XXXXXXX TRUCK LEASING CORP.
and
FIRST UNION NATIONAL BANK
as Trustee
NINETEENTH SUPPLEMENTAL INDENTURE
Dated as of April 5, 1999
to the
Collateral Trust Indenture
Dated as of March 21, 1983
6.75% COLLATERAL TRUST DEBENTURES, Series T, DUE APRIL 5, 2006
TABLE OF CONTENTS*
Page
PARTIES 1
RECITALS:
Execution of Collateral Trust Indenture Supplemental
Indentures 1
Issuance of Series T Debentures 1
Text of Forms:
Form of Face of Series T Debentures 1
Form of Trustee's Authentication Certificate
for Series T Debentures 3
Form of Reverse of Series T Debentures 3
All Things Done 6
GRANTING CLAUSES:
GRANTING CLAUSE I - Securities 7
GRANTING CLAUSE II - Agreements and Assignments 7
GRANTING CLAUSE III - Other Securities and Property 7
HABENDUM 7
GRANT IN TRUST 7
GENERAL COVENANT 7
SECTION 1. Series T Debentures: Terms and Provisions 8
SECTION 2. Authentication and Delivery of Series T Debentures 9
SECTION 3. Maintenance of Office or Agency; Authenticating
Agent for Series T Debentures 9
SECTION 4. Original Indenture Ratified 9
SECTION 5. Trustee Not Responsible 10
SECTION 6. Defined Terms 10
SECTION 7. Counterparts 10
SECTION 8. Applicable Law 10
TESTIMONIUM 11
EXECUTION 11
ACKNOWLEDGEMENTS 11
------------
*Note: This Table of Contents has been inserted for convenience and does not
constitute a part of the Nineteenth Supplemental Indenture.
NINETEENTH SUPPLEMENTAL 0INDENTURE (herein called the "Nineteenth
Supplemental Indenture"), dated as of April 5, 1999, between Xxxxxxx Truck
Leasing Corp., (formerly RLC CORP.) a Delaware corporation (herein called the
"Corporation"), and FIRST UNION NATIONAL BANK, as Trustee (herein called the
"Trustee").
WHEREAS, the Corporation and the Trustee have heretofore executed and
delivered a Collateral Trust Indenture dated as of March 21, 1983, as
supplemented and amended by a Third Supplemental Indenture thereto dated as of
February 20, 1986, by an Eighth Supplemental Indenture thereto dated May 15,
1990 and by a Seventeenth Supplemental Indenture thereto dated as of March 10,
1997 (the "Original Indenture"; the Original Indenture, and as supplemented by
this Nineteenth Supplemental Indenture, being herein called the "Indenture");
WHEREAS, the Original Indenture provides that the Corporation and the
Trustee may enter into indentures supplemental to the Original Indenture, among
other things, to provide for the issuance from time to time of debentures
(defined in the Original Indenture as "Debentures") of the Corporation;
1
WHEREAS, the Corporation has determined to issue hereunder a series of
Debentures (herein called the "Series T Debentures") to be designated as "6.52%
Collateral Trust Debentures, Series T, Due April 5, 2006", to be in the
aggregate principal amount of $100,000,000;
WHEREAS, the Series T Debentures and the Trustee's certificate to be
endorsed on the Series T Debentures are to be in the following forms, with
necessary or appropriate variations, omissions and insertions as permitted or
required by the Indenture:
(FORM OF FACE OF Series T DEBENTURES)
Xxxxxxx Truck Leasing Corp.
6.75% COLLATERAL TRUST DEBENTURE, Series T, DUE APRIL 5, 2006
$____________________ PPN 775741 AJ 0
No._____________________
Xxxxxxx Truck Lesing Corp., a corporation organized and existing under the
laws of the State of Delaware (herein called the "Corporation", which term shall
include any successor corporation to the extent provided in the Indenture
hereinafter referred to), for value received, hereby promises to pay to
____________________, or registered assigns, the principal sum of _____________
Dollars on April 5, 2006, in such coin or currency of the United States of
America as at the time of payment shall be legal tender for public and private
debts, and to pay interest on said principal sum at the rate of 6.75% per annum
(and at the same rate per annum on any overdue principal and, to the extent
legally enforceable, overdue installment of interest) in like coin or currency
from the fifth day of April or October, as the case may be, to which interest on
the Series T Debentures has been paid preceding the date hereof (unless the date
hereof is an April 5 or October 5 to which interest has been paid, in which case
from the date hereof, or unless no interest has been paid on the Series T
Debentures since the original issuance of this Debenture, in which case from
April 5, 1999), semiannually on each April 5 and October 5 until payment of said
principal sum has been made or duly provided for. Notwithstanding the foregoing,
if the date hereof is after March 20 or September 20 as the case may be, and
before the following April 5 or October 5, this Debenture shall bear interest
from such April 5 or October 5; provided, however, that if the Corporation shall
default in the payment of interest due on such April 5 or October 5, then this
Debenture shall bear interest from the next preceding April 5 or October 5 to
which interest has been paid or, if no interest has been paid on the Series T
Debentures since the original issuance of this Debenture, from April 5, 1999.
The interest so payable on any April 5 or October 5 will, subject to certain
exceptions provided in the Indenture referred to on the reverse hereof, be paid
to the person in whose name this Debenture is registered at the close of
business on March 20 or September 20, as the case may be, next preceding such
April 5 or October 5. Payment of the principal of and interest on this Debenture
will be made at the office or agency of the Corporation in the Borough of
Manhattan, The City of New York, New York; provided, however, that interest may
be paid, at the option of the Corporation, by check mailed to the registered
holder hereof at such holder's address last appearing on the registry books for
the Series T Debentures, or in such other manner as the Corporation may agree
with the holder hereof as contemplated by Section 1(d) of the Nineteenth
Supplemental Indenture referred to on the reverse hereof.
