1) so long as no Indenture Event of Default shall have occurred
and be continuing, modify, amend or supplement the Lease, or give any
consent, waiver, authorization or approval with respect thereto, except
that without the consent of a Majority in Interest, the parties to the
Lease shall not modify, amend or supplement, or give any consent, waiver,
authorization or approval for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions thereof or of
modifying in any manner the rights of the respective parties thereunder,
with respect to the following provisions of the Lease: Sections 2, 3.1 (if
the result thereof would be to shorten the Basic Term to a period shorter
than the period ending with the final maturity of the Equipment Notes),
3.2, 3.3, 3.4, 3.5 (except insofar as it relates to the address or
41
Trust Indenture and Security Agreement (GARC II 98-A)
account information of the Owner Trustee or Indenture Trustee) (other than
as such Sections 3.1 through 3.5 may be amended pursuant to Section 3.4 of
the Lease as originally executed), 4, 6 (but only to the extent such
Section is made operative by Section 15), 7, 8, 9, 10 (except that
additional requirements may be imposed on the Lessee's ability to terminate
the Lease with respect to a Unit), 11 (except that additional requirements
may be imposed on the Lessee's ability to replace a Unit subject to an
Event of Loss), 12 (except that additional insurance requirements may be
imposed on the Lessee), 13, 14, 15, 16, 17, 18, 19, 20, 21, 22.1, 24, 25.1,
25.4, 25.6, 25.10, and any definition of terms used in the Lease, to the
extent that any modification of such definition would result in a
modification of the Lease not permitted as aforesaid in this clause (1) of
subsection (b); provided that, subject to Section 5.11 hereof, in the event
an Indenture Event of Default shall have occurred and be continuing, the
Indenture Trustee shall have all rights of the Owner Trustee as "Lessor"
under the Lease to modify, amend or supplement the Lease or give any
consent, waiver, authorization or approval thereunder, for the purpose of
adding any provisions to or changing in any manner or eliminating any of
the provisions thereof or of modifying in any manner the rights of the
"Lessor" thereunder;
(2) modify, amend or supplement the Trust Agreement, or give any
consent, waiver, authorization or approval with respect thereto, except
that without the consent of a Majority in Interest, the parties to the
Trust Agreement shall not modify, amend or supplement, or give any consent,
waiver, authorization or approval for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions thereof
or of modifying in any manner the rights of the respective parties
thereunder, if such action would materially adversely affect the interest
of the Loan Participants, and any definition of terms used in the Trust
Agreement, to the extent that any modification of such definition would
result in a modification of the Trust Agreement not permitted pursuant to
this subsection (b);
(3) modify, amend or supplement the Participation Agreement, or
give any consent, waiver, authorization or approval with respect thereto,
except that without the consent of a Majority in Interest, the parties to
the Participation Agreement shall not modify, amend or supplement, or give
any consent, waiver, authorization or approval for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions thereof or of modifying in any manner the rights of the
respective parties thereunder, with respect to the following provisions of
the Participation Agreement: Sections 1, 2, 3, 4, 5, 6, 7, 10.2, 10.5,
10.7, 10.9 and 10.13(a), each provision of the Participation Agreement
which specifically refers to the Indenture Trustee or Loan Participants and
any definition of terms used in the Participation Agreement, to the extent
that any modification of such definition would result in a modification of
the Participation Agreement not permitted pursuant to this Section 9.5(b);
and
(4) modify, amend or supplement any of said agreements in order
to cure any ambiguity, to correct or supplement any provision thereof which
may be
42
Trust Indenture and Security Agreement (GARC II 98-A)
defective or inconsistent with any other provision thereof or any provision
of this Indenture, or to make any other provision with respect to matters
or questions arising thereunder or under this Indenture which shall not be
inconsistent with the provisions of this Indenture, provided any such
action shall not adversely affect the interests of the holders of the
Equipment Notes.