Additional provisions of this Debenture are contained on the reverse hereof
and such provisions shall for all purposes have the same effect as though fully
set forth at this place.
This Debenture shall not be entitled to any of the benefits of the
Indenture or any indenture supplemental thereto, or be valid or obligatory for
any purpose, unless the form of certificate of authentication hereon shall have
been executed by or on behalf of the Trustee (referred to on the reverse hereof)
or a successor trustee thereto under the Indenture.
IN WITNESS WHEREOF, Xxxxxxx Truck Leasing Corp. has caused this instrument
to be signed in its name by its President or a Vice President and by its
Secretary or an Assistant Secretary, or by facsimiles of any of their
signatures, and its corporate seal, or a facsimile thereof, to be hereto
affixed.
DATED:
------------------------- Xxxxxxx Truck Leasing Corp.
2
BY: ______________________________
(Title)
(SEAL)
ATTESTED:
------------------------------
(Title)
(FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE)
TRUSTEE'S AUTHENTICATION CERTIFICATE
THIS IS ONE OF THE DEBENTURES, OF THE SERIES DESIGNATED THEREIN, DESCRIBED
IN THE WITHIN-MENTIONED INDENTURE.
FIRST UNION NATIONAL BANK,
AS TRUSTEE
BY: ______________________________
AUTHORIZED OFFICER
(FORM OF REVERSE OF Series T DEBENTURES)
This Debenture is one of the Debentures of the Corporation (herein called
the "Debentures"), all duly authorized or from time to time to be duly
authorized and not limited in aggregate principal amount, all issued and to be
issued in one or more series from time to time under and equally secured by a
Collateral Trust Indenture dated as of March 21, 1983, between the Corporation
and First Union National Bank, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture as hereinafter defined),
as supplemented and amended by a Third Supplemental Indenture thereto dated as
of February 20, 1986, by an Eighth Supplemental Indenture, dated as of May 15,
1990, by a Seventeenth Supplemental Indenture, dated as of March 10, 1997, and
as last supplemented by the Nineteenth Supplemental Indenture, dated as of April
5, 1999 (said Indenture, as so supplemented and amended, being herein called the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the property thereby pledged, the
nature and extent of the security, the rights of the holders of the Debentures
in respect of the security, the rights, duties and immunities of the Trustee and
the rights and obligations of the Corporation in respect of the Debentures, and
the terms and conditions upon which the Debentures are, and are to be, secured.
The Debentures may be issued in series, for various principal sums, may mature
at different times, may bear interest at different rates and may otherwise vary
as in the Indenture provided. This Debenture is one of a series designated as
the "6.75% Collateral Trust Debentures, Series T, due April 5, 2006" of the
Corporation (herein called the "Series T Debentures"), duly authorized and
lawfully issued in an aggregate principal amount of $100,000,000 under and
secured by the Indenture.
3
The provisions of the Indenture may be waived, or modified or amended by
supplemental indenture, to the extent and in the manner provided in the
Indenture, but in certain instances only with the consent of the holders of a
majority in aggregate principal amount of all Debentures at the time
outstanding, and of 66 2/3% in aggregate principal amount of each series of the
Debentures at the time outstanding which is affected by such waiver or
supplemental indenture; provided, however, that, without the written consent of
the holder of this Debenture, no such modification or amendment shall be made so
as to (i) extend the fixed maturity of this Debenture or the time of payment of
interest hereon, or reduce or otherwise modify the terms of payment of the
principal of, or the rate of interest on, this Debenture, or adversely affect
the right of the holder hereof to institute suit for the enforcement of any such
payment, (ii) permit the creation of any lien ranking prior to or on a parity
with the lien of the Indenture with respect to, or terminate the lien of the
Indenture on, any of the property covered thereby, or deprive the holder hereof
of the security afforded by the lien of the Indenture or (iii) reduce the
percentage of the aggregate principal amount of Debentures, or of Series T
Debentures, required to authorize any such modification or amendment or any
waiver of any provision of, or default under, the Indenture.
In case an Event of Default (as defined in the Indenture) shall occur, the
principal of all the Debentures at any such time outstanding under the Indenture
may be declared or may become due and payable upon the conditions and in the
manner and with the effect provided in the Indenture. The Indenture provides
that in certain events such Event of Default and its consequences may be waived
and such declaration may be rescinded by the holders of outstanding Debentures
in the manner provided in the Indenture.
Any request, demand, authorization, direction, declaration, notice,
consent, waiver or other action by the holder of this Debenture shall bind the
holder of every Debenture issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, in respect of anything done or suffered to
be done by or on behalf of the Trustee or the Corporation in reliance thereon,
whether or not notation of such action is made upon this Debenture.
The Series T Debentures may not be redeemed prior to maturity.
The transfer of this Debenture may be registered by the registered holder
hereof or by his duly authorized attorney at the office or agency of the
Corporation in the Borough of Manhattan, the City of New York, New York, upon
surrender of this Debenture for cancellation, accompanied by a written
instrument of transfer in a form approved by the Corporation, duly executed by
the registered holder of this Debenture or by his duly authorized attorney, and
thereupon one or more new Debentures of the same series and aggregate principal
amount will be issued in the name of the transferee or transferees in exchange
herefor without service charge, except that the Corporation may require payment
of a sum sufficient to pay any stamp taxes or other governmental charges that
may be required with respect thereto, as provided in the Indenture.