(c) No modification, amendment, supplement, consent, waiver,
authorization or approval with respect to the Lease or the Participation
Agreement, whether effected pursuant to subsection (a) or pursuant to subsection
(b) of this Section 9.5, and anything in such subsections or elsewhere in this
Indenture to the contrary notwithstanding, shall, without the consent of the
holder of each Equipment Note affected thereby:
(1) modify, amend or supplement the Lease in such a way as to
extend the time of payment of Basic Rent or Stipulated Loss Value and any
other amounts payable under, or as provided in, the Lease upon the
occurrence of an Event of Loss or Termination Value and any other amounts
payable under, or as provided in, the Lease upon termination thereof or
reduce the amount of any installment of Basic Rent so that the same is less
than the payment of interest and principal (in accordance with Scheduled
Amortization) on the Equipment Notes, as the case may be, to be made from
such installment of Basic Rent or reduce the aggregate amount of Stipulated
Loss Value and any other amounts payable under, or as provided in, the
Lease upon the occurrence of an Event of Loss so that the same is less than
the accrued interest on and principal (in accordance with Scheduled
Amortization) of the Equipment Notes required to be paid at the time of
such payments, or reduce the amount of Termination Value, Early Purchase
Price and any other amounts payable under, or as provided in, the Lease
upon termination thereof so that the same is less than the accrued interest
on and principal (in accordance with Scheduled Amortization) of the
Equipment Notes required to be paid at the time of such payments;
(2) modify, amend or supplement the Lease in such a way as to, or
consent to any assignment of the Lease or give any consent, waiver,
authorization or approval which would, release the Lessee from its
obligation in respect of payment of Basic Rent or Stipulated Loss Value and
any other amounts payable under, or as provided in, the Lease upon the
occurrence of an Event of Loss, or Termination Value or Early Purchase
Price and any other amounts payable under, or as provided in, the Lease
upon termination thereof, except as provided in the Lease; or
(3) modify, amend or supplement, or give any consent, waiver,
authorization or approval for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions thereof or of
modifying in any manner the rights of the respective parties under the
respective documents, in respect of (i) the second paragraph of Section 3.2
of the Lease, (ii) Section 2.6(c) of the Participation Agreement, (iii) the
second sentence of the definitions of "Early Purchase Price", "Stipulated
Loss Value", and "Termination Value" and (iv) Section 8.9 of the
Intercreditor Agreement.
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Trust Indenture and Security Agreement (GARC II 98-A)
ARTICLE X. MISCELLANEOUS
Section 10.1. Termination of Indenture. This Indenture and the trusts
------------------------
created hereby shall terminate and this Indenture shall be of no further force
or effect upon the earliest to occur of (i) the termination of the Lease Term
with respect to all Units by Lessee pursuant to Section 10 or Section 22.1
thereof and upon payment in full to the Indenture Trustee of the amounts
required to be paid pursuant to Section 2.10(a) or Section 2.10(c), as the case
may be, in respect of all Units, (ii) the termination of the Lease with respect
to all Units pursuant to Section 11 thereof and upon payment in full to the
Indenture Trustee of the amounts required to be paid pursuant to Section 2.10(b)
in respect of all Units, and (iii) the payment in full of the principal amount
of and interest on all Equipment Notes outstanding hereunder and all other sums
payable to the Indenture Trustee and the holders of the Equipment Notes
hereunder and under such Equipment Notes and under the Participation Agreement.
Section 10.2. No Legal Title to Indenture Estate in Holders. No holder of
---------------------------------------------
an Equipment Note shall have legal title to any part of the Indenture Estate.
No transfer, by operation of law or otherwise, of any Equipment Note or other
right, title and interest of any holder of an Equipment Note in and to the
Indenture Estate or hereunder shall operate to terminate this Indenture or the
trusts hereunder or entitle any successor or transferee of such holder to an
accounting or to the transfer to it of legal title to any part of the Indenture
Estate.
Section 10.3. Sale of Equipment by Indenture Trustee is Binding. Any sale
-------------------------------------------------
or other conveyance of the Equipment by the Indenture Trustee made pursuant to
the terms of this Indenture or the Lease shall bind the holders of the Equipment
Notes, the Owner Trustee and the Owner Participant and shall be effective to
transfer or convey all right, title and interest of the Indenture Trustee, the
Owner Trustee, the Owner Participant and such holders of the Equipment Notes in
and to the Equipment. No purchaser or other grantee shall be required to
inquire as to the authorization, necessity, expediency or regularity of such
sale or conveyance or as to the application of any sale or other proceeds with
respect thereto by the Indenture Trustee.