The person in whose name this Debenture shall be registered shall be deemed
the absolute owner hereof for all purposes, and payment of or on account of the
principal of and interest on, this Debenture shall be made only to or upon the
written order of such registered owner or his duly authorized attorney. All such
payments shall satisfy and discharge the liability upon this Debenture to the
extent of the amounts so paid.
No recourse shall be had for the payment of the principal of, or interest
on, this Debenture, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture supplemental
thereto, against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Corporation or any successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
(END OF FORM OF REVERSE OF Series T DEBENTURES)
WHEREAS, the Debentures of any other series are to be substantially in the
forms herein provided for Series T Debentures, with such omissions, insertions
and variations as may be authorized and permitted by this Indenture; and
WHEREAS, all acts and things prescribed by law, by the Certificate of
Incorporation and the By-laws of the Corporation, and all other acts and things
necessary to make the Series T Debentures, when executed by the
4
Corporation, and authenticated and delivered by the Trustee as in this
Nineteenth Supplemental Indenture provided, the valid, binding and legal
obligations of the Corporation, and to make this Nineteenth Supplemental
Indenture a valid, binding and legal instrument for the security of the Series T
Debentures, in accordance with its terms, have been done and performed;
NOW, THEREFORE, THIS NINETEENTH SUPPLEMENTAL INDENTURE WITNESSETH:
THAT the Corporation, in consideration of these premises, of the acceptance
by the Trustee of the trusts created hereby, of the mutual covenants herein
contained, of the purchase and acceptance of the Debentures by the holders
thereof, of the sum of $10 duly paid by the Trustee to the Corporation at or
before the ensealing and delivery of this Nineteenth Supplemental Indenture and
for other valuable consideration, the receipt whereof is hereby acknowledged,
and in order to secure the payment of the principal of, and premium, if any, and
interest on, all Debentures at any time issued and Outstanding under the
Indenture, according to their tenor and effect, and the performance and
observance by the Corporation of all the covenants and conditions herein and
therein contained on its part to be performed and observed, and to declare the
terms and conditions upon and subject to which the Debentures are, and are to
be, issued and secured, has executed and delivered this Indenture and has
granted, bargained, sold, remised, released, conveyed, assigned, transferred,
mortgaged, pledged, set over, confirmed and warranted, and by these presents
does grant, bargain, sell, remise, release, convey, assign, transfer, mortgage,
pledge, set over, confirm and warrant, to the Trustee, and to its successors in
the trusts and its and their assigns forever, with power of sale, all and
singular the following:
GRANTING CLAUSE I
Securities
Note of Xxxxxxx Leasing Corp., a Delaware corporation, dated April 5, 1999,
in the aggregate principal amount of $100,000,000.
GRANTING CLAUSE II
Agreements and Assignments
The following agreements and assignments:
A. A Loan Agreement, dated as of April 5, 1999, between the Corporation and
Xxxxxxx Leasing Corp., which Loan Agreement shall be in the form attached hereto
as Exhibit A.
B. Assignment of Loan Agreement, dated as of April 5, 1999, assigning the
Loan Agreement described in Subparagraph A of this Granting Clause II to the
Trustee, which Assignment shall be in the form attached hereto as Exhibit B.
GRANTING CLAUSE III
Other Securities and Property
All other securities and other property, including cash, and any and all
security therefor of whatsoever nature, that may, from time to time hereafter,
by delivery or by writing of any kind, be subjected to the lien hereof by the
Corporation or by anyone on its behalf; and the Trustee is hereby authorized to
receive the same as additional security hereunder. Such subjection to the lien
hereof of such securities or other property, including cash, as additional
security hereunder may be made subject to any reservations, limitations or
conditions which shall not be prohibited by this Indenture and which shall be
set forth in a written instrument executed by the Corporation or the person so
acting on its behalf, respecting the use and disposition of such property or the
proceeds thereof.
TO HAVE AND TO HOLD the Pledged Property unto the Trustee and its
successors and assigns forever;
BUT IN TRUST, NEVERTHELESS, for the equal and proportionate benefit and
security of the holders
5
from time to time of all the Debentures issued hereunder and Outstanding,
without any priority of any of said Debentures over any of the others.
IT IS HEREBY COVENANTED, DECLARED AND AGREED that all the Debentures are
to be issued, authenticated and delivered, and that all property, including
cash, subject or to become subject hereto is to be held, subject to the further
covenants, conditions, uses and trusts hereinafter set forth, and the
Corporation, for itself and its successors and assigns, hereby covenants and
agrees to and with the Trustee and its successors in said trust for the equal
and proportionate benefit and security of those who shall hold the Debentures,
as hereinafter set forth.
SECTION 1. Series T Debentures: Terms and Provisions. Series T Debentures
shall be designated as "6.75% Collateral Trust Debentures, Series T, Due April
5, 2006" of the Corporation, and shall have the following terms and provisions:
(a) Series T Debentures shall be in the form set forth in the recitals
hereto.
(b) The aggregate principal amount of Series T Debentures which may be
issued shall be $100,000,000, except Series T Debentures issued in exchange
for, in lieu of, in substitution for, or upon the registration of transfer
of, other Series T Debentures pursuant to the provisions of Article II and
Section 18.04 of the Original Indenture.
(c) Series T Debentures shall be dated April 5, 1999.