Section 10.4. Remedies Cumulative. Each and every right, power and remedy
-------------------
herein specifically given to the Indenture Trustee or otherwise in this
Indenture shall be cumulative and shall be in addition to every other right,
power and remedy herein specifically given or now or hereafter existing at law,
in equity or by statute, and each and every right, power and remedy whether
specifically herein given or otherwise existing may be exercised from time to
time and as often and in such order as may be deemed expedient by the Indenture
Trustee, and the exercise or the beginning of the exercise of any power or
remedy shall not be construed to be a waiver of the right to exercise at the
time or thereafter any other right, power or remedy. No delay or omission by
the Indenture Trustee in the exercise of any right, remedy or power or in the
pursuance of any remedy shall impair any such right, power or remedy or be
construed to be a waiver of any default on the part of the Owner Trustee or the
Lessee or to be an acquiescence therein.
44
Trust Indenture and Security Agreement (GARC II 98-A)
Section 10.5. Discontinuance of Proceedings. In case the Indenture
-----------------------------
Trustee shall have proceeded to enforce any right, power or remedy under this
Indenture by foreclosure, entry or otherwise, and such proceedings shall have
been discontinued or abandoned for any reason or shall have been determined
adversely to the Indenture Trustee, then and in every such case the Owner
Trustee, the Owner Participant, the Indenture Trustee and the Lessee shall be
restored to their former positions and rights hereunder with respect to the
Indenture Estate, and all rights, remedies and powers of the Indenture Trustee
shall continue as if no such proceedings had been undertaken (but otherwise
without prejudice).
Section 10.6. Indenture and Equipment Notes for Benefit of Owner Trustee,
-----------------------------------------------------------
Indenture Trustee, Owner Participant and Holders Only. Nothing in this
-----------------------------------------------------
Indenture, whether express or implied, shall be construed to give to any Person
other than the Owner Trustee (individually and as trustee), the Indenture
Trustee, the Owner Participant (as set forth herein) and the holders of the
Equipment Notes any legal or equitable right, remedy or claim under or in
respect of this Indenture or any Equipment Note.
Section 10.7. Notices. Unless otherwise expressly specified or permitted
-------
by the terms hereof, all communications and notices provided for herein shall be
in writing or by facsimile capable of creating a written record, and any such
notice shall become effective (i) upon personal delivery thereof, including,
without limitation, by overnight mail or courier service, (ii) in the case of
notice by United States mail, certified or registered, postage prepaid, return
receipt requested, upon receipt thereof, or (iii) in the case of notice by such
facsimile, upon confirmation of receipt thereof, provided such transmission is
promptly further confirmed in writing by either of the methods set forth in
clause (i) or (ii), in each case addressed to the following Person at its
respective address set forth below or at such other address as such Person may
from time to time designate by written notice to the other Persons listed below:
If to the Owner Trustee: c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Fax No.: (000) 000-0000
Confirmation No.: (000) 000-0000
with copies to Owner Participant.
If to Owner Participant: Owner Participant
___________________
___________________
Attention: _________________
Fax No.: ___________________
Confirmation No.: __________
45
Trust Indenture and Security Agreement (GARC II 98-A)
If to the Indenture Trustee: State Street Bank and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Corporate Trust Services Division
Fax No.: (000) 000-0000
Confirmation No.: (000) 000-0000
If to Lessee: General American Railcar Corporation II
c/o General American Transportation Corporation
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Re: GARC II 98-A
Fax No.: (000) 000-0000
Confirmation No.: (000) 000-0000
If to a Loan Participant: At such address as is set forth on Schedule 2 of
the Participation Agreement or, if not so
specified, at the address set forth in the
register maintained pursuant to Section 2.7
hereof, or at such address as such Loan
Participant shall have furnished by notice to the
Owner Trustee and the Indenture Trustee.
If to a Rating Agency: Standard & Poor's Ratings Group
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Structured Finance Ratings
Fax No.: (000) 000-0000
Confirmation No.: (000) 000-0000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxxx
Structured Finance
Fax No.: (000) 000-0000
Confirmation No.: (000) 000-0000
Notwithstanding the foregoing provisions, for purposes of Sections 4.1,
4.2, 4.4, 5.1 and 5.2, written notice shall be deemed given when it is in fact
received (by mail or otherwise) by any addressee at the respective addresses
specified above.
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Trust Indenture and Security Agreement (GARC II 98-A)
Section 10.8. Severability. Any provision of this Indenture which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In the event of any
inconsistency or conflict between any provision of this Indenture and any
provision of the Trust Agreement, such provision in this Indenture shall govern
and control.
Section 10.9. Separate Counterparts. This Indenture may be executed in
---------------------
any number of counterparts (and each of the parties hereto shall not be required
to execute the same counterpart). Each counterpart of this Indenture including
a signature page executed by each of the parties hereto shall be an original
counterpart of this Indenture, but all of such counterparts together shall
constitute one instrument.
Section 10.10. Successors and Assigns. All covenants and agreements
----------------------
contained herein shall be binding upon, and inure to the benefit of, the Owner
Trustee and its successors and permitted assigns, the Owner Participant and its
successors and permitted assigns, and the Indenture Trustee and its successors
and permitted assigns, and each holder of an Equipment Note, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument
or action by any holder of an Equipment Note shall bind the successors and
assigns of such holder.
Section 10.11. Headings. The headings of the various Articles and
--------
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 10.12. Governing Law. THIS INDENTURE SHALL IN ALL RESPECTS BE
-------------
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
Section 10.13. Normal Commercial Relations Anything contained in this
---------------------------
Indenture to the contrary notwithstanding, the Owner Participant, the Owner
Trustee or the Indenture Trustee or any affiliate of the Owner Participant, the
Owner Trustee or the Indenture Trustee may enter into commercial banking or
other financial transactions, and conduct banking or other commercial
relationships, with the Lessee, any holder of an Equipment Note or the Indenture
Trustee (in its individual capacity or otherwise) fully to the same extent as if
this Indenture were not in effect, including, without limitation, the making of
loans or other extensions of credit for any purpose whatsoever.
Section 10.14. No Recourse Against Others. No director, officer, employee
--------------------------
or stockholder, as such, of Lessee, Owner Trustee, Owner Participant or
Indenture Trustee shall have any liability for any obligations of Lessee, Owner
Participant, Owner Trustee or Indenture Trustee or under the Equipment Notes or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each holder of the Equipment Notes by accepting
47
Trust Indenture and Security Agreement (GARC II 98-A)
an Equipment Note waives and releases all such liability. The waiver and
release are part of the consideration of the Equipment Notes.
Section 10.15. Intercreditor Agreement. Each party hereto agrees that,
-----------------------
notwithstanding anything to the contrary contained herein or in any other
Operative Agreement, the exercise by such party of any and all rights and/or
remedies that such party may have hereunder is subject in all respects to the
terms of the Intercreditor Agreement.
* * *
48
Trust Indenture and Security Agreement (GARC II 98-A)
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed by their respective officers or attorneys-in-fact, as the case
may be, thereunto duly authorized, as of the day and year first above written.
GARC II 98-A RAILCAR TRUST,
By: Wilmington Trust Company,
not in its individual capacity except as set forth
in Section 6.3 hereof, but solely as Owner Trustee
By:_______________________________________________
Name:_____________________________________________
Title:____________________________________________
STATE STREET BANK AND TRUST COMPANY,
as Indenture Trustee
By:_______________________________________________
Name:_____________________________________________
Title:____________________________________________
49
Trust Indenture and Security Agreement (GARC II 98-A)
EXHIBIT A
TRUST INDENTURE SUPPLEMENT NO._
(GARC II 98-A)
This Indenture Supplement No. ___ (GARC II 98-A), dated ____________ (this
"Indenture Supplement"), of GARC II 98-A Railcar Trust, by Wilmington Trust
Company, not in its individual capacity but solely as trustee (the "Owner
Trustee") under the Trust Agreement (GARC II 98-A), dated as of September 1,
1998 (the "Trust Agreement"), between Wilmington Trust Company and Owner
Participant, as Owner Participant;
WITNESSETH:
WHEREAS, the Trust Indenture and Security Agreement (GARC II 98-A) dated as