(d) Series T Debentures shall mature April 5, 2006 and shall bear interest
(calculated on the basis of a 360 day year of twelve 30 day months) as
provided in Section 2.06(b) of the Original Indenture, payable semiannually
on April 5 and October 5 in each year, commencing October 5, 1999 at the
rate of 6.75% per annum until the principal thereof shall become due and
payable (whether at the stated maturity, by declaration or otherwise), and
at the rate of 6.75% per annum on any overdue principal, and (to the extent
legally enforceable) any overdue installment of interest. Payment of
principal and interest shall be made at the Corporate Trust Office or at
the other office or agency maintained by the Corporation as provided in
Section 7.02(a) of the Original Indenture, in such coin or currency of the
United States of America as at the time of payment shall be legal tender
for the payment of public and private debts; provided, however, that
interest may be paid, at the option of the Corporation, by check mailed to
the Person entitled thereto at his address last appearing on the registry
books required to be kept pursuant to Section 2.05 of the Original
Indenture.
Notwithstanding anything to the contrary above, the Corporation may
enter into a written agreement with any person who is or is to become the
holder of any of the Series T Debentures providing for the making of all
payments on the account of such Series T Debentures directly to or for the
account of such holder in the manner specified in or pursuant to such
agreement without presentation or surrender thereof if there shall be filed
with the Trustee a copy of such agreement. Notwithstanding any contrary
provision hereof or of the Debentures or the Original Indenture, the
Trustee shall act in accordance with any such agreement so filed with it.
(e) Series T Debentures shall be issued in denominations of $1,000 and
integral multiples thereof and may be fully printed or printed on steel
engraved borders or fully or partly engraved.
(f) Series T Debentures may not be redeemed prior to maturity. All monies
received by the Trustee as a result of any prepayment of the Note made
pursuant to Section 6(a) of the Loan Agreement (as required by Section 7.14
of the Original Indenture) shall be held by the Trustee as additional
collateral security for the Series T Debentures to be applied thereto at
the maturity thereof. Any monies so held may be invested or reinvested by
the Trustee pursuant to Section 9.02 of the Original Indenture.
SECTION 2. Authentication and Delivery of Series T Debentures. On or after
the date of execution and delivery of the Nineteenth Supplemental Indenture and
upon compliance with the provisions of Article IV of the Original Indenture,
Series T Debentures shall be executed by the Corporation and delivered to the
Trustee, and the Trustee shall, upon request, authenticate and deliver such
Series T Debentures upon the
6
written order of the Corporation signed by its President or one of its Vice
Presidents and its Treasurer or Controller, an Assistant Treasurer or an
Assistant Secretary.
SECTION 3. Maintenance of Office or Agency; Authenticating Agent for Series
T Debentures. The provisions of Section 7.02 of the Original Indenture shall
apply in all respects to the Series T Debentures to the same extent as if the
words "Series T Debentures" were substituted for the words "Series A Debentures"
in each place in which the latter quotation was employed in the aforesaid
Section.
SECTION 4. Original Indenture Ratified. The Original Indenture as amended
by the Third Supplemental Indenture, dated as of February 20, 1986, by the
Eighth Supplemental Indenture, dated as of May 15, 1990, and by the Seventeenth
Supplemental Indenture, dated as of March 10, 1997, and as supplemented by this
Nineteenth Supplemental Indenture is in all respects ratified and confirmed and
the Nineteenth Supplemental Indenture and all its provisions shall be deemed a
part thereof in the manner and to the extent herein provided, and the Original
Indenture, as modified in the manner and to the extent herein provided, shall be
deemed a part hereof as though fully set forth herein.
SECTION 5. Trustee Not Responsible. The Trustee assumes no responsibility
for or in respect of the validity or sufficiency of the Nineteenth Supplemental
Indenture or the due execution hereof by the Corporation or for or in respect of
the recitals and statements contained herein, all of which are made solely by
the Corporation. The Trustee accepts the trusts created by the Nineteenth
Supplemental Indenture upon the terms and conditions hereof and of the Original
Indenture.
SECTION 6. Defined Terms. All terms used in the Nineteenth Supplemental
Indenture which are defined in the Original Indenture shall have the meanings
assigned to them in the Original Indenture.
SECTION 7. Counterparts. The Nineteenth Supplemental Indenture may be
executed in any number of counterparts, each of which when so executed and
delivered shall be an original; and all such counterparts shall together
constitute but one and the same instrument.
SECTION 8. Applicable Law. This Nineteenth Supplemental Indenture shall be
construed in accordance with and governed by the laws of the State of Delaware.
IN WITNESS WHEREOF, Xxxxxxx Truck Leasing Corp. has caused this Nineteenth
Supplemental Indenture to be executed on its behalf by its President or one of
its Vice Presidents and its corporate seal to be hereto affixed and said seal
and this Nineteenth Supplemental Indenture to be attested by its Secretary or
Assistant Secretary, and First Union National Bank, in evidence of its
acceptance of the trusts hereby created, has caused this Nineteenth Supplemental
Indenture to be executed on its behalf and its corporate seal to be affixed by
one of its Vice Presidents or Assistant Vice Presidents and said seal and this
Indenture to be attested by its Assistant Secretary or one of its Assistant Vice
Presidents, as of April 5, 1999.
Xxxxxxx Truck Leasing Corp.
(CORPORATE SEAL) BY:______________________________
Vice President-Finance
Title:
Attest:
------------------------------
Secretary
FIRST UNION NATIONAL BANK,
as Trustee
(CORPORATE SEAL) BY:____________________________
Title:
Attest:
------------------------------
7
EXHIBIT A
---------------
XXXXXXX TRUCK LEASING CORP.
AND
XXXXXXX LEASING CORP.
LOAN AGREEMENT
Dated as of July 16, 1998
-----------------
1
LOAN AGREEMENT (herein called the "Agreement") dated as of July 16, 1998
between Xxxxxxx Truck Leasing Corp., a corporation organized under the laws of
the State of Delaware (herein called the "Corporation"), and Xxxxxxx Leasing
Corp., a corporation organized under the laws of the State of Delaware (herein
called the "Borrower").
WHEREAS, the Borrower desires to borrow from the Corporation, and the
Corporation is willing to lend to the Borrower, a sum not exceeding $75,000,000,
all upon the terms, provisions and conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
undertakings and obligations herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrower and the Corporation do hereby agree as follows:
SECTION 1. Certain Definitions. The Corporation proposes to issue its 6.52%
Collateral Trust Debentures, Series T, due July 15, 2005 (herein called the
"Series T Debentures"), in an aggregate principal amount not exceeding
$75,000,000, pursuant to a Collateral Trust Indenture dated as of March 21,
1983, as supplemented and amended by a Third Supplemental Indenture thereto
dated as of February 20, 1986, by an Eighth Supplemental Indenture thereto dated
as of May 15, 1990 and by a Seventeenth Supplemental Indenture thereto dated as
of March 10, 1997 between the Corporation and First Union National Bank, as
Trustee (the "Original Indenture"; the Original Indenture, as supplemented by
the Nineteenth Supplemental Indenture dated as of July 16, 1998, being herein
called the "Indenture"). A copy of the Indenture has been delivered to the
Borrower, receipt of which is hereby acknowledged.
The term "Note" shall mean the 6.52% Demand Promissory Note issued by the
Borrower pursuant to this Agreement, substantially in the form attached hereto
as Annex 1.
In addition to the foregoing, the following terms shall in each case have
the same meaning in this Agreement as they have in the Indenture as amended:
"Debentures", "Equipment Indebtedness", "Note", "Outstanding", "Participating
Subsidiary", "Permitted Indebtedness", "Person", "Pledged Property", "Series T
Debentures", "Trustee" and "Vehicle".
SECTION 2. Sale of Note. Subject to the terms of this Agreement, the
Borrower will sell to the Corporation and the Corporation will purchase from the
Borrower the Note in the principal amount of $75,000,000 at a price of 100% of
such principal amount.
The sale of the Note will take place immediately after the execution and
delivery of this Agreement and upon the delivery,
(a) by the Borrower to the Corporation of the Note, duly executed and
dated July 16, 1998, together with all such assignments, documents and
other instruments as may be required by the Corporation to enable it to
effect the issuance of Series T Debentures referred to in Section 1, and
(b) by the Corporation to the Borrower of a certified or official bank
check or checks in clearing house funds (or in such other form as shall be
acceptable to the Borrower) in an amount equal to $75,000,000; provided,
however, that the obligation of the Corporation to purchase the Note shall
be subject to the condition that, concurrently with the closing in respect
of such purchase, the Corporation shall have issued and sold, and shall
have received payment for, Series T Debentures in an aggregate principal
amount equal to the sum of the principal amount of the Note.
SECTION 3. Pledge and Assignment of Note and Agreement. In consideration of
the purchase of the Note by the Corporation and the benefits to be derived by
the Borrower as a result of the sale of the Note, the Borrower hereby agrees and
consents to the pledge and assignment by the Corporation of the Note and this
Agreement to the Trustee under and pursuant to the Indenture as security for the
Debentures Outstanding and to be Outstanding thereunder.
SECTION 4. Particular Covenants of the Borrower. So long as the Note shall
be outstanding, the Borrower covenants, warrants and agrees as follows:
2
(a) Payment of Principal and Interest. The Borrower will duly and
punctually pay, or cause to be paid, the principal of and interest on,
the Note according to its terms and the terms of this Agreement.
(b) Maintenance of Corporate Existence. Subject to the provisions
of subsection (e) of this Section 4, the Borrower will maintain and
preserve its corporate existence and right to carry on business.
(c) Borrower a Participating Subsidiary; Validity of Note. The
Borrower warrants that at the date of this Agreement it is a
Participating Subsidiary as defined in Section 4 of the Eighth
Supplemental Indenture dated as of May 15, 1990, and that the Note, when
delivered to the Corporation will be, and when pledged and assigned to
the Trustee as security under the Indenture, will continue to be, a
legal and valid outstanding obligation of the Borrower.
(d) Further Assurance. The Borrower will execute and deliver, or
cause to be executed and delivered, all such additional instruments and
do, or cause to be done, all such additional acts as (i) may be
necessary or proper to carry out the purposes of this Agreement and to
subject the Note to the lien of the Indenture, (ii) may be necessary or
proper to effect the transfer, pledge and assignment of the Note and
this Agreement to the Trustee or to any successor trustee and to confirm
the lien of the Indenture on the Note, (iii) may be necessary or proper
in connection with the granting of the security interest under
subsection (f) of this Section 4 or (iv) the Trustee or the Corporation
may reasonably request for any of the foregoing purposes.