of September 1, 1998 (the "Indenture"), between the Owner Trustee and State
Street Bank and Trust Company, as Indenture Trustee (the "Indenture Trustee"),
-----------------
provides for the execution and delivery of Indenture Supplements thereto
substantially in the form hereof each of which shall particularly describe the
Units covered by a related Lease Supplement under the Lease, by having attached
thereto a copy of such related Lease Supplement, and shall specifically mortgage
such Units to the Indenture Trustee;
WHEREAS, the Indenture includes the Equipment described in the copy of
Lease Supplement No. __ attached hereto and made a part hereof; and
WHEREAS, an executed counterpart of the Indenture is attached to this
Indenture Supplement;
NOW, THEREFORE, in order to secure the prompt payment of the principal of,
and Premium, if any, and interest on all of the Equipment Notes from time to
time outstanding under the Indenture and the performance and observance by the
Owner Trustee of all the agreements, covenants and provisions in the Indenture
for the benefit of the holders of the Equipment Notes and in the Equipment
Notes, subject to the terms and conditions of the Indenture, and in
consideration of the premises and of the covenants contained in the Indenture
and of the acceptance of the Equipment Notes by the holders thereof, and of the
sum of $1.00 paid to the Owner Trustee by the Indenture Trustee at or before the
delivery hereof, the receipt whereof is hereby acknowledged, the Owner Trustee
(i) has sold, assigned, transferred, pledged and confirmed, and does hereby
sell, assign, transfer, pledge and confirm, a security interest in and mortgage
lien on all right, title and interest of the Owner Trustee in and to the
property comprising the Equipment described in the copy of Lease Supplement No.
__ attached hereto, and (ii) has sold, assigned, transferred and set over, a
security interest in and mortgage lien on all of the right, title and interest
of the Owner Trustee under, in and to such Lease Supplement (excluding, however,
any rights to Excepted Property thereunder), referred to above, to the Indenture
Trustee, its successors and assigns, in the trust created by the Indenture for
the benefit of the holders from time to time of the Equipment Notes.
Trust Indenture and Security Agreement (GARC II 98-A)
To have and to hold all and singular the aforesaid property unto the
Indenture Trustee, its successors and assigns, in trust for the benefit and
security of the holders from time to time of the Equipment Notes and for the
uses and purposes and subject to the terms and provisions set forth in the
Indenture.
This Supplement shall be construed as supplemental to the Indenture
and shall form a part of it, and the Indenture is hereby incorporated by
reference herein and is hereby ratified, approved and confirmed.
This Supplement may be executed by the Owner Trustee in separate
counterparts, each of which when so executed and delivered is an original, but
all such counterparts shall together constitute but one and the same Supplement.
AND FURTHER, the Owner Trustee hereby acknowledges that the Equipment
referred to in the aforesaid Lease Supplement attached hereto and made a part
hereof has been delivered to the Owner Trustee and is included in the property
of the Owner Trustee covered by all the terms and conditions of the Trust
Agreement, subject to the pledge or mortgage thereof under the Indenture.
* * *
A-2
Trust Indenture and Security Agreement (GARC II 98-A)
IN WITNESS WHEREOF, the Owner Trustee has caused this Indenture
Supplement to be duly executed by one of its duly authorized officers, as of the
day and year first above written.
GARC II 98-A RAILCAR TRUST,
By: Wilmington Trust Company, not in its
individual capacity, but solely as Owner Trustee
By:_______________________________________________
Name:_____________________________________________
Title_____________________________________________
A-3
Trust Indenture and Security Agreement (GARC II 98-A)
EXHIBIT B
TERMS OF EQUIPMENT NOTE
Principal Amount Interest Rate Rated Maturity Date
---------------- ------------- -------------------
$_______________ ________% ____________ ____, 20___
Trust Indenture and Security Agreement (GARC II 98-A)
EXHIBIT C
LOAN PARTICIPANT
Percentage of
Loan Participant Principal Amount
---------------- ----------------
Equipment Note State Street Bank and Trust 100%
Company, as Trustee under
the Pass Through Trust
Agreement
Trust Indenture and Security Agreement (GARC II 98-A)
ANNEX A
RATED AMORTIZATION SCHEDULE
[to come]
C-2
Trust Indenture and Security Agreement (GARC II 98-A)
ANNEX B
SCHEDULED AMORTIZATION SCHEDULE
[to come]
C-3