(e) Restrictions on Borrower's Disposition of Property,
Consolidation, Merger, etc. The Borrower will not sell, transfer or
otherwise dispose of the beneficial interest in all or substantially all
its property or assets, or be a party to any consolidation, merger or
amalgamation; provided, however, that the Borrower may take any such
action or be such a party if:
(i) the surviving corporation (if other than the Borrower), or
the person to whom all, or substantially all, the property and
assets of the Borrower shall have been transferred, sold or
otherwise disposed of, shall execute and deliver to the Corporation
and to the Trustee an agreement of assumption in which such
surviving corporation or person shall expressly assume the due and
punctual payment of the principal of and interest on, the Note,
according to its tenor and effect, and the due and punctual
performance and observance of all the covenants and conditions of
the Note and this Agreement which are to be performed or observed
by the Borrower, with the same effect as if such surviving
corporation or person had been named herein as a party hereto in
lieu of the Borrower; and
(ii) immediately after such transfer, sale or other
disposition, or consolidation, merger or amalgamation, no default
shall have occurred and be continuing under this Agreement; and
(iii) all the voting stock of the surviving corporation shall
be owned directly or indirectly by the Corporation.
(f) Creation of Security Interest. The Borrower will not create or
permit to exist any claim, lien, security interest or other encumbrance
on any of its Vehicles, or on its interest as lessor in any lease
agreement relating to its Vehicles, except:
(i) lessees' interests in Vehicles under any such lease
agreement; and
(ii) liens, security interests or other encumbrances for taxes
which are not delinquent or which are being contested in good faith
or of mechanics or materialmen arising in the ordinary course of
business in respect of obligations which are not overdue or which
are being contested in good faith; unless (x) such claim, lien,
security interest or other encumbrance is for the benefit of a
holder or holders of Equipment Indebtedness and (y) prior to or
simultaneously with the inception of any such claim, lien, security
interest or other encumbrance, the Borrower shall have executed and
delivered to a Security Trustee (as hereinafter defined), a
security agreement or security agreements and such other documents
as the Security Trustee may reasonably request, each in form and
substance satisfactory to the Trustee, granting to the Security
Trustee the right to perfect a security interest in such Vehicles
of the Borrower, such security interest, when perfected, to be
3
for the equal and ratable benefit of the Trustee, as holder of the
Notes, and such other holder or holders of Equipment Indebtedness. Such
security agreement or security agreements may provide, at the option of
the Borrower, that the security interest granted to the Security Trustee
shall terminate upon the termination of all other claims, liens,
security interests and other encumbrances for the benefit of such other
holder or holders of Equipment Indebtedness. The Security Trustee shall
be such Person as may be selected by the Borrower or any such holder of
Equipment Indebtedness and who shall be entitled to act without
qualification or who shall qualify to act as such under the Trust
Indenture Act of 1939.
SECTION 5. Payments of Principal and Interest. So long as the Note shall
be pledged with the Trustee under the Indenture, any payment of principal or
interest on the Note, or any payments to be made pursuant to Section 6(a),
shall be paid to the Trustee in Chicago Clearing House funds at least one
business day prior to the dates on which the Corporation would be required to
make related payments under the Indenture with respect to the relevant
Debentures. The Trustee shall apply such payments in accordance with the
provisions of the Indenture.
SECTION 6. Prepayment of Note.
(a) Prepayments Pursuant to Section 7.14 of the Original Indenture.
So long as the Note shall be pledged with the Trustee under the
Indenture, the Borrower shall pay, or cause to be paid, to the Trustee,
as prepayments on the Note, amounts which may be required to be paid by
the Borrower pursuant to Section 7.14 of the Original Indenture. Any
such amounts shall be paid as provided in Section 5 of this Agreement
and shall be applied as payment or prepayment on the Note in accordance
with subsection (c) of this Section 6.
(b) Notice of Certain Prepayments. If the Corporation is required
to make payments pursuant to Section 7.14 of the Original Indenture, the
Corporation shall give notice thereof to the Borrower, which notice
shall state the circumstances under which such payments are to be made.
Such notice shall be given not later than the first date on which the
Corporation is required to give notice to the Trustee or to take any
other action with respect to such payments. Failure to give any such
notice to the Borrower or any defect therein shall not, however, affect
the obligation of the Borrower to make the payments required under
subsection (a) of this Section 6.
(c) Prepayments on Principal Amount of Note. All payments made by
the Borrower, or for the account of the Borrower, pursuant to this
Section 6 shall be applied or credited as prepayments on the principal
amount of the Note on the date such payments are received by the
Trustee; provided, however, that to the extent a portion of such
payments or moneys shall be applied or applicable by the Trustee,
directly or indirectly, towards the payment of any interest or premium
in respect of Debentures, such portion shall not be applied or credited
as prepayments on the principal amount of the Note. It is the intention
of this Section 6 that the principal amount of the Note shall be
appropriately adjusted at appropriate times in order that the
obligations to pay principal, premium, if any, and interest contained in
all the Notes of all Participating Subsidiaries shall be sufficient,
after giving effect to any moneys then held by the Trustee under Section
9.01 of the Original Indenture, in the aggregate, to pay all principal,
premium, if any, and interest on all Debentures then Outstanding as the
same become due and payable.
(d) Corporation To Make Certain Payments. When and if the Borrower
shall make any prepayments provided for in this Section 6, the
Corporation shall promptly make such payments and take such other action
with respect to the Debentures as shall be required to be made or taken
by the Corporation in accordance with and pursuant to this Agreement and
the Indenture.
SECTION 7. Presentment of Note Not Required. So long as the Note shall
be pledged with the Trustee under the Indenture, payments of principal
thereof and interest thereon, shall be made without need for any presentment
of the Note, but payments of principal shall be noted thereon by the Trustee.
SECTION 8. Amendments, Consents and Waivers. So long as the Note shall
be pledged with the Trustee under the Indenture (a) this Agreement may be
modified, altered, supplemented or amended upon the execution and delivery of
a written amendment by the parties hereto pursuant to Article XVIII of the
Original Indenture, (b) any covenant or other condition of this Agreement may
be waived as and to the extent
4
permitted in Section 11.02 of the Original Indenture and (c) any default under
this Agreement and its consequences may be waived as and to the extent permitted
in said Section 11.02 of the Original Indenture.
SECTION 9. Loss, Theft, etc. of Note. Upon receipt of evidence of the
loss, theft, destruction or mutilation of the Note and upon delivery of
indemnity reasonably satisfactory to the Borrower (it being understood that
the written agreement of the Trustee to indemnify the Borrower shall
constitute such indemnity) and, in the case of any such mutilation, upon
surrender and cancellation of the mutilated Note, and, in any case, upon
reimbursement to the Borrower of any reasonable expense incidental thereto,
the Borrower shall make and deliver a new Note of like tenor, in lieu of such
lost, stolen or destroyed Note or in exchange for such mutilated Note.
SECTION 10. Remedies. The holder of the Note, being a party to, or an
assignee of, this Agreement, shall be entitled and empowered to institute any
suits, actions or proceedings at law, in equity or otherwise, whether for the
specific performance of any covenant or agreement contained herein or in the
Note or in aid of the exercise of any power granted herein or in the Note, or
may proceed to enforce the payment of the Note after demand, or to enforce
any other legal or equitable right as the holder of the Note, or may proceed
to take any action authorized or permitted under the terms of the Indenture
with respect to the Note or under any applicable law.
SECTION 11. Remedies Cumulative; Delay or Omission Not a Waiver. Every
remedy given hereunder to the holder of the Note shall not be exclusive of
any other remedy or remedies, and every such remedy shall be cumulative and
in addition to every other remedy given hereunder or now or hereafter given
by statute, law, equity or otherwise. No course of dealing between the
Borrower and the Corporation or the Borrower and the holder of the Note or
any delay or omission on the part of the Corporation or such holder to
exercise any right, remedy or power accruing upon any default hereunder shall
impair any such right, remedy or power or shall be construed to be a waiver
of any such default or of any right of the Corporation or such holder or
acquiescence therein. Every right, remedy and power given hereunder to the
Corporation or to the holder of the Note may be exercised from time to time
and as often as may be deemed expedient by the Corporation or such holder.
SECTION 12. Successors and Assigns. All the covenants, warranties and
agreements contained in this Agreement by or on behalf of the Corporation,
the Borrower or the holder of the Note shall bind and inure to the benefit of
their respective successors and assigns, whether so expressed or not.
SECTION 13. Notices. All notices, presentments and demands to or upon
the Borrower in respect of the Note or this Agreement may be delivered or
mailed to the Borrower at Xxx Xxxxxxx Xxxxx, X.X. Xxx 0000, Xxxxxxxxxx,
Xxxxxxxx 00000, or at such other address as the Borrower may specify from
time to time in writing to the Corporation and the Trustee.
All notices to or demands upon the Corporation in respect of the Note or
this Agreement shall be delivered or mailed to the Corporation at Xxx Xxxxxxx
Xxxxx, X.X. Xxx 0000, Xxxxxxxxxx, Xxxxxxxx 00000, or at such other address as
the Corporation may specify from time to time in writing to the Borrower and
the Trustee.
SECTION 14. Payment or Notice on Saturday, Sunday, Legal Holiday. If the
date of any payment or the giving of any notice under the Note or this
Agreement shall be (a) a Saturday, a Sunday or a legal holiday at the place
where payment is to be made or notice is to be given or (b) a day on which
banking institutions at the place where payment is to be made or notice is to
be given are authorized by law to remain closed, then such payment or notice
shall be made not later than the next preceding business day which shall not
be a day specified in (a) or (b) above.
SECTION 15. Separability of Provisions. In case any one or more of the
provisions contained in this Agreement or in the Note should be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby.
SECTION 16. Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be an
original, and all such counterparts shall together
5
constitute but one and the same instrument.
SECTION 17. Applicable Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed on its behalf by its President or one of its Vice Presidents
and its corporate seal to be hereto affixed and said seal and this Agreement
to be attested by its Secretary or one of its Assistant Secretaries, all as
of the day and year first above written.
Xxxxxxx Truck Leasing Corp.
BY:____________________________
Xxxxxxx X. Xxxxxx
Title:
(CORPORATE SEAL)
Attest:
------------------------------
Secretary
Xxxxxxx Leasing Corp.
BY:___________________________
President
(CORPORATE SEAL) Title:
Attest:
------------------------------
Secretary
6
ANNEX 1
6.52% DEMAND PROMISSORY NOTE
$75,000,000
Date: July 16, 1998
Xxxxxxx Leasing Corp., a corporation organized under the laws of
Delaware, for value received, HEREBY PROMISES TO PAY to Xxxxxxx Truck Leasing
Corp., a Delaware corporation, or order, upon demand, the principal sum of
Seventy Five Million Dollars ($75,000,000), either in one sum or in several
sums upon demand made from time to time (the receipt of any such sum to be
noted hereon), in every case in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, at the corporate trust office of First Union
National Bank, in the City of Newark, New Jersey, AND TO PAY interest, at the
said office and in like coin or currency, on the unpaid portion of the said
principal sum from July 16, 1998, until the said principal sum shall have
been paid, such interest to be paid semiannually at the rate of 6.52% per
annum on the 15th day of January and July in each year commencing on the 15th
day of January, 1999 (calculated on the basis of a 360-day year of twelve
30-day months). If any or all installments of said principal sum shall not be
paid when demanded, such overdue principal and, to the extent that payment of
interest on overdue interest is enforceable under applicable law, any overdue
installment of interest on this Demand Promissory Note, shall bear interest
at the rate of 8.52% per annum until paid.
This Demand Promissory Note is the Demand Promissory Note referred to in
the Loan Agreement dated as of July 16, 1998, between Xxxxxxx Truck Leasing
Corp. and the maker hereof, and may be prepaid only as provided in said Loan
Agreement.
Xxxxxxx Leasing Corp.
BY:______________________________
Title:
1
Pay to the order of First Union National Bank, as Trustee under the
Collateral Trust Indenture dated as of March 21, 1983, as supplemented and
amended by a Third Supplemental Indenture thereto dated as of February 20,
1986, by an Eighth Supplemental Indenture thereto dated as of May 15, 1990
and by a Seventeenth Supplemental Indenture thereto dated as of March 10,
1997 and as supplemented by a Nineteenth Supplemental Indenture dated as of
July 16, 1998, between Xxxxxxx Truck Leasing Corp. and said Trustee, as from
time to time further amended and supplemented.
Xxxxxxx Truck Leasing Corp.
BY:______________________________
Title:
2
EXHIBIT B
----------
XXXXXXX TRUCK LEASING CORP.,
FIRST UNION NATIONAL BANK
as Trustee
AND
XXXXXXX LEASING CORP.
ASSIGNMENT OF LOAN AGREEMENT
Dated as of July 16, 1998
----------
1
ASSIGNMENT OF LOAN AGREEMENT
ASSIGNMENT OF LOAN AGREEMENT dated as of July 16, 1998, among Xxxxxxx
Truck Leasing Corp., a corporation organized under the laws of the State of
Delaware (herein called the "Corporation"), First Union National Bank, as
Trustee under the Indenture hereinafter referred to (herein called the
"Trustee"), and Xxxxxxx Leasing Corp., a corporation organized under the laws
of the State of Delaware (herein called the "Borrower").
WHEREAS, the Trustee is Trustee under a Collateral Trust Indenture dated
as of March 21, 1983, (the "Original Indenture"; the Original Indenture, as
supplemented and amended by a Third Supplemental Indenture thereto dated as
of February 20, 1986, by an Eighth Supplemental Indenture thereto dated as of
May 15, 1990 and by a Seventeenth Supplemental Indenture thereto dated as of
March 10, 1997 and as supplemented by the Nineteenth Supplemental Indenture
dated as of July 16, 1998, being herein called the "Indenture"), between the
Corporation and the Trustee under and pursuant to which there are being and
have been issued certain Collateral Trust Debentures of the Corporation
(herein called the "Debentures"); and
WHEREAS, pursuant to a Loan Agreement (herein called the "Loan
Agreement") dated as of July 16, 1998, between the Corporation and the
Borrower, the Borrower has borrowed from the Corporation, and the Corporation
has loaned to the Borrower, $75,000,000, which is evidenced by a 6.52% Demand
Promissory Note from the Borrower to the Corporation in the principal amount
of $75,000,000 (herein called the "Note"); and
WHEREAS, in order to secure the payment of the principal of, and
premium, if any, and interest on, all Debentures at any time issued and
outstanding under the Indenture, as and to the extent provided in the Indenture,
and the performance and observance by the Corporation of all the covenants and
conditions in the Indenture and the Debentures contained on its part to be
observed and performed, the Corporation has endorsed, assigned and delivered to
the Trustee the Note and is required to assign to the Trustee the Loan
Agreement;
NOW, THEREFORE, THIS ASSIGNMENT WITNESSETH:
1. The Corporation hereby assigns to the Trustee all the right,
title and interest of the Corporation in, to and under the Loan
Agreement in order to secure the payment of the principal of, and
premium, if any, and interest on, all Debentures at any time issued and
outstanding under the Indenture, as and to the extent provided in the
Indenture, and the performance and observance by the Corporation of all
the covenants and conditions in the Indenture and the Debentures
contained on its part to be observed and performed.
2. The Trustee will hold the Loan Agreement and the Note and the
right, title and interest of the Corporation therein in accordance with,
and subject to, the terms of the Indenture.
3. The Borrower acknowledges notice of, and consents to, the
assignment of the Loan Agreement and the Note and of the right, title
and interest of the Corporation therein, all as provided in, and subject
to the terms of, the Indenture and this Assignment.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Assignment to be executed on its behalf by its President or one of its Vice
Presidents or Assistant Vice Presidents and its corporate seal to be hereto
affixed and said seal and this Assignment to be attested by its Secretary or
one of its Assistant Secretaries or Assistant Vice Presidents, all as of the
day and year first above written.
Xxxxxxx Truck Leasing Corp.
BY:____________________________
Xxxxxxx X. Xxxxxx
1
Title:
(CORPORATE SEAL)
Attest:__________________________
Secretary
FIRST UNION NATIONAL BANK,
NATIONAL ASSOCIATION,
as Trustee
BY:________________________
Title:
(CORPORATE SEAL)
Attest:__________________________
Title
2
Xxxxxxx Leasing Corp.
BY:________________________
Title:
(CORPORATE SEAL)
Attest:__________________________
Title
3
